In the third and final day in court, Rory Dunlop KC and Peter Mant KC, on behalf of the GMC, defended their position to Mrs Justice Lambert, and our own barrister Tom de la Mare KC responded on our behalf.

What follows is a brief summary of the issues raised, but it is necessarily brief, selective and a simplification of a full day of complex legal pleadings.

Should the Court set standards for PAs?

Mr Dunlop pointed out that this court did not itself have the expertise to set standards for PAs (of course, it is not our case that the Court should; rather that the GMC must do so lawfully).

He then relied heavily on the Professional Standards Authority evidence to the Leng review which argues that scopes of practice have not been a significant feature of professional regulation in the UK. The PSA recognises that pressures on manpower will lead to new roles being defined.

Responding on this point, Mr de la Mare pointed out that the PSA requires there to be proper decision-making. He pointed out that none of the steps recommended by the PSA had actually been taken by the GMC to decide on its regulatory approach when faced with the risks associated present. The PSA’s  steps are: 

Why didn’t the GMC set scope of practice for associates?

The decision not to set scope was made a long time ago – well before the AAPAO (the legislation empowering the GMC to regulate associates) was drafted. Mr Dunlop said that because the decision had already been made not to set scope then there has been no need to explicitly mention it in the Order.

Justice Lambert asked when and how that decision had been made – Mr Dunlop’s answer was that it wasn’t exactly clear but they hadn’t minuted every decision. In response to further questioning by the judge he added that there was nothing in the minutes of the EAG, but that the decision-making process was described in Professor Melville’s first and second statements.

Mr Dunlop then explained that the GMC had experience of regulating doctors, and so it was reasonable to assume that they should regulate associates in the same way.

Mr Dunlop described how they had taken advice from other regulators, and that  the General Dental Council was the only one to set a scope of practice for multiple professional groups. He claimed that the GDC regretted doing this because it inhibits growth of the profession. But he also acknowledged, in response to a question from the judge, that they had not withdrawn these rules.

He gave a reference to one of the workshops they had held at which it was mentioned setting scope would “inhibit future development”.

The GMC does not, he said, have the expertise to decide what associates can do. In the case of Anaesthesia Associates (AAs) there is guidance from the RCoA that lists tasks AAs cannot do. Mr Dunlop acknowledged “I’m not in any way saying that any of this is wrong” – but what happens if technology moves on? A scope would also have a ‘calcifying’ effect on associates’ professional development, he said. 

Mr de la Mare responded that associates are not the same as doctors.

He also repeatedly mentioned that the decision to not set scope was not identifiable, that the GMC had the power to have done so had it so wished, and that despite our persistent questioning they have not adequately explained their reasons for making this decision.

Recent GMC April 2025 advice on supervision.

Mr Dunlop was at pains to point out that a lot of thought had gone into authoring this document. Technically it was not necessary to consult on it, since it was giving guidance and not setting standards, but in practice they had consulted.

Mr de la Mare pointed out that there were significant changes made after the consultation – for example in the draft version it stated Anaesthesia Associates should be supervised by consultants, whereas in the final version this was changed to “should usually be supervised by consultants”. Many of the positive endorsements of the RCoA interim scope that had been present in the consultation draft had been stripped out in the final version. 

The GMC position is that supervisors need to be aware of what a particular PA can and cannot do. Mrs Justice Lambert asked how they would know that. Does a PA carry a logbook? Mr Dunlop reassured her that they ‘might’ have one, though they are not mandatory;  but in any event they were professionals. A named supervisor would also provide safeguards.

And he added that a supervisor could always check the patient records from former workplaces of the associate to verify what they had done. 

On informed consent

Mr Dunlop said the GMCs position was that they can set levels of professional conduct, but they cannot set the law on consent. Good medical practice requires that PAs explain that they are not doctors – but this is not mandatory. The requirement is simply for them to explain their role. Members of the public can google what a PA is, and can find a document on the GMC website which makes it clear they are not doctors.

The judge asked why medical students are explicitly required to tell patients they are not doctors but PAs are not. Mr Dunlop appeared stumped. Mrs Justice Lambert, who has a personal background in medical negligence and personal injury cases, probed more deeply on this but no better explanation was forthcoming.

However after lunch, he said the reason was that medical students are not regulated. Associates were. Students therefore needed to be clearer with patients. 

Did the GMC consult adequately?

They listed a long series of bodies where consultation had taken place.

They added they had taken several other steps. Good Medical Practice requires you to know the limits of your competence and this is now enforceable. Revalidation, which is still in the pipeline for PAs, will also help.

On these points, Mr de la Mare flagged that there had never been a consultation on regulating associates the same way as doctors, or on scope-setting.

Critically, though, the GMC could not point to a single document recording a decision where they weighed the risks to patient safety of regulating associates in the way they have chosen to do – like doctors, and setting no scope or even the outer limits of what is permissible – against any supposed benefits of doing so. Their entire position on this was set out in Professor Melville’s statement and was a response to our claim, not a proper, lawful and rational decision-making process.  

So what happens now?

If the judge were to find that that the GMC had acted unlawfully by failing to set scope, or to adequately consult on the issue, what then? The judge asked about the difference between outcome and procedure rationality – one forces there to be a different conclusion whereas the other forces the processes to be run again yet the outcome could potentially stay the same.

Mr de la Mare and Mrs Justice Lambert had a long discussion on the potential outcome of the case. He pointed out that when we had first started the case we were unaware of the decision-making process that had gone on, and the failure to take into account the relevant material. “What has been revealed”, he argued “is that the questions that have to be answered haven’t been addressed”.

The judge thanked the two legal teams and said she had been given a lot to think about. She hopes to issue her judgment before the end of the summer term.

Although the case has finished we are still short of money. We hope that members of the medical profession, together with members of the public, will recognise the importance of what we are doing and will help us to cover all our legal costs.