Newsletters Professional Discipline 30th Nov 2018

Mental Health and “Exceptional Circumstances”

In SRA v James and others [2018] EWHC 3058 (Admin), the Divisional Court considered three appeals brought by the SRA against the SDT’s decisions not to strike off dishonest solicitors. In each case the tribunal had concluded there were “exceptional circumstances” justifying such a course, based at least in part on mental health issues. On appeal, the court heavily criticised each decision and imposed striking off orders. Following this judgment, it is clearer than ever that unless there is something exceptional about the circumstances of the dishonesty itself, it is highly unlikely a dishonest solicitor will ever escape the ultimate sanction.

It is perhaps unnecessary to touch on the facts of all three cases, but by way of overview – Ms James was a very junior solicitor who made a series of misleading statements to a client and her firm, giving a false impression of the level of progress made on a particular case over some 17 months. The SDT noted in mitigation that the firm was a challenging work environment. A partner had required Ms James to work evenings, weekends and bank holidays to make up a shortfall in her billable hours target. Ms James found the environment “toxic”, her personal life was causing further stress, and her anxiety had reached such a pitch she was suffering from hair loss.

In a similar vein, another of the appeals concerned Mr Naylor, who had suffered long term stress related issues at work. He had twice seen a doctor and had also spoken to the partners about his difficulties. After missing a deadline, he sent five misleading emails over a three month period to his clients implying an application had been lodged when it had not. Medical evidence noted he was suffering an adjustment disorder caused by severe stress at the time. His condition meant “his predisposing vulnerabilities would have been difficult to resist and would have been likely to overcome any underlying appreciation of professional and personal obligations.

In both instances the SDT considered there were exceptional circumstances to justify a lesser sanction than striking off.

The Divisional Court reviewed the principles. It cited in SRA v Sharma [2010] EWHC 2022 (Admin):

(a) Save in exceptional circumstances, a finding of dishonesty will lead to the solicitor being struck off the Roll, see Bolton and Salsbury . That is the normal and necessary penalty in cases of dishonesty, see Bultitude. (b) There will be a small residual category where striking off will be a disproportionate sentence in all the circumstances, see Salsbury. (c) in deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, such as Burrowes or over a lengthy period of time, such as Bultitude ; whether it was a benefit to the solicitor (Burrowes), and whether it had an adverse effect on others”

It considered that in looking at the concept of exceptionality the principal focus had to be on the nature and extent of the dishonesty and culpability. Personal mitigation may be relevant but caution should be exercised in relying on it. The Respondents attempted rely on the more nuanced approach to dishonesty in medical regulatory proceedings. The court rejected this gloss:

“some caution must be exercised in seeking to draw parallels between the solicitors’ cases and the medical cases. Whilst it is no doubt true that much of what Sir Thomas Bingham MR said in Bolton as to the purpose of the sanction, namely the need to protect the reputation of the profession, is equally applicable to the medical profession (see Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 at [76]), it is important to have in mind that the discretion of the Medical Practitioners Tribunal as to restoring a doctor to the register is a wide one unfettered by any gloss or limitation of “exceptional circumstances”…

In the context of the solicitors’ cases, striking off is the almost invariable sanction for any dishonesty and whilst dishonesty at the lowest end of the scale may mean that the case falls within the small residual category of cases justifying a lesser sanction, it will not do so unless the overall assessment is that there are “exceptional circumstances”. There is thus a limitation on the discretion of the SDT which is absent for the Medical Practitioners Tribunal Service in medical cases.”

The court considered that in each case the tribunal had failed to conduct an appropriate analysis of “exceptionality”. It had not focused on the “critical questions” – namely, the nature and extent of the dishonesty, and the degree of culpability – and had not properly evaluated these factors alongside the evidence of poor health. Moreover, in the court’s view, without more, issues such as stress or depression, or workplace pressures, could not constitute exceptional circumstances. It noted:

“The SDT having concluded that, notwithstanding mental health issues, each of the respondents was dishonest, I consider that it was contrary to principle for it then to conclude that those mental health issues could amount to exceptional circumstances… (W)hilst in no sense belittling the stress and depression from which the respondents suffered, it was in no sense exceptional. It is sadly only too common for professionals to suffer such conditions because of pressure of work or the workplace or other, personal, circumstances…

It may be that pressure of work or an aggressive, uncaring workplace could excuse carelessness by a solicitor or a lapse of concentration or making a mistake, but dishonesty of any kind is a completely different and more serious matter, involving conscious and deliberate wrongdoing”

It was not appropriate to broaden the “small residual category” of exceptionality to include cases such as this.

Christopher Geering

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