When the Treatment Worsens the Illness

The link between legal and health problems


When the Treatment Worsens the Illness

Are legal problems bad for your health? The intuitive answer is “yes, obviously,” but what do we know about the interaction between legal problems and health problems?

Recent access to justice research, both in Canada and worldwide, has shown a connection between unresolved legal problems and health. The 2019 World Justice Project report found that 29% of people around the world have experienced “physical or stress-related ill health” as a result of a legal problem. The Canadian Forum on Civil Justice’s Cost of Justice Project found that of the almost 50% of adults in Canada who experienced a significant legal problem over a three-year period, 19% also reported a physical health problem related to that legal problem. The number for mental health problems is even higher: over 50% of those who faced a significant legal problem suffered mental health difficulties as a result.

This research suggests that unresolved legal problems can contribute to physical and mental health problems, but research also suggests that the very process of trying to solve legal problems can produce health difficulties. Known as “critogenic harm” (that is, harm caused by law), research on the harmful health effects of litigation has grown in recent decades but is still a patchwork. This is a difficult topic to research — in part because of the challenge of teasing apart harms caused by litigation from the underlying problem, and in part because of difficulties in establishing causation instead of correlation.

A 2017 paper by Michaela Keet, Heather Heavin, and Shawna Sparrow of the University of Saskatchewan College of Law gives an excellent overview of this topic.1 Although litigation can have “therapeutic benefits,” they note that it is often associated with physical and emotional harm. They discuss four examples of situations where the risk of adverse health effects is particularly pronounced: pain-related litigation, sexual assault and harassment trials, divorce proceedings, and claims involving professional negligence and malpractice. Although these situations are different, the research appears to suggest that litigation can often complicate or prolong recovery from the underlying events. Litigation is associated with increased pain and disability for some chronic pain patients, can exacerbate or perpetuate health problems caused by sexual assault or harassment, can amplify psychological distress during some divorce proceedings, and can have significant mental health effects for both plaintiffs and defendants in malpractice cases.

These examples reflect the sparse nature of research on critogenic harm — this is not a comprehensive list of situations that cause injury. But they suggest some commonalities. Litigation is stressful, and that stress can significantly affect individuals whose predispositions or situations make them particularly vulnerable to the negative effects of stress. Recent epidemiological studies suggest that around 70% of the population have experienced at least one traumatic event sufficient to cause Post-Traumatic Stress Disorder (“PTSD”). Lifetime PTSD rates in Canada are estimated at around 10%. Statistics Canada has reported lifetime mental health and substance use rates in BC at around 36% of the population.

These numbers should give us pause. They mean that our clients are at risk of collateral harm from the services we provide. What should we do? One step is greater commitment to trauma-informed practice, which has been written about in these pages before. Another is to communicate pro-actively with clients, and to cultivate relationships with health and mental health professionals for assistance as clients go through litigation. And we should remember that while litigation is often stressful for our clients, it is likely much more so for self-represented litigants. As a profession dedicated to the public interest, we must do better.

1 Michaela Keet, Heather Heavin & Shawna Sparrow, “Anticipating and Managing the Psychological Cost of Civil Litigation” (2017) 34:2 Windsor YB Access Just 73. Other citations for this article available from the author. |