- February 10, 2016
- By Ali Malsher
- 0 comments
Protecting the capable but vulnerable adult with an injury claim
In law, from time to time, solicitors dealing with injury claims come across clients who need additional help and support. The level of that support is not always immediately obvious.
If a client lacks capacity to make either financial or legal decisions, the Mental Capacity Act can be invoked subject to the proof of incapacity being supplied and a deputy (that is a person who will work on their behalf) can be appointed. They can deal with finance or welfare or both. Their job is to protect the client and work in their best interests.
If a person has full capacity and is able to deal with matters on their own, they are generally not considered vulnerable. They are free to take legal action to protect their position.
From time to time, however, it is possible to come across someone who has capacity legally, but is otherwise vulnerable to unscrupulous manipulation, undue influence, control and coercion.
This might, you would think, be more appropriate in family law than in injury claims. However, there are cases where the nature of the injury and the dynamics of the family environment combine to render someone with capacity completely unable to withstand pressure, influence or persuasion from family or “friends”, usually to their own detriment.
There are a number of cases dealing with vulnerable adults who otherwise would fall through the net. These are decisions about treatment options, marriage plans and property interests. All the things with which people are concerned. These are issues with which occasionally the court needs to provide assistance or from which the court needs to provide protection, depending on the circumstances.
A client who has been rendered deaf by negligence or accident for example, may not have learned to adapt to the new circumstances or may have a family who have not allowed him or her to do so. Listening and understanding sometimes complex ideas from a lawyer becomes more difficult.
If the person is surrounded by people who do not have their best interests at heart, when they come to discuss matters in detail, they may subsequently be provided with partial information, slanted for a particular view. This may place them at a significant disadvantage.
An elderly person dependant on limited close family for support may find that as the power in the relationship changes so does their welfare. By way of example, in a case called DL (DL v A Local Authority (2012) EWCA Civ 253, (2012) MHLO ) an elderly couple were deemed to be subject to undue influence by their son who, it was said, was actively seeking to get his father to sign over the property and his mother admitted to a nursing home. Both parents had capacity but both seemed unable to fully withstand pressure from the son. The court acted and provided a list of prohibited activities were noted.
Sometimes it is the very fact of close family relations which makes it harder for the vulnerable person. The pressure on such a person to allow close family access to funds or other benefits can be immense.
A person who has suffered a catastrophic injury from whatever source is inevitably more vulnerable. They may have physical disabilities which prevent them from dealing with matters in the same way. They may find that simple tasks such as accessing the post have become impossible.
Dealing with injured clients means looking at the whole case and that inevitably means the family dynamics. For the vast majority of clients, their families strive to provide assistance and service in the most difficult of situations and should be applauded for doing so. Occasionally, just occasionally over a lengthy period as the lawyer develops their knowledge of the people surrounding the client, a not so benign picture becomes apparent and then it is the duty of the lawyer to consider whether there is a legal mechanism to protect their client.
There often is. The High Court has the ability to make orders to protect the vulnerable and the Judges there are well equipped to do so. This can happen even where the vulnerable person has capacity to make decisions and to understand advice. A poor decision is just that. A decision made as a result of coercion is something quite different.
The effects of a catastrophic injury can be significant. They may not stop at physical disability or loss of employment potential. They may change the dynamics of the family and support network . Those who take claims forward should know they can be protected. Those who deal with claims should be vigilant to the need even if rare.
Sometimes it is simply necessary to look beyond the obvious.