Access to Justice for Older People - Elderly Client Adviser

Feature

posted 1 Apr 1998 in Volume 3 Issue 3

Access to Justice for Older People

Judge Gordon Ashton examines how the law should better cater for the needs of elderly and disabled people.
The author is a District Judge and a member of the Law Society's Mental Health & Disability sub-committee. He has written several books on the subject of older and mentally disabled people at law.

In my daily work as a district judge I regularly encounter older people. Most are quite lucid and able to look after their own interests, but there is an increasing trend for those with physical or mental impairments to encounter the civil courts and with cut-backs in legal aid not all of them have the assistance of a solicitor. Some appear in court full of indignation yet unable to grasp the issues; some have difficulty communicating in the manner or at the pace expected; others are simply unable to attend at court. In this short article I wish to identify some of the problem situations that arise and how the legal system could be improved to tackle them. These problems are not unique to older people and are encountered by anyone with a mental or physical disability, but older people are the largest category.

The Game of Litigation

Sadly civil litigation has become a game played on the lawyers' playing field at the expense of the participants who may find that it does not resolve the problem that brought them to lawyers in the first place. All too often the game is won and lost on penalties or when one of the players retires hurt, and the infirm elderly party is likely to be an early casualty. The first task of the judge, however hard pressed he may be, is to create a 'level playing field' but unless he recognises the underlying problem and is sympathetic in his approach he is unlikely to succeed. I am doubtful whether professional litigators can be relied upon to captain the game in the best overall interests of the parties and consider that the judge must be more than just an umpire whose role is to maintain the rules, prevent fouls and add up the score when the game is over. Indeed, I question whether litigation is a game at all - to the parties it is a serious business.

Disabled Litigants

With care in the community more disabled and infirm people encounter the civil courts and with cutbacks in legal aid fewer have a solicitor to anticipate their needs. There are many forms of physical disability that may affect the ability of an individual to participate in the process of litigation. Impaired mobility may render it impossible to gain access to the court, impaired hearing or vision may make it difficult to identify what is going on, communication limitations may make it difficult for others to understand what is being said, or some ailment may make it impossible to attend court or to remain there for more than a limited period. It is not simply a one-off misfortune when my usher tells me that a party or witness is in a wheelchair and unable to gain access to my courtroom, or a party needs an interpreter but none is available or the hearing cannot be completed because a party has a speech or hearing impairment which slows the normal pace. it is a failure of the system that did not plan for this eventuality. Simple remedies are available, such as transfer to an accessible local court or to a courtroom with suitable facilities, or the provision of a longer time-estimate but it is too late when the need for this is only realised at the hearing. Communication difficulties should be equated with language barriers and the use of special interpreters or representatives encouraged, but this is not generally accepted practice. Judges can develop solutions but they need to be supported by the system when they use their initiative in this way.

Mental Disability

Some litigants are 'incapable by reason of mental disorder of managing and administering their property and affairs' and special rules apply to them. They are known as 'patients' (or 'mental patients' in the county court - an inappropriate and outdated label). A representative known as a 'next friend' or 'guardian ad litem' must then be appointed but neither has any authority outside the proceedings. Safeguards are needed to ensure that the representative is suitable to act, and does act, in the best interests of the incapacitated person but such safeguards do not exist - there is not even a need to notify the individual or family what is going on. The various court rules reflect attitudes to mental disorder current when they were introduced and badly need updating.

Disability Discrimination

Although judges have been trained at great expense to be sensitive to the needs of those from ethnic minorities little has been said about people with physical or mental impairments. They encounter a handicap in society but do not expect this to be re-enforced by the legal system. The existing court rules do not assist and sometimes create barriers to justice. For example, when family or carers seek to assist they find that their entitlement to participate in the proceedings is severely restricted.

Individuals who cannot cope with the procedures or facilities of the courts are as much entitled to justice as those who know how to use the legal system to their advantage, but how often are they truly afforded equal access to justice? For too long their special needs have been overlooked but a new social climate has brought with it the Disability Discrimination Act 1995 which applies to employment, transport and services. The civil courts are not exempt and could find themselves in breach of this legislation and sitting in judgement on themselves if they do not change the way they provide their services.

Reforms

Lord Irvine of Large, the new Lord Chancellor, has declared an intention to implement reforms to the civil justice system but also contemplates a redistribution of the public funds available for legal aid. These proposals have provoked much debate within the legal profession and are linked in so far as lack of legal aid either denies access to justice or creates litigants-in-person who must find their own access unaided by lawyers. Two recent consultations about reforms could significantly affect access to justice for older people for many years to come. The recent Green Paper Who Decides? follows up the Law Commission's 1995 Mental Incapacity report and will hopefully result in a much needed legal framework for those who lack capacity to make their own decisions. This may be the subject of a later article but for the present we concentrate on the civil justice reforms.

The Woolf Report

In his Access to Justice report Lord Woolf identified the failings of the civil justice system and asked fundamental questions which many litigation lawyers were too involved to address. He stood back from the game and recognised that the manner in which it is played may be of considerable relevance to the attainment of justice. He proposed judicial case management so as to create the 'level playing field' for litigants of which I dream, and placed emphasis upon alternative dispute resolution or mediation as a viable alternative to the adversarial approach. This is an approach which T and some of my colleagues have adopted for several years, and it should be remembered that the district bench is likely to be the first - and usually the last - port of call for older people (the bulk of civil litigation is conducted before district judges). When a case comes before me I am inclined to ask the parties to pause for a moment and consider what they are each trying to achieve, whether they are likely to do this through the court and whether there may be other means of doing so than a contested hearing. I would rather facilitate a settlement than decide a case provided that the parties have equal bargaining ability. I welcome the interventionist approach in arbitration ('small claims court') hearings, the use of conciliation in children cases, and attempts to negotiate settlements in divorce ancillary relief cases in advance of final hearings.

Further Proposals

Regrettably nothing was said by Lord Woolf about those whose ability to participate is impaired by reason of a personal handicap. My proposal is that standard procedures should ensure that the needs of people with disabilities are identified in advance and effectively provided for. The proposed new Civil Procedure Rules commence with a statement of underlying objectives and these should include an express duty on the court to: 'accertain if any of the parties has a physical or mental impairment or an ethnic disadvantage which substantially affects that party's ability to conduct or participate in the proceedings'. Forms used by the court should enquire as to the existence of any relevant disability or disadvantage and case management can then take into account any special needs. Judges should be trained to be 'disability aware' and encouraged to adopt a wider range of available options. Civil proceedings might then be conducted in a manner that is fair to all and this would also result in more efficient use of court time.

The Need To Attend Court

When appropriate justice should be available in the absence of a party. In small claims I have had to try disputes where it was clear that an elderly plaintiff would never be fit to attend and the defendant's advocate objected to the case being conducted by a son or daughter who did not have a right of audience. How else could justice be achieved? My solution was to respond that the lay representative may only have a right of audience in the presence of the party but I have the power to hear whomever I wish. I was not prepared to assume that an elderly person could afford a solicitor especially when costs could not be recovered and the claim was only for £99.

When necessary justice should be taken to those who are unable to come to the courtroom rather than being denied to that party (or perhaps to both parties for an indefinite period). A district judge can perform quite adequately in a litigant's home or the lounge of a nursing home but there are doubts as to whether the rules permit this so not all will take the risk. If it is, for example, a dispute over the installation of disabled facilities in the home an inspection by the judge may be far cheaper and more decisive than insisting upon expensive expert evidence, and having made the journey the judge can conduct the hearing and announce his decision there and then.

Social Justice?

It is not only in the conduct of the proceedings that consideration should be given to the needs of older and disabled litigants. A change in approach to the outcome may also be relevant. Such people often seek social justice as well as legal justice (I question whether there is a difference) but are unlikely to achieve this under the present system. It is not part of the culture of adversarial proceedings for the judge to delay the contest whilst the court acts as a gateway to community care services, but doing so may resolve the problem that brought the parties to the court in the first place. For example, the underlying reason for debt or possession proceedings may be failure to apply for available support from the DSS or social services, or an inability to cope with financial affairs rather than refusal or inability to pay. I try to identify these cases and adjourn my final order until satisfied that any available support has been provided because this may remove the source of the litigation. There is a danger that the courts are so blinkered in addressing the specific issue brought before them that they merely pass the underlying problem elsewhere.

Conditional Fees

Conditional fee arrangements would be of particular value where proceedings are to be taken on behalf of a mentally incapacitated claimant, because those responsible for the financial affairs will not wish these to put at risk. The absence of a procedure for prior approval which is binding upon the court when asked to approve a settlement or taxing the solicitor's bill can result in such litigants being denied this facility. There is even doubt as to whether advance approval of the conditional fee agreement by the Court of Protection would have to be accepted by the civil court. If conditional fee arrangements are to become an alternative to - or substitute for - legal aid as has been proposed, procedures must be introduced to enable mentally incapacitated litigants to enter into them.

Conclusion

Many of these points may appear trivial in the context of the Woolf reforms as a whole, but they are not so to the individuals concerned. Having access to the civil courts for the resolution of disputes is a fundamental human right and being heard before a decision is made is one of the principles of natural justice. Yet there are many older people who encounter serious obstacles in simply achieving this. It is to be hoped that the new Civil Procedure Rules will address these matters.

Gordon Ashton