This is an explanation of the factors that the BMA considers in determining whether or not support for any particular legal case is in the interests of the medical profession and the process that the BMA uses to determine whether such support should be offered.
The BMA has a responsibility to each of its members to ensure that its resources are used effectively in the interests of the membership and the broader medical profession. As a general rule, and in line with other unions and funding bodies, this means that the BMA does not support cases unless they have greater than 50% prospects of success.
A merits assessment will look at both the legal basis for the claim and whether there is factual evidence to support it. However, there are cases where the issues raised are of sufficient importance that the BMA, acting in the interests of its membership, needs to take a much more liberal approach and actively supports cases where the overall prospects of success are lower than 50%.
The BMA considers every request for legal support carefully, using external solicitors and Counsel where appropriate.
Cases of particular interest to members' working lives and interests are invariably considered in great detail, normally by Queen's Counsel. The advice we receive is legally privileged and confidential. In order to avoid undermining the interests of the medical profession, it is important that we preserve the confidentiality of the advice.
The BMA is under a duty to keep information about members confidential; this means that it is normally impossible and inappropriate for us to discuss members' cases, including facts we know about those cases and the advice received from our lawyers.
Unless a member waives his or her right to confidentiality, we will be unable to answer questions about the decisions we have made. Even where members are critical of the BMA, we may not be able respond because of this duty to maintain confidentiality.
Interests of the membership
In assessing whether a case should be progressed in the interests of the membership, the constituent committees of the BMA consider a number of factors, some of which will be clear because, for example, they are BMA policy. An obvious example of this would be support for collective bargaining and a single national terms and conditions of service. However, others may be less clear to members, including those which could result in unintended and adverse consequences that would flow from a case succeeding.
Sometimes, a case can look superficially attractive to some members, who may then petition us to support it. However, if on the basis of legal advice received we have reason to believe the successful prosecution of the case would be detrimental to the medical profession, the BMA will not provide support.
On other occasions, there may be specific factors relevant to a case, or the way in which it has been prosecuted before the BMA has become involved, that mean the case is ultimately unlikely to be successful in Court and that the bringing of the case risks creating adverse case law that will be detrimental to the medical profession. Cases of this nature can pose a dilemma for the BMA. If our support would make the case more likely to succeed and avoid generating negative case law, then we may support it in the broader interests of the membership. However, if we conclude that the case is likely to fail whatever its support, then we will not do so. This, again, requires careful consideration not only of the legal arguments involved, but also the evidential basis for the claim, together with strategic considerations.
Withdrawing support for cases
On some occasions, circumstances develop, or matters come to light during the BMA's support for a case that either have an adverse impact on its prospects of success or mean that it would be detrimental to the interests of our membership for the case to proceed to trial. Our obligations of confidentiality, or strategic considerations, can often mean that we cannot give members the explanation they may want. Such decisions are not taken lightly and only after detailed consideration and supported by expert advice. However, in such circumstances, the BMA may withdraw support from the claim.
While the BMA has a responsibility to use its resources wisely, financial considerations in themselves are rarely, if ever, a factor in determining whether the BMA supports legal action that would be in the interest of its membership. If the BMA, on receipt of expert legal advice, considers that the prosecution of the case is likely to be in the interests of its membership, then it is likely to provide support for this.