Insanity not a defence to professional discipline proceedings

Legal Practitioners Conduct Board v Ardalich [2005] SASC 278

The solicitor referred to in the next post could not escape a finding of unprofessional conduct because of his mental state, even though the species of unprofessional conduct alleged against him was the commission of serious criminal offences to which insanity was a defence. The South Australian Court of Appeal explained:

“42 The admissions made by the practitioner as to his commission of the objective facts associated with each of the counts was sufficient to justify the finding of unprofessional conduct with respect to each count.
43 The practitioner’s mental state, serious though it was, could not deflect the Tribunal from a finding that the charges of unprofessional conduct were made out once the objective facts were proved or admitted. What would otherwise amount to unprofessional conduct does not cease to be such, by reason of the existence of a mental illness on the part of the practitioner, which had the potential to establish a mental impairment defence under Part 8A of the CLCA.
44 The disciplinary provisions of the Act which come into play upon a finding of unprofessional conduct reflect the interests of the public in ensuring that legal practitioners answer to the high standards of probity and competence which must be observed if the integrity of the administration of justice is to be preserved.
45 Mental illness of a practitioner which may cause or contribute towards his commission of acts constituting unprofessional conduct cannot excuse the conduct, but may be a mitigating circumstance in considering what disciplinary orders should be made.
46 I do not use the words “mitigating circumstance” in the sense in which they may be used in the context of the criminal sentencing process.
47 The primary function of disciplinary proceedings is not to punish the practitioner, but to protect the public and the administration of justice by ensuring that that practitioners live up to the high standards expected of them.
48 In determining the approach to be adopted in a particular case, it may be relevant to take into account the fact that the mental illness of the practitioner is of temporary duration and unlikely to recur, or may be successfully treated. Consideration could then be given to the question whether or not the practitioner should be permitted to resume practice, perhaps after a period of suspension, or subject to conditions.
49 There will be cases, however, where the offending conduct was so serious and particularly where it has persisted over a period of time, that evidence of a mental state or illness which explains the conduct cannot be permitted to deflect the court, acting in the public interest, from striking off the practitioner.”

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