Cut and thrust
25 March 2013 | By Matt Byrne
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At a time of public sector cutbacks, British Medical Association GC Jonathan Waters is more than willing to stand up for his members’ interests
It is not easy to pin a label on the British Medical Association (BMA).
“We’re a trade union, a professional association, a publishing house and a company limited by guarantee,” says Jonathan Waters, group legal director at the BMA. “It’s a complex organisation.”
The BMA’s primary aim is to represent the interests of its members - doctors working in a variety of roles in the UK. It is also a voluntary association, which means its offering has to be attractive to help it -recruit and retain members.
“We now have around 150,000 members - the highest number ever,” adds Waters.
The BMA legal head most recently appeared in the pages of The Lawyer calling for changes to the Public Service Pensions Bill, which was presented to Parliament last September. His article, which called for changes to the wide-ranging so-called ‘Henry VIII’ clause that gives governments power to amend legislation, underlined the fact that Waters is not scared of being a champion for BMA members. At a time when health-related issues are at the top of the political agenda, from budget cuts to the Mid Staffordshire NHS Trust debacle, that has to be a good thing for the BMA. The issues doctors are facing, and as a consequence the matters Waters and his legal team are dealing with, have rarely been thornier.
One of the most controversial recent issues handled by the team was last year’s ballot of doctors on pension reform. It was the first time that action of this nature had taken place and provided plenty of work for Waters, employment partner Steven Hills at Gateley and Bruce Carr QC of Devereux Chambers, particularly in terms of minimising potential legal challenges.
“Bruce had been counsel for British Airways in its action against the unions,” said Waters. “His experience was invaluable and helped us use a different sort of argument.”
The complex problem featured several ballots including junior doctors, consultants, staff grade and associate specialists, and GPs - the first time the latter had ever been balloted.
“One of the questions was whether they could be balloted, as independent contractors who also employ salaried GPs,” says Waters. “The answer was yes because they’re also workers. We did well not to be challenged by, say, a primary care trust.”
As Waters points out, there are hundreds of trusts and the BMA was anticipating a challenge.
“It never happened,” he continues, “in part because of the quality of the advice and the meticulous approach we adopted with the ballot. This included couriering documents to employers so no one could claim they hadn’t seen them.”
It was a nine-month legal effort pre-ballot and there was also a separate bill in Scotland. But the legal spend was moderate, reveals Waters - only around £100,000, largely because the BMA had formed a separate fund for activity related to the action.
Nevertheless, the crackdown on public sector spending has inevitably had a big impact on the BMA and Waters’ team. This year the main project is likely to be the wholesale review of GP contracts, says Waters, along with a move by trusts to band together to award contracts locally, a shift the BMA is opposed to as it believes in the benefits of national contracts.
All in all, the year ahead looks certain to be a busy one for Waters and his team, particularly as most of the work that crosses his desk is handled in-house.
“Only about 5 per cent is outsourced,” says Waters. “And that’s with around 2,000 matters a year. It’s intense, but working here is enjoyable. We tend to pick our lawyers based on personality. We like having a laugh. Plus our lawyers have to be able to multi-task. You name it, we deal with it.”
None of the BMA’s lawyers have a healthcare background so it is a steep learning curve for anybody. There are 11 lawyers in the team, three of whom advise the BMJ Publishing Group. There are two bespoke fee-generating services - Partnership Drafting, which provides a service to BMA member GP practices, and BMA Law, which serves, among others, BMA members of local medical committees.
The latter is headed by a barrister who manages a team of three lawyers. BMA Law effectively operates as a standalone business within the legal department and aims to provide clients with corporate and commercial advice at prices discounted to the market.
Waters, who is also a member of the executive, reports to BMA chief executive Tony Bourne.
All the BMA’s employment work is now outsourced to Gateley; relatively recently it was Irwin Mitchell. Gateley won a five-year contract in a tender process and there are just over two years left to run on it, which was recently extended.
As Waters reveals, the BMA terminated the arrangement with Irwin Mitchell about five years ago, moving the contract to Halliwells and subsequently Gateley.
The deal with Gateley works on a fixed-fee arrangement depending on case numbers.
“There are caps proportionate to that,” adds Waters. “We’re looking at 400 cases or more Employment Tribunal cases each year. We also use Manches for contractual disputes and some of the more difficult pieces of work. They’re useful as a sounding board. Our main point of contact is [partner] Alex Fox.
In addition, the BMA uses Herbert Smith Freehillson the rewriting of its articles, an arcane matter on which the firm has been advising the organisation for years.
“With a bit of luck it should be finished soon,” jokes Waters.
Jonathan Waters, BMA
Title: Legal group director
Turnover (group): Around £130m
Legal spend: Approx £600,000
Legal capacity: 11
Main external law firms: Gateley, Herbert Smith Freehills, Manches
Chris Cox, director of legal services, Royal College of Nursing
The Royal College of Nursing (RCN), with more than 400,000 members, boasts the largest in-house legal team of any professional membership body or union in the UK. The directorate is staffed by 41 lawyers and 20 support staff who provide employment and regulatory law services to around 2,500 nurses and healthcare assistants at any one time.
In addition, it outsources 1,000 or so other cases, including personal injury claims and criminal matters, to a panel of solicitors in England and Wales, as well ensuring RCN members in Scotland and Northern Ireland get equivalent services from local lawyers.
The directorate facilitates commercial legal advice to the Royal Charter body, which is also a registered union, and to a separate charitable foundation.
Major challenges for the directorate arise from the financial demands facing the NHS, the reorganisation of NHS commissioning arrangements in England, patient safety, quality and clinical negligence issues attracting widespread publicity following the Francis report on Mid Staffs. It is also dealing with ‘fitness to practice’ cases before the nursing regulatory body, the Nursing and Midwifery Council.
The directorate’s success in meeting the needs of members has been recognised with Law Society Excellence Awards in diversity, equality and client services.