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3.13 Working with Vulnerable Clients
Most immigration clients should be considered as vulnerable, they are usually in a state of heightened emotion when they first meet with their adviser, and we are usually asking them to explain very personal and upsetting matters with someone they have not met before. There are different degrees of vulnerability and how best to support and assist our clients can be an area of concern and confusion, particularly to less experienced advisers. This sections provides a guide for dealing with vulnerable clients
A non-exhaustive list of clients who might be considered vulnerable might include:
- Victims of domestic abuse
- Alcohol or substance misusers
- Those with a physical disability or illness
- Those with a mental illness
- The elderly
- Those who do not speak English as their first language
- Those with a learning disability
- Cultural barriers
- Poor living conditions
- Isolation and lack of support networks
It may not be apparent at your first meeting that the client has any difficulty giving you instructions, but you have a duty of course to keep this under review.
Children will always be considered vulnerable clients or witnesses in any immigration case. There should always be a responsible adult with the child and it is usually a social worker from your Local Authority’s Children Department. You should not accept instructions from a child client unless they are accompanied by a responsible adult.
The starting point is always the presumption of capacity. A person should not be assumed to lack capacity due to age, behaviour, medical condition or because they couldn’t make a particular decision in the past.
In line with the Act anyone can assess capacity; however the person who assesses capacity should be someone appropriate to the decision or action in question. Whether it is necessary to carry out any assessment of capacity will depend on the nature of any proposed decision. If the decision is significant and capacity is an issue then you should follow the steps below.
Examples of significant decision may include:
- A decision to apply for voluntary return or assisted voluntary return
- Legal decisions for example a decision to withdraw an asylum claim.
- Decisions around support such as housing and financial support
When working with a client, if you have concerns about the client’s capacity then you should consider the following points.
Does the person demonstrate:
- An understanding of the information relevant to the decision?
- The ability to retain that information?
- The ability to use and weigh up the information to come to a decision?
- The ability to communicate their decision? (With support from a professional such as an interpreter or speech therapist, if required).
If you can answer ‘yes’ to all of the above questions without hesitation, and the issue has not been raised by anyone else, then there is no objective justification for seeking a capacity assessment, notwithstanding a known mental health condition. If the answer to one of the above questions is ‘no’ or ‘don’t know’ then you should seek a capacity assessment, following the steps in Part 4 below. Your answers to the 4 questions above, and your reasoning should be documented in a casenote.
Note: A person will not demonstrate an understanding merely by agreeing that they understand. You may need to ask questions to test their understanding. Similarly for retention and use of information. Communication issues will normally be more readily apparent. This requires only a ‘common sense’ approach as there is always the option to seek a medical opinion in cases of uncertainty.
If you have at any time carried out an assessment of the points above, you should notify your line manager, regardless of the result. Your line manager should consider your assessment and the seriousness of the decision to be made.
In line with the above section when a client is required to make a significant decision and there are concerns around their capacity to make this decision the caseworker (under the direction of the line manager) should obtain a formal assessment of the client’s capacity from a medical professional.
It is possible to obtain a medical opinion from a number of professionals. In many cases the appropriate referral route will be through the client’s GP who will then be able to refer on for specialist services. Alternatively you may be able to make a direct referral to a specialist service (such as a Community Mental Health Nurse) if the client is already a recipient of mental health services from the NHS or the local authority.
It is important to retain the trust of our client through this process, therefore we must obtain explicit consent from the client to request a medical opinion or assessment. It should be recorded on the client’s file that this consent has been sought and granted. Where the client does not consent to a medical opinion the case should be referred to the relevant Manager for a decision as to how to proceed.
When requesting reports, we must be aware of the delay this will cause to any service we provide and take the following steps to ensure that this is kept to an absolute minimum:
- Only request reports and assessments where strictly necessary.
- Request all reports and assessments promptly.
- Ensure all requests are clear, concise and unambiguous.
- Ensure insofar as possible that they are made to the right person.
- Chase reports where appropriate.
- Pay any associated fees promptly
The client must be kept informed throughout this process. We should write to the client to inform them of the current situation, the actions we are taking, the reasons we are taking this action and a likely timescale for resolution. A copy of this letter should be saved on the client’s file.
On receipt, medical opinions should be examined critically to ensure that the medical practitioner has properly addressed the issue of capacity and has demonstrated a sufficient understanding of the client’s circumstances. This is most likely going to be dealt with by a Senior Manager in your organisation.
This report brings together a range of resources, information and case studies for solicitors and law firms about providing services to people who are vulnerable. It includes an overview of how regulation and legislation apply when a legal services client is vulnerable.
Practice notes give you guidance on a range of important legal topics, helping you give your clients the best possible advice. They set out our view of good practice for our members.
A user guide for barristers working with vulnerable adult immigration clients to help them identify, assess and manage client vulnerabilities in line with good practice.
This factsheet will help you in identifying a potential lack of capacity, provide practical advice on obtaining evidence of capacity and steps that can be taken if the client is found to lack capacity. It also directs you towards further sources of information.
An Act to make new provision relating to persons who lack capacity; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes.