What has wellbeing got to do with ethics?

So often, “toxic” workplace culture comes not only with a culture of fear but also poor staff wellbeing.  But the imperative to tackle practitioner wellbeing is not only about preventing mistakes, or even just about protecting staff: it is also about providing best service to clients. That, in turn, has the effect of boosting profits. There is a “bottom-line benefit” to firms that create constructive, “no-blame” and supportive environments.

Wellbeing is a facet of legal practice that no one can afford to ignore, so what should we being looking out for and what action can each of us take?
 

Just another worry on the list?

The World Health Organisation describes wellbeing as “a state of complete physical, mental, and social wellbeing, and not merely the absence of disease or infirmity.”  Transposing that into legal practice, optimal levels of wellbeing means practitioners are best able to serve their clients’ interests.  Anything that undermines wellbeing is, therefore, a risk and barrier to optimising individual and, therefore, organisational performance.  

The factors that destabilise wellbeing in the solicitor profession are varied and, it goes without saying that each of us is different, but everyone will have some experience of the dynamics.

Personal attributes typically regarded as desirable qualities for the job, such as high levels of performance, attention to detail and diligence can translate into a fear of failure and create a stigma around speaking out about perceived “weaknesses”, owning mistakes or asking for help.

Financial pressures such as billing targets and heavy caseloads and cultures of presenteeism or unhealthy competition between staff, can all cause stress and anxiety.

Working with traumatised clients, taking on their problems and prioritising their interests without exception, including equating client service with 24-hour availability, often takes a toll.

There are also, of course, innumerable influences from the wider societal, social, economic and political context.

Approaches that deny the significance of wellbeing and these factors on the ability of legal professionals to perform, fail to uphold the ethical obligations owed to every individual member of staff, the profession and to clients.  We instead need to acknowledge these issues, be unafraid to ventilate them and develop strategies that address wellbeing holistically.
 

Firms

Firms and businesses have legal responsibilities to protect the health of their staff.  By creating environments that support staff and enable them to excel, firms will be driving productivity and, therefore, profits, and ensuring client interests are served.

Organisations will want to develop a meaningful strategy informed by their make-up and values and reflecting the Principles that regulate the conduct of firms and solicitors. 

The aim must be to instil an open and collegiate culture that encourages employees to discuss concerns and facilitates teamwork and supervision.  Training to enable staff to notice signs of faltering wellbeing and to provide the confidence to know how to address that in themselves or others is vital.  It may include the adoption of an agile working policy that would not only meet the needs of workers, but also empower them to do their best work.
 

Individuals

Each of us must take responsibility for ourselves, so we are fit and resilient enough to be able to balance and respond ethically to the demands of our work.

Not every legal professional will recognise or report struggles they are having either because they do not wish to or they are unable to because of the issues they are facing.  The onus is therefore on us all to look out for and support one another in a non-judgemental fashion and ensure colleagues know how to access support when needed.
 

Regulatory oversight of wellbeing

In other jurisdictions practitioners are subject to positive obligations to self-certify in respect of their wellbeing.  For instance, in the state of Victoria, Australia, practitioners are required to disclose any “mental health episodes” in the previous 12 months, when they renew their annual practising certificate.

There are currently no such explicit obligations on practitioners here, but on 7 August 2020 the SRA published a new piece of guidance on its website: “SRA investigations: Health issues and medical evidence”.  Under the section entitled “Health issues and your ability to practise”, the SRA refers to the fact that “sometimes health issues are raised which may interfere with an individual’s ability to carry out their work safely and competently”.

The regulator states that, in those circumstances, it may use its powers to put conditions on an individual’s practice as a solicitor, either on an interim basis pending the outcome of an investigation, or as a final outcome to an investigation.

It adds: “These might allow us to monitor an individual’s health by the production of regular medical reports over a certain period of time before they are deemed fit to practise without restriction.”

Although the guidance is not specific, this presumably applies to a complaint made to the SRA about a practitioner or a self-report.  Whilst any exposition about health in the profession should be seen as positive, clarity from the regulator on the interplay between health and self-reporting, how the SRA ensures consistency between decisions relating to ill-health and how it upholds its equality duties in this regard, would be welcome additions to the guidance.
 

The representative body

Rather than a lawyer being required to report to their regulator about their health, could the Law Society play a greater role in solicitor wellbeing?

One suggestion would be for the representative body to create a confidential “safe space” where practitioners could evaluate their attitudes to clients, the justice system, their role within in it, working practices and coping strategies.  It would need to offer differing views and ways of practice, to provide practitioners with counterpoints to their own approach and “stress test” their ethical decision-making and wellbeing.

For now, there is resource on emotional competency and professional resilience that has been developed by LawCare, an independent charity that offers free, confidential support to all branches of the profession, and academics at two universities, called “Fit for Law”, which practitioners can use to support their ability to respond proactively to wellbeing challenges.
 

The Tribunal

As the profession’s disciplinary arbiter, the Solicitors Disciplinary Tribunal (SDT) also has a role to play in solicitor wellbeing.  

Last year the SDT published its view that the SRA should exercise the powers available to it to create fitness to practise procedures. The SDT pointed out that where health issues arise in disciplinary proceedings, it is not uncommon for the Tribunal to find itself without medical evidence to assist it in its decision-making. That evidential lacuna can lead to unjust decisions being made against practitioners, a deplorable outcome in what are, essentially, public interest and protection proceedings.

Specific commentary on how the SDT ensures consistency between decisions relating to ill-health and how it upholds its equality duties in this respect, would be welcome.  This might include the criteria it uses to decide when to direct that medical evidence should be obtained.
 

Future rewards

The conversation about solicitor wellbeing is already more open than it once was, which is undoubtedly a step in the right direction.  However, there is more work to be said and done.

The reward will be a more collegiate and self-confident profession that understands offering our clients the best service possible cannot be divorced from embracing the importance of being well ourselves.  It is a future we owe to ourselves, our colleagues and our clients.

A version of this article was first published in the October 2020 edition of the Solicitor’s Journal (Volume 163 No.9)