When I told my children that I was going to write about Wellbeing at the Bar, they gave me one of those looks that any parent caught out in a whopper will recognise. What, they asked, could I possibly know about wellbeing, given the way I work (often up half the night, as well as evenings and weekends) and my unhealthy obsession with performance as a child protection silk?
It is a good question. I believe that being a barrister and a legal aid lawyer is a rewarding and fulfilling career (emotionally and intellectually), but that our profession also needs to change to become a healthier one to practice in if we are to honestly encourage junior members to follow in our footsteps. I say that because a legal aid lawyer will be working in an underfunded system that depends on unpaid work by those who practice in it to fill the gaps and because the nature of the work we do requires us to confront grim and brutal aspects of life (and death) that are rarely seen by ‘normal’ society.
For example, my field of specialist child abuse requires me to look at images of a baby’s inert and dead body. I track its photographic transition through pathological dissection from child to its component parts of brain, bones and organs until its humanity is lost and becomes a collection of ‘parts’ and slides. If I cannot avoid it I look at images of child sex abuse, of rape and buggery of babies, barely a few months’ old, as well as young children. Under the watchful eyes of the anti-terrorism force, I read restricted ISIS material: photos, images of the dead and dying and tortured. In the course of my work with families during the Hillsborough Inquests I, and my colleagues, had to look at footage of the crowd, trying to pick out a loved one from the grim press images of the many fans suffering; zooming in on a loved ones face to try to work out the moment of death the point at which the crush overcame the bodies resistance to the pressure of the crowd. We watched as they died. Over and over again.
In a client conference, I will have a junior with me to sit, listen and note. I may have a solicitor with me but more often than not a clerk (legal aid solicitors can rarely now take the time out of the office or court work as lost billing time can drill a major hole into a firm’s meagre profits). Whilst I will have had this type of conference many times before, for the client, it will be a first: and potentially so too for the junior and clerk. How well have they been prepared for this experience? When do I take the time in advance of the conference to make sure that they are going to be OK with what’s going to happen? ‘Not often enough’ is the honest answer. And how can they ever be ‘OK’ with it actually?
I know what being unprepared means to my own emotional and psychological cost. As a junior barrister, I went to a police station to watch client evidence. I had not been told what I was to see. I have never forgotten watching the video of a child being buggered and the sadistic delight the camera person took in zooming into the child’s face as it contorted in terror and pain.
It’s hard to feel clean and whole after these experiences. It is hard to go back home and watch your own child innocently playing with his dad when all you can see is the difference in their size and what that can mean in terms of power and pain for an abused child. Images are etched on your retina. One’s antennae for distress is heightened. It’s hard going to a park and not noticing the slaps that should not have been given to a child irritating a harassed parent, not to notice the child who may or may not be being bullied surrounded by a baying group of kids. I can’t watch film, TV dramas or documentaries that touch on anything to do with child abuse. It breaches that final barrier between work and normality that I try to erect.
So why do this? Legal aid lawyers do this kind of work because it is a vocation. We had (have) a desire to make a difference in the job we do. Whether we choose to practice in family, crime, immigration, human rights, we are all barristers. To be a barrister requires an ability to work independently with intuition, imagination and drive. We are competitive. We are judged by our performance in court: our last case, our last cross-examination. There is no ‘re-wind ‘button if we ask one question too many that shatter a line of defence. We are self-employed: no work = no pay. We don’t get sick leave. I know of many women who have come to the court has had a miscarriage that night/morning; of colleagues who have come to court in the immediate aftermath of a bereavement. We come to work because we feel we have to. Because we fear the client’s case will suffer if we don’t. Because we are programmed by our work culture to tough it out, stay calm, and carry on. I have fallen ill in court three times in my career and have not been able to continue. Afterwards, I felt ashamed at my weakness and worried about the damage I may have done to my reputation. I still feel ‘small’, years later, when I think of those instances.
This is not just my personal experience.
Earlier this year the Guardian reported that barristers are in the grip of a mental health crisis. A couple of years before, In the Bar Council’s seminal Working Lives Survey 2015 , which they plan to repeat this year, it found that 1 in 3 find it difficult to control and stop worrying, 1 in 6 tend to feel down or in low spirits most or all of the time; 2 in 3 feel that showing signs of stress at work indicates weakness; and 3 in 4 see genuine mistakes as opportunities for learning only ‘some of the time’ or ‘not at all’.
And if you want to understand what you should be looking out for, the Advocate’s Gateway, “Working with Traumatized Witnesses, Defendants and Parties”, Toolkit provides detail on manifestations of trauma, PTSD, complex PTSD, dissociation and good practice examples on working with traumatized individuals; it also covers material on secondary trauma, which is sometimes confused with burnout. Secondary traumatic stress, known as compassion fatigue or compassion stress, can strike suddenly and without warning (unlike burnout which is a process that can potentially be prevented with self-care).
We need to recognise collateral damage or the potential for it in ourselves and our colleagues in order to help because sometimes it can be hard to spot it.
Among the symptoms can be: numbness, depression, anxiety, self-medication (drugs, alcohol), overworking and compulsive eating; sleep difficulties, headaches, gastrointestinal problems, impaired immune system, self-harm, isolation, irritability, nightmares, flashbacks and exposure to abuse by others.
But apart from looking out for these issues, what can we do to improve wellbeing at the legal aid bar?
I think we must change the way that the legal aid bar works.
We know it is underfunded, and that working all night (which is not uncommon) should not be an expectation in order to get the work done. We know that the way our legal system works intrudes upon normal expectations of family life (for example, being told on the day you must stay beyond 5pm; 24 hour emailing with urgent, last-minute evidence).
In January this year our new Head of Division, The Right Hon Mr Justice Andrew MacFarlane singled out as his number one priority the unprecedented and unsustainable volume of cases in the family justice system and the impact of that on working conditions for professionals. He identified the problems caused by the rise in private law applications and the increase in unrepresented litigants. He acknowledged the negative impact on cases due to the lack of paediatric experts willing to take on work in pubic law child protection cases. He said, ‘it is neither necessary nor healthy for the courts and the professionals to attempt to undertake ‘business as usual’. He ‘encouraged’ local dialogue between the legal profession and each court to identify parameters ‘as to what is and is not sensible or acceptable in terms of working practices’. He offered suggestions such as agreeing
- The earliest time of day when the court can reasonably be expected to sit;
- The latest time of day when the court can reasonably be expected to sit;
- The latest time in the evening, and the earliest time in the morning, when it is acceptable to send an email to another lawyer in a case or to the court.
One judge HHJ Roberts then issued a wellbeing practice note providing changes in Essex and Suffolk (26 February 2019), but she is currently the exception to the rule.
As a profession, we need to embrace what Macfarlane told us and make that change. It will not remove the danger of stress and PTSD (we will still be dealing with the same distressing material); it will not bring back a properly funded legal aid system, but we can help ourselves, as a profession, to make our working culture a little bit more bearable.
But we also need to raise awareness of how to spot symptoms both in your own behaviour and in colleagues’. That’s one of the reasons why I have chosen to speak out. Mental health matters and saying you are struggling should not be viewed as toxic to your reputation. There are resources to help lawyers, the Bar Council’s www.wellbeingatthebar.org.uk is heavily used: it has had 242,440 hits since its launch, with over 75,000 hits in the last 12 months. These figures show that we have a problem at the Bar that there’s nothing shameful in saying so or using the help that is on offer. A full list of people and services the Bar can access is included in my lecture notes: please log on, circulate and use them: Wellbeing matters. The whispers of worry that emerged in 2015 have now become a full-throttled shout: we need to change our working culture. Please join in this conversation. We are stronger together.
This subject will be re-visited by Jo Delahunty QC in articles to be published in the autumn by the Bar Council in ‘Counsel’ Magazine and by Jordan’s in ‘Family Law’. This subject needs to be kept in the spotlight because words are not enough: we need action and change.
This is a shortened version of a lecture Professor Jo Delahunty QC gave at Gresham College. It can be viewed at https://youtu.be/FcJuXeVi8ig and her notes can be accessed at http://www.gresham.ac.uk/lectures-and-events/family-lawyer-stress-distress
By Professor Jo Delahunty QC