Mental Health Disclosures: Admission and Renewal of Practising Certificates

A recent article in The Age alerted me to the existence of a Mental Health Policy released in December 2011 by  the Legal Services Board of Victoria (Australia). On reading the policy, I wondered at the effect, if any, the policy might have for PLT graduates seeking admission in Victoria.

[Disclaimer: this post is for discussion purposes and is not intended and must not be taken as legal advice. A person’s decisions regarding disclosure requirements can have significant consequences. Each set of circumstances can be unique and expert advice should be sought when making such decisions.]

From experience, I believe most PLT graduates are mindful of their disclosure obligations when they apply for admission to the legal profession. From time to time a graduate might express confusion about the extent of their disclosure obligations; in some cases this might relate to a present or past mental health issue.

Substantial research focused on law students’ and lawyer’s mental health suggests the incidence of mental health issues is much higher in the legal profession when compared to other professions and the general population. See for example ‘Courting the Blues’ by the University of Sydney’s Brain and Mind Research Institute, and the joint study between beyondblue and Beaton Research and Consulting, ‘Mental Health in the Workplace’. Consequently, the issue of mental health disclosures is real and not merely theoretical.

The Supreme Court of Victoria’s Board of Examiners is the body responsible for determining an applicant’s eligibility for admission to the legal profession, now pursuant to Part 6.5, Division 2, Legal Profession Act 2004 (Vic). The Board has issued Practice Direction No. 4 of 2009, (Disclosure Requirements for Applicants’ Admission to Practice).

The Practice Direction states the duty of disclosure, in general terms, as extending to:

‘…matters which reflect negatively on the applicant’s honesty, candour, respect for the law or ability to meet professional standards. Applicants must provide a full account of any such matter in their affidavit of disclosure.’

A section of the Practice Direction is specifically entitled ‘Mental Impairment, Medical Conditions or Addictions and Admission to the Legal Profession’. (By the way, what I write here is no substitute for reading the whole Practice Direction)

The Practice Direction states the rationale for the disclosure of ‘mental impairment’, as:

  • ‘An applicant is required to disclose a current or past mental impairment in circumstances where that mental impairment brings into question the capacity of the applicant to make the judgments and have the cognitive functioning necessary to meet appropriate professional standards in legal practice or otherwise ‘discharge the important and grave responsibilities of being a barrister and solicitor’.’

The Practice Direction then defines ‘mental impairment’, as:

  • ‘A mental impairment includes a health condition that is characterised by significant disturbance of thought, mood, perception or memory (including alcoholism and drug dependence in accordance with section 1.2.1 of the Act).’

  • ‘The following conditions are examples of mental impairment, medical conditions or addictions which should be disclosed:

Mental Impairment – depression, anxiety, schizophrenia, bio-polar disorder or anti-social personality disorder

Medical Conditions – Alzheimer’s disease or alcoholism

Addictions – gambling or drug dependence.’

The Practice Direction goes on to indicate that minor or isolated incidents of mental impairment receiving proper treatment need not be disclosed.  The Practice Direction also sets out the documentary requirements for disclosures involving mental impairment, including a medical report.

Finally, in relation to disclosures of mental impairment, the Practice Direction notes the possible episodic nature of mental impairment and the need for compliance with treatment, and states:

‘To demonstrate present fitness for admission such applicants need to satisfy the Board that they posses the self awareness to identify a future episode if it were to arise and that they could be relied upon to seek appropriate medical help or continue existing treatment if it is required.’

If an applicant for admission is successful, they must obtain a practising certificate before they are permitted to practice law in Victoria. See my blog post, ‘Solicitor, Barrister, Lawyer or…?’, regarding this.

The Legal Services Board of Victoria is established pursuant to Part 6.2 Legal Profession Act 2004 (Vic) (LPA).  The objectives of the Board include regulation of the legal profession and the protection of consumers: s 6.2.3 LPA. The Board has the power to grant local practising certificates: s 2.4.3 LPA; but must not grant or renew a certificate unless it is satisfied the applicant is a ‘fit and proper’ person to hold the certificate: s 2.4.7(1)(b) and s 2.4.7(2)(b) LPA.

In determining whether an applicant is suitable for holding a practising certificate, the Board may have regard to any suitability matter (s 2.4.4(1) LPA). ‘Suitability matters’ are described at s 1.2.6 LPA, and include, ‘whether the person currently has a material mental impairment’: s 1.2.6(1)(m) LPA.

The Board has the power to require a person to undergo a ‘health assessment’ by a ‘health assessor’ (s 2.5.4(2) LPA), if it believes, ‘on reasonable grounds that a subject person may have a mental impairment that may result in him or her not being a fit and proper person to engage in legal practice’: s 2.5.4(1) LPA. ‘Mental impairment’ is not defined within the Act other than to state it includes ‘alcoholism and drug-dependence’: s 1.2.1 LPA; but see my comments regarding the Mental Health Policy, below.

Clause 5.3 of the Mental Health Policy states that in managing health assessments, the Board will:

  • ‘properly protect consumers while supporting mentally impaired lawyers to practise, or to continue to practise, where possible;
  • treat mental impairment as a health issue rather than a professional standards issue; (emphasis added)
  • encourage lawyers to voluntarily seek appropriate health care;
  • treat lawyers with mental impairments fairly and sensitively;
  • protect the privacy of mentally impaired lawyers as far as possible while properly protecting consumers.’ 

In the context of my comments regarding disclosures for admission to the profession, however, s 2.4.4(3) LPA states:

‘If a matter was:

(a)  disclosed in an application for admission to the legal profession in this or another jurisdiction; and

(b)  determined by the Board of Examiners or the Supreme Court, or by a body in another jurisdiction having jurisdiction to do so, not to be sufficient for refusing admission—

the matter cannot be taken into account as a ground for refusing to grant or for cancelling a local practising certificate, unless later disclosures demonstrate that the matter is part of a course of conduct that may warrant refusal or cancellation.’

It would seem that if an applicant for admission is successful after making proper disclosure to the Board of Examiners regarding a ‘mental impairment’, that fact would not prevent the applicant from obtaining grant of a practising certificate. Subsequent conduct involving a mental health issue, however, might attract the attention of the Board, and this is where the Board’s Mental Health Policy would be relevant. (What I say here is no substitute for reading the whole of the policy)

Importantly, the Mental Health Policy states at the outset that the purpose of the policy ‘is to encourage such lawyers to voluntarily seek appropriate treatment and to only require disclosure where the impairment affects the lawyer’s capacity to engage in legal practice‘ (emphasis added).

At clause 4.3.7, the Mental Health Policy states that a lawyer will fall within s.1.2.6 LPA in relation to mental impairment, if the lawyer has a medical condition (emphasis added) that is:

  • is characterised by significant disturbance of thought, mood, perception or memory (including alcoholism and drug dependence); and
  • that, without management, has and continues to, or is likely to continue to, adversely affect the lawyer’s capacity to engage in legal practice.

This is similar, but not identical, to the approach taken to ‘mental impairment’ in the Practice Direction, which uses ‘health conditions’ in addition to ‘medical conditions’, and seems to distinguish ‘mental impairment’ from ‘medical conditions’ when providing examples.  I am interested in this point, partly because I recall that during the mental health first aid training undertaken in 2010, the approach was to speak of illnesses such as depression, anxiety, schizophrenia, bio-polar disorder or anti-social personality disorder as diagnosable medical conditions. I wonder also if the expressions used in the Practice Direction are intended to cast the disclosure ‘net’ more widely.

[UPDATE: It is my understanding that most Australian medical practitioners would refer to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) to categorise and assist in the identification of mental disorders.  A revised edition of the manual (DSM-5) is due to be published in 2013. Examples of the application of the DSM-IV for generalised anxiety disorder are available on Wikipedia. It seems to me that the DSM-IV incorporates objective criteria, (eg ‘the person finds it difficult not to worry’, but also potentially subjective elements (eg ‘excessive anxiety and worry’; italics added).]

[FURTHER UPDATE: Apparently each revision of the DSM attracts some controversy. The lead up to the release of DSM-5 is no exception. Some commentators in the mental health field are concerned about the broadening of criteria for identification of certain mental health disorders; see this article in The Age, for example.  It will be interesting to see what impact, if any, this issue has for the development of mental health policy in within the jurisdiction of disclosures for admission to the profession and grant/renewal of practising certificates.]

It seems to me that the Legal Services Board has taken a reasonably enlightened approach to its policy concerning the issue of mental health, so far as it affects suitability requirements for the grant and continuation of practising certificates in Victoria. The Mental Health Policy is reasonably detailed, but uses plain language and seems to indicate some desirable flexibility.

Historically, the threshold for the ‘fit and proper’ requirements for admission appears to be higher than that applied to the grant and renewal of practising certificates, in part perhaps because the admitting authority is one of the ‘gatekeepers’ to the profession. The Board of Examiners has undertaken some very helpful initiatives in recent years with the launch of its website, and the publication of information packs and practice directions for those seeking admission to the profession.

However, I wonder if it might be worth reviewing the material concerning ‘mental impairment’ in the current Practice Direction in light of the approach taken by the Legal Services Board, and the contemporary medical and social responses to lawyers’ mental health and wellbeing? A review might provide further clarity regarding disclosure requirements and reduce some unnecessary anxiety for prospective applicants for admission.

In a positive development, many universities and practical legal training colleges now include modules about lawyers’ mental health and well-being, aimed at improving professional awareness about mental health issues in the profession, and to provide lawyers with resilience strategies.

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