Document Title Policy and Procedure for Accessing Legal Advice
Reference Number NTW(O)16
Lead Officer Executive Director of Nursing and Operations
Author New Author - Eric Jarvis Company Secretary
Ratified by Safety Domain
Date ratified 18th December 2007
Implementation Date April 2009
Date of full
implementation December 2008
Review date December 2013
Version 01.7
Version Type of
change Date Description of change V01 NEW Dec 07 NEW
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 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
Review and Amendment Log
V01.8 Update Jun 13 Review extended to Dec 13 This policy supercedes the following document:
Reference Number Title
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 15 Identification of Stakeholders 16 Equality and diversity
17 Implementation 18 Fair Blame 19 Associated documentation
Standard Appendices
Appendix A Equality and Diversity - Impact assessment Appendix B Training Checklist and Needs Analysis (to be
included in Version 02)
Appendix C Audit/Monitoring Tool (to be included in Version 02)
Appendix D Policy notification record sheet Appendices
Appendix 1 Trust personnel to be contacted when legal advice required
Appendix 2 Access to Legal Advice
Appendix 3 Freedom of Information Act Awareness – Guidance No: 4
1 Introduction
1.1 Eversheds, Solicitors provide the majority of legal services to Northumberland, Tyne and Wear NHS Foundation Trust (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.
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
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 & 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.
6.2.1 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 & 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 & Claims Manager/Divisional Managers/Divisional Directors/Modern Matrons and Heads of Clinical Service as appropriate.
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 & 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 & 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.
11.2 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.
11.3 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.
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.
11.5 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.
11.6 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.
12.2 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.
12.3 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
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
Appendix A Equality and Diversity Impact Assessment Screening Tool
Names of Individuals involved in Review
Date of Initial Screening
Review Date Service Area / Directorate Christopher Rowlands October 2007 TBA Trustwide
Policy or Service to be Assessed Access to Legal Advice
Is this a new or existing Policy or Service?
New Existing Describe the aims, objectives or
purposes of the Policy or Service
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?
Not Applicable
Does the policy or service promote good relations between different
groups within the community, based on mutual understanding and respect?
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)
What positive and negative impacts do you think there may be for each equality target
group(s)? Black and Minority Ethnic People
(including gypsy/travellers, refugees and asylum seekers) BME
Not Applicable
Women and Men WM Not Applicable
People in Religious/Faith groups RF Not Applicable
Disabled People DP Not Applicable
Older People OP Not Applicable
Children C Not Applicable
Young People YP Not Applicable
Lesbian Gay Bisexual and Transgender People LGBT
Not Applicable
People involved in the criminal justice system CJS
Not Applicable
Staff S Not Applicable
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?
Appendix D Policy Notification Record Sheet
Policy number NTW(O)16
Policy title Access to Legal Advice
Date issued June 13 – Extended review date to Dec 13 Date of full implementation Immediate
Directorate/Service/Ward/Department Received by
Date received
Date placed in policy file
I have read the above policy and understand its contents.
Name (print) Signature Designation Service/Ward/Dept. Date
This form is to be kept up to date at all times to act as a clear record that all relevant staff have received notification of the existence of the above policy, that they have read it and understood its contents. Form to be retained in the policy file in front of the policy specified.
Policies and policy index lists are available via Trust Intranet. Index lists are continually updated and current lists should be retained in front of policy files.
Appendix 1 Trust Personnel to be contacted when legal advice required
Subject Contact
Adverse Incidents/ Court Attendance/ Inquests/Letters from
solicitors/Claims/Statements
Incidents & Claims Manager
St Nicholas Hospital, Jubilee Road, Gosforth Newcastle upon Tyne NE3 3 XT
Tel: 0191 2232982 (Int Ext 32365) Fax: 0191 2232367 (Int Ext 32367)
Advance Decisions & Statements Mental Health Act Development Officer Knowle Court, Cherry Knowle Hospital Tel: 0191 5656256
Mobile: 078557 11987
Care Coordination Development/Trainer St. Nicholas Hospital –
Tel: 0191 2232272 – (Int. Ext: 28816)
Care Co-ordination Care Co-ordination Development/Trainer St Nicholas Hospital
Tel: 0191 2232272 (Int Ext 28816)
Complaints Head of Practice Development St Nicholas Hospital
Tel: 0191 2232611 (Int Ext 32611) Fax: 0191 2232367 (Int Ext 32367) Confidentiality/Disclosure/Health
Records/Communication from Police/Data Protection
Health Records Development Lead St Nicholas Hospital
Tel: 0191 2232733 (Int Ext 32733) Fax: 0191 2232205 (Int Ext 32205) Consent to Treatment/Mental Health Act Mental Health Act Development Officers
Cherry Knowle Hospital Tel: 0191 565 6256 – Mobile: 078557 11987 Northgate Hospital Tel: 01670 394849 – Mobile 07943812505
Head of Mental health and Health Records Tel: 0191 2232207 Fax: 0191 2232476
Corporate Governance Chief Executive St Nicholas Hospital
Tel: 0191 2232975/2232976 – (Internal Ext: 32975 /32976) Fax: 0191 2232978
Employment Law Director of Human Resources St Nicholas Hospital
Tel: 0191 2232984 – (Int Ext 32984) Fax: 0191 2232301 (Int Ext 32301)
Finance Associate Director-Finance & Business Support St Nicholas Hospital
0191 2232897 (Int Ext 32897)
Freedom of Information Information Governance Officer Northgate Hospital
Tel: 01670 394160 Fax: 01670 394054
MAPPA Divisional Manager (Forensic Services) Northgate Hospital
Tel: 01670 394064
Mental Capacity Act Mental Health Act Development Officer Knowle Court, Cherry Knowle Hospital Tel: 0191 5656256
Mobile: 078557 11987
Care Co-ordination Development/Trainer St Nicholas Hospital
Tel: 0191 2232272 (Ext 28816) Property Head of Property & Planning
Estates Department Northgate Hospital Tel: 01670 394180
Safeguarding Adults Head of Nursing, Learning Disability and Older People
Northgate Hospital (01670 394 651) Mobile: 07917 210 256
Safeguarding Children Trust Lead Nurse St Nicholas Hospital
Tel: 0191 2232751 (Int Ext 32751)
Trust Lead Doctor Young Peoples Unit
Newcastle General Hospital Tel: 0191 2195023
Safety (Risk Management), Security Management
Head of Safety St Nicholas Hospital
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)
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
Contact On-call Manager
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