Entering into a

health justice partnership

Memorandumof
understanding
resource kit

2018

About Health Justice Australia

Health Justice Australia is the national centre of excellence supporting the effectiveness and expansion of health justice partnerships (HJPs) through:

  • research and evaluation about health justice partnerships;
  • resources that support the practical elements of working in partnership between practitioners;
  • policy advocacy that achievessystemic change; and
  • brokering, mentoring and facilitating health justice partnerships.

Acknowledgements

Health Justice Australia acknowledgesthe support and contribution of many to the development of this resource, in particular Louisa Macdonald, Justice Connect, Clayton Utz, Inner Melbourne Community Legal, Legal Aid NSW, Women’s Legal Service QLD, Women’s Legal Centre ACT, Central Australia Women’s Legal Service, Gippsland Community Legal Service, Victoria Legal Aid, Springvale Monash Legal Service, Northern Territory Legal Aid Commission, Redfern Legal Centre andWEstjustice.

Suggested Citation

Health Justice Australia (2018) Entering into a health justice partnership – Memorandum of understanding resource kit. Sydney, Health Justice Australia.

Disclaimer

Health Justice Australia resources, templates and webpagesare provided as information and do not constitute legal advice. They do not necessarily take account of all relevant legislation; are not intended to be a substitute for legal advice; and should not be relied upon as such. We recommend seeking independent legal advice in relation to any particular matters of concern that you or your organisation may have, including in relation to entering into a health justice partnership with another party.

Health Justice Australia |Entering into a health justice partnership2018 1

Contents

Section 1...... 4

Introduction

Why sign an MOU?

Who can use this toolkit?

How did we develop the template MOU?

Using the template MOU

Other considerations when forming and maintaining health justice partnerships

Section 2...... 8

Template health justice partnership Memorandum of Understanding

Schedule1

Section 3...... 17

Health justice partnership MOU checklist

Health Justice Australia |Entering into a health justice partnership2018 1

Section 1

Introduction

This toolkitis designed to help new health justice partnerships (HJPs) get started and existing partnerships either document or review the way in which they work together.

As a national centreof excellence, an important part of Health Justice Australia’s role is creating resources to support health justice partnerships, based on the experience of our national network of practitioners working in these partnerships.

This resource is a response to HJP practitioners asking for guidance on developing an MOU. We are here to support best practice in this important work so don’t hesitate to get in touch if you have any questions.We can also support you in setting up and building an effective HJP.

Why sign an MOU?[1]

Predictability and understanding in partnership relationships is fundamental to their success.

An MOUis a useful tool that can:

  • document the intentions of how two or more partners are going to work together;
  • set a framework for collaboration between two or more partners; and
  • ensure that values, intentions and scope of each partner’s contributions are clear and agreed; but
  • beeasily adapted as circumstances change.

Without an MOU it is easy for misunderstandings to arise between partners about their respective responsibilities.

You do not need to use this template, but we strongly recommend:

  • having an agreement;
  • ensuring that the agreement covers key matters (see the Checklist attached to this guide);
  • making sure it has been looked over by a lawyer, is easy to understand, and helps your partnership operate effectively.

Whether you are using this template or another format, keep in mind that there are no right answers or options. Your MOU should be true to your partnership. Also remember that effective partnerships are context specific, adapted to meet the needs of the communities that they serve.

MOUs should be drafted in the spirit of partnership. They are not commercial contracts, and are not intended to be legally binding. There should not be any traps for either party. Obligations should be kept as even and as clear as possible between partners. This guide, the template MOU and checklist for HJP negotiation contained in this documentare designed to be read together, and can be downloaded here.

When you have finished adapting the template, remember to delete notes, and check that the document numbering and any cross-referencing is correct.

Who should use this toolkit?

The template MOU and this guide are designed for partnerships where two organisations plan to retain their separate identities but come together to deliver health justice outcomes. (It is not an agreement to set up terms of referral from one service to another, nor is it an agreement to establish a single organisation that employs both health and legal professionals).

How did we develop the template MOU?

HJA reviewed a number of existing health justice partnership MOUs and agreements, steering committee terms of reference and grant applications. We identified common matters for inclusion and developed a bank of exemplar clauses. We pulled these together into a template agreement, with instructions for use and alternatives built into it; and tested the template with health justice practitioners and those who advise them in their partnership agreements.

Using the template MOU and checklist

To make sure you have everything in order, consider ticking off the checklistas you work your way through the MOU(at the end of this resource kit).

Background: the introduction to your MOU

This clause is your opportunity to set the scene for the MOU by giving a brief description of each partner and the partnership. The template includes examples of how you can keep these descriptions brief and clear.

The background also notes the MOU does not intend to create legally binding obligations between the partners. Should your partnership wish to create a binding agreement, we recommend seeking independent legal advice.

Partnership objectives and values: some may be shared; some distinct

Shared objectives should frame your partnership. Clearly articulating them in your MOU allows you to keep focused. Hopefully, writing them out will also give you the foundations for a strong monitoring and evaluation plan. Clause 1.1(A) of the template gives an example of how you can acknowledge shared objectives. It also includes some examples of common objectives drawn from existing MOUs. (Note that some objectives will be closely related to the particularities of your planned partnership service, e.g. if you have a training component, you will have a training objective).

Each partner may also bring their own specific objectives, i.e. things that their organisation wants to achieve from the partnership. This is fine, but it is good to discuss and articulate these.

Your HJP can decide whether you would like to include an acknowledgement of shared values. Clause 1.2 of the template gives an example of shared values set out in an existing HJP agreement.

Term of the MOU

You can decide to put a term limit on the MOU, or let it run until it is terminated. In the template, Clause 2 is drafted to outline the commencement date of the partnership, and how long you intend the partnership to last in its form as captured within the MOU. It is also drafted to allow either party to seek review or termination of the health justice partnership at any time.

Contributions: shaping the descriptions of the service and limitations on the service

As indicated above, this resource has been developed for partnerships where a health partner and a legal partner each offer some element of their service to the partnership to achieve the objectives. The template expresses this through Clause 3, where the health partner agrees to deliver certain contributions, and Clause 4, where the legal partner agrees to deliver certain contributions. Schedule 1 expresses the details of these contributions, and forms part of the MOU. Schedule 1, or its equivalent in your MOU, is likely to be the starting point for your partnership discussions (though the objectives discussions should track alongside them.)

Schedule 1 in the template reflects the fact that common areas of provision for legal partners are: staff (lawyers); and training (delivered to health staff). Common areas of provision for health partners are space (for lawyers to sit in); staff (to attend training and assist in other ways); and referral processes (like checklists, triage or making legal appointments). There are examples of different contributions in the template Schedule 1, based on existing HJP MOUs and agreements. Yours will reflect your own circumstances.

Your description of services should be as detailed as possible, with a time frame and location corresponding to each action as the template allows. Don’t be afraid to add categories of service or new contributions. (For example, there are no examples of secondary consultation arrangements in existing MOUs, so you will not find detailed examples of these in the Schedule.)

HJA recognises that many partnerships wish to exclude lawyers from providing advice that would complicate the relationship between the partners. For this reason we recommend including a provision like Clause 4.3 to clarify that partnership lawyers will not take advice from clients to act against a health partner or its employees. Some public or private health institutions will seek even wider limitations on medico-legal advice. As always, we recommend seeking independent legal advice that is specific to the needs of your partnership.

Managing and governing the partnerships

It is a good idea to include details in your MOU about how you will continue to work together as partners. In Clause 5 of the template, HJA has included some suggestions for you. We strongly suggest appointing one person as a coordinating officer in each partner organisation. Clause 5.3 suggests a way of expressing their areas of responsibility. Other options for managing the partnership include:

  • committing to open communications (template Clause 5.1);
  • holding regular partnership meetings (template Clause 5.4); and
  • appointing a partnership steering committee (template Clause 5.5).

Once you have decided on your management and governance structure, you should think about how policies and operating protocols for the partnership will be set (see template Clause 5.6).

Workplace safety, employment and insurance

It is important that workplace safety and insurances are addressed in the MOU as these are areas of risk and responsibility for each party. In the template MOU, Clause 6 is based on provisions relating to these areas in existing agreements. It imagines that the legal partner will have staff working on site with the health partner. For that reason, Clause 6 (A) commits the legal partner to following the workplace policies of the health partner. We assume that most partners will, for the sake of their relationship, wish to remain responsible for their own employees and insurancesonly, so template Clause 6 (B) is written on this basis.

Other general provisions in the template are standard recommended inclusions which help with reading the MOU.

Other considerations when forming and maintaining health justice partnerships

  1. Reporting

HJA is committed to supporting all HJPs to ensure robust and rigorous data collection. Collecting and reporting data is an essential part of being able to measure the success of the partnership, or identify areas of the partnership that require adjustment and re-testing.

As each partnership is different, you should consider carefully what is appropriate for your context. Some partnerships have reporting requirements set by funders. All will have specific inputs, outputs and outcomes to measure under their monitoring and evaluation plan. (All partnerships should have one!) These context-specific needs should drive the drafting of each partner’s reporting responsibilities. A final consideration is that, if a funder does have reporting requirements, one party should be given responsibility for that report, to ensure clarity in meeting this deliverable.

  1. Funding

If your partnership involves external funding, ensure all partners understand every condition agreed to under your funding agreement. Nothing in your MOU should contradict its obligations as listed in your funding agreement. Include any additional points that you need in the MOU.

  1. Information sharing, privacy and confidentiality

The information sharing arrangements in HJPs are often a point where partners have to spend some time establishing an understanding of each other’s obligations and positions. Health professionals have:

  • duties of confidentiality;
  • obligations under their professional rules and governing laws; and
  • restrictions under privacy laws on what they may do with personal health information.

Despite these obligations, health professionals can release patient information in some circumstances, for instance in line with mandatory reporting laws (exceptions in their duties, professional rules and privacy laws allow for this).

They can generally share the information within treating teams. In addition, they can always release confidential or personal information with consent.

Lawyers also have obligations to keep clients’ information confidential. Their obligation is more absolute and comes from various legal sources including the professional rules. It is true that, like health professionals, they can disclose client information with consent and in some other limited scenarios. However, lawyers are likely to strongly resist asking their clients for consent as lawyer-client communications are protected by legal professional privilege. This affects the disclosure of information in court as evidence, and can be lost if communication is shared widely.

Confidentiality and privacy laws should not be a barrier to the successful operation of the partnership. However, they require careful consideration and record keeping.We recommend partners begin by identifying what information they need to achieve their intended outcomes and then work from there to establish the systems that best support this, rather than starting from an assumption that no information can be shared. In existing partnerships, often legal partners will facilitate training and education for health partners in relation to legal professional privilege.

As a result of operating in partnership, each partner may learn about the other party’s finances, processes, human resources, or other information not in the public domain. We recommend including these forms of information in the early discussion about forming the partnership; and seeking independent legal advice should you wish to create binding confidentiality obligations between partners.

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Section 2

Template health justice partnership Memorandum of Understanding

This health justice partnership Memorandum of Understanding (the MOU) is between:

[Insertfull name of health partner] ABN [insert ABN of health partner] of [insert address] ([insert Health Partner name])

and

[Insertfull name of legal partner] ABN [insert ABN of legal partner] of [insert registered address] ([insert Legal Partner name])

Background

Instructions (delete once MOU completed): This section of the MOU is a brief introduction to the context for the MOU. It is a description to assist the understanding of the rest the MOU. It should not contain obligations.

  1. [InsertHealth Partner name] is a [insert service type, e.g. community or area health service, hospital, GP clinic etc.] which serves the community of [insert place and / or community of users].
  2. [InsertLegal Partner name] is a [insert service type, e.g. community, Aboriginal, family violence prevention, legal aid, non-government/ independent etc.] legal service which serves the community of [insert place and target population if applicable].
  3. This MOU sets out a framework for [insert Health Partner name] and [insert Legal Partner name] to work together to create a successful health justice partnership at [insert location of HJP]. This MOU sets out the shared understandings on which this partnership will be based.
  4. This MOU does not create legally binding obligations between [insert Health Partner name] and [insert Legal Partner name]. Rather, it sets out the intention of the parties to work together as detailed in this MOU.
  5. Both organisations acknowledge that creating a successful health justice partnership will involve regular assessment and planning by them together as the partnership develops.

The understanding between [insert Health Partner name] and [insert Legal Partner name]

  1. Partnership objectives and values

Instructions (delete once MOU completed): The purpose of this clause is to begin the MOU by a statement of objectives – both those that are shared between the partners and those that are particular to each partner. Partners should agree to their shared objectives and list them in the MOU. For e.g see below.

1.1Objectives

  1. [Insert Health Partner name] and [insert Legal Partner name] have entered into this partnership to:
  2. address unmet legal need through the provision of legal assistance to people who need it but are otherwise unlikely to access legal help;
  3. improve health and wellbeing by addressing health-harming legal problems;
  4. strengthen ties between providers of legal assistance and health care for the benefit of the community;
  5. build the capacity of health workers to identify and respond to their patients' legal needs through the provision of legal education and training;
  6. build the capacity of lawyers to identify and respond to the health impacts of theirclients’ legal needs through the provision of health education and training; and
  7. [insert additional shared objectives as decided.]

1.2Values

Instructions (delete once MOU completed): Including this clause gives partners a chance to discuss the values that are relevant to them. This list provides some suggestions.

  1. Each party acknowledges that in this partnership they share commitments to:
  2. focus on clients and their families/communities;
  3. cooperation and collaboration;
  4. regular and inclusive communication;
  5. patient/client confidentiality;
  6. transparency and accountability;
  7. integrity, respect, dignity, compassion and honesty;
  8. professionalism and ethical standards;
  9. continuous improvement and outcomes measurement; and
  10. delivering quality services for the people who need them.
  1. Term

2.1This MOU shall take effect from the date that it is signed by both parties.