Resilient enough
It’s time for the legal profession to get serious about Psychological and Emotional Health and Safety
By Sunili Govinnage
As Mental Health Week comes to a close for another year, The Piddington Society held our annual “Mental Health Masterclass” in the first week of May. As part of our commitment to the ongoing conversion about emotional and psychological wellbeing in the legal profession, we were lucky to hear from Conrad Liveris (workplace consultant and all-round great person) and Cav Maria Sarecini (inter alia: Barrister at Francis Burt Chambers, President of the Industrial Foundation for Accident Prevention promoting safer workplaces, Past President of the Law Society of WA, and Knight of the Italian Order of the Star) on best practices for creating emotionally and psychologically healthy workplaces.
Conrad and Maria’s presentations weren’t just part of another standalone CPD event — they continued a really important discussion we started at our Mental Health Week event in October 2018, “Beyond Resilience: Ethics, Professional Responsibility and Leadership for Psychological Safety in the Legal Profession”.
It’s been a decade since Sydney University’s Brain & Mind Research Institute collaborated with the Minds Count Foundation (previously Tristan Jepson Memorial Foundation) on the 2009 report, Courting the Blues: attitudes towards depression in Australian law students and legal practitioners. The study found that there was a high level of psychological distress and risk of depression among law students and legal practitioners when compared to tertiary students and professionals in other fields. In the legal profession’s key tool to address these issues since then has been “resilience”.
Last year, with David Blades (who was on the Law Society of WA’s Ad Hoc Committee on Psychological Distress and Depression in the Legal Profession), John Poulsen (former board member of Minds Count who now runs People Passion Performance) and Shayla Strapps (CEO of the Mental Health Law Centre), we discussed the research and responses to mental health issues in the profession over the last decade
The key theme that came from the session was that as a profession, we need to shift gears to the next stage of our efforts to improve lawyers’ wellbeing from an individual obligation to a profession-wide approach.
Our discussion last October highlighted how there needs to be systematic changes in the profession because solving psychological and emotional ill-health isn’t something that individual lawyers, or even individual firms, can do in isolation.
Risk management
The focus of this year’s master class was practical steps that can start making our profession better as a whole — in meaningful, tangible ways. Structural change of the legal profession will take time (“generational change” is perhaps an appropriate term here). However, there are many practices that law firms and managers can implement that mean we need to change the conversation from how lawyers can “be more resilient” and learn “how to manage stress” to ways in which the profession becomes a community where lawyers (and lawyer-adjacent professionals) can expect to be emotionally and psychologically safe, and where mental ill-health is not an accepted norm we are constantly trying to “deal with” or “address”.
Ensuring psychologically and emotionally healthy workplaces means more than yoga classes or awareness-raising morning teas with balloons and cupcakes.
Both Conrad and Cav Maria highlighted tools and approaches from other industries that focused on risk management and the concept of building trust in the workplace, which is the foundation of psychological safety. These approaches involve managing lawyers and the wider sector take responsibility for ensuring their staff can thrive, not merely survive, at work — and where they won’t suffer injury as a result of merely doing their jobs.
Earlier this year, the Department of Mines, Industry Regulation and Safety and Safe Work Australia released comprehensive guidance material to support employers take meaningful action where there are risks of workplace psychosocial hazards, which include: stress, fatigue, burnout, harassment, aggression, and violence.
The facts
Before our tendency towards seeing ourselves as exceptional leads us to dismiss these tools as being inapplicable to the “special” and “different” nature of the legal profession, it’s worth remembering we‘ve had the data and the evidence about the risks of psychological and emotional harm for legal practitioners for over a decade:
2007: the beyondblue/Beaton National Depression Initiative found depressive symptoms for lawyers & law students at alarming levels
2009: Courting the Blues (Brain and Mind Institute/Minds Count) the high levels of psychological distress and depression for lawyers and law students compared to standards also came with a reluctance to seek help due to, among other things:
- a culture of competitiveness: very long hours in a tough, combative environment are the norm (and fear of failure is common);
- pessimism: legal work often involves warding off what will go wrong;
- learned helplessness: lawyers must follow a client’s instructions, even if those instructions contradict the lawyer’s better judgment;
- disillusionment: many lawyers feel compromised by ethical dilemmas in their work;
- perfectionism: lawyers tend to be perfectionist, which is related to obsession and anxiety, both fertile grounds for depression.
2010: “Towards Dignity and Respect at Work: An Exploration of Work Behaviours in a Professional Environment”, Professor Maryam Omari’s report on a joint Edith Cowan University & Law Society of WA research project found that in “many cases there is a fine line between managerial prerogative, operational efficiency, performance driven culture, competitive work environments and workplace bullying”.
I am yet to see any comprehensive assessment whether any of the “wellbeing” and “wellness” initiatives implemented in the last several years have led to better outcomes and the alleviation of concerns the profession has been grappling with since the research above has been published.
The next step
It’s time to move beyond “raising awareness” and promoting “self-care” initiatives that place the burden of “staying well in the law” on individuals when there are bigger issues at play.
In one key factor means the legal profession is particularly (exceptionally?) at risk where there is inadequate emotional psychological health and safety in the workplace: lawyers have one job.
Lawyers don’t lift heavy things or operate complex and dangerous machinery; lawyers think, and lawyers’ brains are the asset on for their livelihoods and that of their employers.
So if lawyers are working in environments that are not psychologically and emotionally safe, and where business structures and unquestioned expectations about “inherent requirements of the job” directly lead to unreasonable levels of anxiety, distress, bullying, and trauma, what then?
A really significant issue that came up during our 2018 discussions is whether ethical and professional conduct obligations to fellow practitioners means partners of law firms have ethical (as well as legal) duties to take care of the emotional and psychological safety of staff. Accepting this would require changes to how lawyers work in order to protect them from the harmful expectations of unreasonably long hours, unhealthy competitiveness, and dangerous profit/budget-driven lack of resources. It also means it is vital to train and support partners and senior lawyers who are promoted to management positions for their technical and/or “business development” skills but are never given the chance to learn crucial management skills in how to coach, give feedback, or provide meaningful support in difficult and stressful situations.
And relying on HR staff and external organisational psychology contractors cannot be a substitute here — this is a lawyers’ problem than needs to be solved by lawyers.
Does this sound too hard?
Good, because anything worth doing is going to be hard.
But here are some basic legal maxims to consider alongside the lived experiences of many a young and not-so-young learned friend that ought to be a call to action.
Ensuring psychological and emotional health and safety in the legal profession is:
ex fide bona: good business norms;
ex aequo et bono: of equity and good — what is right and good, not necessarily what the law may require (although in this case it arguably is also a very simple legal duty of care issue?); and
pro bono publico: for the public good.
As David Blades reminded us at our event last year, lawyers play a fundamental role in the fabric of our community — as officers of the court, legal practitioners uphold the rule of law and, in all manner of ways, support the continued functioning of a free and fair society.
It isn’t just self-centred navel-gazing that we ensure lawyers stay well enough to uphold our duties when the way we do our jobs might affect our ability to do so.
Sunili Govinnage is a former lawyer and mental health affocionado. She is currently the course manager of Piddington PLT.
Sunili started her career as an associate to the Hon Justice Owen and the Hon Justice Buss at the Supreme Court of Western Australia. Her career spans the profession, including big firms, boutique firms, government, community legal centres and UN agencies.
She has been involved in a range of mental health measures and programs for the profession. Sunili enjoys collegiality, yoga, reading and naps.
