Acting for a client who you believe has mental health issues or is vulnerable can be challenging. Knowing what assistance is available is a good first step but it can still be a difficult conversation to encourage a client to seek further help. You can find out more in our guidance on acting for vulnerable clients.
On some occasions, solicitors will have to consider more immediate action if, for example, there is a suggestion that the client will harm themselves or others.
If you believe that your client intends to harm others, you will need to balance the duty of confidentiality to your client with the public interest in preventing harm. You should consider carefully the information available to you and whether this clearly identifies a proposed victim or a serious criminal offence which will occur. If it does, then you should report this to the police or to another appropriate authority on the basis that the duty to maintain client confidentiality does not apply to information about any crime a client indicates they will commit.
It could be more difficult to decide what to do if the client says they will commit suicide or self-harm, neither of which are crimes. A client could threaten self-harm but later claim that their confidentiality had been breached when the police or social services intervene.
If you believe the client intends to commit suicide or serious self-harm and there is no other way of dealing with the issue, you could consider seeking consent from the client, if appropriate, to disclose the information to a third party so that help might be given. Where it is not possible or appropriate to get consent, you may decide to disclose that information without consent.
It is a very personal decision. You must consider whether the threat to the person’s life or health is sufficiently serious to justify a breach of the duty of confidentiality. Some solicitors would prefer to breach the confidentiality of a client who had threatened to harm themselves, even if in so doing the client made a complaint. Others might view reporting a client’s threats as an invasion of that individual’s right to privacy.
If you are considering disclosing information without your client’s consent, you should:
- consider whether the appropriate course is to discuss your concerns with the client to gain agreement to steps to prevent the harm
- consider the most appropriate person to disclose your concerns to, for example a family member, the client’s doctor, social worker, police or other public authority
- limit the amount of information being disclosed to that which is strictly necessary
- keep a careful attendance note detailing your concerns and the factors that you considered prior to making the disclosure - this should include the reasons why you considered that it was not appropriate or practicable to obtain your client's consent to the disclosure.
After you make a disclosure, you should consider whether it is appropriate to disclose to the client that you have passed confidential information to a third party. Your fiduciary duty to clients makes your position very difficult if you have disclosed their confidential information to others without their consent. Where you believe that disclosure would result in risk of harm to your client or a third party, or would prejudice an investigation, you may feel it would not be appropriate to inform the client.
Protection of confidential information is a professional obligation for Scottish solicitors and is set out in rule B1.6 which states:
"You must maintain client confidentiality. This duty is not terminated by the passage of time. You must also supervise your employees to ensure that they keep client matters confidential. Only the client, Acts of the legislature, subordinate legislation or the court can waive or override the duty of confidentiality.The duty does not apply to information about any crime a client indicates they will commit.”
It is also referred to in the key professional principles set out in section 2 of the Legal Services (Scotland) Act 2010.
Unless your client gives consent to disclosure, confidential information may only be disclosed where the law permits e.g. by statute. Confidentiality is a privilege which is exercisable by the client and can therefore be waived by the client. It covers matters which are actually confidential and not in the public domain. The obligation extends to supervising both staff and outsourced providers.
Disclosure of confidential information which is unauthorised by the client or by the law could lead to disciplinary action against you and could also render you liable, in certain circumstances, to a civil action arising out of the misuse of confidential information. A solicitor who volunteers confidential information must be prepared to show powerful justification for breaching the client’s confidentiality.