Executive Director of Nursing and Operations New Author - Eric Jarvis Company Secretary

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1 Document Title Reference Number Lead Officer Author Policy and Procedure for Accessing Legal Advice NTW(O)16 Executive Director of Nursing and Operations New Author - Eric Jarvis Company Secretary Ratified by Safety Domain Date ratified 18 th December 2007 Implementation Date April 2009 Date of full implementation December 2008 Review date October 2015 Version V01.13 Version Type of change Date V01 NEW Dec 07 NEW Description of change V01.1 Update Feb 08 Updated contact details V01.2 Update Apr 09 New NTW structures V01.3 Update Feb 10 Review extended June 10 V01.4 Update May 10 Review extended Nov 10 V01.5 Update Jan 11 Review extended Mar 11 Review and Amendment Log V01.6 Update Mar 11 Review extended May 11 V01.7 Update May 11 Review extended Nov 11 From January 2012, Senior Management Team approve all policy documentation From November 2012, Trust wide Policy Group approve policy documentation V01.8 Update Jun 13 Review extended to Dec 13 V01.9 Update Mar 14 Review extended to Sep 14 V01.10 Update Sep 14 Review extended to Dec 14 V01.11 Update Dec 14 Review extended to Mar 15 V01.12 Update Mar 15 Review extended to Jun 15 V01.13 Update Sep 15 Review extended to Oct 15 This policy supercedes the following document: Reference Number Title NTW(O)16 V01.12 Accessing Legal Advice

2 Policy and Procedure for Accessing Legal Advice Section Content Page No: 01 Introduction 1 02 Policy Statement 1 03 Access During Working Hours 1 04 Out of Hours Access 2 05 Recognisable Situations 2 06 Responsibilities 3 07 Professional Issues 3 08 Clinical Negligence Claims 3 09 Non-Clinical Negligence Claims 4 10 Inquests 4 11 Additional Information (Woolf Returns) 4 12 Training 5 13 Staff Support 5 14 Freedom of Information 5 15 Identification of Stakeholders 5 16 Equality and diversity 6 17 Implementation 6 18 Fair Blame 6 19 Associated documentation 6

3 Standard Appendices Appendix A Equality and Diversity - Impact assessment 7 Appendix B Appendix C Appendix D Training Checklist and Needs Analysis (to be included in Version 02) Audit/Monitoring Tool (to be included in Version 02) Policy Notification Record Sheet - click here Appendix 1 Appendices Trust personnel to be contacted when legal advice required 10 Appendix 2 Access to Legal Advice 12 Appendix 3 Freedom of Information Act Awareness Guidance No: 4 13

4 1 Introduction 1.1 Eversheds, Solicitors provide the majority of legal services to (the Trust - save in the field of Human Resources and some property services). 1.2 The purpose of this document is to inform staff of the process to be followed if any legal matter arises in the course of their duties and/or legal advice is required because a problem has arisen. 1.3 This procedure enables the Trust to coordinate all legal issues centrally. Relaying questions and subsequent answers via this procedure will allow the Trust to establish an information base which will prevent the same questions being raised with the legal advisors. 2 Policy Statement 2.1 The basis of a good organisation is a well organised and understood system for dealing with legal queries quickly and effectively and making use of the information in a way as to avoid duplication and constant use of the Trust Legal Representatives. It is also imperative that staff are aware of the support available, both internally and externally. 2.2 The Trust is responsible for handling any legal claims against it. These claims can arise from many different sources, such as treatment given, accidents that occur on Trust premises, accidents occurring whilst staff are at work, disputes on contracts and employment issues (Trust Policy NTW(0)06 Litigation and Claims Management). 2.3 The Trust is committed to ensuring that appropriate and timely legal advice is available to all personnel. 3 Access during working hours (Monday to Friday 9.00 am 5.00 pm) 3.1 Within the Trust there are corporate personnel who have particular specialist knowledge. They will help you seek the appropriate legal advice (if they are unable to answer your query) by either contacting the solicitors themselves or giving you the name and telephone number of the appropriate solicitor (in the case of emergency) so you can talk to them direct. The corporate personnel may also know someone within the Trust who can help with a particular issue. The corporate staff, (with their specialties) are listed at Appendix 1. These staff should always be contacted in the first instance. 3.2 In all circumstances where advice is sought from the Trust legal representatives, by individual Trust personnel, the outcome must be reported to the corporate contact. This will allow the Trust to monitor the use of our legal representatives, expenditure on legal fees and note the advice given for future reference. 1

5 3.3 The process for seeking legal advice during working hours is at Appendix 2. 4 Out of Hours access (After 5.00 pm until 9.00 am Monday to Friday and all day Saturday/Sunday) 4.1 Should an emergency arise and staff require access to legal advice out of normal office hours, the Trust solicitors provide a National 24 hour Help Line for medical negligence, clinical complaints and clinical issues. Their 24-hour Helpline number is held via your service on-call Manager and on-call Director. It may be that the on-call Manager or Director can address the issue without going through the legal representatives. The on-call Manager however, must seek the on-call Director s permission to contact the Trust legal representative. If legal advice is sought out of hours, the appropriate central liaison person in the Trust should be notified of any direct contact with the outcome, at the next working day. 4.2 The process for accessing legal advice out of hours is attached at Appendix 2. 5 Recognisable situations 5.1 There are numerous situations in staffs day-to-day work, which may arise where it may be appropriate to seek legal advice: Letters from solicitors An indication that a complaint may turn into a legal issue. Difficulties regarding consent to treatment. Confidentiality/Disclosure Inquests. Involvement of health personnel as witnesses. Health personnel being asked to supply statements. Communications from the police. Safeguarding Children. Contractual issues. Letters from the general public/solicitors re staff accidents/negligence claims. Problems relating to the ownership and management of property/estates. Mental Health Act Safeguarding Adults MAPPA This list is not exhaustive 2

6 6 Responsibilities 6.1 Where letters/pre-action protocols, initiating a claim or possible claim arrive from a patient, carer, employee, visitor or solicitors acting on behalf of any such persons, then these letters should be passed immediately to the Incidents and Claims Manager, without acknowledgement to any third party. 6.2 The Incidents and Claims Manager will liaise and advise staff in respect of any steps they are required to take Legal expenses in relation to any claim or legal advice should not be incurred without the authority of one of the member of staff listed in Appendix 1, the on-call manager or Director on Call. 7 Professional issues 7.1 Any professional issues should first be discussed with your Head of Profession. If it is apparent that there may be legal problems, you should then follow the Access to Legal Advice process. 8 Clinical Negligence Claims 8.1 In cases where a claim is being made for compensation arising out of alleged clinical negligence, the first step is to pass the correspondence to the Incidents and Claims Manager. It is extremely important that this is done immediately. Under the Woolf Reforms, the Trust has 14 days to acknowledge receipt of such claims and 40 days to supply medical records. The Trust must be in a position to defend/not defend any such claims within three months from the receipt of a full letter of claim. Time is of the essence, as monetary penalties will be incurred if claims are not dealt with within the given timescales. 8.2 The medical records (if in your possession) should be forwarded to the Incidents and Claims Manager with the request, who will arrange any photocopying. If you do not hold the medical records, it would be helpful if, when sending the notification, you could note where the records may be obtained. 8.3 The Incidents and Claims Manager will contact the clinical personnel who appear to be involved in the case and notify the Divisional Director/Divisional Manager/Chief Executive/Medical Director and Executive Director of Nursing and Operations. It may be necessary to identify staff and assist in making arrangements for them to be interviewed. 8.4 Initial reports may be requested from medical and nursing staff and support will be given to them via the Incidents and Claims Manager/Divisional Managers/Divisional Directors/Modern Matrons and Heads of Clinical Service as appropriate. 3

7 9 Non Clinical negligence claims 9.1 The largest single group of these consist of accidents involving staff, for example, staff in lifting injury cases, slipping or tripping. Patients and visitors may also seek compensation from the Trust in respect of accidents that occur on Trust premises. 9.2 In all of these cases details should be forwarded to the Incidents & Claims Manager. Please do not make any acknowledgement to any third party as this may prejudice the settlement of the claim. 9.3 All personal injury claims now follow the Woolf Pre-Action Protocols and must be acknowledged within 21 days of receipt by the Incidents & Claims Manager. They must also be investigated and a decision taken on liability within three months of the acknowledgement, time being the essence. 9.4 The Incidents and Claims Manager will contact the appropriate Divisional Director/Divisional Manager/Chief Executive/Medical Director and Director of Nursing and liaise with the appropriate Patient Safety officer to search for disclosure information. 9.5 Please refer to Trust Policy NTW(O)6 Litigation and Claims management, for a full description of the process. 10 Inquests 10.1 Where the Trust personnel are informed that an inquest is to be held or is likely to be held following an untoward/unexpected death, the Incidents & Claims Manager should be notified immediately. The Incidents and Claims Manager will make contact with the Coroner s Office and the Trust solicitor if appropriate. All communication, including the preparation of statements, must be done via the Incidents & Claims Manager. The Incidents and Claims Manager will co-ordinate this work. (See Trust Policy NTW(O)05 - Incidents Procedure) 10.2 Statements requested by H M Coroner should be produced within one month of the untoward/unexpected death. 11 Additional Information Woolf Reforms 11.1 The Civil Procedure Rules regarding pre-action protocols were introduced on 26 April 1999 for both clinical and non-clinical personal injury claims. These protocols have a substantial impact on the way claims are handled All claims must now be investigated and a decision on liability reached within three months of the letter of claim being received by the Trust All supporting documentation must be produced at this time and failure to produce the relevant documents could lead to the Trust having to settle a claim which could otherwise be defended. 4

8 11.4 The co-operation of staff in searching and providing the relevant documentation within the timescales forms a crucial part of the investigation process and services should review their storage and archiving of documents for ease of retrieval The Court has the power to order cost penalties payable by the parties personally for failure to comply with Court Orders. Also a party s pre-action behaviour is taken into account by the Court in awarding costs, e.g. failure to comply with a pre-action protocol may result in indemnity costs and interest of up to 10% above base rate being ordered If the Trust is unable to defend a claim as a result of the necessary documentation not being provided on time, the Director of Finance may allocate the costs of any compensation paid to the Claimant, to the service involved. 12 Training 12.1 Eversheds offer to the Trust three days of corporate free training per annum. This training will be co-ordinated from the centre. If requests are made from Trust personnel about specific training issues, if they are not already contained in the training pack, we will ask that they be included Any special requests for training, over and above the allocated corporate free days, must be paid for from the individual service budget. The Trust will however, do its utmost to ensure that training needs are met through the free training The Trust legal representatives will send a quarterly report on free training carried out, together with an outline of subjects requested by individual services. 13 Staff Support 13.1 Any member of staff requiring legal support in connection with their Trust business should contact the appropriate Trust personnel (Appendix 1). 14 Freedom of Information 14.1 Appendix 3 is the Freedom of Information Act Awareness Guidance No: 4 published by the Information Commissioner s Office and explains legal professional privilege. 15 Identification of Stakeholders 15.1 The consultation of this policy has been carried out in line with Section 7 within the Trust s policy, NTW(O)01 Development and Management of Procedural Documents 5

9 16 Equality and Diversity assessment 16.1 In conjunction with the Trust s Equality and Diversity Officer this policy has undergone an Equality and Diversity Impact Assessment which has taken into account all human rights in relation to disability, ethnicity, age and gender. The Trust undertakes to improve the working experience of staff and to ensure everyone is treated in a fair and consistent manner 17 Implementation 17.1 Taking into consideration all the implications associated with this policy, it is considered that a target date of (one year from date of issue) is achievable for the contents to be embedded within the organisation. 20 Fair Blame 20.1 The Trust is committed to developing an open learning culture. It has endorsed the view that, wherever possible, disciplinary action will not be taken against members of staff who report near misses and adverse incidents, although there may be clearly defined occasions where disciplinary action will be taken. 21 Associated documentation NTW(O)01 - Development and Management of Procedural Documents NTW(O)05 Incident Policy NTW(O)06 Litigation and Claims Management 6

10 Appendix A Equality and Diversity Impact Assessment Screening Tool Names of Individuals involved in Date of Initial Review Date Service Area / Review Screening Directorate Christopher Rowlands October 2007 TBA Trustwide Policy or Service to be Assessed Access to Legal Advice Describe the aims, objectives or purposes of the Policy or Service Is this a new or existing Policy or Service? New Existing This procedure enables the Trust to co-ordinate all legal issues centrally. Relaying questions and subsequent answers via this procedure will allow the Trust to establish an information base which will prevent the same questions being raised with the legal advisors. Are there any associated objectives of the Policy or Service? If so what are they? Does the policy unlawfully discriminate against equality target groups? No Does the policy promote equality of opportunity for equality target groups? Does the policy or service promote good relations between different groups within the community, based on mutual understanding and respect? Not applicable 7

11 Equality and Diversity Impact Assessment Screening Tool Which equality target groups of the population do you think will be affected by this policy or function? Equality Target Group (code in bold type) Black and Minority Ethnic People (including gypsy/travellers, refugees and asylum seekers) BME Women and Men WM What positive and negative impacts do you think there may be for each equality target group(s)? People in Religious/Faith groups RF Disabled People DP Older People OP Children C Young People YP Lesbian Gay Bisexual and Transgender People LGBT People involved in the criminal justice system CJS Staff S Any other group(s) AOG 8

12 Equality and Diversity Impact Assessment Screening Tool Screening Tool Checklist: Summary Sheet Positive Impacts (Note the code of groups affected) Negative Impacts (Note the code of groups affected) Additional Information and Evidence Required Recommendations Add Equality and Diversity Officer contact details to Appendix 1 From the outcome of the Screening, have negative impacts been identified for race or other equality groups? Yes No If yes, has a Full Impact Assessment been recommended? If not, why not? Manager s signature: Date: December

13 Appendix 1 Trust Personnel to be contacted when legal advice required Subject Adverse Incidents/ Court Attendance/ Inquests/Letters from solicitors/claims/statements Contact Incidents & Claims Manager St Nicholas Hospital, Jubilee Road, Gosforth Newcastle upon Tyne NE3 3 XT Tel: (Int Ext 32365) Fax: (Int Ext 32367) Advance Decisions & Statements Mental Health Act Development Officer Knowle Court, Cherry Knowle Hospital Tel: Mobile: Care Coordination Development/Trainer St. Nicholas Hospital Tel: (Int. Ext: 28816) Care Co-ordination Care Co-ordination Development/Trainer St Nicholas Hospital Tel: (Int Ext 28816) Complaints Head of Practice Development St Nicholas Hospital Tel: (Int Ext 32611) Fax: (Int Ext 32367) Confidentiality/Disclosure/Health Records/Communication from Police/Data Protection Consent to Treatment/Mental Health Act Health Records Development Lead St Nicholas Hospital Tel: (Int Ext 32733) Fax: (Int Ext 32205) Mental Health Act Development Officers Cherry Knowle Hospital Tel: Mobile: Northgate Hospital Tel: Mobile Head of Mental health and Health Records Tel: Fax:

14 Corporate Governance Chief Executive St Nicholas Hospital Tel: / (Internal Ext: /32976) Fax: Employment Law Finance Freedom of Information MAPPA Mental Capacity Act Director of Human Resources St Nicholas Hospital Tel: (Int Ext 32984) Fax: (Int Ext 32301) Associate Director-Finance & Business Support St Nicholas Hospital (Int Ext 32897) Information Governance Officer Northgate Hospital Tel: Fax: Divisional Manager (Forensic Services) Northgate Hospital Tel: Mental Health Act Development Officer Knowle Court, Cherry Knowle Hospital Tel: Mobile: Care Co-ordination Development/Trainer St Nicholas Hospital Tel: (Ext 28816) Property Head of Property & Planning Estates Department Northgate Hospital Tel: Safeguarding Adults Safeguarding Children Head of Nursing, Learning Disability and Older People Northgate Hospital ( ) Mobile: Trust Lead Nurse St Nicholas Hospital Tel: (Int Ext 32751) Trust Lead Doctor Young Peoples Unit Newcastle General Hospital Tel: Safety (Risk Management), Security Management Head of Safety St Nicholas Hospital Tel: (Int. Ext 32322) 11

15 Appendix 2 ACCESS TO LEGAL ADVICE Office Hours - Monday to Friday 9.00 am 5.00 pm Out of Hours 5.00 pm 9.00 am Monday to Friday and all day Saturday and Sunday Contact appropriate Trust Personnel (Appendix 1) Contact On-call Manager If able to answer query, no further action required If unable to answer query, is it an emergency? If yes, the Trust solicitors number will be given to the caller to access personally If no, enquiries will be made by the appropriate named person, to others in the Trust, who may have expertise in the particular issue When appropriate advice has been given, by solicitor, the person receiving that information must advise the named personnel (in writing) of the question and advice given If able to answer query, no further action required If unable to answer query, is it an emergency? The on-call manager will contact the on-call Director who will either be able to answer the query, or give authority to contact Trust solicitor When appropriate advice has been given, by solicitor, the person receiving that information must advise the named personnel (in writing) of the question and advice given Contact with the On-Call Manager should be made via the appropriate hospital switchboard and staff should be clear that they are wanting the on-call manager for a particular service, e.g. Adult Mental Health, Older Peoples Services, etc 12

16 Appendix 3 13

17 14

18 15

19 16

20 17

21 18

22 19

23 20

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