5(C). What should I do if my client is being harmed?

The closed nature of mental health and social care institutions increases the risk of exploitation, violence and abuse occurring. Often these abuses are carried out with impunity, which means that perpetrators are not punished, so abuses continues unabated. The physical isolation of institutions, placement of people under guardianship and the inherent imbalance of power between residents and staff can all be contributing factors.

The risk of abuse may also be exacerbated by the residents’ disabilities which mean that they are not in a position to, or able to, complain to anyone. It may be that there is actually no-one to complain to. Further, it is not uncommon for litigation of this sort to result in threats, intimidation or harassment of the client by her/his guardian, staff or management of the institution, her/his family or from other sources. This may take the form of physical abuse or violence, or psychological or financial abuse, such as moving the client to an isolated institution in terrible conditions or selling off their assets.

Lawyers should be sensitive to the fact that different aspects of a client’s identity may increase their vulnerability to particular types of abuse and neglect. The impact of particular practices may be more pronounced for some individuals, causing psychological or physical trauma. For example, inadequate nutrition can have a more severe effect on children or older people than adults. Women are more susceptible to gender-based violence. HIV or other health status, and being from an ethnic minority can play a factor in violence and discrimination amounting to ill-treatment. People with combined physical and mental disabilities may be additionally susceptible to a range of abuses, some of which may be difficult to detect (e.g. feeding people whilst they are lying on their back with the potential of inducing choking).

Depending on the client’s instructions, the lawyer’s main aim is likely to get the client out of the institution and into the community. But when ill-treatment occurs, the most immediate obligation is to ensure that the client is safe. If the client tells the lawyer that they are at risk of being abused or neglected in the institution or the lawyer becomes aware of these violations during a visit, this section offers some practical steps the lawyer can take to protect the client in the short-term and to facilitate the litigation in the longer term.