Independent legal representation and the victims, witnesses, and justice reform (Scotland) bill: A review of potential models of delivery

Chapter 7: Trauma-Informed Practice

Key points

• Trauma-informed practice is vital to meet the needs of complainers in cases of sexual violence and to minimise the risk of re-traumatisation.
• The key components of trauma-informed practice in the context of ILR that emerged from the research conducted for this report were:
• Ensuring that information is conveyed in ways that are alive to the impacts of trauma and that communication styles are adjusted accordingly.
• Bespoke training and ongoing reflective practice drawing upon multidisciplinary expertise.
• Managing expectations about the limitations and extent of the provision of ILR and signposting to other support services if necessary.
• There is a heightened risk of vicarious trauma and burnout for lawyers providing an ILR service. This risk can be lessened through allocating resource and time to peer support, the provision of breaks and reflective supervision.

Clear timelines that minimise delay so that there is adequate time to build the trust and confidence of complainers.

7.1 Introduction

This chapter addresses trauma-informed practice in the context of ILR provision. Issues related to trauma-informed practice featured heavily in our data collection with most research participants engaged in service delivery noting its value and importance specifically in relation to complainers in sexual violence cases. The chapter briefly summarises the principles of trauma-informed practice before turning to the research findings on what it should look like in relation to the delivery of ILR. This concerns issues such as communication skills and the importance of reflective supervision. The chapter also considers perspectives on how to minimise re-traumatisation of complainers and reduce burnout and/or vicarious trauma of lawyers.

7.2 Summary of principles of trauma-informed practice

In recent years, there has been a considerable increase in knowledge and awareness of trauma-informed approaches both across the UK and internationally. Trauma-informed principles are frequently relied upon to minimise the negative impact of trauma and better support positive mental and physical health. Developments in this area build upon pioneering work that has sought to draw attention to the social and systemic context of trauma.^[387] Trauma-informed practice now spans areas of public service provision including prisons,^[388] social care,^[389] healthcare^[390] and youth justice.^[391] In the specific context of sexual violence, trauma-informed approaches have been found to play a key role in minimising re-traumatisation and creating safety.^[392] Some studies also stress their importance for better tackling gendered aspects of criminal justice and the specific mental health needs of women.^[393]

For the purposes of this chapter, trauma can be defined as follows:

Trauma results from an event, series of events, or set of circumstances that is experienced by an individual as harmful or life threatening. While unique to the individual, generally the experience of trauma can cause lasting adverse effects, limiting the ability to function and achieve mental, physical, social, emotional or spiritual well-being.^[394]

In Scotland, the guiding principles for trauma-informed practice have been set out in relevant guidance to the Victims, Witnesses, and Justice Reform (Scotland) Bill as follows:

1. Safety: helping people feel physically and emotionally safe.

2. Choice: giving people meaningful choices, and a voice in decisions that affect them.

3. Collaboration: asking people what they need, and involving them in considering how their needs can be met.

4. Trust: being clear so that people know what to expect and doing what you say you will.

5. Empowerment: validating people’s feelings and supporting them to take decisions.^[395]

These principles also underpin a knowledge and skills framework developed by NHS Education for Scotland. In this framework, the aims, and outcomes of a trauma-informed justice system for victims and witnesses are described as follows:

1. Recognises impact: understanding that witnesses and members of the workforce have been exposed to trauma and that they can be impacted by this in different ways.

2. Minimises harm: the potential for risk of re-traumatisation is understood, identified and avoided where possible.

3. Supports recovery: where possible witnesses experience relationships [with justice agencies] that support their recovery, ability to give best evidence and engagement.

4. Enables effective participation: practices are adapted to the impact of trauma so that witnesses can participate fully and give the best evidence they can.

5. Supports workforce resilience: recognising the impact of working with traumatic material and witnesses affected by trauma and that workers are supported, reducing the impact of vicarious trauma.

6. Trauma-informed leadership and systems: that justice leadership and management of organisations and systems support the first five aims.^[396]

NHS Education for Scotland describe “being trauma-informed” as:

The ability to recognise when someone may be affected by trauma, collaboratively adjusting how we work to take this into account and responding in a way that supports recovery, does no harm and recognises and supports people’s resilience.^[397]

As a step further, being trauma-informed is underpinned by the following principles:

1. Realising how common the experience of trauma and adversity is.

2. Recognising the different ways that trauma can affect people.

3. Responding by taking account of the ways that people can be affected by trauma to support recovery, and recognise and support Resilience.

4. Opportunities to Resist re-traumatisation and offer a greater sense of choice and control, empowerment, collaboration and safety with everyone that you have contact with.

5. Recognising the central importance of Relationships.^[398]

It is noted that while the Scottish guidance is underpinned by five principles (safety, choice, collaboration, trust and empowerment, as described above), some other jurisdictions rely on six. The UK-wide framework, for example, lists cultural consideration as a sixth guiding principle.^[399] It is also clear that the principles overlap and might be described in different ways, as explained by one interviewee when asked about the operation of guiding principles in practice:

So, as we know, this varies. So, for me, the six principles are safety, choice and control, supporting coping, facilitating connections, responding to identity and context, and building strength. So those would be the, sort of, six principles that I would use. And most of them overlap with somewhere else. So, all of them are about safety, all of them are about choices, all of them are about supporting coping. And then there’s some specific ones in there about how do we build those connections with other people and then how do we withhold those assumptions and be curious about what it is that’s happened to them and what they want?^[400]

When discussing trauma-informed practice with interviewees as part of this research, it was clear that the application of the principles involves reflection and thereafter embedding changes to legal practice as a result:

I mean, trauma-informed has become such a buzzword ... a lot of the time, it amounts to, oh, you know, some people have trauma and are sensitive to that ... which is nice but it’s not trauma-informed. You know, it’s like, well, how are you going to change the way you interact with people? How are you going to change what you require of them? How are you going to change what you offer them and the way you offer it? How are you going to change the way you phrase things? And that’s all experience.^[401]

Trauma-informed lawyering has developed in recent years as a way of better supporting clients, ensuring that legal advice provision is sensitive to their needs and helping lawyers to better understand the impacts of trauma on, for example, matters related to evidence and trial procedure. The importance of developing and applying trauma-informed lawyering skills is well established.^[402] This includes, for example, recognising the trauma responses of clients; adjusting to those responses in communication and litigation strategies; practicing non-coercive client-centred lawyering; and being attentive to the risk of re-traumatisation and secondary trauma.^[403] The next section discusses the ways in which interviewees consider that a trauma-informed approach might be implemented in practice in the specific context of ILR provision.

7.3 Communication style and legal skills required

We encountered a variety of delivery approaches across the different models studied, although most combine in-person and remote delivery (by telephone or online) depending on the nature of the case, the needs of the complainer and the geographic location of the complainer and/or relevant court. It seems well established that at least some element of in-person delivery is preferable, where possible, to establish rapport and build the trust and confidence of the complainer.

For example, when considering the necessity of in-person provision one interviewee, based in Australia, noted: “Preferably in person as well, I think it just helps to build a rapport. I’ve done a few over, kind of, a video call and that’s usually at the client’s request. But yeah, face to face is better.”^[404] That said, several interviewees acknowledged that in-person advice and representation can be challenging in more remote geographic areas. In Ireland, an interviewee observed: “We would generally use the victim suites in the courthouse ... Obviously, they’re in the CCJ, that’s great, there’s generally no difficulty getting the use of them. But around the country where those facilities aren’t available, it can be more difficult.”^[405]

When asked for a perspective on effective trauma-informed practice, several lawyers discussed the importance of adjusting communication style to meet the needs of the complainer depending on the nature of the case. This includes ensuring that information is conveyed in different ways and being available to explain complex evidential matters:

We get a lot of calls from victims having received the correspondence saying, what is this? Even though it’s all in the letter. But a lot of people, they can’t take it in, you know, especially when you’re traumatised anyway. And I know for myself, you know, [when] you receive very formal correspondence, sometimes you just want to speak to a human being.^[406]

An important part of adjusting communication style to meet the complainer’s needs concerns creating choice. For example, when positively describing the skills of a lawyer in the Australian context, one interviewee noted:

She … meets victims wherever they are at. She’s like, I can come to you, you can come here, we can meet at a third location, you know, you can pick the space that you feel most safe in. She’ll never call, like blind call, she’ll always text or email to organise a call.^[407]

A trauma-informed expert also commented in this context:

So, I think it’s about choices as much as possible, where can those choices be introduced into the process? I also think it’s about being very clear about what the process will look like and what support can be put in place through the process.^[408]

The importance of never ‘blind’ or ‘cold’ calling clients was also highlighted in the Northern Irish context, where processes are in place to ensure referred complainers are adequately put on notice about the service and can exercise agency in terms of choosing whether to take it up.^[409] That said, the other side of ensuring that complainers exercise agency and make choices as appropriate to their circumstances is that they may not feel able to discuss matters relevant to the trial and/or take up the service being offered to them. One interviewee observed that it is often those clients who “fall through the net” who are those who may need the service most:

They’re the ones not answering the phone, they’re the ones not responding to emails. The phone calls that we have with them are very short, very concise. They say, thanks very much for the information, that’s all I need, no questions. Those are the ones who need the help because maybe they don’t understand what’s happening and they just can’t deal with it at that particular moment in time.^[410]

Lawyers may therefore need to experiment with several types of communication (phone, email, in-person) to see which is most appropriate for the complainer. Relatedly, several interviewees also focussed on the need to be client-centred and to have empathy for complainers, which demands a different approach than private practice, and relates to the need to adjust communication style:

Whereas here, you, sort of, have to be more sympathetic, empathetic and you have to realise that everything you’re doing is for them and everything you’re doing is for the greater, wider, sort of, circle of victims.^[411]

I think one of the things that struck me starting this role was the importance of empathy, the ability to communicate and adjust your ability to communicate, depending on who you’re speaking to.^[412]

Alongside empathy, another interviewee described the “special skills” needed to be able to “deliver news sensitively and authoritatively as well”.^[413] This relates to the principle of safety, where a trauma-informed approach will involve a heightened need to be realistic and honest with complainers about the criminal justice process:

I guess it’s being really clear about what the role is there to do and what it can’t do and being very clear about what will happen when it gets to a place where the legal professional can’t do any more, what that will look like? But I think it’s also about being realistic that safety is a process, so you won’t ever achieve safety with somebody who’s been through trauma but what can the legal professional do to make it more safe for somebody to start to build some of that trust?^[414]

A trauma-informed approach should also, as far as possible, explain clearly what the beginning and end point of the lawyer-client relationship will be and who is involved in the process.^[415] For example, in Ireland, initial engagement may be between a paralegal and the complainer once the solicitor has instructed counsel:

So, there’s an instructing solicitor but in terms of who would be meeting with the complainant and who would be in court, in practical terms in the vast majority of cases, in Dublin in particular, that would be done by a paralegal.^[416]

Clarity around distinct roles at different points, as well as “what the potential outcome is and how you exit”^[417] is particularly important in terms of building trust and safety. However, one of the most prevalent issues that arose in relation to this point was the challenge of complainers seeking legal advice and/or representation outside of the confines of the lawyer’s role in ILR provision. As one interviewee noted: “what we’re seeing is that these women actually need far more support than the discrete assistance of the [ILR service]”.^[418] As discussed further in the next chapter, ILR services situated in third sector settings have the advantage of relying on other services, such as social work and counselling, to help overcome this issue. One interviewee reflected on the need for holistic trauma-informed service provision in considering possible models in the Scottish context:

I think for me, it would be things like a trauma-informed service, that’s a given. So how would you design a system that is a, sort of, wraparound system for people? How can it integrate into advice and services that they might already be accessing I think is one of the things for me, is that sort of seamless process for people.^[419]

A key issue arises in this context, which is highly relevant to the delivery of trauma-informed ILR, in relation to the boundaries of provision. On the one hand, there is the need for the complainer to exercise choice, feel well-informed and confident in their legal representative, matters we have commented in the context of choice of representation in chapter 5. On the other hand, the confines of the role risk undermining principles of trauma-informed practice where clients have expectations that are not able to be met by the service. In this respect, managing expectations, setting out clearly the various stages of the criminal justice process and not straying into areas where advice and representation cannot be provided is said to be critically important. This is especially relevant in Scotland given the narrow scope of the right to ILR proposed by the Bill. This is well explained by the following interviewee in the Australian context:

The client usually has questions about the, kind of, broader criminal proceedings, which we don’t … can’t always necessarily answer … And we’ve, kind of, determined that we’re not the most appropriate person to answer those questions a lot of the time because we’re not party to those proceedings, we don’t have all the information to answer in an appropriate way. I mean, I can give procedural advice and I do that sometimes … saying that you’ll give evidence and the prosecution, you should contact them to find out more information about that ... clients are always anxious to know, like, when things are going to finish and how much longer it’s going to take or that kind of thing. So yeah, … I’m careful not to, kind of, give advice about that.^[420]

A level of frustration about the limitations of service provision was expressed by several interviewees.^[421] One noted, in the Australian context, that only being able to provide representation in relation to sensitive records and not sexual history evidence was challenging and hoped they might be able to “build a more comprehensive service” in future.^[422] Another observed that “we don’t have legal standing in any other part of the prosecution ... there continues to be a lot of noise raised and rightly so in terms of the assistance that victim-survivors need in that process”.^[423]

Related to the boundaries of the provision of ILR, as discussed elsewhere in this report,^[424] there may be other service providers and individuals providing support to the complainer. It is important for lawyers delivering ILR to therefore consider whether they need to facilitate connection to ensure that their legal advice and representation does not operate in a vacuum. As one research participant commented:

I’d always be looking as well, even from the outset, of who else can you bring into this to support the person? Where’s their family, where’s their friends, who is a trusted other person that you can get to know and bring into this, that facilitating connection?^[425]

As part of this process, as discussed above, determining the availability of different services to complainers and how they work to complement each other’s roles is important.^[426] This was observed in the Northern Irish context:

[We] were a little bit unsure, well, what is the difference between an ASSIST NI advocate and a SOLA? Okay, the legal qualification is the main difference. But in terms of practically, what do they do differently? And what if a victim has an ASSIST NI advocate and a SOLA and a prosecution counsel plus PPS plus police? It seems to be it could be overkill, you know. And are everybody’s roles defined or is it just a mess?^[427]

Regardless of the type of delivery and other support roles involved, there was broad consensus that effective trauma-informed lawyering rests upon building trust between the complainer and the lawyer, which often involves taking time to get to know the complainer and the way in which they might be affected by trauma. As one research participant commented:

I think to be trauma-informed … to even think about being trauma-informed, you need to be able to build trust with your lawyer and vice versa. So that’s why I think it needs to be for a longer amount of time, not just as the need arises.^[428]

Having time for clients should underpin the delivery of trauma-informed advice and representation, yet is a key challenge identified by interviewees engaged in service provision. For example, in the Australian context, one interviewee noted that “you’ve got to build a relationship with them and everything. That’s a very short period of time to do that in. Yes, it’s been a bit challenging, I’ll say that.”^[429]

In terms of the more general background experience and skills needed to do the job, the most prevalent experience mentioned was criminal law. Regardless of background experience, it was acknowledged that “there’s still a whole lot to learn because when you’re advising from the victim’s side, it’s a different approach to the law and there’s different types of guidance and there’s different legal arguments and issues that come up”.^[430] The requirement for specialist training over and above experience, as outlined further below, was made clear. As one interviewee put it, “an average criminal defence lawyer sitting in private practice, if they’re given one of these cases, if they agree to take it, won’t really know what they’re doing”.^[431]

Likewise, in the Australian context, while a background in criminal law was considered beneficial, further training was again said to be required to develop a “victim-centred” approach consistent with trauma-informed practice:

So, both of [the providers] ended up recruiting lawyers with criminal backgrounds. So then having said that, there’s had to be time investing [in the] capability of them, you know, upskilling their lawyers in victim-centred practices where a criminal lawyer normally wouldn’t have that kind of background or training necessarily.^[432]

It was observed that lawyers may need to consider being “collegiate, rather than confrontational”^[433] given the unique space occupied on behalf of a victim in an adversarial system. An Australian lawyer similarly commented that some lawyers had not been suited to the role where they had an overly combative approach.^[434] A trauma-informed expert interviewee similarly noted a shift is often required for lawyers in terms of taking a victim-centred approach. This involves having the skill to recognise where “they might miss what the victim’s agenda” is, either because they are “pursuing their own agenda”, or because assumptions are being made about what the victim’s agenda, and relatedly their needs, might be.^[435] This point was echoed from the Crown’s perspective:

[Y]ou know, victims are not some amorphous massive thing that all think and feel the same. They’re all different ... victims think and feel differently on a case-by-case basis. And I think you have to be agile and respond to their actual needs and not throw solutions at them that might be addressing problems they don’t have. And it might not be what they want at all.^[436]

7.4 Training and supervision

The importance of specific trauma-informed training was repeatedly highlighted by those engaged in the provision of ILR. The provision of training, and having some form of accreditation as well as relevant experience to provide ILR, were perceived to be interrelated in our data collection.^[437] Across all models of delivery, lawyers had received some form of training in the effects of trauma and/or discrete issues in relation to taking a trauma-informed lawyering approach. Indeed, several interviewees highlighted the importance of combining knowledge and awareness of trauma responses with practical training on how this might arise in a legal context and what the appropriate approach would be in different scenarios.^[438] This involves a multi-disciplinary approach:

Lawyers in this space need to draw on reflection in counselling and social work. It’s not like normal legal supervision where you just look at cases and outcomes, you also have to look at the process and at yourself and what you’re bringing to the space and learning from your own practice.^[439]

The data collection shows that trauma-informed training should include different ways of communicating to people with varying needs from diverse backgrounds, especially for example considering the different impacts of sexual violence with respect to culture and faith communities, and on those with different levels of education.^[440] This also includes ensuring that training covers shame, and the complex impacts of shame, so that lawyers understand how it might affect a complainer’s approach or decisions they make throughout a case.^[441]

The importance of reflective practice arose as a key theme in relation to supervision. Reflective practice can “nurture a strong professional commitment to access to justice and ethical action”,^[442] and has been found to minimise the likelihood of vicarious trauma.^[443] As one interviewee highlighted, reflective practice embraces the ability to reconsider actions in hindsight and think about what might be done differently in future:

So maybe having some kind of feedback loop from the people that they’re working with to say how was that, what could have been done differently, what did you need, what was helpful, what wasn’t so helpful?^[444]

In terms of barriers in relation to the provision of training, as one interviewee commented in the Irish context, it is more difficult to have oversight of independent counsel and, in such circumstances, it was important to make training a prerequisite for appointment to the panel of counsel.^[445] Compulsory training for lawyers delivering ILR is also a requirement in Canada, as another interviewee commented in the Canadian context:

Our minimum is that the lawyers have to participate in a half-day training on trauma-informed practice and specifically on how to apply those principles, to working with survivors. So, we offer that in-house, it’s one that we’ve developed and can facilitate ourselves.^[446]

Nonetheless, it appears more challenging to engage in ongoing monitoring and or embed reflective practice in non-salaried models (roster system or private practice) as compared to salaried models, as we explore further in chapter 8. One way of overcoming this is to allocate experienced mentors so that junior lawyers can shadow more senior lawyers, which is a scheme that has been recently scoped in Canada.^[447] Another way of mitigating any risk to the quality of the service provision is to have a relatively small pool of lawyers delivering the service:

So, we’ve had some issues of reports of concerns. And so, we are trying to organise some added training and then also perhaps some more oversight in the role so that we can make sure that it’s the right people doing the work. But we’ve basically just, kind of thinned out our roster of lawyers doing the work to make sure that it’s a good quality of representation as well.^[448]

In the context of the amount of training and supervision required, another interviewee commented on the levels of funding needed to ensure that lawyers with a “decent skill level to conduct these matters” and who are also “relatively accomplished advocate[s]”.^[449] In this respect, the interviewee raised an equality of arms issue given the skill and experience of advocates who might be opposing their submissions in court:

[A]s you know, our role as an ILR lawyer, coming up against experienced trial advocates in the [prosecution] who they want to win, the defence want to win. And then somewhere in between we’re saying, you know, what about the victim? So, you need to be fairly strong-willed and able to go … and that’s in the backdrop of pretty confronting information that you’re reading.^[450]

A final challenge in relation to training is the risk that it is perceived as something to be completed rather than being effectively implemented in practice. Although one interviewee highlighted the importance of standards being “achieved and maintained”^[451] with respect to trauma-informed practice, another pointed to the danger of it just becoming another box-ticking exercise.^[452] Such an approach would fail to sufficiently embed trauma-informed practice into the culture of organisations.

7.5 Minimising re-traumatisation

There is a higher risk of re-traumatisation for complainers in sexual violence cases where they feel out of control of the process and issues are not properly explained to them.^[453] Re-traumatisation also has the potential to adversely impact upon the ability of complainers to provide best evidence at trial,^[454] and can increase the risk of complainer withdrawal from the criminal justice process.^[455] Many of the interviewees engaged in service delivery were alive to the way in which a trauma-informed approach might help to minimise the risk of re-traumatisation.

As a first step, interviewees noted the importance of recognising vulnerability. Many of the trauma-informed lawyering skills depend on this as a first step in order to appropriately adjust to the needs of the complainer. This involves an awareness of the impacts of sexual violence at both individual and systemic level:

And I think in this particular case where women are being legally compelled to expose parts of their history or exploration or discussion in court, I think it’s the recognition of that vulnerability. And so, I think anything that a legal professional can do to acknowledge that vulnerability and how uncomfortable it must feel and to be constantly asking what do you need to feel more comfortable.^[456]

Another interviewee observed that the recognition of vulnerability needs to be throughout the life of the case to ensure that any risk of re-traumatisation is identified and minimised at each stage of the process. Again, the importance of reflective supervision was highlighted in this context:

We do that also through case supervision, through talking, centralising the client and the work we do, talking about the things … even how they’re presenting at appointments, how they’re presenting on the phone, talking about the impact of trauma on that.^[457]

The importance of clients not feeling out of control and having information available to them was also observed in the context of minimising re-traumatisation. In this respect, one interviewee stressed the need for consistency:

It’s all about the importance of being predictable to the clients, planning things. If you’re going to call at four o’clock, you call at four o’clock. If you can’t call at four o’clock, you let them know. You know, the consistency of your own behaviour and all of that.^[458]

One interviewee highlighted that lawyers providing ILR should ensure they only ever ask for information that is needed.^[459] This relates to the need to also minimise the number of times a complainer is asked to tell their story, which can be better managed when lawyers have adequate time to prepare for cases and where referrals are made with sufficient notice.^[460] Another highlighted the importance of considering the risk of re-traumatisation when sending written correspondence and commented on the need to achieve a balance and to think carefully about drafting: “We definitely want to keep victims posted on what’s happening with their case, but you don’t want to overwhelm them either.” ^[461]

In some jurisdictions, particularly Ireland and Australia, interviewees discussed the problem of late referrals and/or the delayed sharing of information by the prosecution as a barrier to the effective implementation of trauma-informed practice.^[462] As discussed above, it is important to build trust and confidence, which can help to minimise re-traumatisation so that a representative is alive to the issues in the case. This is especially challenging in non-salaried lawyer models:

Some of them are Friday evening for Monday. So, what happens, then they’re scrambling around, trying to get a barrister to do it. It’s not fair on the victim. Now, fair enough, when the barrister comes, they’ll do as good a job as any but in reality, you can’t … the reality of it is, if you have … the shorter time you have with a vulnerable witness, the shorter time you have to build a rapport with them.^[463]

Finally, an interviewee observed the importance of understanding that re-traumatisation cannot necessarily be prevented: “It would be naïve of us to assume that we could prevent re-traumatisation because otherwise we would need an overhaul of the whole legal system.”^[464] The key is to work to minimise trauma as much as possible, while recognising that there are aspects of the trial process that will inevitably be re-traumatising for complainers, and providing, or signposting to, support as appropriate in the circumstances.

7.6 Minimising vicarious trauma

Lawyers working with vulnerable clients tend to disproportionately experience stress and burnout related to vicarious trauma.^[465] Frequently listening and responding to details of traumatic events, including often graphic evidential matters, affects all lawyers and, for some, may have harmful or life-changing consequences.^[466] It has also been observed that the risk of vicarious trauma for lawyers is heightened by “general characteristics of the legal profession such as the stigma attached to experiencing mental illness, the competitive and adversarial nature of the profession, and the traditional lack of training, self-care and supervision”.^[467] For interviewees engaged in service delivery, many reflected upon the way in which they try to deal with the risk of vicarious trauma and burnout.

Several interviewees discussed the need to take time away from cases and clients, for example by way of short career break, or a sabbatical, or ensuring day-to-day that there is time to decompress after meeting clients: “I find it is a lot, it takes a lot of energy to meet with the clients. And afterwards, I just feel like I just need to shut off for a bit.”^[468] Another interviewee similarly observed the need to put support in place for lawyers so that their work does not overly impact upon personal and family life: “Just given the nature of it, it can be a lot for the staff doing it, to ensure that they’re not taking on anything and bringing it home unnecessarily.”^[469]

The importance of reflective supervision was raised again in the context of minimising vicarious trauma: “We’re careful of vicarious trauma and making sure [the lawyers] are well supported and they have debrief processes.”^[470] Having time to discuss issues in a confidential and safe space with colleagues is critical in the context of ILR and this is perhaps especially the case in salaried models where the nature of the work is inevitably more intense and is more likely to form most, or all, of a lawyer’s caseload. Therefore, it is important to pay attention to ensuring that workplace opportunities are available for lawyers to adequately anticipate and minimise vicarious trauma. As one commentator notes:

A trauma-informed approach may provide lawyers with better opportunities to ‘survive and thrive’ by overcoming stigma, maximising protective strategies, normalising the effects of indirect exposure, ensuring the workplace is informed and has supportive systems and developing individual resilience to clients’ trauma as part of regular, day-to-day legal practice.^[471]

This aligns with recent research, which highlights the importance of senior management being proactive in overcoming the obstacles to embedding trauma-informed workplace culture.^[472] The barriers identified include time and work constraints, budget and inadequate technology.^[473] Relatedly, in terms of funding, some interviewees expressed frustration at the lack of resource available to truly embed trauma-informed practice, which includes adequately dealing with vicarious trauma:

The government comes up with these concepts and they think, great, you know, we’ll fund you for one lawyer. But it doesn’t understand all the other things that need to go around actually running the service. They fund the lawyer and think they’ll be okay, what about their support and how they can really manage themselves to deal with this kind of trauma that their clients have experienced. So yeah, it’s a very simplistic view of what it takes to run a trauma-informed service that we’re trying to offer.^[474]

Another interviewee observed in this context that where lawyers can work in pairs or teams they can “upskill each other, learn ... actually have somebody else doing the same role that they can just talk to each other and support each other”.^[475] Notably, peer support was mentioned by several interviewees as an important way in which vicarious trauma might be minimised: “Mostly, we do debrief with each other. So yeah, that’s pretty much it. Debrief with each other. I debrief with other lawyers as well, like, other Legal Aid lawyers.”^[476]

Another interviewee discussed compassion satisfaction as a way of mitigating burnout. This refers to the satisfaction derived in the workplace from helping and supporting others:

I think the peer-to-peer support really does play a role in that. But I also think things like feedback can also play a role in that, if we talk about, you know, compassion fatigue versus compassion satisfaction. And I think to know that even when a case hasn’t been successful, to know that somebody has had a successful time in that relationship can mitigate some of the effects of their own frustrations with the system.^[477]

It is noted that studies tend to show that higher levels of compassion satisfaction correlate to lower levels of burnout.^[478] There is also a greater likelihood of higher levels of compassion fatigue, rather than satisfaction, the longer people work in areas where the risk of vicarious trauma is high.^[479] Burnout is a common theme in studies of victim advocates, which in turn means that they may be less able to meet survivors’ needs and cope with the specific challenges of the work.^[480] The data collection demonstrates the importance of creating workplace opportunities to anticipate and minimise vicarious trauma, as well as providing support to deal with it when it arises. Establishing a community of practice for lawyers delivering ILR will promote the exchange of learning around best practice and provide support to minimise vicarious trauma and may improve rates of long-term retention in roles and help lawyers to develop specialist skills in trauma-informed practice.

7.7 Chapter summary

This chapter has analysed data relevant to the ways in which trauma might arise in the context of ILR provision, the principles that should guide a trauma-informed approach and how those principles are currently being applied and upheld in the models studied. Working with complainers in cases of sexual violence demands a unique set of skills and a different approach to casework and to clients. It is clear from the data collection that a generalised approach without adequate training and ongoing reflective supervision will fail to meet the needs of clients, and will not adequately protect lawyers from the risks of vicarious trauma and burnout.

Several important themes can be drawn from the research. First, the need for clear timelines that minimise delay so that there is adequate time to build the trust and confidence of complainers. Secondly, ensuring that information is conveyed in ways that are alive to the impacts of trauma and that communication styles are adjusted accordingly. Thirdly, the need for bespoke training and ongoing reflective practice drawing upon multidisciplinary expertise. Finally, managing expectations about the limitations and extent of the provision of ILR; and signposting to other support services, as necessary. It is clear that being properly trauma-informed requires more than simply the completion of one-off basic training.

As a final point, any model of ILR must also pay attention to the heightened risk of vicarious trauma and burnout for the lawyers providing the service. Several proposals were made by interviewees in this respect which include allocating resource and time to peer support, the provision of breaks and the importance of reflective supervision.