Our second day in court went well, with both our barristers and the BMA’s  hitting the message home. And the GMC started their defence with an emphasis on dry details of law. 

But the case has been extended to a third day – and that ramps up the cost for us. 

Today we heard from Tom de la Mare KC and Naina Patel KC, acting for AU, from Jenni Richards KC representing the BMA and from Rory Dunlop KC on behalf of the GMC. 

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.

The decision to not set scope

A good part of the morning was spent again looking at how and why the GMC decided not to set Scope of Practice for associates and make only very minor changes to its guidance and advice about supervision and consent-seeking.

As to scope, when AU issued its first letter to the GMC, their reply was they had no legal power to set it, a position they maintained in their summary defence. They said that our quarrel should be with the government and Parliament as makers of the AAPAO (the statutory instrument empowering the GMC to regulate associates), and that any claim challenging them would be out of time  anyway.

As the case developed, their argument changed radically. They admitted they did actually have the power to have set scope, but rather they had chosen not to.

It was clear that this choice had been made prior to 2022, as was clear from the minutes of contemporary meetings – but how and when remained unclear. We pressed them to disclose the key documents recording how it was made and maintained, when and by who in the GMC. Professor Melville’s Delphic response in his second witness statement was: 

“Whilst I acknowledge that it would have been helpful, not least for the purposes of these proceedings, for the GMC’s decision making in this area to have been confined to a single written document constituting a formal ‘decision’ on ‘scope’, where corporate decision-making is concerned, it is not unusual for there to be no formal record of a decision not to do something (particularly where it is the clear view of everyone within an organisation that this would be inappropriate).The GMC had a very large number of matters to consider when deciding how to regulate PAs and AAs.”

In other words, in relation to setting scope of practice, one of the most, if not the most, critical issue the GMC faced as a patient-safety focussed regulator, its approach was to reach a shared, corporate consensus that did not even merit a minuted discussion. 

This is truly remarkable.

The judge checked carefully with our barrister (Tom de la Mare KC) that was indeed the case. He pointed out that

• A rational decision-maker would have looked at the risks of adopting this approach
• The various surveys (the GMC’s own ‘community of interest one, the BMA’s two, the RCGPs one and so on) and coroner reports should also have prompted a rethink
• The evidence that this was a mistake and there were huge risks in setting no limits at all was ‘shouting from the rooftops’.

Ms Richards KC emphasised that the GMC had made a deliberate decision not to set scope when they had the power to do so. On top of which, they were endorsing the guidance written by UMAPS (the associates trades union), but not the guidance written by the RCGP or the BMA. So not only were they not endorsing Medical Royal College guidelines but they were failing to differentiate between two non-statutory documents that were entirely contradictory. This could leave both associates and their supervisors in an impossible position.

Leave it to the employers

Mr de la Mare pointed out the perils of leaving scope-setting to employers. He used as an example the 2016 RCoA guidance on AAs, which was openly ignored by employers keen to save money; Colleges were not in a position to enforce their rules.

The GMC approach to this is that decisions on scope should be decided locally. But they have failed to properly inform themselves of what is actually happening ‘on the ground’.

Professor Melville proposed that relaxing scope would reduce waiting times and increase hospital efficiency. There is no evidence for that; and if that is to be the GMC approach then there needs to be some attempt at establishing the facts.

Consent for treatment by associates

Our second KC, Naina Patel, led our submissions on this. The current law hinges on the Montgomery principle – something Mrs Justice Lambert needed no introduction to – her career has involved a lot of medical negligence cases. 

Montgomery requires that patients are aware of ‘material risks”; and materiality is defined as something a reasonable person is likely to attach significance to. Would a reasonable person expect to know that they were being treated by an associate? This is more than just a case of qualifications and experience – and more about a difference of type. Associates are a different type than doctors.

And what to tell patients

Current GMC guidance on consent requires that ‘you must always be honest about your experience, qualifications and role .. and explain your role in their care’. 

But this could be interpreted as only requiring, for example, “My name is X and my role is to perform Y”.  So a PA merely stating their role is not enough for gaining proper consent.

Jenni Richards KC, representing the BMA, followed up on this. Why had the GMC not mandated that associates introduce themselves by saying “I am not a doctor”? It is clear that the public do not know what an associate is.

And she astutely pointed out that the GMC tells medical students who are taking part in treatment that they must warn patients that they are students, in order that they can secure proper consent. In contrast, there is no such requirement for PAs to identify themselves in the same way. This is particularly concerning as the public are more likely to know what a medical student is than an associate.

The GMC lawyers start their defence

In the afternoon, Rory Dunlop KC presented the first parts of the GMC’s defence. He made it clear from the beginning that his approach would not be to carry out a mini-Leng-review, suggesting that was how our case had been put, but rather to focus on the legal principles. Rather than looking at the individual trees we should start by looking at the whole wood.

Mrs Justice Lambert, who had presided over the Sycamore Gap case, joked that she thought she had left trees behind. Mr Dunlop continued by discussing the differences between outcome rationality and process rationality.

Much of his opening arguments revolved around whether judicial review was an appropriate legal process  – is this truly a legal challenge or a policy review –  and how this case and the Leng review related to one another. He acknowledged that the GMC would not necessarily be bound by the Leng conclusions since their response would depend on how the government reacted to them and, in turn, whether Parliament decided to legislate again.

The judge understood the distinction between process and outcome rationality, but questioned the relevance of the background and what had gone on beforehand.

The GMC and the Medical Royal Colleges

There was a long discussion about whether or not the GMC should adopt scope documents from Colleges, or at least take the sections from them that prohibited the most dangerous practices. Mr Dunlop did not accept that College documents lacked teeth, and recognised their value, but did not think the GMC could adopt and enforce them. He was also concerned that College documents would be too rigid and would give insufficient flexibility, especially in allowing associates to develop.

Mr Dunlop felt that Parliament had not set limits on what associates can or cannot do, although they could have done so.

He paid tribute to the Chesterton family and offered them his condolences. The court was shown documents from the GP practice, which should have ensured Emily had not seen a PA on her second presentation. Mr Dunlop acknowledged with regret that there was no reason to think the PA in question would have followed a national Scope any more than they would have followed this local document. He offered the future introduction of revalidation for PAs as a potential way forwards.

On working within their competence

Justice Lambert asked how an associate could know whether they were working within their competence. Mr Dunlop gave a series of possibilities, including their education, guidance from employers, through supervision and through Royal College guidance. 

Good Medical Practice places a requirement on PAs to recognise their own competence and ensure they have proper supervision.

On consent

Mr Dunlop drew a distinction between what the law requires on consent and what was required by professional obligations. He said it was a professional standard for a PA to explain their role, but that this was not a legal requirement. There was no general need for a PA to tell patients they were not a doctor. 

Later in the afternoon, Mrs Justice Lambert put pressure on the GMC legal team to answer the question – how were the decisions not to set scope and the latest practice advice on supervision reached? They assured her that there was a straightforward answer to this, and that they would provide her with answers by the middle of next week.

The third day in court

Because the case has taken longer to hear than had initially been anticipated, we only heard a part of the GMC defence. A third day is necessary to hear the full defence (and our response to it) and that will not be until Monday the 9th June.

We hope that in the interim that Justice Lambert will have time to review the hundreds of pages of evidence and statements that make up our case.

This extension of time unfortunately increases our legal costs. We feel that we have made enormous progress and that success is within our grasp – but we have to bring the entire legal team back to court and there is more preparatory work to do to get us there.

The TV and other media coverage of the case has helped raise awareness of what we are doing, but there are still a lot of friends and colleagues that are simply unaware of this courtroom struggle. Please help us by spreading the word to them. And consider donating to our legal costs.