Mental health in the Legal Profession
Mental health issues within the legal profession have recently been dealt with by QCAT.
THE TRIBUNAL ORDERS THAT:
- The respondent is to make a declaration under s 32(3)(a) of the Legal Profession Act 2007 (Qld), to the effect that the applicant’s mental health (in its current state) will not, without more, adversely affect its assessment as to whether he is a fit and proper person to be admitted to the legal profession under theLegal Profession Act 2007 (Qld).
[72] Gaining admission as a legal practitioner was never meant to be easy, but the bar shouldn’t be set so high as to make it impossible either. The applicant, like all other Australian adults, has legitimate interests that must be respected including employment or equivalent rights (such as admission to practise).
[73] The mere fact that person has a diagnosed psychiatric or psychological condition is not generally in and of itself indicative of unsuitability to practise. Many people in the community – including, no doubt, many practising lawyers – suffer from depression and other forms of mental illness to varying degrees and yet are able to adequately fulfil their professional functions and responsibilities.[41]
[74] In 2012, Sane Australia estimated that one in five Australians was affected by mental disorders or distress such as schizophrenia – with only about half actually seeking help and many undiagnosed.[42] Members of the legal profession consistently exhibit higher levels of psychological distress and chronic depression than other members of the community of the same sex and similar age.[43] Around 75 per cent of all lawyers are in private practice; the rest in business or government, the judiciary or teaching. For those in private practice, under half are single practitioners; and for lawyers in law firms, about 25 per cent are in firms of 100 or more.
[75] The indeterminacy and subjectivity of the referred suitability issue makes it an indiscriminate and potentially exclusive – even elitist – barrier to admission for minority candidates like the applicant. Clearly, it would be wrong to use the admission process as a means of covert discrimination or arbitrary exclusion. Civil actions aside, regulators and other decision makers, especially those in employment related fields, must take care not to disadvantage or discriminate, even indirectly, against people with a disability or impairment under state[44] and federal laws.[45]
[76] As Moffitt P said in Re B:[46]
“If a person meets the requisite learning standards and is of good fame and character so he meets the requirement that he be a fit and proper person to be admitted to practice as a barrister, it hardly need be said that there is no other discretionary bar to admission, whether on the basis of race, colour, religion, sex, political outlook or otherwise … (and) it follows that in itself being a radical in a political sense or being what might be regarded by some as an extremist in views on sex, religion or philosophy provide no bar to admission as a barrister, unless of course, the attitude of the prospective or practising barrister can be seen to render him not a fit and proper person because his character, reputation or likely conduct fall short of the standards expected of a practising barrister.”
[77] Also, the legal profession should be as representative as possible. The views and perceptions of those with a disability should be heard in the profession.
[78] According to Legier,[47] the vitality, credibility and standing of the profession depends on increased diversity. Increasing the number of people with disabilities within its ranks makes it more representative and diverse. The better informed and experienced it is in relation to mental illness, the more likely it is to benefit the community in general.
[79] Yet, despite their own imperfections, human systems often struggle to find a place or make room in the world for the different, strange or damaged.
[80] The Australian legal profession, in particular, has a history of resistance to allowing minority groups in. It took a long time, for example, for women (who are now on the verge of making up the majority of new admissions) to be broadly accepted and fully participate in the profession. The attitude towards professionals with disabilities is similar, but according to Hensel, it is “largely invisible, normalised and unquestioned”.[48]
[81] This, no doubt, is partially due to an understandable fear of the unknown and unsettling concerns about future uncertainties.
[82] To counter these concerns, Australia ratified the Convention on the Rights of Persons with Disabilities (the Convention) on 17 July 2008. It is based on the approach that “disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others” and is aimed at providing conditions in education, employment, health care etc. that will work effectively for all people regardless of personal characteristics.
[83] While the traditional medical model of disability focusses on its limitations or risks and searches for ways of normalising it as much as possible the Convention locates the experience of disability:
“.. in the social environment, rather than impairment and carries with it the implication of action to dismantle the social and physical barriers to the participation and inclusion of persons with a disability.”[49]
[84] As Frances Gibson rightly points out:[50]
“When applied to participation in the legal profession, (the Convention) might mean that in most cases of mental illness, people are able to carry out the requirements of their profession if steps are taken by the profession and their employers to ensure that legal workplaces are structured to ensure a person is given support in the case of any type of illness. Good mentoring and management, education programs for staff, a supportive environment where people are able to reveal illness without fearing stigmatising or discrimination, and appropriate working hours and leave arrangements could all assist in ensuing that employees can carry out their jobs to their full capacity.”
[85] Environmentally, mental health issues or problems are most concerning when (as here) they have resulted in, or contributed to, instances of inappropriate behaviour, especially actions which are criminal in nature.[51] But in discussing the types of dangers lawyers with mental illness reportedly pose to clients and the profession’s reputation, Gibson says:[52]
“There does not appear to be any concern in relation to the client’s physical safety being under threat from lawyers with mental illnesses. Cases where lawyers have come to the attention of disciplinary bodies which then raise issues of mental illness seem to indicate that the type of wrong doing is not dissimilar to the usual allegations in misconduct cases. [53]”
[86] Nor is there any evidence supporting stereotypical concerns about lawyers with a disability. Wodatch portrays this in the following passage:[54]
“You know they can’t travel; they can’t do anything right in the courtroom; they’ll make other people whom they work with uncomfortable; you never know when you’re going to say something that’s going to set them off or really be the wrong thing to say; and once they’re here, we’re never going to be able to fire them.”
[87] On the contrary, lawyers with disabilities have extensive life experience which may allow them to empathise with clients and public with respect of the problems they faced in becoming lawyers. It is claimed persons with disabilities are more loyal to their employers, recognising that their employers have given them a chance to succeed.
[88] The Hon Judge Richard S. Brown, Chief Judge of the Wisconsin Court of Appeals, has pointed out the value that lawyers with disabilities are likely to bring to their employer.[55] He claims that, because of their experiences in getting into and graduating from law school, they have learned to advocate and communicate to others and have been forced to pay particular attention to organisational tasks and use of technology. Consequently, he says they:[56]
“[C]an more easily empathise with the clients problems because of the problems they have faced becoming lawyers. As part of the process, they have had to face difficult audiences and learned to persuade these audiences … [P]eople with disabilities think out of the box. Lawyers with disabilities have to generate the same amount of work product by alternate routes in the competitive world or academics. Different approaches to problem solving and more of an everyday happening for them … lawyers with disabilities have a special sense of justice. Every community has disability related issues … law firms who have lawyers with disabilities can offer an unique prospective on these types of case.”
[89] In addition to the community, professional and environmental aspects of this debate, Gibson identifies the human rights of lawyers with a disability as another important considerations in developing an intelligent approach to the practical issues.[57]
[90] A genuinely rights based approach in her opinion requires that any decisions or steps to limit or reduce the right of lawyers with a mental illness to practise be taken only based on “real and present dangers to individual clients, the legal profession and the courts”.
[91] However, the Board’s protective function probably dictates a more cautious and broader based approach to testing professional fitness. Troubled mental history can come and go episodically. Also, mental illness in lawyers can develop over time and the tell-tale signs may not be easy to recognise or report. Effective regulation of any profession must balance the rights of the individual and the overriding duty to protect unidentified consumers of legal services from the risk of harm posed by a practitioner’s personal traits or impairment as much as character flaws such as dishonesty, incompetency or negligence.
[92] Obviously, regulatory bodies like the Board with public protection responsibilities cannot take unacceptable risks with the safety and welfare of stakeholders. They must take all reasonable precautions to prevent avoidable harm. Professional incapacitation by refusing admission to non-conforming lawyers is, no doubt, the most effective option but it is an extreme one and care must be taken not to overuse it.
[93] Conclusions about whether unusual personal attributes or characteristics pose an unacceptable risk or not are notoriously subjective and contestable, because they necessarily involve perceptions, unconscious value judgments, prejudices and according to the High Court, “predictions and assumptions about the future which are not susceptible of scientific demonstration or proof … and even intuition and guess work can play a part”.[58]
[94] Opposite but nonetheless reasonable conclusions can be reached with neither being demonstrably right nor manifestly wrong.
[95] As Lord Fraser of Tullybelton pointed out in G v G[59] (a family law case), the discretionary jurisdiction in these cases is:
“…one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory”.
[96] No doubt with this in mind, both the Board and the Court of Appeal expressed considerable sympathy for the applicant’s dilemma in the course of the appeal proceedings and frankly acknowledged the difficulty in balancing the applicant’s legitimate interests against the protective LPA’s purposes.
The effect of the applicant’s mental health on his capacity for legal practice
[97] In searching for Lord Fraser’s “reasonably satisfactory answer” to the referred questions, I have weighed up a galaxy of pertinent factors for and against the applicant’s suitability for admission to the legal profession.
[98] On the one hand, he has a right to a reasonable expectation of being able to enjoy the fruits of his academic labours and dedication to purpose, to earn a living of his choosing and a right of dignity, autonomy and self-determination and as well as not to be discriminated against needlessly excluded from or shunned by the legal fraternity.
[99] The profession and wider community benefit from diversity and the broadest possible representation which help dispel unjustified fears born of ignorance and increase understanding and tolerance.
[100] On the other, unknown future clients are entitled to genuine consideration and their rights as consumers of legal services duly protected. The profession’s standing and public reputation of the legal system are also important. So too, of course, is respect for the law and authority of the courts.
[101] Of prime significance to the applicant’s suitability for an admission under the referral, however, is his capacity for legal practice.
[102] The Board initially refused to make a declaration of suitability; not out of any stated concern that, if admitted, the applicant would fail to meet professional standards of conduct or breach the legal, ethical and regulatory obligations of an Australian lawyer or officer of the Supreme Court, but because it could (or would) not choose between conflicting psychiatric evaluations.
[103] In this proceeding, the Board focussed much more closely on the applicant’s mental condition as it related to his professional capacity because self-evidently, simply reconciling the divergent psychiatric opinions does not resolve the substantive suitability issue. Contact and communication with clients, rather than any character and conduct based objections, were mainly relied on as the major obstacle to admission even with conditions.
[104] The key determinant on this approach is the symptoms, not the diagnosis, of the applicant’s mental health.
[105] On this aspect, Dr Steinberg’s assessments really have to be preferred over Dr Wilkie’s. Not only are they more recent but they have the added weight of being tested at length by cross-examination at the hearing, albeit by telephone. The most significant psychiatric related risk factors Dr Steinberg identifies are:
- the schizophrenia diagnosis;
- the applicant’s lack of insight into his condition and record of non-compliance with adequate treatment or medication regimes resulting in impulsive and inappropriate behaviour even though the last such episode was in 2013; and
- his inability to live at home unsupervised and to form close, consistent and durable personal relationships.
[106] The applicant’s “disturbing” conduct is arguably less significant as a predictor of his future prospects as an Australian lawyer than his apparent aversion to effective therapy and treatment.
[109] While there appears to be a definite correlation between the applicant’s past bad behaviour and his mental health, it is far less certain whether his condition will translate into post-admission disciplinary breaches or workplace problems.
[110] Overall, however, I think it would be overly optimistic to expect the applicant to be able to sufficiently and effectively compartmentalise his personal and professional lives at this point in time. Without effective medication and treatment he is unable to satisfactorily carry out the inherent requirement of practice identified by the Board.
[111] The delusional thinking characterising the applicant’s illness is unpredictable and poses a significant risk to proper judgment, effective communication and interpersonal relationships.
[112] His persecutory delusions make him vulnerable to misinterpreting day-to-day events, which in turn could adversely and unpredictably affect his professional judgment and conduct. A fixed prejudice against police, for example, may be inconsistent with the due performance of the role and functions of a legal practitioner.[64] This applies not just to depriving him of the ability to “adjudicate rationally and skilfully between alternative courses of action” but also an inability to assemble all relevant information, understand its true objective significance and effectively convey that understanding to others”.[65]
[113] His lack of insight into the nature, extent and effect of his illness and the chronicity of his symptoms makes his personal outlook poor and his apparent suitability for legal practice, at least in the short term, a highly hazardous proposition.
[114] Regrettably, for those reasons, I find that the applicant is probably unable to satisfactorily carry out the inherent requirements of legal practice because the current state of his mental health makes direct client contact and communication too problematic.
[115] That does not necessarily mean, of course, that the Board should not be directed to make a suitability for admission declaration under s 32 LPA.