The Malta Independent 1 October 2023, Sunday
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Don’t stigmatise would-be lawyers

Mark Said Sunday, 4 June 2023, 09:13 Last update: about 5 months ago

Would-be lawyers are being required to state whether they have had any serious physical or mental health issues in the past 10 years or if they have had any addiction-related problems in the past decade. They also require applicants to state where they attended primary and secondary school and to list any litigation they are involved in, including family court cases such as divorces or separations.

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

Just the other day, a would-be lawyer friend of mine was telling me about the parts of his life that would be examined to determine if he was qualified to become a lawyer. Along with questions about speeding tickets, academic history, and violations of the law, he was told, prospective lawyers would need to open up about their mental health, including any diagnosed conditions.

He had always dreamed of going to university to study law and becoming a criminal defence lawyer. So when university stress ran high and support was low, he remembered the type of questionnaire he would have to answer and decided that seeking out mental health resources was not worth the risk to his dream.

"I want to do everything I can to limit my exposure," said my friend, who did not want to use his last name to protect his chance of bar admission. He is not alone.

A wave of support has been building to remove questions about mental health from what is known as the character and fitness reviews of bar applicants. Several states abroad, including the USA, the UK, and Australia, have already done away with them. And now, the few remaining states are deciding whether they will, too.

Students should absolutely get the help they need and not worry about being asked a question that they have to answer and then reveal their medical history. We do not do that with any other physiological condition, and the fact that we still do that for mental health is no longer acceptable in 2023.

Such questions are unnecessary and ineffective in identifying applicants who are unfit and are likely to deter individuals from seeking mental health counselling and treatment. These kinds of questions are counterproductive to the goal of ensuring fitness to practice, unnecessarily invade applicants’ privacy, and impermissibly tend to screen out persons with disabilities based on stereotypes and assumptions about their disabilities rather than focusing on their conduct or behaviour that impairs their ability to practice law in a competent, ethical, and professional manner.

The questions are a relic of a past time, and treatment for mental health conditions should be regarded like any other physiological condition. Tragically, there are still people who do not recognise it as a physiological condition that can be treated but somehow view it as some form of weakness. Removing those questions would go an enormous way towards eliminating the institutional stigma that accompanies them.

Of course, at this stage, there is no available data to suggest that students will be denied entry to the bar because they sought help, but it is perception that matters more than reality. Perception is everything. We can do our best, and we try to do our best to say to students, "Look, the smartest thing you can do is get help’. If students even have the belief or perception that raising the spectre at all is going to be problematic, they are just going to dive in. They are not going to even entertain or explore it. That is what my would-be lawyer friend feels like doing at the moment.

The change by doing away with those types of questions would signify a shift in our understanding of mental health and wellness and would help further reduce the stigma. Law students would then be able to focus on academics and not constantly worry about their efforts being futile given their diagnosis.

Treatment-seeking law students with diagnosable conditions can be capable and competent lawyers. I see and have seen highly functioning, highly respected, highly compensated lawyers who have been suffering from significant amounts of anxiety and depression, some of whom even have issues with substance use, but none of whom would it make any sense to disqualify from practising law.

Mental health may be affecting a lawyer’s performance, just as anyone would do better at a job on a good day than they would on a bad one. But the goal is to determine if the applicant can perform the job, and no studies show that people experiencing anxiety, depression, or stress cannot.

So what should the bar focus on to yield good lawyers? Test their ability and knowledge as lawyers, destigmatise mental illness, and encourage people who want help to get help. It is very simple.

While issues of mental health need to be brought into the open, I feel that the disclosure requirements are a negative. The legal profession suffers acutely from mental health issues, and every effort must be made to improve this. Mental health issues are stigmatised in the community at large and, by way of these requirements, in the legal professions.

The present requirements for disclosure of one's mental health status at the time of admission do not increase the overall capacity and serve to weaken the overall mental health of the profession. The requirement to disclose one's mental health status at the time of admission has a negative impact on the students because it serves as a disincentive to students to seek assistance when they experience mental health issues, meaning students with controlled mental health issues may be self-excluding themselves from the profession for fear of the requirement to disclose, and it serves to further stigmatise discussion of mental health issues.

Only past conduct should form the basis for a recommendation that a person not be admitted. By discouraging students in their formative years from practising good mental health practices such as seeking help when they need it, we are limiting discussion of this important subject and greatly detracting from all of the positive work that is underway in the profession on this issue.

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