Boyd-Caine, Tessa --- "Health and justice through partnership: Innovating to meet legal need" [2019] PrecedentAULA 62; (2019) 154 Precedent 44

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HEALTH AND JUSTICE THROUGH PARTNERSHIP

INNOVATING TO MEET LEGAL NEED

By Dr Tessa Boyd-Caine

At the heart of how we understand problems in accessing justice is the widespread nature of legal problems and their disproportionate impact on people already experiencing disadvantage.

Approximately 8.5 million people in Australia experience a legal problem in any given year. This includes around 3.7 million people who experience three or more legal problems in a year. In fact, people often report multiple legal problems and these problems tend to cluster, such as family breakdown and money issues or problems centred around poor quality housing. Nearly one in five people across the community takes no action to deal with their legal problems. Sometimes this is because the problem is not serious, but other barriers include not recognising the issue as a legal problem (or a problem with a legal solution), stress, time, cost, fear of damaging relationships and having other bigger problems to deal with.

THE EVIDENCE

Most concerning for anyone interested in barriers to accessing justice, unmet legal need compounds existing experiences of disadvantage, particularly for people living with disability, sole parents, people reliant on income support and people living in ‘disadvantaged housing’.^[1] Together, this evidence paints a clear picture of high levels of unmet legal need coupled with existing experience of disadvantage across the community.

This evidence is not new: it is all drawn from the body of work developed by the NSW Law and Justice Foundation through its landmark Legal Australia-Wide report.^[2] What has received less attention to date is the likelihood that these unmet legal problems often affect people’s health and undermine their wellbeing. In fact, one in five legal problems is reported to cause stress-related illness and/or physical illness. Yet people often don’t attribute these problems in their lives to problems lawyers can solve; and if they do, they tend to assume that lawyers are unaffordable or inaccessible. This means that there is a significant cohort of people who are never going to walk through the doors of a legal service, no matter how much they might need legal help.

A NEW RESPONSE TO THIS UNMET NEED

What is new is how legal practitioners have responded to this evidence. Health justice partnerships provide a novel and innovative case in point. In a practitioner-led movement driven primarily by community sector lawyers, community legal services have been moving out of their offices and into the most unlikely places – hospitals and community health settings – to collaborate with health services and their patients to address unmet, health-harming legal need. These health justice partnerships are collaborations between health and legal services that embed legal help into healthcare teams and settings. They respond directly to the evidence about levels of unmet legal need and the likelihood of negative health impacts arising from that need. They also respond to the recognition that many people don’t think of these problems as legal problems. People don’t identify lawyers as available or affordable, but they do tend to raise these problems with someone they trust. That might be a colleague or family member or, in the case of the human service system, a trusted health professional. Health justice partnerships leverage the trust people are likely to have in health services to increase access to the legal help that many need.

THE RELATIONSHIP BETWEEN HEALTH AND LAW

That there is a relationship between health and law is not itself new. From drug courts to therapeutic jurisprudence to legal outreach in hospitals, health and legal services have been coming together in a range of ways for many years. What makes health justice partnerships innovative is their ability to respond to unmet legal need while recognising that:

• people often experience multiple problems that intersect and compound; and

• health, legal and human services need to move beyond their existing models of service delivery if they are to reach the many people who need their help, but who will not seek it directly.

BEYOND STATUS QUO: CHALLENGING TRADITIONAL SERVICE MODELS OF LEGAL HELP AND HEALTHCARE

As a service model, the intention of health justice partnerships is to move beyond existing approaches like colocation to a more collaborative approach. Working in partnership allows practitioners to move to a level of integration that includes shared activity and objectives or purpose.^[3] At their most integrated, health justice partnerships embed legal help in a healthcare setting and in the health teams within that setting. This can happen in very tangible ways. For example, a health justice lawyer might be on site working at the health service multiple times in a given week. The lawyer is likely to have an email address on the health service’s email system and to attend regular health team meetings, such as those of the social work, alcohol and other drugs or mental health departments. Health justice lawyers have also presented at Grand Rounds, a forum in many hospitals for educational activity supporting general discussion, exchange of ideas, professional contact and building workplace culture.^[4]

A key activity of health justice partnerships is the legal education of health practitioners. This recognises that health practitioners need to be able to identify both the problems in their patients’ lives that a lawyer can resolve and how best to respond to those problems once identified. Building the capability of health services to recognise and respond appropriately to legal need among their patients through these activities is particularly important.

Given that not all legal problems identified in a health setting require the same kind of response, the ability to respond appropriately is key to the impact of legal help through health justice partnerships. For example, imagine a patient who is receiving rehabilitative treatment after surgery, who mentions to his physiotherapist that he is about to lose his driving licence. He has been accumulating fines on a toll road that he can’t afford to pay and now those fines are out of control. The patient is anxious because, without a licence, he will no longer be able to get to work. Meanwhile, the physiotherapist realises that losing his licence will undermine the patient’s ability to get to his rehabilitation appointments. The physiotherapist knows that with legal help, these fines could be deferred or even waived, and she refers the patient to the lawyer working on site in a health justice partnership.

This example is illustrative of many of the legal problems that health justice partnerships are addressing. In Health Justice Australia’s inaugural census of health justice partnerships across Australia, we found that more than half of all health justice partnerships assisted people with legal needs like fines, housing and tenancy, credit and debt problems, social security and consumer issues.^[5] In this case, the physiotherapist has played a key role in two ways. First, she has listened to an issue that her patient described which, while not related to his physical rehabilitation directly, would have harmed his health if left unresolved. Secondly, she has identified that this was a problem where a lawyer could help and has referred her patient to a health justice partnership lawyer accordingly. This reflects the evidence that while lawyers have often perceived the value of continuing legal education as a way of building legal capability among people with legal needs, it can be just as effective as a tool to build the legal capability of non-legal practitioners and professionals.^[6]

RECOGNISING COMPLEXITY: INTERSECTING AND COMPOUNDING PROBLEMS IN PEOPLE’S LIVES

While the example above reflects the frequency with which health and human services operate on the basis of referrals, there are many legal problems for which a simple referral is unlikely to be effective. Many referrals are never followed up by the person being referred, either because of mistrust or lack of confidence in the process; or because there is so much going on in their life that a referral feels like yet another barrier to getting problems fixed.^[7] This insight has been important in the decision of legal practitioners to work differently from well-established practices like outreach by adopting a collaborative model, which might improve the access to legal help of a group of people who would otherwise be unlikely to consult a legal service.

Family violence

The nature and complexity of legal problems that can harm people’s health is also emerging as a factor driving health justice partnerships. The extent of domestic and family violence being responded to by health justice partnerships is a case in point. Women are at an increased risk of experiencing violence from an intimate partner during pregnancy.^[8] One-fifth of health justice partnerships specifically target family violence.^[9] Yet the vast majority of all health justice partnerships are responding to family violence among the patients they see, even when that is not a problem that they are targeting.^[10] Meanwhile, health services in whose settings these partnerships are operating have acknowledged health justice partnerships as among the reasons they have improved their ability to respond to family violence among their patients.^[11]

The implication here is that legal services might need to reshape their ability to work at the times and in the places that suit their prospective clients, in order to best meet the needs of people who need legal help, but who would not otherwise come into contact with a legal service. This challenge is being responded to in a number of ways across the community legal sector, including in the increasing commitment from legal services towards client-centred approaches and in the principles of co-design.^[12] The challenge to reshape legal services around the people whose needs they are here to meet is also being answered by the over 50 health justice partnerships (and increasing) across Australia.^[13]

Secondary consultations

The health justice partnership model intentionally leverages the trust between patients and their health services to provide access to legal help. However, the health professionals who (the mostly) women and children experiencing family violence confide in might be just as concerned to maintain the trust and confidence of their patient as they are to explore what other services their patient needs. In response, secondary consultations have emerged as a key component of health justice partnerships, and may be a key point of difference between this and other service models.^[14] A secondary consultation is advice to a legal professional about the health needs of a particular patient, or advice to a health professional about the legal needs of a particular patient.^[15] Secondary consultations reflect a high degree of collaboration, indicating trust between the partners, together with a degree of understanding about the framework in which the other partner operates (that is, recognising obligations around mandatory reporting [health services] and confidentiality/privilege [legal services]). Noting these professional obligations, lawyers may limit secondary consultation to the provision of ‘information’ about a mutual client’s legal issues rather than ‘legal advice’, which is provided only directly to a client.^[16]

Take, for instance, an antenatal nurse who becomes aware of her pregnant patient’s fear of violence at home. The nurse might take time to probe the nature of the violence in question, while maintaining the trust and confidence of her patient, before determining whether a referral to a lawyer is appropriate. Through secondary consultation as part of a health justice partnership, the nurse can discuss options with the health justice lawyer and even funnel information about those options back to her patient, while maintaining contact with her patient and confidentiality in the context of an abusive partner who might otherwise bar the patient from obtaining legal help. The nurse is not a de facto lawyer, and in many of these cases patients will eventually see a lawyer directly. But organising secondary consultation to expand the expertise available to a patient, without fracturing established relationships of trust, can be particularly important in the context of intersecting and complex levels of health-harming legal need in the lives of the people these services exist to support.

As an integration of services around simultaneous need, health justice partnerships join the effort of many across the health, legal and human service systems to improve the availability and accessibility of services for the people who need them. As a collaborative model that leverages existing trust to extend access to expertise across health and legal services, health justice partnerships are reshaping some of our most important human services around the people whose unmet legal needs not only render them vulnerable to poor justice outcomes, but may also harm their health.

Dr Tessa Boyd-Caine has a PhD from the London School of Economics (Law/Sociology) and Masters in Criminology from the University of Sydney. Tessa is Chief Executive Officer of Health Justice Australia, a national charity and centre for excellence supporting the expansion and effectiveness of health justice partnerships. PHONE [phone] EMAIL [e-mail].

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^[1] C Coumarelos, D Macourt, J People, H McDonald, Z Wei, R Iriana and S Ramsey, Legal Australia-wide survey: Legal need in Australia (2012) Law and Justice Foundation of NSW.

^[2] Ibid.

^[3] S Forell and T Boyd-Caine, Service models on the health justice landscape: A closer look at partnership (November 2018) Health Justice Australia. See also Partnership Brokers Association, <http://partnershipbrokers.org/> .

^[4] R Tarala and A Vickery, ‘Hospital grand rounds in Australia’, Medical Journal of Australia, Vol. 183, No. 11, 2005, 592-4.

^[5] S Forell, Mapping a new path: The health justice landscape 2018 (2018) Health Justice Australia.

^[6] S Forell and H M McDonald, Community legal education and information at Legal Aid NSW: Activities, costs and future planning (2015) Law and Justice Foundation of NSW, <http://www.lawfoundation.net.au/ljf/site/articleIDs/06CA067847F3CF7DCA257E9E000E3BB1/$file/CLEI_Legal_Aid_NSW.pdf> .

^[7] P Pleasence, C Coumarelos, S Forell and H McDonald, Reshaping legal assistance services: Building on the evidence base (2014) Law and Justice Foundation of NSW.

^[8] M Campo, Domestic and family violence in pregnancy and early parenthood: Overview and emerging interventions (2015) Australian Institute of Family Studies, <https://aifs.gov.au/cfca/publications/domestic-and-family-violence-pregnancy-and-early-parenthood>.

^[9] This includes, but is not limited to, the health justice partnerships that received the first Commonwealth Government funding for this model that was delivered through the Women’s Safety Package in 2015. Forell, above note 5.

^[10] Forell, above note 5.

^[11] J Cass Verco, DVRS in Paediatrics, Sydney Local Health District presentation to ELDOH (early life determinants of health), Health justice partnership forum, 9 November 2018; C Keating, MABELS changes everything, Final evaluation report (2018) Effective Change for Eastern Community Legal Centre.

^[12] See, eg, Centre for Innovative Justice, Supporting Justice project (2019) RMIT, <https://cij.org.au/news-and-views/supporting-justice-update/>; Legal Aid NSW, Strategic Plan 2018-2023 (2018) <https://www.legalaid.nsw.gov.au/about-us/who-we-are/legal-aid-nsw-2018-2023-detailed-plan>.

^[13] Forell, above note 5.

^[14] L Gyorki, Breaking down the silos: Overcoming the practical and ethical barriers of integrating legal assistance into a healthcare setting (2013) Churchill Fellowship, <https://www.churchilltrust.com.au/media/fellows/Breaking_down_the_silos_L_Gyorki_2013.pdf>.

^[15] Forell, above note 5.

^[16] For further on this see V Lewis, Working together: A health justice partnership to address elder abuse, First year report (2016) Justice Connect, Melbourne.