Law Society challenges SRA's proposed changes to health and wellbeing rules

The Law Society said there was no evidence to back the proposed changes

The Law Society has said proposed changes to the Solicitors Regulation Authority’s (SRA) rules and Codes of Conduct on ‘wellbeing and unfair treatment at work’ and ‘health and fitness to practise’ could lead to solicitors being required to provide confidential medical information to their employers and the SRA, and having conditions placed on their practising certificates at any point.

The SRA launched a consultation in March which closed today (27 May). It said the aim of the consultation was to clarify its approach to the appropriate treatment of work colleagues and health and fitness to practise.

In relation to wellbeing and unfair treatment at work, the SRA proposed:

• In the Codes of Conduct, the addition of an explicit obligation on individuals and firms to treat colleagues fairly and with respect, and not to bully, harass or unfairly discriminate against them; and
• Requiring firms and individuals to challenge behaviour which does not meet this standard, to foster a collegiate approach and a culture in which poor behaviours are not tolerated.

With regard to health and fitness to practise, the SRA has proposed two rule changes to “make it explicit that fitness to practise as a solicitor means the ability both to perform the work of a solicitor and to meet the obligations of a regulated professional”. It said: “If someone is not fit to meet those obligations because of health issues, or for any other reason, then they are not fit to practise. Our proposals will also clarify that we may act to address such health issues at any point when these arise”.

It has proposed an amendment to Rule 2 of the suitability rules to enable to SRA to consider health issues which raise a regulatory risk, at the point of admission as a solicitor.

It also proposed an amendment to regulation 7.2 of its Authorisation of Individuals Regulations. As a result of the amendment, where appropriate, the SRA may refuse to issue a practising certificate (PC) or grant registration as a European or foreign lawyer, or impose conditions on a PC or registration, to address concerns about fitness to practise on health grounds. It may impose conditions on the individual:

• to follow treatment recommendations of an appropriate healthcare practitioner;
• to work under the supervision of a senior solicitor;
• to limit their practice to a certain area or function.

The conditions would be reviewed annually at renewal and could also be reviewed at any time at the request of the individual or on the SRA’s initiative. The conditions could be amended or lifted if medical evidence showed the risk being managed by the conditions has been successfully addressed.

It said that where conditions have been imposed in response to a health issue adversely affecting the individual's ability to participate in a disciplinary process, the lifting of the conditions may lead to the disciplinary process being resumed where appropriate.

Law Society president, I. Stephanie Boyce, commented: “We share the SRA’s wish to support a healthy profession where everyone is afforded respect and dignity. However, we oppose the need to introduce additional regulation to achieve this.

“Existing SRA principles cover solicitors’ duty to act with integrity, uphold public confidence in the profession and encourage equality, diversity and inclusion.

“We do not believe the SRA has provided sufficient evidence to justify the introduction of additional regulatory requirements”.

Boyce said the Law Society would like to see more guidance and communications to highlight good practice, particularly around speaking up and challenging behaviour in the workplace. She added: “Such guidance should be sensitive to how difficult it can be for some people to speak out, such as junior staff or those in a minority”.

With regard to the proposals dealing with health concerns that could affect how a solicitor provides services to their clients, Boyce said the Law Society opposed them: “They are unclear, lacking in transparency and run a high risk of being used in a wider way than has been covered by the consultation – which suggests they would primarily be used with an individual’s ability to engage with enforcement processes.

“The proposed new rules could see solicitors have conditions placed on their practising certificates at any point, they could be required to provide confidential medical information, and that this could have a knock on effect on the attitudes of employers towards affected individuals.

“Given these risks the SRA should have a strong body of evidence to introduce this proposal and they do not”.

Boyce concluded: “The Law Society’s offer to work with the SRA on this issue stands. Solicitors engaged in regulatory work have in-depth knowledge of the issues the SRA raises and the Lawyers with Disabilities Division should be involved in any proposals that could affect their members.”

The Law Society’s full response to the consultation is available here.