Our legal arguments are set it out in our Letter Before Action which can be downloaded as a PDF.
It is a long letter; we have pasted the opening section below.
Proposed claim for judicial review by Anaesthetists United Ltd
We are instructed by Anaesthetists United Ltd of 71-75 Shelton Street, Covent Garden, London, United Kingdom, WC2H 9JQ (‘AU’). AU is a doctors’ advocacy body formed in 2023 to air concerns about the plans to exponentially increase the number of Anaesthesia Associates (‘AAs’) and Physician Associates (‘PAs’) working in the NHS without an adequate, patient-safety-focussed regulatory framework.
This letter is written in line with the Judicial Review Pre Action Protocol (‘the Protocol’) and concerns ongoing failures by the General Medical Council (‘the GMC’) to:
(1) produce guidance, policies or otherwise set standards (including, potentially, by adopting guidance or policies produced by others) which:
(a) set limits on the tasks AAs and PAs may safely and lawfully undertake, both when they qualify and are admitted onto the GMC’s registers from December 2024 and in practice post-qualification;
(b) ensure informed patient consent is obtained to lawfully authorise any treatment provided by AAs and PAs (save in circumstances where consent cannot practically be obtained);
(c) ensure AAs and PAs are properly supervised by doctors after a proper and considered delegation of tasks to them by an appropriate clinician; and
(d) meaningfully and transparently integrate (1), (2) and (3) above into the fitness to practise system it proposes to put in place for AAs and PAs; (collectively ‘the safe and lawful practise measures’);
(2) gather and consider sufficient information to address the question of whether it should introduce the safe and lawful practise measures, then lawfully address and answer that question; and (3) either provide advice or issue a policy giving accurate guidance on the law on informed consent in the contexts of delegation to and supervision of AAs and PAs and ensure patients’ consent to treatment by them is given (a failure which misleads by omission, encouraging doctors, AAs and PAs to act unlawfully, potentially unknowingly committing the tort or offence of battery).
You should note that (1)(a) is not a synonym for ‘scope of practice’ as that concept is commonly understood. Scope of practice is a description of the tasks and responsibilities someone in a particular role may undertake depending on their skills, experience, confidence and supervision, which may or may not include specification of limits. (1) is concerned solely with the enforcement of the extant limits on the AA and PA roles, such as the prohibition on prescribing and authorising X-rays and other ionising radiation requests. Those limits can, of course, be recorded as part of a scope of practice document.
The GMC’s failure to introduce the safe and lawful practise measures and its failure to regulate on a properly informed basis are unlawful.
In summary, that is because:
(1) the Medical Act 1983 (‘the 1983 Act’) and the Anaesthesia Associates and Physician Associates Order 2024 (‘the 2024 Order’) empower the GMC to regulate doctors, PAs and AAs in the public interest with patient safety in mind, including by issuing guidance and policies and setting standards such as the safe and lawful practise measures, all of which must be done in a transparent manner;
(2) 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 by the time it became operational in December this year;
(3) the GMC has not introduced such measures and nor, it appears, does it plan to introduce them before the system becomes operational;
(4) although the GMC might, in certain circumstances, adopt or decide to be guided by safe and lawful practise measures produced by another body, no other body plans to introduce them before then in a way that means the GMC can lawfully defer to that body before it begins regulating AAs and PAs under that system (and to be clear NHS Trusts have not and cannot do so for the reasons explained at §171 below);
(5) unless they are introduced, the GMC cannot operate the system in a manner that is compatible with: (a) its duties under the 1983 Act, the 2024 Order or the Human Rights Act 1998 (‘the 1998 Act’); (b) the rational exercise of its powers under the 1983 Act and the 2024 Order; which means the failure to introduce them is an abdication and/or frustration of the GMC’s statutory functions and irrational;
(6) as the date on which its regulatory powers are activated approaches, the GMC is obliged to take stock of the need for the safe and lawful practise measures on an informed basis, but it has not done so; and
(7) the GMC is under duties to ensure that patients’ informed consent to treatment is secured by doctors, AAs and PAs, to avoid misleading them as to the importance of matters such as informed consent, and to set standards which, if followed, will not result in them breaching the law, but it has adopted standards and policies, including in relation to consent, which risk misleading doctors, AAs and PAs with the effect that they may unknowingly commit the tort or offence of battery.
Strikingly, the General Dental Council (‘the GDC’) when faced with similar issues did not baulk at introducing measures in dental care settings to address issues regarding UK registered dental professionals. It is unclear why the GMC has been unable or unwilling to act decisively in the same way when faced with a similar regulatory imperative on a far greater scale and in clinical settings where the risks are often far greater.
Mindful that judicial review is a remedy of last resort, AU has persistently attempted to resolve its concerns with the GMC through correspondence. This has not been fruitful. Nonetheless, AU would like to attempt resolution of this dispute through a different form of alternative dispute resolution (‘ADR’), specifically independent mediation using an appropriately experienced mediator. Proposals to that end are made below at §§16-20. If no agreement to mediate can be reached, proceedings will need to be issued in the Administrative Court and taken forward, ideally on an expedited basis. AU will have proposals to make about sensible case management directions to that end which it hopes can be agreed.
The remainder of this letter has six parts:
(1) Part I (§§9-20) covers the remaining basic information required by the Protocol;
(2) Part II (§§21-133) summarises the factual background;
(3) Part III (§§134-158) sets out the statutory framework;
(4) Part IV (§§159-183) sets out the legal issues and grounds of AU’s proposed claim;
(5) Part V (§§185-187) lists our requests for information and documents made under §13 of the Protocol which you should address in your reply pursuant to your duty of candour; and
(6) Part VI (§188) concludes the letter.
Details of the matter being challenged
The GMC’s ongoing failure to introduce the safe and lawful practise measures listed at §2 above.
Details of the action that the GMC is expected to take to avoid the proposed claim
The GMC is asked to consider this letter with your legal advice and either:
(1) agree to introduce the safe and lawful practise measures following a lawful consultation; or
(2) as an interim step, agree to the ADR proposal made at §§16 to 20 below.
Our address and other contact details are above. Please use this for your reply and service of Court documents. At Bindmans, the case is being handled by John Halford, Partner, Grace Benton, Solicitor, and Kaya Saccheri, Paralegal. Counsel are Tom de la Mare KC and Naina Patel at Blackstone Chambers.
We note your contact details. If this matter is to be handled or co-worked by a colleague, please let us have their details.
Details of any interested parties
A subset of doctors are directly affected by the issues in the proposed claim in the R v Rent Officer and another ex parte Muldoon [1996] 1 WLR 1103 sense, as are AAs and PAs. It is not possible to identify and serve them so we are sending this letter to their representative bodies which are:
(1) the British Medical Association (‘the BMA’), BMA House, Tavistock Square, London WC1H 9JP;
(2) the Association of Anaesthesia Associates, Charlton House, 32 High Street, Cullompton, Devon, EX15 1AE; and
(3) the Faculty of Physician Associates within the Royal College of Physicians (“RCP”), 11 St Andrews Place, London NW1 4LE.
Please identify any other individuals or bodies you consider are interested parties in your response to this letter.
You can read the remainder of the Letter Before Action here and our statement on the case here.
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This page was updated on 3rd August 2024 – the original version of the page is available here for reference