Mental health and wellbeing vs PII claims

A survey by Lexis Nexis in 2019¹ noted that 66% of solicitors reported suffering “high levels” of stress and one in four described the stress as “extreme” or “very high”.

A survey by the Law Society’s Junior Lawyers Division also conducted in 2019² recorded more than 93% of respondents reported having experienced stress in their role in the previous month. Almost a quarter of those individuals described themselves as severely or extremely stressed. One in fifteen junior lawyers (6.4%) reported experiencing suicidal thoughts in the month before they took the survey.

Now Covid-19 is also taking its toll, with many firms expressing concern regarding the mental health and wellbeing of staff in a Law Society survey response from 84 large law firms.³

It is really only in recent years that the legal profession has started to pay attention to mental health and wellbeing within their own workplace. While there is now a greater level of awareness, the above surveys confirm that there is still some way to go. We encourage all firms to put this issue squarely on their agenda. Those engaged in any management or supervision roles need to be alert to the warning signs, which can include a decline in performance, physical symptoms of distress, and uncharacteristic behaviour. Firms must also ensure they are able to respond appropriately, for example by providing support, access to external counselling services and allowing time away from the office or adjusting workloads and responsibilities.

Mental health and wellbeing as a catalyst for PII claims

There is no doubt that there is a link to poor mental health and wellbeing and PII claims, but the PII community have been slow to talk about this. When you ask insurers for the 10 common causes of claims, they will confirm that it is usually process or judgment issues that lead to claims. A top 10 list will generally look something like this:

1. Failure to record advice given
2. Failure to properly record scope of retainer
3. Identifying the client
4. Missed time limits
5. Lack of supervision/Failure to seek assistance
6. Failure to distinguish role from other professional
7. Advising outside area of expertise
8. Time pressure
9. Inadvertently assuming duties to third parties
10. Conflicts of interest

Interestingly, while neither stress nor mental health and wellbeing are on the list, they will be the catalyst for many of the above issues. When fee earners are tired, stressed or anxious, it can be a challenge to simply get through the day. Short cuts happen, diaries don’t get checked, and it can be difficult to tell clients what they don’t want to hear. People worry that asking for help will reflect badly on them.

PII defence lawyers are now starting to cite stress or mental health challenges as an increasing “root cause” of claims against solicitors.⁴ Even if it is not raised in the context of the initial notification, it often becomes apparent when interviewing fee earners in relation to the claim.

When reviewing the cause of claims, firms will often look for themes in order to identify the risk management initiatives they need to deploy, but many do not take a step back to consider whether there is a broader and underlying issue relating to the mental health and wellbeing of their fee earners. We encourage all firms to do this.

The impact of PII claims on mental health and wellbeing

When a claim or complaint is made against a fee earner, this can also cause a great deal of stress and anxiety in itself. We always advocate that the notification to insurers and subsequent management of the claim should, wherever possible, be dealt with by someone else in the firm. It is also a time when support and reassurance should be offered to the fee earner.

Insurers are always interested to know what a firm has done to avoid a similar claim happening in the future. Fraud and dishonesty aside, responding that the firm has “managed the fee earner out of the practice” is not the answer they are looking for and regrettably it is unfortunate how often they hear this. Insurers will always be concerned about the message that such a response sends to others in the firm.

Open door policy?

Most firms will tell their insurer that they have an “open door policy” and that staff are always able to raise issues or concerns, both in relation to files they are handling and their personal health and wellbeing. However, we encourage firms to reflect carefully on this. Is this the perception of your fee earners and other staff? Does the open door culture exist across the entire practice? Do principals in the firm also feel that they are able to ask for support?

You know that an open door and supportive culture is alive and well if your fee earners are engaging regularly with management, supervisors and risk and compliance teams to raise queries and discuss concerns. This will also be reflected in the pattern of notifications to insurers. If a firm makes precautionary notifications in a timely way throughout the year, then that is a good sign that the culture within the firm is open and supportive. In contrast, when a firm only notifies following an annual trawl or after a matter has escalated into a claim, then that can indicate that people are reluctant to ask for help.

The impact of Covid-19

Many fee earners are now working remotely as a result of Covid-19 and the pandemic is also causing additional personal and financial stress for many of them. It is even more important that firms pay attention to the mental health and wellbeing of all individuals within the firm at this time. You will not be able to pick up on the signals of stress and fatigue in the same way you do when you see people in the office on a daily basis and work alongside them in open-plan environments. Management and supervisors need to be checking in with
individuals regularly. Supervision, one-to-one meetings (albeit virtual) and regular file audits have to remain a priority.

A final word

Attention to the mental health and wellbeing of your staff is a basic duty of care owed by all employers. Not only will it ensure that you have a positive and motivated team, but it will
undoubtedly have a positive impact on the risk profile of your firm and help to prevent PII claims. It will also protect the firm’s reputation. The following comes from a recent decision
of the Solicitors’ Disciplinary Tribunal:

Within any workplace all employees should feel that when they are up against a problem they can draw on the support of their line managers in particular, and management generally. The Tribunal determined that level of support was not available to the Respondent. It had gleaned from the evidence that the culture was not supportive of its solicitor employees. The Tribunal did not gather from the Firm’s witnesses that they were attentive or interested in caring for the people under their charge.⁵

Take care that there is no opportunity for this to be said about your firm.

1 lexisnexis.co.uk/research-and-reports/stress-in-the-legal-profession-problematic-or-inevitable.html
2 Communities.lawsociety.org.uk/Uploads/b/y/k/resilience-wellbeing-survey-report-2019.pdf
3 lawsociety.org.uk/support-services/research-trends/larger-law-firms-covid-19-survey/
4 www.mills-reeve.com/insights/legal-publications/claims-against-law-firms-%e2%80%93-2019-trends
5 www.solicitorstribunal.org.uk/sites/default/files-sdt/11657.2017.James_.pdf