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