Northumberland, North Tyneside, Newcastle North and East, Newcastle West, Gateshead, South Tyneside, Sunderland, North Durham, Durham Dales, Easington and Sedgefield, Darlington, Hartlepool and Stockton on Tees and South Tees Clinical Commissioning Groups Standard Operating Procedure CCG SOP09 Procedure for Obtaining Legal Advice Version 1 Implementation Date 01/04/2013 Review Date 30/04/2014 Approved By CCGs Approval Date 01/04/2013 Revisions Version Date Section Reason for Change Approved by Procedure Obsolete Date Reason Approved by CCG SOP09 Procedure for Obtaining Legal Advice
Procedure for Obtaining Legal Advice 1 Purpose The purpose of this procedure is to describe the system for identifying and providing legal advice, including access to external experts, avoiding unnecessary expenditure where the appropriate information or expertise exists within in house. It applies to all circumstances where legal advice is required in any issue connected with the business of the CCGs. 2 Who Will Be Affected By This Procedure? This procedure applies to all staff working within the CCGs. 3 Responsibility The CCG Accountable Officer is responsible for the dissemination and implementation of this procedure. 4 Content/Abbreviation Definitions For the purposes of this procedure, Northumberland, North Tyneside, Newcastle North and East, Newcastle West, Gateshead, South Tyneside, Sunderland, North Durham, Durham Dales, Easington and Sedgefield, Darlington, Hartlepool and Stockton on Tees and South Tees Clinical Commissioning Groups will be referred to as the CCGs. 5 Procedure for Obtaining Legal Advice 5.1 When might legal advice be required? 5.1.1 The purpose of obtaining legal advice is to ensure the activities of the CCGs are lawful and to support staff who might be required to give evidence in relation to legal matters. In addition, the governing body may require legal advice in respect of a particular agenda item, paper or decision. Examples (not exclusive or exhaustive) include: Policy development, decisions and implementation Contract and commercial law Corporate governance, public law and healthcare, Health and Social Care Act, prison health, mental health, other specialist services. Exceptional cases Judicial review CCG SOP09 Procedure for Obtaining Legal Advice 2
Clinical governance and the regulation of professions Corporate finance, investments, projects and partnership agreements Coroner s court and Inquests. Mental capacity, consent and treatment adults and children. Criminal and civil liabilities, third party claims Equality and Human Rights Acts Health and Safety, including corporate manslaughter Information governance - data protection, freedom of information, access to records 5.1.2 Knowledge and expertise exists within the CCGs on many of these and other matters, and 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. 5.1.3 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. 5.2 How can access to external legal advice be obtained? 5.2.1 Access to external legal advice can be obtained from the designated director, or directly by an authorised person. 5.2.2 The governing body or sub-committees may seek legal advice in respect of a specific agenda item, report, policy decision or corporate governance process. This may be in situations where the legal position is unclear or advice on the law is required. In such circumstances, the chair will request legal advice be obtained on a particular matter and the agenda item in whole or part may be deferred until appropriate advice is obtained in accordance with this procedure. 5.2.3 Senior managers, e.g. governing body members; accountable officer, may make direct contact with legal advisers for matters relating to legal issues within their own sphere of authority. 5.2.4 In certain circumstances where there is a regular requirement for legal advice, other managers may be designated authorised persons to deal CCG SOP09 Procedure for Obtaining Legal Advice 3
direct with the appropriate legal advisers. This authorisation must be approved by the relevant director. 5.3 Requesting legal advice 5.3.1 For certain matters it may be possible to obtain legal advice quickly over the telephone. 5.3.2 To assist the legal advisers to provide comprehensive advice, where possible include details of all relevant factors, provide or reference all relevant documentation and outline specific issues on which advice is being sought. 5.3.3 Any guidance or advice given should ideally 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. 5.4 Who provides professional legal advice? 5.4.1 The CCGs have agreements with a number of different law firms to provide specialist advice. This enables a range of options, for example relating to the individual expertise of the particular firm, the availability of alternative advice in the case of a conflict of interest, or in the interests of continuity for a particular service or department. 5.4.2 Contact details for the current list of law firms can be found at Appendix 1. 5.5 Who will pay for legal advice? 5.5.1 The cost of legal advice will normally be met by the CCGs budget, except in situations where the matter is not within the remit of the CCGs. 5.6 Recording and monitoring 5.6.1 Details of all legal advice requested and received should be passed to the designated director for inclusion on the legal advice database. This will provide monitoring and audit information which will be reviewed by the relevant governance committee, and contribute to the development of a knowledge base on legal matters. CCG SOP09 Procedure for Obtaining Legal Advice 4
5.6.2 Any problems or complaints associated with the provision of legal advice should be reported to the designated director, who will bring them to the attention of the accountable officer. 5.7 Risk management Risks identified through the legal process should be documented in line with the risk management strategy. 6 References Incident Reporting Policy Serious Incidents (SIs) Management Policy Cabinet Office (1998) Human Rights Act 1998. London. HMSO. Cabinet Office (2000) Freedom of Information Act 2000. London. HMSO. Cabinet Office (2005) Mental Capacity Act 2005. London. HMSO. Cabinet Office (2006) Equality Act 2006. London. HMSO. Cabinet Office (2007) Corporate Manslaughter and Corporate Homicide Act 2007. London. HMSO. Act Cabinet Office (2007) Mental Health Act 2007. London. HMSO. Health and Safety Executive (1974) Health and Safety at Work Etc. Act 1974. London. HMSO. HM Courts and Tribunals Service (2012) Civil Procedure Rules. http://www.justice.gov.uk/courts/procedure-rules/civil 7 Consultation Policy and Corporate Governance Lead (NHSCDD) Senior Manager, Corporate Affairs (NoTW) Information Governance Advisor (Tees) Governance Lead (SoTW) CCG SOP09 Procedure for Obtaining Legal Advice 5
Appendix 1 List of approved legal firms Please contact the Accountable Officer if you intend to use a legal firm not on this list. Firm Specialist areas Contact name Contact number Address: Beachcroft Capsticks Clinical negligence, Healthcare, Prison healthcare. Healthcare legal advice including: - Consultation - Judicial Review - Service reconfiguration David Weatherburn Peter Merchant Gerard Hanratty (Partner) 0191 404 4040 0113 251 4806 Dir Tel: 0208 780 4837 E-mail: Gerard.Hanratty@capsticks.co m Website: www.capsticks.com London Office (general) Dir Tel: 020 8780 2211 Newcastle office & 7 Park Square East Leeds LS1 2LW London Office 1 George s Road London SW19 4DR Crutes Eversheds Hempsons James Button & Co, Solicitors Public Health Information Unit Ward Hadaway Employment law, Independent contractor regulation, Inquests, Judicial review, Corporate structures and accountabilities Healthcare regulation, Employment law, Mental capacity, Inquests, Prison healthcare, Court procedures, Health and safety. Clinical negligence, Healthcare, Employment, Consent/capacity, Mental health, Procurement, Corporate manslaughter; Inquests, Data protection, Freedom of information. Healthcare Specialist public health (via Directors of Public Health only) Commercial, Procurement, Real estate, PFI, Employment Stuart Palmer 0191 233 99700 Great North House Sandyford Road Newcastle NE1 8ND Bill Gilliam 0845 497 9797 Central Square South Orchard Street Newcastle NE1 3XX Adrian Parker 01423 724029 The Exchange Station Parade Harrogate HG1 1DY Jamie Foster 020 7484 7594 London James Button 01629 735566 7 Devonshire Drive Matlock Derbyshire DE4 2HB Jeffrey Keeble 0191 204 4312 Sandgate House, 102 Quayside, Newcastle NE1 3DX CCG SOP09 Procedure for Obtaining Legal Advice 6