The GMC’s legal argument for not setting a scope of practice for physician associates

Pulse’s Eliza Parr breaks down the GMC’s defence arguments in a high-profile legal case over its refusal to set an official scope of practice for physician associates.

The case for ‘clear’ guidance on what PAs can and cannot do

The High Court case against the GMC began on Wednesday morning this week, at the Royal Courts of Justice in London. Anaesthetists United (AU) is the group bringing the judicial review, along with the parents of Emily Chesterton, a 30-year-old woman who died after seeing a PA in general practice whom she believed was a GP. The case, which was adjourned yesterday afternoon and will begin again next month, has also received financial support from the BMA.

Their claim is aiming to achieve ‘clear and enforceable guidance’ setting out what PAs and anaesthesia associates (AAs) ‘can and cannot do’, and argues that the GMC has a statutory duty to set those standards. According to the claimants, it is about the ‘fundamental failure’ of the GMC to regulate PAs and AAs ‘in a manner that protects the public’.

In essence, the GMC’s argument against this is that the claim is ‘inviting the court to usurp the task Parliament gave to the GMC’ when legislating for PAs to come under its regulation.

‘The court does not have the expertise or constitutional role to decide what standards should be set by the GMC,’ the regulator’s lawyers Rory Dunlop KC and Peter Mant KC argued.

Should the GMC set a defined scope of practice?

In their ‘skeleton’ legal argument, shared with Pulse, the lawyers said that the claim is based ‘on a complex policy argument this court cannot resolve’.

They laid out a number of reasons for this:

• The GMC cannot be expected to ‘pre-empt’ the outcome of the upcoming Government-commissioned PA safety review, as scope of practice is one of the issues Professor Gillian Leng is considering;
• ‘The fact that Prof Leng is currently considering these matters underlines the inherently political and policy-based nature of the issues raised in this claim’;
• Creating ‘hard and fast rules’ for all PAs may restrict them from undertaking work they have the ‘experience and knowledge to perform’; This could in turn have a ‘detrimental impact on patient safety’ – patients may have to wait longer for treatment as PAs are ‘so limited in the assistance they can provide’.

The GMC then argued that even if a defined scope of practice would benefit the public, it was ‘reasonable’ for the GMC not to take steps to define it.

Lawyers argued that the reasons for this are as follows:

• The wording of the ‘2024 Order’ which legislates for GMC regulation of PAs and AAs ‘does not require the GMC to impose limits’ on the work they do, and ‘does not even give the GMC an express power to set such limits’;
• Parliament or the Government ‘would have imposed’ such an express duty on the GMC, if they believed this was the only way of protecting the public;
• The Government expected the GMC to take a ‘non-prescriptive approach’ to regulating the competence of PAs;
• The GMC ‘does not have the expertise to define detailed limits’ and NHS employers are ‘in a better position’ to do so;
  • Both Anaesthetists United and the BMA have ‘made statements that align with the GMC’s argument that the GMC is not best placed to define limits’;
• It was ‘reasonable’ for the GMC to regulate PAs using a ‘similar model’ to that of doctors – i.e. to regulate using standards rather than a profession-wide, detailed scope of practice;
• Finally, the GMC received ‘consistent advice’ from all other health professional regulators not to set detailed limits on what associate professionals can do;
  • The Nursing and Midwifery Council (NMC) and the Health and Care Professions Council (HCPC) both do not define scope of practice for their registrants;
  • The only regulator that has – the General Dental Council (GDC) – ‘expressly advised the GMC not to take that course’ as they argued that it ‘inhibits growth of the profession and the role’.

Scopes of practice published by others

While the GMC’s argument at many points highlighted the potential disadvantages of setting a defined scope of practice for PAs, it did recognise guidance already published by other organisations.

The regulator repeated its position that it can assess whether a particular PA has worked beyond their competence by ‘having regard to’ guidance produced by royal colleges such as the RCGP – ‘where relevant and applicable’.

But its lawyers also argued that just because guidance such as this ‘would not bind the GMC’ or the MPTS during fitness to practise proceedings, it ‘does not mean that it “lacks teeth”‘.

‘It is something which the GMC and MPT would take into account and might rely on,’ they told the court.

The impact of Emily Chesterton’s death

Emily died at the end of 2022 after suffering a pulmonary embolism. She had been seen by a PA at a GP practice twice, after reporting calf pain and breathlessness. The PA did not examine her swollen leg and suggested that her breathlessness was due to anxiety and long Covid – she was prescribed propranolol for the anxiety.

The GMC recognised that there have been ‘tragic incidents’ where patients have been treated by PAs – pointing to Emily’s case as well as three prevention of future death reports. But the lawyers argued that these instances need to be ‘put in a national context’ and the role and power of the GMC ‘needs to be properly understood’.

According to the GMC, these instances are ‘not evidence that PAs or AAs pose a qualitatively different level of risk to patients, compared to doctors’.

‘Ultimately, there will always be a risk to patients from PAs, AAs and doctors, simply because of the nature of the work that they do and the human capacity for error. The GMC cannot eliminate that risk,’ the regulator’s lawyers told the court.

They also argued that the GMC is a regulator of ‘individual registrants’ and not of employers or NHS bodies.

On Emily’s case in particular, they said: ‘If, for example, the GP’s practice where Emily was seen by a PA had a protocol which did not provide for proper supervision of PAs, the body to take action against that practice would be the Care Quality Commission, not the GMC.’

Their argument also stated that the Government, rather than the GMC, would be responsible for implementing any changes to GP practice governance, if the Leng review advised this.

‘If, at the conclusion of the Leng review, Government decides that PAs should not see patients at all in GP’s practices, the DHSC can make that happen by amending the relevant regulations which prescribe the terms and conditions of GPs’ Contracts.’

What next?

At the start of proceedings on Wednesday, High Court judge Mrs Justice Lambert questioned whether the parties would be able to cover all of the material in the two days scheduled for the hearing. She said that in her view this case ‘is not just about associates’ but about the ‘regulation of the medical profession’ too.

Two days was indeed insufficient, meaning the hearing will begin again on Monday 9 June.

The full legal arguments of the claimants (Anaesthetists United and Marion and Brendan Chesterton) can be found here.