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FAQs

These FAQs have been developed to support you in managing a wellbeing issue. They provide guidance on the circumstances when the Regulator may need to be involved and what you should be doing to best support an individual who becomes unwell.

Further guidance can be provided via the Bar Council’s
Equality & Diversity Helpline T: 0207 611 1320 and Ethics Helpline T: 0207 611 1307

You & your regulator

What is the relationship between serious misconduct and fitness to practise?

So far as the Bar Council understands the position, the BSB does not currently have a policy position on the relationship between questions of misconduct and questions of fitness to practise, other than as set out in rE295.

As rE292 makes clear, the BSB will act on a question of fitness to practise if information reaches it suggesting that any BSB-authorised individual is unfit to practise, if and for so long as the Fitness to Practise Regulations are engaged.

Matters of wellbeing may also feature in mitigation of disciplinary penalties, or in a decision of what, if any, disciplinary or supervisory action to take against an individual barrister in the event of misconduct.

What complaints procedures are chambers required to have in place?

Chambers are required to have procedures in place to deal with complaints of several types:

  1. Under the Complaints Rules (Section D1.1 of the BSB Handbook), the BSB requires self-employed barristers to have internal procedures in place for dealing internally with complaints to chambers from both lay and professional clients.  The complaints to which this applies are complaints regarding the standard of service received.  These rules do not apply to complaints of misconduct or negligence, but the rules will still apply to any elements of poor service which overlap or are linked to allegations of negligence or misconduct.
  2. Under Rule C110, chambers must have in force a written statement of policy on equality and diversity, and a written plan implementing the policy.  In most cases, this is likely to include a grievance procedure.  The BSB has published Supporting Information on the Equality Rules.
  3. Under Rule C110.3.j, chambers must have a written any-harassment policy.  That rule sets out the minimum requirements for such a policy, which must include (under rC110.3.j.iii) the procedure of dealing with complaints of harassment.  This must cover complaints from anyone in chambers, including those in chambers only temporarily (such as mini-pupils).  The Bar Council has produced an Equality and Diversity Guide on ‘Tackling Sexual Harassment; Information for Chambers’ which provides assistance in establishing such a policy, and in handling complaints under it.
  4. Under Rule C110.3.k, chambers must have a parental leave policy.  That rule sets out the minimum requirements for such a policy, which must include (under rC110.3.k.v) a procedure for dealing with grievances under the policy.
  5. The law all employers (and that includes chambers) to have in place procedures for dealing with discipline and grievances relating to their employees.  You can find detailed guidance on this on the ACAS website.

These procedures help to ensure that there is a fair consideration of such issues.  They can however be time consuming so it is very important to ensure that they are managed properly.  Failure to do so can lead to extra liabilities if there are later successful proceedings.

Chambers must also have a flexible working policy (rC110.3.l) and a reasonable adjustments policy (rC110.3.m).

Chambers may, but are not obliged, to have procedures in place to deal with other sorts of issues and complaints. This might include complaints of professional misconduct or of unacceptable behaviour, or might overlap with such complaints.

Chambers’ constitution may also include procedures for dealing with disputes or allegations which may lead to expulsion from chambers.  Indeed, Guidance C127 makes a specific suggestion that chambers’ constitutions should be drafted so as to allow chambers to exclude a member whose conduct is reasonably considered such as to diminish the trust the public places in barristers and the profession, and that members of chambers should take such steps as are reasonably available under their constitution to exclude any such member.

Complaints are rarely welcome but chambers should recognise that they may provide early warning signs of wellbeing issues.  It is sensible therefore to ensure that the person or committee dealing with the complaint is aware of this and can thus help to such issues addressed.  Chambers must have in any event in place a system of periodic review of the nature and outcome of complaints (see BSB Guidance on First Tier Complaints Handling at paragraphs 54 and 55).  This might provide a further opportunity to consider whether wellbeing issues are emerging.

What is the relationship between such procedures and allegations of serious misconduct?

The BSB’s guidance on First Tier Complaints Handling, which concerns complaints relating to service, recognises (in paragraph 7) that, “Chambers may not be best placed to seek to resolve or provide redress for complaints which relate to misconduct or professional negligence and there is no positive obligation to investigate matters of misconduct.”  At paragraph 8, however, it cautions that this is not a reason to refuse to deal with service issues, even where poor service and misconduct overlap.

Although that statement is made in the context of complaints from outside chambers (such as from a client or solicitor), it also applies to complaints from within chambers.

Similarly, at paragraph 11, the BSB’s guidance recognises that “Chambers’ ability to resolve many kinds of non-client complaints is limited and that they are more suited to consideration under the disciplinary processes of the [BSB]”.

On the other hand, misconduct – including serious misconduct – may involve matters of harassment or discrimination falling under procedures put in place under Rule C110 or under staff grievance procedures.  The same may apply to other grievance or complaint procedures put in place within chambers for other purposes.  In these situations, chambers may be obliged to address aspects of a complaint which raise allegations of misconduct.

There may also be circumstances in which it will be in the best interests of a victim, or of an errant barrister or member of staff, for a complaint to be made which triggers a grievance or complaint procedure, as this may provide a basis for ensuring that an issue can be addressed which might otherwise go unresolved and/or lead to more serious issues.

The Bar Council has produced an Equality and Diversity Guide on ‘Tackling Sexual Harassment; Information for Chambers’.  You may wish to refer to this in connection with allegations involving sexual harassment.  You may also find this useful in deciding how to address complaints involving other issues.  Particular topics considered in that Guide include the following:

1)  Understanding what sexual harassment involves.

2)  What to consider when framing policies and procedures.

3)  How complaints of sexual harassment should be handled.

4)  Informal vs. formal complaint handling.

5)  Duties of heads of chambers.

6)  Reporting to the BSB.

7)  Victim support.

8)  Example scenarios and a model anti-harassment policy.

How much freedom do chambers have to act when dealing with a fitness to practice issue?

Chambers can go as far as they sensibly and reasonably can, and wish, to go in managing a fitness to practise issue internally, subject only to what follows.

The BSB will expect chambers to report a fitness to practise issue if the point is reached at which (1) this raises a risk to any duties under the BSB Handbook, (2) the public interest is compromised, or (3) a significant risk arises for clients, the public, the profession or members of chambers.

In other words, it is understood that the BSB accepts that chambers retain their freedom of action unless and until a situation or risk arises (including a barrister becoming unfit to practise) which is of concern to the BSB as regulator.

The BSB’s expectation is not matched by any obligation in the BSB Handbook.  The only duties in the Handbook which require a report to be made are those concerning misconduct: see Serious Misconduct.

Accordingly, subject to the duties to report misconduct, the Bar Council suggests that the BSB’s expectation is a matter for chambers to consider, acting in accordance with both the letter and the spirit of the Handbook, particularly the Core Duties.

As to whether a fitness to practise issue might engage other provisions in the Handbook, see Effects on a Barrister’s Clients and Practice, and Chambers Management.

We are proactively managing a member of chambers with a wellbeing issue. What do we need to think about? At what point do we need to involve the BSB?

You need to consider:

  • The impact on the member’s practice and clients
  • Whether the member is fit to practice
  • If there is potential serious misconduct

You will need to engage with the BSB if there is potential serious misconduct [link to section on serious misconduct].  If there is no evidence of serious misconduct it is not necessary to engage with the BSB and chambers’ policies e.g. flexible working, disciplinary etc. should be implemented.

First steps are to work with the member of chambers. Outline your concerns. Make a note of the meeting and what you agree. Encourage the member to consult their GP (if they haven’t). If they have already, or once they have, encourage them to share recommendations for their treatment. This may involve reducing work load, or a sabbatical, or perhaps reviewing debt and giving rent holidays. Work together with the barrister and their clerks to implement whatever reasonable adjustments may be required.

Remember that an ongoing mental health issue may constitute a disability and, if so, then chambers are obliged to make reasonable adjustments to support that member to stay in practice.

Remember, sometimes work is good for an individual and a well intentioned gesture such as simply taking the pressure off by reducing their workload may not be the best support you can give an individual.

Remember it is important to make decisions with the member and not for the member who is unwell.

It is also worth exploring options for mentoring. Evidence suggests mentoring plays an important role in developing and maintaining an individual’s resilience and wellbeing.

What do the BSB do when they receive a complaint?

Once the BSB receive a complaint they will make an assessment to see:

  • If the barrister (or other person they regulate) may have broken a rule in the Handbook; and
  • if there is anything which would prevent it from being investigated fairly; and
  • if it is potentially serious enough for them to investigate further.

It is important to recognise that not all reports to the BSB result in disciplinary action, or even an investigation being opened. In 2015/16 the BSB received 51 reports from barristers about other barristers; only 24 were converted into complaints. There were 2 cases of Fitness to Practice and only one panel was convened. Disciplinary action is also only one of the tools available to deal with a regulatory issue. It is often the case that information received is dealt with by a more proportionate route. Being proactive in managing issues in chambers may satisfy the BSB that they need take no further action. This will be to the benefit of members.

To what extent am I affected by the BSB rules as an employed barrister?

All barristers are subject to the BSB rules that apply to them.  However if they are employed they are subject to other rules that arise from their contract of employment and their relationship with their employer. They also often have more complex relationships with other staff who are not subject to regulatory rules who work alongside them and who may not equally appreciate what BSB rules require.  You can always seek guidance from the Bar Council’s Ethics Helpline if you are being asked to act in a way which is inconsistent with your regulatory obligations.

As well as those obligations, as an employee, you owe duties to your employer of care and co-operation and to maintain mutual trust and confidence.  So any wellbeing issues that affect you or your relationship with a colleague should not be ignored. It is sensible to communicate them to the relevant human resource department or person having that function as soon as possible.  If there occupational health or disability issues they should be addressed under the employer’s policies.

If you are concerned about the wellbeing of a colleague then you need to consider if this can be raised informally in the same way or with the relevant manager.  Rarely, it might be necessary to use the employer’s whistleblowing policy. The charity Public Concern at Work gives very useful guidance on this can.

In addition, however, your employer may owe you relevant legal obligations (e.g. under employment and health & safety law), and you may owe additional or different obligations to your employer.

If you are the employer of staff or other barristers then again you should not ignore these issues but raise them in the proper procedures.  Again it is often sensible to raise concerns informally in the first place.

Chambers policy and wellbeing practice

Do we need to have a Wellbeing policy and a Wellbeing Committee etc.?

Where mental or physical health is concerned, wider equality and diversity obligations may also be triggered. Chambers may, but are not required to have policies in place to deal with wellbeing issues which go beyond, or are separate from, strict equality and diversity issues.

Bear in mind rule rC89 which requires you take reasonable steps to ensure that:

  1.    Your chambers is administered competently and efficiently;
  2.   Appropriate risk management procedures are in place and being complied with;

Wellbeing issues may in certain circumstances give rise to risks to clients. The management of such risks, and any policies in that regard, are a matter for each set of chambers.

How you choose to manage Wellbeing within your chambers is up to you and to the management structure you follow. Different chambers take different approaches.

We are proactively managing a member of staff with a wellbeing issue. Is there a difference in how they should be treated compared to a member of chambers?

No, not in terms of care. You proceed with decisions made with the member staff for the restoration of their wellbeing, the monitoring of their recovery, workloads and return to work (if they have taken leave) just as you would deal with any member recovering from wellbeing issues.  You should also follow occupational health and safety guidelines and anti-discrimination policies.  Reporting requirements will be different, however. The employer’s duty of care will always override confidentiality. If you have fears that any member of staff is a danger to themselves or others, tell a senior person and notify someone who has the authority ability to intervene.

Note: for members of staff and indeed any member of chambers the sooner a senior member or manager in chambers knows that they have a mental illness the sooner care plans can be developed and acted on. Ideally this should happen as soon as early warning signs of their condition arise.

If I am supporting a member of chambers with a wellbeing issue and they disclose misconduct. What do I do? Do I have discretion over reporting them? I don’t want to make their problems worse.

You do not have discretion not to report them, and should encouraging them to self-report, if the misconduct is serious: See the Serious Misconduct Guidance. However, the duty to report applies only to serious misconduct. In addition, even if a report i made, if as a chambers you are managing an issue actively and effectively, then the BSB may be content to monitor the situation and may decide in due course not to pursue the matter further. It is important that you provide this context to the member (prior to making any report) when discussing the issue, so as to minimise concerns that the member will have, and that you explain to the BSB what action is being taken when making a report.

I am mentoring someone, they are clearly depressed and I feel very responsible for them. What should I do?

Keep in mind the purpose of the mentoring relationship. You need to recognise your area of expertise and that you are not responsible for your mentee’s wellbeing. If you are concerned about your mentee or if they bring up issues you are not qualified to deal with you should encourage them to seek professional help elsewhere. Don’t attempt to fix their problems. Once they have sought help, ask what steps they have been advised to take – then it is OK to confirm that they are following them. You can always terminate the relationship if you feel that too much is being asked of you and you do not wish to provide high levels of support. You are a mentor and not a psychiatrist/counsellor. You should respect anything that you have been told in confidence. Your responsibility ends there.

A member of chambers recently took their own life. We are concerned at the impact on other members of chambers. What should we do?

Close relationships are formed between members of chambers and how you react and support members and staff following an incident of suicide or attempted suicide is very important. Members/staff need to be given an opportunity to grieve. Some members of chambers or staff may have been trying to support the individual and will need additional support. We recommend that you acknowledge what has happened. Ignoring it will make members think you do not care. Consider offering counselling to members who may wish to take it up. Mark the death of the barrister or member of staff in some way. Establish if there are any lessons chambers can learn from support given/or not provided to the member and act on recommendations. Communicate about what you are doing as a direct outcome.

It is worth taking on board some of this guidance if a member of chambers or staff dies unexpectedly.

What do I do if I am told something in confidence regarding an individual’s mental health?

If you are told something in confidence then it is your duty to maintain that person’s confidence.  Betraying that confidence may (in some scenarios) lead to a breach of trust or potentially discriminatory behaviour.  However, you should seek to reassure the individual that making disclosures are helpful for offering greater support and for others appreciating and making adaptions to assist them.

If you are concerned that the individual (or a third party) may be at risk by reason of deterioration in their health then the duty to protect their confidentiality may not necessarily need to be maintained. In the first place discuss the situation with your senior practice manager or head of chambers to seek guidance.  Confidentiality will not override the duty of care to any person or third party, so if in doubt regarding the scenario, seek advice. The Bar Council can provide such advice.

Barristers

A member of chambers is drinking too much. They haven’t been ‘obviously’ drunk in court but we are not sure what is happening, and don’t know how to support them. We’re concerned they might make mistakes.

This is a potentially serious issue and so should not be ignored: being drunk or under the influence of drugs in court is serious misconduct – see gC96.7.

At this stage, however, you probably can, and so should, approach the issue informally – no mistakes have been made as yet and you have no evidence at the moment that any misconduct has been committed. Make a note/record of any discussions. Explore any underlying issues that may be prompting any excessive drinking and if you do identify a wellbeing issue you should encourage the member to consult their GP and to explore other options for support.

A member of chambers has had a breakdown and is returning to work shortly. What should/shouldn’t we do?

When a member of chambers is returning to work you should arrange to meet with them to discuss how they would like their return to be managed. Ideally, you should encourage them to share any medical recommendations about their treatment/ongoing management of their condition. You may need to make reasonable adjustments over workload, types of cases etc. You might also consider providing a buddy or a mentor to support their return to practice/work.

It is important that you don’t make any decisions about them (e.g. reducing their workload) without discussing these directly with the individuals and agreeing a plan of action together.

You also need to be clear on how they want their return communicated to colleagues and clients. Establish exactly what they want said about any reasons they have been away and their return.

A major cause of failure in return to work plans is being over-ambitious.  It is always best to start slowly and then build up the engagement as progress is made.

A member of chambers told the clerks very shortly before a hearing that he could not turn up, and another barrister had to step in at the very last minute. Chambers’ reputation might be compromised. What should we do?

You are right to be concerned.

It should be very rare that a barrister fails to turn up to court and someone has to step in at the last moment. There may be a very straightforward explanation – for instance a sudden onset of a bout of ill-health – but it may be an indicator of a wellbeing issue.  If there is no immediately obvious good reason, then the member’s behaviour needs to be explored by the practice manager, senior clerk or other senior member of chambers. Such unexpected behaviour will feel unacceptable for the client unless there is a good explanation, and is likely to be outside the permissible grounds on which a barrister may return instructions without the client’s consent (see rC26 and the related guidance and rC27). The underlying issues prompting this behaviour should be explored, and if you do identify a wellbeing issue then you should encourage the member to consult their GP and to explore other options for support.

While an informal approach is likely to be the least confrontational and therefore most likely to get quickly to the bottom of the issues that have caused this to happen, this may be insufficient.  You will need to think through all the different relationships that are affected by this: with clients, with colleagues in chambers, with the court, and with the BSB.  Whatever plan you are able to put in place will need to be monitored.  It may therefore be a good idea to put in place some mentoring support.

Whether you start with an informal approach or otherwise it will be important to keep careful notes of discussions and actions agreed to prevent reoccurrence.

A member of chambers has suffered from a period of mental illness, and has been on extended leave. They now want to come back to work. They say they need the money. We aren’t convinced it is a good idea for them to return to work yet.  What should we do?

You should respect that the member may need to work either as part of their recovery or because they need the income. If you have concerns you should meet with the member and discuss any medical recommendations they have around returning to work. Depending on their condition you may be able to request to see any advice provided by their doctor or to meet with both the individual and their doctor. Depending on the advice you may wish to explore imposing time limited and jointly agreed limitations on their practice. These must be reasonable and be agreed with the member.  You might seek to agree a period of review and it would also be very sensible to arranging for a mentoring arrangement to help them gain confidence.

A solicitor has shared concerns about a member of chambers. What do we do?

At this stage (in the absence of a formal complaint) you should approach this issue informally. Raise the solicitor’s concerns and investigate the incident/any incidents concerning the member’s behaviour. Make a note/record of any discussions. As part of this process you should explore underlying issues that may be prompting conduct and if you do identify a wellbeing issue you should encourage the member to consult their GP and to explore other options for support.

A member of chambers is acting in an increasingly erratic manner. What should we do?

Do not do nothing.

This will have a damaging impact on morale and relationships in chambers, and it may pose a threat to client interests. You should follow chambers’ procedures and policies if a formal complaint is made. You can also approach this issue informally. Raise concerns and investigate incidents concerning the member’s behaviour.

Make a note/record of any discussions. Whilst making clear such behaviour is unacceptable, you should explore underlying issues that may be prompting the aggression and if you do identify a wellbeing issue you should encourage the member to consult their GP and to explore other options for support.

A colleague recently broke down and told me they were in the process of getting divorced and they were struggling with their case load but didn’t want me to tell anyone for fear of being thought unreliable. What should I do?

You should respect anything that you have been told in confidence and you should encourage them to talk to chambers and also to seek professional help.

A member of chambers appears unwell, they are aggressive with colleagues and clerks/chambers staff. How should I handle it?

You should follow chambers procedures and policies if a formal complaint is made. You can also approach this issue informally. Raise concerns and investigating incidents concerning the member’s behaviour. Make a note/record of any discussions. Whilst making clear such behaviour is unacceptable you should explore underlying issues that may be prompting the aggression and if you do identify a wellbeing issue you should encourage the member to consult their GP and to explore other options for support.

In some circumstances, it may be appropriate to encourage a victim, or someone else, to trigger a formal grievance or complaint mechanism, so as to provide a basis for ensuring that an issue can be addressed which might otherwise go unresolved and/or lead to more serious issues.

A member of chambers finances seem out of control; what can I do?

Sometimes there are signs that a member of chambers’ finances are awry.  These can be the result of significant underlying wellbeing issues.

Common early warning signs, to watch out for, include:

  • Unopened brown letters from the Inland Revenue
  • Late or no payment of chambers contributions
  • Borrowing money within chambers from colleagues, staff or pupils
  • Excessive pressure on chambers’ administration to get fees in
  • Repeated or unusually prolonged disputes about fees

Heads of Chambers, practice managers and senior clerks should take these early warning signs very seriously.  If not, sooner or later chambers’ formal policies will come into play or external pressure will mount.  One of the biggest problems in helping someone to deal with financial issues such as these is that they frequently arise because someone’s life is out of control and they cannot see how to deal with their problems. Wellbeing support therefore has a very important role to play.  An informal supportive approach to the member as soon as these problems become apparent is the first step.  

Chambers Staff

A junior clerk has had a breakdown and is returning to work shortly. What should/shouldn’t we do?

When a member of staff is returning to work you should arrange to meet with them to discuss how they would like their return to be managed. Ideally, you should encourage them to share any medical recommendations about their treatment/ongoing management of their condition. You may need to make reasonable adjustments over workload. You might also consider providing a buddy or a mentor to support their return to work.

It is important that you don’t make any decisions about them (e.g. reducing their workload) without discussing these directly with the individuals and agreeing a plan of action together.

You also need to be clear on how they want their return communicated to colleagues and clients. Establish exactly what they want said about any reasons they have been away and their return.

A major cause of failure in return to work plans is being over-ambitious.  It is always best to start slowly and then build up the engagement as progress is made.

The information and resource packs on this website are designed to help you and your colleagues to work as a community for better wellbeing and professional resilience. If you want to provide feedback on these resources, or to get involved in promoting wellbeing please get in touch.


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It can be difficult to make a living from law and it can be pressurised and demanding. Competition and an adversarial approach to everything can make collegiate relationships difficult. This website aims to provide you with the knowledge to manage these stressors, make emotionally informed, wise professional decisions and thrive in your chosen profession.

A simple expression that sums up wellbeing is ‘travelling well’

Psychological wellbeing within the profession is rarely spoken about