Access to Legal Advice Policy To be read in conjunction with Risk Management Strategy/Policy Claims Policy Version Control Record Version Description of Reason for Change Author Date Change(s) 1.0 New Policy for CCG Keith Dickinson 28 April 2013 Page 1 of 15 Contents Section CONTENTS Page 1 INTRODUCTION 3 2 SCOPE 3 3 BACKGROUND 3 4 OBTAINING ADVICE 3 4.1. Authorised Persons 3 4.2 All Staff 3 4.3 When Advice Might Be Required 3 4.4 Internal Support and Expertise 4 4.6 External Professional Advice 4 4.7 Procedure to Access Legal Advice 4 4.8 Urgent Requests 4 4.9 Procedure for Instructing Solicitors 4 4.10 Payment for Legal Advice 5 5 IMPLEMENTATION 5 5.1 Ratification 5 5.2 Dissemination 5 5.3 Training 5 5.4 Audit 5 6 DUTIES AND REPSONSIBILITIES 5 6.1 Directors 5 6.2 Head of Governance 5 6.3 Authorised Persons 6 6.4 All Staff 6 Appendix A Request for Authorisation to Seek Legal Advice 7 Appendix B Internal Sources of Advice 9 Appendix C Contact details for Approved Law Firms 11 Appendix D Access To Legal Advice – Flowchart 13 Appendix E Equalities Impact Assessment 14 Page 2 of 15 INTRODUCTION 1.1 This document sets out the CCGs approach to ensuring that legal advice is obtained from the best and most economical sources. This includes identifying and providing access to internal and external experts, ensuring there is no unnecessary recourse to costly legal advice where the appropriate information or expertise exists within the CCG. 2 SCOPE 2.1 The policy applies to all circumstances where staff require legal advice on any issue connected with the business of the CCG. This policy also applies to instructing solicitors. 3. BACKGROUND The Clinical Commissioning Group is signed up to the London Legal Procurement Programme which offers key benefits including - 20 to 60 minutes free advice on any issue (depending on firm used). - discounted rates. - further discounts for participating NHS organisations once their combined spend exceed pre-set thresholds. - controls over who in the CCG may can access legal advice - the opportunity to widen the numbers of legal firms used for new instructions and benefit from more cost-effective regional suppliers, compared to London- based firms. 4 OBTAINING ADVICE 4.1 Authorised Persons The following staff are authorised to access legal advice and authorise other staff to request legal advice: - Chief Executive - Chief Finance Officer - Chief Operating Officer - Director of Performance - Head of Governance. 4.2 All Staff All staff, including temporary and agency staff, must comply with this procedure. In particular, staff are reminded that there may be no direct approach to external legal advisers without proper authorisation as described in para 4.7. Failure to comply may result in disciplinary action being taken. Where a member of staff has been authorised to make a direct approach to external legal advisers, they are personally responsible for providing the Head of Governance with information required in Appendix A. 4.3 When Advice Might Be Required The purpose of obtaining advice is to ensure the activities of the CCG are lawful and to support staff who might be required to give evidence in relation to legal matters. Examples include: • Capacity, consent and treatment – adults and children. • Corporate governance and public law • Clinical governance and healthcare Law, Health & Social Care Act, mental health and other specialist areas • Contract and commercial law Page 3 of 15 • Corporate finance, Partnership / PFI /PPP agreements • Coroner’s court and inquests. • Criminal and civil liabilities, third party claims • Employment law • Equality and Human Rights Acts • Health and Safety including corporate manslaughter • Information governance - data protection, freedom of information, access to records • Property transactions. 4.4 Internal Support and Expertise Expertise (designated officers) exists within the CCG and BEHH on many of these and other matters, and this should be sought in the first instance. Only when this expertise is not sufficient due to the complexity of the matter, or where there is an action which only a legally qualified officer can undertake, should formal or specialist legal advice be sought. The list of designated officers is at Appendix B. 4.5 Factors that need to be considered in determining whether professional legal advice may be required include: • actual, or risk of potential litigation • assistance on interpretation and implications of relevant new and/or existing legal precedent or legislation • lack of clarity around statutory position, powers or responsibilities • lack of clarity relating to statutory duty of legislative compliance. 4.6 External Professional Advice Contact details for the list of law firms used by the CCG can be found in Appendix C. All the law firms on this list have been asked, as part of the service and fees agreement, not to respond to any query that does not comply with the process described in para 4.7 below. 4.7 Procedure to Access Legal Advice The ‘authorised officers named above may seek legal advice as part of their general responsibilities and accountabilities in managing their Departments. However, there are a variety of circumstances when other staff may require legal advice in connection with their role. This guidance sets out the processes which must be followed in such circumstances. In all cases, staff should first seek the advice of the relevant designated officer, at Appendix B, who will generally be able to advise. However if the need for advice cannot be provided from within the CCG you should seek the authority of a designated officer to access legal advice. If approval is given you may then contact Bevan Brittan or Capsticks who are the preferred law firms (see Appendix C). If very specialist advice is required, the Head of Governance can advise as to the most suitable law firm. 4.8 Urgent Requests In an emergency out of normal working hours, the on-call director must be contacted for approval. Out of hours contact details for the preferred legal firms are contained in the ‘Directors on Call’ pack. Each ‘on call’ authorisation should be documented and sent to the Head of Governance in the normal manner. 4.9 Instructing Solicitors Instructions to solicitors to provide advice on behalf of the CCG should be carried out in writing (email will be acceptable but due consideration should be given to data protection and patient confidentiality issues). The instruction should include a request for an estimate of time and cost. It is recognised that occasions may arise where urgent necessitates this should be done by telephone but any arrangements must be confirmed in writing. Page 4 of 15 For certain matters it may be possible to obtain legal advice quickly over the telephone using the 20 – 60 minutes free phone advice option (depending on firm used). This still requires approval. To assist the solicitor to provide comprehensive advice, include details of all relevant factors, provide or reference all relevant documentation and outline the specific issues on which advice is being sought. Any guidance or advice given should be given in writing. Careful consideration needs to be given to the method of communication to ensure compliance with confidentiality and the rules around transmission of confidential material. See the flowchart at Appendix D. 4.10 Payment for Legal Advice The cost of legal advice for the CCG will normally come from the Chief Executive’s (Legal Services) budget. The CCG will not be responsible for any costs incurred by unauthorised approaches to external advisers or where information on legal action has been withheld by an individual or department. All costs incurred in such an eventuality, including any Court costs or judgements will be the responsibility of the individual or department concerned. 5 IMPLEMENTATION 5.1 Ratification This guidance was approved by the Senior Management Support Team on 5.2 Dissemination The author of this policy is responsible for contacting the Communications Team who will upload the master copy onto the CCG website, publicise it on the team brief, communication bulletin and intranet front page. 5.3 Training/Awareness Directors are responsible for ensuring that all staff are aware of this guidance. 5.4 Audit The Head of Governance will maintain records of contact with the legal advisors and retain the authorisations at Appendix A . 6 DUTIES AND RESPONSIBILITIES 6.1 Chief Executive, Chief Operating Officer and Directors The Chief Executive, Chief Operating Officer and Directors are the most senior managers in the CCG. They authorise all request for legal advice. Each has also nominated their specific deputies as authorised users. 6.2 Head of Governance The Head of Governance is responsible for acting as the “gatekeeper” to the solicitors and for monitoring all requests for advice to gain assurance that the request and the associated cost to the CCG are reasonable. That person will - ensure all monthly statements and invoices received from each solicitor is checked and signed by the relevant authorised user. - keep a record of all statements and invoices received. - authorise legal advice on behalf of the Governing Body. Page 5 of 15 6.3 Authorised Persons The following Senior Responsible Officer (SRO) of the CCG can access legal advice and authorise other staff to request legal advice: - Chief Executive - Director of Finance - Director of Performance - Chief Operating Officer - Head of Governance 6.4 All Staff All staff, including temporary and agency staff, must comply with this procedure 7 Dissemination and Implementation 7.1 The author of this policy is responsible for contacting the Communications Team who will upload the master copy onto the CCG website, publicise it on the team brief, communication bulletin and intranet front page.