Counsel's Corner

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

Part 1 of Series

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.

We welcome additional comments/stories/etc. from readers. PWDF focuses on mental health through public awareness/education and advocacy. See www.pwdf.org for additional information.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant's disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney's fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF's educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.

Continuing Education Provider: State Bar of California MCLE, California Board of Behavioral Sciences Continuing Education, and Commission of Rehabilitation Counselor Certification.