The complexities of applying legal literacy in practice
Suzy Braye and Michael Preston-Shoot
Primary and secondary legislation, central government guidance and judicial decisions provide essential frameworks for the commissioning and provision of adult social care. But legal rules must be interpreted and applied in complex situations requiring the exercise of professional judgement. This skill is called legal literacy.
Practitioners and managers have particular responsibilities here; they must themselves have a high level of legal literacy, and also facilitate the legal literacy of others within their organisation and the multi-agency arrangements within which they work. A new Practice Tool will support them in achieving this.
Legally literate practitioners and managers, whether working in the public, private or voluntary sector, will have in-depth knowledge and understanding of the statutory powers and duties under which adult social care is provided, and be able to recognise when those powers and duties are engaged. This must be complemented by understanding of the rights codified in the European Convention on Human Rights and Fundamental Freedoms, now incorporated into UK law through the Human Rights Act 1998. They must pay due regard to duties in the Equality Act 2010, especially the public sector equality duty as a central element in counteracting discrimination and promoting equality of opportunity in the provision of services. When acting under statutory authority to meet people’s care and support needs, or to protect them from harm, intervention must be lawful, proportionate, reasonable and rational. Case law is helpful in understanding how these requirements can be met.
On top of this, there are standards of professional conduct for staff registered with the Health and Care Professions Council and other regulatory bodies, and consequent obligations on practitioners and managers to ensure that they and other staff will be able to meet the requirements of their codes of practice. For added complexity, knowledge of the law and skills in its use on their own are insufficient for good practice. Alongside legal literacy, ethical, professional, relational, knowledge, emotional and organisational literacies are needed to ensure that each unique situation is appropriately understood and responded to.
Developing and maintaining legal literacy may feel daunting, especially as the law is in a constant state of change and evolution. However, learning law and appreciating its possibilities and limitations can also prove enjoyable and stimulating. In the hope of demonstrating this, this Practice Tool invites you to test your knowledge and to think through how you might respond to particular situations. It defines legal literacy and outlines its importance. Cases are used to pinpoint standards for decision-making and the lawful use of statutory authority. A quiz and self-audit will enable you to evaluate your knowledge and to use the outcomes for personal knowledge and skill development. In a framework for making good decisions, the tool enables you to bring together law, values, rights, professional standards and case law in constructing and defending a legally literate intervention.
We have also included links to resources to help you to remain up-to-date with developments. There are useful ideas for how you can embed legal literacy in your practice. The aim is for the Practice Tool to provide information and guidance with which practitioners and managers can maintain their own legal literacy and ensure that their organisation acts lawfully when commissioning and providing services to meet people’s care and support needs. We hope that you will use it actively for yourself and with others in your professional and organisational networks.
About the author(s)
Michael Preston-Shoot and Suzy Braye are co-authors of the newly published RiPfA Legal literacy: Practice Tool and the Legal literacy in adult social care: Strategic Briefing.