Stolen Generation Success

I was interested to read the recent case of Trevorrow v State of South Australia (No. 5) (2007) SASC 285. Put briefly, the plaintiff was taken from his parents as an infant, and consequently had a troubled childhood and adolescence. He succeeded in his efforts to sue the South Australian government. I think that this was a just result.

It’s a sad story. The plaintiff was cared for by his mother and his father. His mother separated from his father, and left three of the children with the father over Christmas. When he was a little over a year old, the plaintiff contracted gastroenteritis and his father did not have transport by which to get him to hospital. The police could not help. So the father got the local garage proprietors to take the boy to hospital.  The plaintiff was cured, but instead of being returned to either parent, he was then fostered out with a non-indigenous family. Neither parent knew what had happened to the boy. The mother tried to get the boy returned to her, but was told that there was nothing she could do. Meanwhile, the plaintiff was fostered out to a non-indigenous household and brought up as a child of the house. Once the plaintiff found out that he was not related to his family, he began to act up and steal things. He was returned to his mother when he was 10 years old, but found it extremely difficult as he did not know his family and did not know Ngarrindjerri language or customs. He then got into trouble with the law, and became an alcoholic. In comparison, his brothers and sisters who were not taken from their parents seem to have overcome childhood difficulties and poverty. One brother of the plaintiff is a respected Ngarrindjerri elder.

The Court was prepared to extend the limitation of actions period in the circumstances.  Gray J found that the plaintiff was not removed from his parents in accordance with prescribed statutory processes. There was a foreseeable risk of harm to the plaintiff. Accordingly, the South Australian government was liable for a number of claims:

• tort of misfeasance in the public office;
• tort of false imprisonment;
• tort of negligence
• possible breach of fiduciary duty (for which damages would be the same as for common law actions;

The plaintiff was awarded $450,000 damages for the breaches of the duties above, and $75,000 in exemplary damages.

It seems to me that this case is a fair one. As I’ve outlined in a past post, I don’t take a hard and fast attitude towards the Stolen Generation. There are at least two conflicting motives at play. I’m sure that some probably did have the best interests of children at heart. But there was also an explicit desire to “Westernise” indigenous children and a racist aim of “wiping out” indigenous culture. Both motives were often combined.

As I have also explained, I have known indigenous people who were taken from their parents or had relatives who were taken from their parents. Their stories lead me to believe that great pain has been visited on these people, but that in some cases there were valid reasons for them being taken from their parents. The scenarios are complicated and not well suited to the adversarial arena of the court room.  In one instance, a student’s mother was taken from her tribe because the majority of the tribe wanted to kill the baby (a “half-caste” child who was the product of a rape). The mother of the child did not want her to die, and so she relinquished the child to authorities after it transpired that she could not protect the girl. Another friend was taken from her mother because her mother was physically abusive. Her mother lacked parenting skills, in part presumably because she herself had been taken from her parents. However, unfortunately, my friend was also abused in the foster homes in which she was subsequently placed. She has suffered lasting psychological damage.

I agree with Julian Burnside QC that there can be no blanket response to this issue: it all depends on the facts of each case. For example, in the Cubillo case, the plaintiffs failed in large part because their factual allegations could not be made out.  In comparison, in this case, the plaintiff succeeded because he could point to the fact that his removal was not authorised, and he could also establish that his psychiatric problems arose because of his placement in a foster home. I presume that it was highly relevant that his siblings seem not to have had these kind of problems, even though they also had a difficult upbringing.

“Team building” exercises

I enjoy working in a team with intelligent and motivated people where communication is clear and there is respect between the members of the team. But I think I may have mentioned before on this blog that, in some respects, I’m not a team player (at least insofar as the concept is conceived of by HR departments). I hate work retreats. My attitude has always been: I spend all week with these people, and while I like most of ’em well enough, I can’t wait to spend the weekend with my family. But what I really hate are “team building” exercises.

This dislike has gone back many years, but I think it was exacerbated by a particular event. Once, longer away now than I care to remember, I was a little articled clerk, full of enthusiasm and naivety. On our first or second week, our group of articled clerks was sent on some kind of “leadership” or “team building” exercise. I don’t know what exactly the point of the exercise was, but the end result was appalling. By the end of the week, we had gone from being a friendly bunch to a group with massive schisms, full of suspicion and dislike. It certainly didn’t build a “team” mentality; in fact the very opposite. Luckily, I was a bit older, and I’d already been working full-time for over a year before then, so I didn’t take the whole thing very seriously. I have always just wanted to do my job well and go home.

One can get help from some exercises – for example, I found it helpful to do the Meyers-Briggs test, which disclosed that I was an extrovert – and almost everyone else in my family was an introvert. This helped me understand why everyone had been saying, “Why do you talk so much all the time?” since I was knee-high to a grasshopper. I feel the need to talk to work stuff out, whereas almost everyone else in my family feels the need to go away and mull over things to work stuff out. I’ve even married an introvert. Fortunately, my daughter is an extrovert from what I can see so far, so I have a fellow extrovert with whom I can talk until the cows come home. At the moment the main things she says to me are “Cat! Meow! Jump!” (her new game is pretending to be a cat, and I have made her a “tail” out of an old stocking and some newspaper). But I’m sure we’ll have more to talk about soon.

Team building exercises worry me where they are supposed to help you resolve “issues” with colleagues. I’m happy to talk with friends whom I trust about my personal problems and issues, but work colleagues? If I ever raised problems I had with a colleague, I’d prefer to keep that very, very private, strictly professional, and definitely one-on-one. I think it can be very confronting to talk about personal issues in a group of colleagues. I had a friend who did some kind of weird life skills course or something like that. He described to me how participants in a group exercise were talking about occasions where they had been physically and sexually abused, and crying. He said that he thought it was very positive and cathartic for them to talk about this in a group situation. On the contrary, the very idea appalled me. I think that for some people it can be a profoundly negative experience, and indeed, if not well handled, it can exacerbate any latent mental problems. A psychologist friend of mine once said, “It’s easy to take people’s heads apart and find out what’s bugging them, it’s far more difficult to put their heads back together. If you’re not careful and clever, you might unleash some stuff and be unable to resolve it and fix it.” You have to be so careful.

I couldn’t help thinking of all of this when I read a recent post by Marcellous, entitled A sad case. The case, MacKinnon v Bluescope Steel Limited [2007] NSWSC 774 is indeed very sad. To quote from Marcellous:

…[I]n extreme summary form, in 1996, Dr McKinnon, then aged 35 and a doctor employed by BHP (now called Bluescope Steel), attended a residential leadership course run for employees of BHP. The course was a fairly intense experience. At some stage during the course, McKinnon suffered something which in lay terms might be described as a nervous breakdown, from which he has never recovered. The case concerned whether BHP, or possibly the people who ran the course breached some duty towards Dr McKinnon and so caused this breakdown so that they should be required to compensate him for the consequences of this breakdown.

The amount at stake was substantial. The lost earning capacity for the rest of his working life of a doctor aged 35 is a considerable amount of money. Altogether there were 93 hearing days: 89 in which evidence was heard and a further 4 days for closing submissions.

Poor old Dr MacKinnon lost the case. He could not prove that BHP or the organisation which ran the course had breached their duty of care, and in any event, the trial judge formed the view that even if there had been a breach, he would have been unable to prove that the breach caused the injury. It seemed he had already been stressed before he attended the course, and had had some clashes with his then-boss. A number of incidents during the course exacerbated the tension between him and his boss, such that the plaintiff became mentally ill. But he was not forced to attend the course, or to continue attending it. There had been various measures put in place to try and monitor the mental health of the employees by both BHP and the organisation which ran the course. Dr MacKinnon had shown signs of increasing distress as the course went on, but the defendants had tried to alleviate and manage this.

I wonder whether companies will reconsider these kind of “team building” exercises in light of cases such as these? Even though BHP won, it must have been expensive to defend a claim like this. Personally, I won’t shed too many tears if courses like these go the way of the dodo!

Feelin’ blue about blogging

Lately, I just haven’t felt inspired by blogging. I don’t know why. Perhaps it’s the midwinter blues. Perhaps I’ve just been working too hard (full time thesis, preparing for next semester, doing consulting work, looking after baby, blogging…all too much?)

Or perhaps it’s finding out that we have to move again when our lease ends in November. I am sad. I love the place we are presently living in. It’s close to Mum and Dad, it’s spacious, it’s not too far from either of my or my husband’s workplaces.

I am really “over” renting.  The way in which renting operates in Australia means that you don’t have any sense of permanency or security. Typically, leases are short (6 months to a year) and tenants don’t have any rights even to hang pictures on the wall. But I don’t see how we could afford to buy a place right now. I am still “on contract”, and uni will only confirm that it is renewing my contract at the end of the year. And what if we want to have another child?
I’ve heard a few politicians say things about housing affordability lately. Kevin Rudd, for one, said that the housing affordability crisis had to be alleviated. That’s welcome news. But I’m a bit worried about the practicalities, and as far as I can see, Rudd didn’t get into the nitty gritty detail. As Andrew Bartlett pointed out recently, it is a complex problem and not one that will be easily fixable. For example, my sister has recently bought a place – if prices suddenly fall, her place will be worth less than she paid for it. And what of people who have invested in property with a mind to retirement? As Bartlett also argues, this doesn’t mean that we shouldn’t at least try to do something! I commend him for addressing the issue, and having a look at some of the complexities rather than just producing nice shiny sound bites.

Then I heard the Victorian government banging on about its 2030 plan, which means promoting high density living in “urban centres”. I am afraid I won’t be buying an apartment any time soon. For one thing, a “family sized” apartment is likely to cost nearly as much as a house anyway, so if I’m going to be indebted for life, I’d rather get a house. And the main thing which turns me off apartment living is noise and privacy issues. I worry that people might complain about our little girl if she cries or shouts. On the other hand, I also worry that people might party all night, like those Colombian exchange students two units down from us at our last place – they had regular weeknight parties which went until at least 3am in the morning, and the common living areas were trashed afterwards. These places had solid brick walls (unlike many modern apartments) and the noise still carried. I don’t think new places are built solidly enough (those plasterboard walls are hopeless).

I don’t know what the answer is. And I don’t know what we’ll do. I’m sure it will all work out in the end. As Mum says, I tend to fall on my feet, one way or another.

Anyway, that’s just an explanation of why I don’t think my blogs have been as sharp as normal, and why I haven’t been commenting as often.

Career choices…

Eitan Erez is a candidate for the Israel Bar Association. Check out this report in Israeli newspaper Ha’aretz:

When Erez, 52, was certified as an attorney 26 years ago, only 7,000 lawyers were registered with the Israel Bar Association. After the upcoming certification ceremony, it will have 38,000 members.

“Do you now what an honor it once was to be a lawyer? Do you know how proud my parents were when I became a lawyer? Today a lawyer is worth less than a taxi driver. Lawyers work as house painters, plumbers and plasterers. A lawyer who works as a plumber takes on traffic cases once every 10 days, when he goes to represent people for NIS 300-NIS 400. That’s what we’ve come to. The rates are too cheap, it’s impossible to work for such fees, and lawyers who work for such fees cannot buy books, computers, equipment. They can’t keep up-to-date, attend continuing education courses. That’s why there are more claims of professional negligence afterward.”

I found this article via Adrian the Cabbie’s website, Cablog. He thinks he’s a cabbie in the wrong city (or possibly) the wrong country.

He recently drove a lawyer in his cab, and to earn the same amount of money as the hourly rate of this lawyer, he’d have to drive for 38 hours. Must have been a QC. The fees those guys charge are absolutely crazy – $2000 an hour. I can’t even imagine that kind of money. However, the perception that all lawyers are rolling in money is not correct. Lawyers who don’t work for big firms often don’t earn any more than “normal people”. This is especially so of lawyers who work for small firms, regional firms, Legal Aid, government, the Department of Public Prosecutions and the like. Another point is that junior lawyers don’t actually get the money they charge out at. I might have been charged out at, say, $200 an hour, but I wouldn’t actually get that money in my pocket. A lot of it would go to the firm.

I reckon I’d earn about the same amount as a cabbie these days. Maybe a little less. Should I become a cabbie instead?

Pros:

• I like people
• I like talking
• I like political, philosophical and religious discussions, and wouldn’t mind if someone tried to engage me in one
• I have a reasonably good knowledge of Melbourne and surrounds

Cons:

• As I have explained before, I find driving very stressful and frustrating at times
• I hate shift work
• I wouldn’t know what to do if violent people got into my cab
• There’s that same billable hours problem that lawyers have – how much you earn depends on how much time you spend in the car – hard with a young family!

So, I think I’ll stick with the law lecturing gig for the moment.  😉  Much more my cup of tea.

Seriously, however, there are a couple of interesting points raised by the Ha’aretz article. First, Erez raises the issue of increasing numbers of graduates. Things are similar here. At the entry stage, the market is absolutely flooded with young law graduates seeking articles, such that it’s very difficult to get a place. However, there is a massive shortage of lawyers at a second- third- and fourth-year level. I thought that I might find it difficult to get position as a junior solicitor after a number of years at the court. They were rather stuck as to how to categorise me given that I hadn’t been rising up through a law firm, but it wasn’t at all difficult to find a job! The question is whether you wanted to keep on going in that job…there’s a reason why there is such a dearth of young solicitors (see my posts on the law and depression here, here and here). Lack of morale is a serious issue which has finally come to the notice of the firms, I think, after recent publicity.

Another serious issue raised by Erez is the low public opinion of lawyers. I must confess that some of us are our own worst enemies in this regard. Some lawyers behave arrogantly and unpleasantly towards others: colleagues, litigants, opponents, random cute furry animals, anyone who crosses their path. Some use the law to bully and intimidate (like that Judge with the US$65M claim for a pair of lost pants). Some lawyers think that being a lawyer means the law doesn’t apply to them or gives them carte blanche to get around the law (like the recent notorious case of the lawyer with a dangerous strain of TB who illegally left the USA to go on his honeymoon). Then there’s the whole perception that we get guilty people “off”, described in a post (which coincidentally starts out with a conversation with a cab driver). And then there’s a perception that we argue for decisions which are against common sense (like the recent decision which held that a stationary driver on a hands free phone breached the law). Again there’s a crazy overlap between the law and cabbies… Maybe someone’s trying to give me a message??

I don’t think I’ll be putting down my law text books yet to drive a cab. But Erez’s comments do provide food for thought.

(Via Cablog)

School pays for bullying

I’ve written very recently on the phenomenon of people suing schools. In a decision handed down yesterday, Cox v State of New South Wales [2007] NSWSC 471, a bullied teenager from NSW has been awarded substantial damages and an income for life as a result of bullying sustained while he was at school (primary school and high school). He could not continue at school past Year 7. He still suffers from severe psychiatric problems, including depression and anxiety. The result of Mr Cox’s case is very sad.

Nevertheless, as I have discussed in my previous post on the topic, I am ambivalent about these cases. I was bullied at primary school and high school, partially because I suffered from a disability at that time. There was one particular girl who was a terrible bully, and in retrospect, I wouldn’t be surprised if she grew up to be a psychopath. Apparently I was a friendly, open child before I went to primary school, but I became very anxious and shy for many years, until my late teens. From that point of view, I feel great sympathy towards Mr Cox. It sounds like the response of the school and the Department was wholly inadequate.

But, being a cynic, I wonder how much anti-bullying policies and action by the school could have achieved. My own experience at high school was that when these issues were raised in the classroom, all the bullies earnestly said that bullying was a terrible thing, and should be dealt with harshly. Did they have any idea that they were bullies themselves? I still wonder. Really the only thing you can do is to take the bully out of the particular class. Even if teachers are vigilant, they cannot always stop bullying in a class.

Another problem with anti-bullying programs is bullies may be diagnosed as suffering from self-esteem problems. This may be so – I am no expert on the psychology of bullying – but a result of this analysis can be that a bully is rewarded with attention for his actions.

Let’s consider a case study. A teacher of my acquaintance told me of a terrible bully in his class. The teacher taught at an ethnically diverse school. This boy was racist and sexist. If he had been an adult, his conduct would have been racially and sexually abusive. The teacher understood that the boy had a difficult family background.

The teacher did his best to try to control this boy, but it was very easy for the boy to do things before the teacher arrived at class, when the teacher had his back turned and was writing on the board or when the teacher was trying to help another student. The teacher reported the boy to the principal. The boy was returned to the class with a “stress balloon”. He was supposed to blow up the balloon every time he felt “stressed”. Instead, he proceeded to disrupt the class by using the “stress balloon” to make fart noises. And he continued to bully students. The teacher could not give his full attention to teaching the class or helping other students.

What can teachers do in these circumstances? And what can the school do? Obviously, the stress balloon is a ridiculous solution. The school could try to tell the child that his conduct is inappropriate, but obviously, a child such as this will not care. The school could also try speaking to the child’s parents. But in the above circumstances, the parents had problems of their own with the boy’s behaviour, and indicated that they could not control him either.

A school can’t easily expel a student or take a student out of a class. Education is a right which we offer to all children, and it’s difficult to make a judgment as to when someone should be denied that opportunity.

However, the case study above indicates that there needs to be some kind of measures which balance the rights of the majority not to be bullied and to receive a proper education against the rights of the bully to be educated. As the situation stood, the class was short-changed because the teacher had to spend a lot of effort controlling the bully which could have been better spent on teaching, and the bully still managed to keep bullying other students. Should there be a school to which bullies are sent? If so, what if the bullies are then hardened and turned into worse bullies? What if the bullies are bullied by other bigger bullies and psychologically injured thereby? And then sue?

I can’t bear the thought of my child coming across bullies at school. It really worries me. Hopefully, I can try to provide her with the love, support and coping strategies she needs to overcome bullies. I am glad that I learned how to deal with bullying better, and how to stand up for myself.  I am also glad that my parents were loving and supportive.

Another the sad fact of life, too, is that once we emerge from school, we still come across bullies all the time. In fact, bullies and psychopaths can do quite well for themselves in the big, bad world. It has been reported in The Times that an American study found that many stockbrokers, as well as many top lawyers and CEOs, had qualities which made them “functioning psychopaths”. They did not have the same emotional engagement with life as other people. {Aside: I knew it! I knew it!}

So whether we learn how to deal with these people at school, or afterwards, it’s inevitable that we will come across them at some stage. The important thing is to ensure that intelligent and promising people are not irredeemably scarred by encounters with bullies. And to stress that it is possible to get through school and become a successful functioning adult even if you were bullied at school.

Forum on depression

My friend-via-the-blogosphere, Jim Belshaw, is running an open forum on depression in the workplace next week. If you’d like to contribute, please visit Jim’s website here.

All’s fair in love and law

I was reading Mirko Bagaric’s post on lawyers and depression with interest. It’s a topical issue right now. Bagaric’s argument is that lawyers are driven by status and desire for material things to work long hours. He says:

Still there is even scope for lawyers to crank up a smile. The key rests with working shorter hours, not personalising uncertainties brought about by the actions of their clients and working in areas of law which cohere with their intrinsic interests and provide them with a sense of civic fulfilment.

Why am I a lawyer? As I have described in a previous post, I do actually love the law. Let’s look at why:

• I love figuring things out. Being a lawyer gives me the same kind of pleasure that doing a cryptic crossword brings. There’s a sense in which being a lawyer is like being a historian or an archaeologist – searching through the past to build a picture of what happened and why.
• I love words. Law is all about words, nuance, what is said and what is written. I love telling stories.
• I love debating. I like to think of both sides of the story, to look at things from different angles and then put it all into an argument.
• I love fixing things for people and helping people. I like it when a case ends well, when justice is done, when an outcome is fair. I hate to see people bullied, and I really hate seeing people lose out because they have less legal resources than the other side.
• I love knowledge. I like the fact that I have the skills to research the law and to understand it. I like the fact that I can use this to help others.

Unfortunately, working in a law firm only occasionally involved the things mentioned in the bullet points above. I liked the people I worked with, but I don’t miss the work.

I think Bagaric is right. Lawyers lack control over their own destiny. They are pushed and pulled this way and that – by the client, by changes in the law, by partners (if they are junior lawyers), by judges (if they are litigators) and by the demands of the market. One of the things which made me most miserable about being a solicitor was that I couldn’t work in the way I like to work (which is spurts of enthusiasm followed by a period of “thinking” before I send anything out). Because of the six minute billing regime, I had to fill every minute of the day.

Often, my plans for the day would be totally thrown out because some other person above me in the hierarchy had mismanaged their day – “You need to drop everything and do this, the client needs it now!” I would be punished for the failure of others to manage the workload properly. What could have been done properly would end up being a rushed job.

At one point in one of the firms at which I worked, morning teas were banned because they were cutting into billing time. This attitude is disastrous for morale, and does not help productivity. By pausing and smelling the roses, you can get everything in perspective. You can talk to your colleagues and see if they have any solutions or suggestions for a difficult file.

All too often, my job involved just mechanically going through the motions and doing jobs that required no brain power at all. My strength is not in the mechanical, but in research and in being creative. I felt my strengths were not being utilised to the full.

Bagaric suggests that shorter hours would help. Shorter and more reasonable working hours are an important part of the puzzle, but not the only piece. Part of the problem is that modern technology and expectations mean that a client thinks that a lawyer should be contactable any time, anywhere. A firm has to be strong and resist the psychos who stay at work for 15 hours a day because they have nothing else to do. Unfortunately, because of the way in which high billing levels lead to promotion, these are the kind of people who get promoted, and then expect others to work in the same way.

Part of the battle is to know how to react when conflict and stress come up, to know how to manage junior staff, administrative staff and senior staff, and to be honest about your own weaknesses. I know that I’m not so good on mechanical stuff, and so I tried to manage that by putting in place various tactics to stop me stuffing up through sheer boredom.

I don’t think, that the lawyer blues are all down to material greed and status. Certainly, some lawyers are like that, but others just get stuck in the treadmill and don’t know what else to do. So they keep going up the chain, miserably, as their enthusiasm for the law is squashed from them bit by bit.

I am not interested in material gain or status. Well, let’s not go overboard…I want to have enough to live and eat, and have the occasional treat. One day it would be nice to be able to afford a house, but I’d rather be happy and renting than unhappy with a house.

One thing I have found very fulfilling is volunteering at a community legal centre. I like being able to help people who can’t afford to pay for legal advice and don’t know what to do. For any lawyers out there who are wondering whether being a lawyer does any good for the world, I thoroughly recommend it. I also like teaching people about the law – both in my present job and by writing this blog. I think it’s really important to empower people by letting them know what the law is all about.

To those lawyers out there who are feeling blue – you are not alone – but hopefully, if enough of us get together and change the way things are, there will be a change in the profession.

Postscript

Jim Belshaw has also written two good posts on the issue, with an emphasis on the way in which management can deal with depression in the workplace.

Coming out of the blue…

There has been much publicity in the last few days about the results of a recent survey by Beaton Consulting and beyondblue, which has established that lawyers are two and a half times more likely than members of the general public to suffer from moderate to severe depression. They are also much more likely to use alcohol or drugs to try to manage stress. I have written a few posts (here and here) on the issue.

Have a look at this post by guest contributor Helen on the Junior Lawyers’ Union blog. She is trying to set up an organisation, Blue Letter Lawyers, to help lawyers deal with depression. If you want to get involved, please contact myself or BLL.

Care in the Community

A friend of mine is anorexic, and over the last few years, she has become very unwell. I was so concerned that I spoke with her parents a while back. “There’s nothing we can do,” they said with despair. “She’s an adult. We can’t force her to seek treatment. We have tried everything we can and exhausted every avenue.” I have also tried to help my friend, but with limited success. The desire to help oneself must come from within; otherwise, no matter how much help and support you give, your efforts are fruitless. All I can do is make it clear that I am there for her when she decides that she needs me and wants to do something about it. I had other anorexic friends during high school who came out the other side, and now live happy, healthy lives, so all I can do is hope that she will also be able to do so too.

What do you do with people who are so mentally ill that they harm themselves and others? In the last few decades, there has been a tendency towards deinstitutionalisation and “care in the community”. “Care in the community” has two motivators. On the one hand, people with psychiatric problems are encouraged to live normal lives within the community, instead of being incarcerated in an asylum. The other (less noble) motivation is to enable government to save the costs of having to staff and fund mental institutions by keeping people in the community instead.

While I support the idea that people should be able to live a normal life where possible, all too often “care in the community” becomes “out of sight, out of mind”. Although it is hard to get statistics, it appears that a very high proportion of homeless people have psychiatric problems: far more than in the general population. This study suggests that 75% of homeless people in Sydney have a mental illness, as opposed to 20% in the general population, and that this is in some ways linked to deinstitutionalisation. It is a “chicken and egg” situation: homelessness and poverty can cause mental illness, but by the same token, mental illness can cause homelessness.

There is also a natural concern that people’s psychiatric records should be private. A 1996 study by the British Mental Health Charity, MIND, found that many people with psychiatric problems had suffered from significant discrimination in the workplace, in parenting and in the community generally once their psychiatric problems became common knowledge. This doesn’t surprise me. As I have discussed in this blog before, depression is a big unspoken problem in the legal industry (more than in almost any other industry). Statistics show that lawyers are 3.6 times more likely than non-lawyers to suffer from depression and other mental illnesses. But does anyone ever talk about it openly? No way. If you raise the issue in the workplace, then people start to doubt your ability to cope, and suspect that you might “go mad” again at any moment. One woman I know mentioned her mental health problems to her workmates, and was then discriminated against in a most appalling manner…which, ironically and terribly, caused her to fall into a deep depression.

What to do, then, when a friend, a colleague or an acquaintance displays signs which tend to show that he or she is mentally ill and in need of psychiatric assistance? These questions have come into prominence again with the Virginia Tech shootings, as it has become evident that Cho Seung-Hui had a documented history of mental health problems, and displayed signs that he was a risk to himself and others. University officials, students, lecturers and the police all knew that he had problems, but there was very little that they could do about it. As this New York Times article discusses, Federal privacy and antidiscrimination laws restrict the ways in which universities can deal with students who have mental health problems. The article says:

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression.

There is a difficult balance. Just because someone is suicidal, or suffers from a mental illness, does not mean that they should be prevented from attending university (or work). It is possible to overcome mental illness and psychiatric problems, and a past history of including problems should not be held against a person for life. However, there should definitely be better processes for identifying problems, for keeping tabs on vulnerable people and for treating the mentally ill.

There seems to be a serious deficiency in the way in which even highly developed countries such as Australia and America deal with mental health issues. Patrick McGorry, a Professor of Psychiatry at the University of Melbourne has said:

When a young person experiencing an acute asthma attack goes to see a doctor, they can be guaranteed an almost immediate response. When a woman notices a breast lump and seeks a diagnosis and treatment, it is readily available. When a middle-aged man experiences chest pain and calls the ambulance, he gains immediate access to high-quality care. Everyone accepts that a rapid response, early diagnosis and expert treatment can save lives and prevent disability.

What about the 22-year-old with depression who deliberately harms themselves? The Not for Service report (Mental Health Council of Australia, Brain and Mind Research Institute and Human Rights and Equal Opportunity Commission) shows the situation for mental disorders is totally different. Why? Serious funding constraints force mental health services to provide little more than palliative care. Treatment has to be rationed until it can be withheld no longer.

Despite the best efforts of many dedicated clinicians, there is a vast and unnecessary gap between the quality and coverage provided for general medical illnesses and psychiatric illnesses, which leads to Third World outcomes in a First World country

In the report cited above, Not for Service, a parent said:

Regarding ‘involuntary intervention’; although the Mental Health System espouses ‘early intervention’ and carers are encouraged to practice this, the constraints surrounding ‘involuntary intervention’ can make ‘early intervention’ impossible. From personal experience, it means that intervention will not be carried out without the consumer’s consent until that person is acutely unwell and a ‘crisis situation’ arises. Although it will then, still be without the consumer’s consent, probably even more so, and will probably mean a more forceful intervention, somehow this policy is considered more humane…As ridiculous as it sounds, it means that the behaviour of the unwell person has to disturb, alarm or frighten a member of the public enough to bring it to the attention of the police or the Mental Health Service – a carer’s word that the person is at risk is not enough…and we talk about reducing the stigma of mental illness.

(Submission No. 178)

Another parent said:

After exhibiting psychotic behaviour my son spent 21 days (detained) in Glenside Hospital in March 2002. He was counselled and medicated then turned out into the community with some medication but no follow up care. Shortly afterwards he stopped his medication, reverted to his anti-social, aggressive and irrational behaviour, a state he has been in unchecked for two years.

(Submission No. 11)

Even where a patient voluntarily seeks psychiatric help, they may be unable to get adequate help. But what if someone is so unwell that they cannot appreciate the depth of their illness? Should they be involuntarily admitted to a mental institution? The situation seems to be that involuntary admission will only be contemplated once a mentally ill person seriously harms himself or another. Such situations are rare but unfortunate, as they only increase the stigma towards the mentally ill in general.

Obviously, reopening asylums is not the answer. But there must be a better answer than letting seriously ill people go without treatment before they harm themselves or others. I think schools, universities and workplaces should have guidelines as to when it is appropriate to intervene, and some way of dealing with mentally ill people which does not stigmatise and marginalise them but allows them to be properly treated. There needs to be law reform and policy reform which makes it clear to universities, schools and workplaces what procedures should be followed.

"Like asking a blind person to describe a rose"

I have been talking to a friend of mine about how to keep up your motivation as a solicitor. My friend said he talked to one of the partners at his work about his lack of motivation. The partner was nonplussed, and suggested that my friend should “snap out of it”. My friend concluded that asking a partner in a large law firm how to deal with lack of motivation was like asking a blind person to describe a rose (hence the beautiful title to this post, I love it, so I’ve “borrowed” it).

A partner who has been successful in a large firm cannot even envisage how a junior lawyer might lack motivation. After all, what else is there to life other than getting to partner? Isn’t this the be all and end all, for which all junior lawyers are striving? Well…NO. Not for most normal human beings. The problem is that someone who gets to partnership at a large firm has a high probability of being an abnormal human being (I may be stating the obvious here, forgive me). Perhaps it’s because law firms promote a particularly driven kind of person.

I remember when I was a solicitor, a partner asked me what my billable hours for the last month had been. Hmm. I had a few minutes thought. “I don’t know,” I said.

The partner was gobsmacked. “When I was a junior solicitor, I knew exactly how many billable hours I was doing and what I was doing to maximise them.”

I thought about it. “I know exactly what I’ve achieved last month for the client, exactly how many matters I’ve settled, how many matters are a step further towards trial or resolution. I just don’t see those six minute units as being that important. It’s the outcomes that matter.” It was as though I’d said that I was a Martian from Mars. The partner just didn’t understand.

She shook her head and said, “With that attitude, you’re never going to make partner.” Ain’t that the truth? I’m pretty sure that I’ll never be a partner in a law firm, unless the Fairy Godmother decides to jump out of nowhere and make me one.

The problem is that law firms winnow out people who have a normal attitude to life: a wish to spend time with their families, a wish to be motivated and enjoy one’s work, a wish to focus on outcomes not billings. I still think it’s a real problem for most law firms. They’re losing decent people because they just don’t understand.