Today's The Australian newspaper Legal Affairs section featured an article by my NSW Bar colleague Jeffrey Phillips SC "Law Council affirmative action creates insurmountable obstructions on the level playing field". As a member of the Bar of 21 years standing, I have no hesitation in expressing my preference to be briefed on the basis of my seniority, expertise and experience.
But this is not a blog post about the adoption of a gender equitable briefing policy (noting that Jeffrey's opposition does not reflect the view of the Australian Bar Association). Rather, I want to focus on Jeffrey's comment that the promotion of the policy is
"taking place at a time when depression is a real problem among the Bar. In the past few years I have known three male Sydney barristers who have committed suicide, financial pressure being an overwhelming factor with one of them."
Sadly, the problems of depression and suicide are shared amongst male and female barristers alike. Every individual, firm and chambers will have had some encounter with the damaging effects of psychological ill-health and its sometimes fatal consequences. This is hardly surprising given that more than 1 in 4 barristers, 1 in 3 solicitors and almost half of all law students are at high risk of suffering a diagnosable mental illness. In 2015, the Law Council of Australia’s National Attrition and Re-engagement Study found that 50 per cent of women and 1 in 3 men had been bullied or intimidated in the workplace.
In February 2016, in an address to the National Wellness for Law Forum, Justice Anna Katzmann observed ("Re-wiring the law" (FCA)  FedJSchol 1):
“For far too long the profession has been in denial about its high levels of mental ill health. We considered it critical to our success that we presented an image of strength and invulnerability at all times; anyone who did not fit the image was expendable. Consequently, those who battled with mental ill health did so in silence, at great cost to themselves and their loved ones.”
The Tristan Jepson Memorial Foundation is an independent, volunteer, charitable organisation whose objective is to decrease work-related psychological ill-health in the legal community and to promote workplace psychological health and safety.
The Foundation’s Best Practice Guidelines for the Legal Profession are designed to protect and promote psychological health and safety in the legal workplace. The Guidelines are available at http://www.tjmf.org.au/wpcontent/uploads/2014/05/TJMFMentalHealthGuidelines_A4_140427.pdf.
The Guidelines have been endorsed by the NSW Mental Health Commission, which was one of 26 inaugural signatories, as were the College of Law and the university law schools. At the beginning of 2016 there was 130 signatories.
Unfortunately, the Guidelines have not been taken up by many barristers’ chambers to date. It has been suggested that this may be because chambers are confused by the language used in the Guidelines, which assumes a law firm workplace (with a pyramid-like hierarchy of partner - senior associate - solicitor – staff) rather than the flatter structure found in many barristers’ chambers (with individual sole-traders banding together, perhaps as shareholders, to engage chambers staff and contractors, as well as their own individual staff).
In my opinion, the language can be modified without undermining or detracting from the substance or utility of the Guidelines. Suggested modifications were provided to the NSW Bar Council in 2016, together with a worked example implementation plan I prepared (as a then member of the Bar's Health & Well-being Committee). Modified Guidelines can hopefully eventually be promoted to chambers by our Bar leaders.
The Guidelines were developed by researchers from the Centre for Applied Research in Mental Health and Addiction (CARMHA) within the Faculty of Health Sciences at Simon Fraser University on the basis of extensive research, including data analysis of a national sample and reviews of national and international best practices.
The aim of the Guidelines is to assist legal organisations to create workplaces that fulfill each of 13 Psychosocial Factors known to have a powerful impact on organisational health, the health of individual employees, and the financial bottom line. Psychosocial factors are elements that impact employees’ psychological responses to work and work conditions, potentially causing psychological health problems. Psychosocial factors include the way work is carried out (deadlines, workload, work methods) and the context in which work occurs (including relationships and interactions with managers and supervisors, colleagues and co-workers, and clients).
A psychologically healthy and safe workplace is one that promotes employees’ psychological wellbeing and actively works to prevent harm to employee psychological health due to negligent, reckless or intentional acts.
The Guidelines framework encourages ongoing improvement within the legal profession. In time, the Guidelines will assist cultural change and change of attitude; changes in the way we think, speak and act in addressing psychological health and safety.
In turn, the structure, policies and processes of legal organisations will change to match that new attitude and culture.
The Guidelines are a voluntary framework for legal organisations to utilise. There are no reporting requirements and/or compliance through an audit.
Signatories are encouraged to implement the Guidelines at their own pace and in their own way; implementation of the Guidelines can be tailored to each individual legal workplace. The Guidelines framework is based on a spectrum of self- motivated improvement.
By becoming signatories to the Guidelines, legal organisations demonstrate that they are leaders in the profession and they are committed to putting psychological safety at the heart of their organisational culture and at the forefront of their minds.
A range of implementation practices are recommended for each psychosocial factor, increasing in stages from Basic, Standard, Advanced to Best Practice. The Guidelines have been structured to support those working within the legal profession to progressively build programs and initiatives, depending on the resources available, size of workplace and risk profile.
A matrix approach with four levels, which assumes that a higher level incorporates the lower levels, can be used to identify the level of initiatives that can be adopted by Chambers:
a. Basic - Has established policies that are intended to raise awareness of relevant issues.
b. Standard - Builds capability at all levels to provide a psychologically safe workplace.
c. Advanced - Conducts awareness and education activities designed to ensure that all staff understand what resources and support are available to them.
d. Best Practice - Measures effectiveness of interventions and responds appropriately to ensure continuous improvement of systems, policies and practices.
How much or how little an organisation does is up to that workplace/chambers. There are no requirements to be met and the Guidelines serve as a resource to assist organisations in planning initiatives. Any positive step forward is encouraged, big or small. The Guidelines identify and address 13 psychosocial factors. A few changes to the definitions provided for those factors will assist in applying them to barristers’ chambers.
The NSW Bar is presently conducting a wellness survey of its members via a confidential online platform. Participants cannot be identified by their link. The survey ends on Friday, 31 March 2017. For more information about the project, research, data collection process and confidentiality, please click: http://www.nswbar.asn.au/for-members/services/wellbeing-survey.
24 March 2017
Dominique Hogan-Doran SC is a past member of the NSW Bar Association's Health and Well-being Committee and is a member of the Law Council's Future of the Australian Legal Profession Committee.