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de Paoli, Danielle --- "Acting for survivors of historic abuse" [2017] PrecedentAULA 76; (2017) 143 Precedent 54


ACTING FOR SURVIVORS OF HISTORIC ABUSE

By Danielle De Paoli

Acting for survivors of historic child abuse when they seek compensation from institutions connected with the abuse is challenging and nuanced. But some of the practical considerations of working with this class of clients can be considered and adopted in any general injuries practice.

Lawyers are not therapists, but the line between legal practice and therapy can sometimes be blurred, particularly if a client’s first disclosure is to you. What is a certainty, in a very uncertain and unstable process, is that the way in which we engage with our survivor clients will affect their emotional wellbeing, the way that they perceive their future and the role that their emotions and perceptions play in the healing process.

It is critical to consider the welfare of the client at every step of the legal process to ensure that what is intended to be a healing and recovery process does not cause further harm.

Empathy is imperative, as is a certain degree of objective detachment. It is also vital to consider your client’s stories and experiences in order to understand properly how they affected your client’s development from childhood into adolescence and adulthood. The effects of child abuse often have a lasting impact on every facet of the lives of these individuals.

Lawyers practising in this area must have a thorough understanding of the symptoms and signs that survivors exhibit. There is no correlation between the extent and severity of the abuse and the significance of the impact experienced by the victim and their medical diagnosis. A comprehensive understanding of complex trauma, the range of emotions and the psychiatric diagnoses, is necessary. Emotions often include sadness, anger, guilt, avoidance, loss of self-esteem and low self-worth. Diagnoses are diverse and can include not just trauma-related diagnoses, but mental illnesses found in the general population that are not related to the abuse, such as bipolar disorder, schizophrenia, dissociative identity disorder, eating disorders and drug and alcohol dependency.

PRACTICAL CONSIDERATIONS

Capacity issues

The trauma experienced by this cohort of clients can raise the question of whether they have capacity to provide instructions; sometimes a litigation guardian may be required, particularly where there are issues relating to alcohol and drug dependency.

Broaching capacity issues with the survivor is complex: being in control of their future can be an important part of the recovery process, and appointing a litigation guardian can remove any sense of empowerment on the part of the survivor and place them back under someone else’s control and direction.

While legally, this issue is manageable, the manner in which it is explained to the client will require careful planning. Some clients might need to engage the Public Trustee & Guardian as their litigation guardian if their relationships with family and friends have broken down or if no one in the client’s network is able to act in the capacity of litigation guardian.

What would the client like to achieve from the legal process?

In a general personal injury matter, what a client wants is often confined to a legislative regime with little scope for creativity. Occasionally, revenge makes the list of desired outcomes, but compensation is generally the extent of the outcome sought.

For survivors of historic child abuse, compensation is often only one remedy on a list of other desired outcomes. The ability to tell their story to representatives of the institution in which they were abused affords a chance to be heard and empowered, which can be essential for the healing and recovery process.

This restorative justice approach enables practitioners to be creative in how we approach and structure the resolution of the matter. The outcomes from approaching institutional abuse law claims from both a compensatory and restorative justice perspective can include:

• the removal of the perpetrator’s name from an honour board within the institution;

• payment of tertiary education tuition fees and text books;

• ongoing, lifelong payment for psychological and psychiatric treatment , outside of the compensation agreement;

• opportunities to meet the leaders of defendant institutions to discuss avenues for increased child protection measures; and/or

• measures to provide secure tenancy and accommodation for the remainder of the survivor’s life.[1]

The opportunities for restorative justice to be considered alongside financial compensation are endless. The ability to have a frank discussion with your client about what they would like to achieve is important. Discussions with the institutions concerned will need to be structured to facilitate some of the desired outcomes. Of course, the ability to do so will depend upon the individual institution and their reporting, legal and financial constraints.

Choice and control

Survivors of abuse, as a generalisation, may have felt as though they have had little input into the direction of their lives. Whether abuse occurred in orphanages, schools, church youth groups or at a sporting/recreational activity, the individual may have been groomed and controlled by a person who recognised and took advantage of their vulnerability.

Adopting practices that enable your client to actively make decisions will avoid further harm, promote healing and help to avoid further re-traumatisation. The opportunities for choice in a legal process, which is known for its structure, are nonetheless plentiful.

There are factors that the survivor has scope to decide on during the process. Do they want to report the matter to the police? Would they work better with a male or female lawyer? Would they prefer a medico-legal consult with a male or female psychiatrist? Where would the client like to sit in a meeting room – closest to the door, with their back to the door or in the brightest part of the room?

During the negotiation process, if an apology is to be given, how would the client like that to be delivered? Apologies can be delivered verbally and/or in writing. Who will provide that apology – what is the gender of that person, and what is their level of authority within the organisation? It is worthwhile considering whether the person proposed to deliver the apology is appropriate or whether the client would prefer someone else to deliver it.

Settlement discussions, whether in a settlement conference or mediation, are anxiety-inducing for clients. In the context of ensuring that our clients feel that they have control over the situation, preparation is paramount. Ensure that a client conference has occurred well in advance of the settlement discussions to explain the process and advise on the range of potential outcomes. Being able to anticipate what may occur will help your client to feel prepared and in control.

The above opportunities to provide choice to a client are not exhaustive. Consider other opportunities and communicate these clearly to your client. Such engagement will assist in building rapport and, most importantly, minimise any potential for the survivor to be re-traumatised by the legal process.

Apology

The apology being offered to the survivor can, in itself, be designed. Your client should be asked for their preferences as to how they would like the apology to be delivered. Consideration should be given as to whether the apology should be delivered prior to or following the conclusion of negotiations – both have advantages and disadvantages.

An apology gives the survivor an opportunity to meet a senior member of the institution and tell them about the abuse and the impact that it had on their foundational and developmental years; how that impact has affected their lives and how those effects continue today. Survivors delivering their story is powerful. I have witnessed representatives from institutions finish these meetings teary-eyed and genuinely affected by what they have heard. They are, after all, not immune to the vicarious trauma that we as practitioners representing survivors face daily.

For religious institutions, consider whether a robed clergy representative is appropriate. It may be more appropriate to request that the clergy attend in lay person’s clothing. The power imbalance is often eliminated when a member of the clergy has removed their robe and is in everyday clothing.

Unsurprisingly, many survivors are quite emotional and feel confronted when receiving an apology verbally, often due to the perceived power imbalance. There is significant value from a recovery perspective in requesting that a written apology also be provided.

Re-traumatisation of survivors

Operating from the fundamental position that any legal process should be structured in a manner to minimise re-traumatisation of the claimant requires an understanding of potential triggers, which will vary from individual to individual.

As obvious as it seems, listening closely to your client during the initial instruction-taking is generally a key to identifying the triggers. My clients have generally impressed upon me during our initial consultation exactly what will trigger them, which assists in avoiding any further, unnecessary trauma.

Triggers are often linked to recovered memory and can be incredibly traumatic. Some readily identifiable triggers include the smell of aftershave or cigarettes, particular types of and smells of alcohol and hairy arms or ears.

It is worth reflecting on the location of medico-legal consultations. For example, for a survivor abused by a religious representative, attending an appointment at a building in or near a church or where the building has a religious name, may have the potential to trigger and re-traumatise the client.

In preparing a client’s matter and obtaining instructions about the nature of the abuse endured, contemplate whether details of the specifics of the abuse can be obtained from an alternate source – police reports and clinical notes are often appropriate starting points. The client will, of course, need to verify the accuracy of these sources.

Recognise that the individual might not be the only stakeholder in their matter. There are often wider support networks that will have a significant interest in a matter, such as partners, family, children, psychologists and other survivors of abuse of the same perpetrator. Working with any support network, with the client’s consent, will be critical to ensuring the smooth advancement of the matter. Be creative in how your client can be supported by their network throughout the preparation of their claim.

Your words and perception

Whether we accept it or not, we lawyers are considered to be in positions of authority by survivors. This, together with a consequential effect of the trauma, may mean that our clients do not necessarily trust us. Establishing a rapport with our client means that we need to be seen not as an authority figure, but as someone in their network of supporters, who is there to assist them.

Choose your words carefully, consider their impact and show emotional intelligence to build the foundations of a lawyer/client relationship.

When communicating with your client, consider the way in which advice is received and perceived by the survivor. This will vary between each contact and depend on their emotions and triggers on any given day, or on whether they have recently seen their psychologist or other support people.

I have found that one of the most challenging times in appropriately choosing your words is in delivering advice regarding causation. We know that perpetrators often target the most vulnerable children (characterised, for example, by the separation of their parents or abuse within the family home). Often, our clients have suffered physical, psychological and sexual abuse in a number of arenas, before being abused within an institutional setting. We are required to provide honest and accurate advice to our clients. However, careful consideration should be given as to how this message is conveyed. Sensitive advice simply cannot be delivered in a matter-of-fact manner to the majority of this cohort of clients.

Vicarious trauma

Accept that you will, at some point, be affected by the traumatic experiences of your clients. There will be a trigger for you. Abuse of a client who is the same age as your child and recounting your own childhood experiences are potential triggers. Fatigue, burnout and vicarious trauma are part of the package in representing survivors of abuse.

Clients must recall their abuses in explicit and vivid detail to establish their claims. In listening to our clients’ stories, we are exposed to a range of disturbing images and emotions. Our own past experiences, as well as our current life stresses and circumstances, can also influence our resilience and ability to cope.

It is important to recognise the various symptoms and signs of vicarious trauma, which can include:

• physiological reactions – increased heart rate, rapid breathing, perspiration;

• frequent ruminations and intrusive thoughts of our clients’ experiences;

• hypervigilance towards our own children;

• inappropriate use of alcohol, drugs, caffeine, etc;

• impaired concentration and decision-making;

• loss of motivation;

• mood swings, exhaustion; and

• generation of our own health issues.

Having your own support network, such as debriefing with colleagues or having personal supervision with a health professional, will assist in managing your exposure to vicarious trauma. Support for yourself will ultimately enable you to continue fighting for the survivors of child abuse.

CONCLUSION

Representing survivors of abuse can be challenging on a number of fronts – client management, communication strategies and managing your own vicarious trauma. However, it also affords the opportunity to be involved in some of the most rewarding and satisfying work, assisting survivors move towards a healing and recovery process and allowing them, some for the first time, to take back control of their own lives.

Danielle De Paoli is a Special Counsel at Maurice Blackburn Lawyers, Parramatta. Danielle has been an Accredited Specialist in Personal Injury Law since 2008, practising in common law injuries matters with a particular focus on abuse law. PHONE (02) 9806 7222 EMAIL ddepaoli@mauriceblackburn.com.au.


[1] Some religious organisations who own/manage retirement villages have offered a room to the survivor to be properly cared for in the later years as part of the settlement package.


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