Triennial Review of Legal Aid - Proposal 5: Reviewing quality assurance processes - Ministry of Justice

The quality assurance framework for legal aid lawyers aims to ensure that the service provided to legal aid clients is consistent and that applicants can have confidence in the quality of services provided by legal aid lawyers.

We have heard that:

The approval processes is burdensome, which may be deterring lawyers from seeking approval to provide legal aid services.
The audit processes can be time-consuming.
The current criminal approval levels in the regulations do not reflect the complexity of legal aid cases, especially given the wide range of cases covered under the PAL 3 approval level.

We are considering:

Gathering more data from providers and legal aid clients about their legal aid experience to focus the quality assurance framework on the issues that matter most.
Streamlining the audit process to make it more time-efficient and considering how costs incurred by providers as a result of an audit process could be compensated.
Streamlining or changing the approval process, to make it easier and reduce the administrative burden of applying to become a legal aid lawyer.
Reassessing the approval requirements and settings in the Legal Services (Quality Assurance) Regulations 2011 to ensure they are fit for purpose.
Reassessing the approval levels, for example splitting criminal PAL 3 into categories of cases with adjusted rates of remuneration to reflect differences in complexity across these cases.

Further information on the proposal Further information on the proposal

Current state	The quality assurance framework for legal aid lawyers aims to ensure that the service provided to legal aid clients is consistent and that applicants can have confidence in the quality of services provided by legal aid lawyers. The quality assurance framework consists of: approval processes and settings legal aid practice standards audits complaints management and performance reviews (and cancellations, if warranted). Approval processes and settings and practice standards Legal aid lawyers must be approved by the Secretary for Justice and have a valid contract to provide legal aid services. To be approved, lawyers need to show that they have the relevant skills, experience, and business systems to effectively represent clients. The Legal Services (Quality Assurance) Regulations 2011 outline the specific experience and competence requirements for different areas of law. Approvals may also be subject to any conditions that the Secretary for Justice imposes. The Ministry sets the practice standards that lawyers are contractually obligated to adhere to. Audits The Ministry conducts an annual programme of audits of legal aid lawyers to assess the quality and value of the services they deliver. These audits are categorised as limited or full audits, which have different scopes. Where an audit identifies issues, the Ministry may make recommendations to providers to help them to improve their services or require the provider to implement corrective actions within specified timeframes. Complaints and the performance reviews The Ministry has a formal process for investigating complaints about lawyer conduct or performance and may also refer complaints to the New Zealand Law Society. Complaints can result in a sanction being imposed, or in more serious cases a cancellation of the provider contract.
Problem or opportunity	In 2023/24, 418 limited audits and 32 full audits were completed. Audits do not provide a full picture of the overall quality of representation given to clients as only a limited number of providers undergo a full audit each year. Lawyers have raised concerns about burdensome approval processes for legal aid. This may be deterring lawyers from seeking approval to provide legal aid services. Some legal aid lawyers have also raised issues about how time-consuming legal aid audit processes can be. It has also been suggested that the current criminal approval levels in the regulations do not reflect the complexity of legal aid cases, especially given the wide range of cases covered under the PAL 3 approval level.
Things we are considering	Changes to quality assurance processes could include: Gathering more data from providers and legal aid clients about their legal aid experience to focus the quality assurance framework on the issues that matter most. Streamlining the audit process to make it more time-efficient and considering how costs incurred by providers as a result of an audit process could be compensated. Streamlining or changing the approval process, to make it easier and reduce the administrative burden of applying to become a legal aid lawyer. Reassessing the approval requirements and settings in the Legal Services (Quality Assurance) Regulations 2011 to ensure they are fit for purpose. Reassessing the approval levels, for example splitting criminal PAL 3 into categories of cases with adjusted rates of remuneration to reflect differences in complexity across these cases.
Initial analysis	Simplifying and improving audit and approval settings and processes could reduce the administrative burden on legal aid providers, and may encourage more lawyers to provide legal aid. The quality assurance framework needs to assure legal aid clients that they will receive a high standard of service from their lawyer. It also needs to ensure that legal aid services are nationally consistent and of high quality. While approval processes may present a barrier in some instances for lawyers to gain approval, they do help to ensure approved lawyers are sufficiently experienced and competent. There is a need to find the right balance between ensuring the quality of legal aid services and excessive compliance requirements on legal aid lawyers that might discourage their long-term involvement in the legal aid scheme.