The Solicitors Regulation Authority (SRA) needs to have “far greater regard” for the wellbeing of those facing disciplinary action when deciding what to publish about them, legal healthcare charity LawCare has argued.
It also became the latest to question whether the regulator should introduce a ‘fitness to practise’ regime for those with mental health problems, as an alternative to using punitive disciplinary processes.
LawCare was responding to the SRA’s consultation on the principles underlying its publication policy; at present, the majority of decisions are kept on its website for three years, although those with restrictions lasting longer are kept in the public domain for that period – or indefinitely in cases such as strike-offs.
The charity said it appreciated the obligations of the SRA to uphold the integrity of the profession and to protect the public.
“However, disproportionate publication runs the risk of the reputation of the profession being unduly tarnished and concerns of the public may in fact be unnecessarily amplified.”
Its work showed how lawyers in formal disciplinary process were “particularly vulnerable and often lack support and representation”.
The response continued: “In addition, the extent to which regulatory investigations can impact on the mental health of those undergoing the process is not always fully recognised.
“The publicity and the threat of disciplinary sanction is a huge source of concern amongst legal professionals and training investigators in sensitive handling throughout the often-lengthy process is vital.”
LawCare highlighted how “the publication aspect causes significant additional anguish and genuine fear among the profession, with some raising serious safeguarding concerns”.
It argued that the profession regarded publication “almost exclusively as a punitive deterrent”, rather than as a way to raise awareness of appropriate conduct.
“In terms of the public interest argument, it seems unlikely that the majority of consumers will be cognisant of the roles of the SRA and the Legal Services Board; it would be useful to learn if there is data on frequency of access and attitudes to publication.”
To protect the public, LawCare suggested, more focus on educating the profession about creating psychologically safe working environments was “much more likely” to be effective.
It went on: “Is there merit instead in a system whereby potential consumers and those with a genuine interest could request information rather than a system of unfettered publication?
“Our view is that far greater regard needs to be had for the wellbeing of the practitioners involved when deciding whether to publish and in how much detail and for what period of time.
“Publishing a decision in relation to someone who has serious mental health issues may well compound their problems and exacerbate their condition.”
LawCare also expressed concern that not all those facing the SRA’s disciplinary function have access to legal representation, which can result in “widely differing outcomes”. It called too for a formal system to refer any regulated profession to LawCare for emotional support when facing an SRA disciplinary investigation.
The response highlighted that the SRA frequently only became aware of health issues when there was a concern about conduct or behaviour.
“There needs to be a fair, transparent and independent process that operates outside of the formal disciplinary process for dealing with health (or other) issues that have impaired a solicitor’s competence to practise.”
The Legal Services Act 2007 provides for the power to introduce a fitness to practise regime, and there have been calls on the SRA to establish one as a way of dealing with solicitors whose misconduct has arisen from mental health problems.
However, in a separate consultation earlier this year on health and wellbeing at work, the SRA proposed assuming a power to refuse to issue a practising certificate, or to impose conditions on it, to address concerns about fitness to practise on health grounds.
It said this should be enough without needing to go as far as activating the Act’s provisions.
LawCare added: “The current approach is outdated and fuels the unhealthy approach to error culture that prevails in law.
“The profession appears to regard it as a naming and shaming exercise and there is an argument that once someone is unable to practise, publication of full details is an unnecessary humiliation.
“Perhaps with the exception of those convicted of serious criminal charges which has resulted in disciplinary action, public declarations often appear both unfair and disproportionate.”