What are the challenges involved when working with clients living with psychotic illnesses, and what is some practical advice for their lawyers and advocates?
I was asked to write an article on the challenges that those experiencing mental illnesses face when engaging with the legal system. What follows are my observations on providing legal services to a person living with the effects of a serious mental illness, especially in the “simple” civil law realm. It is based on my experience as a lawyer, policy maker and manager for government, as well as private practice in high conflict estate matters and pro bono work at the Edmonton Community Legal Centre. I am also a supporter of a loved one living with the effects of schizophrenia. My goal is to describe the challenge involved, to acknowledge there are no easy solutions, and to offer some practical advice for navigating this rocky road.
Write an article on the mentally ill in the justice system. That is a task equivalent to eating not just a mere elephant, but an entire herd and the surrounding forest one spoonful at a time (as Desmond Tutu said). Civil or criminal matters? If criminal – police encounters? Arrest? Bail? Jail? Indictable? Provincial? Mental Health or Drug Courts? If civil – debtor or creditor issues? Immigration? Landlord or tenant? Trusteeship? Estates? Family? And what about those “neither fish nor foul” matters, such as a Mental Health Act arrest, confinement and compulsory care? Bylaw enforcement? Traffic tickets?
And just what do we mean by mentally ill? Being so filled with fear and anxiety you cannot leave your home? Hearing voices? Stubbornly insisting on your innocence or guilt? Depression so intense that one lacks all volition? Believing your neighbour is whispering about you? Unable to comprehend the justice system? (Take a moment to consider which of these are “real” and which are not.) Diagnostic and Statistical Manual of Mental Disorders 5th edition anyone? (The American and Canadian gold standard for classification and diagnosis of psychiatric disorders.)
Let’s narrow the field to representation of a subset of clients: individuals living with psychotic illness, such as schizophrenia spectrum or bipolar disorder. The life of a person living with one of these chronic and serious mental illnesses is one of managing delusions and other forms of break with reality. The client is also dealing with “negative” symptoms. This includes impaired executive function (the ability to plan and make decisions), avolition (loss of motivation) and, for some, anosognosia (the inability to recognize there is a pathology). For these clients, there are also the external forces of shame, stigma and stereotype. About two in 100 people worldwide experience psychotic illness. About one-third manage it well, one-third live independently with support, and one-third are not well managed. They come from all walks of life – there is no socioeconomic predictor of these illnesses. The cognitive effects of the illness can be so disabling as to impede employment or full social interaction, resulting in many living in financially low/modest and socially-isolated circumstances.
Their access to justice is sub par. These clients encounter the same legal issues as the general population, but a far higher percentage encounter the criminal justice system. And many are excluded from the civil justice system because of the challenges of their illness and the challenge they present as clients.
The client will have difficulty sorting reality from delusion. Their ability to plan and follow directions are limited. They often shift perspective and have trouble following commitments. In the face of this, the lawyer’s task is seeking just resolution, starting with framing the client’s issues within a tidy lawyerly framework that can be slotted neatly into the justice machine for outcome. This can be a messy, crazy business.
To keep the discussion manageable, I have limited my thinking to clients with delusional illness encountering “simple” civil matters – such as small claims, landlord tenant disputes, social assistance and AISH appeals. The adjective “simple” is fraught: while these may be matters that are simple processes for lawyers, they are never simple or unimportant to the client. The outcome can lead to dignity or shame, security or dependence, shelter or homelessness. The suggestions below apply to complex matters as well but are easier to conceptualize if you imagine using them in a simple situation.
The specific challenges faced by the client is longer than the word count allows. The practical “fixes” are limited and patchwork. That said, let’s dive in.
Mental capacity and the ability to instruct counsel is a first challenge for the lawyer or other advocate. A client must have the ability to understand their legal situation and give instructions. Their ability to understand and instruct is likely fluid – changing from day to day. Bizarre reality may be mistaken for delusion by the hearer. Another challenge may be the client’s limited ability to take steps on their own, due to avolition or cognitive issues.
A further challenge is the client’s ability to provide evidence in affidavit or testimony. Memory may be severely compromised. The ability to understand questions and to answer in a straightforward fashion is compromised. This is especially true where the client is under stress. Clients may not be able to prove their case because of their limited ability to convey the facts.
So, what is a lawyer or advocate to do?
Trite but true, it takes careful listening and thoughtful teaching. You may be encountering a person who seeks results that are impossible or relies on a reality that does not exist. It is hard for a listener to pry truth from delusion and fact from opinion. Remember the whole person: not only is there a brain disorder but likely also a unique range of experience with hospital admissions and social, economic and other turmoil.
Probe for your client’s best and most comfortable interview times and circumstances.
I have found it is best to work with the clients when they are at their best. This may be at certain times of day due to medication or sleep needs, or necessarily avoiding crowded places and so on.
Enlist a trusted family member or friend to assist and attend in support.
This person can be a great help, provided the client consents to their participation and the person is reasonably trustworthy. Yes, the supporter may influence the client. However, provided the influence is not “undue”, it is better than the alternative. The trusted family or friend is there for the long run. You, the lawyer, are only a blip in the story.
The Law Society of Alberta’s Code of Conduct sets out a framework for dealing with clients with limited capacity but relies on a trustee or substitute decision maker as an option for clients who cannot instruct (see Rule 3.2-15). Appointing a substitute decision maker such as a trustee may be overkill for a person with fluid capacity. The application may trigger anger and mistrust. Not to mention finding a trustee or litigation representative or attorney may be impossible or impractical. (And the Public Trustee will not step in except in rare circumstances.) Nonetheless, one may be a possibility in the right circumstances.
Obtaining a capacity assessment is often suggested as a means to ascertain capacity. Such assessments are useful security, but they are expensive and not particularly useful for situations where, like here, capacity may change over time. Plus, it is hard to find clinicians to do them.
Learn how to speak with the potentially delusional client.
If the client presents with what appears to be a delusion, do not argue with their account of reality when sorting out the facts. Test it gently for an air of reality. Remember, the neighbours might really be listening in. Do not deny or argue but acknowledge the client’s experience: “That must have been terrifying to know assassins may be behind any tree. Let’s put that on the back burner and see if it figures into your case… ” Acknowledgement does not equal agreement. But to the client, a delusional experience is real.
In moving forward with case strategy, seek areas of agreement. In conveying difficult information, ask permission to convey it. Provide it with humility and in a way that respects the client’s truth: “You are here to ask for my help, can I give you my thoughts now? I hear that you would like to get $100,000 in damages, but I am sorry to say that’s just not what the law allows …” As much as possible, keep affidavits to essential facts and simple statements that, when read back to the client, can be answered “yes” or “no”. Prepare your client for cross examination as best you can to keep answers similarly simple.
The client may not be capable of participating in mediation or negotiation. Be realistic about their ability to understand interests-based mediation or other processes that require comprehension of other’s perspectives.
The court can be your friend.
The court system is full of frustration and foibles. It seems impenetrable to most people, let alone one who must manage delusions or other symptoms. That said, the clerks, counsellors and judges who people the system do aspire to be alert to the challenges parties face, and to ease their way through their case. Remain courteous and (cautiously) optimistic toward the court and advise your client to do the same.
Make the experience feel fair to the client.
Dispute resolution research has shown that the experience of being respectfully heard is more important for effective resolution than the outcome itself. Procedural fairness is as important as substantive fairness. Particularly when a client has weak or no cause (or gets a negative judicial result), being treated fairly may be an end in itself. Demand fair treatment and do what you can to provide it.
Know when to fold ‘em.
There will be times when you can do no more for a client. There are a million reasons why that may happen. The decision to stop should be based on ethical principles – a reasonable balance of personal and professional resources, respect for client autonomy, and safeguarding the client’s interests. Ideally the client should be left with a path or option they can follow.
This seems like one small spoonful in a very, very big meal. But there is much to be optimistic about: one is the willingness of lawyers and others who undertake personal advocacy of the mentally ill to continue their work.
AUTHOR’S NOTE | Special thanks to Sarah Eadey at Edmonton Community Legal Centre for her help with this article.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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