TJ in Elder Law – Client Loneliness as a “psycholegal soft spot”

In this guest blog Heather Campbell considers how the therapeutic application of the law – the role of legal actors and application of legal rules and procedures – may improve therapeutic and legal outcomes for older adults…

Loneliness is an invisible affliction that most of us have experienced. For many, it is often a transient feeling that eventually subsides. For others, however, it is an unrelenting emotional condition that has long-term negative effects on mental and physical health. In these circumstances, loneliness can be as dangerous as smoking 15 cigarettes a day.[1] The emotional blight has also been associated with depression, suicide, dementia, diabetes, frequent visits to the emergency department, and early institutionalization.[2]

In addition, loneliness can contribute to maladaptive social cognition (automatic negative thoughts), condemning the sufferer to paradoxically self-defeating behaviour.[3] For instance, compared to non-lonely people, lonely individuals are not only more likely to expect rejection from others, but they also tend to behave in the very ways that increase the likelihood of such rejection.[4] Lonely people also have higher interpersonal mistrust and lower feelings of self-worth.[5] These factors contribute to a behavioural confirmation loop; that is, the chronically lonely person becomes trapped in a vicious cycle of loneliness.[6] In short, they end up pushing people away, despite simultaneously desiring those social connections.[7]

In recent years, there has been a flurry of interest in combating loneliness, with several awareness campaigns drawing attention to the growing public health concern. Intervention strategies are also popping-up across many parts of the globe, each with varying degrees of success.

One area that has attracted little attention, however, is the legal significance of loneliness. There are anecdotal reports that loneliness may place some individuals at a heightened risk of financial exploitation, but generally speaking, there is scant writing examining the legal implications of loneliness. As the modern emotional epidemic claims more victims, it is important that lawyers recognize loneliness as a potential “psycholegal soft spot” affecting their clients’ legal situations.

Psycholegal soft spots

Stolle et al describe psycholegal soft spots as “social relationships or emotional issues that ought to be considered in order to avoid conflict or stress when contemplating the use of a particular legal instrument.”[8] The concept integrates therapeutic jurisprudence and preventive law, and it specifically builds upon the notion of “legal soft spots,” which refers to factors that may make clients vulnerable to future legal problems, such as a lawsuit.[9] Psycholegal soft spots, on the other hand, are areas where legal issues, interventions or procedures may have negative (or positive) implications on clients’ psychological well-being.[10]

In this blog post, I explore loneliness as a psycholegal soft spot. While the emotional malady can affect clients of all ages, I focus on the elder law context.

Loneliness as a psycholegal soft spot

The vast majority of elder law literature (in North America) focuses on clients whose capacity to make legal decisions may be diminished, perhaps because of dementia, delirium or other cognitive impairment. There is significantly less attention on “sub-incapacity” constraints that may affect decision-making. Instead, we are often quick to simply say that capable older adults are free to make objectively foolish decisions. For the elder advocate, questioning such “bad” decisions is taboo. Capable elders, after all, have the right to live at risk.

But what if an elder is stuck in the vicious cycle of loneliness, and is, for example, sternly refusing to accept objectively needed home support? It can be tempting to dismiss them as a curmudgeonly older person, or more favourably, as a feisty and fiercely independent senior. Service providers may pejoratively label them as difficult, challenging, unreasonable, high-conflict or hostile, when in fact, they might be desperately lonely and unwittingly engaging in the paradoxically self-defeating behaviour associated with loneliness.

Loneliness may not render elders incapable of making their own decisions, but it may affect their behaviour. In other words, the emotional condition may be an internal, psychological constraint on their exercise of free choice. In law and ageing parlance, we might identify them as vulnerable but capable.

Ethical responsibilities

Professional legal ethics seem to support the notion that it is appropriate for lawyers to be sensitive to lonely clients’ maladaptive social cognition. For example, in its Model Code of Professional Conduct, the Federation of Law Societies of Canada observes that lawyers “may be expected to give advice on non-legal matters such as the business, economic, policy or social complications involved in the question or the course the client should choose. In many instances the lawyer’s experience will be such that the lawyer’s views on non-legal matters will be of real benefit to the client.”[11] Law societies across the country have incorporated this statement into their own commentaries.[12]

To be sure, the comment advises lawyers to “point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice.”[13] As Wexler observes, the lawyer must remain “counselor at law, not counselor in general.”[14]

With these cautions in mind, it seems prudent for lawyers to familiarize themselves with the vicious cycle of loneliness and the associated self-defeating behaviours. With a heightened understanding of the condition, lawyers may be better positioned to identify potentially lonely clients, and to approach the representation in a manner that is sensitive to the client’s maladaptive social cognition. For instance, a lawyer attuned to loneliness may consider exercising greater patience and persistence, since lonely clients may repeatedly turn down advice and offers of support, or they may initially accept help but then change their mind. Backing off risks validating their negative expectations, refueling the cycle of loneliness. Gentle persistence, on the other hand, might challenge their belief that others will reject them, and may eventually help lift them out of the behavioural confirmation loop.

Looking ahead

As the psychological research on loneliness continues to deepen our understanding of the condition, it is an opportune time to be studying the issue from a legal perspective. In particular, we ought to be taking a more critical look at how legal actors, rules and procedures can better respond to lonely but capable older adults. It is unsettling that we leave them to their own, maladaptive devices.

This blog post is partly adapted from Heather Campbell’s master of laws research and the working paper, “The Lonely Client: Identifying ‘Psycholegal Soft Spots’ in the Solicitor-Client Relationship,” which she co-wrote and presented with Eddy M. Elmer at the 2015 Canadian Elder Law Conference.

Heather Campbell is a lawyer (British Columbia, Canada) and a master of laws student at the University of Saskatchewan. Her research interests include elder mental health law; adult protection; elder abuse; and criminally accused individuals with dementia. You can follow Heather on Twitter @SeniorsLaw.

References:

[1] Julianne Holt-Lunstad, Timothy B. Smith & J. Bradley Layton, “Social Relationships and Mortality Risk: A Meta-Analytic Review” (2010) 7:7 PLoS Med doi:10.1371/ journal.pmed.1000316 at Figure 6.

[2] See Ken J. Rotenberg, “Loneliness and Interpersonal Trust” (1994) 13:2 J Soc & Clinical Psychol 152 at 152; Tjalling Jan Holwerda et al, “Feelings of loneliness, but not social isolation, predict dementia onset: results from the Amsterdam Study of the Elderly (AMSTEL)” (2014) 85 J Neurol Neurosurg Psychiatry 135; Trisha Petitte et al, “A Systematic Review of Loneliness and Common Chronic Physical Conditions in Adults” (2015) 8 The Open Psychol J 113 at 130; Jeffrey Geller et al, “Loneliness as a Predictor of Hospital Emergency Department Use” (October 1999) 48:10 J Family Practice 801 at 804; Morley D. Glicken, Evidence-Based Counseling and Psychotherapy for an Aging Population (Burlington, MA: Academic Press, 2009) at 164.

[3] See Christopher M. Masi et al, “A Meta-Analysis of Interventions to Reduce Loneliness” (August 2011) 15:3 Pers Soc Psychol Rev 219; Louise C. Hawkley & John T. Cacioppo, “Loneliness Matters: A Theoretical and Empirical Review of Consequences and Mechanism” (2010) 40 Ann Behav Med 218.

[4] Masi, ibid.

[5] Ibid.

[6] John T. Cacioppo & Louise C. Hawkley, “Perceived Social Isolation and Cognition” (2009) 13:10 Trends Cognitive Sci 13 (2009) 447 at Figure 3.

[7] John T. Cacioppo, Stephanie Cacioppo & Dorret I. Boomsma, “Evolutionary mechanisms for loneliness” (2014) 28:1 Cognition & Emotion 3 at 9.

[8] Dennis P. Stolle et al, “Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering” (1997) 34 Cal W L Rev 15 at 42-43.

[9] Ibid.

[10] Bruce J. Winick, “Client Denial and Resistance in the Advance Directive Context: Reflections on How

Attorneys Can Identify and Deal with a Psycholegal Soft Spot” (1998) 4:3 Psychol Pub Pol’y & L 901.

[11] Federation of Law Societies of Canada, Model Code of Professional Conduct (2014), Rule 3.1-2 [Federation, Model Code]. See also Dennis P. Stolle, “Professional Responsibility in Elder Law: A Synthesis of Preventive Law and Therapeutic Jurisprudence” (1996) 14:4 Behav Sci L 459 at 460.

[12] See e.g. The Law Society of British Columbia, Code of Professional Conduct for British Columbia (2015), Rule 3.1-2, Commentary 10.

[13] Federation, Model Code, supra note 11.

[14] David B. Wexler, “Practicing Therapeutic Jurisprudence: Psycholegal Soft Spot and Strategies” (1998) 67:2 Rev Jur UPR 317 at 329 [emphasis omitted].

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