The permissible forensic uses of historical mental illness in professional discipline trials

Professor Dal Pont’s excellent text Lawyers’ Professional Responsibility (5th ed., 2013) suggests at [23.145] that mental illness will rarely provide a defence to a disciplinary prosecution, the purpose of which is protective rather than punitive.  He argues, in part, that the public needs protection just as much from the mentally ill who do bad things as from the mentally flourishing who do wrong.  But that reasoning does not have any application where there is not a temporal proximity between the moment of determining liability and the moment at which the putative wrongdoing occurred. In my experience the glacial pace of disciplinary investigations usually mean that the time for setting sanctions is years after the conduct in question.  Very often, I find myself acting for practitioners whose minds are flourishing much more than at the time of their wrongdoing.

I always thought (or perhaps more accurately, hoped) that Dal Pont was a little pessimistic about the possibility of mental impairment being relevant to the determination of the question of whether unsatisfactory professional conduct or professional misconduct is.  True, there are some decisions broad statements in which support that position, but the authorities are a bit all over the place, and there are so many different kinds of conduct warranting discipline and so many fact scenarios that it seemed to me that the law must be more nuanced than some of those broad statements suggested.

Last year, VCAT’s Legal Practice List last year ruled, contrary to the position advanced by Victoria’s Legal Services Commissioner, that evidence of mental impairment was relevant to the question of whether conduct was professional misconduct or unsatisfactory professional conduct, and heard evidence from a psychologist during the liability phase of the hearing.  The two species of conduct warranting discipline arising from a breach of the rules have traditionally been delineated by enquiring whether the breach was innocent or whether it was deliberate or reckless, so that it clearly incorporates a subjective enquiry. VCAT’s decision to hear the psychological evidence on the question of liability was, as I have learnt in the course of penning this post, consistent with that in New South Wales Bar Association v Butland [2008] NSWADT 120.

Now the Supreme Court of NSW has reviewed the authorities and published a useful decision in the matter of BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 (Adamson J), making clear that mental illness may be relevant to the question of liability, as well as to the question of penalty where it is of course of critical relevance, citing Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977), a decision I have not come across before. Essentially, Justice Adamson said, it all depends on whether there was a mental element to the kind of conduct warranting discipline which is charged.  Conduct described as a failure to maintain standards of competence and diligence is not something to which the practitioner’s mental impairment is relevant.  In charges which rely on the practitioner having a particular state of mind do require analysis of the degree to which the practitioner’s state of mind was flourishing.  Professional misconduct at common law is determined by what competent and reputable peers would think of the conduct.  What they would think is affected by the degree to which the practitioner’s mind was flourishing at the relevant time.

Unfortunately for the barrister who was the subject of the disciplinary hearing under appeal in this case, all this meant that though the Tribunal and the Court accepted that her conduct was caused by her psychiatric illness, she was nevertheless properly found guilty of unsatisfactory professional conduct constituted by failing to maintain standards of competence and diligence and acting in the face of a conflict between self-interest and duty to her client.  The test for such unsatisfactory professional conduct does not enquire into the mind of the practitioner, the Court found.  Accordingly, the psychiatric causation was legally irrelevant.

See also this sister post, about the disciplinary Tribunal’s and the Supreme Court’s willingness to allow the practitioner to change her plea, once after the liability hearing but before the delivery of reasons and once on the eve of the hearing of the appeal.

The respondent was a barrister.  She was suffered the mental illness anorexia nervosa.  She often turned up late to court for rostered duty as a Legal Aid lawyer assisting litigants in domestic violence cases, over a period of about 18 months almost five years prior to the disciplinary hearing in the Administrative Decisions Tribunal.  She also rented out her granny flat to her client who had a forensic interest in having and maintaining secure accommodation. Planning issues associated with the flat meant that the client’s occupation of it was far from secure.  Then she sought to evict the client, while continuing to represent her.  Her interests in obtaining rent and evicting her tenant conflicted with her duty to advance her client’s interest in obtaining and maintaining stable accommodation.

The respondent’s final position before the disciplinary tribunal was that:

(a) she did do the things alleged;

(b) but for her psychiatric illness that conduct would properly be found to amount unsatisfactory professional conduct of the species she was charged with; but that

(c) by virtue of the relationship between her illness and her conduct, she should not be found guilty.

The respondent argued by reference to expert evidence that ‘it is likely that her cognitive functioning was impaired by [anorexia nervosa].  In addition, the physical symptoms of the condition caused or contributed to the Respondent’s lateness [to court].’

The Tribunal actually found that the respondent’s psychiatric illness ’caused her lateness for court’, which makes the decision particularly interesting.  It found that ‘she did not appreciate that her physical disabilities were causing her to be late for court’.  It also found that ‘the respondent’s judgment and cognition were affected by the anorexia nervosa with the result that she did not have sufficient comprehension of her conduct nor the ability to properly reason in relation to her conduct [relating to the granny flat]’.

The result was that the Tribunal found, in its reasons, that the respondent engaged in unsatisfactory professional conduct, as pleaded, but determined to take no further action and to order that its findings not be published on the disciplinary register.  It could make such an order in relation to the disciplinary register because it found that the disciplinary action arose wholly or partially from infirmity, injury or mental or physical illness (the test in s. 577 Legal Profession Act 2004 (NSW): c.f. s. 4.4.30 Legal Profession Act 2004 (Vic.)).  The Tribunal also anonymised references to the barrister, and closed the Tribunal’s file to inspection by the public. It imposed no sanction on the respondent.

The Tribunal did not spend a lot of time explaining why, given that the wrongful conduct was actually ’caused by’ the practitioner’s mental illness, she should be found to have engaged in unsatisfactory professional conduct constituted by acting in breach of the rule proscribing conflicts of interest and duty.  After all, if you kill someone without lawful authority but without appreciating the wrongfulness of that act, you are not found to have done wrong.  The reasoning seems to have been that the species of unsatisfactory professional conduct pleaded was that the barrister had ‘fallen short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer’.  Presumably that was taken to mean a reasonably competent lawyer with flourishing mental health, so as to provide an objective test.

As the Tribunal observed at [101]: ‘where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (in s 497(1)(a)), the practitioner’s mental condition may not be relevant.’  In respect of one of the conflict of interest charges, the Tribunal obviously considered it was applying that test (which might have been mandated by the formulation of the charges), because it found that ‘Members of the public are entitled to expect a barrister to act in the interests of their clients. They are also entitled to expect that a barrister will not exploit the client’s position (which in many cases, as here, is a relatively vulnerable one) for the barrister’s own advantage. The barrister’s conduct fell short of the standard of diligence required.’ (My emphasis.)  No argument is recorded as having been advanced that acting in the face of a conflict which the practitioner’s reasoning was such that she could not appreciate has nothing whatsoever with acting as diligently as the public would expect of practitioners.

There is another thing which is worth noting about the species of unsatisfactory professional conduct on which the Tribunal’s attentions appear to have been focused.  It is that the relevant definition of unsatisfactory professional conduct differs from most other species of unsatisfactory professional conduct which state that various conduct is ‘capable of’ amounting to unsatisfactory professional conduct.  Not all such conduct, in other words, necessarily rises to the level at which it is properly described as unsatisfactory professional conduct. Falling short of the standards of competence and diligence the public is entitled to expect of a reasonably competent lawyer seems automatically to be, rather than be ‘capable of being’, unsatisfactory professional conduct under the Act.  It may be that any conduct which is said to be unsatisfactory professional conduct under one of the ‘capable of being unsatisfactory professional conduct’ definitions would warrant an enquiry into the mental state of the practitioner at the relevant time.

Appropriateness of not making a declaration that the barrister was guilty of unsatisfactory professional conduct

The Tribunal did not make a declaration that the respondent had engaged in unsatisfactory professional conduct, consistently with cases such as Victoria v Turner [2007] VSC 362.  The Act provided for VCAT to make certain orders if satisfied that unsatisfactory professional conduct had been established, and not for making a finding of such conduct by way of an order (compare this careful decision of VCAT).

The question dealt with by the Supreme Court on appeal was whether the Tribunal was correct to find that the barrister was guilty of unsatisfactory professional conduct given that her conduct was actually found as a matter of fact to have been ’caused by’ her mental illness.  It is interesting that the Court entertained such an appeal, since it was directed to a finding rather than to any of the Court’s orders.  No doubt that is because the appeal provision provided for an appeal from ‘an order or other decision’ of the disciplinary tribunal.



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