Our lawyers have written to the General Medical Council (GMC) to say they have acted unlawfully, by failing to set safe and lawful practice measures for AAs and PAs.  We are seeking legal challenge on three grounds. The costs of fighting this are considerable though, and we need to raise up to £500,000 to take on this case and ensure patients get the care they expect.

The case is complex: our lawyers’ letter is 49 pages long and we have posted a brief summary here.

At the heart of the dispute are some very simple and central questions. What limits are there on the tasks AAs and PAs can do? How must they be supervised; and how should patients give consent to be treated by them?

The Background

Anaesthesia Associates (AAs) and Physician Associates (PAs) are not doctors. But increasingly the lines are being blurred. We hear of AAs administering epidurals, and putting patients to sleep and waking them up without a doctor being present. In some NHS Trusts it is common for AAs to anaesthetise children without a doctor being present. 

We hear of PAs in General Practice working unsupervised.

We hear patients saying they were seen by an unsupervised Associate, when they thought they were seeing a doctor.

AA and PA regulation was introduced because of universal concerns about the lack of boundaries on their roles and accountability. It was expected, and made clear in multiple consultation processes, that the GMC was supposed to be setting national standards to change all this. This was the justification for statutory regulation.  But astonishingly the GMC has failed to set the standards that are most needed.  

The standards we would have expected include:

  • Setting limits on the tasks AAs and PAs can undertake
  • Ensuring patients give consent to be treated by an Associate in the full knowledge that they are not being treated by a doctor and what that entails
  • Ensuring proper supervision and delegation
  • Ensuring that these standards were incorporated into the GMC’s ‘Fitness to Practice’ processes which are supposed to ensure AAs and PAs are accountable – as well as doctors

The GMC has conspicuously failed to set any meaningful national standards on these issues – even though it has consulted on setting standards for far less important ones. It has not even indicated it will enforce any such standards set by another professional body.

Anaesthetists United is standing up for defined limits on practice, patients’ rights for informed consent and treatment by properly supervised AAs and PAs. But we need help raising the money to do this.

Why do we need so much money?

The legal arguments are complicated, and getting a thorough understanding of the history and the multitude of organisations involved has been difficult for our legal team. Thanks to your donations so far we now feel they have a solid  measure and understanding of the case, but the ongoing court costs are going to be significant. We also need to protect ourselves against the risk of paying the GMC’s legal costs if the case does not succeed. We are confident our legal arguments are strong, but success cannot be guaranteed in any case. 

We estimate that the work undertaken so far, and up to the time the GMC responds will be over £50k and the work necessary to get the case issued and moving forward in the judicial review process will bring the costs to £94k (including VAT). After that, our advice has been that we will need at least a further £400k unless we get a Cost Capping Order capping both the costs we can recover if we win and those the GMC can recover if we don’t. Meanwhile, we need to raise as much as we can to take the case forward and demonstrate we have done all we can.

This case is specialised and requires experts in regulatory law. We are working with the best. The GMC have a reputation for freely spending public and doctors money on defending their own position and have more resources than a small campaigning body like Anaesthetists United. 

How can we raise the fighting fund we need?

We are immensely grateful to the donors that have given us money so far on our crowdfunding page.

Now we need to spread the word of our campaign deep into the medical and public communities, because there is still considerable lack of awareness of the issue.

We are looking for:-

Fundraising Coordinators  

We are aiming to have  local AU Fundraising Coordinators within every hospital and GP Practices. Their aim will be to spread the word through personal contact, internal messaging, posters in appropriate places etc. We will provide a briefing pack and will speak to you personally about what is involved. If you are interested in finding out more, please click here.

Bloggers, Influencers, Journalists, Podcasters 

This has already been described as one of the most important legal challenges in the history of UK Medicine. We would be happy to speak to you about what we are doing and the hurdles we face.

If there is a podcast blogger or influencer that you think should run a story about this, please contact them directly.

Videos posters animations and infographics

We would be immensely grateful for any help preparing these and targeting social media, and we will share them with our Fundraising Coordinators. We can only endorse them if the script or message ties in with our campaign and detailed legal requirements so please send us the script or a draft in advance  if you can.

Patient Groups 

The issue of Associates has been raised by Healthwatch and Keep Our NHS Public but there are many other patient advocacy groups. Has your favourite such group raised the issue? Can you raise it with them?

If you care about this issue as much as we do, and share our view that the GMC – previously the defenders of the central importance of doctors – has let us down over the introduction of Associates, please help us hit our financial targets by donating, and spread the word to your friends and colleagues. We are the only organisation taking on this particular challenge.

What exactly is the legal case?

You can read the entire Pre-Action Protocol letter in full. This was sent to the GMC on Friday 26th July.

The GMC and DHSC arranged a briefing to the House of Lords ahead of its debate of the legislation that gives the GMC regulatory responsibility for AAs and PAs. It proclaimed

  • AAs and PAs deliver “specific aspects of patient care” – but the GMC has failed to say what these are; 
  • PAs can work autonomously, but “always under the supervision of a fully trained and experienced doctor” – but the GMC has failed to say what ‘supervision’ actually means and in some NHS Trusts it is simply a doctor being available on the phone somewhere else;  
  • AAs work within the anaesthetic team under the direction and supervision of a consultant anaesthetist – again, the GMC has failed to define this meaningfully; 
  • Regulation will provide a standardised framework of governance and assurance for clinical practice and professional conduct – that means national standards, which is what the GMC is failing to set. 

Our claim is based on three grounds.

Ground 1: abdication, frustration of the statutory scheme established by the 2024 Order and irrationality

The standards which the GMC is empowered to set include the safe and lawful practise measures which apply to AAs and PAs. The legislation Parliament passed after the House of Lords debate, the 2024 Anaesthesia Associates and Physician Associate Order, envisages that these standards would be met on a continuing basis throughout the career of an AA or PA. The Order was predicated on the belief that regulation was required to address the risks inherent in Associate practise through standardisation.

Setting limits on the tasks AAs and PAs can undertake is not a synonym for ‘scope of practice’. Scope of practice is a description of what one individual can do, and depends on local conventions (which vary widely from place to place), their personal levels of experience, skills and supervision. What we are more concerned with instead is the limits of the roles themselves. 

Throughout the consultation processes that led up to the making of the 2024 Order, it was envisaged that the safe and lawful practise measures would form part of the GMC’s new regulatory system for AAs and PAs. However, the GMC has not introduced any safe and lawful practise measures; nor does it even see that as being its role. 

Instead, the GMC’s current proposals

  • Contain no limits on the tasks AAs and PAs may undertake
  • Do not address how to obtain informed patient consent
  • Do not adequately address delegation and supervision

The failure to introduce safe and lawful practise measures is therefore an abdication and/or frustration of the GMC’s statutory functions and irrational.

Ground 2 – insufficient inquiry

The GMC is obliged to take stock of the need for the safe and lawful practise measures on an informed basis. It has not done so. So far as we can see it has taken no steps to identify actual policies and practices in NHS Trusts, the extent to which they diverge from previously discussed precepts (such as a 2:1 staffing ratio etc.) and the extent to which they give rise to patient risks that must be urgently addressed. 

Yet through targeted Freedom of Information requests we have obtained the unpublished policies of several NHS Trusts. Some of them make chilling reading. They envisage AAs taking huge responsibility for inherently risky procedures without doctors even being present. These policies are in force now. 

Not only has the GMC failed to identify the holes in its proposed regulatory scheme but it has failed to identify how those holes might be plugged.

Ground 3: policies encouraging unlawful acts

GMC policies on delegation, supervision and informed consent mislead by omission; and as such will operate to encourage clinicians and associates to operate unlawfully, especially relating to consent to treatment. Every patient has a right to know who is treating them, what their role is, whether they are a doctor or not – before they agree to treatment. The GMC has simply failed to make this clear. 

The GMC risks misleading doctors and Associates into thinking there are no informed consent requirements with the effect that they may unknowingly commit the tort or offence of battery by treating patients who have not given the informed consent the law demands.

What happens now?

The GMC has two weeks to respond to our initial letter. We have a lot more preparation to do before it can go to court.

In the meantime we are hoping they will reply favourably to our suggestion of Alternate Dispute Resolution (ADR – or Mediation). We may still need to take court action if mediation is unsuccessful or rejected, but a mediated resolution would be quicker and perhaps more flexible. It is far better to resolve the crisis within UK healthcare in an amicable and nuanced manner rather than a showdown in Court.

What about the BMA legal challenge?

The British Medical Association (BMA) is running its own legal case. It is focussing on different aspects of AA/PA regulation, including ensuring that Good Medical Practice applies solely to doctors and requiring the GMC to cease using the term ‘medical professionals’. We are fully supportive of their Claim.

Thank you for all your support. Are we willing, as both the medical profession and the patients we care for, to challenge our regulator on this?

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