Introduction
This chapter catalogues some of the challenges that are present when professionals collaborate together to forge multidisciplinary paths to family justice. Many of the challenges identified here are characteristic of any multidisciplinary family service model, regardless of whether or not it includes low-level legal services. They reflect the dynamics of bringing together persons with diverse educations and training to collaborate on a team of professionals. Some of the challenges, however, arise only when legal services are integrated into the multidisciplinary family service model. The vision of multidisciplinary paths to family justice imagines approaching the legal dimensions of family problems in a different way than is prevalent in Ontario today. By identifying the challenges and difficulties that professionals can face when they try something different – when they collaborate with other professionals to delivery multidisciplinary family services – the vision of multidisciplinary paths to family justice becomes more robust and its potential more visible. Promising practices that are effective for meeting these challenges are discussed in the next chapter.
Differing Professional Rules of Conduct and Codes of Ethics
Each profession in Ontario is regulated by its own professional rules of conduct and code of ethics. Some of the professional bodies such as the Law Society of Upper Canada and the Ontario College of Physicians and Surgeons have a long history of professional regulations in the province whereas others such as the Ontario College of Teachers and the Ontario College of Nurses were established much more recently. Some professional bodies have powerful instruments to discipline its members for violations of its rules whereas others do not. Health care professionals such as physicians and nurses are not only licensed by their respective colleges but represented collectively through associations, the Ontario Medical Association and the Ontario Nurses’ Association, respectively.
The existence of different professional bodies and corresponding differing professional rules of conduct and codes of ethics signals that when different professionals collaborate, team members may be guided not just by the rules of the service delivery organization but also by rules of their profession. In other words, professionals on a multidisciplinary family service team are accountable not just to each other but also to different communities of professionals. Professionals might be concerned not just about sanctions by their employer but also by their profession.
Some of these professional bodies and associations have in the past obstructed the establishment of multidisciplinary delivery of services. The Ontario Medical Association, for example, challenged in the 1970s efforts to bring community health centres to Ontario on the grounds that they involved a practice of medicine that threatened the doctor-patient relationship both with regard to patient confidentiality and payment for service.[41] More recently, the Ontario College of Physicians and Surgeons resisted the establishment of nurse practitioners but eventually conceded in May 2003, stating its position in the following way:
The College of Physicians and Surgeons of Ontario recognizes that our health care system is changing; in order to better meet patient needs, health care has evolved such that delivery of care no longer takes place through exclusive domains of practice but through multidisciplinary teams. The creation of an Extended Class of Registered Nurses (nurse practitioners) is an example of how the roles of health professionals are changing and complementing one another…We are committed to fostering a collaborative relationship built on trust and mutual respect with our colleagues in the nursing profession and we look forward to working together in the interests of the people of Ontario.[42]
This statement provides some guidance for physicians collaborating with nurses, but of course gives little direction for more extensive multidisciplinary health care teams such as what exists in community health centres across the province.
The Law Society of Upper Canada has also had a difficult history of adjusting to changes to legal practice in Ontario. It did, for example, press numerous objections to the establishment of the first community legal services clinic in Ontario in 1971, Parkdale Community Legal Services, on the grounds that it contravened professional regulations around articling, advertising, and fees.[43]
It is clear that in multidisciplinary family services, some professionals are asked by users to provide services that are outside their professional responsibilities. A good example of this is a nurse who has the task of collecting physical evidence from a victim of domestic violence. The client will often ask the nurse for counselling or to provide legal information. For the client, the rigorous distinction between professions may be less than clear. And the nurse, because she has worked collaboratively with social workers or legal professionals, may be able to competently answer the client’s questions.
Tensions between different professions also may be evident when a family is being provided with services. Some professions are oriented towards having an individual client. Some professionals such as teachers providing services to children are clear that their client is always the child. The family provides the context for the life of the child but their responsibilities are to the child. Social workers in programs focused on domestic violence see their responsibility primarily to the victim and responsibilities to other family members as secondary. Other professionals such as crown attorneys or the police are oriented toward determining if a crime has been committed and securing a conviction as opposed to representing a client.
Lack of Guidance From Professional Rules of Conduct
For most professions, professional rules of conduct are, in theory, intended to guide practitioners. However, in practice, in Ontario, most professional bodies including the Law Society of Upper Canada have few if any rules or principles that might guide professionals, should they be a member of a multidisciplinary team providing family services.
In the United States, the American Bar Association in association with a number of state bars established in 1998 the Commission on Multidisciplinary Practice to identify principles for the regulation of lawyers in these practices. Ultimately, after two years, the Commission’s recommendations focused on legal fees and ownership of law firms. It endorsed the following principle:
The sharing of legal fees with non-lawyers and the ownership and control of the practice of law by nonlawyers are inconsistent with the core values of the legal profession.[44]
Based on this principle, the American Bar Association adopted the following resolution:
the American Bar Association recommends that in jurisdictions that permit lawyers and law firms to own and operate nonlegal businesses, no nonlawyer or nonlegal entity involved in the provision of such services should own or control the practice of law by a lawyer or law firm or otherwise be permitted to direct or regulate the professional judgment of the lawyer or law firm in rendering legal services to any person.[45]
This clearly provides little guidance to lawyers for the interaction that occurs between professionals in a multidisciplinary family service delivery team.
During the same time period, in June 1999, the Law Society of Upper Canada (LSUC) also established the Multi-Disciplinary Practice Task Force to study, “the provision of legal services to clients through law practices affiliated with professional services or accounting firms.”[46] The issues of confidentiality, ethical cohesiveness and liability were at the centre of the Task Force’s mandate. [47] In June 2009, the LSUC amended its professional rules of conduct with regard to lawyers participating in multidisciplinary teams of professionals:
6.10 RESPONSIBILITY IN MULTI-DISCIPLINE PRACTICES
6.10 A lawyer in a multi-discipline practice shall ensure that non-licensee partners and associates comply with these rules and all ethical principles that govern a lawyer in the discharge of his or her professional obligations.[48]
The LSUC has not yet provided any commentary to guide the interpretation of this new rule. The reality is that over the past two decades, serious attention has only been paid to the implications for professional rules of conduct of multidisciplinary practices involving lawyers and accountants.[49]
The general point is that although in Ontario there is now a rule for multi-discipline legal practices, it provides little guidance for the real challenges that face lawyers when working in multidisciplinary professional teams designed to address problems facing families in Ontario. It is interesting to note that in two of the examples discussed in the previous chapter where users had access to a lawyer on-site – at LAMP CHC and Durham DRIVEN – both lawyers provided this service on voluntary basis. The lawyers were not paid any sort of legal fee for the service. Nor did the lawyers retain others to help to provide this service. This avoided the sorts of difficulties with conduct that underpin both the recent amendments to its rules of professional conduct by the Law Society of Upper Canada as well as the American Bar Association.
Perhaps in the evolving commentary on Rule 6.10, the Law Society will begin to address the challenges of multidisciplinary family justice delivery models. The importance of this may be reinforced by the fact that the Law Society’s Access to Justice Committee has embraced, “the view that multidisciplinary clinics that provide legal, social and health services under one roof, should be the way of the future.”[50]
In the health care professions in Ontario, guidance about collaboration comes principally from The Health Professions Regulatory Advisory Council (HPRAC). HPRAC, like professional bodies such as the Ontario College of Physicians and Surgeons, focuses however largely on collaboration among health care workers and offers little in terms of guidance for collaborating with lawyers, social workers, and teachers.[51]
Legal Cultures versus Caring Professions
It is also clear that there are differences in the cultures of particular professions. Professionals from the so-called caring professions such as medicine, teaching, nursing, and social work reported to us unease with how well their professional culture fitted with legal culture. From the perspective of these caring professionals, legal culture revolves around being combative and not trusting others including both users and other professionals. Lawyers are trained to be adversarial and sceptical of the judgements of others. This makes it difficult for these legal professionals to work collaboratively with others. For some in the caring professions, the rigorous separation of the family and criminal courts, which is largely unquestioned in legal culture, is a major source of frustration and puzzlement. In particular, the lack of information sharing between the courts is incomprehensible to many.
Some people expressed concern that making legal services available to their clients, instead of helping them, will make them worse off. In particular, they worry that involving lawyers and others providing legal services risks escalating conflict within families that are already in crisis. They don’t want to see parents seeking legal opinions about treatment or education programs for their children that the caring professionals believe is in the best interests of the child.[52] The challenge in their view is striking a balance between providing families with legal information and not obstructing the best interests of the child. The point is to provide low-level legal services in a manner that comes across as educational rather than threatening. Others in caring professions viewed their approach to family problems as a “slow” process that didn’t solve problems with long histories overnight whereas legal professionals seemed to prefer “fast” quick-fix solutions. Despite the differences between legal culture and the caring professions, this is not reflected in differences over dispute resolution mechanisms. For proactive address to family challenges or family problems, only community mediation and other informal approaches were entertained.
Differing Professional Perspectives and Priorities
Differences between professional perspectives and priorities create challenges as well. This is especially evident in the views on client empowerment in family services. For social workers, client empowerment is at the centre of an effective family services model. What is important is that the client feels in control of the process and he or she makes decisions about what to disclose to counsellors, what to report to authorities, and when to move forward. In the case of reporting domestic violence, for example, counsellors are likely to emphasize that the victim should make his or her own decisions about how to respond. The police and medical professionals are often seen by these counsellors as putting pressure on the victim to report the violence to the police and move forward with a complaint. The use of language like “You deserve…” is seen as a form of badgering the victim and provokes responses from the social worker.
Similarly, police are tasked with gathering evidence to determine if a crime has been committed. Their questioning of a victim often comes across to the social worker as doubting the truth-telling of the victim and being sceptical of their story. Police often respond by not wanting a domestic violence counsellor present when taking the victim’s statement. It is worth noting that specialized police investigators seem to have fewer problems with this than uniformed police.
Differing perspectives are also made evident in other ways. Consider the example of a victim of domestic violence is binge drinking. For health care professionals, binge drinking is seen as a health issue with attending concerns about harm and risk. When nurses or doctors relay this to the victim, this is perceived by social workers as a form of victim-blaming and demeaning. From their perspective, binge drinking in this case must be seen as behaviour connected to the crime committed against the victim.
Different partners in collaboration bring with them their own preconceived ideas, attitudes, traditions, and beliefs about the collaboration process. Different professions have their own understandings about what precisely it means to collaborate with others. Some professions for example orientate collaboration around a team leader, others approach collaboration as a form of division of labour. These preconceptions can enhance or detract from working together as a team of multidisciplinary professionals.
Differing professional priorities can also be challenging. Those working in domestic violence and children’s services seem to give their highest priority to safety and security concerns. With this as their highest priority, they were in general enthusiastic to have police onsite. There were different priorities for professionals providing services directed at marginalized youth. They worried that a police presence would act as a barrier for inclusion. This indicates a serious challenge co-locating programs for victims of domestic violence with programs for marginal youth.
Stratification and Stereotyping Among the Professions
It is quite common to find stereotypes about different professions acting as a barrier to collaboration. The stereotypes we encountered included the following: “defence lawyers are evil”, “nurses are anal retentive”, “youth workers protect criminals”, “crowns view everyone else as window-dressing”, and “shelters are run by feminist ideologues”. These sorts of stereotypes clearly make it harder for people to work together collaboratively. They reflect a lack of understanding of what other professionals do and why they do it.
Stratification among professions is more subtle. Some professionals are better paid and enjoy greater social status. Most multidisciplinary family service teams are in principle based on equality. But differences in pay and social status make this principle seem to be a mere formality. Yet, it is very difficult to make the equality on any team of different professionals more substantive.
Confidentiality, Privacy and the Duty to Report
Confidentiality, privacy and the duty to report present a complex web of obligations for any multidisciplinary family service model. Different professions have differing norms around the degree of confidentiality that they owe clients. Privacy and confidentiality concerns are especially high for both medical and legal professionals. There also exist different norms about with whom client or patient information can be shared for the purposes of treatment or services. Layered on to this is a duty for some professionals to report suspected physical or sexual abuse of children. Teachers find the duty to report a huge responsibility that can create tensions in their relationships with the child’s family.
Health professionals in Ontario utilize a “circle of care” principle to determine with whom they can share information. Ultimately, it is the judgement of the health care professional about who is part of this circle of care. Other professionals utilize consent to share forms that specify with whom information can be shared. This form of specified consent empowers the user. It provides assurances that what he or she says will be private and for this reason facilitates cooperation and disclosure. But it may also block collaboration with other professionals who could provide services that would benefit the user.
Seeing like the Client
A very important challenge is to try to see the diverse services provided through the eyes of the client or user. For many users, the process and the different roles each professional fulfills may be confusing and lacks transparency. Confusion about the duty to report is a good illustration of this challenge. Many parents worry about the Children’s Aid Society (CAS) becoming involved in their case. It is for these parents very important to be clear who among the professionals providing them services has a duty to report suspected cases of child abuse. Interesting, it was found in a survey of users in Peel Region that many users would like the CAS to be on-site with a multidisciplinary family services model so that they can access support from their counsellor.[53] There is also a need for users to have a better understanding of what CAS involvement might mean and some of the alternatives that are available to them.[54] Users also wonder if once a family is on the radar of a child protection agency, the family will be subject to undue levels of scrutiny.
There is a broader point about how clients or users see their legal rights. Rarely do users enter into the family justice system without some ideas about what the law is and what rights they have. Interviews reinforced that many users consult the internet for legal information. Studies in the United States have found that family lawyers often take on a role of shifting the views of clients about what the law is.[55] The challenging point is that how clients see the law and legal services is dynamic and evolving.
An important dimension of seeing like the client is recognizing the incredible diversity among the clients – this is a point that we have emphasized throughout. An added layer of complexity here are those who have had repeat experiences with family services and the legal system. This is well illustrated by the experiences of homeless youth, many of whom will have had experience with CAS, the police, and criminal courts. Providing effective services for this group is particularly challenging.[56]
Cultural Sensitivity
Providing family services that are culturally sensitive is challenging, no matter what the particular type of delivery model is being utilized. Layering on low-level legal services to a multidisciplinary approach to family services presents some special problems. This is certainly the case for Aboriginal peoples, who have a long history of disadvantage and vulnerability under the law. Marginal youth from certain immigrant communities may likewise have an uneasy relation to the law, which must be considered when delivering multidisciplinary family services. For newcomers to Canada, it might be the difficulty of explaining what the law is, say in the realm of family discipline, in an educational, non threatening way.
Some service providers also warned us that in some recent immigrant communities, if there is a perception that family service professionals are counselling women about their legal rights, the family service agency will be denied access to make home visits, the women will likely not be allowed to attend programs on-site, and possibly the women will be put at risk. A difficult challenge for service providers making home visits is deciding what to turn a blind eye to.
Challenges of Multiple Diverse Funders
It is unavoidable within a multidisciplinary family service model in Ontario that there are going to be multiple diverse funders. Some of these funders are going to be different levels of government – municipal, provincial, federal – while other funders are going to be non-governmental agencies like the United Way. Two difficult challenges arising from diverse funders should be noted. One challenge is that because of pay equity legislation in Ontario, multidisciplinary family service providers must ensure that pay is uniform across all programs among professionals providing services of equal value. As the experience at community health centres such as LAMP CHC has shown, this is a very complex exercise. The other challenge is that with diverse funders, funding is frequently episodic and rarely stable. In practice, when funding ends, coordinators of multidisciplinary family service providers must make difficult judgements about which professionals are more valuable and which can be let go.
The Inevitable Limits of Comprehensive Family Services
Although multidisciplinary professional delivery models may strive to be comprehensive, there are inevitable limits to any measure of comprehensiveness. There are always going to be some groups who are not well served in any model. These limitations may reflect gaps in the skill sets of the particular professionals on the team or the fact that outside large urban settings there are rarely the diverse range of professionals needed to serve everyone well. In other models, they may be simply principled objections to serving a particular type of client, for example, the perpetrator of domestic abuse.
Conclusion
The vision of multidisciplinary paths to family justice imagines approaching the legal dimensions of family problems in a different way than is prevalent in Ontario today. This chapter provides a catalogue of some of the challenges with the implementation of a multidisciplinary family service model that layers on low-level legal services. By identifying the challenges and difficulties that professionals can face when they try something different – when they collaborate with other professionals to delivery multidisciplinary family services – the vision of multidisciplinary paths to family justice becomes more robust and its potential more visible. The next chapter explores some promising practices that can help us to meet the challenges of realizing multidisciplinary paths to family justice in Ontario.
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