1. Trauma informed, multi-disciplinary legal practice: Ethical dilemmas of lawyers and social workers working together in a multidisciplinary service QAILS - 2016 Warren Strange – Executive Officer Amanda Whelan – Team Leader Support Services 1

2. Acknowledgement of Country  We acknowledge the Traditional Owners on whose land we meet, and Elders past, present and future 2

3. Seminar outline  Introductions  Context - the Royal Commission into Institutional Responses to Child Sexual Abuse and knowmore legal service  Seminar goals:  1. Key learnings from our service’s experience of using a multi-disciplinary model to deliver services – overcoming some of the challenges of different professions working together to assist vulnerable clients  2. Discuss some ethical issues (communicating with clients; clients making threats): how did we find ways forward encompassing different bodies of professional training and knowledge?  Reflections and Questions 3

4. Context The Royal Commission into Institutional Response to Child Sexual Abuse Terms of reference provide (among other things): We direct you, for the purposes of your inquiry and recommendations, to have regard to the following matters:  the experience of people directly or indirectly affected by child sexual abuse and related matters in institutional contexts, and the provision of opportunities for them to share their experiences in appropriate ways while recognising that many of them will be severely traumatised or will have special support needs NB: Registrations for Royal Commission private sessions closing 30 September 2016 4

5. knowmore legal advisory service  A program of NACLC, funded by the Australian Government through AGD  The Funding Agreement for the service requires provision of specific services:  Free legal advice, information and referral – through a national phone line, website and face-to-face services  Counselling services “to facilitate and support clients obtaining legal advice and information”  Community outreach, information and education sessions 5

6. knowmore legal advisory service (cont.)  Funding Agreement also requires those services to be provided: “ … with a team including …  appropriately qualified legal staff;  specialist staff for Aboriginal and Torres Strait Islander clients; and  specialist staff trained and experienced in dealing with victims of sexual assault and/or trauma  From July 2013 to date > 4,500 clients. Majority are survivors of child sexual abuse. Around 20% identify as Indigenous. 6

7. Establishing knowmore: The multidisciplinary model Trauma-informed, person-centred, culturally secure practice framework seen as key to supporting a very vulnerable client group (whose complex needs were acknowledged in establishing the service) Multi-disciplinary model was crucial to achieving this. Seeking to learn from other multidisciplinary service approaches Some significant challenges, including: – National service, primarily telephone based, across multiple jurisdictions – Majority of clients have suffered complex trauma, arising from childhood sexual abuse. Capacity issues. – Disclosures of intent to harm self or others, and of circumstances that may trigger mandatory reporting obligations – Likelihood that some victims may also have offended in institutions – Profound level of distrust among client group – of institutions, and/or lawyers, and/or support services – Limited services provided – not ongoing relationships directed towards therapeutic outcomes 7

8. Service delivery – ethical framework knowmore is a legal practice. The ASCR (‘the Conduct Rules’) govern relations with clients. Rule 7 provides: 7. Communication of advice 7.1 A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement. Rule 7 is a specific application of the fundamental ethical duties of a solicitor, listed in Rule 4: to act in the best interests of the client; be honest and courteous in all dealings; deliver legal services competently, diligently and promptly; avoid any compromise to their professional integrity and independence; and comply with the Rules and the law 8

9. Service delivery – ethical framework Rule 8 provides: 8. Client instructions 8.1A solicitor must follow a client’s lawful, proper and competent instructions. 9

10. Service delivery – ethical framework Rule 9 outlines a solicitor’s duties of confidentiality. A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement, except to others in the law practice, or counsel, or as permitted under specified narrow exemptions. Rule 11 governs conflicts of interest and current clients: 11. Conflict of duties concerning current clients 11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule. 10

11. Service delivery – ethical framework Social Work knowmore employs social workers and counsellors in its Support Services Team. This operates as a national team with worker(s) in each of the four offices. The core role of the team is to support clients to be able to give instructions to their lawyer and to understand the advice provided. This can include crisis, ‘time and place’ and/or short term support, with supported referral work to link people to ongoing therapeutic and other support services. The fundamental operating principle of the Support Services work is that WE ARE A LEGAL SERVICE!! We do however also have to be mindful of our own Code of Ethics and other professional requirements. 11

12. Service delivery – ethical framework The person-centred, trauma informed, culturally secure model of knowmore aligns closely with the Social Work Code of Ethics. NACLC Risk Management Guide for CLCs – mandatory standards. No. 11 provides: A centre worker or volunteer who is a qualified social worker and is a member of the Australian Association of Social Workers (AASW) must comply with the codes set out by the AASW. Social work values:  Respect for persons  Social Justice  Professional integrity 12

13. Service delivery – ethical framework Informed Consent/Confidentiality Strong alignment with legal practice requirements also Mandatory reporting Legal responsibility: All states and territories have mandatory reporting requirements for some professions and/or areas of work. Generally, social workers employed by knowmore are NOT mandatory reporters (but, e.g. Northern Territory legislation mandates ‘any person with reasonable grounds’, and appears to exclude the operation of client legal privilege) Ethical responsibility: HOWEVER – this does not negate ethical responsibilities. “ As a general guideline social workers should consider making a report to child protection whereby doing so will or could prevent an actual, identifiable risk of harm to a child or children and where appropriate steps have been taken to meet ethical obligations to the client(s), for example, child, parent or guardian, family” (AASW Mandatory Reporting Ethical Guideline, 2015) 13

14. knowmore - Service delivery framework To address issues noted before:  Privacy and Confidentiality policy: http://knowmore.org.au/about/privacy_and_confident iality/  Lawyers answering initial calls – explanation of confidentiality (and exceptions)  Explanation of differing obligations re lawyers and support team members – informed consent 14

15. Client Communication  Client communication issues – always in the highest category of notifications to PI insurers  Rule 7 doesn’t make exemptions for busy community sector solicitors dealing with challenging clients …  Rule 7 requires – active participation by the solicitor; understanding of the client’s position; and building rapport with the client  Also – clarity and agreement as to the scope of work/the retainer  Communicate in ways that the client can understand. Approach explanations and advice from their perspective. 15

16. Client Communication  Always depends on the circumstances and the client. Find a way(s) to communicate effectively – be adaptive  Consider the conference environment  Plain language, with any necessary assistance (interpreters; third parties – family, caregiver – with consent; colleagues)  Separate issues  Let the client know they can ask questions – it is OK to ask for information. Explain duty of confidentiality  Materials may assist – factsheets, flowcharts  Assess the extent of their understanding. Not through simple agreement alone – demonstrating understanding – of options, implications, reasoning  Confirmation of instructions in writing 16

17. Client Communication Useful case* on the duty owed by the solicitor to a client: Lederberger & Anor v Mediterranean Olives Financial Pty Ltd & Ors [2012] VSCA 262 “This is a case in which a client plainly lacking in sophistication, and so not knowing what specific advice to ask for, was ex facie reliant on her solicitors to advise her in relation to the hidden pitfalls and legal obscurities of accepting appointment as executrix, and thereby entering into a partnership for the debts and liabilities of which she alone would be personally liable.” * [from a recent NSW Law Society CLE presentation, delivered by Frances Moffitt, Regulatory Compliance Solicitor, Professional Support Unit] 17

18. Client Communication and Capacity  The tests for competency depend on the nature of the intended transaction  Capacity may be increased with appropriate support (communicating effectively with that client)  QAI Handbook is a great resource: http://www.qls.com.au/Knowledge_centre/Ethics/Resources/C lient_instructions_and_capacity/Queensland_Handbook_for_Pr actitioners_on_Legal_Capacity  Other QLS resources: http://www.qls.com.au/Knowledge_centre/Ethics/Resources/C lient_instructions_and_capacity 18

19. Client Communication  Discharging this duty at knowmore – key learnings of a multidisciplinary service  Need to move from a linear/sequential model of service delivery, to a fully integrated, multidisciplinary model  How? – Move away from silos of knowledge and practice. – Retaining a person-centred framework so that our work is guided by placing the client at the centre and the disciplines working through the ‘silos’ to be wrap-around and coordinated in our work – Ongoing education and knowledge-sharing, constant dialogue and clear communication (don’t make assumptions about understanding of professional obligations) 19

20. Client Communication  Reflect integration in organisational culture, structure and processes:  no ‘lead’ discipline. Acknowledge expertise of each profession  ‘Team leader’ roles for support and A & TSI engagement teams  Supervision and reflective practice framework that supports multi-disciplinary, trauma informed practice reflection  Interdisciplinary and all-staff meetings to work through practice issues 20

21. Client Communication Be clear on role definitions – but keep reviewing. We needed to revisit approaches as our service progressed – more clients presenting with very complex legal, health and other needs. An example –  Move from lawyers deciding when to refer clients to social workers, to having all matters (with the client’s consent) referred to the support team for follow up – equity in service and recognising professional skills of social workers and lawyers – working collaboratively to better support clients 21

22. Client confidentiality Responding to circumstances of the client who threatens to harm themselves or another  Usual duty of confidentiality  Rule 9.2 exceptions to confidentiality, permitting disclosure:  Avoiding the probable commission of a serious criminal offence  Preventing imminent serious physical harm 22

23. Client confidentiality  Rule 9.2 exceptions are permissive, not compulsive  Common sense approach using the information available to you:  what you know of the client – insights, history, existing supports  input from colleagues  Usually going to unfold in circumstances of urgency – little time to investigate or reflect  Imminence of the harm occurring – a judgment about the credibility and likelihood of the client acting  Other ways to prevent the harm?  Who to disclose to, limit detail to that necessary to respond  Document the decision and reasoning 23

24. Any reflections or questions for us? Reflections and Questions?? 24

25. Contact Us More than happy to help with any questions that you may have now or in future! Amanda Whelan Team Leader, Support Services 07 3218 4500 amanda.whelan@knowmore.org.au Warren Strange Executive Officer 07 3218 4500 warren.strange@knowmore.org.au FREECALL 1800 605 762 Web: www.knowmore.org.auwww.knowmore.org.au 25