When it comes to dealing with lawyers with mental-health illnesses at the Law Society of Upper Canada, the path to change could begin with a look at one of the country’s smaller provinces.
In Ontario, the idea of an alternative form of discipline for lawyers who suffer from mental-health issues recently surfaced in a unique hearing panel decision. In Nova Scotia, such an option is an already established program.
“We’re quite proud of this nascent program,” said Timothy Daley, president of the Nova Scotia Barristers’ Society, as he described his province’s Fitness to Practise program during Convocation on May 30.
When a complaint against a lawyer arises that relates to mental-health issues, the Nova Scotia Barristers’ Society offers the member a chance to appear before a separate hearing panel. That hearing panel includes a psychiatrist, a physician with experience in addiction, and three lawyers with a history of mental-health issues.
“With the consent of the member who is the subject of the complaint — and that complaint could come from the member bringing him or herself forward, which has happened, or the executive director bringing the matter forward for consideration or the complaints investigation committee itself determining that it’s appropriate — they can funnel it through the Fitness to Practise program,” Daley told benchers.
“With the consent of the member, they go before a separate committee.”
The Fitness to Practise
committee “reviews medical reports and works with the affected lawyer to design an agreement that will both protect the public and assist in addressing the incapacity,” the barristers’ society web site says.
“In Nova Scotia, like all provinces, we have an aging population, even more so in our province,” said Daley.
“We have some of the oldest cohort of lawyers in the country and rural areas, where I practise, they’re even older,” Daley said.
“What we’re going to see and have begun to see is a rise in issues of dementia, issues of Alzheimer’s. We also have the concurrent and pre-existing problem of mental-health challenges among lawyers, particularly depression.
So we have the same sorts of tools in our toolbox but we are frustrated with our hearing processes and our discipline processes about what to do with that. How do we help these lawyers while protecting the public interest?”
Daley’s speech at Convocation follows a recent law society hearing panel decision that considered an alternative process for dealing with practitioners who suffer from mental-health issues.
In a decision dealing with a paralegal who couldn’t co-operate with an LSUC investigation due to depression, hearing panel chairman Larry Banack said it was time the law society considered a different approach to licensees who bring a mental-health defence.
Banack noted “the public interest in regulatory cases arising out of mental illness can be satisfied by means other than formal disciplinary proceedings, particularly in cases as the one before me, where the licensee is already administratively suspended.
Having regard for her condition, demonstrated during her testimony and her lack of financial resources, she is no risk to the public and she is likely to remain suspended for a significant period [of] time.”
He continued: “In Toronto, we are familiar with the important and positive outcomes that are achieved in respect of offending behaviour dealt with in a mental health court.”
Daley told law society benchers he understands the need for alternatives on a personal level.
“I’m a huge fan of this only because — not only, but in part — because I myself suffered a major depression in my career that was quite debilitating and almost ended what had been to that point a relatively successful career,” he said.
“So I think all of us in this room will know people and many of us will have experienced these kinds of debilitating problems and we’re quite proud of this nascent program that allows us a different set of tools, a more thorough set of options to bring lawyers through these crises in their lives.”
Lawyer and therapist Doron Gold of Homewood Human Solutions says discussions around the topic of mental health in both Ontario and Nova Scotia are signs of “very constructive progress.”
The Nova Scotia program makes a good case for other provinces that an alternative way of discipline “can not only be done but it should be done,” says Gold.
“I think it is very much a worthy enterprise.”
The alternative panel used in Nova Scotia is promising, he said. If Ontario implements a similar panel, Gold says he’d like to see a psychologist or a social worker on it as well.