Transcript Ethics of Representing Clients with Diminished Capacity

PRACTICAL SKILLS FOR
WORKING EFFECTIVELY
WITH CLIENTS WITH
MENTAL HEALTH ISSUES
BASED ON MATERIALS FROM THE
NEW ENGLAND TRAINING CONSORTIUM
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MERF EHMAN
COLUMBIA LEGAL SERVICES
AGENDA
Overview of RPCs
Implementation of RPCs
• Identifying Diminished Capacity
• Maintaining a normal client-lawyer relationship
• Interviewing skills
• Mental Health Issues
• Determining Diminished Ability
Columbia Legal Services
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RULES OF
PROFESSIONAL
CONDUCT
1.14
Client with a Diminished
Capacity
1.6
Confidentiality of Information
1.4
Communication
1.2
Scope of Representation
CLIENTS WITH DIMINISHED
CAPACITY RPC 1.14(A)
Maintain a normal client-lawyer relationship
• As far as reasonably possible
• Capacity is presumed
Diminished ability to make adequately considered decisions
• Related to representation
• Reasons
IDENTIFYING
DIMINISHED CAPACITY COMMENT 6
Ability to articulate
reasoning underlying a
decision
Variability of state of mind
Factors to
Consider
Ability to appreciate the
fairness and
consequences of a
decision
Consistency of decision
with known long-term
commitments and values
of cliens
POSSIBLE SIGNS OF
IMPAIRMENT
COGNITIVE SIGNS
BEHAVIORAL SIGNS
Short-term memory
loss
Comprehension
Problems
Communication
Problems
Lack of mental
flexibility
Calculation Problems
Emotional
inappropriateness
Delusions
Hallucinations
Grooming/Hygiene
Difficulty with
activities of daily
living
Focus on
decision
ability
• Not on
• Affability
• Cooperativeness
Consider
possible
biases
• Age
• Disability
• Cultural
Consider
other
factors
• Age or disability
• Stress, Grief, Fatigue
• Medical Condition or
Medication
• Education level
STIGMA
harmful effects of stigma include:
•
•
•
•
•
lack of understanding by family, friends, colleagues
Discrimination at work or school
Difficulty finding housing
Bullying, physical violence or harassment
The belief that you will never be able to succeed at certain
challenges or that you can't improve your situation
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CLIENT
COMMUNICATION RPC
1.4
Keep client reasonably informed
Explain a matter
enough to permit the client to make informed
decisions about representation
CLINIC SETTING – Comment 3
• Adequacy of communication depends in part on the kind
of advice or assistance involved.
• The guiding principle
• fulfill reasonable client expectations for information consistent
with
• (1) the duty to act in the client's best interests, and
• (2) the client's overall requirements and objectives as to the
character of representation.
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THE COMMUNICATION PROCESS –
PRINCIPLES AND TECHNIQUES
Context
Structure
Basic Interviewing Skills
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Additional Considerations
Where is
the client?
Who you
are?
Who is
the client?
• Cell phone
• Hospital
• Private/public
• Your background, experiences,
beliefs, assumptions
• Your state of mind, emotional state
• Client’s background, experience,
beliefs, assumptions
• State of mind, emotional state
STRUCTURE
Roadmap
• Outline the process – what will happen
• Your role
• Client’s role
• Time constraints
Objectives
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• Yours
• Clients
• Expectations
LEEP - FOUR BASIC
INTERVIEWING SKILLS
Listen
Engage
Express
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Problem Solve
LISTEN
Demonstrates the interviewer is paying attention and cares
Encouragement to talk
Relevant note taking
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Intentional silence
LISTENING – ACTIVE
PART
Reflect
• Purpose
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• Reassures client that she was heard
• Reassures the interviewer that she is interpreting what
was said accurately
• Brief
• Not used in a way that interrupts client
ACTIVE LISTENING
CONT’D
Reflecting Content
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• Summarizing, paraphrasing, or restating the client’s
message
• Example: In loud angry voice with tears: “My
landlord told me that no children’s toys can be left
in the stairwell. I think that’s unfair because other
tenant’s leave their bikes and sports stuff there.
The landlord only complains about me and my kids.
We are the only Black family in the building. He is
constantly leaving notes on my door. It is awful.”
ACTIVE LISTENING
CONT’D
Reflecting feelings
• Acknowledges client as a whole person
• Conjecture
• More difficult than content
Example
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• Same as last slide
• How would you reflect the feelings?
EXAMPLE
“That restaurant would not let me eat with my friends unless I
left my service dog outside. That guy was mean and we had
to go somewhere else just because of me.”
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Client is very quiet and keeps crying, so they are having
trouble answering questions
ENGAGE CLIENT
Interaction through questions (limit)
Guide client to useful information (indirectly)
Events are of equal importance to client but not to
interviewer
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Guide away from unhelpful information
ENGAGE
Closed v. Open questions
• Open ended questions
•
•
•
•
Uncertain what specific information is needed
Want client to elaborate
Want client to talk freely
Ex. What happened?
• Closed ended questions
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• Answered with a yes or no
• Ex. How old are your children?
ENGAGE EMPATHY
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“To my mind, empathy is in itself a healing agent . . . because
it releases, it confirms, it brings even the most frightened
person into the human race. If a person is understood, he or
she belongs.” (Carl Rogers)
EXPRESS
Giving information
• About the agency
• About the process
• About your role
• About the law
Clear, simple statements
• Pacing the flow of information
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• Slow down as needed
• Give information at different times
• Information may be new, complex, or seem strange
EXPRESSING
How do you know if client understands?
What happens if you say “do you understand?”
Give the client permission to interrupt
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Ask client to explain to you
EXPRESS CONT’D
Involves all of the prior skills
Connects all of the information gathered to help client see
the situation more clearly or differently
Puts the situation in a legal context
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This increases the client’s understanding and prepares him
or her to deal with it more effectively
EXPRESSING – THE
END OF THE
INTERVIEW
Summarize legally relevant facts
Ask if you left anything out
Apply the law to the facts
Present options
Often try to do this too soon in the interview
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• This frustrates clients
PROBLEM SOLVING
Interrupting
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Communication Issues
LIMIT SETTING
The “art of interrupting”
• Back to the roadmap
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• Example: and then he and then he and then he – “I know
from what you have told me that your relationship with your
employer has been difficult. However, to finish the intake I
need to know about:… can you tell me about that?”
INTERVIEWER COMMUNICATION
ISSUE
Bothered by client behavior
Respond v. React
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• Keeping in touch with your emotions
• impulsivity
CONT’D
Focus on the problem and your feelings
about it
Decide if it effects the interview (if not
interview), if it does then:
continue
Describe your problem to the client
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Evaluate the response
CONT’D
Mistakes
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• Admit
• Repair errors or oversights
DE-ESCULATION
TECHNIQUES
Verbal cues
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• Tone of voice
• Volume of voice
• Rate of speech
AVOID
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Making promises you cannot keep
Asking why questions
Columbia Legal
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• Logic based
• Persons in crisis not operating from that part of brain
• Could make person defensive
DO
Empathize
Accept client’s feelings, thoughts and behavior even if
outside of “norm”
Compassionate but firm
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Announce your actions and movements
SPECIFIC MENTAL
HEALTH ISSUES
Delusional/Paranoid
Severe Trauma (PTSC, DV)
Borderline
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Suicidal
DELUSIONAL/PARANOID
Do not engage the delusion
Focus on concrete issues
Be explicit about what you can and cannot do
Used closed questions
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Recognize limitations
HISTORY OF TRAUMA
Client’s need for safety
Client is in control – gets to make decisions
Danger of retraumatization
Share information about the process to make things as
informed and predictable as possible
Proceed incrementally if possible
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• Allows client to respond to each step
• Time for client to make decisions
BORDERLINE
PERSONALITY DISORDER
Be explicit about goals and expectations
Set clear limits i.e. calls, visits to office, emails
Coordinate directly with others
Expect shifts in how client perceives you
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Manage feelings of anger/frustration
SUICIDAL
Resources available - 211
OK to express concern
Acknowledge feelings
Referral
Ask client if they have someone to talk to about how they are
feeling
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No PSY advice!
NEXT STEPS - LEVEL OF
IMPAIRMENT
Mild
• Some evidence
• Proceed
• Possible
referral/consult
needed
Moderate
Severe
• Substantial
evidence
• Client lacks
capacity to
proceed
• Proceed with
CAUTION
• Possible
consult/referral
• Referral to confirm
conclusion
• Consider:
• Possible
protective action
• Withdrawal/reject
MILD AND MODERATE
IMPAIRMENTS
Communication Issues - RPC 1.4
Keeping client informed
Reasonably consult with client about means to achieve
objectives
Comply with reasonable requests for info
Explain matter so client can make informed decision
regarding representation
SCOPE OF REPRESENTATION
RPC 1.2(C)
Can limit the assistance given to a client
Must be reasonable
Example from commentary:
• Client and Lawyer agree that the legal assistance will be
limited to securing general information about a typically
uncomplicated legal problem that the client will handle pro se
CONSULTATIONS –
COMMENTARY (6)
May seek guidance from diagnostician
Possible uses:
• Clarification of the areas of diminished capacity /retained
strengths.
• Affirmation of the client's capacity
• Justification of the attorney's capacity concerns
• Expert advice on strategies to compensate for identified
deficits
• Indication of the need for protective action
• Recommendation for follow-up testing/assessment
(anticipated restoration of capacity)
PROTECTIVE ACTION
Reasonable belief
• Client has diminished capacity
• Client cannot adequately act in own interest
• Risk of harm
• Substantial
• Physical
• Financial
• Other
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Protective actions
• Consult with family members
• Voluntary surrogate decision making tools
• Consultation with other service providers
• Appointment of GAL, conservator or guardian
• Consulting with agencies that can protect client
CONSIDERATIONS FOR PROTECTIVE
ACTION – COMMENTARY (5)
Wishes and values of client
Client’s best interests
Intruding to least extent possible,
maximizing client capacities
Respecting client’s and families social connections
CONFIDENTIALITY AND
PROTECTIVE ACTION
Can reveal information necessary to protect client’s interests
BUT
Only to the extent necessary to protect client’s interest
RPC 1.6 still applies!
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CONFIDENTIALITY
RPC 1.6
Prohibits revealing information related to
the representation
Client can give informed consent to reveal
Lawyer SHALL reveal to prevent reasonable
certain death or substantial bodily harm
MAY reveal:
• Prevent commission of a crime
• Secure legal advice about ethical rules
• Additional
SCENARIO
Client states she is being followed by the FBI. She has a bag
of mail with her that she says contains valuable proof. She
says they have all of her money and will give her none of it
until they see inside her body.
You know from the intake sheet that she has a Social
Security disability benefits issue.
CASE LAW – COURT
PROCEEDINGS
Vo v. Pham, 81 Wn.App. 781 (1996)
• “court has a duty to act to protect the rights of a litigant who
appears to be incompetent”
• inherent duty and power to make a determination regarding
mental competency
• conduct a hearing
• opportunity to present evidence on the question of mental
competency
Flaherty v. Flaherty, 50 Wn.2d 393 (1957)
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• Opposing party duty to apprise court of incompetency of
adversary if known
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[Vo's Counsel]: Your Honor, I have nothing further.
THE COURT: Okay. All right, Ms. Partridge?
MS. PARTRIDGE: Yes, sir?
THE COURT: Do you want to testify?
MS. PARTRIDGE: What does mean?
THE COURT: Do you want to sit up here and tell me-and offer your exhibits?
MS. PARTRIDGE: Yeah, I like go up there. (Laughter.) My need to talk to Judge. After you
Judge and I judge myself, sir, (inaudible) up there. (Screaming.)
THE COURT: Ms. Partridge?
MS. PARTRIDGE: Judge, sir? I sit up here? (Laughter.) Now I sit here, Judge. I like that.
THE COURT: Ms. Partridge?
MS. PARTRIDGE: Yes, sir?
THE COURT: Would you please stand? Raise your right hand. Do you solemnly swear or affirm
that the testimony you give in this matter will be the truth?
MS. PARTRIDGE: Yes, sir.
THE COURT: All right. Please be seated.
[Vo's counsel]: Your Honor, could I request that if she's in her Barbara phase that maybe she be
sworn in as Barbara also?
THE COURT: No, I don't want to hear Barbara. I want to hear Susan Partridge.
The court was unable to get Susan to speak. “Barbara” spoke at some length regarding Vo's
mistreatment of Susan while the court repeatedly asked for Susan to say her name. “Barbara” also
threatened
4/8/2015 to kill Vo. The court then called a recess for nearly two hours and stated that it wanted
“to see Susan at 1:30.”