Disabled Patients' Wishes Ignored

An interesting article (originally from BostonGlobe.com) about the tendency of Massachusetts courts not to honor the rights of those ruled incompetent.

Abortion ruling raises fears among mental health advocates

Respecting Your Disabled Clients' Head Space

     Recently I had a client referred to me by his wife, who warned me that he was a “tall, proud man, who wasn't comfortable being labeled disabled.”

     I've written here about how the various laws around disability have “labels” or definitions that individuals need to meet before they can be protected under the laws. I've encountered numerous clients, as well as friends, who are not comfortable yet with the idea that they fit into some of these definitions. It's not surprising when, for instance, to be disabled for the sake of Social Security benefits, a person needs to prove an “inability to perform substantial gainful activity.”

     People want to work. They want to be useful to society. I am casting people with some broad strokes here, but overall, it's true. It's far more appealing to be able to perform substantial gainful activity than to not be able to. But most of the laws demand that folks first admit they are unable, not only to the courts, but also to themselves, their families, and society. It's no easy acknowledgment.

     The question for me then is, how to meet my clients in their own mental space, respecting where they are now with accepting their disability? I've had disabled good friends come to acceptance of their disabilities over the course of years, so how could I expect anything else from my clients?

     In the case of the “tall, proud man” I mentioned at the outset, as comfortable as his wife was with his disability and the tricky label it came with, she wasn't my client. I told her I'd have to respect his head space, too. One skill I employed when he and I did eventually speak on the phone was the not-to-be-overlooked one of listening.

     I could push the laws on him all day, tell him he was disabled, and could take advantage of Social Security Disability benefits, but all that was going to fall on deaf ears if he wasn't yet comfortable with his disability. The more I listened, the more I let him talk, the more information he gave. He told me of the struggles, and I listened.

     I also made certain I used my vocabulary around disability with as much ease as I could muster. Being disabled can be a real pain in the butt, from the physical limitations of it to the way the world is designed (overall) for able-bodied individuals. I talked with him about some of that with the same matter-of-factness as I might talk about long lines at stores during Christmas. The more I did that, the more he did, too.

     Lastly, I shared with him some of the experiences of other clients and my friends who are disabled. Oftentimes, when someone's not yet ready to see themselves as disabled, they think they're alone—that no one else has dealt with this pain-in-the-butt situation before. While every disabled person is different, many of the struggles of being disabled in an able-bodied world are similar. I like to think that hearing about others' struggles gave him the sense he was not as alone as he originally thought.

     All of this is to say that respecting your client's head space is an art, not a science. It's requires you to be one part listener, as well one part gentle nudge, and a whole lot of other things in different measures. If they're not ready to be a part of that process, there's nothing you can do. If they are ready to dialogue about what you can do as their disability attorney, then some of what I've mentioned might help.

     That tall proud man is now my client. We got here through conversation that was messy and slow. My next client will be different. But I am ready when they are.

Reasonable Accommodations under the Americans with Disabilities Act

I was recently asked by another attorney whose specialty lies outside disability law about the legality of discrimination based on disability when it came to a public employer. The protections provided by the ADA are meant to give people with disabilities a legal remedy when they encounter discrimination in public spheres such as in employment services rendered by states, and public accommodation through more accessible design in environment and policy.

Specifically in areas of employment and state services, the ADA codifies that if an individual is otherwise qualified for a position or services, then he or she may request reasonable accommodation from their employer or State. ADA, 42 U.S.C. §§ 12101-12117 (1994).

Reasonable accommodations can mean changing the organization of a position within a company, changing hiring practices that exclude people with disabilities, and/or modifying policies and services to make them more accessible for people with disabilities. Accommodation does not have to be made in all cases as the ADA also states that the accommodations must be reasonable.

If an accommodation causes an “undue hardship” for the entity, such that the modification would require “significant difficulty and expense,” then it would not be considered reasonable. Olmstead v. L.C. 98 US 536, 7.