SRA urged to tackle mental health problems with ‘fitness to practise’ regime

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Bennett: Enormous credibility test for the SRA

The Solicitors Regulation Authority (SRA) needs to activate a dormant power that allows it to introduce ‘fitness to practise’ rules, in the wake of yesterday’s ruling about the role of mental health in solicitors’ misconduct, regulatory experts have argued.

The High Court ruled that the pressure of work or extreme working conditions “cannot either alone or in conjunction with stress or depression” justify not striking off dishonest solicitors.

As a result, it struck off three solicitors whom the Solicitors Disciplinary Tribunal (SDT) found to be dishonest, but only gave suspended suspensions due to mental health issues at the relevant times.

The tribunal routinely strikes off those found to be dishonest unless there are ‘exceptional circumstances’, which these mental health problems were found to be.

In the cases of Sovani James and Peter Naylor, the problems were caused by their work environments, with the court recognising in particular the “toxic and uncaring” culture of the firm Ms James was at.

Section 31 of the Solicitors Act 1974 empowers the SRA to make rules “for regulating in respect of any matter the professional practice, conduct, fitness to practise and discipline of solicitors” – the ‘fitness to practise’ provision was added by the Legal Services Act 2007 but the SRA has yet to make any rules.

Paul Bennett who acted for Ms James before the SDT and as junior to Geoffrey Williams QC in the High Court, said this change “in effect create a health jurisdiction for solicitors akin to those in healthcare disciplinary jurisdictions at the discretion of the SRA”.

The partner in the Shrewsbury office of Aaron & Partners continued: “There is now an enormous credibility test for the SRA to address the statutory provisions and to ensure that as profession we do not discriminate against those with any physical or mental impairment.

“The Legal Services Act 2007 is now over 10 years old and the statutory opportunity to support those encountering ill health has not yet been taken by the SRA…

“It must be hoped that mental health campaigners, charities and the Law Society will now get behind a campaign to ensure the SRA adopts fitness to practise rules, raise awareness of the health issues across the profession and to create a supportive environment to protect the public and promote good mental health practice across the profession.”

Iain Miller, a legal regulation partner at London firm Kingsley Napley and general editor of the textbook Cordery on Legal Services, agreed.

“The ruling serves to highlight the need for a system to deal with health, including mental health, outside a disciplinary process,” he said.

“Otherwise, as happened here, cases will be run solely through the prism of disciplinary concepts such as dishonesty which are not appropriate for dealing with the underlying issues.

“The Legal Services Act gave the SRA the power to implement such a system over 10 years ago and it is in the interests of the public and the profession that they do so.”

However, Nigel Wallis, a legal services specialist partner at Liverpool law firm O’Connors, said the SRA did not need to make any further rules about fitness to practice.

“The rules are already clearly set out in the SRA Principles with which every solicitor must comply if he or she wishes to practice. The obligation to adhere to these principles is what sets qualified solicitors apart from non-qualified legal advisers and this distinction will become increasingly important as the legal landscape evolves.

“Clients need to know that, in return for engaging a qualified solicitor, the solicitor must abide by a set of professional rules, with material consequences for any failure to do so. This is the foundation stone of the solicitor brand.”

Robert Forman, senior consultant solicitor at London firm Murdochs – who acted for the other two solicitors in the case – said: “The court recognised that there are degrees of dishonesty and of culpability for it, and that mental health and workplace environment issues should be considered as part of the balancing exercise when assessing whether there are exceptional circumstances.

“However, we are disappointed that the court wasn’t persuaded that the SDT had conducted that balancing exercise correctly, and that clinically diagnosed mental ill health caused by factors beyond the control of these solicitors, psychological vulnerable predispositions and workplace environment issues was not exceptional.

“In our view there remains insufficient understanding of how mental ill health can impair decision-making function; expert reports seen suggest that the impairment can be such to render any consciousness of a dishonest act all but meaningless e.g. where the illness renders the solicitor almost powerless to act otherwise.”

In a statement, the charity LawCare said the cases showed why “everyone in the legal community needs to take the mental health and wellbeing of lawyers seriously”.

“Mental health in the legal workplace is a leadership responsibility. We call on leaders from across the community – from regulation, education, professional bodies and practice – to work with each other and LawCare to develop best practice to improve the working culture in the law…

“These cases have been devastating for the solicitors involved, their firms and their clients, and may have been avoided had these lawyers been better supported in the workplace and felt able to talk about their problems.”

Mr Bennett said the ruling had “significantly narrowed” the meaning of ‘exceptional circumstances’.

“This is in significant contrast to every other profession. Doctors and healthcare professionals in similar cases and for similar conduct cases are forgiven despite patients trusting their lives to healthcare professionals.

“The High Court has therefore set out, perhaps without intending to, the strongest possible argument as why the SDT must retain the burden of proof of beyond all reasonable doubt because the sanctions are more severe for solicitors than in any other profession.

“Such strict sanctions inevitably mean the SDT must be certain before ending a career that in any other profession would have the opportunity to be preserved.”

John Gould, senior partner of London firm Russell-Cooke and a regulatory specialist who wrote The Law of Legal Services textbook, said the High Court had restored the conventional approach to dishonesty, confirming that if dishonesty is found it almost always means that a solicitor is unfit to practise.

“With the standard of proof likely to change in the SDT, it may be time to consider whether dishonesty is the right proxy for fitness to practise in integrity cases. No dishonesty is minor but the theft of client money says more about a person’s character than, say, a misleading series of emails.”

Another specialist in legal regulation, Birmingham solicitor Jayne Willetts, added: “It is a sad day for the profession when the High Court concludes that the stress and depression suffered by respondents was ‘in no sense exceptional’.

“It stands to reason that the mental health problems which were supported by expert evidence must have affected the decisions that these respondents made at the time and yet they find themselves without a future in the law.

“The SRA needs to adopt a more compassionate approach in these type of exceptional cases.”

Andrew Katzen, head of regulatory law at London firm Hickman & Rose, said the decision in the James case was wrong in principle and in practice.

“Of course, Ms James’s dishonesty should be punished, but the decision to bar her from ever working as solicitor again appears to me to take no account of the appalling context in which her actions took place.

“The judge described her working conditions as ‘abominable’ and her treatment in being forced to work 19 days in a row as ‘dreadful’.

“Sadly, these types of working conditions are far from uncommon. I believe the pressures that young lawyers now work under are greater than ever before.”

Mr Katzen said it was “deeply depressing” that rather than address these fundamental issues in the profession, “the SRA is instead appealing for harsher punishment of those who have fallen foul of them”.

He contrasted the case with that of Dr Bawa-Garba, “where a more enlightened approach, focused on rehabilitation and public interest considerations, was taken to a junior doctor who was found to be responsible for the death of a child”.

He added: “All in all, this demonstrates that the proposal to lower the standard of proof in the SDT should not go ahead. A rigorous standard is needed if professionals are to have their careers ended in these circumstances.”

Mr Bennett said the ruling was “devastating on a personal level” for Ms James, “who had tried to rebuild her career away from the eye-catching headline aspects of this case” but now has to try and carve out a career in another field.

“Miss James had apologised for and accepted her grave error in uniquely challenging circumstances. The High Court decision represents the end of a legal career which many observers will view as unnecessarily harsh and unforgiving given the mental health context.

“The SRA position on the limits of exceptional circumstances was entirely based on policy and their in-house legal team displayed fairness and compassion throughout what was a challenging case for all parties.”

An SRA spokesman said: “We welcome the clarity that the High Court judgment brings.”

• LawCare’s free and confidential helpline is available on 0800 279 6888 from 9-7.30 weekdays and 10-4 weekends and public holidays, for support and advice relating to stress, depression, alcohol misuse and other health issues which may affect lawyers’ ability to practice. Its website is here.
• On 27 November, the Legal Professions Wellbeing Taskforce is running an event in London on creating mentally healthy workplaces. Click here for the details.