Triage is a concept long associated with managing medical emergencies. The OED defines it as:
The assignment of degrees of urgency to wounds or illnesses in order to decide the order or suitability of treatment.
Triage is done is three categories (hence the “tri”) with “1” being the most urgent and “3” the least. The concept has been popping up in civil justice-speak in recent years. This is an application of what the OED calls the “transferred sense”, illustrated in the OED as follows:
1974 Time 11 Nov. 80 In the West, there is increasing talk of triage, a commonsense if callous concept that teaches that when resources are scarce, they must be used where they will do most good.
Now obviously civil justice is an area of scare resource and decisions about distributing this resource are necessary. My concern is that the attraction of the word triage is that it has a neutral, efficient and orderly, ring about it. It is well accepted in medicine and civil justice is now trying to ride off those coat tails. However its transition from medicine to law is slippery.
I most recently came across the term when reading the doorstopper that is the 2016 Victoria State Government’s (VSG) (Australia) report on Access to Justice (thanks to the Civil Justice Forum for tipping me off to this report). VSG’s use of “triage” illustrates how complex the application of a seemingly simple concept might be outside medicine:
In the civil justice context, triage refers to assessing a person’s problems and needs, and directing them to the most appropriate destination for support and resolution, irrespective of how the person makes contact with the justice system. All aspects of the justice system need to have an inbuilt capacity to direct people to the most appropriate form of resolution to mitigate against unnecessary formal proceedings, and to ensure that access to services is not limited by how that person first encountered the system.
The idea here is that people should be able to bring their justiciable event to any sort of provider and they’ll be triaged. What concerns me is that packed into this description of legal triage are the untested ideas and assumptions. What criteria is used to decide “the most appropriate destination for support and resolution”? In the medical context “appropriate” emergency care is mostly in reference to keeping someone alive. It doesn’t translate easily to law. How do we equip lots of service providers, presumably with a lot of different backgrounds (legal and non-legal) with the ability to make a principled triage decision? Triage nurses are specifically trained – can we really equip a diverse range of professionals and para-professionals to provide that service?
What is more worrying is that the term of reference for this discussion point was to “Examine options for diverting people from civil litigation and into alternative services where appropriate, such as a ‘triage’ model” (p. 151). The whole framework for considering triage in this report is therefore about diversion from litigation. As the report explains:
‘Diverting people from civil litigation’ means referring or directing an individual to a more appropriate resource or service than the formal justice system to assist them to resolve their problems. (p. 153)
This assumes that there is a legion of people banging down the courts’ doors taking unnecessary civil litigation. The report makes a revealing reference to this (popular but not empirically based) form of thinking in their statement, that “collaborative forms of service delivery”, in amongst other listed benefits “divert[s] people from unnecessary civil litigation” (p 152). (It is notably not supported by any references).
Some submitters took issue with this assumption, emphasising that triage might involve pointing people towards litigation, not away from it. As Justice Connect said: “helping people to recognise and assert their legal rights is equally as important as diverting people away from formal legal proceedings” (p. 174).
This excellent point is glossed over in the VSG’s findings section but it needs emphasising. A true triage system would have clear criteria for categorising people’s needs and would include, as category “1”, urgent adjudication – the equivalent of a trip to emergency surgery or a stay in the ICU.
The risk is that the VSG’s idea of “triage” – a term with a scientific, clinical ring to it – becomes a cover for under-funding the enforcement of civil rights and obligations. In his delightfully named piece, “The Access to Justice ‘Sorting Hat’”, Richard Zorza points out that “at least one of the reasons” for our failure, so far, to design a principled, needs-based triage system, “has been fear of the consequences of identifying individual cases in which services are required but cannot be provided for resource reasons”. (p 862)
If triage becomes another way of avoiding funding a core system, it might just become another tool of of anti-litigation rhetoric, rather than a principled means of sorting out what should be in the formal justice system and what should be out. The VSG, and other agencies looking at re-tooling access to civil justice, would do well to look at Zorza’s more principled triage design.