Sdrinis, Angela --- "Acting for vulnerable clients in abuse cases" [2018] PrecedentAULA 26; (2018) 145 Precedent 44

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ACTING FOR VULNERABLE CLIENTS IN ABUSE CASES

By Angela Sdrinis

INTRODUCTION

By their very nature, abuse cases involve dealing with vulnerable clients. A lawyer’s duty of care is heightened when acting for a vulnerable client.

Sometimes, the trick will be in identifying the particular vulnerability of the client. Even clients who have experienced abuse but appear to be not only functioning but successful may well be masking a range of vulnerabilities. At times, the vulnerabilities will include questions of capacity which may well have been caused or exacerbated by the injuries arising from the abuse.

These challenges can impact on how we take instructions, how we prepare the case and how we resolve a claim.

TAKING INSTRUCTIONS AND INITIAL INVESTIGATIONS

Before taking instructions in an abuse case, it is important to prepare the client for the process and to give clear advice about what is required. Lawyers should keep in mind that many survivors of abuse have been made to feel ashamed and guilty and that they were in some way responsible for their abuse. In this context, it can be difficult to get full disclosure from them.

Many survivors of historical abuse have coped with their trauma by burying their memories or compartmentalising what happened to them. Some will struggle to disclose details of more serious sexual assaults or focus on disclosing abuse at the hands of one particular perpetrator or institution, but will fail to disclose abuse by another perpetrator or abuse that happened in another place.

In the first instance, abuse clients must be made to feel safe; more than one consultation may be required before detailed initial instructions can be obtained.

Delay also continues to be relevant in abuse claims, notwithstanding the abolition of limitation periods in child abuse claims in many Australian states. In Connellan v Murphy,^[1] the Victorian Court of Appeal permanently stayed the plaintiff’s claim because of delay. While prejudice caused by the delay – including the fact that witnesses had died – was the relevant factor, inconsistencies in the plaintiff’s evidence assumed to be due to the passage of time were also relevant.

In historical abuse claims, clients can be assisted in giving clear and consistent instructions by narrowing dates and times of particular occurrences. For example, if a client is unclear as to when a particular incident occurred, they should be asked whether it happened close to their birthday, Christmas time, in school holidays or during a particular season (was the weather hot or cold?). Dates of particular occurrences can be narrowed down in years by asking about their proximity to significant historical or sporting events, what year they were in at school, or if they remember who their teacher or friends were at the time. Clients should also be asked to talk to family members who might be able to assist with times, dates and places. Detailed, accurate instructions can assist in corroborating allegations and dealing with inconsistencies in the evidence.

INVESTIGATING THE ALLEGATIONS

Clients should be informed that in a litigation process, prior inconsistent statements can go to credit and that it is therefore vital that a complete history is provided at the outset of the claim. Written statements including police statements, Royal Commission statements, medical and Centrelink records which might contain relevant histories should be obtained.

Any inconsistencies should be discovered and dealt with as early as possible. Where it is not possible to reconcile inconsistencies and the evidence is relevant and must be disclosed, any inconsistency should be put into context and explained.

Briefing letters to experts should outline the relevant history as accurately as possible. Expert reports in historical abuse claims can result in yet another version of events if not carefully and ethically managed.

Abuse clients can be frustrated by the process of collecting and reconciling the evidence and feel that lawyers are focused only on detail and that the requirement for detail in some way implies that their allegations are suspect. From the client’s perspective, the fact of the abuse, not the detail, is the only relevant factor. The client’s frustrations cannot be allowed to derail the forensic process, which is vital in any litigation but even more so in historical abuse cases. It can be helpful to explain the process, including the need for detail, prior to taking any statements.

CAPACITY

At common law, there is a presumption that every person over the age of 18 has legal capacity. This means that every adult is presumed to be able to understand advice and give instructions unless there are reasons why a lawyer should inquire further. The client’s vulnerability is a good starting point as to why lawyers may need to look more closely at capacity issues in abuse claims.

Allowing clients (where possible) to make decisions, and supporting them appropriately in doing so, is particularly important in abuse claims. It is important to remember that an aspect of all abuse claims is that someone, usually someone who was trusted or a person in authority, has in some way exploited your client’s vulnerability to enable the abuse to occur. The act of abuse often represents a loss of power and control for your client. It is important that lawyers acting for survivors of abuse assist the client in retaining power and control in the litigation process. This can, however, be a fine balancing act, particularly where life-long patterns of lack of trust, fear of loss of control and fear of authority have developed.

The importance of self-determination for this cohort of clients needs to be balanced with the duty to protect a client’s interests.

Law Society capacity guidelines are a good place to start when you have concerns about your client’s capacity to give instructions and understand advice.

The Law Institute of Victoria’s (LIV) Capacity Guidelines^[2] note that a person’s capacity may be affected by a number of factors, including:

• an intellectual disability;

• mental illness;

• a particular medical condition; and

• an age-related cognitive disability, such as Alzheimer’s disease.^[3]

The Guidelines also state that, as a general rule, capacity will be present where a client:

• understands the information relevant to the decision;

• retains that information;

• uses or weighs that information as part of the process of making the decision (using reasoned processes); and

• communicates their decision.^[4]

Capacity is a legal question and not a medical question, although medical opinion should be obtained where there are doubts about capacity.

The assessment of capacity must also be referable to the particular matter or legal transaction that is being considered. The High Court in Gibbons v Wright^[5] held that ‘the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument and may be described as the capacity to understand the nature of that transaction when it is explained’.^[6]

While your client might have capacity to understand advice and give instructions, there might be concerns that due to addictive behaviours (including substance abuse issues, gambling problems or other issues) your client might be likely to squander any settlement they receive. Any assessment of capacity should therefore also include your client’s capacity to manage his or her financial affairs. (Having said that, how a claimant chooses to spend his or her settlement monies is irrelevant, provided that the client has the capacity to manage his or her affairs.)

When a client refuses to accept that capacity is an issue and/or allow medical opinion to be obtained

While most clients with capacity issues will be accepting and understanding of this, some who suffer from particular mental illnesses may refuse to accept that their capacity is an issue.

This can be a difficult conversation, but it is important for a lawyer to discuss these concerns with a client in a clear and respectful way. In some cases – for example, where a client suffers from a mental health condition with paranoid features – they may be in denial, and will refuse to accept that there is a capacity issue, no matter how the subject is broached. In these circumstances, a lawyer has no choice but to cease to act and to confirm this in writing with a strong recommendation that alternative legal advice is sought.

The overzealous support person/family member

Where a client is vulnerable, a trusted family member or friend can be extremely helpful in assisting their loved one to understand advice and to make decisions. The availability of an appropriate support person can make a difference in borderline cases. According to the 2014 Victoria Law Reform Commission (VLRC) report, Guardianship,^[7] some people who struggle to make a decision alone might be capable of making their own decision with the support of a trusted person.^[8]

On the other hand, the overzealous support person may cause a lawyer to err on the side of caution if there is concern that the client is being bullied into making decisions which may not be in the client’s best interests.

It is important that where there are concerns about a friend or family member exerting undue influence on a client that you take the opportunity to speak to the client alone and, if necessary, explore the options regarding other trusted friends or relatives becoming the support person in the claims process. It is important to stress that you act for your client, that your obligation is to act in their best interests and follow their instructions only, and ensure that the support person’s role is similarly restricted to ensuring the client’s wishes are acted upon.

LITIGATION GUARDIANS AND APPROVAL OF COMPROMISE

Where the conclusion is reached that there is no capacity for the claim to proceed (whether or not proceedings are issued) a litigation guardian must be appointed.

The Supreme Court (General Civil Procedure) Rules 2015 (Vic) provide for the appointment of litigation guardians who must have no interest in the proceeding adverse to the interests of the person under a disability.^[9] Previously, a litigation guardian was required to consent to being responsible for any costs incurred in the proceeding. However, as a result of a recommendation by the VLRC,^[10] this is no longer a requirement in Victoria and consequently the process of finding an appropriate person who will be prepared to act as litigation guardian has become much easier.

Sometimes, finding an appropriate litigation guardian can be difficult. Some survivors of abuse (because of the impacts of the abuse) literally have no one in their lives who could fulfil this role or, if they do (for example, a child or a partner), they may be reluctant to expose their loved one to the full story and horror of their abuse.

Where a client has no suitable person in their lives to act as litigation guardian, there is no alternative but to seek to have the State Trustees or similar organisation appointed. However, this should be viewed as a last resort. State Trustees and other like organisations charge commissions and entail an extra layer of bureaucracy for you and your client to deal with.

If and when a settlement is arrived at and accepted by the litigation guardian on the plaintiff’s behalf, the compromise (including costs) must be approved by the court.^[11]

ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution (ADR) will often be the preferred option when dealing with vulnerable clients who have capacity issues. This is because even in cases where there is strong documentary or other evidence, in historical abuse claims the plaintiff’s evidence remains vital. If because of capacity issues you believe that your client will struggle to withstand the rigours of litigation and/or struggle to give evidence, ADR options should be explored.

The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) has recommended the establishment of a national redress scheme.^[12] The Royal Commission said:

‘Because of the nature and impact of the abuse they suffered, many victims of child sexual abuse have not had the opportunity to seek compensation for their injuries that many Australians generally can take for granted. While it cannot now be made feasible for many of those who have experienced institutional child sexual abuse to seek common law damages, there is a clear need to provide avenues for survivors to obtain effective redress for this past abuse.’^[13]

The Commonwealth government has announced the establishment of a national scheme.^[14] Redress or direct engagement with an institution will continue to be an attractive option for many abuse survivors, notwithstanding legislative reform throughout Australia making it easier to access the common law in historical abuse claims.

ADR and direct engagement with institutions should therefore always be considered as an option in historical abuse claims particularly where there are capacity issues.

Historically, direct engagement has meant that settlement sums have been lower than in claims where proceedings were issued. For example, evidence before the Royal Commission shows that between 1996 and 2015, the Catholic Church under the Melbourne Response paid 322 survivors an average of $32,000,^[15] whereas survivors who sued direct were in some cases able to achieve much greater payments. For example, the $750,000 in compensation paid to the Foster family who had issued proceedings^[16] despite the legal barriers that the Catholic Church was then seeking to rely on. The Foster family suffered terribly because of a notorious paedophile priest, Father Kevin O’Donnell. One of their daughters suicided because of her abuse and the other daughter Katie developed alcohol and drug issues and suffered a severe brain and other injuries when she stepped in front of a car whilst drunk. Katie would not have been able to give evidence in her case because of the extent of her cognitive and intellectual disability, even though at the time litigation was not an option anyway because of the legal defences available to the Catholic Church.

Before making a decision to issue proceedings, when acting for persons with capacity issues, an assessment should be made regarding the option of direct engagement. The advantages of direct engagement include:

• it minimises cost and risk in relation to costs;

• it is quicker and less stressful;

• it facilitates the development of protocols that are based on therapeutic justice models/restorative engagement, the aim of which are to take a survivor of abuse on a journey of healing rather than simply to hand over a cheque at the end of the process;^[17] and

• potential payments under in-house redress schemes have in some cases been increased to $150,000 in line with the Commonwealth government proposal,^[18] and other organisations (including the Victorian government, which has established an informal protocol), have no cap on payments and do not require that proceedings be issued.^[19]

Disadvantages with respect to direct engagement include that there is no compulsion on institutions to provide discovery or other information relevant to the claim which could be obtained through interlocutory processes or on subpoena. Settlements could still generally be perceived as lower than in cases where proceedings are issued.

CONCLUSION

Legal barriers have meant that acting for abuse clients in the past generally involved going cap in hand to institutions and virtually shaming them into making offers of settlement, with very few clients being prepared to take the risk of issuing proceedings and overcoming limitation periods, coming up against the ‘Ellis Defence’^[20] (enabling religious organisations to protect themselves from liability by arguing that they are not a legal entity that can be sued) and difficulties in proving historical allegations. Where clients have variable capacity, or their capacity is in question, issuing proceedings can present too many challenges.

The position today is much improved because of legislative change, changes in attitude and an abundance of information regarding institutional knowledge being made available publicly through the Royal Commission. However, historical abuse claims will always be complicated, expensive, difficult and stressful to run, not least because of the historical nature of the allegations and the vulnerabilities of survivors generally. The capacity challenges that this cohort can face are complex and are often/can be a function of the injury that the abuse caused. The suggestions above may help in resolving these challenges while meeting survivors’ needs.

Angela Sdrinis is the Principal of Angela Sdrinis Legal, Melbourne. She is an ALA member, a Personal Injuries Accredited Specialist and an expert in sexual and institutional abuse. PHONE [phone] EMAIL [e-mail].

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^[1] [2017] VSCA 116.

^[2] LIV, Capacity Guidelines and Toolkit: Taking instructions when a client’s capacity is in doubt (October 2016) available at <https://www.liv.asn.au/PDF/For-Lawyers/Submissions-and-LIV-Projects/2054_LPP_CapacityGuidelines_FINAL_WEB>.

^[3] Ibid, 2.

^[4] Ibid, noting s4 of the Powers of Attorney Act 2014 (Vic).

^[5] [1954] HCA 17; (1954) 91 CLR 423. See also above note 2.

^[6] [1954] HCA 17; (1954) 91 CLR 423, 438.

^[7] VLRC, Guardianship, Final Report 24 (2014) available at <http://www.lawreform.vic.gov.au/sites/default/files/Guardianship_FinalReport_Full%20text.pdf> .

^[8] Ibid, 121.

^[9] Regulation 15.03. Similar requirements exist in other jurisdictions, and local regulations should be consulted.

^[10] See above note 7, 576.

^[11] Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 15.08.

^[12] Commonwealth, Royal Commission, Redress and Civil Litigation Report (2015), Recommendation 26 available at <http://www.childabuseroyalcommission.gov.au/getattachment/432bbef3-498e-47ff-bfd0-48f66f087af8/Recommendations> .

^[13] Ibid, 4.

^[14] The Hon Christian Porter MP, Minister for Social Services, ‘National Redress Scheme’ (Press Conference, 4 November 2016) available at <https://christianporter.dss.gov.au/transcripts/20161104-redress-scheme>.

^[15] Commonwealth, Royal Commission, Report of Case Study No. 16: The Melbourne Response (July 2015), 139 available at <http://www.childabuseroyalcommission.gov.au/getattachment/232af799-8292-4709-a392-5d8bc7d3e77c/Report-of-Case-Study-No-16> .

^[16] Ibid, 150.

^[17] Melbourne Anglican Redress Scheme Terms of Reference 2016 (paper with author).

^[18] Ibid. See Report of Case Study No. 16: The Melbourne Response at above note 15.

^[19] Details with author.

^[20] Ellis v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] HCATrans 697.