It’s been a really rough few weeks on the personal/health front. I have lost both my dogs, been hospitalized twice, and suffered through a lot of pain. And to cap it off, already physically vulnerable, I was put in a place of emotional powerlessness within the health system.
The Canadian health system: full of good people, and a few not-so, and wall-to-wall bad processes – just like the legal system.
As he drove me home after my second hospitalization, my partner Bernie Mayer said, “I think we just had an experience of being labelled ‘vexatious litigants’”.
This was what he was referring to: after asking for many hours the previous day for minimal nursing care and receiving a completely inadequate response, we eventually made a complaint to a nursing manager who was helpful and supportive.
Despite this conversation, I was awakened early the following morning to find a bracelet being affixed to my wrist by a nurse. When I asked what was this for, I was told to, “never mind, dear”. After asking multiple times, I discovered that the bracelet (and a flag that would be hung outside my room) denoted “abusive patient”.
I had complained and this was the reprisal.
As one of my friends pointed out immediately when I told her this story: “And you’re an educated, capable woman. I can’t imagine the abuse other patients get.”
What this experience has brought home to me is that we are all vulnerable to feeling powerless, and when we feel powerless we are further vulnerable to being treated badly and labelled as a troublemaker if we complain. Obviously, this applies in the health care system and elsewhere, and it happens to SRLs all the time.
Your powerless place
Each of us has experienced at least one situation – perhaps involving a particular person, event, or request – that made us feel powerless.
When we feel powerless, we tend to become acutely aware that we are:
- At risk of being badly, unfairly, or unkindly treated
- More likely to be taken advantage of
- Not listened to and/or dismissed
- Unable to access (or advocate for) what we need in that moment
- Humiliated or derided
- Unlikely to produce a solution that meets our needs
- Emotionally and/or physically shut-out from appealing to the person with greater power than us
I could go on, but I think you get the idea, and probably have found that place in your own mind by now.
My request is that you remain in the feeling of what it was like to be in that powerless place as you read the rest of today’s post.
NSRLP’s first major challenge
When we wrapped up our almost 400 interviews and looked at our exhaustively coded data for the National Study in 2013, then Project Coordinator Sue Rice and I concluded that we’d uncovered a couple of huge misperceptions about SRLs. These misperceptions were shaping their growing disempowerment around the margins of the legal system, and allowing for gross stereotyping and stigmatization.
First, there was a gigantic disconnect between our study of SRL experiences, and what most lawyers and judges thought motivated SRLs. By 2013 judges and lawyers had created a host of memes for SRLs that included: SRLs are people who think they are “better than” lawyers; SRLs are out for a lark or to “game” the system; self-representation equals mental illness; SRLs are uneducated and not up to the job of representing themselves.
The National Study revealed a very different narrative as told by real people.
The vast majority of SRLs are representing themselves because they have no alternative and are desperate – stuck in a custody or support fight against an angry partner who does have a lawyer, or trying to get “justice” for an injury, wrong or dismissal – and these people did not feel they have any real “choice”, given the financial cost of legal representation. Many people were already dead broke from running up legal bills before they struck out on their own (my sample in the National Study, and stats in studies in other countries too, show that most SRLs began with a lawyer).
Five and a half years on, we are making some progress in breaking down simplistic and inaccurate stereotypes of SRLs, and they are far less pervasive now. Most justice system insiders have accepted that the majority of SRLs simply don’t have the resources – using whatever kind of standard, objective or subjective – to pay the costs of full legal representation in litigation for anything more than a brief period.
It’s sad to see the stereotypes (summarized as crazy, arrogant, and/or stupid) still pop up occasionally in professional circles in shocking ways (willful blindness? Ignorance? A more acceptable professional framing?) – the remarks a few weeks ago of Justice Conlan fanned these flames again – but such perspectives are increasingly recognized as outlier views.
In 2013, this misperception was NSRLP’s first major challenge. Today we are certainly not yet at “Mission Accomplished”, but we are making progress and shall make more.
NSRLP’s second major challenge
In 2019, we are ready to confront a second major information gap and accompanying stereotype about SRLs.
We hear a lot about SRLs being “mentally ill”. Of course, there are SRLs who have mental health issues, just like judges, lawyers and the rest of us. But that is a hugely over-stated issue, and worse, acts to obscure the critical reality regarding self-representation and mental and emotional health.
Fixing the A2J crisis requires us to admit that the self-representation crisis is often the cause of mental and physical health problems. It demands that we recognize how powerless and besieged SRLs feel (especially when they face counsel on the other side, and especially when they have to stand up and speak in court), and the impact this has on the behaviour and judgment of reasonable, intelligent people.
The most personally shocking and surprising revelations when I conducted SRL interviews from 2011-2013 were the lengthy and graphic descriptions of symptoms of anxiety and PTSD (I will be candid and say I was diagnosed with chronic PTSD as an adult due to childhood abuse, and as an adult could recognize what I was hearing). Complete textual analysis, line-by-line, and reference to the Diagnostic and Statistical Manual of Mental Disorders (4th ed) confirmed this. We continue to hear regularly from SRLs who are distressed, scared, perhaps becoming obsessive, and whose ordinary stable existence has been upended by the traumatic experience of representing themselves. And remember, most SRLs have day jobs too.
Can you imagine this happening to you? Because it might very well.
No level playing field
We cannot understand what is happening in the courts – emerging case law on “vexatious litigants”, the use of excessive costs awards to “punish” SRLs, arguments that SRLs are “just trying to exploit their advantage” (and what advantage is that? That the judge if s/he has read Pintea may toss them a legal information bone?) – without recognizing the emotional impact of the power imbalance.
The pattern is circular; that is:
- A SRL may “behave badly” (in the eyes of the system, this may mean filing a lot of paperwork, naming a lot of parties, or asking for a time delay to prepare a response) and is branded a troublemaker;
- The SRL is indignant at being punished, and perhaps makes that known;
- The system smugly concludes that there is now more evidence of their malcontent rebellion, and punishes them yet further.
The emotional and mental health impact of self-representation – being trapped in a powerless place – leads to a vortex of related conflicts and problems. For example, there is a growing chorus of complaints from SRLs about the behaviour of opposing counsel toward them.
A simple truth lies at this heart of this: if someone feels powerless they will not respond well to feeling that they are being taken advantage of (nor should they be expected to).
In a few weeks, I shall blog about sharp practice by lawyers against SRLs (this blog will appear first in the NSRLP SLAW column, and we shall send you a reminder when it is up). I shall discuss real-life examples from among the dozens I have heard over the past 5 years of the behaviour of opposing counsel dealing with SRLs. Some of these stories (most of which I find highly credible, especially when understood from the powerless perspective of someone unfamiliar with the adversarial system) are horrifying, reflecting an immoral and inappropriate use of power by opposing counsel. Some are just plain discouraging, reflecting lawyer ignorance of the realities of self-representation. Some reflect SRL misunderstandings about the lawyer’s professional duties to their own client. None of them can reflect the way we do business in the legal system in the future, if we are interested in retaining any public trust.
I shall be asking whether there are different standards in practice for how lawyers treat the public, and how they treat other lawyers and the courts, and exploring how we change this outdated paradigm.
How would we feel?
But the first step, which this blog has attempted to take, is to remind us all what it feels like to be powerless.
Please go back for a moment to your powerless place.
Imagine (you may have a real person in mind who fits this description) that you encounter someone while you are in your powerless place, someone who has a “superpower”. They are operating in your powerless place as an acknowledged expert with privilege and access, and you may even, at your weakest moments, feel they have your life in their hands.
How does that make you feel? (Other than awfully vulnerable.) How might you interpret the behaviour of that person? Understand their motives and actions? How might you respond to them, and why?
Beautiful flowers and wishes for good health sent to me by a group of SRLs and NSRLP supporters – abundant proof of a caring, thoughtful community.
All of us at IAALS wish you the very best in your recovery, and we are so sorry to hear of the heartrending additional challenges you have faced of late.
I cannot imagine asking for minimal care from those paid to care for you, having a reasonable conversation about the absence of care with the appropriate manager, and then literally having the label “abusive” tied to your person and marking the room where you lay.
Here is a better label: North American Treasure. Thank you for all you have done and continue to do to shift the balance of power and to make justice an equal opportunity for all those who come before the court.
What an informative piece of information. One should NEVER let another take away our power or dignity. We all have a right to fair law, health care and to be able to provide for our families without intimidation or fearing reprisal for speaking up. It’s time that even the smallest of voices were!
Sadly, after 6 years of employment I had no choice but to take a stress leave from work. I was informed basically to stay quiet to a situation that was wrong on so many levels and I felt powerless.
This situation has brought me back to the years I spent trying to navigate through the court system on my own. The intimidation was horrible!!!!
Slowly there has been some positive progress for SLR’S but there is still much to be done.
NSRLP, you have made the perfect analogy from the perfect connection. It is the same feeling dealing with our children’s schools, our banks, mortgage companies, the police, boards and tribunals and of all the politicians we elect but who immediately forget how they came to be. They are all BULLIES, they abuse their position of power and make us feel powerless.
I am going to suggest a refinement of the descriptor of 100 % of SRL and that is, we ALL started out by consulting lawyers or some other legal authority and soon find out we have no other choice and being desperate launch out in our own. Even Freemen on the land had some encounter with lawyers or legal person that turned them off totally hence the birth of their mental framework.
I do not think the populace is aware of how abusive it is in our healthcare system. Since right to die legislations so many of them think they have the right to kill us and we better not object. One doctor actually coded my friend’s husband for DNR or just let him die without their knowledge. A disturbed nurse tipped my friend off and she had to fight after asking one of our school mates about what to ask for-a simple blood transfusion. The gentleman lived three more years and to this day I feel had he gone in for another blood transfusion eh would be alive today but they were just so tired and afraid to get beaten up at the hospital again. I will not go into my experience with my mom
It is a good feeling to know I have the NRSLP walking along this journey too. There is a lot more to learn about the injustice of our justice and other systems
WOW . This really spells out our many troubles of being a SRL . Thank You for sharing .
Look at how a Alberta judge really punish me a SRL after I was declared a vexatious litigant . I was not allowed to file any documents with the courts later on even though I fore filled all requirements of the vexatious litigant order to be allowed to filed . plus judge sends a filing refusal decision to the wrong email so I did not get it until after I made another request to file different documents in a different case , which the same judges not only refuse to allow documents to be filed & served but they adds more restrictions by ordering I can only request permission to file if a Lawyer does it for me ? I am already tapped out & could not afford a lawyer to begin with SO now I have no hope of every access the courts again no matter what happens to me . Is that cruel & unusually punishment plus other breaches on my Charter of rights ? Click on link & read this & comment please http://alberta.newjusticeforthepeople.com/supreme-court-of-canada/ .
In brief, My mother a self litigant was dealing with her legal matters in court and I believe the defandants filed false fabricated allegations against my mother, and so the authorities came and took my mother away by organized manupilation and trickery and have kept her in organized isolation and confinement and have taken away all her human rights and freedom and charter rights etc.
What can be done regarding this matter?
Steve, I’m no expert and what I propose are guesses as to who might help you.
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Talk with your Member of Legislative Assembly/MPP/MP and see what she suggests. Contact the Office of the Public Guardian and Trustee or the equivalent in your province. Call/visit the Pro Bono centre or equivalent nearest you. Some legal aid clinics may also give guidance.
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Hopefully one of these will give you some positive direction.
I would like to tell you my story. I have a decision in writing from LSO regarding a corrupt lawyer in Guelph. The discipline was woefully inadequate so I am back before the Commissioners of LSO on March 12. I would be grateful to hear back from you. Best Regards Alan
Hello Alan, it is best that you write to us at representingyourself@gmail.com. We cannot provide legal services or advice, but we would be glad to hear your story, and can try to point you toward some useful resources.
Whether it is health profession or legal profession, many of the problems are created by self-regulation. They will consider only serious issue and disregard minor issues. In many cases, they will try at their best to reduce the seriousness. This issue has also been reported in journals. In UK, for example, I heard self-regulation has been abolished. In my view, we do not only need expertise to care for people. We also need an understanding of how an average person struggles in his/her life. A mixture of people from different background is better suited for self-regulation. By background, I am a health professional. With this background knowledge and with some of my litigation experience, I am trying to expose the self-interests, rather than the public interests, of the health professionals self-regulation. It is very challenging particularly because I am doing it alone.
Alan, are you in Guelph? I am the organizer of the South End Neighbourhood Group in Guelph. Through this Neighbourhood Group, I would like to support self-represented litigants. Please let me know if you want to be part of it.
I am so sorry that you experienced the nature of health-care institutional abuse that you describe above. I wish to offer my sincere apology on behalf of my profession. The majority of health-care professionals work hard to mitigate the adverse consequences of institutional abuse; but, as you know the failure to tame the Beast within most of society’s institutions (health, legal, financial, religious…) is an enormous challenge. Much ink has been spilled on discovering the root for the failure to show “reasonable” empathy for the most vulnerable amongst us. Feeling entirely “quashed” by institutional actors that you trust will assist you with their expertise when you are most in need is truly devastating. Unquestionably, this may well needlessly lead to the complex pain of PTSD. Individual engagement to change the “things-we-can” is a beginning. Wishing you well.
Guilty, Guilty and GUILTY, with a glimmer of hope.
YES, all systems that are self regulated are automatically guilty of conflict of interest and as a result become corrupt.
Every system is too slow AND costs too much. The worst of all our systems is the justice system which is designed and run by the very people who benefit the most by delivering SLOW AND EXPENSIVE results. It is the combination of slow AND expensive that is completely unconscionable.
The most despicable and dishonorable thing any member of the system can do, is to disrespect and or abuse a customer/client who complains.
It is not very intelligent thing for a member of the system to expect that a person will automatically accept something as justice when that is NOT what was received.
When power OR vulnerability is abused or becomes biased all hell breaks loose in my experience, and not only does a person not get justice but gets put in a position worst than when the process began. It seems akin to going into the hospital to get one non functioning left lung removed and waking up to find both lungs have been removed and destroyed including the right lung which was completely healthy.
Justice IS NOT and should NOT be a lottery system AND Adversarial does NOT mean that only one party is to receive justice!
The system and the clients/customers must realize the truth which is; The clients/customers actually have the FINAL SAY whether Justice was delivered OR NOT! Anyone that will not respect this, or place it in top priority, is in effect denying the real power of freewill and this truly is the ultimate sin and the current degeneration/downfall of the justice system.
Who is talking and who is listening?
Who is Serving Whom?
Delmer O. B. Martin
He who holds the pen, writes the rules “others” are forced to live and die by.
(c) JMG 6,9, 2015, MH, AB, CA
Sticks and stones may break your bones, but names can actually kill you. Labels such as “abusive patient”, “vexatious litigants” and language intentionally designed to ‘other’ people, is the primary ingredient of hate and divisiveness, that both creates and perpetuates unsafe cultures. Othering is defined as a view or treatment of a person or group, as intrinsically different from and alien to oneself.
Once we have effectively othered people, it is easy to ignore, abuse and even justify killing them. When powerful institutions use this tactic against the public, it is without a doubt discrimination, libel, slander, gas-lighting, victim blaming, discrediting and silencing. The public must have the right to remedies to protect itself from legal and medical industry cultural abuse sanctioned by governments.
Thank you for sharing this important insight that seamlessly transfers from the medical to the legal, Julie. The flags and labels on these charts – follow and stain us for life.
Exerts:
The language used to describe patient feedback has a detrimental influence on safety culture
https://blogs.bmj.com/bmj/2019/02/05/miles-sibley-the-language-used-to-describe-patient-feedback-has-a-detrimental-influence-on-safety-culture/
-regulation and procedure alone cannot protect patients from unsafe cultures.
all subject to inspection and regulation. And still patients died—unnecessarily, and in large numbers.
unsafe cultures on wards, in boardrooms, and in organisational processes such as complaints handling and communications.
-when patients and relatives tried to speak up about safety concerns, they encountered dismissiveness, defensiveness, and outright denial.
-When a health professional flags a problem its called an incident report, but when a patient does the same, it is called a complaint.
-Friends and Family Test, patient surveys, focus groups, social media posts, is described as “anecdotal evidence”, indicates a cultural tendency to see patient feedback as subjective, irrational, and potentially unreliable.
-The term “soft evidence” is also used to distinguish patient feedback from the “hard evidence” of statistics—seen as objective, rational, and reliable.
-dysfunctional professional, and organisational cultures can put reputation before truth, defensiveness, collusion and cover-up were common factors.
-healthcare system that listens to patients “will be more likely to detect the early warning signs that something requires correction, to address such issues and to protect others from harmful treatment“.
Just a short separate note to say, I don’t know how, but I read the word dogs as blogs and thought you had lost 2 posts.
When I re-read this post, I was stunned.
What a challenging time you have been through Julie. I am so sorry to hear of the loss of your beloved pets and can’t imagine what you must be feeling. It is so sad.
My sincere condolences.
J
Spot. On. But your friend is wrong: others less educated/prepared/informed do not receive this dismissive treatment because they have no capacity to protest in the first place instead simply taking what is put to them without protest. It is the worst abuse of the meek, and those like you who have power and position have an obligation to stand up and speak–bracelet and flag notwithstanding–in order that change comes about.