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Unsafe advice from the Solicitors Regulation Authority on confidentiality

The challenge of revealing confidential information about ‘clients’ who lack capacity to third parties. The SRA advice places lawyers at risk.

This article is written by Desi Williams one of our accredited mental health tribunal representatives.

I attended a Mental Health Lawyers Association 2 day MHT accreditation course in Leeds. At this course, the issue of the SRA updated Code of Conduct was raised. (Version 19 1st October 2017)

Chapter 4 relates to ‘Confidentiality and disclosure’. Outcomes O(4.1) states

‘you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents’.

This seems very clear. However, on reflection it fails to address some fundamental points

The updated Code of Conduct does not list situations where disclosure may be necessary as opposed to the previous version which included an exhaustive list. We were advised that this is being taken up with the SRA by the Law Society. This therefore creates confusion.

Following the course, I have looked at the SRA, ‘Ethics guidance: Disclosure of client’s confidential information’ (5/2/2016)

This deals specifically with the issue of O(4.1). From this document, disclosure may be justified for conduct purposes:-

Where a client has indicated their intention to commit suicide or serious self harm
Preventing harm to children or vulnerable adults
Preventing the commission of a criminal offence
Within these chapters there is clear guidance on expectations in relation to disclosure. The guidance states:

‘In the circumstances described, there will be a breach of your duty but from a disciplinary point of view, the justification will be taken into account and is likely to mitigate against regulatory action’.

To indicate that even in these extreme situations there is a breach but at your disciplinary hearing you can argue it was justified, is not very reassuring. It could also lead to solicitors, fearful of the professional consequences, withholding information that could have very serious consequences. It does not distinguish between those who have capacity and those who lack capacity.

I therefore asked the SRA to clarify this fundamental point. My query was an example where we would be appointed by the Mental Health Tribunal under Rule 11(7)(b) Tribunal Procedure Rules, to act for someone who did not have the capacity to represent themselves, therefore our role is to act in a ‘best legal interests basis’ of the person. Rule 11(7)(b), states:-

‘the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient’s best interests for the patient to be represented’.

I enquired – If you are appointed by a Tribunal under Rule 11(7)(b), what would be the correct course of action if you felt you had received information which may need to be disclosed bearing in mind you are in effect not taking instructions as a solicitor/client retainer.

The response I received from the SRA was that:-

You owe your client a duty of confidentiality. There are limited situations where a breach of confidentiality may be justified… you must be satisfied that the risk to genuine and sufficiently serious to justify a breach of the client’s confidentiality…. On the subject of confidentiality, there would need to be a genuine risk that a criminal offence resulting in serious harm [my emphasis] would occur. ie not simply any criminal offence.

What the SRA were unable to provide guidance on was the issue of your ‘client’. A client provides instructions – if you are appointed under Rule 11(7)(b) you are in effect no longer solicitor for your client but litigation friend?

In the case of YA v CNWL, Mr Justice Charles stated at paragraph 81:

‘I agree with Upper Tribunal Judge Rowland that a close analogy can be made between a legal representative appointed under Rule 11(7) for a patient who lacks capacity to give instructions on all relevant matters and that of a litigation friend appointed by the civil courts for a party.  This is because, albeit that their roles are differently described both are appointed pursuant to rules to perform functions on behalf of and in the best interests of a party to proceedings who lacks capacity to conduct them.  In my view, the purpose and effect of Rule 11(7) is to provide in mental health cases an equivalent procedure to the appointment of a litigation friend by civil courts to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered in them’.

For a client with capacity, if you find yourself in a situation where you feel that you should reveal confidential information that meets the O(4.1) (above), the first step must be to seek the client’s instructions in relation to disclosing this. If your client then does not agree to this, you should then explain that you must disclose this information because of your professional obligation and seek instructions as to whether the client still wishes for you to represent them.

But what should be the professional situation when acting for an incapacitated person?

If the SRA were aware of the provisions of the Mental Capacity Act surely the decision to share information (all information received from the ‘client’ is confidential/privileged) is a best interest decision and the lawyer is the decision maker. That would mean that we would have to balance the advantages and disadvantages of sharing information from the client, weigh this up in best interests and then make a decision.

If you believe you require some clarification in relation to ethics type issues, by accessing the SRA website, you are able to have an online chat with an ethics advisor – perhaps the transcript could be printed and placed on your file to show you have considered this adequately. However the advisor can only reflect the SRA guidance.

This is as important when representing people detained under MHA where extremely sensitive issues occur daily.

To have the threat of acting unprofessionally in a common situation like this suggests to me that the SRA are letting down representatives and potentially impeding our ability to represent those who lack capacity.

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