My practice has had me thinking a lot recently about the professional discipline of the mentally ill. The legal profession has caught up with the medical profession by coming up with good policies which make clear that where mental illness can be managed in such a way as to protect clients and others to whom lawyers owe duties, managed practice by the mentally ill should be encouraged and supported. For example, see the Legal Services Board’s policy. The Board’s CEO, the Legal Services Commissioner Michael McGarvie, has been talking about the policy in recent weeks, and so has a Federal Court judge been talking about his own long standing clinical depression. This post looks at what might be a sad case of a mentally ill lawyer who defended himself, and got me thinking about how mental illness is treated when it emerges in the course of investigation of disciplinary complaints.
If mental illness is not relevant to the test for professional misconduct, as the Commissioner argues and at least one text asserts, I wonder whether the Commissioner should be given a discretion not to prosecute where he finds it reasonably likely that VCAT would make a finding of professional misconduct, but the practitioner does not presently hold a practising certificate and their conduct is at least in part explained by mental illness.
Under the legislation as interpreted by the policy, lawyers must notify mental illnesses which are characterised by significant disturbance of thought, mood, perception or memory that, without management, are likely to continue to adversely affect the lawyer’s capacity to engage in legal practice. How a lawyer under medical care would be without management might be a difficult thing for the lawyer to know. But a disclosure is likely to lead to a health assessment by a psychiatrist nominated by the Board the result of which is at the Board’s expense, inadmissible in evidence and strictly confidential, which seems pretty reasonable.
In LSC v PJ  VCAT 772, the practitioner said he suffered from bipolar disorder. He had engaged in extraordinary conduct, writing letters which ranted in a way most atypical of a lawyer in full health.
He threatened his client without the faintest legal foundation to charge interest on arrears of fees of $7,100 at 15 times the permissible rate, which is to say $6,428 per annum. VCAT described the threat as ‘laughable’.
He disclosed without prejudice communications inappropriately, leading VCAT to comment that ‘It is … hard to understand how a solicitor with 13 years’ experience practising in the area of employment law (plus over a decade of other relevant experience prior to that) could disclose a without prejudice offer made in the course of the conduct of the proceeding it related to.’
The practitioner was banned from practice for a year, ordered to pay the Commissioner’s costs of the plea, and ordered to undergo a mental health assessment to determine whether he is fit for practice prior to the issue of any future practising certificate. Presumably the ‘mental health assessment’ is a ‘health assessment’ of the kind referred to in Division 3 of Part 2.5 of the Legal Profession Act 2004. The order was made with the practitioner’s consent, but it is interesting that the Commissioner wished to have the Tribunal require the Board to conduct such an investigation at the Board’s expense regardless of the evidence given as to the practitioner’s state of health at the time of any application, since the Board must consider in every application for grant of a certificate whether the applicant is fit for practice, which includes whether he suffers any ‘material mental impairment’.
The relevance of the practitioner’s mental illness was dealt with in the following way:
- In his application for renewal of his practising certificate in May 2013 [which was not proceeded with], Mr L disclosed that he suffers from bipolar disorder. Mr Snow suggested this could explain, or contribute to, his intemperate conduct. Mr L said it is controlled by medication under the supervision of a psychiatrist and his general practitioner. While saying he felt generally well, Mr L did not, deny that the condition could have some effect. No medical evidence was led about this, however.
- In the circumstances, and given Mr L’s agreement, I will impose the requirement that Mr L obtain a mental health assessment before being issued with a practising certificate in the future.
- In terms of specific deterrence, I am concerned that Mr L did not have full insight into the significance of his conduct the subject of all three charges, as described above. As noted, to some extent, he still seeks to justify the language he used in his correspondence to his client. Also, his submissions in relation to charges 2 and 3 did not demonstrate a full understanding of why the interest he charged was so excessive, and why it was wrong to disclose the without prejudice offer made.
- General deterrence applies here as well, given that the conduct comprised breaches of such fundamental duties of practitioners. Certainly, Mr L’s conduct harms the reputation of the profession and public confidence in it.
But for the fact that the orders proposed for the Commissioner were consented to by the practitioner, one might say that there is a tension in the reasoning. If the practitioner was so mentally unwell that he must undergo a health assessment regardless of how many years after his psychiatrist thinks his condition was stabilised he applies for a practising certificate again, one might think the possibility worth exploring that the mental illness was sufficiently severe as to explain the ranting language, grandiose claims, inexplicable lapses and self-destructive lack of insight displayed at the hearing, and greatly ameliorated its wrongness.
Having read the decision, I wondered what would have been the outcome had a psychiatric report been commissioned and tendered, and had the practitioner not represented himself. It is quite possible that every opportunity for that to occur was sensitively provided and not availed of. Where such opportunities are not taken up, and the practitioner is competent to make those decisions, even if not as rationally as a person in more perfect health might, that is a decision which a prosecutor and a disciplinary Tribunal must respect. But if that did occur, it does not stop me from feeling a degree of sympathy for this unwell person who defended himself in what must have been a lonely and difficult prosecution.
It will be interesting in light of s. 4.4.30 of the Legal Profession Act 2004 to see if this decision ends up on the disciplinary register. Now that it has been published on Austlii for the whole world to read, the practitioner might regard any successful application under that provision to be of little moment.