In the spotlight

Parity in Advocacy: Overcoming Barriers to Legal Representation is Long Overdue

People With Disabilities Foundation (PWDF), having long advocated for people with psychiatric and/or developmental disabilities, has begun an initiative to press for increased legal representation using these individuals as plaintiffs in anti-discrimination lawsuits for this population's disability rights. Parity in Advocacy with regard to individuals with mental and/or developmental impairments, such as autism, dementia, and psychosis, e.g., schizophrenia, is critical to ensuring the rights of these individuals. Disability advocacy organizations often exclude such individuals from representation, perhaps due to evidentiary ease, concerns about the fragility of the client, stigma and discrimination, or other rationales.[1]

PWDF undertook non-scientific surveys on this issue in 2008 and 2013. These surveys showed that many advocates do work with this population and try to accommodate their needs. These surveys and discussions with other advocates also confirmed, however, that even within the disability rights advocates community, this population is often discriminated against or ignored by advocates refusing to use the individuals as plaintiffs, instead using people with other disabilities, such as blindness or paraplegia.[2]

One potential rationale for not representing individuals with psychiatric and/or some developmental disabilities is the perception that it is difficult to obtain clear, objective evidence that would prove the disability. For example, psychometric testing can be used to measure cognitive disabilities, but there is not an equivalent objective, quantitative method to test for a psychiatric disorder such as schizophrenia[3] or bipolar disorder.[4] Thus, attorneys may believe it is hard to prove both the psychiatric disability and, when applicable, the need for a reasonable accommodation that would address it. In addition, according to some attorneys who work with this population, judges may not be educated about the reasonable accommodations that are required in some cases.[5] Because it may be easier to prove other disabilities or identify a reasonable accommodation for them, the attorney may choose not to represent the person with the psychiatric disability.

Another rationale is the attorney's belief that a client with a psychiatric and/or developmental disorder may be too mentally fragile to participate actively in litigation. Given the pressure of depositions, independent medical examinations (IMEs), testifying, and trial, the advocate may be overly concerned that the client would be unable to withstand or understand the legal process. There may be concerns that the individual might have episodes of decomposition due to changes in medication or doctor or have suicidal thoughts due to the stresses of litigation.

Rather than excluding persons with psychiatric and/or developmental disorders from representation, we suggest that the advocate work with the client to enable the client to participate. Based on PWDF's experience representing plaintiffs in multi-year litigation against the SSA, we acknowledge that it is more challenging to represent this population due to the nature of the impairment. Nevertheless, it is very important to help members of this population ensure their rights are protected.

In the 5 1/2 years PWDF represented plaintiffs with schizophrenia, other psychosis, autism, and other mental and/or developmental disorders in a suit against the Social Security Administration (see Terrence Davis v. Michael Astrue, Case No. 3:06-CV-6108 EMC (NC) and John Doe v. Michael Astrue, Case No. 3:09-CV-980 EMC (NC)), PWDF attorneys addressed the fragility issue throughout the process. At the onset, we explained the litigation process to the potential plaintiffs without pressuring them to agree to participate. We also explained the process to the potential plaintiffs' family, psychotherapists, independent living skills trainer, and any other person who was a part of the plaintiffs' support framework. During the litigation, we were able to incorporate reasonable accommodations related to their disabilities by requesting a court order. These included deposing the clients in a location other than in the United States Attorney's office, ensuring one of the plaintiffs [Doe] had a third person for psychological support, and including mandatory breaks in the depositions so that the Plaintiffs' anxiety levels did not increase too high, too quickly. Plaintiffs' suicidal ideation and/or attempts during the litigation were no more than they had been before the litigation.  

In response, PWDF is engaging in a multi-pronged approach to bring public awareness to this critical issue, with the goal of increasing advocacy for this population. As part of this initiative, PWDF is actively seeking a forum in which to have a public dialogue about this issue. We have created a dedicated webpage on this topic on PWDF's website and are continuing to investigate other avenues of bringing this issue to the forefront. These may include disseminating information to the public through outlets such as podcasts, public online chats, written publications, and media channels. PWDF additionally intends to organize a workshop on the topic of Parity in Advocacy and hold discussions in conjunction with other organizations. We have begun reaching out to local student groups and university professors in an effort to provide educational insight on this all-too-overlooked topic.

Parity in Advocacy is critical to ensuring the rights of those with psychiatric and/or developmental disabilities. Please send us your suggestions and comments on this issue from our dedicated webpage; we look forward to hearing from you.

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 and developmentally 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.