It is a changeable time for membership organisations, burdened as they are with ever-tougher legislation. The British Medical Association (BMA), which looks after the interests of more than 139,000 doctors and medical students, has more on its plate than most and its legal team gets involved at all levels of the organisation’s activities.
BMA director of legal services Jonathan Waters has a key role in helping to drive the association’s strategy. In the next 12 months Waters has to sit down and redraft the BMA’s constitution, which has developed piecemeal since its foundation in 1832.
“One of the tasks I’ve got is to produce a fit-for-purpose constitution, memorandums and bylaws,” Waters explains. He has instructed Herbert Smith advocacy unit member Ian Gatt QC to advise him on the job.
“We need someone to stand back and look at what we’ve done to make sure that we’re reflecting good corporate governance,” he explains.
But the job of rewriting the constitution is just a small part of Waters’ role at the BMA. He and his team of five other lawyers take on 1,800 new matters each year, many of those initiated by the BMA’s various committees.
One such ongoing issue is the negotiation of new contracts for different sections of the medical profession with the NHS. Waters was involved in drafting the controversial GP contract and is now negotiating contracts for ‘staff and associate specialists’ (SAS). SAS members of the BMA are experienced medics who cannot reach consultant level, often because they do not have UK qualifications.
However, Waters says they are a crucial part of the hospital system in the UK and, like much of the rest of the NHS, affected by NHS Trust deficits.
“The most immediate issues are those of restructuring and potential job losses in hospitals,” he says.
Although all that the BMA does is on behalf of its members, Waters and the legal team do not accept matters directly from members. They serve the corporate function of the association. In that capacity Waters is busy preparing for a Court of Appeal appearance in November concerning the ongoing race discrimination case brought by urologist Rajendra Chaudhary against the BMA.
Chaudhary is claiming that the BMA refused his requests for assistance in connection with allegations of racial discrimination, which he was making against other medical authorities, on grounds of race. His case was upheld by an employment tribunal in 2001 and again by the Employment Appeals Tribunal (EAT) in March 2004. The EAT also affirmed the tribunal’s compensation award of £814,877.
Waters, who has a particular interest in employment law, is instructing 11 King’s Bench Walk’s John Cavanagh QC to handle the appeal. The BMA is prepared to take the fight all the way to the House of Lords if necessary.
Waters says that one outcome of the Chaudhary case is an increase in discrimination cases involving the BMA.
“It encourages members who feel discriminated against to come forward to litigate,” he claims. “But the BMA has got a very good record of equal opportunities.”
For more day-to-day employment matters, Waters turns to Irwin Mitchell. The firm was awarded the contract to advise on employment issues in October 2003 and that contract is currently under review. For other matters Waters will go to firms including Farrer & Co, Manches and Herbert Smith, depending on the issue, although he does not have a formal panel.
Waters is also using external lawyers to improve the service offered by the BMA to its members. A new initiative is the recent launch of a conveyancing service for members, whereby doctors moving house are referred to Midlands firm Flint Bishop & Barnett for advice. According to Waters, the take-up has been good. Irwin Mitchell provides personal injury advice along similar lines, although on a conditional fee arrangement basis.
Other work that the legal department looks after are occasional judicial reviews. These tend to be referred by a committee on behalf of a member or group, for example GPs.
“We’re often asked about judicial review. It’s frequently not an appropriate remedy,” Waters says, estimating that the team takes on just one or two reviews each year.
The legal department’s agenda is very much driven by what is important for the profession.
“Issues for the profession then become issues for the legal department,” Waters explains. “We’ve got to keep the membership happy.”
Director of legal services
British Medical Association
|Organisation:||British Medical Association|
|Organisation type:||Representative body|
|Director of legal services:||Jonathan Waters|
|Reporting to:||Chief executive/secretary Tony Bourne|
|Main law firms and chambers:||Farrer & Co, Herbert Smith, Irwin Mitchell, Manches; Devereux Chambers, 11 King’s Bench Walk|
|Jonathan Waters’ CV:||
Education: 1987 – LLB, Anglia Ruskin University; 1996 – LLM, Leicester University
Work history: 1988-90 – in-house trainee legal adviser, Hambro Legal Protection; 1990-96 – legal adviser, Hambro Legal Protection; 1996-2002 – group company secretary and group legal adviser, Queen’s Moat Houses; March 2002 – director of legal services, British Medical Association