Procedure for taking legal advice and instructing solicitors

Transcription

1 Procedure for taking legal advice and instructing solicitors Version: Version 2 Ratified by: Operational Management Executive Committee (OMEC) Date ratified: 20 May 2013 Name and Title of originator/author(s): Nicola Wright, Corporate Business Management Lead Name of responsible Director: Lee Whitehead, Director of People & Communications Date issued: 12 July 2013 Review date: 3 years from first publication Target audience: All Directors and Managers who may need access to legal advice Document History: Version 1, 1 May 2013: for consideration by Corporate Secretary Agreed by Lee Whitehead for submission to OMEC Version 2, : incorporating comments from OMEC. 1

2 Document Status This is a controlled document. Whilst this document may be printed, the electronic version posted on the intranet, and copied to the internet, is the controlled copy. Any printed copies of this document are not controlled. As a controlled document, this document should not be saved onto local or network drives but should always be accessed from the intranet. 2

3 Executive Summary Health Education England s (HEE) activities will generate occasions when it is necessary and appropriate to secure specialist legal support. This may include taking verbal advice or instructing solicitors to act on our behalf in relation to specific issues. The purpose of obtaining such legal advice is to ensure the activities of HEE are lawful. The purpose of this document is to set out the procedure for HEE staff to take legal advice and if necessary instruct solicitors. This procedure applies in all circumstances. Engaging solicitors can be an expensive budgetary commitment and therefore the organisation needs to ensure that solicitors are only contacted for specific purposes by designated people after exhausting internal knowledge and expertise. A record of all legal advice taken will be held by the Corporate Secretary. 3

4 Contents Paragraph Page 1 Introduction 5 2 Purpose 5 3 Scope 5 4 Duties 5 5 Procedure for taking legal advice 6 6 Procedure for instructing solicitors 7 7 Solicitor Costs 7 Annex A Flowchart for taking legal advice 8 Annex B Legal Advice Record 9 4

5 1. Introduction 1.1. Health Education England s (HEE) activities will generate occasions when it is necessary and appropriate to secure specialist legal support. This may include taking verbal advice or instructing solicitors to act on our behalf in relation to specific issues. The purpose of obtaining such legal advice is to ensure the activities of HEE are lawful and to support staff that may be required to give evidence in relation to legal matters Expertise exists within the organisation on a number of matters and wherever possible, this must be sought in the first instance. Should the level of in-house expertise be insufficient, HEE s legal advisors may be contacted. In order to control expenditure, reference to solicitors for legal advice must be made for specific purposes only and authorised by the designated staff listed in point This procedure will apply in all instances of referring to and instructing solicitors. HEE s appointed solicitors are Hill Dickinson Authorisation to instruct solicitors (not take advice) can only* be given by the Chief Executive, a Director of HEE or Managing Director of a LETB, following consultation with the Director of People & Communications or their delegated deputy, before proceeding. *If circumstances require action, the Chair may also instruct solicitors and should register this action with the Chair of the Audit Committee. 2. Purpose 2.1. The purpose of this document is to set out the procedure for HEE staff to take legal advice and if necessary instruct solicitors. This procedure applies in all circumstances. Engaging solicitors can be an expensive budgetary commitment and therefore the organisation needs to ensure that solicitors are only contacted for specific purposes by designated people after exhausting internal knowledge and expertise. Staff seeking legal advice need to be particularly aware of cases which may set a precedent leading to future litigation and where costs may escalate. 3. Scope 3.1. This procedure is intended to inform and guide all HEE Directors and Managers who may need access to legal advice. 4. Duties 4.1. The Corporate Secretary retains oversight of all HEE s interactions with our legal advisors. Contemporaneous records should be kept in respect of all contact and 5

6 correspondence with legal advisors, in accordance with HEE s Records Management Policy. On completion of the matter, all records must be returned to the Corporate Secretary On identifying a requirement to engage or instruct legal advisers, it is the responsibility of individual managers to ensure that correct procedures and chains of approval are sought 5. Procedure for Taking Legal Advice 5.1. Non-Executive Directors have access to HEE s legal advisers in respect of ensuring that their duties to HEE are fulfilled and that the actions recommended to the HEE Board are lawful Staff who require legal advice should follow the detailed flowchart set out at Annex A. In the first instance the need should be discussed with a Head of (direct report to a HEE Director or LETB Managing Director) to ensure he/she is aware of the problem, as they may be able to suggest a course of action to resolve the matter without the need for legal services. If the need is considered to be required the manager of the service must contact the respective in-house expertise from the list below (see table 1). Table 1 In-House Expertise Area Employment Law Designated Lead(s) 1 st point of contact 2 nd point of contact Gary Theobald Michelle Victor / Lauren Sanders Data Protection Helen Jackson Chris Brady Freedom of Information Helen Jackson Chris Brady Contracts and Procurement Alison Hunt Marc Ibbotson Statutory responsibilities Mike Jones Nicola Wright Other Mike Jones 5.3. If you are in any doubt, senior managers must contact the Corporate Secretary on /hee.corporatemanagement@nhs.net (stating Legal Advice in the subject) for guidance Following the in-house advice, if it is still considered necessary to take legal advice, contact the Director/Senior Manager for further discussion and to agree the budget code that the costs will be charged to (see point 18). 6

7 5.5. Contact the Corporate Secretary who will check the database of previous advice given All contact with solicitors is chargeable by them and it is therefore important that the questions/issues needing answering are fully prepared and documented in advance of the telephone conversation with them. Telephone calls should be limited to no longer than 15 minutes, wherever possible, in order to keep costs to a minimum. The precise timings of all calls must be recorded, using Annex B A detailed and legible record must be made of the contact using Annex B. This includes the date, precise timings of the start and end time (if a telephone call), the reason for the contact and the information supplied by them e.g. advice or referral Once fully completed, Annex B must be returned to the Corporate Secretary. 6. Procedure for Instructing Solicitors 6.1. Approval for instructing solicitors to act on behalf of HEE must be secured from the Chief Executive, a Director of HEE or Managing Director of a LETB, following consultation with the Director of People & Communications or their delegated deputy in advance of any communication with the solicitor. Written authorisation must be obtained and recorded on the case file, stating the actual date consent was given Solicitors will provide details of their agreement and requirements for instruction, including a written estimate identifying the area(s) for their actions and their terms of service. This instruction should be discussed with the appropriate Director or their designated deputy to ensure it is correct and acceptable A copy of the agreed instruction from the solicitor, ie the agreement between you and the solicitor must be sent to the Corporate Secretary. 7. Solicitor Costs 7.1. The cost of legal advice will be charged to the service area budget. The person requesting the advice must agree the budget source with the authoriser HEE receives solicitor invoices on a regular basis for the work they have undertaken on the organisation s behalf. The Corporate Secretary is responsible for maintaining an overview of the use of HEE s solicitors and for co-ordinating and reviewing any contractual arrangements on an annual basis. 7

8 7.3. Finance will collate and supply information as required to assist the analysis and monitoring of all legal expenditure. 8

9 ANNEX A: Flowchart for taking legal advice Not applicable to Non-Executive Directors Perceived need by employee Discuss with Director/Head of Is there still a need? No Yes No further action required Consult in-house expertise (if available) Is there still a need? No No further action required Yes Discuss with Director/ Head of. Is there still a need? No Yes No further action required Decide budget code Contact Corporate Secretary Database checked and solicitors contact given Prepare and write down exact questions you require answering Designated individual contacts solicitors and logs precise timings of call Document advice given Complete all sections of Annex B Send Annex B to Corporate Secretary NOTE: Please note the above procedure is for taking ADVICE from solicitors. If you are seeking to INSTRUCT solicitors (ie to act on HEE s behalf), please see point 6. 9

10 ANNEX B: Legal Advice Record SERVICE/FUNCTION AREA & DIRECTORATE: CONTACT AUTHORISED BY & DATE AUTHORISATION GIVEN: NAME OF CONTACT SOLICITOR AT HILL DICKINSON: TYPE OF CONTACT: (eg telephone/letter/ , etc) (and time start/finished if telephone contact) REASON ADVICE SOUGHT: DATE ADVICE RECEIVED:. ADVICE GIVEN OR REFERRAL DETAILS: Please return this completed form, along with a copy of the advice provided to: Mike Jones, Corporate Secretary, Health Education England: hee.corporatemanagement@nhs.net 10