In last week’s blog Ben suggested that spending time and money on lawyers whilst developing new federations might be a mistake. But Craig Nikolic, Chief Operating Officer of Together First (a GP federation in Barking and Dagenham) had different ideas. So this week he gives us his take…

Ben Gowland’s blog piece on the Perfect Governance Model for GP Federations hits the spot on most areas and is correct that Federations that overdo “governance” are setting themselves up to become cumbersome and inefficient. Where I disagree with Ben is in the commissioning of professional advice.

For the vast majority of the NHS, the statement “it’s time to get the lawyers in” means that something has gone wrong and it’s often far too late. Most NHS senior managers have only seen lawyers in outright firefighting mode where they’re trying to fix problems, and doing it expensively.

To someone like me who has spent most of their career outside the NHS, this is a strange phenomenon and makes about as much sense as refusing to spend £100 on fire extinguishers then later complaining when you call the fire brigade to stop your business burning down.

A good lawyer or accountant, or even both, brought in early can be a very positive event when you’re doing business transformation. The trick is understanding what lawyers can do for you. For most NHS folk, lawyers are there to help you get over negative legal problems, or to legally threaten someone else, and they’re expensive. On the positive end of legal advice, it can be substantially cheaper to get a lawyer in early than put it off then find out when it’s too late that you’ve got it all wrong.

In Barking & Dagenham, we’re undergoing substantial transformational change and there’s a few areas where we’ve had uncomfortable experience of things going the wrong way because of the standard NHS “gentleman’s agreement” or a vague MoU over a critical piece of our business. We brought in lawyers and accountants to make sure our new plans get it right first time.

I’ll give a few of examples:

• Take a GP Federation that wants to hold APMS/GMS/PMS contracts yet has GP practices in its area that are corporate bodies, say other APMS practices. Do you know absolutely and beyond doubt how your Federation can hold those contracts and also have the corporate body as an equally represented Federation member?
• Do you do business with other NHS organisations by MoU? What’d happen if the other organisation said tomorrow “sorry, but that’s it, we’re stopping this deal today and you have no comeback because MoUs aren’t contracts”. That happens far more often than you’d think in the NHS.
• Could your Federation’s books cope with a substantial amount of delegated commissioning if it suddenly came from the CCG? How could you track the financial viability of each LIS or contract? Are you confident that your cash flow could keep up with the slow nature of centralised NHS payments or payments from other care settings such as acute Trusts?

Getting formal legal and accountancy support on those items is not expensive, the trick is working with them properly. On lawyers especially, work with them, tell them in detail what you want to accomplish and how you’re planning to do it then put the open statement: “tell us the risks in what we’re doing”. It’s your plan, not theirs, you must put the hard work in first. Most NHS people dealing with lawyers give them nothing but vague statements and then say, “tell us how to do it”. You then get lawyers responding in the most risk-averse way possible with a contract that does nothing but lock people into onerous and negative terms. See the difference?

Imagine a GP referring a patient to a Consultant, you’d grumble at a GP just referring on and saying “patient is not well, tell us what to do” and giving nothing else, yet that’s what lawyers dealing with the NHS often get. Most of the money lawyers charge the NHS is spent doing their equivalent of “What do you mean by not well? Come on give us a clue, is it his leg? Maybe his arm?”

We did the positive work with our lawyers, we built a good relationship over overwhelmingly positive items and working through our already very robust plan. We got reassurance that most of the stuff we were doing was perfectly fine and had a legal opinion we could give to Commissioners and others to prove it. We changed track on a couple of minor points to address legal issues we simply didn’t know existed. We now have a clear idea of how to work well with other NHS organisations without having to get into regressive and negative protectionist contracts. Most importantly though, we know for sure that our plans are fit for a very flexible future that could go all the way from staying the same size all the way through to becoming a super-power Federation.

That’s it. Done. A simple, low bill to lawyers and we now have a clear foundation that’ll do us for years, protecting us from most negative events and giving us simple tools to help us do business more efficiently.

For me, that’s a no-brainer and I’d be in dereliction of my duty as a professional senior NHS manager to not take advantage of such an easily accessible resource.