Essential Law for Counsellors and Psychotherapists

Books

Barbara Mitchels & Tim Bond

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  • Legal Resources for Counsellors and Psychotherapists

    Legal Resources for Counsellors and Psychotherapists is a series of highly practical books, themed around broad topics, which reflect the most ‘frequently asked questions’ put to the BACP's professional advice line.

    Books in the series:

    Therapists in Court: Providing Evidence and Supporting Witnesses

    Tim Bond and Amanpreet Sandhu

    Confidentiality and Record Keeping in Counselling and Psychotherapy

    Tim Bond and Barbara Mitchels

    Copyright

    View Copyright Page

    List of Checklists, Figures and Tables

    Acknowledgements

    We are indebted to all the lawyers, academics, insurance advisers and others who have assisted in providing information and resources for this book. It covers such a wide range of law and practice that we have really appreciated the ideas drawn from the collective experience of practitioners in the fields which we have addressed. In particular we thank Helen M. Watts, Advocate, for her contributions to the book on the law in Scotland. We would also like to express our especial gratitude to solicitors Rodney Nelson Jones and Philip Hook for reading through parts of the manuscript with a critical eye.

    We are also grateful to the many therapists from different backgrounds and settings who have shared their experience of how the law has helped or hindered them and all those who have discussed legal issues with us. There is no way of naming everyone individually but we hope that they will recognise some of their concerns addressed in this book.

    Trying to find the answers to some of the legal questions that have been posed to us has been challenging, and in particular we thank publishers Taylor & Francis, LexisNexis and Jordan publishing, who provided us with books and resources for legal research. In relation to insurance, we thank all who helped us, and in particular we thank Towergate and also Steve Johnson and Jo Mountain of Howdens for providing us with information and opportunities for discussion.

    Above all we are grateful to the expertise of the staff of BACP, especially to Grainne Griffin and John O'Dowd from the Professional Conduct Department, and Denise Chaytor, Kathleen Daymond and Wendy Brewer, who, with other members of the Information Services Team, drew on their experience of answering members' queries to inform us about many of the issues that they felt needed to be addressed in this book.

    Finally we want to express our appreciation to BACP, which has sponsored and supported the writing of this book throughout its creation. The ultimate responsibility for its content rests with us as the authors.

    BarbaraMitchels and TimBond
  • List of Cases, Practice Directions, Judicial Guidance, Statutes, Statutory Instruments and EEC Directives and Regulations

    Cases
    • Attridge Law v Coleman [2007] ICR 654. [2007] IRLR 88
    • Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1975] 1 WLR 582
    • Bolitho v City of Hackney Health Authority [1997] AC 232. [1997] 4 All ER 771
    • Brock v Wyner [2001] 1 WLR 1159, 2 cr App R 745
    • Davies v LHIM (1983) 335 NW 2d 481 Michigan Supreme Court
    • Doe v Roe and Roe [1997]; 400 NY p2d 668
    • Dunlop v Selfridge [1915] AC 847
    • Eastwood v Kenvon [1840] 11 Ad & El 438
    • Egdell and Others [1990] 2WLR 471
    • Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC 1212: [1985] 3 All ER 402 (HL) [1986] 1 FLR 224: [1985] 1 All ER 533 (CA): [1985] 3 WLR 830
    • Gore v Van der Lann [1967] 2QB 31. [1967] All ER 360
    • Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 3 WLR 101. [1964] AC 465
    • HIH v Chase Manhattan [2001] EWCA Civ 1250. 2 Lloyds Rep 483 at page 163. and [2003] UKHL 6 [2003] Lloyds Rep IR 230
    • Hornal v Neugerger Products Ltd [1957] 1 QB 247
    • Hunter v Hanley [1955] SC at 204
    • Joel v Law Union & Crown Insurance [1908] 2 KB 863 CA
    • Kelly v DPP [2002] EWHC Admin 1428 166 JP 621
    • Khorasandjian v Bush [1993] 3 WLR 476 (Court of Appeal)
    • Lampleigh v Braithwait [1615] Hob 105
    • Lau v DPP [2000] 1 FLr 799 DC
    • London Borough of Lewisham v Malcolm [2008] UKHL 43
    • Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34
    • Market Investigations Ltd v Ministry of Social Security [1969] 2QB 173
    • Mazza v Huffaker [1983] 300 SE2d 833 (NC)
    • McLoughlin v O'Brain [1983] 1 AC 410 at 431
    • Melhuish v Redbridge Citizens Advice Bureau [2005] IRLR 419, EAT
    • Nicholsen v Han [1968] 12 Mich. App. 35,162 NW 2d 313
    • Pettenden [1988] 7 CQJ 220
    • Phelps v Hillingdon London Borough Council [2000] 3 W.L.R. 776
    • Pratt v DPP [2001] EWHC 483
    • R (B) v (1) Dr SS (2) Dr G (3) Secretary of State for the Health Department [Admin. Ct.] [2005] 1 MHLR 347
    • R (B) v Ashworth Hospital Authority [HL] [2005] 1 MHLR 47
    • R v Cannings [2004] EWCA Crim 1. [2004] 1 WLR 2607
    • R v H (Assault of Child: Reasonable Chastisement) [2001] EWCA Crim 1024; [2001] 2 FLR 431
    • R v Instan [1893] 1 QB 453
    • R v Souter [1971] 1 WLR 1187, 2 All ER 1151
    • R v Thomas and Thompson 63 Cr App R 65 (CA)
    • Re W [2008] EWCA Civ 538 [2008] All ER (D) 258 (May)
    • Roy v Hartogs [1975]: 366 NYS 297. 300-301
    • S v DPP [2008] EWHC (Admin) 438
    • Sidway v Governors of Bethlem Royal Hospital [1985] AC 871 at 897
    • Tarasoff v Regents of the University of California [1976] (Sup. Ct. Cal. [1976];) 551 P 2d 334
    • W v Egdell [1989] 1 All ER 1089: [1990] Ch 359: [1990] 1 All ER 835
    • W v Egdell [court of Appeal] [1990] 2 WLR 471
    • W v Egdell and others [1990] 2 WLR 471
    • Werner v Landau [1961] Time Law Reports 8 March 1961: Solicitors Journal (1961) 105. 1008
    Practice Directions and Judicial Guidance
    • Practice Direction: (Family Proceedings: Experts) [Family Division] [2008] 1 WLR 1027 Practice Direction (Public Law Proceedings: Case Management) [Family Division] [2008] 1 WLR 1040
    • The Ministry of Justice: The Public Law Outline: Guide to Case Management in Public Law Proceedings (PLO) 13 February 2008. at http://www.justice.gov.uk/docs/public_law_outline.pdf
    Statutes
    • Adults with Incapacity (Scotland) Act 2000
    • Adoption and Children Act 2002
    • Age of Legal Capacity (Scotland) Act 1991
    • Care Standards Act 2000
    • Children Act 1989
    • Children Act 2004
    • Children and Adoption Act 2006
    • Children (Scotland) Act 1995
    • Child Support Act 1991
    • Civil Partnership Act 2004
    • Companies Act 1985
    • Compensation Act 2006
    • Criminal Justice Act 2003
    • Criminal Justice and Court Services Act 2000
    • Data Protection Act 1998
    • Disability Discrimination Act 1995
    • Disability Discrimination Act 2005
    • Drug Trafficking Act 1994
    • Education Act 1949
    • Education Act 2002
    • Electronic Communications Act 2000
    • Employer's Liability (Compulsory Insurance) Act 1969
    • Employment Act 2002
    • Employment Act 2008
    • Employment Relations Act 1999
    • The Employment Tribunals Act 1996
    • Equal Pay Act 1970
    • Family Law Reform Act 1969
    • Family Law (Scotland) Act 2006
    • Freedom of Information Act 2000
    • Health Act 1999
    • Health and Safety at Work Act 1974
    • Human Rights Act 1998
    • Interpretation Act 1978
    • Late Payment of Commercial Debts (Interest) Act 1998
    • Law of Property Act 1925
    • Law of Property (Miscellaneous Provisions) Act 1989
    • Limitation Act 1980
    • Local Authority (Social Services) Act 1970
    • Magistrates' Courts Act 1980
    • Mental Capacity Act 2005
    • Mental Health Act 2007
    • Mental Health (Care and Treatment) (Scotland) Act 2003
    • Minors' Contracts Act 1987
    • Misrepresentation Act 1967
    • Misuse of Drugs Act 1971
    • Occupiers Liability Act 1957
    • Occupiers Liability Act 1984
    • Occupiers Liability (Northern Ireland) Act 1957
    • Police Act 1997
    • Prescription and Limitation (Scotland) Act 1973
    • Proceeds of Crime Act 2002
    • Protection of Vulnerable Groups (Scotland) Act 2007
    • Protection of Children Act 1999
    • Protection from Harassment Act 1997
    • Race Relations Act 1976
    • Redundancy Payments Act 1965
    • Rehabilitation of Offenders Act 1974
    • Requirements of Writing (Scotland) Act 1995
    • Safeguarding Vulnerable Groups Act 2006
    • Sale of Goods Act 1979
    • Sex Discrimination Act 1975
    • Sexual Offences Act 1956
    • Sexua1 Offences Act 2003
    • Supreme Court Act 1981
    • Terrorism Act 2000
    • Trade Descriptions Act 1968
    • Tribunals, Courts and Enforcement Act 2007
    • Unfair Contract Terms Act 1977
    Statutory Instruments
    • Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276)
    • Children (Admissibility of Hearsay Evidence) Order 1993 (SI 1993/621)
    • Civil Procedure Rules 1998 (SI 1998/3132)
    • Civil Procedure (Amendment No. 2) Rules 2008 (SI 2008/3085)
    • Civil Procedure (Amendment No. 3) Rules 2008 (SI 2008/3327)
    • Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277)
    • Control of Asbestos Regulations 2006 (SI 2006/2739)
    • Data Protection (Subjects Access Modification) (Education) Order 2000 (SI 2000/414)
    • Data Protection (Subjects Access Modification) (Health) Order 2000 (SI 2000/413)
    • Data Protection (Subjects Access Modification) (Social Work) Order 2000 (SI 2000/415)
    • Data Protection (Processing of Sensitive Personal Data) Order 2000 (SI 2000/417)
    • Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013)
    • Electronic Signatures Regulations 2002 (SI 2002/318)
    • Employer's Liability (Compulsory Insurance) Regulations 1998 (SI 1998/2573)
    • Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752)
    • Employment Equality (Age) Regulations 2006 (SI 2006/1031)
    • Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)
    • Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467)
    • Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)
    • Employment Equality (Sexual Orientation) Regulations 2003 (Amendment) Regulations 2004 (SI 2004/2519)
    • Insurance Companies (Amendment) Regulations 1992 (SI 1992/2890)
    • Maternity and Parental Leave, etc Regulations 1999 (SI 1999/3312)
    • Mental Capacity Act 2005 (Appropriate Body) (England) Regulations 2006 (SI 2006/2810)
    • Money Laundering Regulations 2007 (SI 2007/2157)
    • National Health Service (Clinical Negligence Scheme) Amendment (No.2) (SI 2006/3087)
    • Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551)
    • Parental Responsibility Agreement Regulations 1991 (SI 1991/1478)
    • Paternity and Adoption Leave Regulations 2002 (SI 2002/2788)
    • Police Act 1997 (Criminal Records) (Registration) Regulations 2006 (SI 2006/750)
    • Police Act 1997 (Criminal Records) (Registration) (Scotland) Regulations 2006 (SI 2006/97)
    • Regulatory Reform (Fire Safety) Order 2005 (SI 2005/1541)
    • The Safeguarding Vulnerable Groups Act 2006 (Commencement No. 1) Order (SI 2007/3545)
    • The Safeguarding Vulnerable Groups (Northern Ireland) order (SI 2007/1351)
    • The Safeguarding Vulnerable Groups Act 2006 (Barred List Prescribed Information) Regulations (SI 2008/16)
    • The Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 (SI 2008/473)
    • The Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (SI 2008/474)
    • The Safeguarding Vulnerable Groups Act 2006 (Commencement No. 1) (Northern Ireland) Order 2008 (SI 2008/930 C. 45)
    • The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional provisions) Regulations 2008 (SI 2008/062)
    • The Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009 (SI 2009/12)
    • The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37)
    • The Safeguarding Vulnerable Groups Act 2006 (Commencement No. 2) Order 2008 (SI 2008/1320)
    • The Safeguarding Vulnerable Groups Act 2006 (Commencement No.3) Order 2009 (SI 2009/39)
    • The Safeguarding Vulnerable Groups Act 2006 (Devolution Alignment) Order 2009 (SI 2009/265)
    • The Safeguarding Vulnerable Groups Act 2006 (Commencement No.4) Order 2009 (SI 2009/1503)
    • The Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2009 (SI 2009/1548)
    • The Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Order 2009 (SI 2009/1797)
    • Unfair Terms in Consumer Contract Regulations 1999 (SI 1999/2083)
    • Working Time Regulations 1998 (SI 1998/1833)
    • Working Time (Amendment) Regulations 2001 (SI 2001/3256)
    EEC Directives and Regulations
    • EEC Regulation (E13020)
    • Equal Treatment Directive (76/207/EEC)
    • Equal Opportunities Directive (2006/54/EC)

    Useful Resources

    This list is compiled from a variety of sources and offered as a service. Inclusion in this list does not mean than any particular organisation is recognised or recommended by the authors or BACP.

    Access Northern Ireland

    This is a central government organisation which provides criminal history information about anyone seeking paid or unpaid work in certain defined areas, including children and vulnerable adults.

    Address: Brooklyn, 65 Knock Road, Belfast, BT5 6LE

    Tel 02890 259100

    Fax 02890 259186

    http://www.accessni.gov.uk

    Email accessni@ani.x.gsi.gov.uk

    Advisory, Conciliation and Arbitration Service – ACAS

    Provides up-to-date information, independent advice and training. Works with employers and employees to solve problems and improve performance.

    Aims to improve organisations and working life through better employment relations.

    Address: National Office, 286 Euston Road, London, NW1 3JJ

    Helpline 08457 47 47 47

    Minicom 0845 606 1600

    Lines open: Monday to Friday 8am-6pm, Saturday 9am–1pm

    http://www.acas.org.uk

    BACP Information Service

    Help with ethical dilemmas and practice issues for members of BACP and their clients.

    Address: BACP House, 15 St John's Business Park, Lutterworth, LE17 4HB

    Ethical Helpdesk 01455 883316

    Lines open: Monday to Friday 8.45am-5pm

    http://www.bacp.co.uk

    Email bacp@bacp.co.uk

    Children and Family Court Advisory Support Service (CAFCASS)

    Works with children and families involved in proceedings in family courts and advises the courts on the child's best interests.

    Address: 6th Floor, Sanctuary Buildings, Great Smith Street, London, SW1P 3BT

    Tel 0844 353 3350

    http://www.cafecass.gov.uk

    Centre for Accessible Environments

    An information and training body on the accessibility of the built environment for disabled people.

    Tel 0207 840 0125

    http://www.cae.org.uk

    Children's Legal Service

    An independent national charity concerned with law and policy affecting children and young people.

    Address: University of Essex, Wivenhoe Park, Colchester, Essex, CO4 3SQ

    http://www.childrenslegalcentre.com

    Email ele@essex.ac.uk

    Tel 01206 872 466

    National Education Line via Community Legal advice 0845 345 4345

    Young People Freephone 0800 783 2187

    Child Law Advice via Community Legal Advice 0845 345 4345

    All lines open: Monday to Friday 9am-5pm

    Community Legal Service Direct

    Free advice about benefits, tax credits, housing, employment, education or debt problems.

    Free confidential legal advice 0845 345 4345

    Lines open: Monday to Friday 9am-6.30pm/Saturday 9am-12.30pm

    General enquiries 0800 085 6643

    Lines open: Monday to Friday 9am-5pm

    http://www.elsdirect.org.uk

    Criminal Records Bureau (CRB)

    Aims to help organisations make safer recruitment decisions by providing wider access to criminal record information.

    Address: CRB Services, PO Box 110, Liverpool, L69 3EF

    General enquiries 0870 909 0811

    Minicom 0870 909 0344

    Lines open: Monday to Friday 8am-Saturday 10am-5pm

    Welsh Language Line 0870 90 90 223

    http://www.crb.gov.uk

    Central Registered Body in Scotland (CRBS)

    The CRBS was established by the Scottish Government, operated by Volunteer Development Scotland, which provides information and assistance upon request about the suitability of applicants for volunteer posts in Scotland, and free Disclosures (police checks) for volunteers in the voluntary sector working with children, young people and adults at risk in Scotland. Disclosures are obtained from Disclosure Scotland and the results passed on by CRBS to the individual concerned.

    Address: Jubilee House, Forthside Way, Stirling, FK8 1QZ

    Tel 01786 849777

    Fax 01786 849767

    Email info@crbs.ork.uk

    http://www.crbs.org.uk

    Crown Prosecution Service (CPS)

    The Crown Prosecution Service handles police and other Crown prosecutions. It can provide general information between 9am and 5pm weekdays, answer-phone outside these hours. Can give practical advice but not legal advice.

    Address: 50 Ludgate Hill, London, EC4M 7EX

    Information Line 020 7796 8000

    http://www.cps.gov.uk

    Email enquiries@cps.gsi.gov.uk

    Disclosure Scotland

    Disclosure Scotland issues certificates – known as ‘disclosures’ which give details on an individual's criminal convictions, or state that they have none. Enhanced disclosures, where appropriate, will also contain information held by police forces and other government bodies.

    Address: Disclosure Scotland, PO Box 50, Glasgow, G51 1YU

    Telephone 0870 609 6006.

    Lines open: Monday to Friday 8am-6pm

    Fax 0870 609 6996

    Email info@disclosurescotland.co.uk

    http://www.disclosurescotland.co.uk

    Equality and Human Rights Commission Disability Helpline

    Provides advice and guidance to promote equality and human rights.

    Textphone 0845 604 6610

    Fax 08457 778 878

    Scotland: Tel 0845 604 5510

    The helpline is open Monday, Tuesday, Thursday and Friday 9am-5pm; Wednesday 8am-8pm.

    Email info@equalityhumanrights.com

    Her Majesty's Courts Service (HMCS)

    HMCS provides administration and support for the Court of Appeal, the High Court, the

    Crown Court, the magistrates' courts, the county courts and the Probate Service.

    Address: Customer Service Unit, Post 1.40,1st Floor 102 Petty France, London, SW1H 9AJ

    Tel 0845 4568770

    Fax 020 3334 4087

    General website http://www.hmcourts-service.gov.uk/

    See http://www.hmcourts-service.gov.uk/cmd/infoabout.htm for information about court proceedings and fees, and free, downloadable leaflets and forms providing guidance for parties.

    Home Office

    Address: Direct Communications Unit, 2 Marsham Street, London, SWIP 4DF

    Tel 020 7035 4848

    Lines open: Monday to Friday 9am-5pm

    Minicorn 020 7035 4742

    Lines open: Monday to Friday 9am-5pm

    Email public.enquiries@homeoffice.gsi.gov

    http://www.homeoffice.gov.uk

    Insurers Specialising in Professional Liability Cover for Counsellors and Psychotherapists
    H Balen & Co

    Tel 01684 580771

    Address: 2 Nimrod House, Sandy's Road, Malvern, Worcs. WRI4 1JJ

    http://www.balen.co.uk

    Email info@balens.co.uk

    Devitt Insurance

    Address: North House, St Edwards Way, Romford, Essex, RM1 3PP

    Tell 01708 385917

    http://www.devittinsurance.com

    Email faith.mogan@churchhill.com

    Harvey Pettitt & Partners

    Address: Deerfold House, Deerfold, Salop, SY7 OEE

    Tel 01568 770900 http://www.harverpettitt.uk.com

    Email enquiries@harveypettitt.uk.com

    Howden Insurance Brokers

    Address: 1200, Century Way, Thorpe Park, Leeds, LS15 8ZA

    Tel 0113 251 5011

    http://www.howdenpro.com

    Email enquiries@howdengroup.com

    Towergate

    Address: Airport West, Lancaster Way, Yeadon, LS19 7ZA

    Tel 0113 391 9598 or 9555

    http://www.towergateprofessionalrisks.co.uk

    Email professionalrisks@towergate.co.uk

    Independent Safeguarding Authority

    The body responsible for implementing the Vetting and Barring procedures under the Safeguarding Vulnerable Croups Act 2006

    Address: PO Box 181, Darlington, DL1 9FA

    For making referrals under the statutory provisions (see Chapter 5 at 5.11) and for further information, general advice and help on the legislation contact ISA:

    Address: PO Box 181, Darlington, DL1 9FA

    Tel 0300 1231111

    Lines open: between 8am and 5.30 pm Monday to Friday

    Email info@vbs-info.org.uk

    http://www.isa-gov.org.uk

    Law Society

    The Law Society is the professional body for solicitors which provides advice and practical help in finding a solicitor in your area, making complaints, news and other information about areas of law.

    For further information about regulation and complaints about solicitors see the Solicitors

    Regulation Authority (SRA) below.

    Search solicitors' firms from Law Society records:

    http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law

    Address: The Law Society's Hall, 113 Chancery Lane, London, WC2A 1PL

    Tel 20 7242 1222

    Fax 020 7831 0344

    Email contact@lawsociety.org.uk

    http://www.lawsociety.org.uk

    Legal Services Commission (LSC)

    The LSC provides a national system of legal assistance and funding, The LSC regulates a quality control system including lawyers, mediators, Citizens Advice Bureaux and other advice providers. LSC funded advice is available about issues including: relationship breakdown, debt, housing, domestic violence, crime, benefits, asylum and immigration, education, employment, mental health and community care matters.

    Address: 4 Abbey Orchard Street. London. SW1P 2BS

    Helpline 0845 345 4345 http://www.legalservices.gov.uk

    Email London@legalservices.gov.uk

    National Register of Access Consultants

    List of organisations providing information and assistance concerning disability access and facilities.

    Address: 70 South Lambeth Road, London, SW8 1RL

    Tel 0207 735 7845

    Fax 0207 7840 5811

    SMS 07921 700 089

    Email info@nrac.org.uk

    http://www.nrac.org.uk

    National Society for the Prevention of Cruelty to Children – NSPCC

    A free 24 hour service which provides counselling, information and advice to anyone concerned about a child at risk of abuse.

    Address: Weston House, 42 Curtain Road, London, EC2A 3NH

    24hr Helpline 0808 800 5000

    Text phone 0800 056 0566

    http://www.nspcc.org.uk

    Email help@nspcc.org.uk

    Cymru/Wales Helpline 0808 1002524

    Textphone 0808 100 1033

    Address: PO Box 62, Bangor LL57 4BN

    Asian Helpline service in English 0800 096 7719

    Asian helpline offers help in the following languages: Bengali/Sylheti, Gujurati, Hindi, Punjab, Urdu.

    Lines open: Monday to Friday 11am-7pm

    Email helpline@asian.nspcc.org.uk

    Will endeavour to provide a translator service in other languages.

    The Place2Be

    Works inside schools to improve the emotional wellbeing of children, their families and the whole school community.

    Address: 13/14 Angel Gate, 326 City Road, London, EC1V 2PT

    Tel 020 7923 5500

    http://www.theplace2be.org.uk

    Email enquiries@theplace2be.org.uk

    Solicitors Regulation Authority (SRA)

    Address: Ipsley Court, Berrington Close, Redditch, B98 0TD

    Professional Ethics helpline for solicitors (for advice on the Code of Conduct) 0870 606 2577 (inside the UK)

    Lines open: 09.00 to 17.00. Monday to Friday.

    Email professional.ethics@sra.org.uk

    For complaints regarding solicitors, visit

    http://www.legalcomplaints.org.uk

    Therapy Law

    Legal website providing general information and guidance on law and ethics for therapists, with a regularly updated list of useful resources based on information from therapists and lawyers. Enquirers may also be provided on request with legal advice or help for specific problems, or facilitated to find local professional assistance where necessary.

    http://www.therapylaw.co.uk

    Email admin@therapylaw.co.uk

    Trauma and Abuse Group – TAG

    Provides information, support, training, encouragement and networking for counsellors, therapists, professional workers, carers and indeed anyone who is concerned or interested and any that are working with individuals who have suffered trauma and abuse.

    Address: PO Box 3295. Swindon, SN2 9ED

    http://www.tag-uk.net

    Glossary

    • The Bar Council Colloquial name for The General Council of the Bar which is the governing and regulatory body for barristers. It is a source of advice, information and can assist enquirers to find a barrister. See http://www.barcouncil.org.uk/
    • Burden of Proof To secure a conviction in a criminal matter, the case for the prosecution has to be proved ‘beyond reasonable doubt’. The burden of proof in civil cases is on the balance of probabilities, i.e. ‘that it is more likely than not’ that the events occurred (see Chapters 1 and 5).
    • Caldicott Guardians People appointed to protect patient information in health and social care. They should be members of the management board or senior management team, senior professionals, or hold responsibility for promoting clinical governance within organisations providing health or social care. In 2006, the Department of Health produced the Caldicott Guardian Manual for their guidance, available from http://www.dh.gov.uk.
    • Caldicott Principles Six principles for testing whether to disclose patient-identifiable information as part of recommendations on information sharing within the NHS and between NHS and non-NHS organisations. See the Report on the Review of Patient-identifiable Information by a committee chaired by Dame Fiona Caldicott in 1997 (the Caldicott Committee).
    • Client records Generic term which includes all notes, records, memoranda, correspondence, photographs, artifacts and video or audio recordings relating to an identifiable client. Whether factual or process related, in whatever form they are kept.
    • Confidentiality A wide ranging duty of managing information in ways that keep it secure and control its disclosure. It is concerned with protecting information that is identifiable with a specific person, typically because they are named, but the law will also protect the confidences of people whose identity can be deduced from the available information, perhaps because the listener knows some of the circumstances of the person being referred to. Thoroughly anonymised information in which the identity of specific people cannot be discerned is not protected by the law of confidentiality. A circle of confidentiality is a group of people sharing confidential information with the client consent, for example, a health care team, or a counselling organisation with group supervision.
    • Competent adult A person aged over eighteen and mentally capable of giving valid consent.
    • Constitution Law In the UK, the constitutional law consists of statute law (Acts of Parliament), subordinate legislation (Statutory Instruments) made under the authority of Acts of Parliament, and case law (the decisions of the courts) in which the courts interpret and apply the statute law (see Chapter 1).
    • Contract Legally enforceable agreement, usually regulating the sale, lease or transfer of land, or the provision of goods, advice or services for an agreed price. In legal terms, the ‘promisor’ (or ‘offeror’) promises or offers to do something, in return for which the ‘promisee’ (or ‘offeree’) agrees to do or forbear from doing, or provide something in return (the ‘consideration’). For example, a therapist may offer to provide therapy in return for which the client agrees to provide consideration in the form of payment, or a person may provide goods in return for the forgiveness of an outstanding debt (see Chapter 4).
    • The Criminal Records Bureau (CRB) An executive agency of the Home Office which maintains criminal records. Further information, including details of how to apply for disclosures, is available at: http://www.crb.gov.uk. In Scotland the Central Registered Body in Scotland (CRBS) (http://www.crbs.org.uk) provides access to disclosures for individuals working as volunteers in sensitive areas. Criminal records checks can be obtained from Disclosure Scotland (see http://www.discolourescotland.co.uk) and in Northern Ireland, from Access Northern Ireland (see http://www.accessni.gov.uk).
    • Crown Prosecution Service (CPS) Government department that advises the police on evidence and law, and prepares cases for prosecution. The CPS provides its own staff or agents as advocates in some cases, and instructs barristers (counsel for the prosecution) in other matters.
    • Disability/disabled Disability is defined in section 1(1) of the Disability Discrimination Act DDA 1995, subject to the provisions of schedule 1, as ‘a person who has a physical or mental impairment that has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’. The effect of an impairment is long term if it has lasted at least 12 months, or if it is likely to last at least that long, or for the rest of the person's life, or if it is likely to recur if in remission (DDA 1995, Sch 1. paras 2(1) and (2)). For further discussion of the Disability Discrimination Acts 1995 and 2005, with resources for information and help, see Chapter 7 at 7.1.and http://www.direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001068. In the context of employment, see the Disability Discrimination Act 1995 Code of Practice: Employment and Occupation (the Code), issued on 1 October 2004, setting out the rights of disabled workers and duties of their employers, and see Chapter 9 at 9.6.1.
    • Duty of confidence A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected.
    • Forensic In general terms, forensic simply means court-related, i.e. a forensic report is one ordered by the court or prepared for use in court; forensic evidence is evidence used in court cases, etc.
    • Government In England, Scotland and Wales, the Queen is the Head of State, although in practice, the supreme authority of the Crown is carried by the government of the day. The government comprises the Prime Minister (appointed by the Queen), the Ministers with departmental responsibilities, and those Ministers of State who form the Cabinet by the invitation of the Prime Minister. The legislature comprises the two Houses of Parliament – the House of Lords and the House of Commons (see Chapter 1).
    • Harassment This can take various forms, depending on the context in which it happens. In the workplace, harassment may involve the violation of dignity or the creation of a hostile working environment. The Protection from Harassment Act 1997 was designed to protect victims of harassment, whatever form the harassment takes, wherever it occurs, and whatever its motivation. Breaches of the Protection from Harassment Act 1997 may constitute a criminal offence, or may give rise to civil liability, or both. See Chapter 9 at 9.7 for discussion of harassment in the workplace.
    • Judicial precedent In case law, there is a hierarchy in judicial precedent, in which the decisions of the House of Lords bind every court below it (including the Court of Appeal) and the decisions of the Court of Appeal bind all lower courts. There are also constitutional conventions which have binding force but do not have statutory authority (see Chapter 1).
    • Judicial Studies Board The purpose of the Judicial Studies Board (JSB) is to ensure that high quality training is delivered to enable those who discharge judicial functions in England and Wales to carry out their duties effectively, in a way which preserves judicial independence and supports public confidence in the justice system. For contact details see http://www.jsboard.co.uk.
    • Judiciary The collective name for all judges, at all levels. The judiciary should be independent of government, and of politics, and are appointed from among experienced lawyers. Most of the present senior judges were formerly QCs, but the judiciary makes appointments from both branches of the profession. For further information see the Bar Council, Law Society and Judicial Studies Board websites.
    • The Law Society Provides advice, information and guidance. The Law Society can assist enquirers to find a solicitor. For contact details see http://www.lawsociety.org.uk/ and Useful Resources.
    • Lawyer The term ‘lawyer’ is very wide and includes judges. Queen's Counsel (QCs -senior barristers), barristers (members of the Bar), solicitors (solicitors of the Supreme Court), each Notary Public, and legal executives (legal personnel qualified in law who assist solicitors and the courts). In Scotland, the term lawyer includes attorney, solicitor and Sheriff.
    • List 99 This is a list that was maintained by the former Department for Employment and Skills (DfES), now the Department for Children, Schools and Families (DCSF). It is a confidential list of people whom the Secretary of State has directed may not be employed by local education authorities (LEAs), schools (including independent schools) or further education (FE) institutions as a teacher, or in work involving regular contact with children under 18 years of age. People who are convicted of one of a number of sexual or violent offences against a child under 16 years of age, or in some cases against an adult, are automatically deemed unsuitable to work with children and are included on List 99. Those subject to a court disqualification order are also included on List 99 automatically. List 99 may be integrated into the new lists created by the Vetting and Barring Scheme (see Chapter 5).
    • Multi Agency Public Protection Arrangements (MAPPA) MAPPA provides a national framework in England and Wales for the assessment and managements of risk posed by serious and violent offenders, including individuals who are considered to pose a risk, or potential risk, of harm to children. The MAPPA framework will be integrated into the new Vetting and Barring Scheme (see Chapters 2 and 5).
    • Mental capacity This is a legal concept, within which a person's ability to make rational, informed decisions is assessed (see the Mental Capacity Act 2005 and pp. 63–4). It is assumed in law that adults and children of 16 or over have the mental capacity and therefore the legal power to give or withhold consent in medical and health care matters. In Scotland, Section 1(1)(b) of the Age of Legal Capacity (Scotland) Act 1991 provides that a person of 16 years of age or over has legal capacity to enter into any transaction, which includes medical and health care matters. Section 2(1) provides that a person under the age of 16 can consent to a transaction of a kind commonly entered into by persons of his age and circumstances and on terms which are not unreasonable and Section 2(4) specifically provides that a person under the age of 16 years shall have the legal capacity to consent to any surgical, medical or dental procedure where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment. These presumptions and rules are rebuttable, for example in the case of mental illness. A refusal of necessary medical treatment by young people over the age of sixteen but under eighteen may be overruled by the High Court (or Court of Session in Scotland). There is no one test for mental capacity to consent. Assessment of mental capacity is situation specific, and will depend upon the ability of the person to take in, understand and evaluate information including the risks and benefits of the decision to be made, and to communicate their wishes.
    • Negligence The legal concept of negligence is based on the breach of appropriate professional standards and/or a duty of care, causing damage. In order to establish a case against a therapist, the plaintiff would have to prove:
      • that a duty of care exists
      • that the duty of care has been breached (i.e. conduct falling below the standards that the law demands)
      • in the case of advice, that the defendant could have foreseen that any advice given would be relied upon (foreseeability)
      • that, as a result of the action/omission complained of, the plaintiff suffered damage
      • that the actions/omissions complained of were the cause of the damage.
    • (See Chapter 3).
    • Parental responsibility The legal basis for decision making in respect of children under the age of eighteen, created by the Children Act 1989 and defined in section 3(1) as ‘all the rights, duties, powers, responsibilities and authority which by law the parent of a child has in relation to a child and his property’. It is possible that the definition of parental responsibility may be further clarified in new legislation currently under consideration. More than one person can have parental responsibility for a child at the same time. It cannot be transferred or surrendered, but aspects of parental responsibilities can be delegated, CA 1989 s. 2(9), see Chapter 11 for further details. (For the equivalent provisions in Scotland, see Sections 1–3 of the Children (Scotland) Act 1995.)
    • Professional diligence Defined in the Consumer Protection from Unfair Trading Regulations 2008 as: ‘The standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either (a) honest market practice in the trader's field of activity, or (b) the general principle of faith in the trader's field of activity’ (Regulation 2).
    • Protection of Children Act (POCA) List The Protection of Children Act 1999 gave the Secretary of State power to keep a list of people who are unsuitable to work with children in childcare positions. Childcare organisations checked the list (and List 99) before employing someone in a childcare position. For details, see Chapter 12 of Working Together to Safeguard Children (DfES 2006C). Now superseded by the new Vetting and Barring Procedures, ‘Child First’ list, see Chapter 5 at 5.11.
    • Public interest The interests of the community as a whole, or a group within the community or individuals.
    • Restrictive covenant These are restrictions placed by agreement on the use of buildings and land, usually entered into for the benefit of neighbours and the community at the time that the land was sold or the building constructed, and they are set out in title deeds and leases. In titles that are registered with the Land Registry, restrictive covenants are entered on the register along with the title to the land, and a copy can be obtained for the payment of a fee from the local Land Registry (see Chapter 7).
    • Self-employed The distinction between self-employment and employment is not always easy to make (see the HM Revenue and Customs Booklet IR56/N139, Employed or Self-employed?) For help, ask local taxation offices, or look at the publications on the following website: http://www.hmrc.govuk/selfemployed/tmaemployed or self-employed.shtml. (See Chapter 8 and Chapter 9 at 9.1.)
    • Sex Offenders Register Notification under Part 2 of the Sexual Offences Act 2003 (known as the Sex Offenders Register) is an automatic requirement on offenders who receive a conviction or caution for certain sexual offences. The notification requirements are intended to ensure that the police are informed of the whereabouts of offenders in the community. All offenders must reconfirm their details at least once every 12 months, and notify the police seven days in advance of any travel overseas for a period of three days or more. Failure to comply with these requirements is a criminal offence, with a maximum penalty of five years imprisonment (see Chapter 2).
    • Soft law Soft law includes the codes of practice issued by government departments, recommendations from official reports, and protocols adopted by statutory services. This type of law has no legal status in the courts in the sense that courts are not obliged to follow it until such time as Parliament gives it full legal status.
    • Supervision In the psychoanalytic tradition and in most therapeutic approaches in the USA, supervision is seen as supporting trainees who, on completion of their training, may work unsupervised. In Britain there is a tradition of independent supervision which continues throughout the training and the working life of the therapist, in which the supervisor is regarded as an independent facilitator with a specific role to support and mentor professional practice.
    • Tipping off Section 39 of the Terrorism Act 2000 creates an offence, colloquially known as ‘tipping off, which, in relation to the investigation of terrorist activities, means disclosure of anything likely to prejudice the investigation, or interference with material which is likely to prejudice the investigation. The courts take this seriously, and the current maximum penalty for tipping off is five years’ imprisonment, a fine or both (see Chapter 5).
    • Tort The law of tort in England and Wales is the general law of civil liability (in Scotland, it is called ‘delict’). The word ‘tort’ (colloquially meaning injustice) was probably imported into our law from old French, having evolved from the Medieval Latin ‘tortum’ derived from torquēre (to twist) and ‘tortus’ (meaning twisted, crooked, dubious) (see Chapter 3).
    • Vetting and Barring Scheme (VBS) Set up by the Safeguarding Vulnerable Groups Act 2006, the Independent Safeguarding Board regulates activity with children and vulnerable adults. For details, and disscussion of the provisions in Wales, Scotland and Northern Ireland, see Chapter 5 at 5.11 (pp. 79–86).
    • Whistle blowing Colloquial term for giving information about bad practice by colleagues. Several professional organisations have published guidance on ‘whistle-blowing’ procedures, for example, the General Medical Council (GMC 2006: 43–5) and the British Psychological Society, Professional Practice Guidelines for Counselling Psychologists (BPS INF75/01/05)(BPS2009).

    References and Further Reading

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    Anthony, K. (2007) Introduction to Online Counselling and Psychotherapy. BACP Information Sheet P6. Lutterworth: British Association for Counselling and Psychotherapy.
    BACP (2004) What is Supervision?Lutterworth. British Association for Counselling and Psychotherapy.
    BACP (2010) Ethical Framework for Good Practice in Counselling and Psychotherapy. Lutterworth: British Association for Counselling and Psychotherapy.
    Bamber, L. et al. (eds) (2008) Tolley's Health and Safely at Work Handbook. London: Lexis Nexis/Tolley.
    Bauer, J., Hafner, S. et al. (2003) ‘The burn-out syndrome and restoring mental health at the working place’, Psychother Psychosom Med Psychol53(5): 213–22. http://dx.doi.org/10.1055/s-2003-38865
    Bond, T. (1990) ‘Counselling supervision – ethical issues’, Counselling, Journal of the British Association for Counselling1(2): 43–6.
    Bond, T. (2009) Standards and Ethics for Counselling in Action (
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    Bond, T. and Sandhu, A. (2005) Therapists in Court: Providing Evidence and Supporting Witnesses. London: Sage.
    Bond, T. and Jenkins, P. (2008) Access to Records. BACP Information Sheet GI. Lutterworth: British Association for Counselling and Psychotherapy.
    Bond, T. and Mitchels, B. (2008) Confidentiality and Record Keeping in Counselling and Psychotherapy. London: Sage and British Association for Counselling and Psychotherapy.
    Bond, T., Brewer, W. and Mitchels, B. (2008) Breaches in Confidentiality. BACP Information Sheet G2: Lutterworth: British Association for Counselling and Psychotherapy.
    Bradgate, R. (2007) ‘Formation of contracts’, in M.Furmiston (ed.), The Law of Contract. London: LexisNexis Butterworths.
    British Property Federation and the British Council of Offices (2002) Code of Practice for Commercial Leases. Available at: http://www.commercialleasecodeew.co.uk.
    British Property Federation and the British Council of Offices (2004) Renewing and Ending Business Leases: A Guide for Tenants and Landlords. Available at: http://www.communities.gov.uk/publications/citiesandregions/renewingending.
    British Property Federation and the British Council of Offices (2007a) Guidance as to ‘Model Clauses’. Available at: http://www.bpf.org.uk/publications.
    British Property Federation and the British Council of Offices (2007b) Code for Leasing Business Premises in England and Wales. Available at: http://www.leasingbusinesspremises.co.uk.
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    Clark, J. (2002) Freelance Counselling and Psychotherapy: Competition and Collaboration. Hove: Brunner-Routledge. http://dx.doi.org/10.4324/9780203361313
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    Coates, M. (2004) Guidance for Trainee Placements. BACP Information Sheet T3. Lutterworth: British Association for Counselling and Psychotherapy.
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    Criminal Records Bureau (CRB) (2009) Revised Code of Practice 2009. London: CRBO.
    Crown Prosecution Service (England and Wales) (2005) The CPS: Provision of Therapy for Vulnerable or Intimidated Adult Witnesses Prior to a Criminal Trial – Practice Guidance. London: Crown Prosecution Service. Also available at: http://www.cps.gov.uk.
    Dale, H. (2008a) Making the Contract for Counselling and Psychotherapy. BACP Information Sheet P11. Lutterworth: British Association for Counselling and Psychotherapy.
    Dale, H. (2008b) Charging for Therapy in Private Practice: Pitfalls and Issues. BACP Information Sheet P2. Lutterworth: British Association for Counselling and Psychotherapy.
    Department of Trade and Industry (DTI): Redundancy Payments (URN 98/95). London: Department of Trade and Industry.
    Offsetting Pensions Against Redundancy Payments (RLP1). London: Department of Trade and Industry.
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    Note that the role of the former DfES is now part of the Department for Children, Schools and Families, see http://www.dcsf.uov.uk/. The DfES publications listed below may be ordered from TSO, or through the DCSF
    DfES (2004a) Every Child Matters: Change for Children ProgrammeRef: DfES/1081/2004 http://www.everychildmatters.gov.uk.
    DfES (2004b) Working with Voluntary and Community Organisations to Deliver Change for Children and Young People.
    DfES (2004c) National Service Framework (NSF) for Children, Young People and Maternity Service
    DfES (2004d) Five Year Strategy for Children and Learners.
    DfES (2004e) Every Child Matters: Change for Children in Schools. Ref: DfES/1089/2004.
    DfES (2004f) Every Child Matters: Change for Children in the Criminal Justice System. Ref: DfES/1092/2004.
    DfES (2004g) Every Child Matters: Change for Children in Health Services. Ref: DoH/109l/2004.
    DfES (2006a) What to Do If You Are Worried That a Child is Being Abused. Norwich: TSO.
    DfES (2006b) Information Sharing: A Practitioner's Guide. Norwich: TSO.
    DfES (2006c) Working Together to Safeguard Children: A Guide to Inter-Agency Working to Safeguard and Promote the Welfare of Children. Norwich: The Stationery Office. Available for download at http://www.everychildmatters.gov.uk/workingtogether and from TSO.
    DH (2000) Framework for Assessment of Children in Need and their Families. Norwich: TSO.
    DH (2003a) Confidentiality: NHS Code of Practice. London: Department of Health.
    Disability Discrimination Act 1995 Code of Practice: Employment and Occupation. Issued on 1 October 2004. Norwich: TSO. See: http://www.tsoshop.co.uk. See also http://www.direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001068.
    Disability Discrimination Act – Easy Read Guide; Disability Discrimination Act – BSL Video Guide; Discrimination Act – Braille Guide; Disability Discrimination Act – Audio Guide. London: The Stationery Office. All available from The Stationery Office (TSO) bookshop or online shop (http://www.tsoshop.co.uk).
    Disability Rights Commission Making Access to Goods and Services Easier for the Disabled: A Practical Guide for Small Business and Service Providers. London: Equality and Human Rights Commission. Available at: http://www.directgov.uk/en/DisabledPeople/EverydayLifeandaccess/Everydayaccess/DG_4018353.
    Donaldson, Sir Liam (2003) Making Amends. NHS Consultation Paper. London: Department of Health. Available at: http://www.doh.gov.uk/makingamends.
    Employment Rights: To download all the legislation and guidance as documents from the internet, see http://www.berr.gov.uk/whatwedo/employment/employmentlegislation/employment-act-2008/index.html. To read the guidance to the Employment Act 2008, go to http://www.opsi.gov.uk/acts/acts2008/en/ukpgaen_20080024_en_1.htm.
    Equal Opportunities Commission (2003) (2003) Code of Practice on Equal Pay. London: EOC. Available at http://www.equalityhumanrights.com/uploaded.../code_of_practice_equalpay.pdf.
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    Feltham, C. (1999) Developing Counsellor Supervision. London: Sage. http://dx.doi.org/10.4135/9781446222324
    Furmston, M. (ed.) (2007) The Law of Contract. Butterworths Common Law Series. London: LexisNexis Butterworths.
    Gabriel, L. and Casemore, R. (2008) Practical Aspects of Setting up a Counselling Service. BACP Information Sheet EI. Lutterworth: British Association for Counselling and Psychotherapy.
    GMC (2004) Confidentiality: Protecting and Providing Information. London: General Medical Council. Also available at: http://www.gmc-uk.org/standards/default.htm.
    GMC (2006) Good Medical Practice. London: General Medical Council. Also available at http://www.gmc-uk.org.
    Hackney, H. and Goodyear, R. (1984) ‘Carl Rogers' client-centered approach to supervision’, in R.Levant and J.Shilen (eds), Client Centered Therapy and the Person Centered Approach. New York: Praeger.
    Hawkins, P. and Shoet, R. (1996) Supervision in the Helping Professions. Milton Keynes: Open University Press.
    Her Majesty's Courts Service (HMCS) publish a range of leaflets. These are available at http://www.hmcourts-service.gov.uk/
    Making a claim? Some questions to ask yourself (Leaflet EX301)
    How to make a claim (Leaflet EX302)
    Debt recovery for businesses (Leaflet EX350)
    Court Fees – do I have to pay them? (Leaflet EX 60A)
    No reply to my claim form – what should I do? (Leaflet EX304)
    The defendant disputes all or part of my claim (Leaflet EX306)
    The defendant admits my claim-I claimed a fixed amount of money (Leaflet EX309)
    The defendant admits my claim-I did not claim a fixed amount of money (Leaflet EX308)
    The small claims track (Leaflet EX307) The fast track and the multi track (Leaflet EX305)
    A claim has been made against me – what should I do? (Leaflet EX303)
    I have been asked to be a witness – what do I do? (Leaflet EX341)
    Some things you should know about coming to a court hearing. (Leaflet EX342)
    Money Claim On Line is also available at: http://www.hmcourts-service.gov.uk/onlineservices/mcol/index.htm.
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    HM Revenue and CustomsThinking of Working for Yourself? Booklet SE1. London: Inland Revenue. Available at http://www.hmrc.gov.uk/startingup/taxgate.htm.
    HM Revenue and CustomsEmployed or Self-Employed? Leaflet IR56. London: Inland Revenue. Available at http://www.hmrc.gov.uk/pdfs/ir56.pdf.
    HM Revenue and CustomsGiving Your Business the Best Start with Tax: Advice and Assistance on Business Start-up. London: Inland Revenue. See http://www.hmrc.gov.uk/startingup/.
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