Connecticut joins Colorado, Florida, Delaware and Kentucky in asking about treatment for certain mental health conditions
The Connecticut Law Tribune
If Abraham Lincoln were alive, he would encounter several difficulties gaining admittance to the Connecticut Bar — assuming he deserved his reputation both for honesty and for ‘melancholia.’ That’s because the state’s Bar Examining Committee has re-introduced depression as one of the conditions listed on the mental health section of the bar application. Depression made the list in July 2000, but public outcry led to its removal — until now.
The amended question 35 for the July 2006 application is one of several changes that has reignited a fiery reaction from opponents, who view the wording of the CBEC’s mental health inquiry — which includes a request for psychiatric records — as an unconstitutional invasion of privacy. “I was really shocked when I saw these new questions,” said Jon Bauer, a clinical law professor at the University of Connecticut. “This could be a major disincentive for people to seek treatment” for health matters, out of fear of repercussions following disclosure.
A 12-year effort to align the state’s bar application questions with the federal Americans with Disabilities Act hit a snag when, on March 3, the full CBEC voted to add to the current list of conditions requiring disclosure. By adding depression to an inquiry that identifies mental health and chemical or psychological dependency matters, the CBEC has broadened rather than narrowed the scope of an already too extensive set of 50 questions, Bauer said.
Applicants who have been treated for depression must reveal that information. “It doesn’t make sense to ask about depression but not the physical ailments that affect people in a similar fashion,” said Bauer, noting that depression can be overcome. “Depression affects energy level and mood. The same things are true of a lot of physical disabilities. Symptoms of major depression are not psychotic like manic disorders, bipolar disorder or schizophrenia.”
‘OUT OF THE MAINSTREAM’
In a 2001 article published in the UCLA Law Review, Bauer noted the few states that include treatment for depression in their questioning are Colorado, Florida, Delaware and Kentucky. Connecticut is “way out of the mainstream of what states are doing,” Bauer said. The wording of the question used on the February 2006 bar application (question 36) is: “Within the past five years, have you been diagnosed with or have you been treated for bi-polar disorder, schizophrenia, paranoia or any other psychotic disorder or condition?”
The amended wording for the comparable question for July 2006 (now question 35) reads: “During the last ten years, have you been treated for any of the following: schizophrenia or other psychotic disorder, bipolar or major depressive mood disorder …” before continuing with a list of 12 additional mental health conditions. The prior question, 34, on the July application also asks about hospitalization for mental illness within the prior 10 years.
The Florida Board of Bar Examiners application asks in question 26: “During the last 10 years, have you been hospitalized for treatment of any of the following: schizophrenia or other psychotic disorder, bipolar or major depressive mood disorder …” and continues to track verbatim the language of Connecticut’s amendment (or vice versa).
Phone calls to the three members of a CBEC subcommittee — Appellate Judge Anne C. Dranginis (chair), Alix Simonetti and Gail McTaggart — who studied the application questions were unreturned or deferred to CBEC Chairman Raymond W. Beckwith for comment. Calls to two other CBEC members — Superior Court Judge Barbara M. Quinn, the committee’s vice chair, and Denise Martino Phelan — were also unreturned or deferred to Beckwith. Beckwith himself said he has “no real recollection” of specifically discussing the re-introduction of depression into the inquiry. He added that minutes of the meeting do not exist because the committee’s secretary was home sick on the night of the meeting. “Most objections appear to be [from] professor Bauer, and we rarely hear from an applicant,” Beckwith said. “This [matter] tends to have a relatively small group that advocates doing something more than we did, [but] we always are open to opinions.”
Lt. Gov. Kevin B. Sullivan, who has criticized the application questions in the past, wondered why ailments such as morbid obesity, consistent reckless behavior and narcolepsy aren’t on the list even though they could be equally detrimental to the practice of law. Sullivan said the amended phrasing is legally suspect, but doubts any applicants will make that risky power play. “Will anyone who has standing seek admittance to the bar and sue at the same time? No,” Sullivan said. “The committee knows it’s in a position of power.”
Bauer also indicated that amending the language of the inquiry to include “major depressive mood disorder” is misguided, because that term is not recognized officially by the American Psychological Association. The correct term, Bauer added, is major depressive disorder. That erroneous detail “reflects the fact that [the committee] did this without the input of psychiatric experts,” he added. Beckwith countered that the CBEC is a judicial function whose business is conducted strictly by lawyers and judges. While the committee heard testimony from mental health professionals during the amendment process, those professionals had no hand in drafting any language. The committee is open to technical corrections, Beckwith added, when items come up for review “from time to time.”