Justice made to measure: NSW legal needs survey in disadvantaged areas ( 2006 ) Cite this report
Ch 10. Towards improving access to justice: a multidimensional approach
The current structure of legal services
Currently in NSW, a diverse range of agencies provide legal information, advice and assistance for disadvantaged people, including both public, not-for-profit organisations and private organisations. These agencies include:
While there is little evidence-based empirical research on how legal agencies work together in Australia, a number of recent reports have noted a lack of coordination between legal agencies and anecdotal cases of high levels of inappropriate referral, suggesting a lack of clear pathways for clients (Australian Law Reform Commission 2000; Family Law Pathways Advisory Group 2001; Scott & Sage 2001). Consequently, discrete and uncoordinated legal services for different types of legal issues are likely to be less than ideal when people experience multiple legal problems. The present study demonstrated that various types of civil, criminal and family issues tend to co-occur. These types of issues are not only covered by different parts of the law but, as noted above, also tend to be handled by different types of legal services. The present study also showed that people with a chronic illness or disability tended to experience multiple legal issues and have lower rates of resolution. As argued by Forell et al. (2005) in relation to homeless people, the multiple legal issues faced by some people mean that they potentially need to access a variety of autonomous or independently functioning legal services for their different legal issues. These services tend to deal with discrete aspects of their legal problems without necessarily coordinating to address the complex situations they are facing.
Thus, the present study suggests that a challenge for policy makers and legal service providers is to reconcile the need to provide expert, specialised legal services for common and difficult legal problems with the need to provide a more client-focused approach for clients with multiple legal needs. The issue of improving the collaboration and coordination between legal services is addressed in the section Coordinating legal and non-legal services, below.
The current role of non-legal services
To a large extent, legal services in NSW traditionally work outside the networks of human services such as health, social, welfare and housing services. In addition, well-established cross-sectoral networks between legal and non-legal agencies with a specific focus on assisting clients with legal problems appear to be relatively uncommon (Forell et al. 2005; Scott & Sage 2001). Although, following the move in the United States and elsewhere, there have been a number of recent initiatives in Australia involving the integration of human services, these initiatives rarely include formalised collaboration with legal service agencies (see Fine, Pancharatnam & Thomson 2005; Forell et al. 2005; RPP Consulting 2003; Tayler, Farrell, Tennent & Patterson 2004). For example, the NSW Government’s Better Service Delivery Program does not appear to involve legal service agencies (Forell et al. 2005). Thus, legal services tend to operate fairly separately from human services in Australia and any links between them appear generally to be relatively informal and unsystematic.
Furthermore, although as argued earlier, non-legal professionals are well placed to notice legal problems and to act as gateways to legal services given their routine contact with people who have legal needs, they are not necessarily well equipped to perform this role currently. Non-legal professionals often have no legal training, do not necessarily have easy access to relevant legal information, and do not necessarily have the knowledge to provide appropriate referrals to legal services. Recent qualitative research studies in NSW have demonstrated that non-legal workers sometimes feel uncertain about what legal information to provide and what pathways to recommend for legal resolution (Forell et al. 2005; Scott & Sage 2001). For example, such non-legal workers sometimes felt they only had limited knowledge of the law, were fearful of providing incorrect or out-of-date legal information, were unclear about their legal obligations, had difficulty delineating the provision of legal information from the provision of legal advice, did not always have sufficient knowledge of legal services to make appropriate referrals, and did not necessarily have established links with legal professionals or legal services (Forell et al. 2005; Scott & Sage 2001).
Thus, while there is enormous potential benefit in using non-legal professionals as gateways to legal services, the current capacity of non-legal workers to act as gateways to legal information and advice services appears to be rather limited, and any existing links between non-legal workers and legal services appear to be haphazard.
Coordinating legal and non-legal services
As already noted, better coordination among legal and non-legal services may well be beneficial in assisting people with legal needs to use legal services, and in achieving legal resolution for individuals with multiple and severe legal and non-legal problems. In the area of human service delivery, an integrated service approach is increasingly being recognised as having the potential to provide improved access for consumers, increased efficiency with limited resources, enhanced effectiveness, reduced administrative duplication and potential long-term cost savings (Fine et al. 2005; O’Looney 1993).
More recently, the need for better coordination among legal services, and between legal and human services, has also been noted in Australia and other jurisdictions (e.g. Forell et al. 2005; MacDonald 2005; Pleasence et al. 2004b; Scott & Sage 2001). For instance, in the United Kingdom, while some steps have been taken towards the integration of legal and health services (e.g. Legal Services Commission & Community Legal Service 2005), Pleasence et al. (2004b) note that such integration remains in its infancy. They argue there would be benefits in better integration of legal services not only with health services, but also with social services, employment services, education services, and many other government services.
Past research suggests that a coordinated response from legal and non-legal services, where appropriate, is likely to be assisted by clear shared understandings of the complementary roles of different organisations, the identification of aspects of service delivery that are mutually beneficial, adequate resourcing and time commitment to building and maintaining effective relationships, partnerships and referrals, and mechanisms for appropriate quality assurance (Pleasence et al. 2004b; Scott & Sage 2001).
Different models could be used to achieve more coordinated legal and non-legal services in Australia. Increasingly in the area of human services, the phenomenon of service integration is being conceptualised as a continuum, which extends from completely autonomous agencies at one extreme, through a series of more intensive linkages between agencies, to the full integration of agencies to form new units or programs with pooled resources at the other extreme (Fine et al. 2005).
Between the two extremes of full autonomy and full integration, less intensive integration includes cooperative links that establish ongoing ties between parties without surrendering independence. Cooperative links may involve informal or more formal networking and referral between different agencies. In some cases, cooperative links are established within ‘service hub’ or ‘one-stop shop’ models, where different services are located within close proximity or at the same geographic location to enhance customer access and convenience, and to facilitate interaction and referral between services (Fine et al. 2005). Service hubs are seen as practical models of service integration when they are set up in geographic locations that have become a central hub of activity for particular client groups for whatever reason, such as the existence of informal support networks in those areas (Fine et al. 2005).
More intensive integration models, which fall short of full integration, involve planned harmonisation of activities between parties to minimise duplication of tasks and resources. In some more integrated models, case management is used to coordinate service delivery and maintain a client-focused approach (Fine et al. 2005).
In the area of human services, a number of authors warn against a one-size-fits-all approach to service integration, arguing that the degree and type of integration should be tailored to client need and should take into account the degree to which services are complementary (Fine et al. 2005; Leutz 1999). For example, it is noted that while more fully integrated models may be particularly appropriate for people with severe needs, such models tend to be less flexible, and less appropriate for people with less severe needs (Fine et al. 2005; Leutz 1999; O’Looney 1993).
The present study suggests that a one-size-fits-all approach to service integration is also unlikely to be ideal in the area of legal services, given the considerable diversity in the experience of legal need and legal resolution. The findings suggest that a coordinated response among different types of legal services, and between legal and non-legal services, is likely to be particularly useful for people with multiple problems, notably people with a chronic illness or disability. An integrated service approach may be unnecessary for people who experience few, easily resolved legal problems. Furthermore, given the success of some of the present respondents in handling their legal problems on their own, self-help strategies and unbundling of legal services may be as effective as more costly coordinated service approaches for individuals without multiple, complex problems.
One possible step toward better integration of legal and non-legal service delivery would be the provision of basic, routine assessment of the client’s full range of legal and related non-legal needs. Such routine assessment would reveal whether the client requires broader non-legal support services to achieve legal resolution and prevent further problems, and would provide a useful basis for appropriate referral to non-legal services. Such routine assessment could also be used to identify people who would be suited to self-help or unbundled strategies.
The best service integration model for individuals who experience multiple legal needs is a matter for future investigation. Furthermore, different levels of service integration may well be appropriate for different sociodemographic groups who tend to experience different types, numbers and severity of legal needs. Service hubs may be ideal for some groups while more integrated case management approaches may be more appropriate for others. In relation to homeless people, Forell et al. (2005) note that a number of specialist homeless persons’ legal services in Australia are part of service hubs or one-stop shops in that they are located near welfare or community services. They note that such service co-location provides homeless people with easy access to a range of services and provides some scope for a holistic approach to their needs. However, they argue that homeless people would be particularly likely to benefit from a more integrated case management approach that addresses their many complex, interrelated legal and social needs as a package, through closely linked legal and non-legal services.
The present report has argued that increased coordination among legal and non-legal services is likely to be beneficial for people with a chronic illness or disability and Indigenous Australians, given that these sociodemographic groups tend to have multiple legal and non-legal needs. The particular level and type of service coordination suited to each of these groups warrants future empirical investigation. Given that the present study identified different profiles of legal needs and legal resolution strategies for these two sociodemographic groups, it is possible that they may be best suited to different models of service coordination.
The best practice service integration model for strengthening the gateway role of non-legal professionals would also need to be identified through appropriate empirical testing and evaluation. While this model would require the enhancement of cooperative links between non-legal professionals and legal services, it would probably be achievable while maintaining independence between legal and non-legal services. Promoting such a gateway role would require the investment of time and resources to train non-legal professionals to recognise legal problems, to strengthen the networks between legal and non-legal professionals, and to develop and implement effective referral systems between non-legal and legal professionals (Pleasence et al. 2004b; Scott & Sage 2001). The value of ensuring that referral to legal services by non-legal workers is appropriate and efficient is highlighted by recent overseas studies which demonstrate that individuals typically experience ‘referral fatigue’ and give up trying to resolve legal problems if they are referred from adviser to adviser without receiving useful advice quickly (Genn 1999; Pleasence et al. 2004b). The use of non-legal professionals to signpost legal problems requires a simple, effective referral system, just as efficient, appropriate referral is required from generalist legal service providers to more specialist legal services.
Present and past findings demonstrate that the public experiences a high volume of events for which the legal system could be utilised but currently is not. Furthermore, the present study indicates that some individuals face complex, multiple legal problems and past studies show that some individuals do not reach legal services before their situation has hit crisis point (e.g. Forell et al. 2005). In short, in many cases, individuals are failing to access justice, and there is a large ‘dark figure’ of hidden potential demand for legal services and the justice system (Genn 1999).
The present study has suggested a number of strategies for improving access to justice in the areas surveyed, including increasing the level of legal knowledge in the community, the accessibility of legal services and the efficient referral to appropriate legal services. It is important to note that such strategies have the potential to substantially increase the workload of certain legal service agencies, particularly agencies that provide initial legal advice. This potential increase in demand would need to be managed appropriately and may require increased funding of existing legal services or funding of additional legal services.
The various models for increasing coordination among legal services, and between legal and non-legal services, would also generally involve set-up and maintenance costs. Fine et al. (2005) note that the costs involved will vary with the type of service integration model adopted, with more integrated service approaches tending to involve higher set-up costs. They stress, however, that tailoring integration approaches to the needs of clients will reduce unnecessary costs, and that more expensive, intensively integrated approaches are likely to be most appropriate for client groups with severe problems.
Furthermore, in considering the costs of any new access to justice initiatives, it is important to consider potential long-term savings as well as short-term outlays. In the area of human services, integrated service approaches are generally believed to have long-term cost benefits, although stringent evaluations of cost-effectiveness are often not conducted (Fine et al. 2005). Similarly, there may be considerable value in investing in early access to legal information and advice since such early intervention may reduce the necessity for more intensive intervention as people’s problems escalate and trigger further difficulties. Early intervention may well increase pre-court resolution, and hence, decrease the need for expensive court litigation. MacDonald (2005) notes that ‘task forces invariably conclude that litigation is an expensive and inefficient mechanism to resolve civil disputes’ (p. 54). Clearly, it is worthwhile investing in cost-benefit analyses of new access to justice initiatives to identify strategies that maximise client outcomes while minimising costs and resources.
As a number of authors have noted, while there is no reason for investment in legal services to emanate only from the public sector, the effective coordination and targeting of resources is ultimately the responsibility of government (MacDonald 2005; Pleasence et al. 2004b). In Australia, it is worth noting that the funding of legal services is complicated by the fragmentation of state and Commonwealth law. Some legal issues fall within state law while others fall within Commonwealth law. Furthermore, some of the main legal service agencies in NSW receive funding from both the state and Commonwealth governments.5 This state/Commonwealth fragmentation needs to be navigated successfully if greater coordination is to be achieved between different legal services and also between legal and non-legal services.