A junior's diary: Mary-Rachel McCabe

A call to arms from the relentless slog of a legal aid junior’s August diary: why clerks and seniors should make it easier to say no and enable time out for self-preservation

When I was asked to write this article I knew that I did not want to turn it into a marketing exercise bragging about how hard I work. Everyone knows that barristers have to work hard – particularly juniors at the legal aid Bar, where we have to pile the cases high to earn a living.

When I looked back at past contributions, I was struck in particular by Jo Delahunty QC’s. A top silk, she described her 24/7 way of working as ‘coming at a personal cost’. At the beginning of the piece, she cautioned: ‘nothing I say should be allowed to fetishise my frankly ridiculous and unhealthy approach to work.’ She also argued that: ‘Senior members of the Bar have to give younger members the chance to say ‘no’ to work overload.’

I completely agree with Jo. But I do think that senior members of the Bar should lead by example, and if the picture of success is constantly painted as one where work is prioritised above everything else, then little is going to change.

The concept of ‘wellbeing at the Bar’ is trending at the moment, which is great. I worry, though, that the wellbeing buzzword does not always come from a place of genuine concern for barristers, but rather one of paying lip service to the idea, or in the context of chambers competing for their Wellbeing at the Bar certificates as a mode of marketing.

I am embroiled in a never-ending battle with my own ‘wellbeing at the Bar’. On the good days, it is the best job in the world, offering flexibility, intellectual challenge and immense satisfaction. On the bad days, it leaves me feeling frazzled, anxious and irritable. I am obviously aiming for more of the good days, while recognising that the bad ones are sometimes inevitable. But as long as they are exceptional, they are not incompatible with an overall sense of ‘wellbeing’.

August at the junior legal aid Bar. Ask any barrister in their first five or six years of practice and they will recount what they have been told by their clerks since they were a pupil: ‘Don’t go on holiday in August. Stick around and you will pick up lots of work, as everyone else is on holiday.’ I have whole-heartedly heeded this advice every August since I joined the Bar as a pupil in 2015, and on 31 August every year I tell myself: never again.

 

I practise in mental capacity, community care and housing law. Many of my cases are urgent. My clients are always ‘vulnerable’ in one way or another: a child, a care leaver, a survivor of domestic violence, a disabled adult, a survivor of sexual or physical abuse, a person who is struggling with their mental health, a survivor of trafficking. Often, they are homeless or on the brink of homelessness. They are frequently destitute. Many of my clients have been failed by the State in some way: their care package has been cut, their services have been closed or they have been refused support that they are entitled to. They have all had their dignity trodden upon. They would all be voiceless without the services of their legal aid lawyers.

When my cases reach trial, they are normally short – a few days maximum. On the whole, my diary is packed with 1 or 2 hour hearings: largely in London but also in Leeds, Manchester, Lincoln, Wolverhampton, Bristol, or any other corner of England that has a county court.

I cannot describe a ‘typical’ day because there is no such thing. Throughout August, however, my days began at 5am, involved a long train journey to somewhere in England, a packet of mini-cheddars from the court vending machine for lunch, and crawling into bed at 11pm, with the following day’s alarm set for 4.45am because I was travelling somewhere even further away.

Frequently throughout August, I appeared in the Court of Protection twice a day: one two-hour hearing at 10am and another at 2pm.

On one particular Friday, my client for the 10am hearing was an 83-year-old man whose local authority had made an application to the court to place him in a care home, because he had dementia and his wife could no longer cope with looking after him at home. The previous week, he had jumped out of a first floor window because he accidentally locked himself into one of the rooms in their house. Although it was clear from the evidence that it wasn’t safe for my client to continue living at home, he was adamant that he wouldn’t go into a care home, so the local authority was seeking the court’s permission to let specially trained ambulance drivers restrain him in order to get him there.

Normally in these cases, I’m protected from just how distressing they are because my client doesn’t attend court. They are usually detained in a care home or hospital with no interest or physical or mental ability to attend court, so I am provided with typed instructions from the Official Solicitor, sanitised by Microsoft Word. In this case, my client did attend court. Although he had been assessed as lacking the mental capacity to make decisions about where to live, he was bright and articulate and made it clear that he did not want to go into a care home.

Nevertheless, the judge decided it was in my client’s best interests to move to the care home, and for him to be restrained en route if necessary.

Outside court, he sat with his head in his hands. He was 83 but looked like a child. Blinking back tears, I reassured him until his social worker took him back home.

I wanted to go back to chambers to process the morning’s events but I couldn’t. It was midday and the solicitor for my afternoon case was due to arrive at 1 o’clock.

By the time I left court it was 4pm. I went back to chambers as I was on the ‘out of hours rota’ for the evening, so I had to wait to see if a call came in to make a telephone application to the duty judge in the Administrative Court.

It being a Friday evening, a call did come in: a 17-year-old victim of child sexual exploitation had found herself street homeless. She had approached her local Social Services to ask for accommodation and they had refused. She had nowhere to sleep for the weekend.

I started drafting grounds for judicial review to challenge the local authority’s failure to accommodate her under s 20 of the Children Act, and preparing to make a call to the duty judge. Luckily, at 5.03pm, the local authority gave in and agreed to give her somewhere to stay for the weekend. I was relieved for the girl and for myself; I was off the hook.

That particular day is an extreme example but most of my August played out in a similarly busy manner. By the end of the month, I was exhausted. After two weeks on holiday, I returned with a renewed commitment to my version of ‘wellbeing at the Bar’.

For me, wellbeing looks like not being in court more than three times a week, having time to go to a yoga class a few times a week, cooking dinner at home most nights, taking a walk outside away from my desk every day, not working past 7pm or at weekends unless I really, really have to, not working on holiday, having time to properly think about my cases and breathe between cases – not just do them, one after another. To many barristers, that might sound like an unattainable utopia but it really shouldn’t.

I am obviously not able to achieve those boundaries all the time because that is the nature of the job, but if I can achieve them most of the time, I feel happy and fulfilled and my wellbeing is all the better for it.

It is not easy to say no as a junior barrister. There is constant pressure from the clerks to take on more cases. Senior members of chambers are frequently looking for juniors to assist them and there is often an expectation that if you are the chosen one, you will say yes – regardless of how busy you are, or how urgently their work needs done.

But, as Jo Delahunty said, ‘Senior members of the Bar have to give younger members the chance to say “no” to work overload.’ The same applies to clerks.

We are already carrying the weight of our clients’ trauma, enduring the stress of propping up a legal aid and justice system that is on its knees and suffering silently through bullying from our opponents and judges. We do not need the extra burden of worrying about saying ‘no’ to more work, or the extra layer of anxiety that extreme sleep deprivation provides us with. Thankfully my clerks respect me saying ‘no’ to overload, but I know that others don’t.

At this year’s Legal Aid Lawyer of the Year Awards, Rachel Francis – a family and immigration barrister – on collecting her award, made a ‘call to arms’ to members of our profession. ‘It’s time to acknowledge that our stress is real, our burnout is real and our vicarious trauma is real,’ she said.

Rachel is right. A Certificate for Wellbeing at the Bar will unfortunately not mean that papers arrive earlier, that deadlines will be extended, that court days are shortened or legal aid rates increased. What it should mean is that barristers can say ‘no’ to more work when they have reached their limits, and not feel judged for taking time out for self-preservation. That is my call to arms. 

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Mary-Rachel McCabe

Mary-Rachel McCabe is a barrister at Doughty Street Chambers. Her practice covers a broad range of social welfare law, including community care (adult and children’s social care), housing and mental capacity law. She tweets @MaryRachel_McC.