Reports over the past decade have indicated high levels of distress within Australia’s legal profession.1 These reports suggest that the wellbeing 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 use2, and efforts to raise awareness of mental health and wellbeing, it appears that the profession is reluctant to recognise the importance of its own wellbeing. Instead of acknowledging the structural phenomena that contribute to poor lawyer wellbeing the profession has appeared to shift the responsibility of wellbeing 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.
• Wellbeing is defined as optimal functioning. • Wellbeing theories have foundations in ethics. • Professional’s wellbeing is an indicator of
professional competence and in codes of ethics for psychologists, social workers and general practitioners.
• Inclusion of wellbeing in professional ethics protects client, safeguards the profession’s reputation, assists members of the profession to address challenges to wellbeing early.
• Early attention to challenges to wellbeing can prevent mental illness and more serious consequences personally and professionally.
• The legal profession needs wellbeing included in its various professional ethics rules as a structural measure to address the profession’s wellbeing crisis.
This is the first of three articles that
explores the connection between wellbeing 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, wellbeing is defined and its ethical foundations presented. Then the potential importance of including wellbeing as a requirement of competence to practice is investigated.
1 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 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 Kelk, M., Luscombe, G., Medlow, S., & Hickie, I. (2009). Courting the blues: Attitudes towards depression in Australian law students and lawyers. Brain and Mind Research Institute. https://law.uq.edu.au/files/32510/Courting-the-Blues.pdf
2 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
What is wellbeing?
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”.3 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 wellbeing 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 wellbeing…”.4 This positively phrased definition does not refer to illness, disease or infirmity; instead it mentions wellbeing.
Wellbeing is generally defined positively as a state of optimal functioning,5 as suggested in the World Health Organisation definition of mental health. The research literature presents numerous ideas about wellbeing. In Cooke et al.’s6review of the wellbeing literature 42 conceptualisations or measures were investigated. However, it is generally well-accepted that psychological wellbeing theories, concepts and measures are grounded in ethical theory concerned with how people function.
How is wellbeing an ethical issue?
Aristotle’s “Nicomachean Ethics” is a philosophical treatise primarily concerned with how humans can live well.7 Aristotle distinguishes between hedonia, commonly understood as pleasure or happiness, and eudaimonia, understood as meaningful activity. Ryan and Deci’s8consideration of psychological wellbeing drew from this dualistic framework. This view of wellbeing has influenced
3 World Health Organisation. (2022). Constitution. https://www.who.int/about/governance/constitution 4 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
5 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
6 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
7 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.
8 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
wellbeing research and measurement within psychology for more than 20 years. One of the leading measures of hedonic wellbeing is Deiner’s Subjective Wellbeing, that measures an individual’s positive and negative affect and overall life satisfaction.9 By contrast Ryff’s widely used Scales of Psychological Wellbeing specifically adopted a eudaimonic approach to offer an alternative to Deiner’s approach.10 Ryff’s conceptualisation of wellbeing is comprised of six elements: autonomy, self acceptance, positive relations with others, purpose, personal growth and environmental mastery. As Ryan and Deci point out11, these conceptualisations describe and measure wellbeing differently and together provide a more complete understanding. Thus, the psychological literature shows that wellbeing is best described as a multi-faceted concept with solid ethical foundations, which suggests that wellbeing is an ethical issue.Hel
Ethical requirements of professional’s wellbeing
In Australia, professional codes of ethics require most helping professionals, such as psychologists, general practitioners and social workers, to attend to their wellbeing to maintain their professional competence to practice.12 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.13 Thus, including wellbeing as requirement of professional competence may be one way to support the legal profession’s wellbeing.
The Australian Solicitors’ Conduct Rules and the Legal Profession Uniform Conduct (Barristers) Rules do not refer to legal professionals’ health and wellbeing.14 This omission suggests that the legal profession has not considered health and wellbeing to be of professional importance.
9 Deiner, E. (1984). Subjective wellbeing. Psychological Bulletin, 95(3), 542-575.
10 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.
11 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
12 Australian Psychological Society. (2007). Code of ethics. Australian Psychological Society.
Australian Medical Association. (2016). Code of ethics. Australian Medical Association.
Australian Association of Social Workers. (2020). Code of ethics. Australian Association of Social Workers. 13 Queensland Law Society. (2012). Australian Solicitors’ Conduct Rules. Queensland Law Society.
NSW Parliamentary Counsel’s Office. (2015). Legal Profession Uniform Conduct (Barristers) Rules. NSW Parliamentary Counsel’s Office. 14 Queensland Law Society. (2012). Australian Solicitors’ Conduct Rules. Queensland Law Society.
NSW Parliamentary Counsel’s Office. (2015). Legal Profession Uniform Conduct (Barristers) Rules. NSW Parliamentary Counsel’s Office.
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 wellbeing 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) .15 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 wellbeing” (p. 4)16 and social workers’ fitness to practice includes consideration of their health to “practise their profession safely and effectively” (p. 29)17. The latter code suggests that a helping professional who does not attend to their wellbeing 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 wellbeing is a way of supporting these professions, their members and clients.
Professionals’ wellbeing 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 wellbeing also assists members of the profession to be aware of their wellbeing and notice if is being challenged so that they can take action to ameliorate these challenges by attending to their wellbeing earlier and effectively.18 By
15 Australian Psychological Society. (2007). Code of ethics. Australian Psychological Society.
16 Australian Medical Association. (2016). Code of ethics. Australian Medical Association.
17 Australian Association of Social Workers. (2020). Code of ethics. Australian Association of Social Workers. 18 Gibson, D.M., Pence, C., Kennedy, S.D., Gerlach, J., Degges-White, S., & Watson, J. (2021). Development of the counselor wellness competencies. Journal of Counselor Leadership and Advocacy, 8(2), 130-145. https://doi.org/10.1080/2326716X.2021.1925997 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
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 wellbeing 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 wellbeing. This structural change will enable the profession to bring mental health and wellbeing more firmly in its collective consciousness and culture. Enshrining wellbeing 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 wellbeing 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 wellbeing and presented the ethical foundations of the concept that influences understanding wellbeing, particularly within the psychological literature. An argument for including wellbeing 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 wellbeing. The following article will consider the link between wellbeing and ethics within legal professionals’ work culture and highlight how this link supports decision-making.
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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 are able to discuss lawyers’ wellbeing 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 wellbeing and perfectionism. She is currently a counsellor for Support for Lawyers.