Reports over the past decade have indicated high levels of distress within Australia’s legal profession. These reports suggest that the well-being of the profession, and the individuals that comprise it, is not a priority within a professional culture which lauds overwork, perfectionism and profits whilst condoning poor employee treatment and stigmatising mental health issues. Despite repeated reports noting the alarming rate of mental health problems, such as depression and substance use, and efforts to raise awareness of mental health and well-being, it appears that the profession is reluctant to recognise the importance of its own well-being. Instead of acknowledging the structural phenomena that contribute to poor lawyer well-being the profession has appeared to shift the responsibility of well-being onto the individual. In doing so the legal profession appears to be ignoring its ethical responsibilities to support its members to enable them to competently perform their duties in the service of the community.
This is the first of three articles that explores the connection between well-being and ethics and how this may provide systemic solutions to the high incidence of mental health issues within Australia’s legal profession. In this article, well-being is defined, and its ethical foundations presented. Then the potential importance of including well-being as a requirement of competence to practice is investigated.
What is well-being?
The World Health Organisation defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. Thus, health is an inherently positive state of being that is quite distinct from illness. Mental health is a term that is particularly prone to misinterpretation as it is often used to refer to mental illness or problems. The World Health Organisation defines mental health positively as a “state of mental indwelling that enables people to cope with the stresses of life, realise their abilities, learn well and work well, and contribute to their community. It is an integral component of health and well-being…”. This positively phrased definition does not refer to illness, disease, or infirmity; instead, it mentions well-being.
Well-being is generally defined positively as a state of optimal functioning, as suggested in the World Health Organisation definition of mental health. The research literature presents numerous ideas about well-being. In Cooke et al.’s review of the well-being literature 42 conceptualisations or measures were investigated. However, it is generally well-accepted that psychological well-being theories, concepts and measures are grounded in ethical theory concerned with how people function.
How is well-being an ethical issue?
Aristotle’s “Nicomachean Ethics” is a philosophical treatise primarily concerned with how humans can live well. Aristotle distinguishes between hedonia, commonly understood as pleasure or happiness, and eudaimonia, understood as meaningful activity. Ryan and Deci’s consideration of psychological well-being drew from this dualistic framework. This view of well-being has influenced well-being research and measurement within psychology for more than 20 years. One of the leading measures of hedonic well-being is Deiner’s Subjective Well-being, that measures an individual’s positive and negative affect and overall life satisfaction. By contrast Ryff’s widely used Scales of Psychological Well-being specifically adopted a eudaimonic approach to offer an alternative to Deiner’s approach. Ryff’s conceptualisation of well-being is comprised of six elements: autonomy, self-acceptance, positive relations with others, purpose, personal growth, and environmental mastery. As Ryan and Deci point out, these conceptualisations describe, and measure well-being differently and together provide a more complete understanding. Thus, the psychological literature shows that well-being is best described as a multi-faceted concept with solid ethical foundations, which suggests that well-being is an ethical issue.
Ethical requirements of professional’s well-being
In Australia, professional codes of ethics require most helping professionals, such as psychologists, general practitioners, and social workers, to attend to their well-being to maintain their professional competence to practice. There are suggestions that lawyers, as members of a helping profession, would benefit from similar professional ethical provisions in their codes of conduct and rules to safeguard professional competence. Thus, including well-being as requirement of professional competence may be one way to support the legal profession’s well-being.
The Australian Solicitors’ Conduct Rules and the Legal Profession Uniform Conduct (Barristers) Rules do not refer to legal professionals’ health and well-being. This omission suggests that the legal profession has not considered health and well-being to be of professional importance. However, it appears from the research that the profession’s reputation and health may be suffering from such an omission.
By contrast, the professional codes of ethics for psychologists, general practitioners and social workers mention that well-being is an important part of maintaining professionalism and competence. The Australian Psychological Society’s Code of Ethics states that psychologists demonstrate competence by “ensuring that their emotional, mental, and physical state does not impair their ability to provide a competent psychological service” (p.19). This suggests that if a psychologist were to experience extreme levels of stress, vicarious trauma or depression it could be unethical for them to continue to practice without properly addressing these matters, including supports such as personal therapy and supervision from a more experienced trusted practitioner. Similarly, the professional conduct of general practitioners includes taking “responsibility for your own health and well-being” (p. 4) and social workers’ fitness to practice includes consideration of their health to “practise their profession safely and effectively” (p. 29). The latter code suggests that a helping professional who does not attend to their well-being could be practicing unethically as they may harm their clients and provide less effective services. Thus, these professional codes’ explicit mentioning of the importance of well-being is a way of supporting these professions, their members, and clients.
Professionals’ well-being has potential ethical consequences, such as client safety and professional competence, therefore it is mentioned in numerous professional codes of conduct or ethics for helping professionals. The professional ethics around well-being also assists members of the profession to be aware of their well-being and notice if is being challenged so that they can take action to ameliorate these challenges by attending to their well-being earlier and effectively. By taking action early professionals are able to continue working with little adjustment to their commitments and will avoid any disruption that may arise from not attending to their well-being issues before they escalate into more difficult problems, such as mental illness or burnout. It is suggested that the Australian Solicitors’ Conduct Rules, the Legal Profession Uniform Conduct (Barristers) Rules and other similar documents be revised to include provisions requiring lawyers to ensure adequate levels of well-being. This structural change will enable the profession to bring mental health and well-being more firmly in its collective consciousness and culture. Enshrining well-being as a component of professional fitness or competence will enable the profession to shift the culture of denial and stigma towards one of acknowledgment and action. Thus, embracing well-being as a crucial ethical issue, as much as duties to the client and court, has the potential to enable the profession to lower the rates of mental ill health and support healing.
This article provided an overview of well-being and presented the ethical foundations of the concept that influences understanding well-being, particularly within the psychological literature. An argument for including well-being in the legal professionals’ codes of ethics and rules of conduct has been presented to offer a structural change they could enable systemic change to improve the profession’s mental health and well-being. The following article will consider the link between well-being and ethics within legal professionals’ work culture and highlight how this link supports decision-making.
References:
- Australian Association of Social Workers. (2020). Code of ethics. Australian Association of Social Workers.
- Australian Medical Association. (2016). Code of ethics. Australian Medical Association.
- Australian Psychological Society. (2007). Code of ethics. Australian Psychological Society.
- Brady, M. (2019). VLSB+C lawyer wellbeing project: Report on legal professionals’ reflections in the legal profession and suggestions for future reform. Victorian Legal Services Board and Commission. https://lsbc.vic.gov.au/resources/lawyer-wellbeing-report
- Cooke, P.J., Melchert, T.P., & Connor, K. (2016). Measuring wellbeing: A review of instruments. The Counselling Psychologist, 44(5), 730-757. https://doi.org/10.1177/0011000016633507
- Deiner, E. (1984). Subjective wellbeing. Psychological Bulletin, 95(3), 542-575.
- Foley, T., Hickie, I., Holmes, V., James, C., Rowe, M., & Tang, S. (2016). Wellbeing in the law: A guide for lawyers. Law Society of New South Wales. https://www.lawsociety.com.au/sites/default/files/2018-08/Being%20Well%20in%20the%20Law%20Guide.pdf
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- Kelk, M., Luscombe, G., Medlow, S., & Hickie, I. (2009). Courting the blues: Attitudes towards depression in Australian law students andl lawyers. Brain and Mind Research Institute. https://law.uq.edu.au/files/32510/Courting-the-Blues.pdf
- NSW Parliamentary Counsel’s Office. (2015). Legal Profession Uniform Conduct (Barristers) Rules. NSW Parliamentary Counsel’s Office.
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- Ryff, C. (1989). Happiness is everything, or is it? Explorations on the meaning of psychological wellbeing. Journal of Personality and Social Psychology, 57(6), 1069-1081.
- Ryan, R.M., & Deci, E.L. (2001). On happiness and human potentials: A review of research on hedonic and eudaimonic wellbeing. Annual Review of Psychology, 52(1), 141-166. https://doi.org/10.1146/annurev.psych.52.1.141
- Scaltas, T. (2022). Wellbeing in Aristotle. In D. Konstan, & D. Sider (Eds.), Philodorema: Essays in Greek and Roman philosophy in honor of Phillip Mists (pp. 161-172). Parnassos Press.
- Simionato, G.K., & Simpson, S. (2018). Personal risk factors associated with burnout among psychotherapists: A systematic review of the literature. Journal of Clinical Psychology, 74(9), 1431-1456. https://doi.org/10.1002/jclp.22615
- World Health Organisation. (2022). Constitution. https://www.who.int/about/governance/constitution
- World Health Organisation (2022, June 17). Mental health: Strengthening our response. https://www.who.int/news-room/fact-sheets/detail/mental-health-strengthening-our-response
Support for Lawyers provides legal professionals with confidential counselling by practitioners who have experience work with the legal profession or within the Law. Our counsellors can discuss lawyers’ well-being issues and assist exploring strategies to support mental health, deal with challenging work environments, attend to work life balance and improve engagement and productivity.
Marina James GradDipPsychAdv GradDipPsych LLB BA is a counsellor and mental health professional with over 20 years’ experience working in mental health. After working as a solicitor, Marina worked in non-clinical mental health for a state-wide service provider and recently has been working on various projects, including social enterprise for women in leadership and mind-body strategies to deal with professional stress and burnout. Marina’s honours thesis (completed in 2021) covered the topics of well-being and perfectionism. She is currently a counsellor for Support for Lawyers.
