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After a summer of controversy, the Connecticut Bar Examining Committee is no longer asking applicants to disclose whether they have been diagnosed with or hospitalized for “clinical depression” in the past five years. That question was added for this year’s July bar, in question 44, which includes depression with bipolar disorder, schizophrenia, paranoia “or any other psychotic disorder/condition.” Raymond W. Beckwith, who chairs the CBEC, said the committee decided in its Sept. 22 meeting to remove the offending language from the questionnaire for the upcoming Feb. 2001 exam. “The question that has the word depression in it is the one that’s changed,” he confirmed. As a matter of definition, Beckwith clarified, the term depression “would not be a psychotic condition.” He said the CBEC continues to review its questions, and would not rule out asking about depression in the future. Jon Bauer, a University of Connecticut School of Law professor who has repeatedly challenged the questionnaire language, says erasing “depression” is a positive step, but one that “only puts things back where they were a year ago.” Bauer has filed a complaint with the U.S. Department of Justice’s Civil Rights Division on behalf of one successful bar applicant, Rose M. Gower, who is seeking to have her record expunged, and to have three other overly invasive questions modified. Two other Connecticut applicants have also filed complaints with the Civil Rights Division through the state Office of Protection and Advocacy for Persons With Disabilities. Their lawyer, Catherine E. Cushman says, “The questions should only focus on present character and fitness.” One of Cushman’s clients is a practicing lawyer protesting special reporting requirements attached to her conditional license. The other is a law graduate who decided only to apply in New York and Massachusetts, which ask less invasive questions than Connecticut’s, and do not require release of all mental health treatment records. The bar examiners’ file, Cushman notes, is available to the Character and Fitness Committee. Justice Department lawyers who are reviewing the Connecticut complaints had not returned a call for comment by press time. Bauer and Cushman are particularly concerned with open-ended questions which ask whether applicants have “ever” been dependent upon, treated, or counseled for drug or alcohol abuse, or admitted to a hospital for mental, emotional or nervous disorders. The questions are too broad, Bauer said in an interview. Some states limit their inquiry to treatment within the past year. Other states only ask whether the applicant has invoked a mental health or substance abuse defense in a legal or disciplinary setting. SOLID RATIONALE Just two years after the Americans with Disabilities Act became law, the American Bar Association passed a resolution aimed at states’ bar examiners, urging them to “tailor questions concerning mental health and treatment narrowly, in order to elicit information about current fitness to practice law.” Precise questions, it said, should not deter applicants “who would benefit from seeking professional assistance with personal problems and issues of mental health from doing so.” In the explanatory notes to that resolution, the ABA committee directly criticizes open-ended questions, without a time-frame. It states that “the drafters consider questions of the type that ask whether the applicant has ever been treated or counseled for mental illness, or whether the applicant has ever been institutionalized for such an illness intrude too far, and in any event, yield information of questionable value.” Questions that focus on treatment and hospitalization may have an unintended sexist or racist tilt, Bauer noted. In the Surgeon General’s 1999 report on mental illness, well-documented findings show that women are twice as likely to experience depression than men, and are also much more likely to seek professional help. Conversely, although the incidence of mental health problems is quite similar among whites, blacks and Native Americans, the minority groups are twice as likely to be hospitalized for treatment. “Hospitalization is not a good marker of severity,” says Bauer. “A lot depends on what insurance will cover. People who have HMO coverage may be excluded even if they could benefit from hospital treatment, whereas people who depend on emergency rooms for their medical treatment may get hospitalized.”

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