The term “trauma-informed” is being increasingly used in the legal world. However, as awareness and dialogue are increasing about the nature of trauma and the impact trauma can have on behaviour, it is important to become familiar with what it means to take a “trauma-informed” approach when acting on any side of a conflict and/or legal matter.
In the regulatory context, this has particular relevance for regulators in terms of the manner in which complaints are investigated, the way complainants and respondents are interviewed and putting procedural parameters and accommodations in place for hearings wherever possible.
What is “trauma” and what impact does it have?
The Substance Abuse and Mental Health Services Administration (“SAMHSA”) defines “trauma” as follows:
Individual trauma results from an event, series of events or set of circumstances that is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual’s functioning and mental, physical, social, emotional or spiritual well-being.
– SAMSHA’s Concept of Trauma and Guidance for a Trauma-Informed Approach, Substance Abuse and Mental Health Services Administration
Research has shown that trauma can impact the brain in the following ways:
- by affecting the Broca area, which is the part of the brain responsible for speech and which can make it more difficult for a trauma survivor to speak about the traumatic event
- by causing the hippocampus to become smaller and disrupt its structure which can affect a trauma survivor’s attention span, learning ability and memory
- by affecting the connectivity in the corpus callosum, which connects the left and right side of the brain and affects the brain’s ability to coordinate information
- by affecting the amygdala, which can make a trauma survivor more likely to react to triggers
- by reducing activity in different parts of the cortex frontal lobes, which can lead to a trauma response even in the absence of danger
- by changing the brain’s reward pathways, which can mean that a trauma survivor may derive less pleasure from activities and may appear unmotivated
– Sharp Workplaces Reference Manual for Lawyers: Advising clients with workplace sexual harassment complaints, Community Legal Assistance Society, Vancouver B.C. (Chapter 3: Trauma-Informed Practice)
What is a “trauma-informed” approach?
A trauma-informed approach “takes into account an understanding of the prevalence and effects of trauma in all aspects of service delivery, and place[s] priority on the individual’s sense of safety, choice, empowerment and connection.”
– Trauma-informed Practice Guide, British Columbia Centre of Excellence for Women’s Health and Ministry of Health, Government of British Columbia
Some key principles of a trauma-informed approach include:
- Safety – by promoting physical, emotional and cultural safety because individuals who have undergone trauma often feel unsafe as they have previously experienced abuse of power in different types of relationships
- Trustworthiness and transparency – by building trust through predictable, consistent and transparent actions
- Peer support – by actively engaging those who may need the service in the planning, implementation and evaluation of the services
- Collaboration and mutuality – by acknowledging the inherent power imbalance in the client-service provider relationship and attempting as much as possible to level the field and provide a voice to the client to participate in their own journey
- Empowerment, voice and choice – by recognizing and acknowledging the current strengths and skills of a client and building on them to obtain a positive outcome
- Cultural, historical and gender issues – by moving past cultural and gender stereotypes and addressing historical trauma
– SAMSHA’s Concept of Trauma and Guidance for a Trauma-Informed Approach, Substance Abuse and Mental Health Services Administration
How do we apply a trauma-informed approach in the context of a regulatory proceeding or investigation?
Depending on the person involved and the subject matter of the proceeding, it may or may not be obvious whether someone has experienced trauma. The following tips can be employed during a regulatory process to attempt to identify and adequately address trauma:
- Inquire about any history of trauma and facilitate a supportive discussion while being focused on the present moment and showing empathy – as opposed to sympathy which can be seen as condescending
- Check in with the individual, allow them to set the pace, slow down and take breaks as required
- Allow a support person if possible and ensure the setting is as comfortable as possible
- Make time for questions and/or debrief as necessary
- Be flexible when scheduling different parts of the process
- Write things down, so the individual does not have to rely on their memory
- Involve the individual in the decision-making process as much as possible, and keep them updated as to what is happening and when
- Integrate cultural perspective when needed
Key takeaways
- Parties on all sides of a regulatory hearing should be familiar with the concept of trauma and the impact it can have on an individual’s behaviour
- For regulators, there are a number of tips when interacting with complainants and respondents that can be helpful for identifying trauma and putting safeguards in place to bring an investigation or hearing into alignment with a trauma-informed approach
- Procedural accommodations can be made wherever possible to take into account everyone’s experience with trauma, and all parties should work to identify these in advance of a hearing in order to minimize and ideally eliminate any re-traumatization
For more information on how you might implement a trauma-informed approach in regulatory proceedings, please contact one of the authors or a member of our Administrative & Public Law or Regulated Professions teams.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
Share
