PRACTICAL SKILLS FOR WORKING EFFECTIVELY WITH CLIENTS WITH MENTAL HEALTH ISSUES BASED ON MATERIALS FROM THE NEW ENGLAND TRAINING CONSORTIUM 1 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 2 4/8/2015 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 8 4/8/2015 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. 9 4/8/2015 THE COMMUNICATION PROCESS – PRINCIPLES AND TECHNIQUES Context Structure Basic Interviewing Skills 4/8/2015 10 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 4/8/2015 12 • Yours • Clients • Expectations LEEP - FOUR BASIC INTERVIEWING SKILLS Listen Engage Express 4/8/2015 13 Problem Solve LISTEN Demonstrates the interviewer is paying attention and cares Encouragement to talk Relevant note taking 4/8/2015 King County Bar Association 14 Intentional silence LISTENING – ACTIVE PART Reflect • Purpose 4/8/2015 15 • 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 4/8/2015 16 • 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 4/8/2015 17 • 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.” 4/8/2015 18 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 4/8/2015 19 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 4/8/2015 20 • Answered with a yes or no • Ex. How old are your children? ENGAGE EMPATHY 4/8/2015 21 “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 4/8/2015 22 • 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 4/8/2015 23 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 4/8/2015 24 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 4/8/2015 25 • This frustrates clients PROBLEM SOLVING Interrupting 4/8/2015 King County Bar Association 26 Communication Issues LIMIT SETTING The “art of interrupting” • Back to the roadmap 4/8/2015 King County Bar Association 27 • 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 4/8/2015 28 • 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 4/8/2015 King County Bar Association 29 Evaluate the response CONT’D Mistakes 4/8/2015 King County Bar Association 30 • Admit • Repair errors or oversights DE-ESCULATION TECHNIQUES Verbal cues 4/8/2015 King County Bar Association 31 • Tone of voice • Volume of voice • Rate of speech AVOID 4/8/2015 Making promises you cannot keep Asking why questions Columbia Legal 32 • 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 4/8/2015 King County Bar Association 33 Announce your actions and movements SPECIFIC MENTAL HEALTH ISSUES Delusional/Paranoid Severe Trauma (PTSC, DV) Borderline 4/8/2015 King County Bar Association 34 Suicidal DELUSIONAL/PARANOID Do not engage the delusion Focus on concrete issues Be explicit about what you can and cannot do Used closed questions 4/8/2015 King County Bar Association 35 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 4/8/2015 King County Bar Association 36 • 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 4/8/2015 King County Bar Association 37 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 4/8/2015 King County Bar Association 38 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 4/8/2015 King County Bar Association 43 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! King County Bar Association 45 4/8/2015 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) 4/8/2015 King County Bar Association 49 • Opposing party duty to apprise court of incompetency of adversary if known 50 [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.”