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Should mental health be considered a mitigating factor?

Submitted by Scott

It’s estimated that 1 in 4 people in the UK experience some form of mental health problem each year. An estimated 1 in 6 people experience a common mental health problem, such as anxiety or depression, each week.

While it’s clear that mental health is being spoken about now more than ever before, what’s less clear is whether this has led to any difference in the perception of mental health across industries or in those responsible for regulating them.

I work in a regulated profession. That means that what I do is overseen by a regulator whose role is to make sure I’m acting appropriately. The regulator has the power to investigate actions that I take and consider whether it’s appropriate to impose a sanction on my ability to work within my profession. Sanctions can come in the form of a reprimand, suspension or erasure, amongst other things. The regulator can also order that the costs of the investigation be paid by the person who has been investigated in certain circumstances.

So, if the regulator judges that I or any of my colleagues have acted inappropriately, we can not only be sanctioned, but we also have to pay for the leg work the regulator puts in to investigate us in the first place.

Recently the regulator made a decision that has prompted discussion about mental health within my profession.

In the case, a lady was investigated for having left a briefcase containing sensitive personal information belonging to a third party on a train and was unable to recover it. The lady told their employer that the briefcase was at home before later saying that the briefcase had actually been lost later than it had been. Because of the change in her story, the lady was found to have acted dishonestly.

A hearing was called to decide whether any sanction should be imposed. During the hearing, the lady stated that they had been signed off work by Occupational Health for stress and anxiety 3 months prior to leaving the briefcase on the train. She also said that she had “little coherent recollection about the days immediately following the loss of the briefcase” and that the days after 24 May 2018 were “the darkest of her life”, during which she “barely ate, slept or showered”. She had also “drank alcohol to excess in order block out the event”, saying that at her lowest point, she had attempted to end her life. The lady’s sister gave evidence: “It was extreme to the point that when I visited…, I hid her balcony door key because I was worried about her state of mind”.

The regulator deemed that, when deciding whether the lady had acted dishonestly and what sanction should be imposed, only limited weight could be attached to the evidence given regarding her mental health.

The lady was struck from the roll – effectively stopping her from working in the profession in the future – and was required to pay £10,000 towards the costs of the investigation. At the time, she was working in a call-centre earning £9.00 per hour.

The decision has been roundly condemned as disproportionate and heavy-handed. It's also been criticised for failing to appropriately take into account the lady’s mental health concerns. They're now seeking to appeal the decision, but a hearing to consider the appeal is yet to take place.

Despite the appeal, the decision raises a number of questions. To what extent should mental health be taken into consideration when judging a person’s actions? Is there enough understanding about the impact of mental health on individuals? Should more be done to help those who suffer from mental health issues or concerns?

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