We are hugely disappointed that Mrs Justice Lambert has dismissed our judicial review on all grounds. She has accepted everything that Professor Melville and the GMC have said, despite the flaws in their argument. Her 57-page judgement is available here.

This case was brought to highlight serious concerns about setting a scope of practice and supervision of Anaesthesia Associates (AAs) and Physician Associates (PAs). The judgment notes there are risks and acknowledges the evidence of patient harm, but ultimately allows the GMC the discretion to do very little about those risks and that harm.

Our lawyers will be looking next week at whether or not we can appeal the judgement. Whether or not this is practical depends on financial, as well as legal considerations. We will report on this as soon as possible.

Since we started this case there has been a sea-change in attitudes towards the use of Physician Assistants. The Leng review, and its widespread adoption, has been a key part of this change; and the public are now more aware of what PAs are and what background they have. 

What was the case about?

The case is primarily about whether the use of PAs, with no restriction on their practice, pose a systemic risk to patient safety. We submitted that their shorter training (compared to doctor) and lack of career structure, means there can be no certainty or confidence in their training, skills and competence. 

These issues are compounded by the general public having little or no understanding of the PA role; and therefore patients may not actually be giving informed consent to their treatment.

The main grounds of our case were that the GMC failed to produce standards that would:

• set adequate limits on the tasks PAs may undertake post qualification by the introduction of a scope of practice,
• ensure that informed patient consent is obtained for treatment by requiring associates to state unequivocally that they are not medically qualified ; and
• ensure that PAs are safely supervised by doctors, including when delegating appropriate clinical tasks 

and that this failure by the GMC was irrational.

Process and outcome irrationality 

An important legal principle is whether this irrationality was a process irrationality or an outcome irrationality – in other words was the decision not to set scope simply an incorrect conclusion, or was the decision reached without following a due process? We argued in court that the decision not to set scope was made without following proper process, and that Professor Melville, in his evidence, was presenting an after-the-event rationalisation.

The judge makes reference to

• The 2020 GMC’s COI survey, which indicated concerns over the lack of clarity on associates’ scope of practice
• The 2024 BMA survey, which showed many concerns over scope of practice
• The 2023 Doctors Association survey, showing concerns over patient safety
• The 2024 Royal College of GP’s survey, which was so concerning that the College called for a halt in recruitment of PAs
• The 2025 BMA survey calling for a national scope of practice
• Evidence that the Royal College of Anaesthetists 2016 Scope of Practice is ignored of worked around
• Three coroner Prevention of Future Death reports

She then looked at Professor Meville’s statement on behalf of the GMC, which took as its starting point the lack of ceilings upon the practice of doctor. The regulation of doctors was well established and known to safeguard patients. She comments:

Given the success of this approach, Prof. Melville said that “compelling reasons” would have been needed for the defendant to have taken a different and wholly untested approach to setting professional standards for associates. No such evidence emerged to suggest that a different approach was needed in the interests of patient safety.

The judge rejected our claim that the GMC’s starting point was irrational. Their decision to apply the ‘medical model’ to associate regulation:

• reflected their extensive experience as a regulator;
• was supported by their review of the practice of other healthcare regulators;
• was consistent with the concerns expressed by the General Dental Council which had adopted limits on practice but was thinking of changing that approach, and
• was consistent with the views expressed by the DHSC when it decided the GMC was the appropriate regulator for PAs.

She accepted the GMC submission that, having identified those serious concerns through its own COI survey, they were not obliged either to seek out further evidence of the same points of concern and review or to reconsider its position on limits of practice in the light of other material to the same effect. 

The decision not to set scope was not subject to consultation. Yet the judge, mistakenly in our view, felt that It has never been suggested that the various consultations were in any way deficient.

So she concluded:

I find no failure by the defendant to take into account material evidence or mandatory consideration. I find no logical error or critical gap in the defendant’s reasoning. The defendant’s approach was I find coherent and not irrational. I therefore reject the claimant’s submission based on process irrationality.

Outcome irrationality

On outcome irrationality she reviewed both our own arguments and the GMCs defence. And she concluded that:

I am satisfied … that there exists a genuine debate about whether the imposition of national limits on the practice of associates is overall in the interests of patient safety… the existence of this debate is fatal to ground 1(a) of this claim. 

It is not for me to enter the debate and resolve it one way or the other. That is not this court’s role: my only role is to determine whether the defendant’s decision not to impose a ceiling on practice is irrational… this court is simply not equipped to weigh complex social, political and economic issues and then express a concluded view on the pros and cons of limits of practice. 

She also felt that even if a national scope of practice for PAs was the only rational outcome of this debate then it still was not necessarily irrational for the GMC themselves to not set it, because:-

• Nobody outside this litigation thought that they should do so,
• The GMC itself does not have the expertise, and
• The GMC has taken account of ‘local governance’

On informed consent

We also argued that patients need to be told that they are being treated by a PA in order for consent to be valid. The judge accepted the GMC’s argument that the wording of Good Medical Practice was adequate. She also rejected our argument that Montgomery required patients to be told of material risks and that the involvement of a PA in their treatment constituted a material risk. 

And on setting scope

Finally, the judge looked at how the GMC reached their decision. She acknowledged the GMC had a significant amount of information available to it while it was preparing to start the regulation of PAs. And she summarised that

Stepping back, the question which this court must ask itself is whether a reasonable decision-maker in the defendant’s position, with the information that it had available to it, could have decided upon adopting the regulatory approach that it did. I have little hesitation in answering that question in the affirmative. The defendant embarked on an extensive research program to inform the development of its professional standards and guidance to be applied to associates. That was what was required of it under the 2024 Order. I do not consider that the failure to inquire further about the situation ‘on the ground’ comes anywhere close to rendering its chosen regulatory approach irrational.

Our comment on the verdict – They could have but they didn’t.

Despite what they originally argued about Parliament tying their hands before the trial the GMC accepted in court that they had the power to set scope of practice for PAs and AAs and to introduce robust supervision requirements along with a requirement that they identify themselves as ‘not doctors’. But the GMC chose not to do any of these things.

For an organisation that has, for over 160 years, maintained that doctors are different to every other group of healthcare workers, this is an astonishing position to adopt. Fitness-to-practice decisions are littered with the GMC position that doctors are subject to ‘the highest of standards’, commensurate with their lengthy and in-depth training. 

For them to apply these same standards to a lesser-trained group of workers, and for them to have reached this decision spontaneously and without formal debate, has come as a shock to many doctors and the wider public. We cannot help but feel that we have been let down by our “leaders”

If the GMC really was within its legal rights to make such a decision, was it the right thing to have done so? The judge avoids answering that.

The question of whether to impose detailed profession-wide limits on the practice of PAs and AAs is a complex multi-factorial policy question which is not appropriate for a court to determine in a claim for judicial review. It does not matter whether or not the defendant considered each (or any) of the factors informing the debate when determining not to impose limits on associates’ practice. The fact is there is a debate and it is one which engages policy and politics. This means that the outcome rationality ground must inevitably fail. The court cannot rule on whether the premise of the claimant’s criticisms is correct.

Marion and Brendan Chesterton, the parents of Emily, who were co-claimants in the case, summed up their feelings on the verdict.

We are extremely disappointed, dismayed and saddened by this decision. All we ever wanted was to ensure the safety of all patients by forcing the GMC to fulfil the responsibilities given to them by Parliament, produce a thorough Scope of Practice explaining what associates, now ‘assistants’, should never do, make sure they are supervised and that they identify themselves. It is very hard to understand how a rational healthcare regulator can resist taking these steps – or would want to. Yet the court’s judgment appears to allow that. We do not want anyone else suffering the way Emily did. We do  not want any further needless deaths.  No other family should have to go through the hell we have endured. 

We are immensely grateful to the thousands of people who made financial pledges to our crowdfunder, and to the BMA, Doctors Association UK, and other organisations and colleagues who stood alongside us and supported us financially. Your support has made this case possible and ensured that patients’ voices were heard in court. 

We are looking into the possibility of appealing the case; but this requires funding. Please help us with this.