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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British Medical Association, R (On the Application Of) v General Medical Council [2025] EWHC 960 (Admin) (17 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/960.html Cite as: [2025] EWHC 960 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The King (On the application of the British Medical Association) |
Claimant |
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- and – |
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General Medical Council |
Defendant |
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-and- |
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(1) The Faculty of Physician Associates (2) The Royal College of Physician Associates (3) The Association of Anaesthesia Associates (4) The Royal College of Anaesthetists (5) Anaesthetists United (AU) (6) NHS England |
Interested Parties |
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Ivan Hare KC and Peter Mant (instructed by GMC for the Defendant
Hearing dates: 12th and 13th February 2025; further submissions 4th March 2025
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Crown Copyright ©
Mrs Justice Lambert DBE:
Introduction
i) Ground one focuses upon the use of the term "medical professionals" in GMP to describe doctors, PAs and AAs. It is argued that the legislative framework creates a clear and firm distinction between "the medical profession" whose members are medically qualified doctors and anaesthesia associates or physician associates. These terms are statutory terms which bear distinct meanings drawn from their context. The use of the term "medical professionals" as an umbrella term is inconsistent with, and in conflict with, the statutory framework to which the GMC is subject and pursuant to which it exercises its functions.
ii) Ground two concerns the promulgation of a common set of professional standards and the use of the umbrella term "medical professionals" in GMP is contrary to the statutory objectives of regulation, which is public protection.
iii) Ground three is that the GMC acted irrationally in deciding to issue a common set of professional standards and in using the umbrella term "medical professionals".
The Legal Framework
"(1) There shall continue to be a body corporate known as the General Medical Council (in this Act referred to as "the General Council") having the functions assigned to them by this Act.
1(A) The over-arching objective of the General Council in exercising their functions is the protection of the public.
1(B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards of conduct for members of that profession."
"(1) There shall continue to be kept by the registrar of the General Council (in this Act referred to as "the Registrar") a register of medical practitioners registered under this Act containing the names of those registered and the qualifications they are entitled to have registered under this Act.
(2)…
(3) Medical practitioners shall be registered as fully registered medical practitioners or provisionally as provided in Parts II and III of this Act and in the appropriate list of the register of medical practitioners as provided in Part IV of this Act."
"The powers of the General Medical Council shall include a power to provide, in such a manner as the Council think fit, advice for members of the medical profession on –
a) standards of professional conduct;
b) standards of professional performance; or
c) medical ethics."
"any person who wilfully and falsely pretends to be or takes or uses the name or title of physician, doctor of medicine, licentiate in medicine and surgery, bachelor of medicine, surgeon, general practitioner or apothecary, or any name, title, addition or description implying that he is registered under any provision of this Act, or that he is recognised by law as a physician or surgeon or licentiate in medicine and surgery or a practitioner in medicine or an apothecary, shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale".
"If a person who does not hold a licence to practise (a) holds himself out as having such a licence; or (b) engages in conduct calculated to suggest that he has such a licence, he shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale."
"(1) The Regulator must determine standards applicable to associates.
(2) The standards must relate to –
a) education and training
b) knowledge and skills
c) experience and performance
d) conduct and ethics
e) proficiency in the English language and
f) such other matters as the Regulator may prescribe in rules made under paragraph 2(2)(a) of Schedule 4
(3) Before determining a standard, the Regulator must consult such persons as the Regulator considers appropriate.
(4) The Regulator
a) must keep the standards under review; and
b) may vary or revoke a standard."
(1) The Regulator, in addition to its objectives and duties set out in section 1(1A) and (1B)(a) of, and paragraph 9A(1)(b) of Schedule 1 to, the Medical Act 1983—
a) has the objective of promoting and maintaining—
i. public confidence in, and
ii. proper professional standards and conduct for members of, the anaesthesia associate and physician associate professions…
b) must have regard in exercising its functions under this Order, to
i. the interests of persons using or needing the services of associates in the United Kingdom
ii. any differing interests of different categories of anaesthesia associates and physician associates, and
iii ….
c) must discharge its functions under this Order in a way which is transparent, accountable, proportionate and consistent, and
d) …"
"The objectives of the GMC and its duty to co-operate will be split across the Order and the Medical Act 1983. For completeness and to assist the reader, these are summarised below:
Objectives
7.56 The over-arching objective of the General Council in exercising their functions is the protection of the public.
7.57 The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives:
- To protect, promote and maintain the health, safety and well-being of the public
- To promote and maintain public confidence in the medical profession and the anaesthesia associate and physician associate profession, and
- To promote and maintain proper professional standards and conduct for members of the medical profession and the anaesthesia associate and physician associate professions."
Background
The Decision to Regulate
The GMC's Approach to Regulation of PAs and AAs
i) the research and consultation process which led to the production of interim standards guidance for associates on 21 October 2021. The interim standards were never implemented (as, by the date of the AAPA Order in March 2024, the general review of GMP had already been concluded) but the research undertaken for that purpose fed into the final decision to publish a single standards document;
ii) the research, pre-consultation process and public consultation which led to the approval for publication by the GMC Council of the final draft version of GMP on 27 April 2023, its subsequent publication on 22 August and its coming into effect on 30 January 2024; and
iii) following the AAPA Order on 13 March 2024, the further consultation process in March 2024, the amendments which were approved by the GMC Council in November 2024 and the publication of the final version of GMP applying to both doctors and associates on 16 December 2024.
The Development of Interim Standards
Consultation and engagement leading to the publication of GMP in August 2023
"In our scoping and engagement activity, there is strong support for keeping the current style and level of detail in GMP. There was also support for the proposal that the core professional guidance should apply to each of the professional groups we regulate. We propose to continue to:
- Directly address people registered with us
- Have one set of core professional guidance for all medical professionals registered with us: in future this will include physician associates and anaesthesia associates
- Keep the guidance concise and express the guidance as high-level; principles and duties. More information on key topics will be given in the explanatory guidance and other supportive material.
We've adopted the term medical professionals to describe all the professional groups we regulate. This is the term which will be used in the legislation to bring PAs and AAs into regulation".
GMC Consultation 26 March 2024:
Patient Safety Concerns
Good Medical Practice
i) PAs and AAs should never be referred to as "medical practitioners" because that term is used specifically in legislation to mean doctors.
ii) On qualifying from initial training, PAs and AAs have a defined set of knowledge and skills and are expected to work under doctor supervision.
iii) As with all members of the medical team, the level and proximity of supervision that PAs and AAs require will vary depending on their context and experience.
iv) As regulated professionals, PAs and AAs will have a responsibility to clearly communicate who they are, and their role in the team, just as doctors must do now. In Good Medical Practice 2024, we say "You must always be honest about your experience, qualifications and current role".
v) The GMC has no remit over job titles. The terms "physician associate" and "anaesthesia associate" came into use in the UK some years ago and the DHSC intend to legislate on that basis to make these protected titles. When writing about or addressing PAs AAs and doctors the GMC uses the three distinct names of each profession, except on rare occasions when it makes sense to use a single umbrella term. For example for ease of reading we use the term "medical professionals" in the updated GMP because the professional standards will apply to all three groups once regulation begins.
i) Knowledge, skills and development
ii) Patients, partnership and communication
iii) Colleagues, culture and safety
iv) Trust and professionalism.
"Good medical practice sets out the principles, values and standards of professional behaviour expected of all doctors, physician associates and anaesthesia associates registered with us. We use the term "medical professionals" to describe all our registrants who we address directly (as "you") throughout this guidance….
Good Medical Practice and the more detailed guidance apply to all medical professionals to the extent that they're relevant to an individual's practice.
Good Medical Practice is an ethical framework which supports medical professionals to deliver safe care to a good standard, in the interests of patients. It doesn't set standards of knowledge, skills or professional capabilities these can be found in our educational standards".
"It's your responsibility to be familiar with Good medical practice and the professional standards it contains wherever you practice, whatever your field of medicine or practice setting…
You must use your professional judgement to apply the standards in Good Medical Practice to your day to day practice. This means working out which of the professional standards are relevant to the specific circumstances you are facing and using your knowledge, skills and experience to follow them in that context."
Grounds of Review
i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way;
ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; or
iii) where the authority, even though not under a duty to issue a policy decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that read as a whole, the policy presents a misleading picture of the true legal position.
Ground One
Ground One: Discussion
i) The term "medical professional" is not a term defined in the 1983 Act or any other legislation. That being so, the use of that term is not a statement of law at all. Moreover, because the term is not a title protected by the 1983 Act or other legislation, a physician associate or anaesthesia associate person who used the term "medical professional" would not commit any offence or otherwise act unlawfully. Accordingly, even if the use of the term in GMP induced a physician associate or anaesthesia associate to refer to themselves as a "medical professional" it would not induce them to breach any legal obligation of theirs.
ii) However GMP does not suggest that doctors, PAs or AAs should introduce themselves as "medical professionals." As GMP explains, where the term is used in the guidance, it is as a collective way of describing the three sets of professionals regulated by the GMC: doctors, PAs and AAs: "We use the term "medical professionals" to describe all our registrants who we address directly (as "you") throughout this guidance…"
iii) Use of the term "medical professionals" in GMP does not imply that associates are regulated doctors. Far from suggesting that PAs and AAs can, or should, misdescribe themselves as regulated physicians, GMP makes clear that all medical professionals have a clear ethical duty to be honest about their experience and role. Under Domain 4, which contains guidance on "Trust and Professionalism", the reader is informed: "you must always be honest about your experience, qualifications and current role. You should introduce yourself to patients and explain your role in their care". The guidance therefore imposes a duty on the person to explain their current role in the care of the patient when introducing themselves. In the case of an associate, this may include explaining that they are non-medically qualified members of a multidisciplinary team working under supervision.
Ground 2
i) The introduction to the first domain states that "Medical practice is a lifelong journey." It refers to "Good medical professionals" as competent, who keep their knowledge and skills up to date and provide a good standard of practice and care. The claimant submits that any reader of this section would not appreciate that the knowledge and skills of a doctor on the one hand and a PA or AA on the other are fundamentally different.
ii) Paragraph 6 of the first domain states: "You must provide a good standard of practice and care. If you assess, diagnose, or treat patients, you must work in partnership with them to assess their needs and priorities." This paragraph sets out what a professional must do in providing clinical care in a way which does not distinguish in any respect between what a doctor may do and what an associate may do.
iii) Paragraph 18, which falls within the second domain, "Patients partnership and communication", explains that "you must recognise a patient's right to choose whether to accept your advice and respect their right to seek a second opinion" and continues at para. 28: "you must give patients the information they want or need in a way they can understand" including information about their condition, likely progression and any uncertainties about diagnosis and prognosis, treatment or management options and potential benefits, risks of harm, uncertainties about and likelihood of success for each option. The claimant submits that framing the duty in this way gives the impression that the provision of full advice in this way is just as much the responsibility of associates as doctors, which is wrong.
iv) Paragraph 41 concerns safeguarding children and adults who are at risk of harm. It directs the reader to follow more detailed guidance on "protecting children and young people and 0-18 years: guidance for all doctors." This section, submits Ms Richards, suggests that all registrants are doctors or medical practitioners or at least blurs the distinction between doctors and associates.
Discussion: Ground 2:
Ground 3: Irrationality
i) Article 3 of the AAPA Order places a mandatory obligation upon the GMC to determine standards applicable to associates. GMP has, Ms Richards submits, "at its heart the professional standards applicable to doctors" and has been applied without qualification or amendment to associates. This is not a rational exercise of the defendant's functions.
ii) As a consequence of the approach taken by the GMC associates are being asked to re-interpret or re-formulate for themselves the standards "as they think ought to apply to them."
iii) Characterising associates as medical professionals and "members of the medical profession" runs the risk of associates referring to themselves in terms that are protected by primary legislation and committing a criminal offence under section 49 of the 1983 Act. NHS bodies themselves have been guilty of holding out associates as doctors.
Discussion: Ground 3
Delay
i) When GMP was published on 22 August 2023, it was 'subject to new legislation being introduced by the UK Government' (i.e. the AAPA Order), which was not certain at that point to become law and which the claimant was actively lobbying against. It would therefore have been premature to bring a challenge before the AAPA Order came into force on 13 March 2024.
ii) The process subject to challenge could be said to be ongoing as the defendant was still considering its 26 March 2024 consultation, and it was at least reasonable for the claimant to await publication of that consultation before commencing proceedings.
iii) The subject matter of the claim raises substantial issues of patient safety and that there have been deaths arising from associate practice and the confusion concerning associates is ongoing;
iv) The system of regulation under challenge does not come into force until December 2024 (that date not having passed at the time this argument was made in the Statement of Facts and Grounds).
v) The defendant would not be required to undertake substantial or unduly burdensome additional work if the claim were to succeed, and what work there would be is justified by the public interest.
Delay/Discussion
Conclusion