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Test case

Test case

The decision over whether to dismiss a magistrate with bipolar disorder will have serious implications for the issue of mental illness in the workplace, writes Briana Everett.The news that…

The decision over whether to dismiss a magistrate with bipolar disorder will have serious implications for the issue of mental illness in the workplace, writes Briana Everett.

The news that Sydney magistrate Brian Maloney is facing dismissal from the bench because of his 2010 diagnosis of bipolar disorder has rocked the legal profession and raised concerns among mental health advocates.

The prevalence of mental illness within the legal profession is well known, but this latest debate has led many within the industry to question its potential impact on a practitioner's ability to do their job.

This month, the NSW Parliament will decide whether Maloney should be removed from office on the grounds of incapacity, following a recommendation by the Judicial Commission of NSW that he be dismissed.

After failing to overturn the finding of the NSW Supreme Court that he was "incapacitated" for the job, leaders within the political, health and legal spheres have raised their hand in support of Maloney and the rights of people with mental illness.

Along with NSW Premier Barry O'Farrell, MP Andrew Robb, who has also suffered from a mental illness, voiced his concern for Maloney, whom he believes has been unfairly treated because of his bipolar disorder.

"If Parliament sacks him, it would be an overwhelming injustice and we will set back the acceptance of mental illness and the tackling of mental illness by two decades," Robb told The Sun-Herald on 5 June.

Recognising that the public must be protected and justice served, Jnana Gumbert, NSW branch president of the Australian Lawyers Alliance, told Lawyers Weekly: "We strongly oppose discrimination on the grounds of mental illness". But, she noted, "it will always be difficult to strike a balance between those two concerns".

As Maloney embarks on the fight to save his job, some legal and political representatives argue that the magistrate's bipolar disorder has affected his capacity to carry out his judicial duties.

Supporting the commission's findings, NSW Attorney-General Greg Smith told The Sun-Herald: "If your mental condition has a tendency to interfere with the way you carry out your job, then maybe you shouldn't be on the bench."

Last week, Smith tabled the commission's 155-page report after Maloney lost his attempt to prevent the matter from proceeding to Parliament.

Since his appointment as a magistrate in 1996, Maloney has been the subject of a number of complaints, some of which were classified as "minor" and later dismissed. However, there have been further complaints regarding his conduct in court, leading the commission to form the opinion, in 2010, that he "may be mentally unfit to exercise efficiently the functions of a judicial officer".

As a result, on 20 May 2010, the conduct division of the commission requested Maloney undergo psychiatric examination, which finally led to him being diagnosed with bipolar II disorder. Three psychiatrists confirmed the diagnosis, saying that he has probably had the mental illness since the

1990s. In its report, the conduct division stated that Maloney's "inappropriate conduct" has been "substantially caused" by his bipolar disorder.

Given that he has served much of his time on the bench undiagnosed, the calls for Maloney's dismissal have been met with frustration and anger from mental health groups over the lack of support in the workplace for people with mental illness.

There are also fears that the stigma attached to mental illness will only be reinforced by this recent incident, especially if Parliament decides against Maloney.

"The difficulty with having this played out in the media is the stigma that is going to attach to anybody who does disclose that they have a mental illness," says Julie Hourigan Ruse, chief executive officer of the NSW Consumer Advisory Group - Mental Health. "It's well recognised within the legal profession that mental illness is a serious concern and this will just push it further underground."

Gareth Bennett, director of people and development at Freehills, agrees. "I think it's a very sad case ... it certainly makes people very hesitant to speak up," he says. "We have to make it safe for people to speak up. We need to make sure mental illness isn't swept under the carpet."

According to Hourigan Ruse, with the appropriate support and medication, there is no reason why a person with bipolar cannot perform their duties as well as any other person.

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Test case
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