editorial

Do Disability Rights Advocates Discriminate on the Basis of Mental Disability?¹

Part 2 of Series

By Steven Bruce, Legal Director

In our Fall 2008 E-Newsletter, Volume 5, we conducted a survey within the disability rights advocacy community (see Part 1 of Series reprinted below). We have updated this survey, as of January 2014, approximately 5 years later and find the results are different in that the disability rights community is more aware of mental health issues; however, basically other results are the same - there is still a wide array of perceptions about people with mental disabilities, leading to different results in advocacy although some advocates are well intended and want to assist people to achieve equal access in society and there are those who distance themselves based on stigma and stereotype.

More specifically, one “welfare-to-work advocate” or legal aid attorney states that although all the attorneys try to provide reasonable accommodations, the state and counties are not as adaptable as they are required to be. This is attributed partly to the invisible nature of the disabilities and “difficult” clients.

A housing advocacy agency states their clientele are being denied reasonable accommodations by landlords and often on that basis sued for eviction on a theory of “nuisance.” He/she further states the court system does not accommodate by giving these tenants more time for a variety of reasons. That author notes that 45% of the households they serve has someone with a mental, developmental, or other disability. He/she also notes that in California there is a summary eviction procedure. Mental disability discrimination is an affirmative defense under the Fair Housing Amendment of 1988 and the Fair Employment and Housing Act in California. (Editor's Note: Perhaps there should be more training in this area.) It is generally recognized that communication can be difficult, and because of the summary procedure in unlawful detainers, it is especially difficult because of the stressful environment in combination with the inherent difficulty from those with mental or developmental disabilities who may need assistance and a support framework to communicate. In any event, they state they need more resources to work with these clients in a way that would allow them to settle without going through the court process. This housing agency recognizes that non receipt of available resources also can be based on the stigma of mental illness.

Another commentator represents about 27 different legal aid offices. This supervisor recognizes that some mental or developmental disabilities do have an adverse impact on receiving representation. They attribute this to be because of the clients’ inability to follow the “rules” and lack of accommodation. This agency attributes this unequal access for people with mental health disorders to a combination of factors including 1) fear of stigma, 2) fear of agencies such as Child Protective Services removing their children, 3) stressful procedures such evictions, and 4) inadequacies in county and state government that do not use the correct screening tools, an example of which would be using punitive actions if there is inappropriate behavior. (Editor's Note: It should be noted that this behavior may be part of the disability and not the fault of the individual.) This agency, like others, blames lack of resources as one reason for possibly not representing people with mental health issues specifically, “insufficient staff” and “case acceptance criteria. . . .such as high impact cases.” Clearly, training and knowledge of support frameworks are required for advocates.

Finally, another state housing advocacy agency response reveals they do advocate for clients with mental and/or developmental disabilities on a case-by-case basis and that they are being more creative in requesting reasonable accommodations for this population. This housing advocate points out that educating judges about reasonable accommodations and fair housing protections is a serious obstacle, but this is the reality of the process when it comes to housing. This agency further mentions that some attorneys talk about mentally impaired individuals as “too sick to serve.”

Moreover, it is believed by one respondent that some housing attorneys advocate for conservatorship rather than deal with the disability in challenging cases. For example, a tenant was being evicted for “hoarding” and “the attorney filed for conservatorship because she thought the client would not comply with an accommodation plan.” The respondent to the survey finds that this conduct among housing advocacy agencies is inappropriate and unethical but states he/she is only personally aware of a handful of cases with this kind of situation. 

Another respondent tries to disassociate themselves from knowledge of discrimination. We saw this in 2008 but now, like with racial and ethnic discrimination over time, it sounds less overt but just as wrong. A regional nonprofit with regions similar to the 10 within many federal agencies contracts with “contractors” to advise businesses on disability issues. There are large numbers of contractors per region (50 to 100). The respondent says they are unaware of disparate treatment among businesses or among their own contractors because they are not a “hands-on” advocacy agency. It is hard to fathom that an agency does not know their own training syllabus for selection or consulting by contractors hired by them or have any monitoring feedback procedure.

Clearly, effective communication is a right and must be accommodated under both the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. PWDF’s mission is to reduce stigma for those with psychiatric and/or developmental disabilities. Regrettably, too many agencies and advocates are still unwilling to look at barriers to this population.  Even those who have been advocates for years for clients with blindness, deafness, and learning disabilities are not willing to study or take the time to learn the underlying pathology of psychosis, mood disorders, and autism, etc. The primary reason is that it is easier to have "black or white" evidence such as an IQ test (WAIS IV) for court.

Do Disability Rights Advocates Discriminate on the Basis of Mental Disability?

Part 1 of Series

By Steven Bruce, Managing Attorney and Interim Executive Director

Over the past seven years as Director and Managing Attorney of People With Disabilities Foundation (PWDF), which focuses on psychiatric disabilities, I have found that individuals with aggression, delusions, or extreme anxiety often are representative of those individuals whom lawyers and other advocates prefer not to represent.

Discrimination based on mental disability is indeed deeply ingrained into the fabric of society, including within the disability rights advocates' community. PWDF conducted an unscientific survey over the last few months relating to this article's title. Some advocates responded by stating reasons for not wanting to represent, which include that the client may not show up in court, safety issues, and/or other fears. Others insisted no disparities exist in representation between those with physical or mental disabilities.

It is noteworthy that some experienced litigators expressed a lack of awareness about this population's mental diagnoses and resulting limitations. One referred to them as "novelty" people, another as people in a hospital but not having the ability to be part of the working population. Another class action litigator asked if "these are the people who do not show up in court." These descriptions are not necessarily wrong but too often lead to unequal representation. In a large court case, due to a lack of understanding the nature of mental disability, the litigator decided to use plaintiffs with visual impairment(s) instead of plaintiffs with mental impairment stating: "We thought we would just simplify things."

More specifically, one survey response stated that the representative had a client who was extremely unfocused and paranoid about being targeted by administrative agencies so that handling his Social Security case took approximately ten times more time and effort than a case with an individual whose disability did not manifest itself with a substantial mental component. Awareness of this kind of barrier, time, and patience is significant in affecting advocates who make choices about whether to work with this population. To some advocates, it is disconcerting to be yelled at or threatened by a client whom one is attempting to assist, even if that behavior is motivated by the disability for which assistance is provided. For instance, one advocate responding to the survey stated that she had one client who found her home phone number and called from 11 p.m. to 5 a.m., leaving over 100 voicemails in a period of 3 to 4 days. This attorney felt overwhelmed.

Clients whose mental health problems prevent them from understanding legal advice, much less following through with the advice, can 'burn out' advocates when they come back time and time again with essentially the same problem (for example, a delusional client who is ineligible for benefits because he cannot prove his immigration status, who does not understand the concept of citizenship, and who consistently and erroneously claims – based on honest beliefs – that he is a U.S. citizen and comes in once or twice a month to ask why he was denied benefits).

It appears that these issues can be overcome for individual advocates with proper organizational support. First and foremost, training on mental health issues and their effects on behavior is crucial. Another survey response stated that there is confusion about whether a client is being obstructionist or refusing to follow through or whether the client's disability prevents him from following through. This usually leads to a judgment by the advocate that the individual "doesn't really want to solve the problem." At least to some extent, understanding the relationship between the behavior and the disability would likely prevent negative judgments by the advocate.

Additionally, some advocates feel compelled to call back every time a client calls and do not know how to set boundaries, perhaps by making agreements to talk once a week at a set time. These advocates often end up feeling used, abused, or burned out by these clients whose disability-related behavior creates challenges for the advocate.

Another legal advocate states that clients must be minimally competent to be represented, but many are not. In this scenario, the disabled clients know something is wrong with how they have been treated, but it is not possible for them to acknowledge their own part in what happened or to conform their behavior to standards that would apply if they were not disabled. In litigation, this can be a serious problem that causes frustration on the part of the advocate and is often poorly understood by the judicial system. As one attorney stated, "I won't refuse a case, but if I reach a point where I cannot represent the person consistent with the standards and practices of our program or my licensing obligations, then I will have to stop representing that person."

Support is indicated from the legal services agency/law firm for their advocates working with this population. One attorney suggests that a debriefing or support group sessions would be helpful. Recognizing this and providing support is an important role for the advocacy organization to play. Recognizing that the same case may take more time when working with an individual with a mental disability and adjusting caseloads and work schedules can be beneficial. Other remedial actions include providing case management or clerical support to remind the mentally impaired about appointments, drive them to get forms filled out, etc.

Conclusion

There is a wide array of perceptions about people with mental disabilities, leading to different results in advocacy. The array ranges from well-intended advocates who want to assist people to achieving equal access to opportunities in society to those who will distance themselves based on stigma and stereotype.