Legal Information And Rights Education As An Element of Care: A Promising Health Justice Strategy

Recognition is growing that health inequities in the United States are oceanic and that health justice matters. From COVID-19 crisis standards of care to vaccine equity to the eviction epidemic to the Flint, Michigan water crisis, widespread health injustices now are robustly, and appropriately, animating mainstream health policy dialogue.

Health justice is a critical concept and urgent goal, yet it remains a young and broad idea. Moving from theory to practice—and realizing all dimensions of health justice, not merely prioritizing “health care justice”—will take time as well as public and policy maker will. Public policy change, especially anti-racist policy change, is foundational and will take time to achieve, but there is much we can do to advance health justice now, especially since knowledge is power. Encouraging communities of care to integrate legal information and rights education is an important and underleveraged strategy to advance health justice.

Preventive Law Support, Like Preventive Medicine, Is Inequitably Distributed

Preventive law is conceptually analogous to preventive medicine; it refers to support that equips people with legal information and insight they can use to make informed decisions about their (and their loved ones’) resources, health, well-being, safety, and security. Just as preventive medicine and public health seek to affirmatively promote health and prevent disease, preventive law aims to promote continuity and predictability in finances and family structures and to plan for potential changes or conflicts that may arise over time—as opposed to offering legal support only when crisis hits. (Importantly, preventive law is broader and distinct from “preventive lawyering.” There are many current and potential delivery mechanisms for legal information and rights education that transcend a lawyer’s direct involvement.)

People with ample means (this author included) can generally access any needed legal advice at critical junctures in life, such as getting married or divorced; welcoming a child; negotiating with a school district around special education obligations to a student; leasing or purchasing a home; paying taxes; navigating family-based or employment-based immigration applications; or planning to live and die with dignity. Indeed, many US households budget annually for preventive law services, can pay the associated fees without difficulty, and benefit from the peace of mind that comes from making informed decisions for oneself and one’s family. Moreover, organizations spanning the corporate, nonprofit, and public sectors generally are staffed with robust in-house legal resources for exactly this purpose, risk identification and risk management around a range of contingencies, at an institutional level.

Yet, the typical US household has no such “general counsel” in place, often only gaining access to legal information and rights education on a charitable or publicly funded basis in the face of crisis—catastrophic illness, job loss, threatened eviction, domestic violence or sexual assault, arrest on criminal charges, and similar events. A recent American Academy of Arts & Sciences report leads off with the sobering reminder that “[t]he civil justice gap—the difference between the number of [people in the US] who need [non-criminal] legal assistance and the very few who receive help of any kind—has been widening for decades.” This gap is tied to many daunting factors, including narrow constitutional bases for a publicly financed right to counsel and the “commodification” of legal support. Broadly speaking, in the US, legal information and support are available to those who can afford it.

Many legal and human services entities (such as attorneys general, public interest law organizations, community organizers, pro bono volunteers, and others) attempt to fill these gaps through “Know Your Rights” sessions, charlas, and public-facing websites that are often accessible in multiple languages. However, the gulf to be bridged is massive. And the absence of timely and proactive transmission of key legal information—such as “you can’t be evicted through a voicemail!”—is especially troubling since having this information can avert future legal—and health—crises.

While impressive efforts to democratize access to legal support unfold, there are synergistic developments in the health ecosystem. As the sector evolves from a “sick care” system toward a true “health care” system, in part by recognizing the importance of social health, large-scale screening of people and panels for health-related social needs (HRSN) is underway.

And when someone screens positive for housing instability, food insecurity, or threats to interpersonal safety, those needs do not exist in a vacuum. First off, health-related social needs such as being behind on rent or utility bills can, if undetected and unresolved, quickly evolve into acute legal needs such as eviction proceedings. Second, one’s ability to stave off a threatened eviction, successfully appeal the unlawful denial of health-promoting Supplemental Nutrition Assistance Program benefits, or secure a restraining order against an abusive partner, is inextricably tied to applicable state or federal law as well as local agency operations and court practices.

This means that many positive screens for HRSN implicate people’s legal rights and remedies in ways they may wish to act on. This also means that comprehensive care will equip people, in a strengths-based manner, with accurate legal information and rights education in HRSN problem-solving contexts. Fortunately, law and policy-informed social care is being tested and measured in several settings in ways that show great promise.

Evidence Is Growing For The Value Of Legal Information And Rights Education As Part Of Care Planning And Delivery—Especially For Children And Families

Too often, health policy dialogues relating to health justice can resemble a discouraging game of cross-sector “hot potato.” Improving drivers of health at both household and population levels is everyone’s responsibility. Thankfully, some cutting-edge communities of care are embracing collective responsibility and deeply structured collaboration by systematically incorporating legal information and rights education into social care planning and delivery.

DULCE (Developmental Understanding And Legal Collaboration For Everyone)

DULCE, an initiative of the Center for the Study of Social Policy, is a universal, evidence-based pediatric care approach that supports healthy newborn development. The approach aligns early childhood systems, pediatric primary care, public interest law resources, and families as partners and is anchored by a community health worker known as a family specialist. Inspired by the compelling findings from a randomized controlled trial conducted at Boston Medical Center and published in 2015, and with support from The JPB Foundation, DULCE now is in implementation and planning phases in nine states. (This author is a co-developer of DULCE.)

Research published in October 2020 explains how families are receiving legal information and rights education from DULCE family specialists (with appropriate companion dosages of consultation and back-up from public interest law resources) and how care teams are becoming more attuned to identifying areas where legal care would be helpful to families. An example of how preventive law can extend beyond preventive lawyering and expand access to justice, DULCE shows promise for impacts that transcend households and reach populations of families.

Housing Prescriptions As Health Care

This housing stability innovation, led by the Children’s HealthWatch at Boston Medical Center, is another promising experiment. In its pilot stage, the intervention focused on medically complex children and brought together a range of partners—including a human services organization and a housing authority—to serve families whose children presented in the pediatric emergency department with attendant housing instability. The multidisciplinary team that engaged in housing-attuned care planning welcomed a small dose of an MLPB attorney to continuously educate the team on families’ legal rights, risks, and remedies, and facilitate pathways to direct legal representation as feasible. The team, including a care coordinator, then put that knowledge into practice in their problem-solving partnerships with enrolled families.

Part of a larger Health Starts at Home experiment convened by The Boston Foundation, this pilot’s initial six-month results included “decreases in the share of children in fair or poor health and in average anxiety and depression scores among parents in the intervention group, relative to the control group,” and suggested that “a population-specific model that integrates health, housing, legal, and social services can improve health-related outcomes at the household level.” After the pilot concluded, the initiative was sustained and extended to reach medically complex adults confronting housing instability as well as families with children.

These experiments feature a common thread: a population health- and panel management-aligned approach to allocating scarce legal resources to strengthen care. The Collaborative Care Model deploys specialists as consultative partners to primary care clinicians screening patients for conditions such as depression; similarly, the capacity-building strategy pioneered by MLPB in the original DULCE trial, and featured in both DULCE and Housing Prescriptions as Health Care, is grounded in continuous legal education for, and consultation with, care teams—to strengthen their ability to better identify risks and problem solve with the people they serve. Just as specialized psychiatric care cannot be offered directly to all people who need it in the current resource landscape, the demand-supply gap for legal care demands creativity around transmission of legal information.

For Integration Of Legal Information And Rights Education, Function Matters More Than Form

Integration of legal education within care teams is not a call to action to connect every person with any type of legal question to a licensed lawyer. On the contrary, it is a lever to enhance team, organization, and system effectiveness in social care at a population level. Integrating these assets within care delivery settings also fundamentally advances equity by putting valuable information in the hands of people navigating high-stakes decisions every day, as opposed to keeping that knowledge “locked up” in a highly specialized professional silo.

Remember that the “L” in medical-legal partnership is for “legal,” not “lawyer.” Lawyers are necessary but not sufficient; they can be wonderful and critical partners, but they alone cannot diffuse empowering legal information broadly enough. Many care team members whose job descriptions include responsibility for social care—whether clinicians, social workers, community health workers, or external social services and community organizing partners—have an important role to play in conveying basic legal information to the people they serve.

On the one hand, law is a highly regulated profession, and the unauthorized practice of law is a crime in most states. Integration of rights education within communities of care cannot be an effort to turn non-lawyers into lawyers. At the same time, there are long-standing concerns that legal professional responsibility rules have themselves served as significant barriers to access to justice. While the medical-legal partnership movement has existed for more than 25 years, there is much to be learned about the relative contributions of lawyers, of allied health workforce members, of lay advocates, and of others—and whether health justice progress might accelerate if that equilibrium were adjusted.

Integration Design That Accounts For Distinct Interests, And Potential Conflicts Of Interest, Is Fundamental

A legal partner who supports a care team invested in legal information and rights education bears witness to the messiness of systems of care. This messiness can feature sharp conflicts with constituents in contexts such as reporting of suspected abuse and neglect, allegations of medical errors, and even assertions that employees have harmed people through misconduct or discrimination. There is an increasingly explicit expectation that communities of care will “lift their hoods” in ways that promote reflection, learning, and improvement. However, they will not welcome legal partners to the table if that makes them more vulnerable in terms of liability or other exposures.

This is one of several reasons why it is critical to demarcate which legal resources are supporting a team/organization/system to integrate legal information and rights education (the “team-facing legal partner”) and which legal resources are uncontaminated in their ability to zealously, and independently, advocate for people and populations who may have legal claims against a range of individuals, organizations, and/or systems (the “consumer-facing legal partner”) operating in a particular community. Both types of legal partners are critical for success, and their boundary lines must be transparently drawn and honored. Meanwhile, any proposed insourcing of legal resources explicitly dedicated to patient/community interests must be carefully considered, since there is a non-trivial risk of intrusion/compromise by institutional risk management concerns.