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R U OK? USC Law Student’s Association R U OK Day Mental Health Forum

Last night, I was invited to be a panelist at the University of the Sunshine Coast Law Student’s Association R U OK Day Mental Health Forum.

 
R U OK?
Last night, I was invited to be a panelist at the University of the Sunshine Coast Law Student’s Association R U OK Day Mental Health Forum.

One of the discussion topics was to be “How mental health affects admission as a lawyer ?” Apart from knowing that there is a general question on admission and renewal forms requiring a declaration as to meeting the “suitability” matters set out in section 9 I confess to not immediately knowing the proper answer.

What does “suitability” mean? We also all know that mental health is a fluid (or cumulative) condition ranging from a temporary ailment treated within a short time frame to a permanent disability, so questions of “suitability” arise upon renewing of our practicing certificates as well.

It transpires that only recently, this question was considered – extensively as you would expect – by Justice Carmody, President of QCAT in  Doolan v Legal Practitioners Admissions Board [2016] QCAT 98.

The general background facts related to a preliminary application by a prospective applicant for admission for a declaration as to suitability where the applicant was concerned that his mental health condition (alternate diagnoses of schizophrenia or Asperger disorder) would prevent his admission. The Legal Practitioners Admission Board had refused to make such a declaration.

“Suitability matters” are defined in s9 of the Legal Profession Act (Qld) 2007.   Relevantly at sub-para (m) it states that a suitability matter includes “whether the person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner”.

It is noteworthy, as discussed by Justice Carmody that “inherent requirements of practice” are not defined in the Act. I commend the entire judgment for reading however the decision from paragraph 72 resonated strongly with me and is what I armed myself with before I headed off to this forum to be grilled by the eager young minds of tomorrow;

     [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.

    [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. 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. 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 and federal laws.

    [76] As Moffitt P said in Re B:
“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, 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”.

    [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.”
[Emphasis added - Citations and footnotes removed]
 
Read the full decision here: Doolan v Legal Practitioners Admissions Board [2016] QCAT 98

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