B.C. Law Society ditching ‘mental fitness question’ on law society admission program application

The Law Society of British Columbia will no longer ask applicants about their medical fitness, as it relates to past substance use and existing medical conditions.

On Jan. 31, the benchers voted on the second report of the legal regulator’s mental health task force and passed all seven of the task force’s recommendations. The recommendations were approved nearly unanimously, with one abstention on one recommendation, says LSBC president Craig Ferris.

The task force recommended the removal of the medical fitness question in the Law Society Admission Program application. The question asks candidates if they’ve ever had a substance use disorder, received counselling for a substance use disorder and if so are asked to provide a “general description.” The application also asks if the candidate has “any existing condition that is reasonably likely to impair your ability to function as an articled student.”

Ferris says the decision to ditch the medical fitness question for new lawyers came from “new empirical data” that shows its ineffectiveness. The recommendation states (page 64) that “substantial, recent social science evidence and academic discourse” has cast “significant doubt” on the utility of the medical question on the LSAP application, adding that it is a barrier to lawyers seeking treatment. The task force recommends that in removing the medical fitness questions, new questions should be added. The new questions should be “based on conduct, not condition” and “avoid stigma and non-evidence based assumptions.”

“[Social science research] tells us that asking applicants questions on our Law Society admission form about their medical fitness is – a. it's a stigmatizing question and, b. it's not predictive or determinative of any issue that would be relevant to the Law Society,” says Ferris, a commercial litigator and partner at Lawson Lundell LLP, in Vancouver.

“We've determined and decided that, while, originally, those questions were well intentioned, they're no longer appropriate,” he says.

Research has shown levels of substance use, depression and anxiety are higher among lawyers than other professionals – both in the U.S. and Canada. The LSCBC established the mental health task force in November 2018. The task force has been led by its chair: Fasken commercial litigator Brook Greenberg. The first set of policy recommendations consisted of education to increase awareness and understanding and regulatory strategies focussing on how to appropriately address mental health in the regulatory context. Throughout 2019, the task force used consultations, outreach and research to come up with more recommendations that fell into two categories: information-sharing strategies and regulatory strategies.

The task force’s recommendations are:

1. Improve information sharing with BC law schools about mental health supports within the profession
2. Improve Bencher orientation materials and expand mental health-related training for articled student interviews
3. Host a town hall event to discuss mental health within the profession
4. Develop guidance on the use of non-stigmatizing and non-discriminatory language in all future Law Society publications and communications
5. Conduct a voluntary, confidential member survey exploring mental health and substance use among BC lawyers
6. Amend BC Code Rule 7.1-3 (“duty to report”) and the associated Commentary
7. The medical fitness questions in Schedule A of the LSAP Application Form be removed

The task force found that the early, foundational stage of a lawyer’s career are when they’re most susceptible to substance abuse and psychological distress. In the recommendations the LSBC cites a a study of 3,000 law students from 15 U.S. law schools, where 17 per cent said they were depressed and six per cent said they had been suicidal at some point within the last year.

Recommendation six amended a rule in the Code of Professional Conduct for British Columbia, providing for a duty to self-report or to report another lawyer if there was evidence of “mental

instability of such a nature that the lawyer’s clients are likely to be materially prejudiced.” The LSBC said (page 63) the rule’s language reinforced a stereotype “that those living with a mental health

condition are more likely than others to harm their clients.” The task force also raised the issue that the duty to report raised confidentiality concerns for lawyers getting assistance from professional support groups – who were also under the duty.