Victoria Legal Aid

Section 29A Panel Removal and Certifier Status Revocation

Consultation section 29A Panel Removal and Certifier Status Revocation

The removals model is informed by the new panels model. The panels model differentiates between Providers (firms) and Panel Certifiers (individuals). The panels model has been developed on the basis that breaches of Panel Conditions may result in VLA suspending or removing a Provider’s panel membership and/or suspending or revoking an individual practitioner’s certifier status.

Removals in context

While historically, removals have been rare and only pursued when there are serious concerns about the impact on the client or the legal aid fund they have previously been our only tool for addressing serious quality issues.

While we anticipate that there will be even fewer removals under the new panels model because of the increased rigour around the panel entry requirements and assessment process, because of the greater range of options we have available for managing quality issues and because we are providing more tools to assist Providers and Panel Certifiers to understand and meet VLA’s quality expectations (e.g. the practice standards and measures), we still require an articulated, clear and robust system for removals .

Under the new continuously open panels model, the period of removal refers only to the period of time before the Provider/Panel Certifier is eligible to reapply for the panel. This is similar to the process adopted when a panel membership application is refused. One advantage of the new panels model is that it provides greater clarity on what happens at the end of the period of removal (i.e. Providers/Panel Certifiers will not be automatically reinstated to the panel but will be able to reapply immediately for assessment as part of the ongoing assessment rounds).

Removal periods will inevitably be perceived as punitive by those firms or individuals to whom they are applied, however VLA is motivated to use removals primarily to protect clients and the legal aid fund, and allow the Provider/Panel Certifier time to attempt to address the issues that lead to removal. As such, it is proposed that removal periods be relatively short. This allows us to put measures in place to protect our clients and the legal aid fund until the relevant quality or performance issues are remedied without oppressively “punishing” the Provider/Panel Certifier.

The new model focuses on clearly identifying quality issues or performance problems, remedying the issues identified, including affording appropriate time and support to address the issues. As such, where removal is deemed to be the only appropriate way to address an issue, the removal period will be set at the shortest time that reasonably allows the Provider/Panel Certifier to address the issues raised before reapplying for the panel.

Recommended new removals model – s29A panels

The removals model and decision making structure is depicted below.

Roles and responsibilities

Clearly defining the roles and responsibilities of those involved in the removals process in advance provides clarity around expectations of those involved, improves the efficiency of the process and reduces delays.

VLA is most likely to identify grounds for removal through its complaints, quality audit and Compliance functions. It is also possible that practice areas may identify potential grounds (e.g. if a VLA lawyer sees poor quality representation at court). A such, removals identified through:

  • quality audit or Compliance functions will be the responsibility of the Managing Lawyer of the relevant section of Assignments (criminal law or family law) to manage
  • a complaint investigation will be the responsibility of the Complaints and Statutory Compliance team to manage
  • an observation made by the relevant practice area will be referred to the most appropriate area to investigate it (Assignments – for quality audit or compliance check – or CaSC). That area will then be responsible for managing the removal.

The role of the Independent Reviewer

Unlike the current removals model, the new removal model does not include a role for the independent reviewer.

The role of the independent reviewer in the removals process, was thoroughly considered in developing the new removals model, as were the lessons learnt from the independent reviewer’s participation in the 2012 removals. Ultimately the reviewer’s role in the new process was deemed unnecessary because:

  • the new removals model clarifies the decision-making structure and makes the decision-makers responsible for articulating clear, robust reasons for removal. This improves our accountability for the decisions we are making and ensures that decisions to remove are well thought out and that removals proceedings are only started where justified to address a serious risk
  • the independent reviewer has not previously overturned any decisions to remove, but has reduced the period of removal. Under the new model, removals will only be initiated for the most serious issues that cannot be remedied in any other way, and removal periods will be set at the lowest reasonable time that allows the Provider/Panel Certifier to make necessary improvements to fix the problems that lead to the removal before reapplying for the panel
  • under the current removal process outlined in the manual the independent reviewer is only engaged after the decision to remove has been made if the practitioner wants to show cause why they should not be removed. As such, the reviewer’s role was to consider a practitioner’s submissions. The new process has moved this role into the initial decision-making process. The new process allows for the affected Provider/Panel Certifier to be heard before a decision is made and the potentially disruptive removals process is started
  • providing clear reasons for removal before the decision is made gives the practitioner the opportunity to respond to all relevant issues and to raise any concerns about our proposed reasons for removal, thus increasing transparency and adherence to principles of natural justice principles.

Process for removal

The following process applies for removals:

  1. Where grounds for removal are identified, VLA sends the Provider/Panel Certifier a notice of intention to remove/revoke outlining all reasons and concerns leading to the proposed removal/revocation.

The notice will provide full and detailed reasons as this is intended to enable the Provider or Panel Certifier to respond to all relevant issues. This response must then be considered by VLA before making a final decision. This is an important step for ensuring the DLP’s decisions take all information into account and that the procedure affords (and is seen to afford) natural justice.

The Provider/Panel Certifier may be suspended while the investigation is being undertaken. See Grounds for removal/revocation and suspension on page 4.

  1. The Provider/Panel Certifier has 28 days to respond to this notice.
  2. After 28 days, VLA will assess the Provider/Panel Certifier’s response (if any) and make a decision about whether to remove or revoke or not.

Where VLA decides not to remove/revoke an alternative outcome may be applied (such as, a formal caution issues).

Where VLA decides to remove/revoke, a formal letter outlining this decision and providing reasons, including reasons why the response did not satisfy VLA’s concerns will be sent.

Where the practitioner does not respond, VLA will decide to remove/revoke on the basis of the reasons outlined in the notice of intention to remove/revoke.

The removal letter will include:

  • the reasons for removal
  • the period of removal. Guidelines can be developed to assist the DLP in determining what period is appropriate
  • how the Provider/Panel Certifier can apply to be re-included to the panel or re-approved as a Panel Certifier.

Re-appointment following removal

No substantial changes to the current system for re-appointment after the expiry of the period of removal are proposed.

Unlike the old panels model, which only allowed firms to seek admission at the end of the 5 year panel approval period, the new panels model mean that panels are continuously open. Because panels are always open and removal periods are minimal, there is no longer any need to consider reinstating a Provider/Panel Certifier before their period of removal/revocation has expired. As such, it is proposed that:

  • The Provider/Panel Certifier may re-apply for the panel at any time after their removal/revocation period has expired, and their application will be assessed as part of the next available assessment round.
  • The Provider/Panel Certifier must be able to demonstrate that they have addressed all factors that lead to their removal. While VLA could not refuse to admit practitioners solely on the basis they had previously been removed, the practitioner must be able to satisfy VLA that they have addressed the issues and/or that there has been a material change in their circumstances so that the same issues are unlikely to arise again and that they no longer pose a risk to clients or the legal aid fund. This will be assessed as part of the Panel re-inclusion process.

Grounds for removal/revocation and suspension

These are an amended version of the grounds contained in the practitioner manual. Amendments have been kept to a minimum.

Removal of provider from a s29A panel and revocation of practitioner’s Panel Certifier status

VLA may decide to remove a Provider from a s29A panel or revoke a Panel Certifier’s certifier status on the following grounds:

Evidence that the Provider or Panel Certifier does not hold a practising certificate.

  1. Information supplied by the Provider or Panel Certifier in support of their application for panel membership or panel certifier status is found to be substantially and relevantly inaccurate or false.
  1. The Provider or Panel Certifier is found:

a guilty of Professional Misconduct or Unsatisfactory Professional Conduct by the Legal Services Board, Legal Services Commissioner or any equivalent body in any jurisdiction, Victorian Civil and Administrative Tribunal or any other Court or Tribunal which includes any privately constituted body to discipline its members, in respect of a member of the Provider Personnel

b guilty of any criminal offence except an infringement.

  1. The Provider or Panel Certifier has committed a serious breach of Panel Conditions. A breach of the Panel Conditions will be regarded as serious where, in VLA’s opinion:

the breach posed a risk of detriment to the Legal Aid Fund

a the breach was a breach of the Practice Standards that had the potential to adversely impact a legally assisted person or VLA

b the breach involved dishonesty or improper conduct in a professional capacity

c the breach had the potential to adversely affect VLA’s reputation

d the breach led to the court being deceived or, intentionally or otherwise, misled as to the true status of VLA’s funding determinations regarding an applicant for legal assistance

e the Provider or Panel Certifier has breached their professional legal obligations as set out in current legislation, regulations and rules governing the legal profession.

  1. The Provider or Panel Certifier has a history of failing to meet the VLA Practice Standards that, in the reasonable opinion of VLA, poses an unacceptable risk to the quality of services provided to an Assisted Person or applicant for legal assistance.
  2. The Provider or Panel Certifier has a history of breaches of Panel Conditions, including the Practice Standards that, in the reasonable opinion of VLA, may impose an unreasonable cost (including resource cost) burden on VLA.
  3. The practitioner has failed to satisfy any conditions of panel membership or panel certifier status as specified in VLA’s offer of inclusion to the panel, or certification notice.
  4. The personal or professional circumstances of the Provider or Panel Certifier are such that, in the opinion of VLA, they pose an unacceptable risk to the Legal Aid Fund or legally assisted persons.
  5. Evidence that the Provider or Panel Certifier has failed to comply with the terms of two Compliance Failure Notices (CFN) OR has failed to comply with a Compliance Failure Notice 2 (CFN2).
  6. The Provider or Panel Certifier has been removed from another s29A panel or has had their panel certifier status revoked from another s29A Panel,
  7. VLA has commenced the removal procedures in relation to the Provider or Panel Certifier in relation to another s.29A panel.
  8. The Provider or Panel Certifier requests, in writing to VLA to be removed from the panel.

Suspension of provider from a s29A panel and suspension of a practitioner’s certifier status

VLA may decide to serve a Provider or Panel Certifier with a Notice to Suspend on the following grounds:

  1. Where VLA becomes aware of information which reasonably indicates that the conduct or circumstances of a Provider or Panel Certifier has caused, or has the potential to cause detriment to:

a VLA or its reputation

b the Legal Aid Fund

c an Assisted Person.

  1. Where VLA becomes aware that:

the Provider or Panel Certifier is charged with any criminal offence, except an infringement

a the Provider or Panel Certifier becomes bankrupt

b the Provider or Panel Certifier has been found guilty of Professional Misconduct or Unsatisfactory Professional Conduct by the Legal Services Board, Legal Services Commissioner or any equivalent body in any jurisdiction, Victorian Civil and Administrative Tribunal or any other Court or Tribunal which includes any privately constituted body to discipline its members, in respect of a member of the Provider Personnel.

c there is a current complaint or investigation into Professional Misconduct or Unsatisfactory Professional Conduct in respect of the Provider or Panel Certifier, being handled by the Legal Services Board, Legal Services Commissioner or any equivalent body in any jurisdiction, including any privately constituted body to discipline its members.

d a court, tribunal or professional body has voiced what VLA reasonably regards as serious criticisms of a Provider or Panel Certifier’s conduct.

e there may be any other serious conduct which VLA considers requires investigation.

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