Client care, costs, and adjustments - Capacity, vulnerabilit...

Learning Outcomes

This article explains client care, costs, and adjustments in the context of capacity, vulnerability, and reasonable adjustments, covering:

• applying the MCA 2005 two-stage test and its statutory principles to assess, support, and document decision-specific capacity in practice
• distinguishing capacity to conduct proceedings from general cognitive ability, and recognising fluctuating capacity that may require reassessment
• identifying indicators of client vulnerability, including non-obvious verbal and non-verbal signs arising from age, disability, trauma, language, or social circumstances
• planning and implementing proportionate reasonable adjustments under the Equality Act 2010 in different client care and litigation contexts
• selecting and recording practical measures to support understanding, communication, participation, and client autonomy throughout the retainer
• managing cases involving protected parties, litigation friends, and the Official Solicitor within CPR 21 and related procedural guidance
• seeking and justifying court-based adjustments under CPR PD 1A and special measures regimes to facilitate meaningful participation and best evidence
• documenting assessments, advice, and adjustments to manage regulatory, ethical, costs, and complaints risk in SQE2-style client scenarios

SQE2 Syllabus

For SQE2, you are required to understand the practical application of capacity, vulnerability, and reasonable adjustment concepts when advising and representing clients, with a focus on the following syllabus points:

• assessing client capacity and understanding the applicable legal tests
• recognising client vulnerability and identifying common indicators
• applying the duty to make reasonable adjustments in client care and communication
• taking steps to ensure, record, and evidence best practice when a client has impaired capacity or additional needs
• choosing and implementing practical adjustments in legal processes, written communication, and representation
• applying Mental Capacity Act 2005 principles, including presumption of capacity, decision-specific assessment, and support to decide
• understanding the role of litigation friends, the Official Solicitor, and CPR 21 for protected parties
• identifying court-based adjustments for vulnerable parties and witnesses (e.g., CPR PD 1A and special measures under the Youth Justice and Criminal Evidence Act 1999)
• integrating SRA Standards and Regulations duties on effective communication, fairness, and service accessibility
• planning and documenting adjustments and capacity assessments to manage risk, costs transparency, and compliance

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the key statutory test for mental capacity in England and Wales?
2. Name two examples of reasonable adjustments a law firm may be required to make for a disabled client.
3. State one legal obligation solicitors have when instructed by a client who may have impaired capacity.
4. What actions must you take if you suspect a witness is vulnerable in a litigation matter?

Introduction

Capacity, vulnerability, and the duty to provide reasonable adjustments are core elements of client care for all lawyers. For SQE2, you must be able to assess a client's ability to provide instructions, recognise when additional support is needed, and put adjustments into practice. These responsibilities ensure that all clients, whatever their abilities or circumstances, are able to access proper legal support.

Effective practice is client-centred. Remain non-judgemental and objective, listen actively, and use professional discretion to tailor your approach. The quality of interviewing and advising—such as managing distractions, using plain language, and structuring information—can directly influence whether a client understands advice and can decide or instruct. Appropriate preparation and clear records underpin good decision-making and compliance with professional standards.

Capacity

A client's capacity to make decisions and give instructions is governed by statutory and professional rules. You will need to apply the correct legal test and act appropriately if there are signs of impaired capacity.

Key Term: capacity
The ability of a client to understand, retain, use, and weigh relevant information and communicate a decision.

The Mental Capacity Act 2005 (MCA) sets out a two-stage test:

1. There must be an impairment of, or disturbance in, the functioning of the mind or brain.
2. The impairment must mean the person is unable to understand, retain, use, or weigh information or communicate a choice.

The MCA also sets five overarching principles that you must apply:

• Presume capacity unless it is established otherwise.
• Do not treat a person as unable to decide unless all practicable steps to help have been taken without success.
• Do not treat a person as unable to decide merely because they make an unwise decision.
• Any act or decision for a person lacking capacity must be in their best interests.
• Choose the least restrictive option.

Key Term: best interests
The overall standard under the MCA for decisions made or actions taken on behalf of a person lacking capacity, considering their wishes, feelings, beliefs, and the least restrictive alternative.

Capacity is decision-specific and time-specific. A person may have capacity to decide on one issue (e.g., where to live) but not another (e.g., complex litigation strategy). Capacity can fluctuate; reassessment may be required when circumstances or health change.

In practice, support capacity by:

• Explaining information in simple, concrete terms; using visual aids or examples where appropriate.
• Breaking down decisions into smaller steps; verifying comprehension by asking the client to summarise key points.
• Allowing extra time and minimising distractions; checking understanding more than once.
• Using any suitable form of communication (speech, writing, sign, technology).

Document the steps taken to support decision-making, your observations, and the reasons for your conclusion. If there is ongoing doubt, seek medical input or a formal capacity assessment. In litigation, if a client lacks capacity to conduct proceedings, identify a suitable litigation friend under CPR 21. If none is available or appropriate, consider approaching the Official Solicitor.

Key Term: protected party
A person who lacks capacity to conduct proceedings and requires a litigation friend to act on their behalf under CPR 21.

Key Term: Official Solicitor
An independent officer who may act as litigation friend of last resort for protected parties where no suitable person is available.

If a client lacks capacity to instruct, you may need to involve a litigation friend, the Official Solicitor, or other protective measures.

Key Term: litigation friend
A person appointed to make decisions on behalf of an adult or child lacking capacity to conduct legal proceedings.

When a client lacks capacity to manage property or welfare decisions outside litigation, consider whether Court of Protection involvement, deputyship, or use of a valid lasting power of attorney is relevant to the advice or next steps.

Vulnerability

Some clients may be vulnerable due to age, mental health, learning disability, language, trauma, social isolation, or other factors. Vulnerability can affect the ability to understand legal advice or participate fully in legal processes.

Key Term: vulnerability
A circumstance in which a client may need extra support to engage with legal services due to factors placing them at particular risk of disadvantage or harm.

You must be alert to non-obvious indicators, such as hesitancy, confusion, distress, linguistic barriers, disclosure inconsistencies, fatigue, and signs of trauma. Vulnerability may manifest through non-verbal cues; pay attention to clusters of behaviours (posture, gesture, facial expression) and consider context and congruence with spoken words. Listening actively—reflecting and summarising—helps reveal core issues and build rapport.

Practical steps to address vulnerability include:

• Adjust the environment: choose a quiet, private space; reduce noise and interruptions; arrange seating to facilitate eye contact and comfort.
• Manage physical distractions: allow breaks; offer water or light refreshment; reschedule if the client appears fatigued.
• Use clear, jargon-free language and check comprehension regularly; invite questions and confirm understanding.
• Allow a supporter or advocate to attend if appropriate; consider intermediaries where communication needs are significant.
• Be trauma-informed: pace the interview carefully; avoid re-traumatising the client; acknowledge emotions while maintaining professional focus.

In litigation, vulnerable witnesses may require special measures under the Youth Justice and Criminal Evidence Act 1999 (e.g., screens, live link, removal of wigs/robes, intermediary assistance). Civil courts apply CPR PD 1A, which directs the court to identify vulnerability and make appropriate case management directions (e.g., modified questioning, breaks, sequencing of evidence, remote attendance, ground rules hearings when using intermediaries).

Key Term: intermediary
A communication specialist appointed to facilitate understanding and expression for vulnerable parties/witnesses, assisting the court to receive best evidence.

Reasonable Adjustments

Legal professionals have a duty to ensure clients with disabilities or particular needs are not placed at a disadvantage compared to others. This means making reasonable adjustments in how services are provided.

Key Term: reasonable adjustments
Practical steps taken to remove or reduce barriers faced by disabled or vulnerable clients in accessing legal services.

Under the Equality Act 2010, law firms are service providers with an anticipatory duty to make reasonable adjustments for disabled people. Adjustments should be considered proactively and not only upon request. Reasonableness depends on factors like practicality, effectiveness, cost, and resources. Do not charge clients for adjustments; passing costs of adjustments onto disabled clients can be unlawful.

Examples include:

• Providing documents in large print, easy-read formats, audio, or Braille; accessible PDFs and screen-reader friendly content.
• Allowing extra time for appointments or explanations and offering breaks.
• Arranging interpreters or communication support, including British Sign Language or intermediaries where indicated.
• Modifying interview room arrangements: quieter rooms, privacy, appropriate seating, and lighting.
• Using plain English and avoiding jargon; prefer active voice; be specific about timescales and actions.
• Offering remote meetings where travel or health is a barrier; providing step-free office access or home visits if practicable.
• Using visual aids (maps, diagrams, photographs) to convey complex information; remove them when no longer needed to reduce distraction.
• Adjusting questioning styles (e.g., funneling from open to focused questions) and verifying comprehension through summarising and client feedback.

Plan adjustments early. Ask about needs at the outset, record agreed measures, and review them as the case progresses. Where court adjustments are required, apply promptly and justify measures by reference to vulnerability or disability, explaining how the adjustments will facilitate participation and best evidence.

Worked Example 1.1

You are instructed by Mr King, whose son reports that Mr King forgets conversations and seems disorientated. Mr King attends the office, is friendly but cannot recall key facts about his matter. How should you proceed?

Answer:
You must consider the possibility that Mr King lacks capacity. Apply the Mental Capacity Act test by explaining the matter in simple terms and checking his understanding. If you remain concerned, postpone substantive advice, inform him and his son, and consider referring him for a formal capacity assessment.

Worked Example 1.2

A client reveals she struggles to read standard documents because of visual impairment. What are your immediate obligations?

Answer:
You must make reasonable adjustments—e.g., offer documents in large print, audio, or Braille—and check she can access all information needed to make decisions. Record the support provided in your file.

Worked Example 1.3

Your civil client appears unable to follow advice, repeatedly forgets directions, and becomes distressed when discussing proceedings. You suspect she cannot conduct the claim. What are your next steps?

Answer:
Assess capacity to conduct proceedings (decision-specific). Apply MCA principles, take practicable steps to support understanding, and record your assessment. If capacity is lacking, identify an appropriate litigation friend under CPR 21 (e.g., a family member). If none is suitable, consider an approach to the Official Solicitor. Seek directions from the court where necessary and avoid taking substantive steps without a litigation friend in place.

Worked Example 1.4

In a criminal matter, a key defence witness is a young adult with a learning disability. He is anxious, struggles with complex questions, and has inconsistent recall. How do you safeguard best evidence?

Answer:
Treat him as a vulnerable witness. Request special measures under the Youth Justice and Criminal Evidence Act 1999 (e.g., intermediary assistance, breaks, simplified questioning). Liaise with the court for a ground rules hearing and adjust your conference approach: quiet environment, short questions, confirm understanding, use visual aids. Ensure concerns and steps are documented.

Worked Example 1.5

A client discloses severe anxiety triggered by crowded environments and travel. A hearing is listed at a distant court. What adjustments can you seek?

Answer:
Consider remote attendance applications, alternative hearing venue, scheduled breaks, and seating arrangements to minimise distress. Engage early with the court under CPR PD 1A to justify directions based on vulnerability. In the office, arrange quiet rooms and staggered appointments. Record measures and keep the client informed about how adjustments will be implemented.

Best Practice on Capacity and Adjustments

1. Identify: Be vigilant for signs that a client may lack capacity or is at risk of disadvantage. Remain objective and avoid jumping to conclusions; use active listening to understand symptoms and potential causes of difficulty.
2. Assess: Apply the correct mental capacity test whenever in doubt. Support decision-making with clear explanations, time, and appropriate communication aids. Recognise that capacity is decision-specific and may fluctuate.
3. Consult: Involve relatives, healthcare professionals, or appoint a litigation friend as the situation requires. If no suitable person is available, consider contacting the Official Solicitor. Seek court directions where vulnerable participation may need case management.
4. Adjust: Offer practical support—longer meetings, clear language, supporting technology, remote options, accessible formats, or professional intermediaries. For witnesses, request special measures and ground rules hearings when appropriate.
5. Record: Keep full notes of assessments, reasons, and actions taken to protect the client and evidence compliance with obligations. Confirm agreed adjustments in writing; update cost information transparently, ensuring adjustments are not charged to disabled clients.
6. Review: Reassess capacity or adjustment needs as circumstances change during a case. Evaluate whether adjustments remain effective and refine as needed; build in contingency planning for implementation.

Exam Warning

If you fail to recognise lack of capacity or neglect to provide a reasonable adjustment, this may result in sanctions and adverse outcomes for both your client and you. Always act promptly and document your reasons for the steps taken. Ignoring capacity concerns can invalidate instructions or lead to procedural irregularities. Overlooking vulnerability can compromise evidence, risk unfair proceedings, and attract judicial criticism. Poor records can undermine your position in complaints or costs disputes.

Revision Tip

Make sure you can explain and apply the statutory test for capacity and give 3 clear examples of reasonable adjustments in different practice contexts for the exam. Practise framing adjustments within Equality Act duties and procedural rules (CPR PD 1A, YJCEA).

Key Point Checklist

This article has covered the following key knowledge points:

• The statutory test for capacity under the Mental Capacity Act 2005 and its five principles
• Capacity as decision-specific and time-specific; support to decide and fluctuating capacity
• What vulnerability means and how to recognise it in clients using verbal and non-verbal indicators
• The obligation to provide reasonable adjustments for disabled and vulnerable clients and the anticipatory duty under the Equality Act 2010
• Court-based adjustments for vulnerable parties and witnesses, including CPR PD 1A and special measures under the YJCEA 1999
• The role of litigation friends, protected parties, and the Official Solicitor in civil proceedings
• Practical steps to be taken when capacity or vulnerability is suspected, including support, referral, and case management
• Best practice in interviewing and advising: clear language, structured questioning, managing environment and distractions
• The need to keep clear records of assessments, adjustments, costs information, and review points

Key Terms and Concepts

• capacity
• vulnerability
• litigation friend
• reasonable adjustments
• best interests
• protected party
• Official Solicitor
• intermediary