Law society to stop asking medical fitness questions

Decision casts uncertainty over fate of student’s human rights case stemming from old rules

B.C. ‘s legal profession regulator has changed its articling admission rules to remove questions about medical fitness including mental health, a move the Law Society of B.C. said would destigmatize such challenges.

However, the change is an admission of guilt from the society, says Malcolm Brown, a law student who alleges such questions ended his dream of being a lawyer.

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And the rule change does not break a deadlock at B.C. Human Rights Tribunal between Brown and the society. Brown claims the questions have put his education back three years, leaving him almost bankrupt.

"I'm happy to hear the questions are gone," he said of the changes approved January 31. "That is a big step that will help countless others."

“The Law Society of B.C. is the main culprit who has been stigmatizing mental health from the top down in the legal profession in B.C. for decades and has an absolutely toxic effect on the well being of law students and lawyers in B.C.,” Brown said in October.

Brown has not withdrawn his complaint, though.

And the society will not be stepping back from a case in which Brown said the asking of the questions lost him articling positions. Asked if it would back away, the society suggested it would be Brown’s choice to withdraw the complaint.

Brown was in the final stages of his legal education with a desire to practice business or technology law. He’s wrestled with alcoholism, spent months in a rehab centre and managed to get through most of law school with one brief relapse. He’s been sober more than five years.

However, to finish his legal education, a final step is a practicum position with a law firm, a position known as articling.

And it’s there that he hit a wall with the process used by the society charged with licensing B.C. lawyers and overseeing their practices. It’s that process that has now been changed by the society’s bencher or directors.

“The benchers have taken steps to destigmatize mental health challenges and help current and future lawyers struggling with those challenges by adopting recommendations from the Law Society’s Mental Health Task Force,” the society said in a statement.

“In reaching their decision to revise the application form, the benchers determined that although the questions were well-intentioned, in 2020 there are better ways to address the question of fitness to practise law,” the society said.

Other recommendations the society will embrace include collaborating with law schools to ensure continuity and awareness of resources for students as they transition from law school to practising law; hosting a forum on mental health and substance use issues; implementing a non-stigmatizing language style guide in society communications; and conducting a voluntary, confidential survey on mental health and substance use among B.C. lawyers.

Brown said the society was told to make changes in 2011 and has denied any discrimination against him.

“Their defence is out of the window,” he said. “They’ve changed the substance of the human rights complaint.

The rule change came a year after the task force, on January 20, 2020, said it agreed with a president of the New York State Bar Association who said, “The hard truth is that stigma around mental illness remains a significant barrier to treatment within the legal profession, and society at large. There is compelling evidence that mental health questions on bar applications are ineffective and unnecessary, and several states have already done away with them.”

The task force said fitness should be determined by “conduct, not condition.”

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