Public Bodies (Joint Working) (Scotland) Act 2014

The Public Bodies (Joint Working) (Scotland) Act 2014 came into force on 1 April 2016. This legislation implements health and social care integration by bringing together NHS and local authority care services under one partnership arrangement for each area.

Q. Can an in-house solicitor employed by a local authority advise both their employer and an “integration joint board” set up by their employer and the health board?

Yes - the opinion of the Society’s professional practice team is that such solicitors may advise both their employers (the local authority) and an integration joint board, as long as there is no conflict of interest with their employers and providing any issues of confidentiality are addressed. Often, there will be a common interest that the board and the authority wish to achieve, and in such cases there would clearly not be a problem.

However, as individuals, solicitors should be aware of potential conflicts and issues such as privilege and confidentiality. For example, a solicitor might know something from their work for the local authority, which might be relevant to the joint integration board, which they could be precluded from divulging to the board because of duties of confidentiality to the local authority. Conflict of interest is matter which can only really be considered on its own individual circumstances. It is up to the solicitor to assess the risks in any particular case. However, help is available from the Society’s professional practice team – who can be contacted on 0131 226 8896 or on profprac@lawscot.org.uk.

A service level agreement, between the local authority and the integration joint board, might assist. It could set out the scope of the agreement to provide legal services and include issues such as the possibility that the solicitor may have to withdraw from acting in certain circumstances. It could also be used to consider the need for insurance and to specify that the solicitor will not incur personal liability.