I’ve written before about mental health and ‘masking’, the often-automatic concealment of symptoms by acting ‘normally’ when around others. My attention was recently drawn to a case at the Solicitors Disciplinary Tribunal (SDT), in which this phenomenon was very much relevant.
I am not a legal professional, nor any other sort of legal expert, so I shan’t make much observation about the case. Put briefly, a junior – fairly recently qualified – solicitor by the name of Claire Matthews (her name being not only a matter of public record but the subject of considerable publication on legal websites) was asked to do some work one evening, and mislaid a briefcase containing the relevant files on the journey home. She lost her job, and an individual whose personal data was included in the files – an individual who was bringing action against a client of the firm – made a complaint to the Solicitors Regulation Authority (SRA), who investigated and decided to bring disciplinary proceedings to the SDT, who can decide on penalties when a solicitor has acted improperly.
(This is all complicated by the fact that the SRA was the client in question, indeed the firm was one heavily used by the SRA. I do not know enough to say whether this might have affected the SRA’s actions in result of the complaint – given the complainant was already bringing action against them. One would naturally hope not, a regulator being expected to be impartial as a matter of course, but we are all human, so I do not dismiss the possibility.)
This inexperienced solicitor was not represented at the tribunal, and I am sure that most of you will have heard the old saw about lawyers who represent themselves having a fool for a client. However, it costs money to be represented, if you cannot find someone willing to act pro bono; it also costs money to provide expert evidence, the relevance of which will become clear shortly. Overall, it is understandable that people early in their career don’t see any alternative but representing themselves.
Mental health was raised as a factor before the tribunal, as it can mitigate or entirely excuse behaviour that might otherwise be considered a breach of professional conduct. This was not successful, and the tribunal found a range of misconduct had occurred, and did not find sufficient mitigation to apply any lesser penalty than that of striking off – removing the ability of this woman to work as a solicitor. In line with what is apparently normal practice, they also asked the tribunal to order that the costs of the investigation and prosecution be paid by the solicitor. It is most important to note that the misconduct that occurred was largely a matter of dishonesty – dishonesty towards her seniors in failing to report in a timely manner and misrepresenting the circumstances and timing involved. Apparently, dishonesty is particularly amenable to mental health-related defences.
Given the severity of this outcome, she did seek legal advice, and the solicitors who acted for her have written about the case of Claire Matthews and the successful appeal that was made. With pro bono legal advice and representation, and expert medical evidence, the appeal was allowed ‘by consent’, which is to say the two parties agreed on an outcome and the court gave it the okay. The argument was that, given that she was unrepresented, and mental health had been raised as an issue, and that the SRA and SDT both have public duties under the Equality Act and the power to take steps to investigate her mental health, there was a degree of what I would describe as, and I make no attempt to use legal terminology, unfairness to the proceedings. Supported by the newly-acquired expert evidence, the SRA conceded that the matter should be remitted to the SDT for a fresh hearing, without explicitly conceding the actual grounds of appeal.
I now turn to the analysis of the matter I read in the publication to which my attention was first drawn – the Law Society Gazette. This is a publication of the Law Society, which is both a representative and regulatory body for solicitors; however, the regulatory matters are handled by the Solicitors Regulation Authority, which operates independently of the Law Society while being technically part of it. Thus, the actions of the Law Society under that name are generally supporting and representing the interests of solicitors (at least, that is how I have understood it, and I am happy to be corrected in the comments). The Gazette has, I would thus presume, a degree of pro-solicitor bias, though perusing its website makes clear that it is not in general prone to defend solicitors who have acted inappropriately – though it has been known to be critical of the SRA and SDT.
In both a recent news report regarding Matthews, and an opinion piece, more detail – and criticism of the SRA – is apparent. Having agreed last year to the consent order, remitting the case to the SDT, the SRA eventually applied to the SDT to withdraw the case, with no order as to costs. Matthews is thus entirely free to practice again, without the costs or the case as a whole hanging over her, although the SRA has applied conditions to her practising certificate. The SRA instructed their own medical expert for an assessment, and found in the end no public interest in pursuing the case.
Note that they instructed their own medical expert – this is what is meant above, in the description of the arguments on appeal, by the SRA having powers to take steps to investigate a solicitor’s mental health in an investigation. Taking into account the assertion of mental health issues, the Gazette’s opinion piece argues, along with her lack of representation, the SRA should have done this in the first place, and may not have taken action, or the SDT could have ordered it – or weighed differently the evidence before it in a way that was more understanding of mental health problems.
This is where we come back to the topic of masking. The SDT apparently heard evidence of trauma that had led to long-standing mental health problems. There was no expert evidence either way, but absence of evidence is not, as the saying goes, evidence of absence. The SRA presented Matthews as dishonest, and self-serving in that dishonesty, while she presented herself as a person who was experiencing an exacerbation of long-standing mental health difficulties, a person in crisis, due to the very events in question. She provided evidence in support of this from those who knew her, and could see her with her mask off, particularly her family. The countervailing evidence? Statements from former colleagues that she was acting normally at work at the time. Even describing her as ‘bubbly’.
To anyone with a proper understanding of how mental ill-health presents, that people mask their symptoms when around those they don’t trust completely, this should not be convincing. The standard of proof in this case was (and I didn’t know that such disciplinary tribunals used this) the criminal standard – beyond reasonable doubt. Even if a finder of fact were to take the view that the doubt raised did not quite reach the standard of a reasonable doubt – a higher bar than is commonly thought – they ought to consider it enough of a doubt to raise questions as to why, given their power to do so, the SRA hadn’t looked more deeply into the mental health question. Instead, it seems that the evidence regarding what could easily be masked behaviour was seen as entirely quashing the doubt raised by evidence of those who saw Matthews with her mask off.
Masking is a complicated thing. It is a broad term in psychology, applied to neurodevelopmental disorders such as autism as well as to mental illness such as depression or schizophrenia. It is broadly described as acting in a way not consistent with one’s own genuine personality or emotions, generally to conform to social pressures or as a reaction to abuse or harassment. It is very common in women and girls with autism, as many behaviours typical of autism are thought to be rather unfeminine, thought to be a factor in under-diagnosis of autism in women and girls. The pattern for girls with autism is more often one of apparently ‘normal’ behaviour at school, potentially extreme behaviour on return home due to the stress of masking all day, and perhaps more typically autistic behaviours when away from school and allistic (non-autistic) friends, where it is not seen by teachers and thus not captured in diagnostic questionnaires.
I would go further and say that masking is not done simply to conform to social norms or in reaction to abuse. There is a common, underlying drive behind both reasons, and it is broader than them – the avoidance of negative or undesirable reactions from others. It is very difficult to explain to other people why one is acting in a depressed manner. It can be distressing for other people. You get a far better reaction, and thus reduced immediate stress-in-the-moment if you do not act in a depressed way. This is especially true in contexts where there is a proximal cause (as in this case, the losing of the paperwork) that you do not feel able to disclose to the people with whom you are interacting.
The fact that it may increase stress overall doesn’t seem to be part of the (in my opinion, largely sub-conscious) ‘decision’ to mask.
Masking also often leads to overcompensation, a fact I can attest from my own experience. A person with ADHD may do their (again, potentially subconscious) utmost to seem attentive, and it may even work for a time. A person with autism may ape neurotypical social behaviours and seek social contact. A person who is depressed may seem extra cheerful – even, as in this case, ‘bubbly’.
The message I want to get across to everyone is quite simple. How a person behaves in public, or even with health professionals, is not a brilliant guide to how they are feeling or how they would behave ‘naturally’. Judging people on their public behaviour is likely to give a misleading idea of how they really are, and doesn’t show you the toll that masking takes on them. Mental state examinations that judge people’s ‘objective’ mood should be approached with caution – even if a patient trusts their health professional completely such that they might drop the mask, they have generally just been in an environment where the mask was up (such as a waiting room), and inertia might keep it up. It should also go without saying that a patient will not always trust their health professional enough for this.
Masking can even go beyond the situations in which it may be automatic. Where those closest to a person – those in front of whom they might otherwise feel most comfortable dropping their mask – are themselves vulnerable, or more likely to be distressed by natural expression or react negatively to it, there can be a conscious decision to mask, which is even more difficult than ‘automatic’ masking in public. If this goes on long enough, it may become automatic, making it less difficult but removing an important outlet for a person’s true feelings or behaviour. Reports on behaviour and mood from those close to a person are thus more likely to be reliable, but may still reflect masking.
This is important for clinicians to remember, when assessing someone’s mental health; if their objective mood is at odds with their subjective mood, that shouldn’t automatically call into question their subjective report or their description of symptoms. Objective mood can certainly be seen as supportive a self-reported subjective experience, or if objective mood is other than euthymic in a way other than that reported subjectively, that can be very clinically relevant, but “they seem euthymic” should not be a reason to dismiss a person’s reported distress or symptoms.
It is important for everyone else, as well. In this case, it was people passing judgement on someone in a literal, legal sense, and it would obviously be important in such a case, but it is important in others as well. Employers must realise that a person who has outward signs of being ‘fine’ can be in a great deal of distress. Even in terms of social relationships, it is easy to judge someone – to distrust them – if they seem to present different ‘faces’ at different times.
“But you don’t look sick” is a thing often heard by people with some sorts of invisible long-term physical conditions, such as various autoimmune conditions, fibromyalgia or ME/CFS. “But you don’t seem> depressed” is something that people with depressive mood disorders are also very familiar with. It is more than disheartening – even more so than with physical conditions, it strikes at a person’s integrity, at their self-image, and causes them to feel that others distrust or disbelieve them. That is, obviously, not a good thing when already dealing with mental ill-health, and can be far more damaging than one might expect.
Please, whatever your role in life or relationship with such a person, please don’t contribute to that damage.