Accidents And Emergencies

With the legal aid budget slashed and the NHS claims increasingly complex, the Royal College of Nursing’s legal department is being forced to rely on outside advisers to make up the numbers. Naomi Rovnick reports

The Royal College of Nursing (RCN), which sits just off Harley Street, has just been refurbished, although it is hard to imagine how. From the brown leather chairs to the long, dark corridors, the building retains the hallowed appearance of the institutes and academies found all over London. Whatever modernising has gone on here, it is very, very subtle.

This is in complete contrast to the role of Richard Bernhard, the RCN’s head of legal, which has changed beyond recognition since he started 13 years ago.

The RCN is a professional body, similar to a trade union, and Bernhard looks after the legal claims of its 330,000 members. The Government’s attempts to modernise the health service and the growth in litigation culture have made Bernhard’s work much more varied than when he first started.

“It used to be all back injuries,” he says. “Nurses have to lift heavy patients. This tends to put their backs out, stops them working for a while and causes them to make a claim against the hospital. Now they are suffering workplace stress, being assaulted by patients and, in the private sector, complaining of unequal pay. When I started, 8 out of 10 claims related to accidents at work. I would estimate that 45 per cent of the cases we now deal with are employment issues.”

Bernhard likes the variety of his job. Although he would rather RCN members did not have so many problems, he definitely prefers it to his last job in private practice. He was an insurance litigation partner at Joynson-Hicks & Co (now part of Taylor Joynson Garrett), but fled when the role became too specialised. “It got to the point where I realised I was going to be doing road accident litigation for the next 10 years,” he says. “That’s when I started talking to the headhunters.”

To Bernhard’s surprise, the headhunters came up with a very interesting position at a “professional organisation” that insisted on remaining nameless. Bernhard was intrigued, and when he discovered it was the RCN he was seduced by the idea of dealing with personal injury claims from the other side. He says: “It was a case of gamekeeper turned poacher and I have very much enjoyed the swap.”

Last year, Bernhard’s team won £800,000 from Greenwich Health Trust for a former intensive care nurse who had been injured at work. Bernhard is proud of winning the case, but this sort of victory always has negative connotations. “People have these sort of accidents because hospitals are under funded and understaffed. If the proper resources were in place, the NHS would not be forced to pay these costly settlements, which stretch the little money they have even further. Over the past 10 years we have recovered £60m for injured nurses from the NHS. That money would be much better spent on hoists, extra staff and training,” he says.

But there is a lot more to Bernhard’s job than personal injury claims. He and his team are required to give legal advice to members even when they may be involved in criminal investigations. “Representing members accused of crimes can be very tricky,” he says. “We are duty bound to do it, but we do not want to be seen as condoning their actions in any way.”

He also takes part in government inquiries. In 1997, nursing staff from the Bristol Royal Infirmary were involved in a government inquiry over whether heart surgeons there had caused children to die unnecessarily. Bernhard advised the nurses on how to field questions and defend themselves in the inquiry. This month he will be advising members involved in the second phase of the Harold Shipman inquiry. Last year, Shipman received 15 life sentences for administering deadly morphine injections to 15 elderly women.

In order to protect his members, Bernhard is suitably vague about who he will be advising. “There may have been some community nurses taking part in the inquiry who referred the murdered women to Shipman’s practice. If this is the case they may need legal advice,” he says.

Government inquiries are not the only reason the RCN is a tricky place for a head of legal to work. According to Bernhard, it is structurally much more complex than your average corporation. It is part professional body, part charity, part educational institution, and it also has the royal charter to deal with. In the last annual congress, members decided to remove the no-strike rule for nurses. Bernhard now faces a lengthy process of taking the charter to various committees to accommodate this new statute.

He has also been presented with the onerous legal task of devolving the powers of the RCN’s 90 regional offices. He says that this will be hard work, but much better in the long run. At the moment, all of the claims the regional offices receive must go to London. This creates a bottleneck effect and too much work for his team.

There are 12 solicitors and two barristers working under Bernhard at the RCN. He estimates that the team would have to be twice as big in order to get all of the work done, which is why he uses a panel of outside firms.

The organisation’s main relationship is with Charles Russell. The firm takes care of all of the corporate work, which usually arises when drug companies and educational institutions want to be accredited with the RCN name. He also uses Douglas Mann & Co, Freethcartwright, Hugh James and Irwin Mitchell. He instructs Freethcartwright and Hugh James on regional matters. Freethcartwright deals with the Midlands and Hugh James takes care of extra work that arises in Wales.

Apart from Charles Russells’ corporate input, none of the firms on the panel are employed for their specialisms. Bernhard says: “They do much the same work as we do. They’re there to make up the numbers.”

So why doesn’t the RCN just increase its department size? Surely if external lawyers are not needed for their specialist skills, then they are not needed at all. Apparently, this all boils down to internal perception. “The RCN is run by nurses, for nurses. The members do not want the place to be overrun with lawyers,” Bernhard says.

And this is even after legal aid budgets have been slashed, leaving the RCN as the only option for many members needing legal representation. More members than ever are turning to the RCN for legal advice, and the firms Bernhard outsources to are getting a lot more work.

Bernhard is drawing up collective conditional fee agreements for his panel of firms. He is pleased that he is free to involve external firms more, but fears that the RCN will not be able to sustain the cost of paying them. It is an interesting irony that, as public legal funds such as legal aid are cut, a public sector body such as the RCN has been left to pick up the pieces.
Richard Bernhard
Head of legal
The Royal College of Nursing

Organisation The Royal College of Nursing
Sector Professional advisory organisation
Employees 800
Legal capability Head of legal, 12 solicitors and two barristers
Head of legal Richard Bernhard
Reporting to General secretary Beverly Malone
Main law firms Charles Russell, Douglas Mann & Co, Freethcartwright, Hugh James and Irwin Mitchell