The skeleton arguments presented by our legal team are posted here. We have also uploaded the first and second witness statements of Professor Melville which were referred to today.
This morning in court Tom de la Mare KC presented the key arguments in our case, which centres on the risks of PAs and the regulatory response to it.
Justice Lambert recognised that the case gets “right to the heart of the matter”.
The decision not to set Scope of Practice for Associates
In Professor Melville’s second statement he writes
It is important to emphasise that this was not a process which involved a single decision maker, making a decision on a specific date, as to whether the GMC would, or would not, define scope of practice for PAs and AAs. At §58 of my first witness statement, I made clear that ‘the development of standards and guidance for PAs and AAs was an iterative process, and that it is not possible to pinpoint a single date on which the GMC decided not to set scope.
The starting point for everyone at the GMC was our existing model for regulating doctors and our understanding that the Department of Health expected us to adopt a broadly similar approach for associates. Decision-makers at every level (from members of the GMC Council to members of the programme team) were aware that concerns had been raised about scope of practice and they were unanimous in their view that it would not be appropriate for the GMC to address these concerns by setting limits on the type of work that associates could undertake.
In other words, the decision to not set scope was made without an identifiable decision, decision-maker nor review.
The GMC subsequently doubled-down on this undocumented decision by saying there was no compelling evidence requiring them to change their opinion. Mr de la Mare described this as “simply not rational”.
The GMC’s own survey
But perhaps the most shocking evidence presented this morning was the results of the GMC’s own (internal) Community of Interest survey, carried out in 2020. It revealed to them that
- There were many concerns over scope of practice
- The role itself was poorly understood
- There were big problems over delegation
Despite that, the GMC stuck with its initial decision. Many other surveys have had similar findings, including those from the BMA, RCEM and DAUK. The BMA survey of 18000 doctors included the “truly staggering” finding that 32% of respondents thought that MAPs were “always” a risk to patient safety.
The GMCs refusal to change tack in the light of this remains very concerning.
How associates differ from doctors
There are many differences between associates and doctors – summarised in Annex 4 of our skeleton. The GMC have repeated many times that they intend to regulate doctors and associates in the same way – without regard to their fundamental difference. And yet PAs in practice present a much greater risk to patient care, especially if they are making diagnoses.
Unlike nurses and nursing associates, they are in practice with limited supervision in what amounts to, or is close to, substitution. There are risks of seriously harming or even killing patients. Dental associates pose no such risk.
Evidence shows that associates do not appreciate the limits of their own competence and they regularly work beyond it. It is not just that there have been reported incidents – there is a systematic problem. There is nothing to suggest there is an analogous systematic risk for doctors.
Mr de la Mare drew attention to the brittle state of finances of many NHS Trusts, which lead to the temptation by employers to use associates, rather than doctors, as a cheaper alternative.
The coroners comments
Emily MacKenzie, our barrister, took the court through the results of four coroners inquests. The judge conveyed her sympathy and condolences to Marian and Brendan Chesterton, who were sitting in court.
The coroners were concerned that there was no national framework or guidance under which PAs were required to work. Yet it was apparent in the case of Benedict Peters, for example, that PAs were working unsupervised.
The CQC had responded by saying that this was “outside their remit”.
Mr de la Mare pointed out that there were a surprisingly high number of coroners reports involving PAs, when one considers the relatively low numbers of PAs working in the NHS.
Recent guidance on supervision
The recent GMC guidance on supervision was then presented. Both our barrister and the judge seemed surprised that this document had appeared very recently, with no evidence of any background or consultations.
Additional date
The case is more complex, and needs more time allocated to it, than we have available. There will be a second day hearing tomorrow, but a third day will need to be arranged in the future. There was no agreement on dates; the teams of lawyers and the judge will resolve this tomorrow.
An additional day in court will increase our costs. We hope that more donations will be forthcoming, and ask you all to think about donating and sharing this with friends and colleagues. Thank you all so much for your help and support on this journey.