Time to legislate on mental health prevention

Back in February 2017 I wrote an article about two junior solicitors who had both been struck off by the SRA within the space of a week of one another for dishonest acts committed ‘in the line of duty’ directly resulting from being under desperate levels of pressure to perform.

I concluded that, while there was no excuse for the actions of those solicitors in question, it takes real guts to admit a mistake and that “anyone who holds themselves out to be infallible is fallible for precisely that reason”.

More than a year and a half later and it seems that nothing has improved in the way of support for stress and resulting mental ill-health in the legal profession.

In a spate of three matters the High Court has recently made very clear that any acts of dishonesty cannot be excused by mental health issues, even when they are either wholly or in part induced by a stressful work environment.

The SRA appealed the “unduly lenient” Solicitor Disciplinary Tribunal (SDT) decisions not to strike off Peter Naylor, Sovani James and Esteddar Macgregor, an appeal which was subsequently upheld by the High Court, accepting there was a distinction between dishonest acts and mistakes.

Exceptional circumstances

All of the individuals’ conduct, which included backdating letters, sending misleading or false emails and in one instance a failure to report misconduct, was found by the SDT in the first instance to be dishonest in nature.

Notwithstanding this, the SDT took the decision to suspend (or suspend suspension) as opposed to striking each solicitor o the roll, as the behaviour of each had arisen as a result of “exceptional circumstances”.

The challenge from the SRA was not based on whether each individual had in fact been suffering from a significant degree of stress, but whether such circumstances were enough to constitute exceptional circumstances so as to mitigate their dishonesty “justifying the imposition of a lesser sanction than striking the solicitor o the Roll”.

Subsequently there has been much dialogue around whether upholding the appeal was justified, or unduly harsh. My immediate focus however, was not on whether the decision to strike off these three solicitors was the appropriate form of punishment.

It seemed to me that the focus was somewhat misdirected. The media attention and public interest would be best directed more at the ‘before’ and less on the ‘after’.

Warning signs

The High Court hearing took place less than a month after Mental Health Day on 10 October. In its initial judgment, the SDT made the following helpful observation: “Management at law rms and elsewhere should be more alert to the warning signs, which included, amongst other things, decline in performance, physical symptoms of distress, and uncharacteristic behaviour such as a drop in reliability. Management should be able to respond appropriately, for example by providing access to external counselling services.”

Conversely, a similar sentiment was expressed only fleetingly and in a rather different tone by Lord Justice Faux: “Whilst in no sense belittling the stress and depression from which the respondents suffered, it was in no sense exceptional. It is sadly only too common for professionals to suffer such conditions because of pressure of work or the workplace or other, personal, circumstances.”

The recent update to the new Health and Safety Executive (HSE) guidelines for employers to include direct references to ‘mental health first aid’ is undoubtedly a very welcome step in a positive direction.

The amendment to the HSE first aid guidance states that employers “should consider ways to manage mental ill health in [the] workplace... such as providing information or training for managers and employees, employing occupational health professionals, appointing mental health trained first aiders and implementing employee support programmes.”

The ideal would of course be for such guidance to one day soon become legislation. To my mind it is simply not good enough to excuse mental ill health caused or exacerbated by an “abominable” work environment as being “only too common”. While this is indeed the very concerning current reality, continued acquiescence will just not cut it when so much is at stake. 

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Pippa Allsop is an associate at Michelmores

www.michelmores.com

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