By the Anaesthesia Associates and Physician Associates Order 2024, the remit of the General Medical Council (“GMC”), as the statutory regulatory body responsible for regulating doctors in the United Kingdom pursuant to the Medical Act 1983, was extended to include a new role as regulator of physician associates and anaesthesia associates, whose roles had been introduced into the UK healthcare system some years previously. Associates were not medically qualified but were able to practice clinically following completion of an undergraduate degree and two years of clinically based experiential training. After extensive research and consultation the GMC imposed a transition period for completing the mandatory criteria required to become a registered associate and made amendments to its Good Medical Practice (the unified guidance for all regulated professionals under its remit, concerned with high level ethics and conduct issues). The claimants, who asserted that the use of associates posed a systemic risk to patient safety, sought judicial review challenging GMC’s ongoing failure to produce specific guidance or policies either for doctors delegating to and supervising associates, or for the associates themselves, in terms that (a) set out adequate limits on tasks associates might undertake, (b) ensured that informed patient consent was obtained by requiring associates to state unequivocally that there were not medically qualified, and (c) ensured that associates were safely supervised by doctors. The claimants submitted, inter alia, that the GMC had acted irrationally in both its decision-making process and the outcome of that process by failing appropriately to exercise the statutory powers conferred upon it by the 1983 Act, and subsequently the 2024 Order, for their statutory purposes, including the over-arching patient safety objective under section 1(1A) of the 1983 Act.
On the claim for judicial review—
Held, claim dismissed. The starting point adopted by the General Medical Council, of applying the medical model to associate regulation, was not irrational given that its decision was supported by its own experience as a regulator, a review of the practice of other healthcare regulators and the views expressed by relevant stakeholders, taken together with its own research. While there were patient safety advantages to the potential introduction of national fixed limits on the practice of associates, there were also downsides and, where there existed a genuine debate about whether the imposition of such limits was overall in the interests of patient safety, it was not the role of the court to enter into or resolve it, the present of that debate therefore being fatal to the claim. The GMC’s decision not to impose national limits on the practice of associates was likewise rational given that it was neither the appropriate, nor the best-placed entity, to define those limits even if they had been deemed necessary. Finally, the current advice which, properly understood and if followed correctly, required an associate to inform the patient that they were not medically qualified if they were engaged in a task that a patient might reasonably expect a doctor to perform, could not be said to be irrational. Moreover, an associate who failed to inform a patient that they were medically qualified did not thereby fail in their duty to inform the patient of a “material” risk or factor or thereby fail to obtain informed consent, there being no authority for the proposition that the qualifications of the person offering advice or carrying out a treatment or procedure were a material risk factor to any treatment undertaken. The regulatory body’s exercise of its role as regulator of Associates was therefore coherent and rational and its decisions informed by the appropriate information (paras 117–118, 123–124, 128, 129, 130, 131, 134–136, 137, 138–139, 158–159, 160–162, 163, 172–174, 175).
Thomas de la Mare KC, Naina Patel KC and Emily MacKenzie (instructed by Bindmans LLP) for the claimants.
Rory Dunlop KC and Peter Mant KC (instructed by Legal Team, General Medical Council, Manchester) for the General Medical Council.
Jenni Richards KC and Adam Boukraa (instructed by TLT LLP, Bristol) for the professional association.
The second, third and fourth interested parties did not appear and were not represented.