10 Best Practices

• Don’t rely on your client to coordinate communications with health care providers about their role in her legal case
  This is a recipe for miscommunication, especially when representing clients not fluent in English, and more fundamentally given the power imbalance between clients and the medical and legal professionals serving them.  The immigration lawyer must conduct these communications directly; the client should not be an intermediary.
  
• Conduct some due diligence about your client’s health care treatment team (and individual providers’ role in your client’s care) before contacting any health care providers
  Ask your client to list all of the health care workers he interacts with, and to detail the type and frequency of his contacts with each team member.  In the absence of this information, you may assume that a doctor has more information about your patient than a nurse practitioner, or that the psychologist has more contact with the patient than the social worker, but these assumptions often are wrong.
  
• Don’t assume that the health care provider is accustomed to receiving contacts from lawyers on behalf of patients
  When you make your first contact with the medical professional, take the time to briefly but clearly explain who you are in relation to the client, why you are contacting the clinician, the legal context of the request for evidence, and so on.  The clinician will appreciate this greatly.    
  
• When trying to reach health care providers, don’t be afraid to page them
  Medical professionals use pagers in the same way that lawyers use telephones and email; in the medical arena, paging someone is not just reserved for emergencies.  It often is simply the most effective way to reach a busy clinician who is rarely near his or her telephone or computer.  (Also, once you reach the clinician, ask her directly what the best way to reach her is going forward.)
  
• Make sure your client has executed a release permitting the health care provider to speak with you
  Some attentive clinicians will require a copy of such a release before communicating substantively with you. 
  
• Give the health care providers plenty of notice of relevant deadlines
  Clinicians frequently (and legitimately) complain that they have been asked for affidavits or live testimony on short notice.  While several weeks may feel like a lifetime to lawyers, it is viewed as a last-minute request in the medical arena, and breeds a lot of negative feeling about working with lawyers on behalf of patients.  More importantly, poor communication between the lawyer and the clinician’s about deadlines can result in an absence of clinical evidence that ultimately subjects the client’s case to great legal risk. 
  
• If you are having trouble reaching a health care provider, don’t delay in seeking help
  Every institution has channels – formal and informal – for troubleshooting communication gaps. 
  
• If you anticipate needing your client’s medical records, contact the health care institution’s medical records department ASAP – do not assume you can obtain the documents through an individual health care provider
  Each health care institution has different policies and practices regarding the accessing of patient medical records, and waiting periods are usually on the order of months, not days or weeks.
  
• Don’t respond defensively if the health care provider appears to challenge your priority-setting on behalf of the client
  The lawyer’s priority is the success of the immigration case, and the clinician’s priority is the patient’s health and safety.  These goals are not mutually exclusive, and generally overlap.  However, for a variety of reasons, a clinician may question why one issue is taking priority over another in the legal case.  These questions generally originate from the best of intentions; clinicians are focused on the patient’s ability to meet her basic needs (thus, in their eyes, for example, obtaining a work permit is paramount where possible).  Also, the client may be sharing concerns with the clinician that she has not shared with the lawyer, creating a disconnect in the perception of priorities.  Lawyers can engage constructively in these conversations with clinicians and still ultimately maintain the strategic priorities necessary to the success of the legal case.
  
• Where possible, take additional steps that will help demystify you and your role for the health care providers serving your client
  Consider picking up the psychiatrist’s completed affidavit in person at her office, so you can shake hands and introduce yourself in person.  Small steps like this are an investment in what likely will be a career-long series of collaborations between you and the clinician.

These strategies should be viewed as essential ingredients – not collateral considerations – to successful representation of clients whose cases involve clinical evidence. 

Samantha Morton, Deputy Director of the Medical-Legal Partnership for Children and consultant to BCRHH