In July 2015, the Law Society published new guidance for solicitors to help them to meet the needs of vulnerable clients. (Practice note: “Meeting the needs of vulnerable clients”, dated 2 July 2015). This was in response to research undertaken by the Norah Fry Research Centre on behalf of the Legal Services Board, the Legal Services Consumer Panel and the learning disability charity, Mencap. This research concluded that the lack of experience in dealing with learning difficulties often means that lawyers struggle to provide vulnerable clients with the specialist support they need.
The Law Society’s guidance on vulnerable clients is intended to support lawyers. It helps assess individual clients’ needs and gives them the best access to the right legal services. It is essential reading for all practitioners, particularly those who do not assist vulnerable clients on a regular basis, and who are therefore less likely to have adapted their practices to provide the specialist support required.
Vulnerability can take many forms, such as: learning disabilities, poor physical health, immobility, mental health issues caused by an acquired brain injury or an underlying medical condition, communication difficulties, or the client being of advanced or young age.
Other aspects that may affect a client’s ability to make judgements could be subject to abuse of a sexual, physical, emotional and/or financial nature. They may be abusing alcohol or drugs, or heavily dependent on others for support. All of the above can impair their ability to provide instructions or make informed decisions.
The Law Society practice note focuses on three broad categories of vulnerable clients:
- Clients who have capacity to make decisions and provide instructions, but who require additional support to enable them to give instructions by virtue of a mental and/or physical disability.
- Clients who lack mental capacity to make decisions and provide instructions.
- Clients who are vulnerable due to undue influence or duress who may/may not have mental capacity to make decisions and provide instructions.
The action required is dependent on which category, outlined above, a client falls into and their specific needs.
A number of risks are present if a solicitor fails to recognise and meet the needs of a vulnerable client. The solicitor risks of failing to protect their client from abuse, which could have very serious long-term implications. The solicitor also runs the risk of failing to provide them with the necessary support they need, and it could limit access to the right legal advice. For those who lack capacity, they should appoint someone to act on their behalf to give instructions.
There is a risk that a claim under the Equality Act 2010 on the grounds of discrimination could be made, if a firm fail to make reasonable adjustments and provide access to the right legal services. They also run the risk that the validity of any transaction could be challenged, especially if they fail to satisfy a client’s capacity to instruct a solicitor and this is not appropriately documented. Complaints against firms could be made to the legal ombudsman, possibly leading to Solicitor Regulation Authority sanctions. In addition to this, you risk damaging your firm’s reputation if you are found to discriminate against vulnerable clients.
Guidance should not be ignored for vulnerable clients as this presents risks for both the client and the law firm.
Partner at Anthony Gold Solicitors
Nicola Gunn is a partner in the family and court of protection departments of Anthony Gold solicitors, and a trained mediator and collaborative lawyer.
Nicola is also an accredited specialist in children and financial issues through Resolution.