Progress to be made on mental health

In the last several years, thankfully, the Law Society of Ontario has finally started to recognize the true diversity that exists in our profession.

In the last several years, thankfully, the Law Society of Ontario has finally started to recognize the true diversity that exists in our profession.

There have been different strategies to deal with women in the profession, sexual harassment and ethnic diversity, as well as addiction and mental health issues.

Similarly, recent Law Society Tribunal decisions make it clear that the LSO has a mandate to abide by the Ontario Human Rights Code in its investigatory and disciplinary powers and specifically to accommodate those with addiction and mental health issues.

This is a far cry from when I was called to the bar 25 years ago, when sexual harassment was rampant, minorities were underrepresented at all levels of the profession, at the LSO, women who wished to have children often became second-tier lawyers and addiction and mental health issues were never even mentioned.

So why am I not jumping for joy at all this progress and understanding?

It’s because, with my unique vantage point as a lawyer who regularly defends lawyers at the Law Society Tribunal and assists lawyers in crisis as a volunteer with the Members Assistance Program, I see the need for more efforts to help lawyers facing these issues recover and thrive.

This would be much more noble and beneficial as opposed to simply punishing them with lengthy investigations and discipline proceedings that almost always result in suspensions and the permanent tarnishing of one’s public image.

The LSO has, admittedly, been great in terms of opening up the discussion on addiction and mental health issues and making it OK to talk about the issues and to seek help.

But I believe lawyers with addiction and mental health issues are still those most likely to end up at the Tribunal being disciplined.

The expression “good people doing bad things” is apt here.

Even in cases of misappropriation — the most serious of all transgressions a lawyer can commit in the eyes of the LSO — most members in this situation were not deliberate frauds or thieves; they simply lacked judgment and common sense owing to their addiction and/or mental health issue.

And yet the LSO’s way to deal with these things is to punish lawyers by putting them through extensive investigation proceedings, often stripping the lawyer of the ability to practise through an interlocutory suspension, and then disbarring the offending lawyer.

Other professional regulators have been known to take a more humane approach when dealing with members who run afoul of the regulations due to addiction and mental health issues.

The Ontario College of Nurses is one such example.

A member who is the subject of discipline proceedings as a result of an addiction or mental health issue may be offered the opportunity to voluntarily surrender their licence on a temporary basis.

The public database merely reflects a voluntary surrender with no indication as to why.

The member then enters into a course of treatment for their addiction or mental health issue, and when the member is fit to practice, the member comes back for a capacity hearing.

If the College agrees that the member is fit to practise, then the licence can be returned, without any big hullabaloo or public scrutiny. This has a two-fold effect:

Discipline matters are stayed and the member gets the help they need;

The lack of public shaming allows the member to obtain alternate employment outside the profession if they wish.

By contrast, the LSO lists on its public database all discipline outcomes with no sunset date.

As a result, there is a permanent public record against the lawyer.

While protection of the pubic mandates that lawyers who pose a danger are publicly identified, there is no practical basis for what is essentially an ongoing public shaming for a lawyer who is trying — after dealing with their addiction or mental health issue and serving whatever penalty the Tribunal deemed appropriate — to re-establish their practice.

It’s far better to have the public database time limited.

For example, if you recover from your addiction or mental health issue and do not get into any additional trouble with the LSO for a certain period of time, the public notation gets taken down.

Further, the resources involved in investigation and discipline, when the addiction or mental health issue is apparent from the beginning, are a waste of the LSO’s money.

Fewer resources could be far better spent assisting the lawyer in recovery from their addiction or mental health issue and reintegration into practice.

None of this need interfere with the LSO’s duty to protect the public.

Despite all of my comments above, I remain optimistic that we are moving in the right direction.

That the tribunal decisions now recognize the duty to accommodate under the Ontario Human Rights Code and that the LSO is at least studying and talking about issues affecting women and racialized lawyers is something I could not have imagined 25 years ago.

But the real progress will come when the LSO commits to using its significant resources to help lawyers who run astray due to addiction or mental health issues with recovery rather than squandering those resources on discipline.

Darryl Singer is head of Commercial and Civil Litigation at Diamond & Diamond Lawyers LLP and frequently represents lawyers and other professionals at discipline tribunals.

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