A NSW North Coast magistrate has lifted a veil of secrecy and spoken of his personal struggles with the debilitating effects of the “vicarious trauma and PTSD” suffered by members of Australia’s judiciary .
In a speech at the Tristan Jepson Memorial Lecture held at the Federal Court in Sydney on Wednesday evening, Lismore Magistrate David Heilpern revealed he had himself suffered mental health issues after working on particularly affecting cases in difficult circumstances.
He cited the pervasive nature of photo and video recordings capturing graphic evidence that must be viewed by the courts as an added and significant psychological burden
Magistrate Heilpern – who explicitly made clear he was speaking for himself and not the magistracy – argued that for the good of the community more needed to be done to address the mental health of the judiciary.
“It is certainly not my intention to become some sort of poster boy for vicarious trauma or PTSD and the judiciary,” he wrote in a paper accompanying the speech. “Nor can I remain silent. I am convinced that it is time to lift the veil for the benefit of the judiciary, but also for the system of justice itself. The community is best served by recognising and acknowledging this issue, rather than hiding it.”
Magistrate Heilpern, a well-known progressive and self-described Buddhist and teetotaller, said the issue had been historically kept hidden, referred to euphemistically as “judicial stress”.
“We ought to stop talking of ‘judicial stress’, and start calling it for what it is – anxiety, panic attack, insomnia, traumatic response, depression, substance abuse disorder and the like.”
While there had been few studies into the problem among magistrates and judges, with research showing mental health episodes to be common among Australians and especially so among solicitors and barristers, he said “it would be a reasonable conclusion that a significant number of judicial officers suffer from debilitating mental health issues during their time on the bench”.
“There is a veil based on assumptions regarding judicial officers,” he said. “The sooner the veil is lifted, the sooner judicial officers can admit to difficulties, access help and better serve the community.”
A former criminal lawyer and legal academic, Magistrate Heilpern joined the judiciary 18 years ago and is now a leading judicial educator in Australia and overseas.
After first paying tribute to those who suffer direct trauma from crime – the victims and first responders and also legal practitioners – he went on to detail two personal examples where his mental health suffered during his time on the bench.
The first was about 12 years ago when he found himself working on a series of child pornography cases in Batemans Bay. At the time, the court was required to view pictures and video to determine the seriousness of charges which is no longer always the case.
“I dealt with over a dozen of these cases within a couple of months,” he said. “I started dreaming of these children and the torment perpetrated upon them. I would wake up in the witching hour screaming, sweating and panicked. I thought it would pass, but it did not. I was pretty scared about going to sleep, and that fear was well placed.”
The nightmares only ceased after Magistrate Heilpern sought permission to avoid child pornography cases for a time and received help from the newly formed NSW Judicial Assistance Program.
He also talked of a second disturbing time during which he dealt with a particularly horrific child abuse case, a series of violent incidents inside his court, another child pornography case, and the death of friend in a surfing accident.
He found himself in a state of “hyper-vigilance” in which he was nervous for his own and family’s safety.
“I found making hard decisions in court really painful. Actually physically painful – my head would hurt (just like Winnie the Pooh) when trying to decide whether to imprison someone or refuse them bail, or admit evidence. A good night’s sleep had become a distant memory. I would wake myself up screaming.”
Despite urging from friends and family, he felt that his reaction was “pathetic” in comparison to the victims and saw it as a matter of pride not to take time off. However, after three months, on the advice of his GP, he took a couple of weeks off, went on a Buddhist retreat and underwent therapy including Eye Movement Desensitisation Reprocessing, which he found useful.
“I approach my ability to cope with traumatic cases with a mixture of confidence and trepidation. Did it affect my ability to competently do my job during my darkest days? It is difficult to tell,” he wrote. “Certainly, there was no rash of appeals from my decisions or criticism by higher courts. There were no complaints to the Judicial Commission. I probably consulted with my colleagues on harder cases to check I was on the right path and perhaps I was gruffer than usual with lawyers who I perceived as incompetent or worse.”
Magistrate Heilpern said he now was alert to “soaking up” too much trauma before seeking help.
In his paper, he cited other issues such as decision makers being forced to get inside the heads of victims and perpetrators, judicial officers’ intense workloads, isolation, security threats and an expectation that judicial officers would suppress emotion.
“Modern technology has made the trauma much more ‘in your face’,” he wrote. “Real violence is now captured on CCTV, smart-phones, in-car-videos and DVEC’s. When I started in this job, some form of graphic video or photographic evidence was a rarity. Now there are few cases without it.”
He said he had put in place protocols to “protect himself and his staff as much as possible” such as sealing on-scene files from coronial cases in envelopes to limit accidental exposure..
Magistrate Heilpern also discussed the fact that disclosing mental health issues could result in legal sanctions despite apparent community acceptance of the problem.
He encouraged future research to focus on the frequency of mental health issues and the profession’s risk factors, the relationship between mental health and disciplinary matters, whether mental health check-ups should be undertaken and what options, such as treatment or case selection, could help those at risk.
And he finally called for the adoption of the guidelines advocated by the Tristan Jepson Memorial Foundation, which seeks to “decrease work-related psychological ill-health in the legal community and to promote workplace psychological health and safety”.
“In my view, the bench should lead by example in the area of mental health,” he wrote. “We are blessed by incumbency, security of tenure and status absent for many in the private profession, and those benefits should provide a firm basis for making a safe workplace.”