Doolan v Legal Practitioners Admissions Board [2016] QCAT 98

CITATION: Doolan v Legal Practitioners Admissions Board [2016] QCAT 98 PARTIES: RICHARD DOOLAN (Applicant) v LEGAL PRACTITIONERS ADMISSIONS BOARD (Respondent) APPLICATION NUMBER: OCR101-13 MATTER TYPE: Occupational regulation matters HEARING DATE: 24 February 2016 HEARD AT: Brisbane DECISION OF: Carmody J DELIVERED ON: 28 April 2016 DELIVERED AT: Brisbane ORDERS MADE: THE TRIBUNAL ORDERS THAT: 1. The respondent is to make a declaration under s 32(3)(a) of the Legal Profession Act 2007 (Qld), to the effect that the applicant’s mental health (in its current state) will not, without more, adversely affect its assessment as to whether he is a fit and proper person to be admitted to the legal profession under the Legal Profession Act 2007 (Qld). CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the applicant meets the academic and practical training requirements for admission as a legal practitioner in Queensland – where the applicant had applied unsuccessfully on a number of occasions to the Legal Practitioners Admissions Board for a declaration that a suitability matter would not, without more, adversely affect the Board's assessment as to whether he was a fit and proper person for admission – where the applicant had frankly -- 1 of 24 -- 2 disclosed a history of mental illness and related antisocial behaviour – where the Court of Appeal allowed the appeal and referred the applicant’s application to QCAT under s 32(3)(b) for direction – whether the declaration sought by the applicant under s 32 should be made Anti-Discrimination Act 1991 (Qld) s 7 Australian Human Rights Commission Act 1986 (Cth) Disability Discrimination Act 1992 (Cth) Legal Profession Act 2007 (Qld) ss 3, 5, 6, 9, 21, 27, 28, 30, 31, 32, 35, 38, 39, 44, 46, 49, 51, 52, 53, 85, 87 Supreme Court of Queensland Act 1991 (Qld) s 85 Re B [1981] 2 NSWLR 372 Re B (a solicitor) [1986] VR 695 CDJ v VAJ [1998] 197 CLR 172 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Cornall v Nagle [1995] 2 VR 188 G v G [1985] FLR 894 Re Gillian Sheppard [2007] QCA, 19 March 2007 Re Harrison [1992] SASC, 23 December 1992 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 Jackson v Legal Practitioners Admission Board [2007] NSWCA 289 Re Joseph Sleiman and Australian Securities Investments Commission [2007] AATA 1383 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Pearson [2005] NSWADT 206 Legal Practice Board v Mullally [2003] WASC 225 -- 2 of 24 -- 3 Legal Practitioners Conduct Board v Jones (2010) 272 LSJS 529 Legal Practitioners Conduct Board v Trueman [2003] SASC 58 Legal Practitioners Complaints Committee v Tomlinson [2006] WASC 211 Pop v Taylor [2015] FCCA 1720 Queensland Law Society v Wakeling [2009] QCA 42 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 Wentworth v New South Wales Bar Association (1992) 176 CLR 239 Re Wolstonecroft and Companies Auditors and Liquidators Disciplinary Board (1998) 54 ALD 773 X v Commonwealth of Australia (1999) 200 CLR 177 XY v The Board of Examiners [2005] VSC 250 APPEARANCES and REPRESENTATION (if any): APPLICANT: M McCarthy, Counsel for applicant. RESPONDENT: P F Mylne, Counsel for respondent. REASONS FOR DECISION [1] The vexed question to be decided in this proceeding is whether the Tribunal should direct the Legal Practitioners Admissions Board (the Board) under sub-section 32(3)(b) of the Legal Profession Act 2007 (the LPA) to declare that a lack of capacity for an aspect of legal practice will not, without more, adversely affect its assessment of whether the applicant is a “fit and proper” person to be admitted to the legal profession in Queensland. The admission process [2] The LPA facilitates the uniform governance of legal practice on a national basis across state borders. Its stated purpose is to regulate the provision of legal services in Queensland consistently with the corresponding laws in the other Australian states and territories, in the overall interests of the -- 3 of 24 -- 4 administration of justice and for the protection of consumers of legal services and the public generally.1 [3] It relevantly seeks to achieve this goal, in part, by restricting membership of the legal profession to “fit and proper” persons.2 [4] Entry to the legal profession under this system is via a Supreme Court order admitting a person as an “Australian lawyer”.3 [5] The making of such an order is discretionary and depends on the court being satisfied of the applicant’s eligibility (which is not in issue here) and suitability (which is).4 [6] A person admitted as an Australian lawyer becomes an officer of the Supreme Court.5 As an officer of the court, a lawyer represents the legal system and, therefore, contempt for, or disrespect of, institutional authority or the rule of law casts doubt on a person’s fitness for that important role. [7] Public faith and trust, as well as respect for the legal profession, are integral to its long term survival and effectiveness. [8] This is why overall suitability for admission is ultimately a matter for the Supreme Court to decide,6 according to rules and standards.7 [9] The court is responsible to the community it serves to ensure those persons it holds out as representatives of the legal system can be safely relied on to conduct legal business properly and trusted to fulfil their role in administering justice,8 otherwise, community confidence in the legal profession as a whole will be diminished and eventually lost. [10] The Board’s role is to help the Supreme Court by making a recommendation about each applicant for admission, including his or her fitness having regard to the suitability matters in s 9(1), which include (m) viz. whether the person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner. [11] A candidate for admission who (like the applicant) considers a matter may adversely affect an assessment as to whether he or she is a fit and proper person to be admitted to the legal profession may apply to the Board for early consideration of suitability and for a declaration that a suitability matter will not, without more, adversely affect the Board’s assessment of suitability.9 1 Legal Profession Act 2007 (Qld) (“LPA”) s 3(a). 2 LPA ss 21(b), 28(a), 31. 3 Defined in LPA s 5 as a person admitted to the legal profession under the Act. 4 Defined in LPA ss 30-31. 5 Ibid s 38. 6 LPA s 35. 7 See Supreme Court of Queensland Act 1991 (Qld) s 85. 8 Re Harrison [1992] SASC, 23 December 1992. 9 LPA s 32. -- 4 of 24 -- 5 [12] A person may also be considered to be a fit and proper for admission despite a suitability matter because of the circumstances relating to it,10 or as the Board rightly concedes, “by the attachment of conditions to his admission”.11 Contravention of any condition imposed on admission may be disciplined.12 [13] Importantly, admission is to “the legal profession” not to “legal practice”. If admitted as an Australian lawyer, the applicant would have no practising rights, because even a person admitted to the legal profession as an Australian lawyer is not allowed to engage in legal practice unless he or she is also an Australian legal practitioner,13 with a current practicing certificate.14 [14] An Australian lawyer who is not an Australian legal practitioner but engages in legal practice is liable to be disciplined for unsatisfactory professional conduct or professional misconduct.15 This is designed to ensure “that the public receive legal advice and representation only from those who are properly qualified, are fit and proper and in every respect a person of good fame and character”.16 [15] The term “legal practice” is not relevantly defined,17 but “legal services” for LPA purposes means work done, or business transacted, that is ordinarily performed by lawyers. [16] JD Phillips J described what “practising law” entails in Cornall v Nagle:18 “[A] person who is neither admitted to practise nor enrolled as a barrister and solicitor may "act or practise as a solicitor" in any of the following ways: (1) by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor(…) (2) by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner(…) (3) by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law. For present purposes, it is unnecessary to go beyond the example of the 10 LPA s 31(3). 11 5-6 of its written submissions. 12 LPA ss 35(3), 36(3). 13 Ibid s 6(1). 14 Ibid s 44. 15 Ibid s 27(1). 16 Legal Practice Board v Mullally [2003] WASC 225 [3] (Johnson J). 17 cf LPA s 85 for the purposes of [2.5]. 18 [1995] 2 VR 188, 210. -- 5 of 24 -- 6 giving of legal advice as part of a course of conduct and for reward.” [17] Thus, the term relevantly denotes a role (paid or otherwise) in which the person uses legal skills and knowledge in a professional setting. It is not restricted to the direct provision of client services, but includes using professional knowledge, working in management, administration, education, research, advisory, regulatory or policy development roles or any other position involving the professional legal work. [18] Practising certificates are granted to eligible Australian lawyers by the relevant regulatory authority19 under Part 2.4. [19] If the applicant is admitted to the profession and is eligible to apply for a local practising certificate under s 49(2) LPA (e.g. he reasonably expects to be engaged in legal practice solely or principally in Queensland) it is then up to the relevant regulatory body to consider any application to become a legal practitioner under s 51 LPA, taking into account the categories of matters mentioned in s 46(2) LPA, including all the suitability matters in s 9(1)(m) LPA. [20] A practising certificate may be refused or subject to conditions20 on the same suitability and other grounds mentioned in s 46(2) LPA, including any agreed or other matters mentioned in ss 53(2) and (3) LPA. [21] However, a matter is not a ground for refusing to grant or renew a local practising certificate if it was disclosed in an application for admission to the legal profession and decided by the Supreme Court or the Board not to be sufficient for refusing admission under s 51(4) LPA. [22] It may, nonetheless, be taken account of when considering other matters in relation to the person concerned including, on my reading, whether to impose any reasonable and relevant conditions on the practising certificate under s 53(1) LPA including continuing legal education about aspects of legal practice and professional responsibility, such as ethics and employment practice or supervision restrictions. The context [23] In 2011, the applicant candidly applied to the Board for early consideration and a declaration of his suitability because of concerns his mental condition (diagnosed alternatively as schizophrenia or Asperger disorder) might bar his admission. In refusing to make the declaration, the Board cited as the reason: “the impossibility, and even the potential inappropriateness, of … determining which of the conflicting medical opinions is preferable to another, and which is more likely to be correct.” 19 Either the Law Society or Bar Association. 20 LPA s 52. -- 6 of 24 -- 7 [24] The applicant appealed to the Court of Appeal against the refusal under s 32(5) LPA. The Board’s refusal to make the declaration was set aside and the matter referred to the Tribunal for a direction as to: (a) whether the applicant is currently able to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner in light of his mental health; (b) if he is found to be able to do so, but only on conditions, what those conditions should be; and (c) whether the Board should make a declaration of suitability. [25] The Tribunal may give any direction it considers appropriate,21 and, if full and fair disclosure has been made, a directed declaration binds the Board but, of course, not the Court.22 The “fit and proper” criterion [26] A person is suitable for admission to the legal profession under the LPA only if he or she is “fit and proper” to be admitted.23 The assessment of whether a person meets the “fit and proper” test of suitability (for admission purposes) is not confined to character and reputation. [27] The concept embraces the person’s estimated quality by reference to previous behaviour and its causes as a predictor of likely future conduct. It is not limited to past professional or personal misconduct but clearly includes mental and physical capacity. [28] In Jackson v Legal Practitioners Admission Board,24 Johnson J resolved an appeal against a Board refusal to declare the plaintiff suitable for admission as a lawyer in New South Wales on the basis that it was up to the applicant to prove, on the balance of probabilities, that she was of good character. [29] However, Judge Brown took a different approach in Pop v Taylor,25 (an employment discrimination case about whether the plaintiff was disabled from preforming the inherent requirements of a bookkeeper) holding that the onus was on the employer to identify what the inherent requirements were and demonstrate which could not be carried out on a part-time basis and why. [30] If the burden of proving the applicant’s suitability was left solely on his shoulders he would probably fail to carry it; but the referral, like an admission proceeding itself, cannot necessarily be properly determined in the same way as adversarial litigation.26 21 LPA s 33(1). 22 Ibid s 32(4). 23 Ibid s 31(1). 24 [2006] NSWSC 1338 [37]. 25 [2015] FCCA 1720 [251]. 26 Wentworth v New South Wales Bar Association (1992) 176 CLR 239, 251. -- 7 of 24 -- 8 [31] To my mind, the reasons for the referral and the Board’s role in assisting the Tribunal are suggestive of a more inquisitorial approach. [32] Accordingly, what I propose to do is assess whether – considering the potential consequences for the applicant and the significant implications for the Board, the profession and wider community – the totality of the available evidence is sufficient to reasonably satisfy me of the applicant’s fitness for practising law in Queensland consistently with the LPA having regard to the referred suitability matter; that is, whether he is currently unable to satisfactorily carry out the inherent requirements of legal practice due to a mental disability. [33] In Incorporated Law Institute of New South Wales v Meagher,27 Isaacs J described a suitability inquiry as being entirely protective and prospective, and as requiring satisfaction that the person was “worthy of public confidence” and was able to demonstrate their “reliability for the future”. [34] In Re Joseph Sleiman and Australian Securities Investments Commission,28 (where the issue was whether an entrenched psychotic illness rendered a liquidator unfit for registration and to manage his affairs) it was noted that public protection:29 “… involves at least two considerations. The first is a public interest in ensuring that the person does in fact follow the appropriate course of action in the future. The second is the public interest in ensuring confidence, so far as is reasonably possible, that the person can properly be entrusted to undertake the tasks that attach to the licensed activity or office involved.”30 [35] Suitability is best tested in difficult rather than good conditions.31 A practitioner needs to be able to “be calm in a storm for his client’s sake and be able to have a balanced work (and personal) life”.32 [36] We all have different coping thresholds and mechanisms. Factors such as the pressure of time, workload, partner and client demands, failure, performance assessment, financial problems and (in the case of younger lawyers) “a mismatch of expectation and reality in relation to legal practice”,33 can all contribute to stress. For some, especially unassisted, 27 (1909) 9 CLR 655, 681. 28 [2007] AATA 1383 [84]. 29 Re Joseph Sleiman and Australian Securities Investments Commission [2007] AATA 1383 [81], citing Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201- 202. 30 Re Joseph Sleiman and Australian Securities Investments Commission [2007] AATA 1383 [84], citing Re Wolstonecroft and Companies Auditors and Liquidators Disciplinary Board (1998) 54 ALD 773, 785 [54]-[55]. 31 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, 449 (Mahoney J). 32 Law Society of New South Wales v Pearson [2005] NSWADT 206 [83]. 33 Stephen Corones et al, Professional Responsibility and Legal Ethics in Queensland, (Thomson Reuters, 2nd ed, 2014) [1.65]. -- 8 of 24 -- 9 they can lead to professional lapses and even disciplinary or ethical infringements. [37] While mental illness can explain and even sometimes mitigate (but rarely justify) misconduct (not involving dishonesty) it can also disqualify.34 [38] As Booking J relevantly observed in Re B (a solicitor):35 ... it would be a serious error to suppose that the court's power to strike off the roll is confined to cases of misconduct. No court would knowingly admit a lunatic to the practice of the law, for lack of mental capacity renders him unfit to enter the profession. It is altogether too clear to require the citation of authority, but let me refer to the examples given by Starke J and Dixon J in Re Davis (1947) 75 CLR 409 at 418 and 424 ... if a lawyer who is mentally ill intends to practice his profession, or to make some indirect use of his status as a person admitted to practice, the protective jurisdiction may well have to be invoked against him. (emphasis added) And if it is, the court will then consider, not whether he has been guilty of "misconduct", but whether he is a proper person to be continued on the roll, whether "having regard to the circumstances" or "on the facts disclosed" or "for any reason" – phrases perfectly general -- he is shown not to be a fit and proper person to practise the law; Re Weare [1893] 2 QB 439 at 448 per Lindley LJ; Southern Law Society v Westbrook (1910) 10 CLR 609 at 612 & 627; Re Davis (1947) 75 CLR 409 at 416 & 427, 429; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 288 & 297-8. (...) In my opinion, a legal practitioner may be struck off the roll or suspended if he is shown for any reason not to be a fit and proper person to practise the law. The ground may be misconduct. It may be mental unfitness to practise. It may be physical unfitness to practise. The ground may even relate to the situation in which the practitioner finds himself. For in my view a man's situation – by which I mean the position in which he finds himself, as opposed to some aspect of his character or personality or physical or mental condition- may make him unfit to practise, or may at all events be taken into account in determining whether he should be regarded as unfit to practise. [39] In deciding whether a candidate is “a fit and proper person” to be admitted, the Supreme Court must consider each of the suitability matters mentioned in s 9(1) LPA (to the extent it is appropriate),36 and the Board’s recommendation.37 [40] Consequently, the applicant may be regarded unsuitable for admission in the sense of being “fit and proper” if his impairment deprives him of, or significantly reduces, his capacity to satisfactorily carry out the inherent requirements of legal practice at all times. Conversely, he may be 34 See Queensland Law Society v Wakeling [2009] QCA 42 [25]. 35 [1986] VR 695 cited extensively in Re Joseph Sleiman and Australian Securities Investments Commission [2007] AATA 1383 [92]. 36 LPA s 31(2)(a). 37 Ibid s 31(1)(2)(c). -- 9 of 24 -- 10 considered suitable for admission to the legal profession as an Australian lawyer even though he fails to meet a suitability or other matter mentioned in s 46(2) LPA. The inherent requirements of legal practice [41] The LPA does not define – and the Board does not keep a list of – the inherent requirements of legal practice. As far as I know, neither the concept nor its practical content have previously been judicially interpreted for the purpose of admission proceedings. [42] The term, according to the Board, originates from international labour and human rights law and contends that, in this context, it plainly refers to all “permanent and inseparable elements, qualities or attributes” of being a lawyer. In X v Commonwealth of Australia, Gummow and Hayne JJ interpreted it as an essential, as distinct from a peripheral, characteristic of employment.38 [43] In the same case, Kirby J (dissenting) said:39 “This phrase looks to the intrinsic necessity that are “permanent and inseparable elements, qualities or attributes” (footnote omitted) of the particular employment. It is not enough that the “requirement” is a common or usual one … (i)t must actually inhere in the very requirements of the particular employment...” [44] On the basis of these statements, an inherent requirement is an integral, indispensable, intrinsic, natural or innate one. However, there are indications that it may actually have a more limited role and scope primarily related to health matters for the purposes of practising certificates. [45] For instance, a relevant authority has power to compel a person to undergo a health assessment in s 87(2) LPA applies if he or she is believed to be currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner. [46] Unfortunately, when undefined and unconfined value based standards which do not admit to broad consensus govern a screening process like this, the results can be “inconsistent, idiosyncratic and … intrusive”.40 In this regard, the applicant complains the Board has provided little help to the Tribunal as to what the inherent requirements of legal practice are and why it says the current state of his mental health prevents him from satisfactorily carrying them out – especially if conditionally admitted. [47] However, despite the vagueness of its scope and practical content, I take the concept “inherent requirements of legal practice” as encompassing, in addition to mental balance and emotional stability, characteristics such as honesty, candour, competence, discretion, respect for society, the authority 38 (1999) 200 CLR 177 at [102]. 39 Ibid [150]. 40 Deborah Rhode, ‘Moral Character as a Professional Credential’ (1985) 94 Yale Law Journal 491, 494. -- 10 of 24 -- 11 of the law, the judiciary and the profession, integrity, trustworthiness, judgment, reliability, morality and confidentiality, plus a broad array of other important attributes too many to mention here. Taking personal responsibility for competently and diligently meeting a client’s needs and demands has to be among them. The high quality of legal services the profession aspires to cannot be delivered if there is a deficiency or breakdown in the lawyer-client relationship due to misunderstanding or other reason. [48] Of all these possibilities, however, the only ability the Board specifically claims the applicant is deprived of by his mental problem is direct client contact and communication. [49] The applicant disputes that face-to-face client contact is an inherent or necessary requirement of modern legal practice or a suitability matter of such significance that it should bar his admission to the legal profession. He emphasises that, despite their differing diagnoses, both experts agree he could satisfactorily carry out suitable “backroom” duties. The medical evidence [50] The Board’s evidence consisted of two rival psychiatric reports from Dr Wilkie and Dr Steinberg, as well as an undated conclave expert report and a facsimile from Dr Steinberg on 14 July 2015. [51] Dr Wilkie’s three reports date between 8 April 2011 and 19 June 2013. Dr Steinberg, by contrast, provided his first report in February 2014 and his most recent on 4 May 2015. [52] In Dr Wilkie’s opinion, the applicant shows no signs and does not have any symptoms of schizophrenia. The closest DSM-IV diagnosis for his condition is mild Asperger syndrome adversely affecting the applicant’s ability to practise only in certain areas. Dr Wilkie is definite that the applicant does not suffer from any mental illness that would interfere with his limited ability to practise law safely and responsibly or warranted any medication or treatment. [53] Dr Steinberg paints a much more pessimistic picture set against historical facts including two hospitalisations of four months in 1993 and again for three months in 1994 with differential diagnoses. He assesses the applicant as suffering from chronic moderately severe paranoid type schizophrenia. [54] The applicant does not admit to auditory hallucinations or delusions but harbours uncommon and apparently unjustified suspicious feelings about the police. He is irritable but tries to control it. He becomes anxious but does not have disturbed sleep. He does not use drugs. He is a devout and practising Catholic who has studied theology. He has held down a regular job in his uncle’s factory for three years without any apparent incident. His concentration and attention span are “pretty good” and memory “satisfactory”. He has been unemployed since 2014, lives with his father and is not in a relationship. -- 11 of 24 -- 12 [55] Dr Steinberg describes the applicant as “obviously an intellectually bright young man”. However, he has ongoing positive symptoms of schizophrenia with paranoid ideation about the police and grandiose ideation or delusions. He feels very angry about his situation. [56] The applicant holds some “very firm” paranoid beliefs that would be under control with treatment (if the applicant sought and maintained it) but not eliminated. However, his lack of insight into the nature and extent of his psychiatric condition makes it very difficult to comply with anti-psychotic medication and makes him prone to impulsive and inappropriate behaviours. [57] Notably, the applicant’s impulsivity and irrational thinking has brought him into conflict with the law in the past and will possibly do so in the future. In 2012, he was convicted of refusing a roadside breath test and resisting arrest. Six months later, he pleaded guilty to behaving offensively in a playground at Byron Bay. In May 2013, he pleaded guilty to creating a public nuisance by swearing and yelling at police one night at Surfers Paradise. [58] A month later, he was dealt with in the Maroochydore Magistrates Court again for public nuisance, this time involving verbal and physical attacks on a young woman who he insulted, brought to tears and pushed to the ground. [59] In the last two months of 2013, the applicant was again fined and placed on probation until July 2015 for committing a public nuisance at Southport and acts of indecency towards two 15 year old girls in a café by giving them his Facebook address on a piece paper together with a picture of an ejaculating penis. [60] He reportedly regrets acting indecently to the girls in December 2013 but in Dr Steinberg’s opinion is not truly remorseful. [61] In Dr Steinberg’s assessment, the applicant’s ongoing paranoid ideation in relation to the police and other perceptual disturbances means that would make working in the legal profession would be problematic for him in terms of his duties to the court, clients and other members of the profession. [62] In the conclave report and follow up facsimile to the board in mid-2014, Dr Steinberg confirmed the applicant would be able to work in limited areas as a lawyer, such as giving contractual advice or preparing straightforward property work under some form of management regime. Dr Steinberg added, however, that there should be a condition that he does not work in an area involving any professional contact with clients or their agents. [63] The applicant still sees Dr Wilkie every two to three months. He is being treated with lithium carbonate (125mgs per day) but is not on any anti- psychotic medication. He has been under the care a number of mental health units since his 2013 hospitalisation and claims his diagnosis is being changed from “schizophrenia to manic depression”. -- 12 of 24 -- 13 [64] He professes to be more interested in politics than a legal career and thinks he is capable of working in law office but concedes that he doesn’t “…know what the legal profession is about to be honest”. The Board’s contentions [65] The Board regards Dr Steinberg’s reports as the most probative of the applicant’s current ability to satisfactorily practise law. It dismisses Dr Wilkie’s contrary views as out of date and dubious because his final report either ignores or overlooks the police charges in August 2012 and January 2013 and only barely predates the assault of a young woman in June 2013 and “very concerning” indecent behaviour in December 2013. [66] The Board also describes any debate about the applicant’s ability to undertake “clerical duties” or work in limited areas as being beside the point, in view of Dr Steinberg’s evidence that his paranoid ideation about police and other perceptual disturbances is ongoing and unlikely to be effectively addressed by medication or treatment because of his lack of commitment to compliance. [67] Also, the Board points out a constant feature of Dr Steinberg’s evidence is that the applicant ought not to have any direct contract with clients. [68] Of particular concern to the Board is the applicant’s apparent lack of insight, impaired judgment, non-compliance with medication, ambivalence to appropriate treatment, erratic and anti-social behaviour, paranoid and grandiose ideation, delusional and irrational thinking, impulsivity and unpredictability in stressful situations. [69] The Board argues that conditions are not the solution and the applicant cannot be made suitable even by condition because, based on the best available medical expert opinion, he is unable to satisfactorily carry out the inherent requirements of practice. It submits that, even with conditions and restricting his practice area to a discrete area of law where he has no contact with clients in an effort to overcome the “inherent requirements” hurdle, they would, by their very nature, prove his incapacity. [70] It distinguishes a 2005 case where it agreed to conditions being placed on an applicant diagnosed with a mental illness to practise only as an employee on the basis that the applicant there had showed complete recovery, with no evidence of persisting or residual symptoms. [71] Against this background, the task of assessing the applicant’s current ability to practise law satisfactorily for an unspecified period to come is not an easy one. It is all the more exacting when done on behalf of a risk averse society with often unrealistic expectations and little or no tolerance for perceived judicial error. Disability and the legal profession -- 13 of 24 -- 14 [72] Gaining admission as a legal practitioner was never meant to be easy, but the bar shouldn’t be set so high as to make it impossible either. The applicant, like all other Australian adults, has legitimate interests that must be respected including employment or equivalent rights (such as admission to practise). [73] The mere fact that person has a diagnosed psychiatric or psychological condition is not generally in and of itself indicative of unsuitability to practise. Many people in the community – including, no doubt, many practising lawyers – suffer from depression and other forms of mental illness to varying degrees and yet are able to adequately fulfil their professional functions and responsibilities.41 [74] In 2012, Sane Australia estimated that one in five Australians was affected by mental disorders or distress such as schizophrenia – with only about half actually seeking help and many undiagnosed.42 Members of the legal profession consistently exhibit higher levels of psychological distress and chronic depression than other members of the community of the same sex and similar age.43 Around 75 per cent of all lawyers are in private practice; the rest in business or government, the judiciary or teaching. For those in private practice, under half are single practitioners; and for lawyers in law firms, about 25 per cent are in firms of 100 or more. [75] The indeterminacy and subjectivity of the referred suitability issue makes it an indiscriminate and potentially exclusive – even elitist – barrier to admission for minority candidates like the applicant. Clearly, it would be wrong to use the admission process as a means of covert discrimination or arbitrary exclusion. Civil actions aside, regulators and other decision makers, especially those in employment related fields, must take care not to disadvantage or discriminate, even indirectly, against people with a disability or impairment under state44 and federal laws.45 [76] As Moffitt P said in Re B:46 “If a person meets the requisite learning standards and is of good fame and character so he meets the requirement that he be a fit and proper person to be admitted to practice as a barrister, it hardly need be said that there is no other discretionary bar to admission, whether on the basis of race, colour, religion, sex, political outlook or otherwise … (and) it follows that in itself being a radical in a political sense or being what might be regarded by some as an extremist in views on sex, religion or philosophy provide no bar to admission as a barrister, unless of course, the attitude of the prospective or practising barrister can be seen to render him not a fit and proper person because his character, 41 XY v The Board of Examiners [2005] VSC 250 [44]. 42 Frances Gibson, ‘Psychiatric disability and the practising lawyer in Australia’ (2012) 20 Journal of law and Medicine 391. 43 Above n 42. 44 Anti-Discrimination Act 1991 (Qld) s 7. 45 See Australian Human Rights Commission Act 1986 (Cth), Disability Discrimination Act 1992 (Cth). 46 [1981] 2 NSWLR 372, 380, cited in Gino Dal Pont, Lawyers Professional Responsibility (Thomson Reuters, 5th ed, 2013) [2.45]. -- 14 of 24 -- 15 reputation or likely conduct fall short of the standards expected of a practising barrister.” [77] Also, the legal profession should be as representative as possible. The views and perceptions of those with a disability should be heard in the profession. [78] According to Legier,47 the vitality, credibility and standing of the profession depends on increased diversity. Increasing the number of people with disabilities within its ranks makes it more representative and diverse. The better informed and experienced it is in relation to mental illness, the more likely it is to benefit the community in general. [79] Yet, despite their own imperfections, human systems often struggle to find a place or make room in the world for the different, strange or damaged. [80] The Australian legal profession, in particular, has a history of resistance to allowing minority groups in. It took a long time, for example, for women (who are now on the verge of making up the majority of new admissions) to be broadly accepted and fully participate in the profession. The attitude towards professionals with disabilities is similar, but according to Hensel, it is “largely invisible, normalised and unquestioned”.48 [81] This, no doubt, is partially due to an understandable fear of the unknown and unsettling concerns about future uncertainties. [82] To counter these concerns, Australia ratified the Convention on the Rights of Persons with Disabilities (the Convention) on 17 July 2008. It is based on the approach that “disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others” and is aimed at providing conditions in education, employment, health care etc. that will work effectively for all people regardless of personal characteristics. [83] While the traditional medical model of disability focusses on its limitations or risks and searches for ways of normalising it as much as possible the Convention locates the experience of disability: “.. in the social environment, rather than impairment and carries with it the implication of action to dismantle the social and physical barriers to the participation and inclusion of persons with a disability.”49 [84] As Frances Gibson rightly points out:50 47 Kelly McNeil Legier, ‘On the Road to Diversity’ (2008) 56 Louisiana Bar Journal 29. 48 Wendy Hensel, ‘The Disability Dilemma: A Sceptical Bench and Bar’ (2008) 69 University of Pittsburgh Law Review 637-638. 49 Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8(1) Human Rights Law Review 1, 5. 50 Above n 42. -- 15 of 24 -- 16 “When applied to participation in the legal profession, (the Convention) might mean that in most cases of mental illness, people are able to carry out the requirements of their profession if steps are taken by the profession and their employers to ensure that legal workplaces are structured to ensure a person is given support in the case of any type of illness. Good mentoring and management, education programs for staff, a supportive environment where people are able to reveal illness without fearing stigmatising or discrimination, and appropriate working hours and leave arrangements could all assist in ensuing that employees can carry out their jobs to their full capacity.” [85] Environmentally, mental health issues or problems are most concerning when (as here) they have resulted in, or contributed to, instances of inappropriate behaviour, especially actions which are criminal in nature.51 But in discussing the types of dangers lawyers with mental illness reportedly pose to clients and the profession’s reputation, Gibson says:52 “There does not appear to be any concern in relation to the client’s physical safety being under threat from lawyers with mental illnesses. Cases where lawyers have come to the attention of disciplinary bodies which then raise issues of mental illness seem to indicate that the type of wrong doing is not dissimilar to the usual allegations in misconduct cases. 53” [86] Nor is there any evidence supporting stereotypical concerns about lawyers with a disability. Wodatch portrays this in the following passage:54 “You know they can’t travel; they can’t do anything right in the courtroom; they’ll make other people whom they work with uncomfortable; you never know when you’re going to say something that’s going to set them off or really be the wrong thing to say; and once they’re here, we’re never going to be able to fire them.” [87] On the contrary, lawyers with disabilities have extensive life experience which may allow them to empathise with clients and public with respect of the problems they faced in becoming lawyers. It is claimed persons with disabilities are more loyal to their employers, recognising that their employers have given them a chance to succeed. [88] The Hon Judge Richard S. Brown, Chief Judge of the Wisconsin Court of Appeals, has pointed out the value that lawyers with disabilities are likely to bring to their employer.55 He claims that, because of their experiences in getting into and graduating from law school, they have learned to advocate and communicate to others and have been forced to pay particular attention 51 Above n 33, 75 [2.65]. 52 Above n 42, 396-397. 53 American Bar Association, Mental and Physical Disability Law, Report No 110 (1994), recommendation. 54 John Wodatch in American Bar Association, Second American Bar Association National Conference on Employment of Lawyer with a Disability (2009) 36, cited in Frances Gibson, ‘Disability and legal profession in the United States’ (2011) 19 Journal of Law and Medicine, 101, 103. 55 American Bar Association, Commission on Mental and Physical Disability Law – Goal III Report 2009 (2009) 13-14. -- 16 of 24 -- 17 to organisational tasks and use of technology. Consequently, he says they:56 “[C]an more easily empathise with the clients problems because of the problems they have faced becoming lawyers. As part of the process, they have had to face difficult audiences and learned to persuade these audiences … [P]eople with disabilities think out of the box. Lawyers with disabilities have to generate the same amount of work product by alternate routes in the competitive world or academics. Different approaches to problem solving and more of an everyday happening for them … lawyers with disabilities have a special sense of justice. Every community has disability related issues … law firms who have lawyers with disabilities can offer an unique prospective on these types of case.” [89] In addition to the community, professional and environmental aspects of this debate, Gibson identifies the human rights of lawyers with a disability as another important considerations in developing an intelligent approach to the practical issues.57 [90] A genuinely rights based approach in her opinion requires that any decisions or steps to limit or reduce the right of lawyers with a mental illness to practise be taken only based on “real and present dangers to individual clients, the legal profession and the courts”. [91] However, the Board’s protective function probably dictates a more cautious and broader based approach to testing professional fitness. Troubled mental history can come and go episodically. Also, mental illness in lawyers can develop over time and the tell-tale signs may not be easy to recognise or report. Effective regulation of any profession must balance the rights of the individual and the overriding duty to protect unidentified consumers of legal services from the risk of harm posed by a practitioner’s personal traits or impairment as much as character flaws such as dishonesty, incompetency or negligence. [92] Obviously, regulatory bodies like the Board with public protection responsibilities cannot take unacceptable risks with the safety and welfare of stakeholders. They must take all reasonable precautions to prevent avoidable harm. Professional incapacitation by refusing admission to non- conforming lawyers is, no doubt, the most effective option but it is an extreme one and care must be taken not to overuse it. [93] Conclusions about whether unusual personal attributes or characteristics pose an unacceptable risk or not are notoriously subjective and contestable, because they necessarily involve perceptions, unconscious value judgments, prejudices and according to the High Court, “predictions and assumptions about the future which are not susceptible of scientific 56 American Bar Association, Commission on Mental and Physical Disability Law – Goal III Report 2009 (2009) 13-14. 57 Above n 42. -- 17 of 24 -- 18 demonstration or proof … and even intuition and guess work can play a part”.58 [94] Opposite but nonetheless reasonable conclusions can be reached with neither being demonstrably right nor manifestly wrong. [95] As Lord Fraser of Tullybelton pointed out in G v G59 (a family law case), the discretionary jurisdiction in these cases is: “…one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory”. [96] No doubt with this in mind, both the Board and the Court of Appeal expressed considerable sympathy for the applicant’s dilemma in the course of the appeal proceedings and frankly acknowledged the difficulty in balancing the applicant’s legitimate interests against the protective LPA’s purposes. The effect of the applicant’s mental health on his capacity for legal practice [97] In searching for Lord Fraser’s “reasonably satisfactory answer” to the referred questions, I have weighed up a galaxy of pertinent factors for and against the applicant’s suitability for admission to the legal profession. [98] On the one hand, he has a right to a reasonable expectation of being able to enjoy the fruits of his academic labours and dedication to purpose, to earn a living of his choosing and a right of dignity, autonomy and self- determination and as well as not to be discriminated against needlessly excluded from or shunned by the legal fraternity. [99] The profession and wider community benefit from diversity and the broadest possible representation which help dispel unjustified fears born of ignorance and increase understanding and tolerance. [100] On the other, unknown future clients are entitled to genuine consideration and their rights as consumers of legal services duly protected. The profession’s standing and public reputation of the legal system are also important. So too, of course, is respect for the law and authority of the courts. [101] Of prime significance to the applicant’s suitability for an admission under the referral, however, is his capacity for legal practice. [102] The Board initially refused to make a declaration of suitability; not out of any stated concern that, if admitted, the applicant would fail to meet professional standards of conduct or breach the legal, ethical and regulatory obligations 58 CDJ v VAJ [1998] 197 CLR 172 [150]-[151]. 59 [1985] FLR 894, 897-898. -- 18 of 24 -- 19 of an Australian lawyer or officer of the Supreme Court, but because it could (or would) not choose between conflicting psychiatric evaluations. [103] In this proceeding, the Board focussed much more closely on the applicant’s mental condition as it related to his professional capacity because self- evidently, simply reconciling the divergent psychiatric opinions does not resolve the substantive suitability issue. Contact and communication with clients, rather than any character and conduct based objections, were mainly relied on as the major obstacle to admission even with conditions. [104] The key determinant on this approach is the symptoms, not the diagnosis, of the applicant’s mental health. [105] On this aspect, Dr Steinberg’s assessments really have to be preferred over Dr Wilkie’s. Not only are they more recent but they have the added weight of being tested at length by cross-examination at the hearing, albeit by telephone. The most significant psychiatric related risk factors Dr Steinberg identifies are:  the schizophrenia diagnosis;  the applicant’s lack of insight into his condition and record of non-compliance with adequate treatment or medication regimes resulting in impulsive and inappropriate behaviour even though the last such episode was in 2013; and  his inability to live at home unsupervised and to form close, consistent and durable personal relationships. [106] The applicant’s “disturbing” conduct is arguably less significant as a predictor of his future prospects as an Australian lawyer than his apparent aversion to effective therapy and treatment. [107] In XY v The Board of Examiners,60 the applicant had a significant number of criminal charges including resisting arrest, and assaulting police, abusive phone calls to police, stalking and wilful damage, which had been struck out or successfully appealed on each occasion based on her mental condition. The Board’s original decision to refuse XY admission was based on psychiatric evidence that she “continued to be dissociative and affected by post-traumatic stress disorder and long-standing borderline personality disorder” at the time of the application.61 However, by the time of the appeal some three years later XY no longer met the diagnostic criteria for any of the conditions with which she had previously been diagnosed supported by other expert evidence, to the effect that XY no longer suffered from any psychiatric condition or troubling symptoms and was found to be fit and proper for practice. [108] In Legal Practitioner Conduct Board v Trueman,62 by contrast, Doyle SJ accepted that an order for the striking off of a practitioner’s name should be 60 [2005] VSC 250. 61 Ibid [25]. 62 [2003] SASC 58. -- 19 of 24 -- 20 made as a matter of course whenever unprofessional conduct is substantially due to a psychiatric disorder or mental disturbance:63 “…the evidence demonstrates that Mr Trueman has suffered from a significant disorder for a long time. He has not yet recovered from it. That disorder has played a part in him committing many acts of unprofessional conduct over a lengthy period. That professional conduct cannot be regarded as occasional or isolated lapses of behaviour by a practitioner who has otherwise coped with his disorder or condition. Nor can the unprofessional conduct be regarded as unlikely to be repeated if all goes well. Nor can the disorder be treated as of a temporary or episodic nature, reasonably likely to be capable of management if properly treated and properly approached by the practitioner. The evidence shows that Mr Trueman has been unable to cope with his condition, and that has led him into a sustained and significant pattern of unprofessional conduct.” [109] While there appears to be a definite correlation between the applicant’s past bad behaviour and his mental health, it is far less certain whether his condition will translate into post-admission disciplinary breaches or workplace problems. [110] Overall, however, I think it would be overly optimistic to expect the applicant to be able to sufficiently and effectively compartmentalise his personal and professional lives at this point in time. Without effective medication and treatment he is unable to satisfactorily carry out the inherent requirement of practice identified by the Board. [111] The delusional thinking characterising the applicant’s illness is unpredictable and poses a significant risk to proper judgment, effective communication and interpersonal relationships. [112] His persecutory delusions make him vulnerable to misinterpreting day-to- day events, which in turn could adversely and unpredictably affect his professional judgment and conduct. A fixed prejudice against police, for example, may be inconsistent with the due performance of the role and functions of a legal practitioner.64 This applies not just to depriving him of the ability to “adjudicate rationally and skilfully between alternative courses of action” but also an inability to assemble all relevant information, understand its true objective significance and effectively convey that understanding to others”.65 [113] His lack of insight into the nature, extent and effect of his illness and the chronicity of his symptoms makes his personal outlook poor and his 63 Legal Practitioner Conduct Board v Trueman [2003] SASC 58 [23]–[24], where the issues was where the findings of unsatisfactory billing practices, lying to clients over a six year period and lack of cooperation with Board investigations was due to “acute agitated depressive illness with persistence suicidal rumination and compulsive phobic avoidance” was a reason for striking off. 64 Re B [1981] 2 NSWLR 372. 65 Re Joseph Sleiman and Australian Securities Investments Commission [2007] AATA 1383 [108]. -- 20 of 24 -- 21 apparent suitability for legal practice, at least in the short term, a highly hazardous proposition. [114] Regrettably, for those reasons, I find that the applicant is probably unable to satisfactorily carry out the inherent requirements of legal practice because the current state of his mental health makes direct client contact and communication too problematic. [115] That does not necessarily mean, of course, that the Board should not be directed to make a suitability for admission declaration under s 32 LPA. The pertinence of s 9(1)(m) LPA [116] Section 31(2) LPA recognises that suitability matters can have varying significance depending on the circumstances. That is why it requires consideration of s 9(1)(m) LPA in relation to the applicant only “to the extent … appropriate”. [117] It is important to keep this distinction in mind when assessing the appropriate weight to be given to inherent practical requirements such as client contact and care in the present context. [118] As already mentioned, admission to the legal profession does not entitle the applicant to engage with clients in legal practice without a practising certificate. Whether (and on what terms) he gets a practising certificate would be up to the relevant regulatory body. [119] The Board’s major misgiving about the applicant relates to an aspect of “legal practice” more than membership to the profession per se. Unless he is going to practise illegally, which it would be wrong to be assumed against him, its concerns will never materialise. [120] To my mind, however, whether a person is able to satisfactorily carry out the inherent legal practice requirement of direct client contact is of less concern to the Board (and the Court) in deciding the “fit and proper” issue for the admission purposes than it is for the regulatory authority considering whether to grant a practising certificate to a new legal practitioner under s 51 LPA. [121] I find that, given the weight I think the suitability matter in s 9(1)(m) LPA appropriately has in the circumstances, despite his current inability to satisfactorily carry out the direct client contact and communication requirements of legal practice due to his mental health the applicant is nonetheless a fit and proper person for unconditional admission as an Australian lawyer. In other words, his partial incapacity for practice should not be used to bar his admission. [122] Accordingly, the Board is directed to make a declaration under s 32(3)(a) LPA, to the effect that the applicant’s mental health (in its current state) will not, without more, adversely affect its assessment as to whether he is a fit and proper person to be admitted to the legal profession under the LPA. -- 21 of 24 -- 22 [123] The proposed declaration would not bind the Board from later recommending against admission on other suitability related grounds (i.e. character) under s 39(2) LPA, or in light of substantially changed circumstances. [124] It simply has the intended effect that the applicant is not assessed as being unsuitable for admission only by virtue of his current inability to deal directly with clients because of his diagnosis and symptoms. [125] Also, the Supreme Court may, regardless of the Board’s recommendation, refuse to admit the applicant under s 35(2)(b) LPA if for any reason it is unsatisfied he is a fit and proper person to be admitted (as distinct from suitable to hold a current practising certificate) or, alternatively, make an admitting order with conditions under s 35(3). [126] In Re Gillian Sheppard,66 His Excellency the former Chief Justice said: “[w]e don’t like doing that (admitting on conditions) because when we admit people we should be holding them out as legal practitioners in the full sense.” [127] This is because of the downside of conditional admission which is that the potential for error in forecasting the duration and severity of a person’s mental state in the short and long term, as well as its possible professional impact, makes treatment, medication and supervision requirements problematic control or management measures. This is especially so where there is denial, minimisation or a poor compliance history and low motivation for seeking therapy on an ongoing basis67 to address the root cause of symptoms or their practical implications. [128] Conditional admission can also be incongruent with the paramountcy of the public interest and arguably should not be used to make an otherwise unsuitable applicant into a suitable one, but it does have the obvious benefit of providing an incentive for applicants to raise problematic diagnosis or histories and seek treatment earlier rather than hide their vulnerability and avoid career-ending stigma and take the unacceptable risk of non- disclosure. [129] Perhaps its proper function is to act as a form of insurance or safety net against potential future unfitness and conditions can provide a viable option for some applicants with mental health problems which, in an earlier era, would have almost certainly excluded them from membership. [130] Thus, while the applicant could be admitted on the basis that he is only allowed to practise as an employee in a Board-approved law practice under the supervision of an approved senior practitioner (a supervisor) and on a “no client contact” condition; as I have already made clear, in my opinion, the most appropriate body to decide whether and on what, if any, conditions the applicant is allowed to practise his profession in the future is the relevant 66 [2007] QCA, 19 March 2007, record of proceedings, 5 LL2-4. 67 See Legal Practitioners Complaints Committee v Tomlinson [2006] WASC 211; Legal Practitioners Conduct Board v Jones (2010) 272 LSJS 529. -- 22 of 24 -- 23 regulatory authority if and when the applicant applies for a practising certificate not the Admissions Board for admission purposes. [131] For the applicant to be regarded as fit and proper for (or to be able to satisfactorily carry out the inherent requirements of) legal practice despite his mental health problems, any conditions imposed would have to ensure his symptoms did not have any material detrimental impact on his professional functioning or the proper discharge of his duties to the courts, clients and the profession. [132] They would have to minimise and effectively manage the effect of the applicant’s symptoms on his current and continuing68 client-related capacities – i.e. reduce them to a level of acceptability – and provide a secure safety-net pending progress towards rehabilitation or stabilisation. [133] A high degree of confidence is needed that, if given a chance to practise, the applicant would comply at all times and in all respects with precautionary conditions calculated to anticipate and prevent (or at least minimise the risk of) relapse or substantive professional conduct. [134] Suitable conditions may include completion of mental health treatment, ongoing as directed periodic psychiatric testing therapy and reporting, ethical and professional responsibility, education and counselling, close workplace supervision. [135] Supervision and appropriate support of staff is part and parcel of the employers role. After all, the allocation and supervision of all professional legal work carried out on a firm’s behalf is an elemental and non-delegable duty the practice owner owes to clients.69 [136] A supervisor takes direct and principal responsibility for individual clients and must be physically present at the workplace at all times when the practitioner is providing any legal service. He or she is consulted by the practitioner about the management of all clients and usually provides a progress report written by the supervisor to the Board on a three (3) monthly basis addressing performance and the ongoing management of relevant concerns. [137] Notably, a statutory condition of a local practising certificate requires provided for in Part 3.2 LPA for the maintenance of high standards of professional conduct and regulating who may engage in legal practice a solicitor to engage only in supervised legal practice for a minimum of 18 months (unless reduced by the Law Society under legal profession rules).70 [138] To summarise: 68 cf Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 [42]. 69 Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 37.1; Law Society of New South Wales v Foreman (1991) 24 NSWLR 238. 70 LPA ss 56(1),(3). -- 23 of 24 -- 24  The applicant is not currently able to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner in light of his mental health.  Despite this finding, the Board is directed to make a declaration of suitability in the terms of [122] of these reasons.  Whether the applicant is able to comply with s 9(1)(m) LPA on conditions is a question best left to the relevant regulatory authority to decide, if and when the applicant applies for a practising certificate. -- 24 of 24 --