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The injustice of intolerance: Speaking out about depression in the law

The injustice of intolerance: Speaking out about depression in the law

As two magistrates are forced to publicly plead to save their careers, the Australian legal community's battle to achieve cultural change and remove the stigma associated with mental illness…

As two magistrates are forced to publicly plead to save their careers, the Australian legal community's battle to achieve cultural change and remove the stigma associated with mental illness continues. Briana Everett reports.

"You're taught to look at the negative and be a pessimist. Very good lawyers are exceptionally good at doing that, which is fine, but apply that skill-set to the rest of your life, 'What's wrong with your marriage? What's wrong with your life?' and therein lies a major seed"

Peter Butler, partner, Freehills

"I stand before you to be judged both as a man and as one who holds judicial office ... I have been diagnosed with bipolar II ... I unconditionally accept the diagnosis and take up the challenge to conquer it. I am not alone."

Standing before members of the NSW Legislative Council on 21 June this year, Magistrate Brian Maloney pleaded with NSW Parliament to not remove him from office on account of his recently diagnosed mental illness. As part of his argument, he spoke of some of the many other professionals within Australia's legal and political spheres who also suffer from mental illness.

"Many community leaders, politicians, high-profile personalities and legal practitioners have also been diagnosed with bipolar II," said Maloney in his address to NSW Parliament. "Like me, John Brogden, Andrew Robb and Geoff Gallop face the personal, medical and social challenges of mental illness and have been prepared to speak out about it."

Discussing the importance of speaking openly about mental illness and revealing that he no longer feels ashamed of it, Maloney mentioned the well-known demands faced by those working within the legal profession, adding that three barristers have taken their lives in the last 12 months, as well as two judges in recent years.

"The existence of a judicial officer can be a lonely one," he said. "Looking back and putting it all together, I probably was not handling everything very well at that time ... I did not understand that even then I had a depressive illness. I now wish I had learned about it then," said Maloney, who was diagnosed with bipolar II in February last year after many years on the bench.

Increasing the community's understanding and awareness of mental illness - and removing the shame which still surrounds it - remains a key priority for the Australian legal industry. It is also one which organisations such as the Tristan Jepson Memorial Foundation (TJMF) and Beyond Blue are attempting to address.

"We've come a long way," says Freehills partner and TJMF board member Peter Butler.

"There's a very wide recognition in the profession that we have heightened levels of depression and anxiety ... I think we've made really good steps in getting acceptance that, just like any illness, it's not a terminal problem to have depression."

Talking about the valuable work of the [email protected] initiative, Butler describes the ongoing effort to "drop the idea that there is something wrong in a permanent sense" if someone is seriously anxious or depressed.

"Lots and lots of people have suffered from it at some stage in their career - a third of lawyers suffer from serious depression at some point in their career - and accordingly, it's okay to talk about it. If I had to say what's been the single biggest change in the three or four years it's in that space. I think we've made huge strides there."

Similarly, to keep people talking about the issue, Beyond Blue chairman and former Victorian premier Jeff Kennett AC recently spoke to a group of South Australian managing partners, CEOs, sole practitioners and young lawyers at an event hosted by the Law Society of South Australia. During his address, Kennett acknowledged the stigma that still attaches to mental illness, while also emphasising the importance of understanding the signs of depression and anxiety. He urged the group of lawyers to educate themselves about what the signs of depression and anxiety are so they can not only help fellow colleagues or friends, but also themselves.

Still keeping quiet

Although the legal community has finally started talking about the elephant in the room, the fear of speaking up about mental illness is still very real for many lawyers. Regrettably, the growing preparedness amongst some mental illness sufferers to speak openly about their condition has arguably been delivered a huge blow by the investigations into the conduct of Maloney, as well as Magistrate Jennifer Betts, during which both were forced to publicly air details of their personal life and underlying mental illnesses.

For many members of the legal profession, mental illness is still viewed as a weakness and potential threat to their career - a perception which became a reality for Maloney and Betts.

Before Parliament, Maloney described his public plea to save his job as one of the "most important and humiliating issues that has ever affected" his life.

The calls for Maloney's dismissal following the investigation, which lasted over 12 months, have been met with anger within the legal community and mental health groups which have been working hard to remove the misconception that mental illness and work don't go together, and to encourage people to seek help. Now, any willingness amongst lawyers to disclose their illness has potentially been eroded.

In a recent interview with The Sun-Herald, New South Wales Attorney-General Greg Smith went as far as saying, "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".

In response to such remarks, the executive director of national mental health charity Sane Australia, Barbara Hocking, said in a letter to NSW Parliament: "There is no justifiable reason why he cannot continue to work as a magistrate. If Mr Maloney had recovered from a heart attack would he be sacked for fear he would have another heart attack in the future?

"Under these circumstances, if the NSW Parliament sacks Mr Maloney, it will be sending a very clear message of discrimination to the Australian community - the wrong message."

Hocking believes the Maloney investigation and threat of dismissal will lead to a greater reluctance amongst people to acknowledge their mental illness for fear of losing their job.

"My preference is to fly with a pilot who is being treated for bipolar disorder, rather than with a pilot who is unwell with bipolar disorder but is afraid to seek treatment for fear of losing his job," said Hocking.

"We're really pushing innovation and initiative because more of the same is not going to change anything"

Marie Jepson, founder of the Tristan Jepson Memorial Foundation

For Butler, a major concern for not only the legal profession but also the general community is that people must feel supported and comfortable about any illness they may have.

"An environment which makes that harder needs a serious looking at and changing," he says. "It really worries me that people out there sit there in silence, terrified of the consequences of letting others know what they're going through, because they make it so much worse for themselves and potentially, if their illness is affecting others, so much worse for others as well."

As for suggestions that those who suffer a mental illness should be permanently removed from their job if it affects their ability to work, Butler emphasises that more education is needed to ensure that people understand mental illness is treatable and that sufferers can return to work with the appropriate treatment.

"In as much as there's an inference that if you've got a mental illness you should be taken away from your job in some permanent way, I would seriously disagree with that," says Butler.

"The ranks of the profession, including the judiciary, are replete with people in this space. People who have been through a really difficult time in their lives, for whatever cause, have had proper treatment and are able to go back to their normal productive selves. They are living proof of the fact that a mental illness, anymore than a physical illness, need not be regarded as anything permanent. It just needs to be dealt with and treated."

The need to further educate the community, and ensure that the issue of mental illness is not swept under the carpet, is an issue now all too familiar for Maloney.

"No-one appreciates the independence of the judiciary better than I do, but surely it cannot be the case that because a judicial officer suffers from a mental illness, is properly diagnosed and accepts treatment, they can no longer discharge their duties as a judicial officer," he said.

"If accepting your condition and seeking appropriate treatment leads to a professional ban being imposed on an individual, then we are surely driving the issue of mental illness underground."

The Maloney case and the lack of actual change within the legal profession, according to Jepson, have ensured that mental health sufferers in the legal industry remain, for now, tight-lipped.

"I don't think it's a safe enough environment to [speak up]," she says.

Less talk, more action

Despite the progress made by organisations such as Beyond Blue and TJMF thus far, there is still plenty of work to be done with regard to achieving positive change, particularly for a profession with a notoriously high rate of depression and anxiety and an especially tough culture.

"I would like to showcase the fact that it is possible to change law firms," says Marie Jepson, founder of the Tristan Jepson Memorial Foundation. "The reality is that change starts slowly, but we need to change from just talking about it to the reality of making actual physical change.

"Firms have put things in place. Certainly, the [email protected] initiative was a huge step forward in lawyers actually talking about being depressed, but the feedback is that it's actually caused no real change in the firms."

According to Butler, while the legal community knows all too well the effects of mental illness and the likely drivers of it, the exact reasons as to why the legal profession suffers the most - and how to reduce this propensity - remains an unresolved matter.

"The reasons are very complex," says Butler. "I don't think anyone's got a complete handle on it. We know the pressures of the law and the clients, and that law firms can be very tough. But the area that I think still needs a great deal more work is a greater understanding of the causes of it within the legal profession and what can be done to minimise or eliminate those causes."

A major focus this year, for organisations like TJMF, is addressing the culture within law firms which has been described by some as "toxic".

"There are some that say the culture of law firms at worst can be toxic and, even if that's not true, they can lead to stress levels which aren't helpful to someone who may have a predisposition to anxiety or depression," says Butler, who adds that he personally has not experienced the so-called toxic work environments and has instead felt a great deal of support throughout his career.

Adding to the issue, says Butler, is that lawyers are taught to find what's wrong with an agreement or situation.

"We know that the sort of people who work in the law tend to be competitive and work in an often very difficult, competitive environment," he says. "You're taught to look at the negative and be a pessimist. Very good lawyers are exceptionally good at doing that, which is fine, but apply that skill-set to the rest of your life - 'What's wrong with your marriage? What's wrong with your life?' - and therein lies a major seed."

A recent survey conducted by Beaton Research and Consulting, in conjunction with Beyond Blue, revealed that professionals are still unsure exactly how to manage depression and anxiety disorders in the workplace.

"Only 51 per cent of professionals are comfortable managing the work performance of someone with depression or an anxiety disorder," said Beyond Blue deputy CEO Clare Shann in a statement. "And only 61 per cent feel comfortable working with a colleague who has a mental health condition."

The study, which surveyed almost 18,000 people, provided data on awareness levels and attitudes regarding depression and anxiety levels, indicating that professionals believe their organisation is not well equipped to manage mental health issues in their workplace.

According to the research, although 47 per cent of professionals are confident in their ability to support a colleague with depression, anxiety or a related mental health disorder, professionals generally have low confidence in their own skills and knowledge to effectively manage mental health problems in the workplace.

"Studies like this provide a foundation for professional organisations to consider how they can build awareness and increase the skills of managers to better respond to, and manage, depression and anxiety disorders in the workplace," said Shann. "It's great news that professionals are becoming more aware of depression and anxiety disorders, but it is vital further work is done in this area."

This year, according to Jepson, the TJMF is focusing on best practice and improving the management of firms and, most importantly, encouraging people to think differently.

"We're really pushing innovation and initiative because more of the same is not going to change anything," says Jepson, adding that TJMF's annual lecture for 2011, The Cost of Profit, will be slightly different and will be dominated by more panel-style discussion.

The panel, to be led by journalist and ex-lawyer Julie McCrossin, will also include HopgoodGanim managing partner Bruce Humphries as well as an OH&S barrister and in-house counsel. It will thus "appeal to the broadest possible spectrum of the legal profession", says Jepson.

"The challenge is how do we encourage firms to do things differently?"

Related article:

>> Depression: Marque Lawyers' Michael Bradley on speaking the truth

"To have any hope of achieving progress with this problem, we have to name the cause. And it's very obvious. Our profession just doesn't want to say it."

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