Mrs Justice Lambert has rejected our appeal. We have looked into the possibility of taking the case to the Court of Appeal, but we cannot manage it financially.

During the case we learned a great deal about how and why the GMC decided not to adopt a national Scope of Practice for Physicians Assistants and Anaesthesia Assistants (PAs and AAs). And, frankly, their decision-making and processes were shocking.

So our lawyers are now in the process of preparing a dossier of material gathered during the court case to send to the GMC’s own regulator – the Professional Standards Authority for Health and Social Care (PSA). 

They will ask the PSA to critically examine whether the GMC’s approach to regulating PAs is fit for purpose. 

Though we would be using the same evidence that we used in the JR, which we extracted out of the GMC with great difficulty, a PSA complaint would be a different task to pursuing our legal challenge. It would involve testing the GMC’s approach to PA regulation against the PSA’s own standards, rather than against public law. It will be held behind closed doors with no hearing, though we will ask the PSA to meet with us. 

As before, we expect the GMC will fight its own corner, but we think there is a very real prospect of the PSA sharing many of our concerns about the GMC’s shambolic decision-making and the risks it has exposed patients, doctors and associates to. Risks the GMC never bothered to assess. 

We know this issue is on the PSA’s radar because it produced a thoughtful note on risk assessment part way through the Leng review.

What are the PSA standards?

The PSA regulates the GMC, the General Dental Council (GDC) and 8 other regulators. Their Standards of Good Regulation prioritise protecting patients. In particular their standards require that a regulator

• Provides accurate information about its processes and decisions.
• Addresses concerns and considers relevant reports about healthcare regulatory issues
• Works with all relevant stakeholders to identify and manage risks
• Prioritises patient safety
• Manages the proper use of protected titles

That was not what came out in Court.

Instead, we heard how the decision not to set Scope for PAs seemed so obvious to everyone within the GMC that it required no formal decision-making process, no risk-management, and no review even in the light of reports from Medical Royal Colleges, coroners and others.

We need reassurance that this decision was not simply made by CEO Massey and handed down by him as a diktat to his staff.

The evidence that came out in court was that the GMC was very aware of the risks posed by PAs, and had the legal power to set Scope if it so wished; but that it simply decided not to. Our dossier will repurpose a huge amount of very useful evidence on how this happened.

We will need money to do this.

Our lawyers worked incredibly hard on our original case but in the end we did not crowdfund enough money to meet their fees. Asking them to do this additional work will need more cash. We are keeping our Crowdjustice open and hope we can raise enough to see this through. We do not yet know the exact costs involved.

Why did our appeal fail?

Mrs Justice Lambert  judgement can be downloaded here.  She refused permission to appeal because:

• She felt it was not irrational, as we had claimed, for the GMC to determine that scope of practice was best set by employers,
• She thought it reasonable that the GMC should expect individuals associates to understand the limits of their own competence,
• There are pros and cons to the setting of limits on associate practice
• Nobody else thought the GMC should set scope.

In essence, she looked at her own judgement and decided that it was right.

Of course it is unusual for a judge to reject their own conclusions.  The real battle takes place in the Court of Appeal. But we cannot afford that.

Funding the Court of Appeal.

Going to the Court of Appeal would need a lot more money. We looked at whether our lawyers could bring the case to the Court of Appeal on a pro-bono or no-win-no-fee basis. This seemed possible. The stumbling block was our liability for adverse costs if we were to lose.

We discussed this with the BMA. There have been some significant changes over the last two years, and much of what we set out to do has already been achieved. Public awareness and the views of many medical bodies has shifted. The benefits of winning the case are therefore less than they were when we started out. With that in mind, the BMA decided not to fund our adverse costs. And we have decided that it would not be right to try and crowdfund going to the Court of Appeal.

Can the GMC change even now?

Mrs Justice Lambert astutely summarised

The defendant [the GMC] was aware of the risks which the claimants argue it should have looked into. Thus the claimants’ submission, properly understood, is that the defendant ought to have gone further in assessing issues arising at the local/employer level. It may very well have been desirable for it to do so – but the question of the matter and intensity of the inquiry to be undertaken was a matter for the defendant to decide, subject only to the threshold of Wednesbury unreasonableness.

In other words, their decision not to set scope was entirely their own choice.

Yet the law requires the GMC to periodically review its standards. We urge them to think again about setting scope. And we urge the medical Royal Colleges, the AoMRC and patient groups to put pressure on them to do so.

And if they won’t change voluntarily, perhaps the PSA can put some pressure on them.

Please help us fund our legal team to cover the costs of preparing this submission.