A second chance

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Law societies in other provinces are taking a close look at Nova Scotia’s groundbreaking approach to professional responsibility in complaints stemming from mental or physical incapacity.

Maybe it's the pressures of the job. Or perhaps the profession attracts a certain kind of personality. Either way, studies suggest lawyers and judges are three times more likely than the general population to struggle with mental health issues.

Other research, meanwhile, shows that approximately half of all lawyers who face serious disciplinary sanctions have alcohol or drug addictions, or other mental health issues.

“Essentially, we needed to find a broader and more sophisticated approach to dealing with misconduct arising from incapacity. One that would, if appropriate, divert a struggling lawyer away from the complaint investigation process and toward supervised rehabilitation.” – Marjorie Hickey QC

Until recently, Nova Scotian lawyers struggling with a physical or mental condition that impaired their ability to do their jobs would end up in only one place – in front of a formal disciplinary hearing.

That’s a problem because disciplinary hearings are principally designed to deal with professional misconduct, explains Halifax lawyer Marjorie Hickey QC. The traditional hearing process lacks the mechanisms necessary to address whether or not the lawyer is actually fit to practise in the first place.

“As such, some of the lawyers who end up in a disciplinary hearing do so because they have a physical or emotional problem, including addiction – rather than because of any intentional wrongdoing,” says the former Nova Scotia Barristers’ Society president and current member of the Professional Responsibility, Policies and Procedures Committee (PRPPC).

“The disciplinary process fails to take account of the root causes of their unprofessional conduct, and whether the lawyer is likely to be rehabilitated and reintegrated back into the profession so they can keep serving the public,” says Marjorie.

“Essentially, we needed to find a broader and more sophisticated approach to dealing with misconduct arising from incapacity. One that would, if appropriate, divert a struggling lawyer away from the complaint investigation process and toward supervised rehabilitation.”

Adds Philip Star QC, another past president: “To a large extent, when it came to capacity-related issues, the disciplinary process left us without enough tools in the tool box.”

Innovative approach
Striving for a solution to this problem, the Society launched Canada’s first Fitness to Practise Program in 2011.

Where appropriate, the voluntary program provides an alternate process for lawyers with capacity-related issues who have come into contact with the Society either as a result of self-reporting, reporting by someone else or a complaint.

The program is designed to simultaneously protect the public, address the complaint and offer the lawyer a helping hand to return to practice – thereby retaining experienced professionals in a province that continues to lose key talent to other parts of Canada and abroad.

If, after an assessment, no capacity issue is identified, the matter is referred to the Society’s regular complaints process.

“Under the old system, we lacked the knowledge and the mechanisms to ensure these lawyers received the appropriate treatment before returning to practice. They would be suspended, serve their time, then return to work,” says Marjorie.

“Now, under this program, they’re not permitted to return until they’ve completed the program and until the appropriate remediation has taken place,” she explains.

“So, as a member of the public, I would feel better served by the current process – which serves me by not only, if appropriate, removing the lawyer from practice while incapacitated, but also ensures the lawyer receives the appropriate treatment before returning to practice – instead of simply serving out a penalty.”

At the centre of the program is the Fitness to Practise Committee. Its seven members include five lawyers – three of whom are former nurses – as well as a family physician with addiction experience and a psychiatrist. The committee reviews medical reports and works with affected lawyers to design  remedial agreements that will both protect the public and assist in specifically addressing the incapacity.

Twelve lawyers have entered the program since March 2011. Of these cases, three have been resolved successfully and four have been referred back into the Society’s disciplinary process. The other five lawyers remain in the program. Almost all are battling with mental health or addiction issues.

“The program ... remains a work in progress as the Committee learns about how best to address the issues it encounters,” says Philip. “Each file has been entirely different and brings unique challenges. Innovative solutions are required.” 

Adds Marjorie: “The program fits well with the Society’s advancement during the past decade, in terms of how we see and understand mental health issues. It helps people understand that lawyers too suffer from these problems – and that we need better ways to address them than simply the heavy-handed disciplinary approach.”

Fitness to Practise is a win-win, she says.

“If you look at it from the public’s perspective, they are better served by having lawyers who are capable of practising law engaged in the practice of law. If we can help the lawyer return to where they should be – instead of giving up on them – that serves everyone very well.”