Action Committee Logo go
Looking for the Access to
Justice Research Network
(AJRN)? Click here

Month: July 2013

Posted on

Are health problems legal problems in disguise?

Access to justice as a social determinant of health

Social Determinants of Health

It is well understood that those at the bottom of the social gradient have shorter life expectancies and experience more health problems at a higher rate than those who are well-off.[1] The societal factors that cause this disparity are referred to by social scientists as “social determinants of health”. According to the World Health Organisation, social determinants of health are “the conditions in which people are born, grow, live, work and age” with these circumstances being shaped by the distribution of money, power and resources. When people experience things like poor housing, insecure employment, inadequate education and other disadvantages, the negative effects on health accumulate throughout life.[2] Many of these problems may actually be unmet legal needs that can be dealt with in a poverty law practice. In other words, legal services have the power to impact social determinants of health, and I propose that access to these services can be a social determinant of health in itself.

Legal problems in disguise

Health problems are sometimes legal problems in disguise. Consider, for example, a child who is brought to the emergency room multiple times, suffering from asthma attacks. At first glance, her attacks appear to be a very straightforward health problem; the doctor should treat her symptoms and send her on her way. However, what if the underlying problem is a legal one? What if the landlord of the family residence refuses to remove the mould that is exacerbating the child’s asthma? This health problem has just become a legal one, and a legal solution through landlord-tenant law is necessary to attain a lasting solution.

If inequitable social structures are most often the systemic causes of ill health, legal interventions will be more effective if they target these structures.[3] Consider again the example above. The negligent landlord is only the manifestation of a larger social problem. Addressing the overarching problem of poor health conditions in substandard housing and the lack of affordable housing (e.g. through a test case or law reform initiative) would target the root cause of this child’s problem, and the problems of countless others.

Putting theory into action: Medical-Legal Partnerships

If the underlying social causes of poor health are often civil legal problems, collaboration between health professionals and lawyers through medical-legal partnerships (MLP) offers an innovative way to address these problems. According to the US National Centre for Medical-Legal Partnership (NCMLP), “[m]edical-legal partnership is a health care delivery model that improves the health and well-being of low-income and other vulnerable populations by addressing unmet legal needs and removing legal barriers that impede health.” The NCMLP approach has three core components: it directs services for patients and families within healthcare facilities; it provides training for health care staff; and it engages in joint medical-legal systems advocacy. Benefits of the MLP approach can be seen across the United States and in Canada’s first MLP at the Hospital for Sick Children in Toronto.[4]

A powerful argument for access to justice

Framing access to justice as a social determinant of health has far-reaching implications. Proof of a causal relationship would be a powerful weapon in the arsenal of both justice and health advocates. If access to legal services can improve health outcomes in a cost-effective manner by stopping the problems “upstream”, this could spur health policy-makers to invest in access to justice initiatives. Similarly, evidence that access to justice has positive consequences that extend further than the courthouse could increase public support and political will for making the system more accessible. If access to justice is considered a social determinant of health, and action is taken to improve access, the result could be a healthier and more just society.

Further Reading

Carmean, Monica. “Medical-Legal Partnerships: Unmet Potential for Legislative Advocacy” (2012) 19 Geo J on Poverty L & Pol’y 499.

Jackson, Suzanne F et al. “Hospital-Legal Partnership at Toronto Hospital for Sick Children: The First Canadian Experience” (2012) 15:4 Healthcare Quarterly 55.

Schulman, David I et al. “Public Health Legal Services: A New Vision” (2008) 15:3 Geo J on Poverty L & Pol’y 729.

Posted on

Innovating Justice: Ideas from the Netherlands

The semi-annual meeting of the International Legal Aid Group (ILAG) is the pre-eminent international legal aid conference in the world. Delegates from about 25 countries, including Asian, African and Latin American nations, attend this conference. The focus of the ILAG is on access to justice in European nations, as well as other common law countries. The conference series began twenty years ago in The Hague as a small group of legal aid researchers and policy-makers gathered together to discuss policy and program developments in the Netherlands occurring at that time. Since then, the ILAG conference has become a valuable event for researchers and policy-makers to discuss on-going research and policy initiatives in view of meeting the challenges in administration of legal aid, as well as access to justice barriers in general.

This year, the conference theme, Legal Aid in Difficult Times, offered the opportunity for speakers from around the world to share their reserach on issues ranging from the role of new technologies in securing access to justice, to how jurisdictions from around the world are coping with budgetary restraints that have challenged their ability to provide legal services. A presentation by Ab Currie from the Canadian Forum on Civil Justice and Michele Leering from the Community Advocacy and Legal Centre examined the role of intermediaries in expanding access to justice services to the disadvantaged. Intermediaries working in a true partnership with lawyers can extend the reach of lawyers, provide access to groups that are otherwise very difficult to reach and can assist professional legal service providers in offering more holistic assistance. These intermediaries provide knowledge about communities and clients to which lawyers do not have the skills to assess. For example, Richard Cohen, the CEO of Epoq Legal Limited, discussed how a private sector for-profit company can successfully provide unbundled on-line legal assistance at a relatively low cost when compared with conventional lawyers’ fees. The message to the traditional legal services providers was clear: if you do not find a way to provide legal services at a cost that people are willing and able to pay, someone will move in and take the business from you. Another presentation, this one delivered by Bonnie Hough, the manager of several California court-based self-help programs, focused on the utility of these kinds of programs in state civil courts. In California, self-help generally means having lawyers advise and review court documents for pro se or unrepresented litigants, but not actually representing them. Hough’s experience suggests that well-prepared self-representing litigants raise questions about their real lives rather than legal issues and employ other tactics frequently used by lawyers. Hough suggests that this is probably better for judges (who are “holistically” oriented) to solve peoples’ legal problems. These three examples provide only a flavour of the interesting discussions at the ILAG conference. Readers should go to the ILAG website at www.Ilagnet.org to access material from the 2013 and previous conferences.

Profiling Innovation

There is a lag between the circulation of new ideas and experimentation with innovative approaches on the one hand, and their widespread adoption within the justice system on the other. For this reason, approaches to justice innovation pioneered by HiiL are of great interest. The HiiL is a research and advisory organization that provides justice strategy advice and promotes justice innovations with an overall focus on the functioning of national justice systems in a globalizing world. Two of the sessions at the ILAG conference focused on the innovative research happing at the HiiL. Professor Maurits Barendrecht offered a number of important observations on strategies for change in access to justice. Noting that traditional services consume a vast majority of the money spent on justice (often, regardless of cost-effectiveness), Barendrecht asked wither such a strategy maximizes effectiveness and efficiency. He stressed that there are an expanding number of innovative approaches from which to learn, however, taking advantage of new opportunities requires different strategies , which challenges strategic decision-makers in the traditional justice system.

Professor Barendrecht is a key member of the Justice Innovation Lab team at HiiL. The Justice Innovation Lab is like any other lab – it is a place where new ideas are developed and tested – only the ideas and strategies being tested will improve access to justice. In his ILAG presentation, Barendrect spoke about the work being done at the Justice Innovation Lab. Over about the last five years, the Lab has developed a method for innovating justice. The following summarizes in a very general way some of the main features and lessons learned from the many projects undertaken at the Justice Innovation Lab:

  • Focus on citizen’s or client’s needs first. Find out who are the users. Who will be affected?  What are their needs?
  • Involve users of the development of the innovation directly, fully and first.
  • Put conventional legal thinking on hold. Bring in a diversity of skills and knowledge. Create and nurture the environment and capacity for creative thinking.
  • Allow time for ideas to incubate.
  • Work backwards from outcome goals. Select from a range of potentially fruitful ideas. Brainstorm all possible solutions. Create models and prototypes.
  • Recognize and include all the stakeholders. Identify all the essential partners required to make the idea work. Determine who stands to lose. Mediate approaches that avoid conflicts creating winners and losers.
  • Quantify the value of the innovation – not only what it will cost. Determine what investments are needed in both money and other resources. Determine how the innovation will be made sustainable.

The Justice Innovation Lab at HiiL has produced many different types of justice innovations. One was the well-known index for measuring the cost and quality of justice; another involved work on the highly regarded Rechtweiser, the on-line dispute resolution system, which is now part of the Dutch legal aid service delivery model. The Prison Paralegal Justice centres in Kenya, where prisoners advise other inmates on legal issues, are an example of one of the many international projects successfully developed by the Lab process. One of the earliest projects was the development of a process for resolving personal injury disputes for the Dutch government. This project took three years to complete and involved nearly a hundred different organizations. The latter example suggests that the actual Innovation Lab process will vary considerably depending on the size, duration and other defining characteristics of the project. However, the basic approach applies generally and has proven itself over many different projects. Importantly, the Innovations Lab process is portable; this could be important for a large and diverse country. HiiL seems to have got it right and the Justice Innovation Lab might be a promising approach to moving forward and expanding access to justice in Canada.