Glossary of terms

The law can be complicated and it is often described in technical terminology that many people might find unfamiliar. This glossary provides short definitions of legal terms you will find on this website.

Click on the term to read the definition.

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

 

A

Administrative law**

Part of public law, administrative law contains a set of standards for the exercise of authority that has developed through judicial decision-making. It provides ways to challenge the actions of various government agencies, for example by claims for judicial review.

Article 5

What is it?

Article 5 is part of the European Convention on Human Rights (ECHR). This, and other rights discussed below, are known as ‘Convention Rights’. The ECHR was a response to widespread flouting of human rights before and during the Second World War. Every person has a right under the Convention to liberty and security of person. The phrase is to be read as a whole, since it incorporates the right both to physical freedom and autonomy. Article 5 can be breached in certain cases, including in health and social care, provided it is ‘in accordance with a procedure prescribed by law’ Article 5(1) and that the person has the right to challenge the breach speedily to a court.

Where does it come from?

Aspects of the ECHR, such as the importance of liberty enshrined in Article 5, can be traced back to Magna Carta (1215) clause 29, which reads:

‘No freeman shall be taken or imprisoned or deprived of his freehold or of his liberties or free customs, or outlawed, or exiled, or in any manner destroyed, nor shall we go upon him, nor shall we send upon him, except by a legal judgment of his peers or by the law of the land.’

The health and social care condition is contained in 5(1)(e), which describes, in the language of the 1950s, ‘the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants.’

The other part of Article 5 that is central to health and social care is 5(4): Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Why is it important to social work and social care?

Article 5 is central to the legal frameworks that protect the rights of people lacking mental capacity who may be deprived of their liberty, in their own best interests. In particular, 5(1)(e) and 5(4) are clearly to be seen in the Deprivation of Liberty Safeguards, and also in authorisation by the Court of Protection of deprivation of liberty in situations where DoLS cannot be used.

What relevant case law do I need to know?

European Court of Human Rights (ECtHR), and British case law about deprivation of liberty is revisited in the Supreme Court judgement known as ‘Cheshire West.’ This case also clarifies and codified existing judgements to produce an ‘acid test’ to help identify when people lacking capacity is deprived of their liberty.

See: United Kingdom Supreme Court

P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19 (19 March 2014)

URL: http://www.bailii.org/uk/cases/UKSC/2014/19.html

Cite as: [2014] COPLR 313, [2014] 2 FCR 71, [2014] WLR(D) 140, (2014) 137 BMLR 16, [2014] 2 WLR 642, [2014] 2 All ER 585, [2014] AC 896, [2014] HRLR 13, [2014] Med LR 321, 137 BMLR 16, (2014) 17 CCL Rep 5, [2014] 1 AC 896, [2014] UKSC 19, [2014] PTSR 460

ICLR summary: [2014] WLR(D) 140]

https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf

RiPfA customer guide: What are the Deprivation of Liberty Safeguards?

 

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Article 8

What is it?

The text of Article 8 runs:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Where does it come from?

Article 8 is part of the European Convention on Human Rights (ECHR), which is incorporated into British law through the Human Rights Act 1998, which mirrors the clauses in the ECHR. The rights contained herein are often called ‘Convention Rights.’

Why is it important to social work and social care?

Article 8 is a qualified right and as such the right to a private and family life and respect for the home and correspondence may be limited. Any limitation must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.

Article 8 is too often breached in health and social care decision-making in a way that is not proportionate or necessary, for example, someone may be moved from their own home into a care home when there are less restrictive options to meet their needs, or people’s relatives are barred from visiting them in care homes on trivial grounds.

Article 8 is a broad-ranging right that is often closely connected with other rights such as freedom of religion, freedom of expression, freedom of association and the right to respect for property.

The obligation on the State under Article 8 is to refrain from interfering with the right itself and also to take some positive measures, for example, to protect the rights of people who receive services so that they can enjoy privacy.

Respect for one’s private life includes:

  • respect for relationships, eg, not preventing people who use services from living with or seeing people they care for, and not interfering in lawful relationships entered into freely and with capacity, where nobody is harmed;

  • the right to live according to one’s own beliefs and wishes unless harm is being done to others thereby;

  • respect for private and confidential information, particularly the storing and sharing of such information;

  • the right not to be subject to unlawful state surveillance (such as covert filming in private areas)

  • respect for privacy when one has a reasonable expectation of privacy. Right to respect for the home includes a right not to have one’s home life interfered with, including by unlawful surveillance, unlawful entry, arbitrary evictions etc.

The right to respect for ‘correspondence’ is updated to include the right to engage in phone conversations in privacy unless there are powerful reasons to prevent this.

What relevant case law do I need to know?

There are depressingly many cases that show how local authorities ignore the Article 8 rights of vulnerable people. Among them are:

Somerset v MK (Deprivation of Liberty: Best Interests Decisions: Conduct of a Local Authority) [2014] EWCOP B25

URL: http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

Cite as: [2014] EWCOP B25

Date: 6 July 2014

 

Essex County Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1 (07 January 2015)

URL: http://www.bailii.org/ew/cases/EWCOP/2015/1.html

Cite as: [2015] EWCOP 1

Date: 07 January 2015

 

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B

Best Interests

What are they?

Best interests are not defined in the Mental Capacity Act 2005 (MCA) since they are so specific to each individual and the situation they find themselves in. However, section 4 of the MCA does outline a check-list of matters to be considered. This checklist is mandatory except in an emergency.

Where do they come from?

This concept comes into the MCA from existing best practice, in particular from the recognition that best interests are holistic rather than just clinical. Best interests must be considered within the individual’s personality, life history, beliefs and values. Of particular weight, if they can be ascertained, are the person’s past and present wishes and feelings.

Why are they important to social work and social care?

A ‘golden thread’ running throughout the MCA is the requirement to intervene in someone’s rights as little as possible while meeting an identified need. Proper consideration of the best interests check-list ensures that everything is done to make a decision that is right for this individual and aligns as far as possible with their wishes and feelings.

What relevant case law do I need to know?

Most cases heard in the Court of Protection centre on the search for someone’s best interests. An interesting, and moving, case concerns whether or not to amputate the leg of a man who lacked capacity to consent to the surgery but who was passionately against it:

Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 (28 September 2015)

URL: http://www.bailii.org/ew/cases/EWCOP/2015/60.html

Cite as: [2015] EWCOP 60

 

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C

Case law and precedent

What is it?

Put briefly, all courts bind lower courts, and some courts, at least to some extent, bind themselves. The Court of Protection is a high court, therefore its expansions on the statute law bind lower courts, and by extension practitioners, into viewing matters in the same way. Appeals against Court of Protection judgments are heard in the High Court Family Division, and appeals against appeal court judgments are heard in the Supreme Court. In matters to do with human rights, appeals against the Supreme Court can be heard by the European Court of Human Rights.

Where does it come from?

Case law, particularly regarding precedent, creates a balance between the necessary independent discretion that a judge needs to interpret and apply the law on a case-by-case basis, and the rule of law which requires that people should be able to predict the legal consequences of their actions with some degree of certainty. While it is Parliament and not judges who make law, in effect the courts do make the law to a large extent.

Why is it important to social work and social care?

The Court of Protection is notable for the way it returns repeatedly to the statutory principles of the MCA and, for example, to the way the Act describes capacity and best interests. Judges make it clear that the Act’s empowering ethos is to be put into practice by real consideration of the principles and spirit of the Act. A major message for practitioners is to do likewise, using the Act and the Code of Practice. An additional requirement, however, applies to those acting as Best Interests Assessors (BIAs) under the deprivation of liberty safeguards, who are kept up to date on the changing detail of their role, and of others in the DoLS process, through mandatory annual case law updates.

What relevant case law do I need to know?

Staffordshire County Council v SRK & Anor [2016] EWCOP 27 (24 May 2016)

URL: http://www.bailii.org/ew/cases/EWCOP/2016/27.html

Cite as: [2016] Med LR 398, [2016] WLR(D) 300, [2016] 3 WLR 867, [2016] EWCOP 27, [2016] COPLR 504, [2016] Fam 419

 

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Court-appointed Deputy

If the court thinks that somebody needs to make future or ongoing decisions for someone whose condition makes it likely that they will lack capacity in the future, it can appoint a deputy to act for, and make decisions for, the person. The deputy’s authority should be as limited in scope and duration as possible. Deputyships are more often used to manage someone’s financial affairs. Deputies for health and welfare decisions are only required in the most difficult cases where

  • important and necessary actions cannot be carried out without the court’s authority, or

  • there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular health or welfare decisions.

A deputy can never refuse the provision or continuation of life-sustaining treatment for people who lacks capacity to decide for themselves whether to accept or refuse such treatment: such decisions must be made by the court. This is different from the power that a person may have given, with capacity, to someone chosen as a health and welfare attorney under a Lasting Power of Attorney (LPA): it is possible here for the person to give the attorney this specific power, if they choose to do so.

 

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Court of Protection

Section 45 of the MCA set up a specialist court, the Court of Protection, to deal with decision-making for adults, those aged 16 and above (and in a few cases for children) who may lack capacity to make specific decisions for themselves. This Court of Protection replaces the old court of the same name, which only dealt with decisions about the property and financial affairs of people lacking capacity to manage their own affairs. As well as property and affairs, the new court also deals with serious decisions affecting healthcare and personal welfare matters. As a ‘superior court of record’ the Court of Protection can establish precedent (it can set examples for future cases) and has shown an impressive ability to build up expertise and take a leading role in issues related to lack of capacity. It has the same powers, rights, privileges and authority as the High Court. When reaching any decision, the court must apply all the statutory principles set out in section 1 of the MCA. In particular, it must make a decision in the best interests of the person who lacks capacity to make the specific decision.

There is usually a fee for applications to the court, but these are waived for all challenges to a DoLS authorisation brought by the person subject to the authorisation or their representative.

 

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D

Deprivation of Liberty

What is it?

A person who requires necessary care or treatment, and who lacks capacity to consent to the arrangements that are needed to deliver that treatment, is deprived of their liberty if they are: 

  • subject to continuous supervision and control (all three elements must be present) and

  • not free to leave the premises (for example, relatives would not be permitted to remove them from the service).

Where does it come from?

This ‘acid test’ for deprivation of liberty (so called by Baroness Hale in her lead judgment in the Supreme Court case known as Cheshire West) is a clarification of existing case law from the European Court of Human Rights.

Why is it important to social work and social care?

The importance of this recognition of the level of restriction of people’s freedoms in health and social care cannot be overstated. Its importance underlines the MCA ‘golden thread’ of the search for less restrictive options to deliver services that meet the needs of someone lacking mental capacity to consent or refuse those services.

What relevant case law do I need to know?

United Kingdom Supreme Court

P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19 (19 March 2014)

URL: http://www.bailii.org/uk/cases/UKSC/2014/19.html

Cite as: [2014] COPLR 313, [2014] 2 FCR 71, [2014] WLR(D) 140, (2014) 137 BMLR 16, [2014] 2 WLR 642, [2014] 2 All ER 585, [2014] AC 896, [2014] HRLR 13, [2014] Med LR 321, 137 BMLR 16, (2014) 17 CCL Rep 5, [2014] 1 AC 896, [2014] UKSC 19, [2014] PTSR 460

ICLR summary: [2014] WLR(D) 140]

https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf

RiPfA customer guide: What are the Deprivation of Liberty Safeguards?

In March 2017, the Law Commission proposed an alternative to the Deprivation of Liberty Safeguards, the Liberty Protection Safeguards (LPS). Please see our summary of the proposals, here:

https://www.ripfa.org.uk/resources/case-law-summaries/case-law-mar2017/

 

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E

European Convention on Human Rights**

Setting out civil and political rights, the Convention was drafted in 1950 by the newly formed Council of Europe in the aftermath of World War II, following the UN Universal Declaration of Human Rights in 1948. This is why the rights contained here are often known as ‘Convention Rights’. The Convention came into force on 3rd September 1953 (a symbolic anniversary of the start of the Second World War) but UK citizens had to go to the European Court of Human Rights to claim the rights it enshrined. The Human Rights Act 1998 incorporated much of the Convention into domestic law. This means that public authorities must positively promote Convention rights, and citizens can defend these rights in UK courts.

European Court of Human Rights (ECtHR)

What is it?

This court is the final arbiter of human rights cases. It sits in Strasbourg, and has nothing to do specifically with the European Union (EU), whose European Court of Justice (ECJ) sits in Luxembourg. The ECtHR, and the ECHR, are the responsibility of the Council of Europe, a totally different legal entity from the EU. Hence the ECtHR hears cases against such countries as Russia, Turkey and Bulgaria as well as EU countries. There is no inevitability therefore that leaving the EU would mean the UK refusing to recognise this court and the Convention on which it rules.

Where does it come from?

This court exists to hear cases alleging breaches of the European Convention on Human Rights. Its role is to interpret and apply the Convention.

Why is it important to social work and social care?

This court has real historical significance to these areas, since the Deprivation of Liberty Safeguards (and their successor legislation) result directly from the string of cases culminating in HL v The United Kingdom, known as the Bournewood case after the hospital where Mr HL was detained without any way to exercise his Article 5 rights.

What case law do I need to know?

The following are crucial reading for BIAs and others concerned to protect the human rights of those using health and social care services. HL is the Bournewood case which led to recognition that the rights of people lacking mental capacity were not protected in the UK health and care system. The Stanev case, below, is extensively quoted by the Supreme Court in Cheshire West.

European Court of Human Rights H.L. v. THE UNITED KINGDOM - 45508/99 [2004] ECHR 471 (5 October 2004)

URL: http://www.bailii.org/eu/cases/ECHR/2004/471.html

Cite as: [2004] ECHR 471

 

European Court of Human Rights STANEV v. BULGARIA - 36760/06 [2012] ECHR 46 (17 January 2012)

URL: http://www.bailii.org/eu/cases/ECHR/2012/46.html

Cite as: (2012) 55 EHRR 22, [2012] MHLR 23, 55 EHRR 22, [2012] ECHR 46

 

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F

Fettered discretion**

Staff must reach an independent judgement about what decisions and actions are appropriate based on a full assessment and analysis of the facts of the specific case. Their decision-making must not be restricted by being bound to a fixed policy. This phrase is used with regard to advance decision-making under the Mental Capacity Act: a person with capacity aged 18 or above can make an advance decision to refuse treatment but cannot demand in advance, in a similar way, any specific treatment since that would ‘fetter clinical discretion’.

G

H

Human Rights Act 1998

What is it?

This Act does not incorporate the European Convention on Human Rights into UK law but does, to a large extent, make most of the rights under the convention enforceable in UK courts, while fully respecting the legislative supremacy of Parliament.

Where does it come from?

It came from the European Convention on Human Rights, as a way to enable UK citizens to ask for their Convention rights to be upheld in the UK courts rather than have to appeal to the European Court of Human Rights.

Why is it important to social work and social care?

Section 6 of the Act makes it unlawful for a public authority (including local authorities and the courts, but not Parliament) to act in a way that is incompatible with Convention rights. Local authorities have a duty to proactively protect these rights for all their citizens. Social workers and providers of social care fall under this duty.

What relevant case law do I need to know?

Private providers of health and social care were not bound by the Human Rights Act due to a loophole: this meant that they did not have to consider the human rights of people receiving services. This loophole was closed by Parliament, meaning that private providers of services commissioned by a LA must honour the human rights of people using their services.

United Kingdom House of Lords Decisions YL v. Birmingham City Council& Ors [2007] UKHL 27 (20 June 2007)

URL: http://www.bailii.org/uk/cases/UKHL/2007/27.html

Cite as: [2007] 3 WLR 112, [2008] 1 AC 95, [2007] 3 All ER 957, [2007] UKHL 27

 

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I

Inherent jurisdiction*/**

The Family Division of the High Court has the power of itself (‘inherently’) to make declarations about a person’s health and/or welfare, authorising measures that are necessary and proportionate, where the Court of Protection does not have jurisdiction. Declarations may cover, for example, how a third party should act towards the individual (severing contact that is abusive) or where someone who is vulnerable to abuse but does not lack mental capacity to decide where and how they should live.

J

Judicial review*/**

The Queen’s Bench Division of the High Court hears claims for judicial review of public bodies. The court can only look at the way the decision was made, rather than (except in very rare circumstances) change the outcome of that process. With regard to how the decision was made, it will scrutinise the lawfulness, reasonableness and rationality of decisions taken by public bodies, which can result in their decisions being quashed.

K

L

Local government ombudsman*/**

A quasi-judicial investigation of an individual complaint, which may be critical of LA maladministration. It is the final stage of complaints about councils and some other providers of local services such as care providers. Recommendations are not binding but should not be departed from without good reason: councils and care providers nearly always follow recommendations by the Ombudsman.

M

Mental Capacity Act 2005

What is it?

The MCA applies in England and Wales, to people aged 16 and above. It provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make decisions that will affect their care if they may lack mental capacity in the future.

Where does it come from?

Many of the provisions in the Act are based on existing common-law principles (i.e principles that have been established through decisions made by courts in individual cases.) The Act clarifies and improves upon these principles, and builds on existing good practice.

Why is it important to social work and social care?

It is the essential framework for delivering health and social care services to people aged 16 and above. Its empowering ethos acts to protect the rights of the most vulnerable people, those who may lack mental capacity for certain decisions.

What relevant case law do I need to know?

In deciding cases, the Court of Protection returns repeatedly to the MCA itself and its statutory code of practice. To make decisions, social workers and others in health and social care must do the same, and get to know the Act and the code of practice intimately. Case law is important; but, since the basics of the MCA are still so poorly understood, and not securely embedded into practice, the essential knowledge for safe, effective practice within the MCA’s empowering ethos is contained within the Act and clarified, in a clear and useful way in the code of practice.

http://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpga_20050009_en.pdf

RiPfA customer guide, What is the Mental Capacity Act?

 

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Mental Capacity Act Code of Practice

Section 42 of the Mental Capacity Act required the production of a code of practice for the guidance of a range of people with different duties and functions under the Act. These include health and care professionals and officers of LAs with statutory responsibilities in relation to adult social care.

The code has statutory force, which means that certain categories of persons have a legal duty to ‘have regard to’ it when working with or caring for adults who may lack capacity to make decisions for themselves. As well as professionals as described above, they include Attorneys acting under LPAs, court-appointed deputies, anyone acting in a professional capacity for, or in relation to, a person who lacks capacity, and anyone being paid for acts for or in relation to people who lack capacity.

In requiring these groups of people to ‘have regard to’ the code, the MCA does not impose a legal duty on anyone to ‘comply’ with the code. But if they have not followed relevant guidance contained in the code, they will be expected to give good reasons why they have departed from it: ignorance of the code is unlikely to be an acceptably good reason for failure to follow the code’s guidance.

For the MCA code of practice (required reading for professionals in health and social care): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf

In March 2017, the Law Commission proposed an alternative to the Deprivation of Liberty Safeguards, the Liberty Protection Safeguards (LPS). This includes suggested reforms to the Mental Capacity Act. Please see our summary, here:

https://www.ripfa.org.uk/resources/case-law-summaries/case-law-mar2017/

 

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N

O

P

Practice guidance**

In England and Wales, this guidance is issued by central government departments. It does not have the same force as statutory guidance (policy guidance) but is, in essence, a code of good practice. It itemises what would ordinarily be expected of adult social care practitioners and managers.

Primary legislation*/**

Acts of Parliament that contain the basic framework of powers and duties given to LAs, and the rights that citizens have in their relationship with public bodies.

Proportionality*/**

The principle that, using lawful authority, public authorities should intervene only as much as is necessary to achieve a legitimate goal, sometimes known as the least restrictive alternative.

Protection from liability

Staff in health and social care, and others such as police, have protection from liability under the MCA s.5 for actions towards or on behalf of people lacking capacity, provided that they reasonably believe

  • that the person lacks mental capacity to make the relevant decision even after all practicable help has been given, and

  • that what is proposed is in the best interests of the person, considered holistically and within the framework of the MCA s.4 check-list.

When these conditions are met, it is as though the person had given them consent, with capacity, for their actions. If the person is restrained, two further conditions must be met: see Restraint below.

In March 2017, the Law Commission proposed an alternative to the Deprivation of Liberty Safeguards, the Liberty Protection Safeguards (LPS). This includes suggested reforms to the Mental Capacity Act, including new limits to protection from liability. Please see our summary, here:

https://www.ripfa.org.uk/resources/case-law-summaries/case-law-mar2017/

 

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Q

R

Restraint

The MCA defines restraint as ‘the use, or threat of use, of force to make someone do something they are resisting, or the restriction of the person’s freedom of movement, whether they are resisting or not.’ Any action intended to restrain a person who lacks capacity will not attract protection from liability unless the following two conditions are met, in addition to the ones listed in Protection from Liability:

  • the person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity, and

  • the amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of that harm.

See Code of Practice 6.39 ff. Note that deprivation of liberty requires separate authorisation.

 

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S

Secondary legislation*/**

Provision also known as Statutory Instruments or Regulations that contains powers or duties that elaborate how primary legislation is to be understood and implemented.

Statutory guidance*/**

In England and Wales, this guidance, also known as policy guidance, is issued by central government departments under section 7, Local Authority Social Services Act 1970 and must be followed unless there are exceptional reasons to depart from it.

T

U

V

Vicarious liability**

Other than when acting as an Approved Mental Health Professional, it is the employer that is accountable for the actions of staff. In these circumstances an individual practitioner can only be held personally accountable if they have acted in such an unreasonable way that there is no professional justification. (See also: Protection from liability)

W

*Definitions taken or adapted from RiPfA’s Strategic Briefing on legal literacy:

Braye S and Preston-Shoot M (2016) Legal literacy: Strategic Briefing. Dartington, Research in Practice for Adults.

** Definitions taken or adapted from RiPfA’s Practice tool on legal literacy:

Braye S and Preston-Shoot M (2016) Legal literacy: Practice tool. Dartington, Research in Practice for Adults.

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