Justin Day, Commercial Legal Adviser, Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust:
Not so long ago it was almost unheard of for NHS organisations to appoint in-house lawyers. However, with the landscape changing so quickly, it is becoming more common for public sector organisations outside government to engage their own legal advisers, such as me.
In this post, I look at why exploring the in-house option represents good sense for NHS organisations, argue the case for NHS legal services to sign up to the shared services agenda in 2011 and finally propose a solution for legal professionals working in the NHS who may currently feel a lack of support in matters which may not merit instructing external advisers but which nevertheless require a legal input.
Why in-house?
As in any organisation of a certain size, the advantages are obvious. When offering services to our “clients”, we benefit from cheaper insurance than external firms, cheaper overheads, cheaper staff costs. Aside from the economics we can also become involved in the commercial or operations decisions at an early stage.
Given that the work that crosses my desk is so varied and can encompass advice on:
- Commercial contracts (from SLAs to multi million joint ventures).
- EU procurement law.
- Property work.
- Regulatory and constitutional issues.
- Mergers and shared services.
- Employment law.
- Mental Health Act and capacity issues.
- Subject access requests.
- FOI information requests.
- Inquest advocacy and non clinical negligence litigation.
… to name but just a few (and that’s all before any mention of handling queries about the government’s latest proposals for fundamental NHS reform!), there is an undoubted need for NHS organisations to have some legal capacity! The work can be carried out either exclusively in-house or can be offered to ‘clients’ as a complementary service in addition to their traditional external advisers, making sure that spend on external advisers is targeted and, in the current climate of belt tightening, kept to a minimum.
Making the most of this capacity
Just as with other organisations, the amount of work and its nature can vary from time to time in any given period and it can often be difficult to predict the legal requirements when agreeing annual budgets and staffing levels. One solution that is emerging is the establishment of shared working with other NHS organisations. Collaborative working is set to become the norm in many fields within the NHS, from procurement hubs, to centres of excellence and the provision of legal advice should be no different.
At a basic level organisations can look to share resources and contribute to overheads, so for example, where one Trust has a property lawyer and another wishes to reduce its property legal spend, then an agreement can be reached either through a memorandum of understanding or a service level agreement to share the ‘on cost’. More sophisticated arrangements could encompass formal joint ventures. There are however professional and organisational issues to address such as indemnity insurance and SRA Conduct regulations. Moreover, quality standards and practical arrangements such as time recording must be addressed at the outset.
Public sector requirements are reasonably specialised and local authorities have been used to shared services arrangements in the legal sector for some time. There is no reason why NHS organisations are limited to working within their particular part of the public sector, county councils, Fire and Rescue Services could be in a position to share services.
Sharing experience and knowhow
With the drive for ‘best value for money’ and scrutiny of back office spend, it seems that 2011 may well see the increase use of internal legal advice for NHS organisations. However, even at the level of discussing approaches to the challenges and opportunities there is no register of NHS in-house legal advisers. If you would be interested in adding your name to an organisational list of NHS Trusts that have an in-house legal team (even if it is a team of one!), with a view to being contacted to see if the sharing of ideas and common approaches to problems would be possible, then please get in touch with either myself or PLC Public Sector. I know I would be interested to hear if others have been trying to get to grips with the SRA conduct rules!