A legal challenge against the GMC over its regulation of physician associates (PAs) – and specifically its refusal to set out a scope of practice – has passed its first hurdle at the High Court.
On Tuesday, a High Court judge granted Anaesthetists United (AU) ‘permission’ to proceed to a judicial review, stating that their claim against the GMC ‘raises serious issues of importance’ to healthcare professionals and patients.
The legal case is aiming to achieve ‘clear and enforceable guidance’ defining what PAs and anaesthesia associates (AAs) ‘can and cannot do’, and argues that the GMC has a statutory duty to set those standards.
AU brought the case along with co-claimants Marion and Brendan Chesterton, the parents of Emily Chesterton, a patient at North London GP practice who died at the end of 2022 after seeing a PA.
The BMA, which is listed as an ‘interested party’ in the case, has also offered financial support by providing indemnity to protect the AU and the Chestertons from the risk of financial loss arising from the claim.
When granting permission for judicial review on Tuesday, High Court judge Mr Justice Chamberlain also ruled that the case will be ‘expedited’ with a hearing taking place ‘no later than the end of the Easter Term’, which finishes on 23 May.
In his ‘observations and reasons’, Mr Justice Chamberlain said: ‘The grounds of challenge are reasonably arguable.
‘The claim raises serious issues of importance to the relevant professions and to patients which should be determined on a reasonably expedited basis.’
The AU said this means their challenge has ‘passed the first legal hurdle’, and at the full hearing the GMC ‘will be held to account for the unsafe, pitifully light-touch regulatory regime it has in mind’ for PAs and AAs.
In a statement yesterday, the organisation said: ‘We believe that there is a role for Associates in the NHS, but that there have to be national standards governing what they can and cannot do.
‘We also think that the GMC has a statutory duty to do this and that their refusal to do so is unlawful.’
It also claimed that the GMC’s defence to their challenge ‘is that it cannot set scope for PAs and AAs’ because it does not have ‘the necessary expertise’.
The regulator has been clear that it will not itself set out a scope of practice, and will ‘have reference’ to guidance produced by royal colleges in its fitness-to-practise proceedings.
However, a letter to the RCGP published before Christmas revealed that the GMC had concerns about royal colleges ‘dissuading’ GP practices from employing physician associates with their own ‘restrictive’ scopes of practice.
Anaesthetists United co-founder Dr Richard Marks told Pulse that the legal case challenges the GMC’s argument that PAs and AAs should have ‘individual’ scopes of practice which they develop depending on where they work in the healthcare system.
‘Our argument is that there should be rules defining what associates can and cannot do,’ he said.
Dr Marks continued: ‘An individual PA might do this or that, because that’s what his hospital does and that’s what he does and that’s what he’s good at. But no PA or AA should be doing certain things. And those certain things really come down to unsupervised practice.’
The GMC recognised today that permission had been granted for the AU’s challenge to proceed to judicial review, but noted that the ‘substantive determination of the claim has not yet taken place’.
A spokesperson continued: ‘We have made it very clear we will recognise and regulate doctors, PAs and AAs as three distinct professions.
‘We have also been consistent in saying that, as their regulator, we will expect PAs and AAs to always work under supervision and to practise within their competence. They will have a responsibility to clearly communicate who they are, and their role in the team.
‘To register with us, PAs and AAs will also need to show that they have the knowledge, skills, and experience to treat patients safely, and that there are no outstanding concerns about their fitness to practise.’
The Doctors’ Association UK (DAUK) – which had contributed £30,000 to the legal challenge – ‘welcomed’ the ruling on Tuesday, and called for the expansion of PAs and AAs to be ‘immediately paused’ in light of the decision.
DAUK chair Ms Helen Fernandes said her organisation has ‘been consistent supporters’ of the case, and that they ‘feel even more strongly that the roll out of PAs and AAs now needs to be paused’.
She added: ‘Questions around the appropriate regulation, scope of practice, supervision, and ultimately patient safety need to be answered. It’s too important to blindly carry on.’
Anaesthetists United is looking to raise a further £150,000 to cover its legal costs at the full judicial review hearing.
A Government-commissioned independent review of physician associates – which is expected to cover scope of practice – is currently underway and will report in the spring.
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It is truly disheartening that Marion and Brendan Chesterton, the parents of Emily Chesterton, a patient, following a tragic event, must be the ones to challenge the GMC over its regulation of Physician Associates (PAs), rather than the responsibility falling squarely on the shoulders of the GMC, the healthcare profession, and the universities. This responsibility should have been taken from the outset, with well-defined boundaries set in stone to ensure clarity and safety for both patients and healthcare providers alike.
In my own practice, I have always adhered to the principle of never engaging in any task or procedure for which I have not been thoroughly trained. This should be a universal standard for all healthcare professionals, regardless of their role or the pressures they may face. It is concerning to think that there may be individuals in healthcare who, whether due to external pressure or a lack of understanding of their own limitations, may go beyond their training and competence. This is a dangerous practice that could undermine the integrity of patient care and potentially lead to tragic outcomes.
The legal challenge against the GMC is an important step toward establishing clear, enforceable guidance regarding what PAs and Anaesthesia Associates (AAs) can and cannot do. There must be absolute clarity regarding their scope of practice to ensure they work safely within their competence, with appropriate supervision at all times. The fact that this issue has to be brought before the courts highlights a serious failure in the system, and it is crucial that we address these gaps in regulation immediately to prevent any future harm.
In parallel with the GMC holding doctors to account, if the case is proved by the AU, each and every GMC official involved in this decision should be sanctioned and removed from the GMC organisation. These costs being incurred arbitrarily and wrongfully in my opinion by the GMC from forced subscriptions should result in financial penalties for those responsible and deemed to have caused this unacceptable and unnecessary outlay.Only when they are equally held responsible for their actions , will this aberrant GMC behaviour be curtailed.
Yes the GMC should be held accountable for their actions. Only the BMA help doctors supporting the AU.