Legal Practitioners (Disciplinary Matters and Fidelity Fund) Amendment Bill

Final Stages

The House of Assembly agreed to the bill with the amendment indicated by the following schedule, to which amendment the House of Assembly desires the concurrence of the Legislative Council:

No. 1. Page 5, after line 35, insert:

10—Insertion of Part 6 Division 2 Subdivision 1A

Part 6 Division 2—after Subdivision 1 insert:

Subdivision 1A—Assessment of fitness to practise

77AA—Commissioner may require practitioner to undergo assessment etc

(1) If the Commissioner reasonably believes, whether due to a complaint or for any other reason, that a legal practitioner may be suffering from an illness or a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug, whether or not prescribed) that has detrimentally affected, or may detrimentally affect, their ability to practise the law, the Commissioner may, by written notice, require the practitioner to undergo a health assessment by a medical practitioner or psychologist nominated by the Commissioner.

(2) For the purposes of conducting an assessment of a legal practitioner required under subsection (1), a medical practitioner or psychologist (as the case may be) may, by written notice, require the legal practitioner to—

(a) provide the medical practitioner or psychologist, in the manner and form, and within the period, specified in the notice, with such information as may be reasonably required for the purposes of the assessment; and

(b) attend at a specified time and place for the purpose of undergoing the assessment.

(3) The medical practitioner or psychologist must, as soon as practicable after carrying out the assessment, give to the Commissioner a written report about the assessment.

(4) The Commissioner must, as soon as practicable after receiving a report of an assessment under subsection (3), provide a copy of the report to—

(a) the legal practitioner to whom the report relates; or

(b) if the report contains information the Commissioner considers may, if disclosed to the legal practitioner, be prejudicial to the practitioner's physical or mental health or wellbeing—to a medical practitioner or psychologist nominated by the practitioner.

(5) If a medical practitioner or psychologist is given a copy of a report about a legal practitioner under subsection (4)(b), the medical practitioner or psychologist must provide a copy of the report to the practitioner as soon as it will no longer be prejudicial to the practitioner's health or wellbeing.

(6) After the legal practitioner has been provided with a copy of the report under subsection (4)(a) or (5), the Commissioner, or a person nominated by the Commissioner, must—

(a) discuss the report with the practitioner; and

(b) if the report includes a finding that the practitioner's ability to practise the law has been, or may be, detrimentally affected—discuss with the practitioner ways of dealing with the finding.

(7) If, after considering a report of an assessment under subsection (3), the Commissioner is satisfied that the legal practitioner is not a fit and proper person to practise the profession of the law but that their lack of fitness can be adequately dealt with under this subsection, the Commissioner may, if the practitioner consents to such a course of action, by order, do 1 or more of the following:

(a) require the practitioner to—

(i) undertake any treatment recommended by the medical practitioner or psychologist; or

(ii) receive counselling of a type specified by the Commissioner; or

(iii) participate in a program of supervised treatment or rehabilitation designed to address behavioural problems, substance abuse or mental impairment;

(b) impose a condition on the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) requiring the practitioner to undertake a specified period of supervised legal practice (not exceeding 3 months);

(c) suspend the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding 3 months).

(8) If—

(a) a legal practitioner—

(i) refuses to comply with a requirement of the Commissioner under subsection (1); or

(ii) refuses to consent to an order of the Commissioner under subsection (7); or

(b) the Commissioner is satisfied that the legal practitioner's lack of fitness cannot be adequately dealt with under subsection (7),

the Commissioner may—

(c) apply to the Supreme Court under section 20AL for an order requiring the practitioner to undergo a health assessment, undertake treatment, receive counselling or participate in a program of supervised treatment or rehabilitation; or

(d) apply to the Supreme Court under section 20AD for an order suspending or cancelling the practitioner's practising certificate.

(9) An order under this section must be reduced to writing and be signed by or on behalf of the Commissioner.

(10) A condition imposed on a practising certificate by an order under this section may be varied or revoked at any time on application by the legal practitioner to the Tribunal.

(11) The costs of a health assessment conducted by a medical practitioner or psychologist in accordance with a requirement under this section are payable out of the Fidelity Fund.

(12) The cost of medical or psychological treatment, counselling or a program of supervised treatment or rehabilitation undertaken by a legal practitioner pursuant to an order of the Commissioner under this section is to be borne by the practitioner.

Consideration in committee.

The Hon. K.J. MAHER: I move:

That the House of Assembly's amendment be agreed to.

Motion carried.