What disciplinary decisions reveal about practitioners’ health

Disciplinary tribunal decisions are a treasure trove for lawyers. They reveal the threshold of acceptable professional practice, factors the tribunal finds persuasive, and how penalties are determined.

Disciplinary

Errors by registered practitioners may rise to the level of misconduct. But a spectrum of other conduct also qualifies. Also, a spectrum of research illuminates how New Zealand’s disciplinary bodies take account of practitioners’ health impairments. While our starting point is New Zealand’s Lawyers and Conveyancers Disciplinary Tribunal (LCDT), the decisions of the Health Practitioners Disciplinary Tribunal (HPDT) and the Teachers Disciplinary Tribunal (TDT) offer equally rich information.

Lawyers’ health and discipline

Lawyers (and other professionals) may face discipline for conduct that is influenced by their health. Physical and mental health issues, as well as substance dependence, feature in many LCDT decisions. For example, in the decisions from 2009 to 2013, the main types of condition cited in the 21 impairment cases were: depression and anxiety (five); substance misuse (three); and stress (three). Additional conditions included an eating disorder, menopause, malingering neurocognitive dysfunction and Asperger Syndrome.1 Fewer decisions involved impaired females (eight) than males (12), and one decision did not disclose the lawyer’s gender. What accounts for this level of mental impairment?

The nature of legal practice

Lawyers’ mental health may be impacted by the very nature of legal practice. Typically, lawyering is very time-consuming and often stressful. The LCDT acknowledged the challenges legal practice poses. For example, in Canterbury Westland Standards Committee v Hemi [2013] NZLCDT 23, the Tribunal observed (at para [3]) that the lawyer “was working extremely long hours”. This, combined with his dedication to his clients and family, left meagre time or energy for the lawyer to manage his psychological condition. Also, lawyers who work with trauma-exposed clients may experience secondary stress. For example, those who represent (or are involved in legal proceedings with) refugees and victims of violence may face secondary trauma.2 Thus, lawyers who work within these fields may be at relatively high risk of stress-related conditions. Research may aid in spotting similar hotspots in practice and designing preventive strategies.3

Isolation

The LCDT has itself recognised that lawyers may feel unable to seek help for their mental distress (see Canterbury District Law Society Complaints (No. 2) Committee v Iosefa [2009] NZLCDT 5). Unwell lawyers often remain silent about their conditions. In many respects this is understandable, given that stigma still attaches to some mental illnesses, with conditions such as anxiety often viewed as weakness.4 Yet isolation may exacerbate the condition, leading to a downward spiral and increased risk of errors or misconduct. For example, the impaired lawyer in Auckland Standards Committee v Pollard [2012] NZLCDT 21 had two previous disciplinary proceedings, a history of mental illness and alcohol dependence. The LCDT noted that, with little support, he was socially isolated.

Importantly, there was evidence that the LCDT did not look favourably upon some impaired lawyers who failed to seek assistance. For example, in a decision involving a female lawyer with depression, the LCDT noted that while “failure to seek proper treatment is understandable at a human level, that is not a responsible response as a professional who is entrusted with important affairs for members of the public” (Auckland Standards Committee 2 of the New Zealand Law Society v Andersen [2012] NZLCDT 17 [74]). Understanding these triggers and crafting preventive responses is key. One example is NZLS’ “Practising Well” initiative (https://www. lawsociety.org.nz/practice-resources/practising-well). It offers access to support and resources for lawyers in three areas: healthy body, healthy mind, and healthy practice.

Health practitioners, teachers and other professions

Other professions are not immune from impairments or substance dependence.5 In the context of healthcare, a recent headline recounted “Pressure so grim doctor spent lunch crying in loo: weary stressed medics emptied of compassion for patients” (Tan, L., Weekend Herald, 27 October 2018). The importance of good health for good practice was magnified in the analysis of all HPDT decisions from 2004 to 2014. One decision reported that a medical practitioner with a head injury was criminally prosecuted for fraud and suspended by the HPDT for nine months (Med09/133P). More recently, a pharmacist who related that he succumbed to a substance addiction was prosecuted under the Misuse of Drugs Act 1975 and deregistered by the HPDT (Pharm14/303). These decisions are informative for preventing errors, avoiding misconduct and representing those who have such impairments.

Similar insights emerge from recent research in the education context. For example, a female teacher had anxiety, depression, medication-induced sleeplessness and PTSD (Complaints Assessment Committee v Teacher, New Zealand Teachers Disciplinary Tribunal 2016/64). She socialised with her Year 11 male student after school hours and turned to him for support during a crisis.

Although this attention seemed to benefit him, and his parents were supportive of the teacher, the TDT concluded that this was an inappropriate relationship. Noting a causal link, the TDT stated that the teacher “would not have found herself in this disciplinary action but for her mental health challenges” (at para [35]). In addition to censure, the TDT placed conditions on her practice (counselling and mentoring for two years) that were viewed as adequate to reduce future risks.

We consider – and hope that you agree – that decisions within and across professions offer abundant lessons for prevention and guidance for best practice.

Please join the authors at the “To Err is Human: Professional Disciplinary Tribunals: Research and Practice” conference, on Friday 15 February 2019 at the AUT City Campus. Topics include: decisions involving vulnerable clients and vulnerable lawyers; how health and mental health issues contribute to misconduct; who receives name suppression and why; patterns of misconduct in aged care facilities; and constructive critique of the Health and Disability Commissioner’s complaints process. For more information or to register for this event, visit www.aut.ac.nz/events.

References:

1. Moore, J., Buckingham, D. and Diesfeld, K. (2015), “Disciplinary tribunal cases involving New Zealand lawyers with physical or mental impairment”, Psychiatry, Psychology and Law, 22(5), 649-672.

2. Seamone, E. (2014), “Sex crimes litigation as hazardous duty: Practical tools for trauma-exposed prosecutors, defence counsel and paralegals”, Ohio State Journal of Criminal Law, 11(2), 487.

3. Moore, J., Forster, C., Diesfeld, K. and Rychert, M. (in press), “New Zealand Lawyers and Conveyancers Disciplinary Tribunal cases involving vulnerable clients, 2011-2017”, International Journal of the Legal Profession https://doi.org/10.1080/09695958.2018.1543119.

4. Stossel, S. (2014), My Age of Anxiety, London, Heinemann.

5. Surgenor, L., Diesfeld, K., Kersey, K. and Ip, M. (2016), “Practitioner health issues featuring before New Zealand’s Health Practitioners Disciplinary Tribunal: An analysis of cases 2004-2014”, Journal of Law and Medicine, 24(3), 590-596.  

Contact Us
Phone 09 303 5270
Fax 09 309 3726
Email reception@adls.org.nz