Last week’s Mental Health Weekly featured a story about the leadership of the New York State Bar Associations’ advocacy to end the mention of any mental health questions in the bar application. We applaud their efforts.
It also gave us an opportunity to highlight the leadership of New York and our MHA members in the groundbreaking work in fighting the stigma of mental illness through the mental health education law, the innovative family/whole health CarePath Program, the mental health income tax check off, the New York State Mental Health Awareness License Plate and the statewide role out of Mental Health First Aid.
Lawyers seek removal of MH question from bar applications
Observing that stigma around mental illness remains a chief barrier to treatment within the legal profession, not to mention the public at large, the New York State Bar Association (NYSBA), a voluntary bar association, is fighting to remove all mentions of mental health from bar applications.
The push to ban mental health questions from law applications has received much support from the New York state mental health community.
A report, Impact, Legality, Use and Utility of Mental Disability Questions on the New York State Bar Application, prepared by NYSBA’s Working Group on Attorney Mental Health, notes the importance of focusing on a bar candidate’s behavior and conduct to evaluate fitness to practice law.
However, in addition to conduct- and behavior-related questions, many state bars forbid inquiries about applicants’ mental health diagnoses and treatment. Applicants who answer these questions affirmatively are subject to burdensome supplemental investigations that are not imposed on other applicants, the report stated.
“One of the questions asks respondents to identify any mental health condition that they believe would have an impact on their ability to practice law,” NYSBA President Hank Greenberg told MHW.
If the person answered the question, they would be subject to further questioning and asked detailed questions about their condition and treatment, he said. Green- berg noted that the Conference of Chief Justices in February passed a resolution calling on its members, state and territorial bar admission authorities, to eliminate questions about mental health history from bar admission applications.
Greenberg convened a multidisciplinary working group of lawyers and disability rights experts to prepare the report.
In the summer of 2015, the American Bar Association’s House of Delegates voted overwhelmingly to approve a resolution to revise its policy regarding questions about a bar applicant’s mental health history, diagnoses or treatment when determining character and fitness for their admission. Questions should focus instead on conduct or behavior that impairs an applicant’s ability to practice law. It was a move that the Bazelon Center for Mental Health Law stated that they hoped would lead state bars to abandon their discriminatory mental health inquiries (see MHW, Aug. 24, 2015).
According to the NYSBA report, the working group concluded:
• The Americans with Disabilities Act prohibits the screening of candidates based on mental disability.
‘This is another step forward in the movement to end stigma in mental health.’ – Glenn Liebman
The report, meanwhile, was adopted by the House of Delegates on Nov. 2, meaning that the content and recommendations in that report become NYSBA policy. “We’re very pleased that our House of Delegates (with more than 200 member lawyers across the state) voted overwhelmingly to adopt the report,” said Greenberg.
Several law organizations and mental health advocacy groups have written letters supporting the report and the removal of the mental health question, including the New York state chapter of the National Alliance on Mental Illness, the Mental Health Association of New York State, the New York City Bar Association, the Women’s Bar Association of the State of New York, the New York Association on Independent Living, the Erie County Bar Association, the Nassau County Bar Association and Capital District Lawyers Helping Lawyers.
Mental health should not be judged any differently from physical health, said Glenn Liebman, CEO of the Mental Health Association of New York State. “It is stigmatizing to ask that question,” Liebman told MHW. “We very much appreciate the work of the NYSBA and the recognition that there is a stigma involved with a question like that.”
MHANYS also wrote a letter of support for eliminating mental health inquiries from an application for admission to the bar of New York state. NYSBA’s Greenberg and the bar association “deserve a lot of credit for putting together a strong message in New York state,” said Liebman. “We do not support any programs or policies that are stigmatizing to people with mental health issues. This is another example of that.”
Liebman notes that anytime MHANYS can get involved in issues related to reducing mental health stigma they are ready. He pointed to a number of groundbreaking stig- ma-fighting campaigns by MHANYS that resulted in New York becoming the first state in the country to dedicate license plates to mental health awareness (see MHW, Feb. 20, 2018) and a landmark law being passed Oct. 3, 2016, requiring middle schools and high schools across New York state to have an education curriculum for all students (see MHW, Oct. 17, 2016; Oct. 30, 2017).
MHANYS also pushed for another landmark state law that created a voluntary mental health public awareness tax checkoff to end discrimination against mental illness (see MHW, Dec. 7, 2015).
“We should not be focusing on a diagnosis,” Liebman stated. “This is another step forward in the movement to end stigma in mental health.”
Several states have made successful efforts to remove mental health questions from bar applications, including Virginia, Connecticut, Massachusetts and, more recently, California, said Greenberg. The California state legislature just passed a law a few months ago prohibiting the use of such a question, he said.
The spokesperson representing the court system in New York has indicated the intent to review the report and the concerning mental health question, said Greenberg. “We’re hopeful they’ll remove the question,” he said. •