SRA v James; SRA v MacGregor; SRA v Naylor [2018] EWHC 3058 (Admin)
The Solicitors Disciplinary Tribunal's judgment in the case of Sovani James made a number of sector headlines; Ms James had been dishonest as to the progress of a matter but was not struck off due to the impact a particularly poorly managed workplace had on her mental health. The High Court has now heard appeals on this and two similar cases, finding that although mental health should be considered when deciding whether a solicitor has acted dishonestly, in these cases it was not sufficient to justify reducing a sanction from removal to suspension.
The three cases of James, MacGregor and Naylor followed similar patterns: in each case the solicitor had been dishonest in the conduct of their work, which had subsequently been reported to the SRA. In each case the solicitor stated that they had been suffering from poor mental health as a result of workplace conditions (including poor management and high workloads) which had led to their dishonesty. As a result, the SDT had found that there were "exceptional circumstances" (as referred to in SRA v Sharma [2010] EWHC 2022) not to strike them off, but instead to suspend. The SRA appealed each of these decisions to the High Court under Section 49 of the Solicitors Act 1974.
The High Court quashed each order for suspension and replaced them with striking off orders. In a clear decision, Lord Justice Flaux returned to the fundamental case law set out in Sharma and Bolton v Law Society [1994] 1 W.L.R. 512, which found that a finding of dishonesty would lead to striking off in all but the most exceptional cases. The reason for this again went back to Bolton; the principal purpose of the regulation of the profession was to maintain the reputation of the profession and to address to the risk of harm to the public.
With regard to the registrants' mental health, Lord Justice Flaux found that the medical evidence would go to the finding of dishonesty, and particularly whether the registrant was able to recognise right from wrong at the time of their actions. In each case the expert reports found that the individuals would have been able to recognise at the time that their actions were wrong, even if the difficult environment had influenced their decision to take and maintain the wrong course. Because they could tell the difference between right from wrong, they met the test of Ivey v Genting [2017] UKSC 67 and could be considered to have been dishonest.
When considering sanction, the Court acknowledged that the registrants' working conditions and work related-stress or depression could be considered as mitigation. However, because mental health was considered at the misconduct stage, it could not then be considered as an exceptional circumstance at the sanction stage (at least without further exceptional circumstances). When considering whether a case could be considered to fall within the narrow remit of exceptional circumstances, the most significant factor would be the nature and extent of the dishonesty, not the reasons for it.
While this case does not change the underlying principle that there must be exceptional circumstances for a solicitor not to be struck off for dishonesty, it is a somewhat stricter approach to the test than has been seen in recent case law (for example Lusinga v NMC [2017] EWHC 1458 (Admin), which suggested different types of dishonesty might be recognised in healthcare professional regulation), and certainly stricter than the approach the SDT has taken recently. Furthermore, in the past 12 months there has been more of a focus on mental health and wellbeing in the workplace, which may also make this decision appear a little harsh on the registrants in question (particularly Mr Naylor, who had told his employers that his workload had left him feeling "broken", but was still given more cases).
While this case remains good law and reinforces that the number of dishonesty cases with exceptional circumstances should remain as small as possible, it may lead to the SRA considering how it approaches the impact mental health may have on conduct. It is certainly willing to recognise that health can impact on, and may lead to other types of misconduct such as client service and competence. Similar to the major healthcare regulators, the Bar Standards Board already separates disciplinary issues from health matters, and can impose restrictions on practising rights that are entirely non-disciplinary and private. Although s.31 of the Solicitors Act 1974 empowers the SRA to make rules regarding ‘fitness to practise’ which would allow for a similar approach, the SRA has not yet made any such rules and has not indicated to date that it proposes to do so, With most professions now paying closer attention to health and wellbeing in the workplace, it may be that this judgment and the wider issues of stressful environments and workplace culture need to be considered more fully as part of the regulatory landscape.