Triage: talking at cross purposes?
Published 01/02/2019 by Marco Montanaro
This article provides a general overview of triage, exploring what it means and what its implications for access-to-justice services are. After tracing the history of the word 'triage', the article goes on to chart some recent developments in Canada and offers some suggestions as to how a triage mechanism could effectively benefit the access-to-justice sector across the UK.
When thinking of a legal journey, the image of gruelling climbs on even rises and steep limestone hills may often come to mind. All the more so, if the climber is relatively inexperienced and poorly acquainted with the ins and outs of the land. Unfortunately, this is often the case with LiPs, with nobody guiding them through their legal journey and often no idea as to where to start looking for help. Here is where triage comes into play: as a signposting and referral mechanism, it is meant to ease the way for LiPs dealing with often-complex legal issues and to make their uphill climb a less arduous one.
While we have thoughtfully examined various examples of successful triage systems around the globe, such as the Australian national triage tool or the Illinois model, and kept abreast of some new developments likely to expand the potential reach of triage, for instance through implementing online chatbots, we wanted to look more in depth to understand where triage comes from, and how we can start to use its methodology not only to support LiPs but service providers as well.
The word ‘triage’ is more commonly found in the thickets of the medical jargon, where it stands for:
‘the sorting of and allocation of treatment to patients and especially battle and disaster victims according to a system of priorities designed to maximise the number of survivors’. (Merriam-Webster)
This often involves contentious decisions being made under emergency conditions with limited resources. In these situations, it is not surprising that a ‘triage’ or selection process is deemed necessary to allocate resources efficiently and support the difficult decisions that need to be made: for example, dying patients would indisputably be prioritised over both untreatable and less-severe patients.
The advice sector is often equally burdened with invidious choices to make: limited resources and the high volume of clients mean there is rarely enough to meet the overwhelming needs of those who cannot afford private legal services. Litigants in Person often present with an array of different legal problems requiring comprehensive and often technical resolution processes.
As a result, the need for a ‘triage’ system has often been mooted as a potential aid to more effectively managing expanding client lists. However, despite some attempts to introduce triage to the UK Justice system (see the Jeanie Project and LexisNexis’ triage tool), we’re yet to see much of the huge impact triage has the potential to provide.
A few years ago, the founder and Coordinator of the Self-Represented Litigation Network Richard Zorza argued in favour of a holistic approach to triage. He observed that there are actually two triage mechanisms at play on both ends of the legal journey: one regarding how a court will handle a case (the ‘court process triage’) and the other determining how self-represented litigants will receive the services they need to approach the court and all the other players involved (the ‘access service triage’).
However, Zorza insightfully argues, our inclination to treat these two in isolation and focus on eitheraccess service triage orcourt process triage leads to disorientating confusion: our understanding of triage comes to lack analytical clarity and the triage processes themselves often appear ‘fragmented, inconsistent and non-transparent’ as a result. In other words, it is crucial for access service triage, targeting individuals in need of access-to-justice services, to integrate with whatever court systems are currently or may potentially be in place.
Our current system relies on human based ‘assessment’ triage. This role would most often be fulfilled by a lawyer who would review all the available evidence and maybe interview the parties, screen for their financial eligibility to counsel, identify the best-suited court process track, and refer them to any services they may need on the basis of the court process track as identified.
With LASPO drastically reducing the ability for people to seek professional legal guidance, the access to justice sector is looking to technology to fill the gaps in service provision. In the tech-enabled gateway model of triage, the human element is replaced by tech-based gateway which processes all the evidence submitted by LiPs through an established protocol. First, the case would be established and categorised; second, a court process track would be suggested; thirdly, the level of services needed by the litigant would be assessed; and, lastly, an attempt to match the LiP with an actual service provider would be made. Clearly, the tech-based model may be capable of meeting a greater number of needs than the human-based model, which relies on the optimistic assumption that enough assessors could be provided for. Yet the question remains whether a machine could really achieve a full understanding of a case, with all its fine-grained legal subtleties and non-protocolled emotional nuances, and, if so, whether it could do so as efficiently as a human operator.
More recently, the Founding Executive Director of the Law Commission of Ontario Patricia Hughes has reinstated the need for triage to be included as a key part in any systematic approach to providing access to justice. After reviewing many of the steps taken in the legal aid sector towards supporting the neediest, including pro bono clinics and legal advice charities, she writes that:
What is missing is a systematic reconfiguration of how people seeking assistance with a legal problem can enter the system and through a triage process, be directed towards the kind of help they need.
A Canadian Family Law Report was released advocating the establishment of multidisciplinary, multifunction centres, designed as ‘comprehensive entry points’ which would provide ‘information, counselling and services’ (such as legal advice and assistance) to family-law clients. The report reiterates that there is no need for these centres to take on a specific form: what matters is that each one of them is capable of operating as an entry point providing comprehensive legal and non-legal services, either physically on-spot or online, to people confronted with a family breakdown.
Indeed, the report acknowledges the need of family-law clients for non-legal emotional or financial support: any help confined to sterile provision of legal advice may not be enough in this case. This is a crucial point for consideration. We need a more holistic approach to the resolution process that relies on various professionals (therapist, legal advisors and educators, for example) working together towards helping the family-law client out of their crisis.
But this multidisciplinary approach does not have to result in yet more fragmentation. Hughes describes how triage mechanisms could be extended to organically encompass a multitude of sectors. The process would require in-person assistance so as to determine the extent of the problem and to assess whether the individual may be in the position to tackle their legal problem on their own (relying on online information and guidance) or whether support by a legal professional, an adviser or even a trusted intermediary should be provided (see a previous from our blog on intermediaries).
So how could this benefit the UK?
The benefits of properly executed triage are transferrable across jurisdictions:
· providing a clear hierarchy of priorities enabling prompt ‘treatment’ of more urgent cases;
· allowing resources to be allocated more efficiently;
· saving time for those seeking support and cutting down the need for clients to “service jump” between various agencies;
· Teamed with an adequately referral system, triage has the potential to increase confidence in the legal system and sector as well as providing a more holistic service for users.
Thinking in these terms, the value of a triage system appears indisputable, but what it also highlights is that triage is not a static concept serving as the mere technological expression of a process carried out by a human in ideal circumstances. Triage can be so much more than that and it is up to us to define its boundaries.
In this regard, both Zorza and Hughes advance a holistic approach to triage, even if taking holism each in a slightly different sense. Zorza appears to be talking of triage in a vertical sense, urging to consider both the access service triage and the court process triage as the bottom and top segments on a metaphorical vertical line representing the legal journey all the way up to the court. Hughes, and more specifically the Family Law Report on which she relies, takes a step further, devising ways in which Zorza’s access service triage could be expanded so as to include a variety of non-legal service (so horizontally extending the bottom segment in the metaphor above).
But why stop there, if even self-professed holistic approaches could be further enhanced to offer a more comprehensive guidance to LiPs? The more lines are drawn and the more docks joined, the more realistic and efficient any triage system is likely to be.