Are We Silent or Silenced?

History of the fit and proper test

The "fit and proper" test has a long history in the legal industry, originating as a way to ensure that individuals entering the profession possess the necessary character and integrity. Scholars date the requirement back to the Roman Theodesian Code and, in its Anglo-American form, back to 13th century England. Globally, this test has been adopted in various forms to regulate not only the legal profession but also other sectors such as finance and healthcare. The test typically assesses factors like honesty, integrity, competence, and financial soundness.

The application of the "fit and proper" test can contribute to a culture of silence around mental health in the legal industry. The requirement to be deemed "fit and proper" often leads to concerns about disclosing mental health issues, as professionals fear it may negatively impact their career prospects or lead to disciplinary actions. This fear of stigma and potential repercussions can discourage individuals from seeking help or speaking openly about their mental health struggles, perpetuating a culture of silence and stigma.

How to destigmatize and align perceptions of mental health with current societal understanding

Formal legal education does not adequately prepare future lawyers for the mental pressures of the profession. The reality is that most law students are already burnt out by the time they secure their first employment opportunity. The contributing factors to this burn out are prolonged periods of study, stress associated with exams and assessments and anxiety due to uncertainty of their legal future.

Studies indicate that it takes 1 – 3 years to recover from severe burnout. The Body Keeps the Score has educated us that what manifests in the physical body is often a result of the culmination of mental and emotional circumstances one has previously experienced.   

According to Bloomberg Law’s 2024 Attorney Well-Being Report, 40% of respondents did not seek or delayed seeking treatment for their mental health. The primary reasons for not seeking treatment were a lack of time (over 70%) and the belief that they could manage on their own. Less than 20% cited stigma or fear of professional repercussions. Employee Assistance Programs are often underutilized in the legal industry for several reasons: stigma, awareness, work culture, confidentiality concerns and perceived effectiveness.

Mental health is no longer being hidden in the shadows. Gen Zers for example, grew up with the full spectrum of awareness when it comes to mental health. Gen Zers have understood the difference between acute symptoms which can be easily managed using self-help strategies and more serious symptoms which require the intervention of professional medical experts. The general societal understanding of mental health is slowly changing to reflect our current lived reality. This is evident in the World Health Organisations definition of mental health, “A state of well-being in which an individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully and is able to make meaningful contributions to their communities.”

Adopting a more progressive approach to mental health in the legal industry involves eliminating the requirement for disclosing mental illness or providing clearer guidelines so that inevitable or consequential mental health stressors are not inadvertently included. Additionally, a more proactive approach would include incorporating An Introduction to Mindfulness in higher education, integrating Mindfulness in Law Continuing Professional Development courses, tailored mental wellbeing training, and mental health & wellbeing workshops, all of which can play a crucial role in destigmatizing mental health issues and educating individuals within the context of modern society.

Will this issue become moot because of AI?

The fit and proper test suggests that higher standards are expected from lawyers. Studies have shown that lawyers experience elevated levels of stress, anxiety, and depression, and they contemplate suicide at double to triple the rate of the general population. However, with the increased use of AI, the democratization of legal documentation, and quicker access to legal solutions, it is possible that the perception of lawyers as professionals will shift toward viewing them more as ordinary businesspeople. A profession arises from a societal need for services requiring specialized knowledge and skills. Increased AI usage, which takes over technical competencies, will reduce the time spent on billable hours, subsequently freeing up lawyers' time for developing soft skills such as emotional intelligence and creativity. Further, AI's democratization of law may diminish the specialized nature of legal knowledge, potentially removing the burdensome requirements of the fit and proper test, which has indirectly contributed to the culture of silence regarding mental health within the legal industry.

By acknowledging the complexities of mental health and its impact on professional practice, we can work towards a more compassionate and resilient legal community which is not silent or silenced.

With light,

The Lantern

References:

1.        https://www.scielo.org.za/pdf/pelj/v14n4/v14n4a08.pdf?form=MG0AV3

2.        https://www.iosco.org/library/pubdocs/pdf/IOSCOPD312.pdf?form=MG0AV3

3.        https://www.jasperfogerty.com.au/blog/mental-illness-in-lawyers-and-the-fit-and-proper-test-insights-from-council-of-the-new-south-wales-bar-association-v-waterstreet/?form=MG0AV3

4.        https://psycnet.apa.org/record/1998-10624-005

5.        https://www.lawgazette.co.uk/wellbeing/improving-mental-health-in-the-legal-sector/5107406.article?form=MG0AV3

6.        https://psc.gov.au/sites/default/files/2021-08/Fit%20and%20Proper%20Person.pdf?form=MG0AV3

7.        https://www.lawyersweekly.com.au/news/16648-disclosing-mental-ill-health-should-not-cost-your-career