Therapeutic Jurisprudence in the tribunal context
(An edited version of a presentation given to COAT on 26 October 2006)
Not having read widely about TJ (Therapeutic Jurisprudence) I feel a bit as though I have walked onto the set of Thank God You’re Here. I heard David Wexler speak about TJ in Melbourne some years ago. I came away thinking that he had a number of worthwhile things to say. Perhaps a bit smugly, though, I thought that any tribunal member acting on the principle that we should be doing what we can to make things better for people, rather than worse, was probably already applying TJ. So while I saw Wexler’s presentation (if not the TJ movement) as a useful form of consciousness raising, I have been something of a sceptic about it. I wonder if that has been partly because I don’t much care for the label. I’ll call myself an agnostic.
Since hearing Professor Wexer, while I hope I have still been looking for ways to make things better, I have to say that I have not actively thought about TJ a great deal. All that changed several weeks ago when Jacky Kefford asked me to speak tonight.
I dipped my toe into the pool of TJ literature. On the Therapeutic Jurisprudence website I found an overwhelming number of articles on the subject, many expressed in language that I wasn’t too sure I really wanted to wrestle with. I looked for statements about TJ that would help me to pin the concept down a bit.
There Wexler says that -
· TJ is the study of the role of law as a therapeutic agent.
· TJ humanises the law and concerns itself with the human, emotional and psychological side of the law
Here, he says, “law” means “law in action” – in three categories -
· Rules
· Procedures
· The role of “legal actors’ including decision-makers
As Tribunal members we occasionally have an opportunity to comment on actual or proposed rules, but we are concerned more often with the second and third of Wexler’s categories.
As to procedure, Wexler gives an example of the adversary process in child custody cases, bringing out the worst about the other parent and generally proceeding in a way that is traumatic to the child and damaging to the relationship between parents who may have to maintain some future relationship if only for sake of the child. TJ looks for less personally damaging ways to go about things.
On the role of decision-makers, Wexler gives the example of the way a judge might behave at a sentencing hearing and its effect on the behaviour of the person sentenced.
So has TJ been around forever as some say? I would say yes and no. As an agnostic I may not be in a strong position to enter the debate, but my sense is that TJ has been applied for centuries - in intuitive or instinctive ways, if not in scientific ways. By “scientific ways” I mean ways that draw on the behavioural sciences. In that latter sense TJ really is new because those disciplines are new. Wexler has noted that TJ grew out of mental health law but now has application to the law in general.
It is where Wexler and others give concrete examples of what they mean that TJ begins to make more sense to me. I have thought about examples that relate to the work of tribunals.
As we know, Tribunals (or Boards and Tribunals) come in all shapes and sizes. The Council of Australasian Tribunals has been called the COAT of many colours. The jurisdictions and clientele are many and varied but the nature of the tribunals themselves (or Lists within a tribunal, in the case of VCAT) is also diverse.
The Refugee Review Tribunal is a merits review tribunal but also an example of what might be called an “all or nothing” jurisdiction. An applicant is declared either to be a refugee or not. There is no discretion, no middle ground. The way in which the hearing is conducted and the outcome conveyed to the applicant is obviously important. I’ll say more about that generally. An application of TJ in the RRT context I recall was where the applicant had a serious heart condition. Evidence about that, and evidence of the person’s history, including a tape recorded interview with a Departmental officer that disclosed episodes of torture, was uncontradicted. I took a different view to the Department about the significance of information concerning the person’s country of origin. The purpose of a hearing then would largely have been to test the applicant’s credibility. However, there was nothing to indicate that the person was not credible. I made a declaration of refugee status “on the papers”. I was applying TJ principles without realising it. On the other hand there were cases where I and other RRT members applied those principles by asking the registry to contact an applicant’s supporters or legal representatives in order to be with the applicant when an adverse decision was handed down.
When we look at the inter partes tribunals (examples of which include VCAT’s Residential Tenancies and Civil Claims Lists) there is usually a winner and a loser. However, there is scope for the exercise of judgment and discretion – whether in weighing factors relevant to compensation; or deciding when, if at all, an order should come into effect; or considering costs, for instance. Nevertheless, there will usually be bad news for one party. The hearing is obviously important but it is also important that sufficient time is taken to give reasons for the decision. We’re familiar with the advice that when announcing a decision and giving reasons we should mainly address the unsuccessful party. Among other things, we must be careful to avoid saying anything that might be felt as rubbing it in.
It is always worth looking at what courts do. Ian Gray, the Victorian Chief Magistrate, quoting an article by John Willis, has said:
“Magistrates’ Courts still tend to be seen as different from, and inferior to, other courts. This perception has had its advantages. Magistrates’ Courts have been less bound by tradition and traditional ways and have been more responsive to changing needs and new demands placed on them. They have also been innovative in a number of interesting and important ways …[P]aradoxically, the very value to acknowledge the contribution and status of Magistrates’ Courts may well have been one of the major reasons for their efficiency and vitality.” (2002 AIJA oration The People’s Court. John Willis The Magistracy: The undervalued workhorse of the Court System).
A similar though even stronger statement can be made in relation to tribunals.
Michael King, a WA Magistrate, has also quoted Willis in a paper entitled Applying TJ in Regional Areas – The WA experience. He says that in Perth TJ has been applied in “specialist courts” (sometimes called “problem solving courts”) – such as a Drug Court and a Family Violence Court – rather than the general court. He comments that TJ has it sceptics. He says that some Magistrates seem to fear change and the possibility of an increased workload. He also suggests that larger courts can suffer from personality conflicts that challenge the ability of the court to interact harmoniously and implement new approaches. A regional “one-magistrate” court does not experience such problems. Local knowledge has permitted TJ based projects sensitive to the needs of diverse communities. He gives the example of the Geraldton Alternative Sentencing Regime (addressing substance abuse, domestic violence and other offending related problems). This makes me think of VCAT’s regular regional sittings and Victoria’s new Neighbourhood Justice Centre.
The Law Foundation of NSW report – On the edge of justice: the legal needs of people with a mental illness in NSW - is interesting. It discusses barriers for people with mental illness to commencing or participating effectively in legal proceedings. Some of these barriers exist too for people who do not have mental illness. They include -
· Stress
· Problems with time management
· Communication problems
· Features of the courtroom environment
· Failure to identify or recognise a person’s mental illness
(Communication problems may of course result from disability or other factors, including a Non English Speaking Background).
The factor of stress was brought home for me some years ago when Channel Nine’s A Current Affair came to VCAT to film Residential Tenancies List hearings. My job was to sit outside hearing rooms and liaise with litigants and the television crew in order to find suitable cases and seek the parties’ consent to being filmed. So I joined the scores of people waiting for their cases to be called. I remember one woman using a pay phone. She had a small child in a stroller. The woman was beside herself, almost screaming that “this place” was “freaking [her] out”. It did not surprise me that someone would be anxious about coming to the Tribunal, but the degree of her tension did surprise me.
The NSW report’s recommendations included ones for “more flexible service delivery” – for instance, allowing more breaks and time for explanations. The report referred to the advantages of an informal, inquisitorial style of hearing, where the member was obliged to make sure they knew what the issues were so they could help the person provide the information that was required and so the member could make the correct decision. The decision-maker would take a more “hands on” approach and modify processes and even language to meet the needs of a person with a cognitive impairment.
The report also noted that a “more therapeutic jurisprudence-based approach” may also help break down some of the barriers to people with a mental illness participating in the legal system. In the context of problem solving courts, where homeless persons regularly appeared, the NSW report noted a positive perception of the court because it allowed them to tell their story directly to the magistrate.
Concerning the importance of communication, the Journal of Judicial Administration – August 2006 issue – contains an article entitled Improving Access to Justice: Communication skills in the tribunal setting that discusses why communications skills – including listening skills, of course - are important and gives practical advice about desirable communication skills that will improve access to justice.
Kennedy and Tait (quoted in the NSW report) argue that both the physical and psychological needs of court users should be taken into consideration when designing courts.
There is obviously quite a bit more one could say about these topics.
I’ll now say something further about procedure. We can think very broadly about procedure and ask a number of questions –
· How easy is it for people to access the tribunal?
· Where is the hearing to be held?
· Are there issues about bringing the parties together (compare video links in child sex abuse cases, commenced during the 1980s in the Old Bailey and elsewhere)
· Who should preside – a panel or a single member?
· Who should preside – factors including the member’s sex?
· Should the member sit at the bench or at the table?
· How should evidence be taken?
· To what extent is it proper or desirable for member to take control of any cross-examination?
Of course it is our serious responsibility to hear the person. However, it seems to me that what lies at the heart of applying the principles of TJ (from the point of view of procedures and the role of the decision-maker) is first seeing the person. Depending on the subject-matter, our focus can be sharpened by proper preparation; obtaining relevant background knowledge of the person’s history and culture, and his or her disability, if any. During the hearing it includes a multitude of often subtle things – spoken and unspoken. One basic thing is taking the care to pronounce the person’s name correctly.
Seeing the person means taking an interest in him or her as an individual – be the person a party, a witness or even a representative. We all tend to know when we are visible in this way. This interest in the person must be genuine. If we need reminding of this, TJ can remind us. We’ve probably all had experience of job interviews. We can sense it if the interview is just going through the motions. How does it make us feel?
Many people consider that laughter can be therapy. It is interesting to note what the AIJA code of conduct says about conduct of hearings:
“It is important for judges to maintain a standard of behaviour in court that is consistent with the status of judicial office ... It is therefore desirable to display such personal attributes as punctuality, courtesy, patience, tolerance and good humour. The trial of an action, whether civil or criminal, is a serious matter but that does not mean that occasional humour is out of place in a courtroom, provided that it does not embarrass a party or witness. Indeed it sometimes relieves tension and thereby assists the trial process.”
Wexler would almost definitely not have put it quite this way but I imagine he would approve.
Humour can of course be a dangerous thing. The best advice, I think, is to be very careful about this and never to allow the humour to be about the subject matter of the case or otherwise at the expense of any person involved.
I’ve tried to recall some experiences where Guardianship hearings had therapeutic or antitherapeutic consequences.
Not long ago I attended the mental health wing of a public hospital where I met a young man aged in his late 20s. A social worker had applied for VCAT to appoint an administrator to manage his financial affairs. Medical and other reports said that he had schizophrenia and abused various substances. He was homeless and had been involved in prostitution. As a boy he was sexually abused by his stepfather and forced to leave home at age 13. He had attempted suicide a number of times. He was reported to be prone to violence.