Learning Outcomes
After studying this article, you will be able to apply the legal principles for assessing client capacity, recognise indicators of client vulnerability, and set out obligations regarding reasonable adjustments in the client care context. You will be prepared to identify risk areas, respond appropriately, and advise or act in line with best practice for SQE2 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. It is important to focus your revision on:
- 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
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.
- What is the key statutory test for mental capacity in England and Wales?
- Name two examples of reasonable adjustments a law firm may be required to make for a disabled client.
- State one legal obligation solicitors have when instructed by a client who may have impaired capacity.
- 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.
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 sets out a two-stage test:
- There must be an impairment of, or disturbance in, the functioning of the mind or brain.
- The impairment must mean the person is unable to understand, retain, use, or weigh information or communicate a choice.
If a client lacks capacity to instruct, you may need to involve a litigation friend, the Official Solicitor, or other protective measures.
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, language barriers, or non-disclosure of key facts.
Key Term: litigation friend
A person appointed to make decisions on behalf of an adult or child lacking capacity to conduct legal proceedings.
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.
Examples include:
- Providing documents in large print or easy-read formats
- Allowing extra time for appointments or explanations
- Arranging interpreters or advocates
- Modifying interview room arrangements
- Using plain English and avoiding jargon
Adjustments should be anticipated, not only made in response to requests. Always ask the client about any specific needs as early as possible and record adjustments made.
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.
Best Practice on Capacity and Adjustments
- Identify: Be vigilant for signs that a client may lack capacity or is at risk of disadvantage.
- Assess: Apply the correct mental capacity test whenever in doubt.
- Consult: Involve relatives, healthcare professionals, or appoint a litigation friend as the situation requires.
- Adjust: Offer practical support—longer meetings, clear language, supporting technology, or professional intermediaries.
- Record: Keep full notes of assessments, decisions, and actions taken to protect the client and evidence compliance with obligations.
- Review: Reassess capacity or adjustment needs as circumstances change during a case.
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.
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.
Key Point Checklist
This article has covered the following key knowledge points:
- The statutory test for capacity under the Mental Capacity Act 2005
- What vulnerability means and how to recognise it in clients
- The obligation to provide reasonable adjustments for disabled and vulnerable clients
- Practical steps to be taken when capacity or vulnerability is suspected
- The need to keep clear records of assessments and adjustments
Key Terms and Concepts
- capacity
- vulnerability
- litigation friend
- reasonable adjustments