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ALBERTA ACCESS TO JUSTICE WEEK - HOME
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Access to justice in a neurotypical world

10/28/2020

7 Comments

 
By Emily Bielech

Currently, 1 in 66 Canadians between 5 and 17 years of age have been diagnosed with Autism Spectrum Disorder (ASD). ASD is a disorder that affects communication and behaviour, and is characterized by atypical cognitive function – in other words, individuals with ASD think, reason and remember differently than neurotypical individuals (those who do not have ASD). As these young people transition into adulthood, many are faced with a crisis. There is a lack of public services in Canada tailored to meet the needs of adults with ASD, especially those with High-Functioning Autism (HFA). This service gap extends to the justice system, particularly in its provision of aid to self-represented litigants. Often, individuals with cognitive differences such as HFA receive disability benefits, and are therefore unable to access legal aid because they do not make the low-income cutoff. At the same time, they are unable to afford a lawyer. It is therefore reasonable to assume that an individual with HFA would likely be required to proceed as a self-represented litigant.
 
Neuro-diverse individuals are more likely to face barriers to meaningful access to justice. We must take these barriers, and the varying abilities of neuro-diverse people to surmount them, into account when providing our services as legal professionals. Although ASD, as the name suggests, represents a spectrum consisting of Autism subtypes that range from individuals who are severely impacted to those with HFA, there are some behavioural commonalities across the spectrum. These commonalities can include challenges with social interaction and communication. A litigant’s ability to communicate with the judge, with duty counsel, and with the clerks who file court documents can make or break a case.
 
Best Practices in Designing Self Help Resources
One key innovation that could help neuro-diverse individuals to represent themselves is to
increase the clarity and navigability of online legal resources.
 
Regarding the clarity of the information, people designing such resources should pay specific attention to how information is organized and synthesized. Online resources can be adapted to meet the needs of individuals with HFA by minimizing the amount of information present on a web page, and by making the relationships within that information explicit. For example, information organized in a linear fashion, such as by using numerical steps, is easier to comprehend. The steps for initiating a civil claim for wrongful dismissal could look something like:

  • Step 1) Do you think you were dismissed from your job without proper notice?
  • Step 2) If the answer is yes, read your employment agreement. What does it say about notice of termination?
  • Step 3) Does your agreement comply with the minimum notice period set out in the below charts? (If you are employed by the government of Canada, use Chart A; if employed by the government of Alberta, use Chart B)
  • [Insert charts specifying the minimum notice for various periods of employment under both federal and provincial legislation]
  • Step 4) Did your employer comply with the minimum notice period in the chart?
  • Step 5) …
 
In terms of the navigability of web pages, design and layout can be improved by a greater level of personalization. Personalization allows a user to have the option of, for example, selecting pop-up pictures that explain the text or hearing an audio recording of the information when they place their mouse over a specific word or phrase. Allowing the user to set their ideal combination of audio, pictures, icons and ratios of symbols to text, and other streamlining mechanisms such as reduced screen clutter and less scrolling, can also be beneficial to neuro-diverse users. Ideally, these design changes could be implemented so as to remain unobtrusive for neurotypical individuals, who may either find these tools helpful or wish to bypass them.
 
Connecting Neuro-Diverse Individuals with Expert Helpers
 Connecting neuro-diverse individuals with helpers who know how the justice system functions is also a viable solution. I propose an increased role for communication intermediaries. These non-lawyers are already present in some courtroom settings to aid in the giving of testimony and have experience assisting individuals who have difficulty communicating. Intermediaries could be made available to neuro-diverse individuals using technology such as an online chat system that supplements, and is accessible alongside, pre-existing web resources. Another way to achieve affordable assistance is through “unbundling”, when a lawyer offers their services in parts or tasks, rather than for the entirety of the litigation/claim.
 
Until solutions such as these are implemented, it is not likely that a litigant with HFA would be able to successfully represent themselves without assistance. We still have work to do as a profession in terms of providing equitable access to justice for neuro-diverse individuals.

Emily Bielech is a third year law student at the University of Alberta, Faculty of Law. This post is based on a research paper that she completed for a class in access to justice taught by Professor Anna Lund.
7 Comments
Christopher Mills link
10/28/2020 04:40:18 pm

That's a great post - now - (the hard part) - how will you do that if your insurer (lawpro) and your regulator are encouraging ableism, and this is embedded in your curriculum?

https://www.practicepro.ca/.../2004-03-lawpro-magazine3-1...

(Pages 3-9)

http://www.slaw.ca/.../how-scarcity-can-change-us-why.../

https://learningcentre.lawsociety.ab.ca/course/view.php...

Perhaps just as, if not more importantly, what measures will our esteemed Law Societies take to reverse the culture of discrimination in the wake of this sort of material, and the organizations that continue to condone this sort of conduct?

Reply
Sharon Roberts link
11/5/2020 04:20:56 am

Yes yes yes!

To the point about our education system: I was told at UA Law by our then career counselor not to disclose my disability because (and I quote) "people will think you are going to drool on their desk and you'll never get a job."

To the point about our regulator: although some forms of neurodiversity (because ND doesn't only mean ASD) are recognized and viewed compassionately, as a volunteer and an industry partner and peer support volunteer, I can say without breaching confidentiality that disclosing neurodiversity can STILL function today -- leaving aside intentions because when it comes to -isms, effects are paramount, not intentions -- as a target or magnet for concern about "risk to the public".

P.S.

1. I was on the Dean's list, and Co-Editor in Chief of the Alberta Law Review plus I am honest to a flaw. I did disclose (because I need modest accommodations). The career counselor was wrong. Though I did get ridiculed and judged by peers in my esteemed law jobs. Law is not so different from grade 7 even on a good day.

2. I never told my regulator about my disability and, with a painful wince, confess that I encourage *very controlled* disclosure as a peer support volunteer and mental health advocate to this day. Law has work to do.

Reply
Lorraine Cook
10/28/2020 05:03:32 pm

Thanks for looking at this issue. We need more examination re: issues of accessibility for people with cognitive differences. This is a great start and much appreciated!

Reply
Peter Cook-Bielech
10/28/2020 07:48:12 pm

Very good articles and very good ideas discussed.

Reply
Dr. Donald Cook
1/17/2021 07:45:58 pm

Autism Spectrum Disorders are prevalent as are High Functioning Autistic disorders in our society.

Law is a complex field with a complex language barrier,that serves to function as a hurdle to those affected.

Connecting Neuro-Diverse Individuals with Expert Helpers, who have experience in both these fields, is a growing need now and in the future, both in Alberta and Nationally as a means of bridging this divide.

Legal knowledge and expertise with knowledge in both law and medicine is a rare and important commodity.

This article begins to articulate bridging this gap.

Well done .

Dr. Donald R. Cook
M.D., BMSc., FRCPC

Reply
Veronica
8/25/2022 11:34:22 am

I am a neurodivergent person dealing with the legal system (family court) at the moment. I stumbled on this blog while looking for resources to help me prepare for the social script required in the courtroom (even simple things like - do I use honorifics at the beginning of each time I start speaking or the end?)

Is it going to be held against me if ADHD brain interjects a random thought at times? Or if I forget the social script because of the ASD? Or if I stim because I am nervous but it just looks like fidgeting? Or if I struggle to control my facial expressions or my eyes involuntarily start producing tears because I am under stress? Will I be seen as less credible? I wish there were resources published and awareness in the system of how autistic/ADHD folks might communicate differently, including our body language.

Reply
Brendan
7/3/2023 01:51:23 pm

Well written post on an important topic!

Reply



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