Apparently, from now onwards, lawyers may have to divulge any serious physical or mental health problems as part of a holistic test to obtain their warrant. A ‘fit and proper’ test was drawn up by a committee under the purview of the Commission for the Administration of Justice, which is a constitutional body. A section on health issues in which lawyers are expected to declare current and past physical or mental health problems spanning a 10-year period had sparked a stand-off between the committee and Justice Minister Jonathan Attard, who is objecting to some of the invasive questions.

In an age where data protection has become of the utmost importance and privacy one of the most vital fundamental human rights, the Minister’s objection appears to be more than justified. This notwithstanding, there are some related facts which are statistically proven and constitute common knowledge within the public domain.

There are a number of factors that predispose undergraduates to mental issues. Distress and mental health issues among university students have long been an emerging topic of study. Academic and social risk factors can be predictors of anxiety and depressive disorders. Fortunately, recent Maltese governments have put adequate measures to ensure that citizens' mental challenges are handled rightfully to achieve high levels of mentally healthy people. University students endorse high rates of mental health problems and on-campus services are offered and available to cater for them.

It will always remain a challenge in coming up with a satisfactory solution to the challenges problems. Drawing the students' goodwill and desire to have their mental issues fixed is also a challenge as some of them may feel shy or mentally healthy, and there is no need to go through medication. Similarly, identifying deserving students and coming up with radical measures to satisfactorily come up with a solution is also challenging since acquiring the required resources is quite expensive. However, solving the problem is arguably easy through addressing some of the major health conditions that most university students experience.

But would all this render a university graduate who successfully read law not ‘fit and proper’ in the event that he or she might have encountered some mental health problems? We are all unknowingly in a sort of mental health pandemic. Sometimes I wonder whether the problem is one of over-diagnosis rather than an under-diagnosis of mental health problems. The proposed vision for mental health in Malta is based on fostering policies and environments that are conducive to promoting mental health and well-being for everyone, preventing mental disorders among individuals at high risk and providing quality treatment and care to individuals with mental health problems. That is fine and reassuring.

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

Consequently, I contend, in determining whether a person is a ‘fit and proper’ for the legal profession, such person should have integrity, dignity, the possession of knowledge and technical skills, a capacity for hard work, respect for legal order and a sense of equality or fairness. In other words, there should be no evidence of a propensity of conduct that is inconsistent with the qualities of moral soundness, uprightness and honesty that one would expect of a legal professional. Such conduct is incompatible with the ‘atmosphere of mutual trust’ which underpins the relationships that legal professionals have with their clients.

And let us face facts. Stress, anxiety and depression are not uncommon in a lawyer’s life. They are more prone to depression than other people. My lived experience tells me that depression is not uncommon in the legal sector of Malta. When I talk about it, people around me open up and confide in me about their troubles. After all, being a lawyer is a demanding job. The profession has its own host of factors that causes stress and strain.

You have to deal with clients, senior attorneys, other advocates, judges, mediators, receivers, clerks, notaries and the police. You need to interact with professional personnel from other industries such as accountants and IP specialists. All in all, it is essential for a lawyer to meet and deal with a lot of people, each with their own sets of demands and requirements. You have to meet their demands and take care of their interests to succeed and shine.

It is not only the stress and strain involved in your work as a lawyer but also the ruthlessly competitive market, coupled with the economic downturn that much of the world is witnessing today, that makes the situation worse.

I could go on forever but my point is that we should limit the ‘fit and proper’ test to its core and essential meaning and not widen it unnecessarily to open a pandora’s box. Otherwise, we risk law students not asking for help. They will only be terrified of somebody finding out that they have a problem, which will result in their not being admitted to the bar or not being able to get a job. It is really about the stigma that attaches to this issue.

Dr Mark Said is an advocate