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How can one assess whether a client is vulnerable?
A vulnerable person is anyone aged 18 and over who needs assistance because of mental or other disability, age or illness, is unable to take care of him or herself and is unable to protect themselves against significant harm or exploitation.
Munby J defined “vulnerable” in the case of Re SA (vulnerable adult with capacity: marriage) EWHC 2942 (Fam) as:
“[…] being an adult which includes those who even if not incapacitated by mental disorder or mental illness is or is reasonably believed to be either under constraint or subject to coercion or undue influence or for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice or incapacitated or disabled from giving or expressing a real and genuine consent.”
A lawyer cannot identify legally those who are vulnerable. They can only use their common sense, experience and if possible medical advice.
What are the risks if an advisor fails to recognise a client as vulnerable?
Abuse of a vulnerable client goes against a person’s human and civil rights. It can take many forms and the effects can be severe and wide-ranging. It could be:
The advisor can do as much as they can to recognise abuse but it must be remembered that we are not healthcare or social services professionals.
What should be your first considerations once a client has been identified as vulnerable?
When working with clients who lack capacity it is important to always report suspicions of abuse to the relevant agency – for example, the vulnerable adults department at the Department of the Social Services and, if necessary, the police.
There are different people involved who could abuse a vulnerable person. For example, an appointee – someone who is appointed to collect or make use of social security benefits on behalf of a vulnerable person – is a valuable helper provided of course they do not “dip into” the patient’s funds.
Equally if they had any concerns about an attorney or deputy they would need to notify the Office of the Public Guardian and again, if necessary, the police.
Concerns could also be about possible ill-treatment or wilful neglect, care standards, health care or treatment. In these cases advisors would need to speak with the carers and find out what support they need and then act accordingly.
What additional measures should be put in place to ensure an advisor is acting appropriately?
The Mental Capacity Act 2005 (MCA 2005) helps protect vulnerable people in a wide range of ways. There are registers of lasting powers of attorney, enduring powers of attorney and orders appointing deputies that ensure that responsible persons are appointed to make decisions concerning the finances, health and welfare of vulnerable people.
The Court of Protection oversees supervision of deputies and sends authorised visitors to check if they consider the deputy is not acting as they should – particularly in relation to financial affairs (there are very few healthcare Deputies appointed). The court does not send out random inspectors and so needs to be notified of impropriety.
The Court of Protection also deals with representations about the way in which the attorneys or deputies carry out their duties and addresses reported concerns by looking into and, if necessary, “locking” the deputyship or attorneyship until the investigations are dealt with.
MCA 2005 introduced a new criminal offence of ill-treatment or wilful neglect of a person who lacks capacity. This is intended to deter people from abusing, ill-treating or neglecting people who lack capacity. If convicted people can be imprisoned or fined.
Local agencies have procedures that allow them to work together to protect vulnerable adults in care settings and elsewhere.
Under the Safeguarding Vulnerable Groups Act 2006, criminal record checks are compulsory for staff in contact with, or who provide personal care and are involved in providing adult placement schemes for vulnerable adults.
Nicholas Buckman, mental capacity specialist at Blake Morgan, (Interviewed by Fran Benson.)
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
First published on Lexis®PSL
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