Protocol on Access to Legal Advice

Protocol for Access to Legal Advice

Version: 1.0 Ratified by: Audit Committee Date ratified: […] 2014 Name of originator/author: Michelle Angell, Head of Corporate Performance and Corporate Services Name of responsible Remuneration Committee committee/individual: Date issued: […] 2014 Review date: […] 2015 Target audience: CCG staff and Governing Body members

Section CONTENTS Page

1 Introduction 1

1.1 Purpose 1

1.2 Scope 1

1.3 Background 1

2 Procedure/course of action required 2

2.1 Example Circumstances 2

2.2 Accessing Legal Advice 2

2.3 Advice available from within the CCG / CSU / NHS Property 3 Services Ltd

2.4 Authorisation to contact legal advisors 4

2.5 Contacting legal firms 4

3 Implementation and Monitoring arrangements 4

3.1 Ratification 5

3.2 Dissemination 5

3.3 Training / Awareness 5

3.4 Audit 5

3.5 Breach of this protocol 5

4 List of related policies 5

Appendix A Access to Legal Advice Flowchart 6

Appendix B Contact Details of Legal Services Framework Solicitors 7

1. INTRODUCTION

1.1. Purpose

These guidelines explain the circumstances and process for obtaining legal advice, both from within NHS Castle Point & Rochford CCG and if appropriate, from a preferred law firm and other external legal advisors.

This protocol relates to all general requirements for legal services as and when they may be required. Neither the protocol nor the legal services budget are intended to include

• Issues relating to NHSLA arrangements or any other similar provision; • Allegations, claims or potential claims relating to personal injury, breach of contract, employment matters or clinical negligence; • Legal charges that are part of a large approved project such as NHS 111; such legal charges must be a part of the approved cost plan.

1.2. Scope

This protocol applies to:

• All CCG staff and Governing Body members • Contracted third parties (including agency staff); • Students and trainees; • Staff on secondment and other staff on placement with the CCG.

It does not apply to staff of the Commissioning Support Unit (CSU) aligned to or working with the CCG. The CSU will cover the costs of any legal advice they may require to deliver safe and effective services. Any exceptions to this must be by prior agreement between the CSU and the Chief Finance Officer or Chief Operating Officer.

1.3. Background

The CCG is signed up to the Government Procurement Service (GPS) Legal Services Framework and is able to access legal advice from a variety of different law firms at preferential rates (see Appendix B). The GPS Framework runs from 1st February 2013 to 31st January 2015. Arrangements will therefore need to be reviewed prior to the end of January 2015.

Only those identified by the CCG’s Scheme of Delegation are authorised to seek legal advice, acknowledging if any exceptional authorisation procedures are in place at the time of seeking approval. However, there are a variety of circumstances when other Governing Body members and staff may require legal advice in connection with their CCG role. This guidance has been written to clarify the process that should be followed in such circumstances.

In all cases, Governing Body members and staff should first contact the relevant person listed in section 2.3. They will generally be able to advise but occasionally legal advice may be required that cannot be provided from within the CCG or its partner organisations (in particular the CSU and NHS Property Services Ltd).

In such circumstances, the Head of Performance and Corporate Services will advise which providers on the GPS Legal Services Framework have the necessary expertise in the area upon which advice is required. Please note that not all firms in the GPS Framework have been commissioned to provide advice on every matter. The firms are listed in “lots” according to the types of advice they are commissioned to provide (as shown in Appendix B). Further details on the GPS Framework can be found on http://gps.cabinetoffice.gov.uk/news/legal-services- framework-awarded.

A flow chart of the process to be followed is contained at Appendix A.

This protocol is subject to the provisions of the Standing Financial Instructions and procurement requirements. It must also be read in conjunction with other related CCG policies listed at section 4.

2. PROCEDURE / COURSE OF ACTION REQUIRED

2.1 Example Circumstances

It is inevitable that situations may occur where it is necessary and / or appropriate to seek legal advice. It may be a routine issue relating to the management of the CCG (eg. constitutional or matters of contract law) or it may relate to potential litigation. In such cases, early intervention may prevent situations escalating.

Reasons to seek legal advice may include:

• A situation that has not been encountered before and is beyond the technical knowledge of any internal subject expert; • Confirmation that a proposed or intended action is correct and lawful; • Where another party has involved solicitors.

2.2 Accessing Legal Advice

Follow the flow chart in appendix A if you need legal advice but note that only those authorised through the CCG’s Scheme of Delegation may approve access to external legal advice, acknowledging any exceptional authorisation procedures in place at the time of seeking approval.

2.3 Advice Available from within the CCG or CSU

There are staff within the CCG and the CSU who are able to advise on a range of matters of law and regulation. Contact them in the first instance if you need advice.

Issue Designation Clinical Issues Chief Nurse Clinical Service Chief Finance Officer / Head of Commissioning Contracts or CSU Contracts Team Complaints / Claims / Head of Performance and Corporate Services Potential Litigation Health Records / Data Head of Information Governance (CSU) or Protection Chief Nurse Corporate Governance / Head of Performance and Corporate Services Constitutional / Compliance Issues Freedom of Information Head of Information Governance (CSU)/Head of Performance and Corporate Services Employee / Public He ad of Performance and Corporate Services Liability Health Act S31 and Chief Operating Officer partnership issues Human Resources Head of Human Resources (CSU) Mental Health Act Issues Chief Nurse Safeguarding Issues Chief Nurse / Adult or Children Safeguarding Leads (CSU) Patient Information & Chief Nurse / Chief Operating Officer Confidentiality Property NHS Property Services Ltd Treatment Packages Head of Commissioning/Head of Performance and Disputes and Corporate Services

2.4 Authorisation to Contact Legal Advisers

If the situation is beyond the technical knowledge of internal subject matter experts and if your line manager is unable to answer your question, they will refer you to the Head of Performance and Corporate Services for advice as to whether legal advice is warranted and if so, which firms are most likely to be able to assist.

In an emergency out of normal working hours, the on-call director will be responsible for authorising the procurement of legal advice. Given that the on-call rota is managed across the South Essex CCGs, in these exceptional circumstances, it will be acceptable for another CCG to incur legal costs on behalf of NHS Castle Point & Rochford CCG. 3

2.5 Contacting Legal Firms

If legal advice is to be effective, it is important that clear, accurate information regarding the situation in question is provided. It may be helpful to consider the following prior to seeking legal advice:

• Is the nature of the situation regarding a clinical negligence or personal injury allegation, claim or potential claim? If yes, then refer to the Head of Performance and Corporate Services. • Have you contacted the internal subject expert? Depending on the nature of the advice required, help may be available in-house or within our partner organisations (including other CCGs) or individuals may have knowledge of similar legal advice that has already been provided. For example, the CSU Human Resources Team for employment issues, and NHS Property Services Ltd for estates and facilities issues.

If authorisation is given to seek external legal advice, the Head of Performance and Corporate Services or the Finance Team will be provided with a Standing Order number against which the legal advice is to be charged. When seeking advice it is important to:

• Ensure that you are clear about the issue you need advice on and the chronology/sequence of events (it may be helpful to rehearse relaying this information in advance). • Ensure that you have any relevant documents/information to hand and can email or fax them if required. • Ensure that any verbal request for advice is followed up in writing as soon as possible (e.g. by email) confirming the scope of advice that is required. • Request a quotation based on the legal advisor’s role, hourly rate and the time needed to deliver the advice. • Copy the written request for advice to the Head of Performance and Corporate Services and ask for the advice provided and any changes in the estimated costs to be shared with the Head of Performance and Corporate Services. • Copy of the financial quote to the Chief Finance Officer

It should be noted that the legal advisors on the GPS Framework (listed in Appendix B) will not accept instructions from anyone who is not authorised to do so or without an approved Standing Order number.

3 IMPLEMENTATION AND MONITORING ARRANGEMENTS

3.1 Ratification

This guidance was approved by the CCG Audit Committee on […] 2014. 4

3.2 Dissemination

This guidance will be posted on the Intranet and sent electronically to all CCG staff and Governing Body members.

3.3 Training and Awareness

The Chief Operating Officer is responsible for ensuring that all staff and Governing Body members are aware of this guidance.

3.4 Audit

The Head of Performance and Corporate Services will maintain records of all cases for which legal advice has been procured and will monitor the charges levied to the CCG.

3.5 Breach of the Protocol

Inappropriate use of the CCG’s advisors for obtaining legal advice or failure to obtain legal advice when required could result in disciplinary proceedings being initiated against the relevant employee.

4 LIST OF RELATED POLICIES & GUIDANCE

• The following related policies and guidance are available on the CCG website / shared drive: • Standing Orders/ Scheme of Delegation /Standing Financial Instructions • Risk Management Strategy • Complaints and Concerns Policy • Information Governance Policy • Freedom of Information Policy

APPENDIX A

ACCESS TO LEGAL ADVICE FLOWCHART

Need legal advice?

Define your query/issue Discuss with your line manager Seek advice from within the CCG/CSU (see 2.3)

YES Has your query been answered?

External advice required Out of Hours

Monday to Friday 9.00am – 5.00pm

NO Is it an emergency? Approach Head of Performance for advice, obtain approval from COO/CFO/EN and copy request for YES advice to Head of Performance

Contact on-call director for Always email advice authorisation. Notify Head of notification to the Performance next working day, Head of Corporate record using the on- call incident report form. Contact solicitor Governance and (see Appendix B) copy estimate of Contact Solicitor. costs to CFO