5. Practicalities of litigating the right to live in the community
Aneta Genova, Lawyer and MDAC Legal Monitor, with Rusi Stanev, Bulgaria. © MDAC.
“Rusi is leading his independent life and he continues to be keen to take part in our legal activities advancing his autonomy. He still becomes very nervous if he thinks that somebody is trying to restrict his liberty.”
Aneta Genova
Laywer, MDAC Legal Monitor
The present chapter highlights practical issues that lawyers should consider and address in conducting litigation to secure the right to live in the community for people with mental disabilities. Litigation in this area can be complex, drawn out and frustrating for clients and lawyers alike, requiring long-term commitment and a creative and flexible approach. Ensuring the inclusion of people with disabilities in our communities fundamentally challenges an exclusionary approach based on stereotype and prejudice, and targets State structures which are built around guardianship and institutionalisation. As such, it takes on a number of vested interests, including those of guardians, family members, civil servants, staff in institutions and managers, community service providers and government ministries.
Whilst some of these actors may be willing to support a more human rights-based approach, the risk of strong adverse reactions is high. This can lead to a number of risks which lawyers must be prepared for, including intimidation or harassment of the client, pressure to end legal claims, and challenges to the lawyer’s credibility and professionalism. A risk management plan is therefore crucial in such cases in order to ensure that strategic litigation will achieve its aim.
The right to live in the community has a strong human element and lawyers must carefully recognise and manage the real difficulties their clients may be experiencing, including as a result of the litigation itself. Clients can be vulnerable to exploitation, abuse and trauma because of their experiences and their disabilities. Lawyers may well be required to alter their practices significantly in order to create stability and an enabling relationship which can sustain the litigation through to conclusion. The risks and benefits of litigation and the potential adverse effects on their clients must be carefully considered by lawyers, and these should be communicated clearly to clients in order that they can make full and informed choices. Mitigating the potential risks is crucial, but even with the best plan in place issues can occur, and lawyers need to play an active role in reducing their effect to the maximum extent possible.
The conundrums presented in this section are drawn from actual issues which MDAC has encountered in its strategic litigation over the past few years. The section is presented in the form of questions which lawyers may have. Under each question are some ideas which can help the lawyer think through and plan. These are not definitive answers as so much is contingent on local facts, law and the lawyer’s skillset. Rather, the intention is to encourage lawyers to ask these questions to themselves and their teams in the process of case planning and conduct. MDAC’s own learning as an organisation is developing and it welcomes any communication, information and advice from lawyers reading this who want to share their experiences, engage in a conversation or seek advice.