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Disclosing mental illness – who needs to know?

Disclosing mental illness – who needs to know?

By Adam Wakeling

Disclosure Discrimination Health Wellbeing 


Lawyers and applicants for admission to practice are unlikely to suffer adverse consequences by disclosing an illness that is being treated and managed. Candidates for admission who have a mental illness will face the prospect of disclosing their condition as a matter relevant to their fitness to practise law. Mental illness, often undiagnosed and untreated, has been a factor in some disciplinary proceedings against lawyers, and management of mental illness in the profession plays an important role in protecting the consumers of legal services. But candidates for admission must not be discouraged from seeking help for their symptoms for fear of the requirement to disclose it. So when should you disclose your condition and what will happen following such disclosure? Victorian Legal Admissions Board (VLAB) The key documents governing disclosure to VLAB are the Legal Profession Uniform Admission Rules 2015 and the associated Disclosure Guidelines. Rule 17 of the Admission Rules requires an applicant to prepare a disclosure statement of matters affecting fitness. Under the Disclosure Guidelines these include any medical condition that might affect the applicant’s present ability to engage in legal practice, including mental illness. The onus is on the applicant to establish fitness, and candour is critical. Anything relevant must be disclosed. Also, keep in mind that the requirement is in the present tense – is the candidate a fit and proper person now? VLAB Registrar Deborah Jones said disclosure of a mental health condition, particularly where evidence of appropriate treatment is provided, will rarely in itself raise a concern about an applicant’s fitness for admission. “It is difficult to define with precision what conditions require disclosure. The fact an applicant is taking medication does not in itself trigger a requirement to make disclosure. It is the underlying condition which is the relevant consideration,” she said. The best approach for an applicant is to disclose a potentially relevant condition, but also describe how it is being managed. VLAB may also ask the applicant to provide a report from their treating doctor or psychiatrist. “The fact that an applicant has obtained medical treatment to manage a condition will always count in an applicant’s favour.” Additionally, an applicant may wish to disclose their mental illness if it could be a mitigating factor in past wrongdoing. For example, if they have a history of fines incurred partly due to an untreated mental illness, showing that the illness is now treated and managed and they have no recent fines could help to show VLAB that the applicant is now a fit and proper person for admission. Legal Services Board + Commissioner (LSB) Once admitted to the Supreme Court of the relevant jurisdiction, an applicant must not hold themselves out as a lawyer until they have obtained a practising certificate. The LSB is responsible for issuing and renewing practising certificates. Section 45(2) of the Legal Profession Uniform Law 2015 provides that the LSB must not grant or renew a practising certificate if it considers that the applicant is not a fit and proper person to hold one. Under rule 13(m) of the Legal Profession Uniform General Rules 2015, someone who does not have the capacity to carry out the inherent requirements of the role of solicitor will not be a fit and proper person to hold a practising certificate. The LSB’s requirements for disclosure of mental illness are therefore not as broad as VLAB’s – the LSB only requires disclosure where the mental health condition affects the lawyer’s ability to meet the inherent requirements of practice. The LSB is not concerned with mental illnesses which are managed effectively. Like VLAB, the LSB encourages lawyers with mental health issues to seek treatment. For more information, refer to the LSB Mental Health Policy. Your employer You are under no legal obligation to disclose a mental illness to your employer, but you may choose to do so. A partner in workplace law at Mills Oakley, Adam Lunn is a participant in the Wellbeing@ Law DVD on mental illness in the legal profession. His view is that, overall, you are better off disclosing your condition. “Why? It may impact on your ability to do work from time to time,” he said. “You are better off being frank with your employer than trying to make excuses to cover for a condition,” he said. The Equal Opportunity Act 2010 (Vic) and the Fair Work Act 2009 (Cth) prohibit an employer from discriminating against an employee due to their medical condition, provided that it does not prevent them from meeting the inherent requirements of the job. In Mr Lunn’s experience, discrimination against employees with mental illness is not common, and there has been in a shift in the past decade in favour of supporting employees with mental health issues. But the timing of disclosure matters. Some employers may ask about medical conditions at the interview stage. In Mr Lunn’s view, this is not the best time for an employer to ask about any health condition, mental or otherwise, provided that the applicant can meet the inherent requirements of the role with reasonable adjustments. Likewise, if an employee’s condition is affecting his or her performance at work, it is not ideal for the employee not to tell their employer about it until the performance management process has already started. However, employers should always begin performance management by asking the employee if there are any external factors that may be affecting his or her performance. If asked that question in those circumstances, an employee should disclose any relevant condition. Mr Lunn’s view is that mental health issues need to be dealt with like any other illness. Mental illness may affect an employee’s performance at times, but it shouldn’t become an excuse for ongoing failure to perform his or her role. With appropriate treatment, mental illness can be managed very well; just as appropriate treatment can manage other health conditions. By law, employers must reasonably accommodate an employee’s condition, but at the same time, the employee must be able to meet the inherent requirements of the job. Someone who cannot do a job shouldn’t be employed in that role. Conclusion Lawyers and applicants for admission to practice are unlikely to suffer adverse consequences for disclosure of a wellmanaged mental illness. If you are showing symptoms of a mental illness, or you believe that you may have a mental illness, you are always better off seeking professional treatment than ignoring the symptoms or trying to self-manage the condition. ADAM WAKELING is a senior compliance adviser at State Trustees. He is 2016 co-chair of the YL Editorial Committee.

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