From understanding to action— Mental Health Week 2018

We’ve all seen it now. Smart, eager, ambitious law student and graduate enters the profession with the ideals and hope of those around them.

A glittering career awaits.

Until it doesn’t.

The high-pressures of practice become overwhelming. In previous generations they would have sucked it up and kept their head down.

But not now.

Practice can be difficult, it can be testing, high expectations can push even more heavily on our shoulders.But slowly the profession is improving in how we deal with mental health issues.

John Poulsen.

John Poulsen was the managing partner of Minter Ellison Perth and later Squire Patton Boggs Perth then nationally. He agree the profession is slowly changing its attitude to mental health. “A decade ago it was not spoken about and now it is a key topic. Whilst the Tristan Jepson Memorial Foundation (now Minds Count) was established by Marie Jepson nearly 10 years ago, and there was a flood of firms that signed up to the guidelines, it is my view that apart from establishing EAP providers and having HR staff undertaking some mental health training, very little has been done to holistically take onboard the TJMF Guidelines and implement them.”

Sunili Govinnage, a course director for Piddington Justice Project, spoke of the challenges she faces due to depression and anxiety the TJMF’s first major initiative resilience@law while she was a restricted practitioner in 2010.

Sunili Govinnage with the Hon Peter Quinlan SC, Chief Justice of Western Australia, and barrister Tim Hammond.

Govinnage sees mental health as a core aspect of legal practice. “Being mentally and emotionally healthy is fundamental to our profession and practice. Our role is to assist our clients in exceedingly complex and emotional situations. We are knowledge workers and the power of our brains is what clients pay us for.”

“Firms are packaging, marketing and selling the processing power of its lawyers’ brains, so from the simplest business perspective, it is entirely in their best interests for us to be mentally healthy and excited to be at work. The obligations of employers on the occupational health and safety side should be even more obvious.”

She says that the recognition of the issue is a “phase zero”.

In 2011, Dr Christopher Kendall led the Report on Psychological Distress and Depression in the Legal Profession. It detailed challenges of mental health in the profession and made 29 recommendations to counteract them.

At the time Dr Kendall was the senior vice-president of the Law Society of Western Australia and practiced as a barrister from John Toohey Chambers. He went on to become the the president of the Society and is now a Judge of the Federal Circuit Court of Australia.

The reported statistics and findings are alarming and indicate the need for an immediate and well-managed response.
— Law Society of WA, 2011

“While no one recommendation will address every issue detailed in this Report, what is apparent… is the importance of taking a holistic approach to caring for the profession’s mental health and wellbeing”, said the Report. “Legal practice involves dealing with difficult and stressful situations. Lawyers on the whole are not well trained to deal with aggression, difficult clients and high-stress situations.”

These are challenges that the profession is still dealing with, according to Govinnage, who observes that the current approach to mental health in the profession places the onus on individuals to be even more exceptional.

“We all know mental health is important, but the current approach puts the onus on the lawyers to keep doing our job incredibly well, never making a mistake, billing 7.5 hours a day, maintaining our relationships, meditating, eating well, running marathons, going to business development functions, mentoring law students, and sleeping 8 hours a night.”

It’s this expectation to keep going, even under incredible circumstances, was advice given to the Hon Shane Marshall who served as a Justice of the Federal Court of Australia from 1995–2015. When he was first diagnosed with depression in 2008 he said “a senior judicial officer told me that I shouldn’t tell anybody because people would use it against me. I thought I would’ve got greater sympathy from him if I’d walked in with a broken wrist.’’

Like many of us when we are given bad news, Marshall responded by wanting to pull up his socks and get even further into his work. Advice he now calls “nonsense”.

Former Chief Justice of Victoria, the Hon Marilyn Warren AC QC.

Junior lawyers can see this most clearly. The former Chief Justice of Victoria, the Hon Marilyn Warren AC QC, has raised concerns over the pressures of modern practice. “I hear horror stories of young people working through the night, working until the early hours of the morning, unreasonable demands made on their time, not having a social life.”

It is not just now and then or the odd weekend here and there (of long hours).
It is a case of often just sheer exploitation.
— The Hon Marilyn Warren AC QC, former Chief Justice of Victoria, on the pressure on junior lawyers.

These concerns have been echoed by the Chief Justice of New South Wales, the Hon Tom Bathurst AC QC, who told the Commonwealth Lawyers Association in 2012 that he believed the best graduates were avoiding what he calls “megafirms” because the pressure on their practices can be immense.

Warren believes this can be exacerbated because of the many young lawyers who are looking for work. Saying in 2013 that young lawyers believed that if they objected to the excessive volume of work “there is a long queue out in the street waiting to take their place”.

“(The legal profession is one) where one is not permitted to show anything but invincibility.”
— Robert Richter QC

Last year New South Wales Magistrate David Heilpern said “judicial officers are just humans doing a job, and the sooner this becomes the accepted norm, the better the judiciary will be able to serve the community”.

At a conference of judicial officers, one NSW judge told his peers that once he admitted he was seeing a psychiatrist the support he receicved was comparable to being welcomed to “the human race”.

Lieutenant General David Morrison AO, former Chief of the Australian Army and Australian of the Year for 2016, delivered the Tristan Jepsen Memorial Lecture that year. He said “if we, leaders in the workplace … clearly communicate to our employees that they are not alone; that disclosing their circumstances will not result in adverse consequences at work, then we are … ensuring that we are not bystanders”.

As a partner at big law firms, and since leaving, Poulsen believes that clear leadership of “empowerment and trust rather than command and control” is what helps create a mentally healthy workplace.

He centred his own practice on creating “the right values-based culture” built off genuinely listening to and involving the people he worked with, for and above.

Poulsen has always believed in recharging energy by doing the things you love. He regularly exercises and now meditates twice daily.

We waste too much of our lives, worrying about what has happened in the past or what is going to happen in the future.
— John Poulsen

The pressures on lawyers can be immense, and can come from all corners of our lives.

Arthur Moses SC, president of the NSW Bar Association.

Arthur Moses SC, president of the NSW Bar Association, earlier this year wrote about judicial bullying. He refers to a survey undertaken by the Association which found reports of “judicial bullying in varying forms, including belittling, patronising or humiliating comments in front of colleagues and a jury, repeated intimidation and interruptions, angry outbursts and yelling, unreasonable deadlines and gender slurs.

Bullying was experienced by barristers at all levels of seniority, from those with fewer than five years standing through to those with more than two decades’ experience.
— Arthur Moses SC, president of the New South Wales Bar Association

Moses admits that bullying itself does not exist in a vacuum, for the judiciary or lawyers alike. Both lawyers and judges can work long hours, have a lack of sleep and come with high expectations. Courts, too, can be under-resourced.

He says this leads to a concerningly “low quality of working life”.

Govinnage left legal practice this year, and has been recovering after she found that the profession’s current approach to managing depression and anxiety exacerbated her distress.

She says that mental and emotional health is clearly part of our professional obligations as legal practitioners.

“We know we have duties to the court, to our colleagues on the other side, and clients, but we also have duties to ourselves and our learned friends in our own workplace.

For us to be our best as lawyers, as professionals, and as human beings we need to have our brains functioning properly.
We can only do that when our profession and our workplaces set up conditions that allow us to be mentally and emotionally healthy.
— Sunili Govinnage
If you are interested in the Minds Count (previously Tristan Jepson Memorial Foundation) guidelines, they are accessible here.
If the issues in this article has raised concerns for you, please call Lifeline on 13 11 14 or the Law Society of Western Australia’s LawCareWA on 1300 687 327.