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Disclosure policy a healthy change

LIJ (Law Institute Journal)

President and CEO

Cite as: Cite as: March 2012 86 (03) LIJ, p.4

By Michael Holcroft, LIV President

Help is at hand for lawyers with mental illness.

Lawyers who are effectively managing their mental illness no longer have to disclose their condition when applying for and renewing their practising certificates. The Legal Services Board (LSB) announced the new mental health policy in December 2011 (see http://tinyurl.com/7dq5bug).

The LIV welcomes the policy, which provides important clarification to practitioners about the LSB’s approach to mental health and when it will be relevant to its regulatory functions. The LIV commends Legal Services Commissioner Michael McGarvie and the LSB for adopting what is a sensible approach to a sensitive issue (see “Fit and proper review”, page 70)

While disclosure of a mental health issue has never been an automatic bar to the LSB finding that a lawyer is a fit and proper person to practise, the LIV believes that the new policy will encourage more lawyers to seek help earlier and assist in removing the stigma that is often attached to mental illness.

In that sense, the policy governing mental health disclosure is more therapeutic than punitive, in line with the approach advocated by the LIV in a submission (“Therapeutic model for disclosure” http://tinyurl.com/7eyh9xs) made to the National Legal Profession Taskforce and discussed with the LSB in August 2010. The LIV expressed the view that disclosure requirements relating to mental impairment were unlikely to achieve the intended regulatory purpose, that is, to protect the community from lawyers who are not fit to practise, because a person who makes a disclosure is likely to have insight into and be managing their illness with appropriate treatment. The LIV submitted that lawyers should not be required to disclose appropriately managed mental health issues.

The new policy protects the rights and welfare of lawyers by encouraging lawyers to voluntarily seek appropriate treatment and by taking into account human rights principles, particularly those relating to non-discrimination and privacy.

Previously, lawyers were expected to disclose mental impairment, drug or alcohol addiction – past or present.

There is, still, the opportunity for lawyers to make a direct approach to the LSB if they wish to raise possible mental impairment issues before their work is negatively affected or complaints are made. If a lawyer’s mental condition is interfering with their work to the extent that they may not be a fit and proper person to practise or they present a risk to consumers, the LSB can require the lawyer to have treatment or screening tests and limit the nature and extent of their work. The LSB can also request a lawyer to provide a report from their treating health practitioner.

While not all the LIV’s recommendations were adopted by the LSB in relation to mental health in the profession, it is pleasing that many were. The LSB has also delegated decision-making in relation to practising certificates, including management of mental health policy requirements, to the LIV where these matters are dealt with by experienced in-house practitioners.

Announcing the new mental health policy, the LSB committed to educating lawyers about mental health and broadening support for the issue. Studies in recent years have revealed that lawyers are significantly more likely than the general public to experience depression. The demanding environment and adversarial culture of the law result in many lawyers struggling to cope and experiencing mental health issues.

To combat mental illness in the profession, a raft of mental health initiatives have been rolled out. A number of law firms, the College of Law, universities and the LIV are among those behind many valuable personal sustainability initiatives.

In particular, law students and young lawyers have been targeted in education campaigns about staying physically and mentally robust. The aim is to prevent problems before they begin and to ensure mental health in the long term.

In 2012, the profession will benefit from the Vic Lawyers Health Line, which the LIV is due to launch on 1 April. A pilot program, it is aimed at lawyers who are struggling with mental health issues. It is a confidential and independent 1300 number for all inquiries relating to mental wellbeing, administered by service provider PPC Worldwide. Individuals and employers can get referrals to health services, counselling and debriefing following difficult cases and independent information on relevant regulatory provisions.

The help line is part of the LIV’s Mental Health Strategy which will be implemented this year with LSB-funding. Other initiatives of the strategy are a scoping study for a lawyers’ health service and a literature review to help form education activities for the profession. We encourage members to keep an eye out for colleagues who might be struggling with mental health issues. Talk to them and, where appropriate, let them know they are not alone and that help is at hand. For LIV personal support services see: http://tinyurl.com/7gvyjp9.

Rob Hulls served the state of Victoria as a parliamentarian for 16 years and was Victorian Attorney-General for 11 of those years. He oversaw and implemented many reforms, including introducing the Charter of Human Rights, promoting alternative dispute resolution (ADR) and addressing the imbalance of female judicial appointments, among many others.

We wish him well in his future endeavours.




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