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ACT HealthProcedureRequests for Legal AdviceContents

Contents....................................................................................................................................1

Purpose.....................................................................................................................................2

Scope........................................................................................................................................ 2

Roles and Responsibilities.........................................................................................................2

Procedure Section 1 – Requesting Legal Advice........................................................................3

Procedure Section 2 – Legal Professional Privilege...................................................................4

Procedure Section 3 – Urgent or After Hours Legal Advice.......................................................5

Procedure Section 4 – Seeking Advice from the Private Sector................................................5

Procedure Section 5 – Legal Advice Database (LAD).................................................................6

Implementation........................................................................................................................ 6

Evaluation................................................................................................................................. 6

Related Policies, Procedures, Guidelines, Frameworks, Standards and Legislation..................7

Search Terms............................................................................................................................ 7

Attachments..............................................................................................................................7

Attachment A - Request for Legal Advice form.....................................................................9

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Purpose

This procedure outlines the process to be followed by ACT Health staff when seeking legal assistance from the ACT Government Solicitor (ACTGS) or from external legal firms within the private sector. It aims to streamline the management of legal services provided to ACT Health through a centralised and consistent approach to the management of requests for legal advice coordinated through the Insurance and Legal Liaison Unit (ILLU).

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Scope

This procedure pertains to all staff of ACT Health and operates in conjunction with the overarching Insurance and Legal Management Policy.

Staff are able to seek legal advice on a range of issues, for example: procurement and contractual matters, fees and charges, intergovernmental arrangements, Memorandum of Understandings, compliance matters, duty of care issues, power of attorney and guardianship issues, mental health treatment and care provision matters, discrimination issues, privacy matters, and subpoenas.

Out of scope ACT Insurance Authority (ACTIA) Business - Any incidents and/or third party accidents or

circumstances that may lead to a legal claim against ACT Health should be notified to ACTIA through ILLU. In these circumstances, ACTIA will instruct the ACTGS to provide advice, defend the interests of ACT Health and the Territory and pay for any legal and investigative costs.

Employee Practices - All requests should be made to People and Culture, Quality, Governance and Risk in the first instance. Unless otherwise directed, People and Culture staff will coordinate the legal advice request through the retainer agreement with ACTGS.

Freedom of information Act 2016 - All requests should be made to the ACT Health FOI team in the first instance. Unless otherwise directed, the FOI team will coordinate the legal advice request to ILLU in accordance with this procedure if required.

Public Interest Disclosure Act 2012 - All requests should be made through the Designated Disclosure Officer, Executive Director, People and Culture, QGR in the first instance.

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Roles and Responsibilities

ACT Government Solicitor (ACTGS)Services provided by the ACTGS include: Preparation of legal agreements and legal documents;

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Provision of advice to ensure that the Territory and agencies and officers are aware of their legal rights and obligations and act within the limits of their power and in accordance with the law;

Recovering money payable to the Territory including, where necessary instituting legal proceedings on behalf of revenue collection authorities;

Protecting the Territory from claims without legal merit and attempting to minimise amounts paid in satisfaction of claims against it in cases where liability exists; and

Conducting litigation within the policy that the Crown acts as a model litigant.

Insurance and Legal Liaison Unit (ILLU)The Insurance and Legal Liaison Unit sits within the Quality, Governance and Risk division of ACT Health and was established to provide a central coordination and liaison point for all insurance and legal matters. ILLU performs the following broad functions in respect of this procedure: provides advice on appropriateness of seeking formal legal advice and reviews all

requests prior to referring it for advice to the ACTGS; coordinates the provision of all insurance and legal advice on behalf of ACT Health

through liaison with ACTIA and ACTGS; manages the evaluation and reporting requirements of this procedure; and maintains a register of legal advice provided within the Legal Advice Knowledge

Database (LAD).

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Procedure Section 1 – Requesting Legal Advice

1. Where advice concerning a legal matter is required, before seeking advice staff should: Establish whether the request is within the scope of this procedure; Consider the prevalent issues carefully and consult internally with relevant

stakeholders; Identify all the issues and all relevant background material; Identify specific areas of concern that may require legal advice; Consider any previous related advice or information on identified concerns (Contact

ILLU who may hold similar or related advice within the LAD); and Identify and consult with the area with policy responsibility for the legislation

requiring interpretation. 2. Unless otherwise stated within this procedure, all requests are to be made in writing

using the ACT Health Request for Legal Advice Form which is available on the Intranet (Attachment A). a. Please ensure that all fields are completed appropriately otherwise it may cause

delays with processing; b. Carefully consider the options in relation to response timeframe. Where you believe

that a urgent or semi-urgent response is required please ensure a clearly articulated reasoning is provided along with details of specific timeframes you are working to ensure that ACTGS can adequately prioritise the workload; and

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c. The request must be authorised by your manager/director or above and, depending on your management structure, cleared through your Executive Director before being directed to ILLU.

3. All authorised requests along with any relevant supporting documents should be emailed in PDF and word format (wherever practicable) to ACTHealthILLU@act.gov.au or mailed to ILLU, Level 3, 2-6 Bowes St, Phillip ACT 2606.

4. ILLU will review it and forward the request on your behalf to the ACT Government Solicitor’s Office and enter the request into the Legal Advice Database (LAD). If any amendments arise from ILLU’s review, ILLU will consult with the requesting area prior to referring it to ACTGS.

5. The ACTGS will liaise with the contact officer if further information is required and/or provide the advice with a copy to ILLU.

6. Once the advice has been allocated to a solicitor, the contact officer should follow up with the solicitor with regards to any timeliness issues in the first instance. Please contact ILLU if you have any difficulties and ILLU will follow it up on your behalf.

7. The requesting area will store the original advice in accordance with ACT Records Management Policy. In addition, ILLU will upload the advice into the LAD for future reference.

NOTE: The ACTGS will not provide legal advice to any staff member of ACT Health where ILLU

has not processed the request; Where possible, seek advice early in the process, set realistic timeframes for the

response and be prepared for delays where there is high demand for legal services; Remember that a definitive response to complex matters or hypothetical cases may not

be possible; If needed, follow up with further questions soon after receiving the advice; Do not shop around for favourable advice; and Let ILLU and ACTGS know promptly if circumstances have changed that may impact on

the advice or if the advice is no longer required.

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Procedure Section 2 – Legal Professional Privilege

Maintain legal professional privilege over legal advice at all timesDisclosure of the request for, or receipt of, legal advice is likely to lead to the loss of any legal professional privilege attached to the advice, which may ultimately lead to its disclosure to the other party. This can be preserved by refraining from disclosing the substance or conclusions of the advice to a person who is not employed by the Territory, and by not referring to the fact that legal advice was sought.

In relying on legal advice provided by ACTGS, you should note the excerpt below, which prohibits the waiver of legal professional privilege unless expressly approved by the Attorney General or the Chief Solicitor on his behalf. Therefore, you must consult with the solicitor that provided the legal advice before considering any disclosure.

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Excerpt from Law Officers (General) Legal Services Directions 2012 5.1 Legal professional privilege, including client legal privilege under the Evidence Act 2011, in relation to any document or advice provided in the course of any Territory legal work belongs to the Territory and may not be waived, except with the express approval of the Attorney General or the Chief Solicitor on behalf of the Attorney General.

For example, if an ACT Health staff member is involved in Human Rights Commission conciliation, the staff member must maintain confidentiality around any details of legal advice provided to ACT Health. Not maintaining confidentiality may trigger requests for the details of the advice and this may have a negative impact on the matter. If in doubt, staff should always check what information they are able to disclose by consulting the solicitor that provided the advice or ILLU.

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Procedure Section 3 – Urgent or After Hours Legal Advice

Urgent or after hours Legal AdviceFor urgent advice, the same process is to be utilised wherever practical and ILLU is to be advised of the urgent time frame required and will liaise with the ACTGS to meet the required deadline. In some circumstances ILLU will organise for a solicitor to contact you to discuss advice directly with you to facilitate urgent advice.

For after hours or urgent requests where ILLU cannot be reached, please contact the ACTGS directly on 6207 0666.

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Procedure Section 4 – Seeking Advice from the Private Sector

Seeking advice from the private sectorLegal advice from the private sector is to be obtained only with approval from the Solicitor-General in accordance with the Law Officers (General) Legal Services Directions 2012. A Request for Legal Advice form is to be forwarded to the Manager, ILLU outlining the rationale for seeking external legal advice and the Solicitor-General will consider the request. Failure to follow the process will result in a breach which will be mandatorily reported in the Justice and Community Safety Annual Report.

In most cases, the cost of external legal services is borne by the requesting area. Please ensure you consult with ILLU prior to agreeing to external legal services as the cost may be recoverable from ACTIA through an insurance claim. ILLU will liaise with ACTIA and seek their approval to incur the costs. If approval is not sought prior to engaging the legal firm, ACTIA will decline to cover it.

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Procedure Section 5 – Legal Advice Database (LAD)

Legal Advice Database (LAD)A database was developed and implemented in 2009 by ILLU which records requests for legal advices and responses provided by the ACTGS since 2007. The database, maintained by ILLU, is used to track and monitor legal advices and as a reference guide for ensuring requests of a similar nature are not duplicated. Before considering seeking legal advice, please contact ILLU who can check whether the advice you are seeking has not been previously provided. In the event that prior legal advice exists which may assist in answering your question, ILLU will liaise with line area whom originally sought the advice to seek their consent to release it. ILLU will manage any redactions.

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Implementation

An all staff bulletin will be broadcast advising staff of an update to the procedure and the procedure will also be available on the ILLU intranet page. Staff will be reminded of their obligations under the procedure in circumstances where it appears they have circumvented the correct processes.

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Evaluation

Outcome Measures Receipt of advice from ACTGS within specified timeframes; and Staff satisfaction with the process and quality of advice.

Method ILLU will maintain an ongoing liaison with the ACTGS and requesting officers to ensure

compliance with the procedure; monthly reports will be provided to the Solicitor-General highlighting:

o outstanding requests awaiting advice; ando completed requests, performance against agreed timeframes.

ILLU will ensure that contact officers are included within the ACTGS annual satisfaction survey and any results pertaining to the ACT Health process are communicated to ILLU for action; and

ACTGS will provide the Director-General with an annual summary of all requests made to the ACTGS within the current financial year.

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Related Policies, Procedures, Guidelines, Frameworks, Standards and Legislation

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Policies Insurance and Legal Management Policy Public Interest Disclosure Guidelines Administrative Records Management Policy

Legislation Government Solicitor Act 1989 Law Officers Act 2011 Law Officers (General) Legal Directions 2012 (Directions) Public Interest Disclosure Act 2012 Freedom of information Act 2016

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Search Terms

legal advice, legal services, procurement, contract, intergovernmental arrangements, Memorandums of Understandings, MOU, compliance, duty of care, power of attorney, guardianship, discrimination, privacy, subpoenas, court processes, solicitor, lawyer, Supreme Court, Magistrate Court

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Attachments

Attachment 1 - Request for Legal Advice form

Disclaimer: This document has been developed by ACT Health specifically for its own use. Use of this document and any reliance on the information contained therein by any third party is at his or her own risk and Health Directorate assumes no responsibility whatsoever.

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Policy Team ONLY to complete the following:Date Amended Section Amended Divisional Approval Final Approval 31/01/2018 Complete Review Jane Murkin, DDG

QGRPolicy Advisory Committee

This document supersedes the following: Document Number Document NameDGD14-012 Request for Legal Advice SOP

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Attachment A - Request for Legal Advice form

Request date: Click here to enter a date.

TO: Insurance and Legal Liaison Unit - ACTHealthILLU@act.gov.au

SUBJECT: Request for legal advice: Click here to enter text - No more than 5 words. Used as a meaningful short identifier.

Name and title of Contact Officer:

Click here to enter text - NameClick here to enter text - Title

Authorised by:

Signature:

Click here to enter text - NameClick here to enter text - Title - The request must be authorised by your manager/director or above and, depending on your management structure, cleared through your Executive Director before being directed to the ILLU. If unsure, please contact your Divisional Executive Officer.

Timeframe requested: Choose an item. Reason: Click here to enter text - Provide sufficient justification for

timeframe to allow ACTGS to prioritise workload. Has similar advice been requested from the ACT Government Solicitor?

Choose an item.Click here to enter text - If Yes, Specify details of that request, name of ACTGS officer (if known) and attach advice. If unsure, please contact ILLU to confirm.

SECTION A - Detailed Background1. Click here to enter text - Please enter as much detail as possible to ensure that ACTGS

are properly briefed. Too little information may cause delays in the provision of advice.

SECTION B - Issues that require legal opinion / advice1. Click here to enter text.

SECTION C - List all supporting documentation and references to be included with request.1. Click here to enter text.

SECTION D - Advice to be provided to:1

1. Insurance and Legal Liaison Unit - ACTHealthILLU@act.gov.au

1 Please list every officer that may be provided with the advice. Alternatively, seek advice from the ACTGS solicitor prior to disclosing the advice to any other person not specifically identified in this section in order to maintain legal professional privilege.

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REQUEST FOR LEGAL ADVICE

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2. Contact Officer3. Click here to enter text.

Maintain Legal Professional Privilege at all timesDO NOT SHARE ANY LEGAL ADVICE WITHOUT SEEKING ADVICE FROM ILLU OR ACTGS

Law Officers (General) Legal Services Directions 20125. Legal Professional Privilege

5.1 Legal professional privilege, including client legal privilege under the Evidence Act 2011, in relation to any document or advice provided in the course of any Territory legal work belongs to the Territory and may not be waived, except with the express approval of the Attorney General or the Chief Solicitor on behalf of the Attorney General.

Engaging external legal servicesLegal advice from the private sector is to be obtained only with approval from the Solicitor-General for the Australian Capital Territory. Please consult ILLU prior to agreeing to engage any external legal firms as the costs may be covered by an insurance claim.

Need help?Refer to the Request for legal advice procedure for more information or contact Insurance and Legal Liaison Unit on 62050928/62076927 or email - ACTHealthILLU@act.gov.au

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