this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Telling admissions: Disclosing mental illness among lawyers

Cover Story

Cite as: Jan/Feb 2013 87 (1/2) LIJ, p.32

Disclosure of mental  illness in the legal profession raises difficult issues for employees, employers and regulatory bodies. Commitment to legal obligations by all sides is integral to creating a healthy workplace.

By Mary-Jane Ierodiaconou and Roberta Foster

The disclosure of health information by lawyers and law graduates to their employers and prospective employers raises tricky questions. For employees, if you disclose, will it mean you lose your job? For prospective employees, if you disclose, will it mean you do not get the job? For employers, when you receive health information, what do you do with it? The pointy end of the stick at the moment is disclosure of mental illness. At various stages during the employment relationship, employees and employers may be subject to a number of obligations regarding this disclosure. It is important that these are observed. Failure to do so may not only have legal ramifications; it may also have a negative impact on the health and wellbeing of the employee.

Obligations during recruitment

During the recruitment stage of the employment relationship, prospective employees are not under any express law that mandates disclosure of a mental illness. However, prospective employees should not provide false information during their recruitment. Employers may have a right to dismiss an employee who does provide false or misleading information in their application, if it is found to have affected the making of a new contract. That is, if the prospective employee had disclosed the information, they would not have got the job. It may prove to be of greater advantage to the prospective employee to disclose the mental illness. This is because if an employer is not aware of a person’s disability, they cannot accommodate it. Without such accommodation, a person may not be able to obtain the job, or keep the job once it is obtained. So, while there is no express obligation to disclose, disclosure could be important to an employee’s ability to successfully perform their employment duties.

What health information can be requested?

During recruitment, employers have certain rights to ask an applicant to disclose certain health information. First, an employer can ask questions about an applicant’s health in order to assess whether they are able to safely carry out the essential requirements of the job. Occupational health and safety laws impose an obligation on employers to provide safe workplaces and systems of work. The same laws also impose an obligation on workers to take reasonable care for their own health and safety and for the health and safety of others who may be affected by their acts and omissions.1 The requirement to be able to perform the essential components of the job, and do so safely, is not overturned by anti-discrimination laws.

Second, an employer may request disclosure of conditions for the purpose of workers compensation. Sections 82(7) and (8) of the Accident Compensation Act 1985 (Vic) stipulate that there is no entitlement to workers compensation for a pre-existing disease or injury if the employer made a written request for disclosure of pre-existing injuries and diseases prior to employment, for the purposes of this legislation, and the employee did not disclose the information or made a false or misleading disclosure.

Third, health information may be obtained through pre-employment medical testing. Psychological testing is increasingly used by legal employers to test for skills that are not assessed at university, such as a person’s ability to work collegially. This psychological testing can only be done with consent and the testing must be relevant to the essential requirements of the job.

What health information cannot be requested?

An employer cannot request information that is irrelevant to the performance of the essential requirements of the job: for example, “Do you have a genetic predisposition to cancer?” Similarly, employers must not request information that serves an unlawful discriminatory purpose: for example, “Does your family have a history of mental illness?” Such requests will contravene anti-discrimination legislation.

In Victoria, the Equal Opportunity Act 2010 (the EO Act) protects job applicants against discrimination on the basis of a number of attributes, including disability or presumed disability. These types of requests may also contravene federal anti-discrimination legislation and the Fair Work Act 2009 (Cth) (the FWA). Under ss342 and 351 of the FWA, prospective employees may claim they have been subject to adverse action if they are subject to unlawful discrimination on the basis of attributes such as physical or mental disability.

Obligations during employment

Employers are under an express legal obligation to make reasonable adjustments to accommodate a worker with a disability. For example, under s5 of the Disability Discrimination Act 1992 (Cth) a person will be found to have directly discriminated against a worker with a mental illness if that person does not make reasonable adjustments to accommodate the worker, and failure to do so results in the worker being treated less favourably than a person without the mental illness. This obligation is reflected in s20 of the EO Act, which states an employer must make reasonable adjustments for a person with an impairment in order for them to perform the requirements of the employment. “Reasonable” adjustments are ones that do not impose unjustifiable hardship on the employer. The legislation provides examples of reasonable adjustments, including providing ramp access, or modifying reference manuals so they are user friendly for the worker.

An employer does not have to provide the adjustment where the worker would not be able to perform the essential requirements of the job even after the adjustments are made: s20(2). It is apparent, therefore, that the worker with a disability must still be able to perform the essential requirements of the job, an exception that is also enshrined in the adverse action provisions of the FWA: s351(2). Employers must also be aware of the legal obligations they have under unlawful discrimination, harassment and victimisation provisions throughout state and federal anti-discrimination legislation, and in the FWA.

Case study

The following case study – Kwesius and ACT Health2 – demonstrates how carefully employers must tread when handling the mental illness of their workers.

Ms Kwesius was a pathologist employed by ACT Health. She was diagnosed with a bipolar disorder in 1999 and her ongoing employment was conditional upon her taking her medication. She had substantial periods where she was absent from work. It was clearly a difficult situation all round. She complained that she was not getting enough overtime. There were a few incidents at work, and there was a concern by her colleagues that she was a danger to herself and to some of them. She was stood down on full pay. On the same day, Ms Kwesius was directed to attend a medical assessment, where an occupational physician found she was fit for work but was assessed to have an anxiety trait and be manic, rather than bipolar. A later psychiatric assessment also found she was fit for work but there were indications of paranoid thinking. Ms Kwesius needed to complete tasks in a ritualistic way out of fear that something terrible might happen if her routine was broken.

Ms Kwesius challenged her suspension and access to overtime in the ACT Discrimination Tribunal. The Tribunal found that while there was no unlawful discrimination regarding access to overtime, there was unfavourable treatment regarding her suspension from work. This suspension was apparently without any lawful basis, and had not been dealt with according to procedural fairness. Not enough detail had been given to Ms Kwesius when she was stood down, and the medical assessments indicated she was fit for work. Her employer had assumed she had a psychiatric disorder (bipolar). The Tribunal ordered that Ms Kwesius be reinstated and be paid $5000 in compensation for hurt and humiliation.

Disclosure to regulatory bodies

Board of Examiners

Lawyers are accountable not only to their employees, but also to the regulatory bodies that ensure Australia’s practising lawyers meet proper standards. The Board of Examiners is the body that approves candidates for admission to practise as a lawyer. Without this body’s approval, a person cannot be admitted in Victoria.

There are disclosure guidelines that refer specifically to disclosures about capacity.3 Candidates must disclose a “material mental impairment”. This phrase comes from s1.2.6(1)(m) of the Legal Profession Act 2004 (Vic). This is a separate issue from the question of whether a person is a fit and proper person to be admitted into the legal profession.4 The guidelines specify that it would be useful to include any condition that may affect a person’s ability to engage in legal practice, such as mental illness. They suggest a report from a medical practitioner that demonstrates the condition is “managed and stable”.

There have been a number of candidates who have struggled to meet the Board of Examiners’ requirements. If the Board believes on reasonable grounds that the candidate has a mental illness that may result in them not being a fit and proper person for admission into the legal profession, the Board may require the person to undergo a health assessment by a health assessor.5 The Board of Examiners does not apply a therapeutic model. Candidates should not underestimate how difficult it may be to satisfy Board requirements, and should consider obtaining legal advice if they are required to appear before the Board to discuss these issues. There are template documents for the required affidavits and it is possible to do a separate affidavit on the medical condition.6

Legal Services Board

The Legal Services Board (LSB) is a very different kettle of fish to the Board of Examiners. The LSB, a statutory authority that regulates renewal of practising certificates, provides clear direction to lawyers with mental health issues under its Mental Health Policy.7 This policy states that disclosure is not warranted if the mental health issue is effectively managed. In contrast to the Board of Examiners, the LSB has adopted a therapeutic model. It therefore seeks to treat mental impairment as a health issue rather than a professional standards issue. This focus on therapy means that the LSB undertakings tend to be treatment focused. The LSB also provides a number of resources for lawyers suffering from a mental illness,8 and has provided funding to establish a Vic Lawyers’ Health Line.9

Advice for law firm employers

There are legal obligations that apply to employers, including law firms, when dealing with the mental illness of their employees, as discussed above. How are firms to deal with mental illness in their firms in a way that protects the firm and its clients, while supporting the health and wellbeing of their lawyers?

In dealing with disclosure of mental illness, law firm managers may wish to consider the following steps:

1. Consider whether the disclosure is relevant to the essential requirements of the employee’s job.

2. Ask your employee what adjustments may be required in order for them to fulfil the essential requirements of the job.

3. Seek specialist medical advice if needed (and provide the employee’s position description to the medical practitioner giving the advice).

4. Consider what adjustments can be made in order for the employee to perform the essential requirements of the job.

5. If the employee cannot perform the job with reasonable adjustments, consider other options, such as redeployment, extended leave or outplacement.

Disclosure and privacy

Employers need to be mindful of their legislative and common law obligations when collecting, using, disclosing, storing and providing access to the health information of employees and prospective employees. The Health Records Act 2001 (Vic) applies to both the public and private sectors, and establishes Health Privacy Principles (HPPs) relating to health (including mental health) information. Privacy legislation, such as the Privacy Act 1988 (Cth), is also likely to apply to larger private sector employers. As with the Health Records Act, the requirements stemming from this legislation are strict. Employers should collect only what is necessary and should always be transparent about the use, disclosure, access and storage of this information.

Procedural checklist
  • Have an Anti-discrimination/Equal Opportunity Policy and implement it throughout your organisation – this should include reference to disability/impairment discrimination.
  • Provide training for all employees on their obligations under anti-discrimination law. Be conscious that different groups of workers may require different training.
  • Provide additional training to managers and your recruitment team. Remember, under anti-discrimination (and other) laws, your organisation will be responsible for the acts of the external recruiters you engage.
  • Maintain an ongoing audit and evaluation process of your anti-discrimination program and ask yourself: are the policies and training working?
  • Consider implementing a Disability Action Plan. Through the creation of strategies and action items, Disability Action Plans (DAPs) foster healthy and inclusive workplaces and help employers fulfil their obligations under anti-discrimination and human rights legislation.10
  • Implement a grievance/internal complaints process to cater for any complaints that may arise.
  • Provide information about how employees can access free and confidential counselling, should they need to do so.
  • Consider what best practice steps your firm can take in the area of disability to become an employer of choice. For instance, consider appointing “disability champions” within your organisation.
Handling complaints

If a complaint is made by an employee of a legal firm, the following guidelines will assist in ensuring that the complaint is dealt with appropriately:

  • Treat the complaint seriously.
  • Act promptly.
  • Gather further information.
  • Be disability aware: consider if any additional assistance is required to assist the complainant to outline their issues.
  • Refer to any policies to check your obligations.
  • Follow complaints procedure.
  • Document all communications and anything else relevant to the complaint.
  • Provide support to the employee and manage the expectations of all involved parties.
  • Consider what reasonable adjustments, if any, could be made.
  • Consider other options to resolve the complaint.

Conclusion

In 2009, the Australian Bureau of Statistics found that four million people (18.5%) had a disability, including mental illness11 – that is, just under one in every five Australians. Research undertaken by Beaton Research & Consulting and beyondblue in 2007 revealed that people working in law firms suffer higher rates of depression than those in other professions.12 A more recent survey showed that, compared to other professions, lawyers felt that their organisations were less likely to provide assistance to an individual suffering from these mental health issues.13 These statistics speak for themselves. We all need to take steps to accommodate employees and prospective employees with disabilities. Lawyers and law firms must balance this with their client obligations, and with the requirements of regulatory bodies such as the Board of Examiners and the Legal Services Board. By working together, employers and employees can create a healthy, stable and productive workplace.



MARY-JANE IERODIACONOU is the managing partner of Justitia Lawyers and Consultants, an employment, discrimination and labour relations law firm. ROBERTA FOSTER is a legal research assistant at Justitia Lawyers and Consultants and is currently completing the Master of Laws (Juris Doctor), Monash University.

1. See, for example, ss21 and 24 of the Occupational Health and Safety Act 2004 (Vic).

2. [2008] ACTDT 3.

3. Law Admissions Consultative Committee, Disclosure Guidelines for Applicants for Admission to the Legal Profession, Practice Direction No. 2 of 2012, www.lawadmissions.vic.gov.au/quick_links/practice_directions_ and_notices.

4. See s2.3.6 of the Legal Profession Act 2004 (Vic).

5. See paragraph 18 of Board of Examiners: Powers and policies, www.lawadmissions.vic.gov.au/about_the_ board.

6. The disclosure affidavit is found at the end of the Board’s Disclosure Guidelines, note 3 above.

7. Legal Services Board, Mental health policy – V1, www.lsb.vic.gov.au/documents/L-P007MentalHealthPolicy-V1.pdf. At the time that this policy was developed, the LSB revised its Fit and proper person policy. The new Fit and proper person policy – V2.0 clarifies which matters must be disclosed in order for the LSB to determine whether that person is a fit and proper person to hold a practising certificate. The LSB’s Fit and proper person policy can be found here: www.lsb.vic.gov.au/documents/L-P017FitandProperPersonPolicy-V2.pdf.

8. These resources include LawCare and the Tristan Jepson Memorial Foundation. See the LSB resource list for further information: www.lsb.vic.gov.au/legal-profession/mental-health-in-the-legal-profession.

9. Established in April 2012, the Vic Lawyers’ Health Line (VLHL) provides free and confidential assistance by trained health professionals to all members of the legal profession, including legal support staff and law students. It also provides advice to legal employers who are managing staff with mental health issues. The VLHL is a pilot health and wellbeing service that is an initiative of the Law Institute of Victoria and is funded by the Legal Services Board. For more information about VLHL, visit www.viclawyershealth.com.au.

10. For more information on the operation of DAPs, visit: http://humanrights.gov.au/disability_rights/action_plans/index.html.

11. Australian Bureau of Statistics, 4430.0 – Disability, Ageing and Carers, Australia: Summary of Findings, 2009, www.abs.gov.au/ausstats/abs@.nsf/mf/4430.0.

12. Beaton Research & Consulting and beyondblue, Annual Professions Survey, 2007, www.beatonglobal.com/pdfs/Depression_in_the_professions_survey.pdf.

13. Beaton Research & Consulting and beyondblue, 2011 Annual Business and Professions Study, 2011, www.beatonglobal.com/pdfs/2011_Annual_Business_and_Professions_Study.pdf.

Comments




Leave message



 
 Security code
 
LIV Social
Footer