Legal Advice Procedure

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1 Lincolnshire Partnership NHS Foundation Trust (LPFT) Legal Advice Procedure Document Type and Title: DOCUMENT VERSION CONTROL Corporate Governance Document Authorised Document Folder: New or Replacing: Corporate Replacing Document Reference: Version No: 1.1 Date Document First Written: September 2007 Date Document First Implemented: September 2007 Date Document Last Reviewed and Updated: September 2015 Implementation Date: 2012 Author: Approving Body: Trust Secretary Executive Team Approval Date: 23 September 2015 Ratifying Body: Executive Team Ratified Date: 23 September 2015 Committee, Group or Individual Monitoring Trust Secretary the Document Review Date: December

2 Contents 1. Introduction 2. Status and scope of procedure 3. Circumstances which may require specialist advice 4. Accessing advice through the Corporate and Legal Services Department 5. Accessing external legal advice 2

3 1. Introduction Lincolnshire Partnership NHS Foundation Trust (LPFT) is a specialist mental health, substance misuse and learning disabilities NHS Foundation Trust. By the nature of the Trust s business and in its position as a public authority legislative compliance is a statutory duty. Many legislative duties and functions are discharged on a daily basis, through staff being aware of and complying with their own responsibilities as employees, and acting in accordance with their own professional codes of conduct, as well as through the development and implementation of policies and procedures. However, there may be occasions where it will be necessary to obtain legal advice. 2. Status and scope of procedure This procedure applies to all LPFT staff. This procedure describes the system for identifying and accessing legal advice, including access to external experts, avoiding unnecessary expenditure where the appropriate information or expertise exists in house. It applies to all circumstances where legal advice is required in any issue connected with the business of LPFT. The purpose of obtaining legal advice is to ensure that activities of the organisation are lawful, and to support staff who might be require to give evidence in relation to legal matters. This policy will be reviewed annually. 3. Circumstances which may require specialist advice Examples include: Bribery Clinical governance Commercial activities Contracts Coroner Inquests Corporate governance Corporate Manslaughter Employment Equality and human rights Finance Fraud Health and safety Health and social care Information governance, data protection, freedom of information, access to records Insurance Judicial review Litigation and third party claims Mental capacity Mental health Risk management Specialist services This list is not exclusive or exhaustive 3

4 3.1 In circumstances where advice is sought, it will firstly be necessary to consult specialist departments with the Trust to obtain initial guidance and to agree a proposed course of action. Appendix A attached provides a list of useful contact numbers, where initial advice should be sought 3.2 In circumstances where more specialist knowledge and expertise is required, the Trust will seek advice/opinion from relevant private expert bodies approved by the Trust, if the matter cannot be resolved through Legal Services. Such appointment of experts will be in accordance with Standing Financial Instructions to ensure quality and value for money. 3.3 Where the Trust obtains specialist advice, such will be audited through scrutiny of budgets and through the logging of usage and reporting by line managers. 3.4 To determine whether professional legal advice may be required, consideration should be given to the following:- 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. Accessing advice from Legal Services 4.1 Legal Services can offer advice on the following:- General legal queries Disputed Capacity Assessments When to refer cases to the Court of Protection Solicitors correspondence (with the exception of access to records) Advice and preparation of witness statement Advice on court attendance and etiquette Coroner s Inquests advice, preparation of evidence and representation Instruction of external advice Freedom of Information requests and responses 4.2 All requests for advice must be in writing (preferably by ) and addressed to the Legal Services Department. 4.3 The Legal Services Department will provide advice in writing, unless in exceptional circumstances. 4.2 Staff who receive notification of any proposed legal action, court orders or witness summons, are required to contact Legal Services at the earliest opportunity. 4.3 The Legal Services Department act as the main point of contact with the NHS Litigation Authority, to oversee and manage clinical negligence and non-clinical claims. Staff must forward any relevant documentation received, associated with such claims, and cooperate with Legal Services with any requests for information needed to facilitate such claims, without delay. 4

5 5. Accessing external legal advice 5.1 Access to legal advice can be obtained through the Legal Services Department. If the matter cannot be resolved internally, appropriate external advice will be requested where necessary. 5.2 Before specialist and external advice is sought, an instructing officer must be established ie a person who will centrally co-ordinate the obtaining and dissemination of the advice. The instructing officer will be of a Band 8 position or above. 5.3 The request for external advice required, should be clearly set out in writing and addressed to the Legal Services Department, giving as much detail and relevant information as possible. 5.4 The instructing officer will log the matter and keep and written record of the progress and outcome, to be retained for audit purposes. 5.5 The Chief Executive, Directors and the Trust Secretary or other senior managers with appropriate authorisation in accordance with the Trust s Scheme of Delegation, may make direct contact with external experts to seek advice within their own sphere of authority. 5.6 Any arrangements regarding billing, invoicing or payment must be agreed with the Trust budget holder to which the charges will be made. Failure to do this may result in the instructing officers department being recharged from local budgets. 5.7 The chosen external advice must be sought from a reputable and agreed firm/company and the person giving the advice must be appropriate qualified and insured to provide such advice. Reference and appropriate checks must be made on any agent holding him/herself up as an agent of the firm/company. 5

6 Appendix A Useful contact numbers Area Trust department Contact Telephone Number Initial Request for Legal Services LPFT Legal Services Advice Employment/staffing Human Resources Head of Human issues Resources Mental Health Act Legal Services LPFT Legal Services general Department Mental Health Act Mental Health Act MHA Administration (queries relating to Administration Team Trust compliance and advice on validity on section paperwork, Hospital s Hearings and Tribunal applications Insurance, CNST, Legal Services Legal Services Claims Schemes, Indemnity Claims Legal Services Trust Secretary Complaints Communications and Complaints Patient Experience Estates, buildings, LSS Estates Estates Legal Services properties, facilities, utilities Medical Human Resources Associate Director of Workforce and Development Audit Finance and Director of Finance Assurance and Compliance Approved Mental Lincolnshire County Health Professional Council Legal duties Department Security Security Management Security Management (x7573) Specialist Mental Capacity Act Social Care Professional Social (Best Interest Work Lead Assessment) Mental Capacity Act Safeguarding Safeguarding (Deprivation of Liberty) Consultant Data Protection Informatics Head of Information Act/Information Governance Governance Freedom of Legal Services Legal Services Information Act Human Rights Legal Services Legal Services Commercial and Office of Chairman Trust Secretary Business and Chief Executive Development Health and Social Office of Chairman Trust Secretary Care Policy and and Chief Executive Governance 6

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