Triage – a Vital Tool to Increase Access to Justice

“Triage” is a very popular word these days in the context of civil justice reform. It was raised in:

• the CBA’s Envisioning Equal Justice Summit in April as one of the possible solutions to ensuring that citizens have access to justice
• the final report of the National Action Committee on Access to Justice’s Prevention, Triage and Referral Working Group
• the Opening the Dialogue session on the phenomenon of self represented litigants in May

“Triage” is a popular concept but what, exactly, does it mean? I have a feeling that it may mean slightly different things to different people.

Merriam Webster defines “triage” using the medical context as follows:

1: the sorting of and allocation of treatment to patients and especially battle and disaster victims according to a system of priorities designed to maximize the number of survivors

2: the sorting of patients (as in an emergency room) according to the urgency of their need for care

Even more dramatically, Merriam Webster notes that triage involves “the division of patients for priority of care, usually into three categories: those who will not survive even with treatment; those who will survive without treatment; and those whose survival depends on treatment.”

So “triage” originated in the context of medical crises where sorting and resource allocation decisions had life or death consequences. As pointed out by David I. Schulman (and others) in his insightful article on public health legal services, the medical model of triage operates in a world of scarcity. Therefore, he argues, it tends to favour crises and focuses on the emergency room model which selects which people should receive treatment. In the civil justice context, the medical model is similar to the model used by legal clinics and poverty law agencies who are forced to allocate their resources to selected cases. It usually focuses on litigation (“back end” treatment after the event) rather than preventative strategies (“front end”) and it favours allocating resources to the cause that will benefit the most people rather than to a cause that benefits only an individual.

I suggest that the medical model is only one kind of triage and that a broader view needs to be considered. The broader view of triage focuses not just on assisting people in legal crisis but also on reaching people before they have legal problems. Schulman describes innovative programs involving particularly vulnerable groups where legal advisors meet people in the community to deal with the complex web of problems they face and, in particular, to identify their legal risks and, in concert with their health professionals, to develop strategies to reduce those risks before they reach an otherwise inevitable crisis. This is the medical-legal partnership model that began in California to create a safe environment with human rights protections for those with HIV to seek testing and treatment. This program slowed the spread of HIV and contributed positively to public health. Shulman also describes the fascinating and creative multi-disciplinary efforts in both Boston and New York to provide early “legal checkups” for vulnerable populations.

Interestingly, diligent efforts are being made to implement a multi-disciplinary medical-legal partnership model to meet the very complex challenges in Vancouver’s downtown east side.

In the civil justice context I suggest that triage can take many forms, depending on the situation at hand, and that it can span the full spectrum of efforts from prevention to crisis. This broader definition could be described as a process to diagnose/understand a person’s situation/problem(s) and to provide early education, information, guidance, services and referral that best meet that person’s situation and needs (sorting) within the resources available (allocation).

This triage process can occur at one or more stages of a person’s conflict journey including:

1. in the community as a way for citizens to obtain access to the kinds of information, resources and pathways that they need to address the broad spectrum of their needs and problems (sorting out legal problems from other challenges including financial, relationships, health, social services etc.).
2. as the first role of a legal advisor in order to match a resolution process to the nature and scope of the client’s problems and unique needs.
3. the process needed at to assist people who are representing themselves before or during a court action.
4. the steps taken at the outset of a court action to “stream” a claim into the best process.
5. one role of a judge as part of a case management process.

In addition to the medical-legal partnership approach, the first category of triage is similar to the approach used in BC’s Justice Access Centres. An example of how lawyers can use triage is explained in Professor Kristen Blankley’s excellent article on the intersection between unbundling, ADR and access to justice.

The third category encompasses the approaches suggested by Professors Trevor Farrow and Julie Macfarlane to assist self-represented litigants in the court system.

The fourth category is exemplified by some Court rules providing simpler processes for smaller claims. For example, the BC Provincial Court, Robson Square, directs cases into four different streams (including mediation) depending on claim value and case type. The BC Civil Resolution Tribunal proposes to go a step further by using technology and expert systems. The system will stream AND learn as it goes along to make it more efficient each time.

Triage is a concept that can be used in creative ways at many critical points to ensure that the citizen obtains the “right” resources at the “right” time. In future I will try to be more precise about what I mean by “triage” and try to incorporate the broader potential of this tool in the dialogue about improving access to justice.