Providing services to people who are vulnerable

A person with a vulnerability is usually described as someone who is at a higher risk of harm than others.

The statutory term 'vulnerable adult' describes people over the age of eighteen, towards whom the state has specific safeguarding responsibilities, such as:

• living in residential or sheltered accommodation
• receiving certain types of health and social care
• receiving certain types of welfare support
• detained in lawful custody.³

A number of solicitors and law firms regularly provide services supporting vulnerable adults, such as those specialising in the fields of mental health law, social welfare law or those acting as an attorney under a Lasting Power of Attorney. However, anyone providing legal services to the public could potentially be dealing with a vulnerable adult or their appointed representative in any type of matter, from buying a house to writing a will.

The statutory definition is very specific, but should not be your only consideration when thinking about how a person might be vulnerable.

You should also consider vulnerability in relation to:

• a personal characteristic, such as having a low income or a low level of literacy
• a situation, such as a bereavement or a threat of deportation.

The following personal characteristics and situations are examples of risk factors that could make someone more vulnerable. This is not an exhaustive list, and is based on suggestions from the Legal Services Consumer Panel, building on the British Standard on Inclusive Service Provision.⁴

In addition to these characteristics and situations, three other factors can make consumers particularly vulnerable in the legal services market.

• The knowledge gap between the general public and solicitors
• People often take legal advice at times of difficulty or stress
• It is often difficult for people to judge the quality of legal services, even after they have received them.

There are also some types of legal work where it is more likely that a consumer will experience difficulty or stress impacting their quality of life, such as asylum work.

Finally, vulnerability is not just about a person's situation; it can be caused or exacerbated by a solicitor or someone working in a law firm. For instance, if someone is persuaded to take forward an unmeritorious case, which results in costs they cannot meet. Another example could be if problems were caused by failure to make a proper reasonable adjustment.

There is no reason why a person meeting any of the definitions above should not receive a proper standard of legal service.

Helping vulnerable people to understand their legal problems and effectively access justice is of huge benefit in terms of upholding the rule of law and protecting the public. There are also benefits for firms and consumers alike, including:

• vulnerable people better understanding their legal matter and the likely outcome
• supporting the safety and wellbeing of vulnerable people
• a positive impact on the reputation of solicitors and law firms.

Below we outline your responsibilities under relevant regulation and legislation.

Regulation

SRA Principles

The Principles embody the key ethical requirements on firms and individuals who are involved in the provision of legal services. Of particular relevance to standards of service to people who are vulnerable are:

SRA Statement of Solicitor Competence

Our Statement of Solicitor Competence provides more detail on what a proper standard of service for people who are vulnerable means. The relevant sections are:

Legislation

The following legislation covers requirements when providing a service for specific groups of people who may be vulnerable.

Sometimes solicitors or law firms will have questions about whether a prospective or current client has the capacity to instruct them. It is necessary for them to consider what it means to act in the best interests of a client who may lack capacity.⁹

Under the Mental Capacity Act 2005 (MCA) and the MCA Code of Practice, if you think a client or potential client lacks capacity, you must not assume that this is the case. Instead, you should assess their capacity prior to taking any instructions, taking into account the principles set out in the MCA. ¹⁰

If after speaking to your prospective or current client you still have concerns about their capacity to make a decision, you may want to get an expert opinion.

Our Professional Ethics team can offer guidance on this as well.

Here are some real-life examples of what firms are doing to serve people who may be vulnerable. These do not constitute guidance or best practice but instead highlight some ideas you may consider using.

The examples illustrate that small changes can make a big difference to people.

Here at the SRA, we consider potential vulnerability when looking into reports of solicitor misconduct. One of the factors that influence our assessment is whether individuals are able to protect themselves against harm or exploitation.¹³

In terms of regulatory action, when a solicitor takes advantage of a person who may be vulnerable the Solicitors Disciplinary Tribunal considers this an aggravating factor and their judgement will reflect this.¹⁴

A serious aggravating factor in the case was the increasing vulnerability of [the client] when compared to the sophistication and experience of the respondent.

SDT judgement regarding a case of taking unfair advantage

The SDT noted in particular that the respondent had taken advantage of two of his clients, one of whom was especially vulnerable.

SDT judgement regarding a case of dishonesty offences

In determining the seriousness of the respondent's misconduct, the SDT had borne in mind the extent to which he had acted in breach of a position of trust with two very elderly and vulnerable clients.

SDT judgement regarding a case of taking unfair advantage

This report brings together some of the existing information on appropriate standards of service to people who may be vulnerable. However, we know there are evidence gaps such as whether standards of service change in different areas of law, or if certain groups are less likely to be treated fairly and in accordance with our competence statement.

To help address this, we are undertaking new research during 2016. We will look at the areas of law where solicitors and law firms are likely to encounter people who may be vulnerable.

This research will provide further evidence to support our role as a regulator in offering the right kind of public protection, as well as highlight areas of good and bad practice in the legal sector.¹⁵