Vulnerable Clients: Practical Guidance From A Regulatory Perspective
I recently represented Legal Eye at Today’s Wills and Probate Roundtable Meeting in Bristol, the lively discussions by experts in their field centered around the Court of Protection and Mental Capacity Assessments.
One of the areas hotly debated was a firm’s risk and responsibility when dealing with vulnerable clients. The focus was naturally on mental capacity given the agenda for the day, but further considerations were explored once the meeting was in full swing which looked at the wider risks associated to other types of vulnerable client such as those that may be acting under duress.
The constant assessment, evaluating and re-evaluation of a client’s needs becomes second nature to the experienced practitioner. This is often an internal process and not always fully documented on the client’s file unless an issue is identified. This was something that was acknowledged by the participating practitioners. Whilst this approach may appear to be sufficient in the majority of cases, it is only when something goes wrong, perhaps years later, that the pitfalls of not ‘showing your workings’ are exposed.
A bone of contention within the room was how far a practitioner should go to document their thought process of a client’s potential vulnerability on the client’s file.
It was discussed that a practitioner might be in difficulty in demonstrating that they had properly assessed the needs of the client if they had not documented their thought process. My view was that something as simple as a proforma checklist on the file cover might be sufficient evidence that an issue had been properly considered and discounted.
Whilst much of the discussion on the day centred around the practitioner’s assessment, I was keen to highlight the importance of all personnel within a firm having the skills to identify the needs of vulnerable clients and to take appropriate action. Even if that action is to escalate their suspicions of a vulnerability through the appropriate channels.
From a regulatory perspective, both individuals and firms have a duty to towards vulnerable clients pursuant to The Equality Act 2010, The Mental Capacity Act and for SRA regulated solicitors, the Statement of Competence. Lawyers must also be alert to their duties under the professional codes of their regulators.
It is important that a firm has a comprehensive vulnerable clients policy and procedure in place. This should set out the firm’s approach to dealing with vulnerable clients. There is no set definition of what a ‘vulnerable client’ is and as such it important that the firm gives guidance to personnel of what to look for and how to respond.
As soon as a firm becomes aware that a client is vulnerable or suffering from mental health issues or is otherwise incapacitated, the issue should be immediately escalated to the individual of appropriate seniority to determine the appropriate steps to take.
Vulnerability can arise from a variety of situations or circumstances throughout a person’s life. It could be as a result of bereavement or as a result of suffering mental or physical abuse , undue pressure being placed upon the individual, financial pressures or problems with hearing, sight and mobility or mental issues, it could also simply be due to the person’s age.
Firms may be informed of an issue directly by the client, have concerns of their own or be informed by another party such as a family member. Often it is support staff who have first contact with a new or prospective client and there maybe flags of a potential issue within that first enquiry.
In such cases it is vital that these issues are identified as early as possible and that the person is treated with sensitivity. Vulnerability can arise at any stage in the matter life cycle and the risk needs to be assessed throughout the matter.
As with any policy or procedure a firm has, they are only as good as the extent to which they are adhered to. They should be reviewed at least annually and updated where necessary. Personnel should receive regular training to ensure that the firm is not only fulfilling their regulatory duties but also safeguarding the reputation of the firm.
- Firms should have a comprehensive policy and procedure in place for dealing with vulnerable clients which should include reporting lines should a vulnerability be identified.
- All personnel should be familiar with the firm’s policy and procedure and receive regular training on how to identify and meet the needs of vulnerable clients. A cost effective way to ensure all staff are trained appropriately could a training webinar platform which tests understanding.
- Consider a proforma checklist on the file cover to be completed by the practitioner to ensure that key considerations of vulnerability, including mental capacity have been considered.
- Comprehensive notes recording relevant facts and key issues should be kept on the client’s file. If an issue is identified this should be set out and fully addressed in the note.
- A record should be kept of anyone the client has asked to be present with them (or that they were seen alone).
- If advice is declined in relation to a client either being accompanied or seen alone due to a particular suspected vulnerability, that advice should be followed up in writing explaining the advice and addressing the practitioners concerns.
For more guidance on how Legal Eye can assist you in relation to your vulnerable client policy, procedure or for details of our online Training Academy modules please get in touch and we will be happy to discuss your needs.