High Court sides with GMC on physician associate regulation case

The BMA has lost its High Court case against the GMC for ‘blurring the lines’ between physician associates (PAs) and doctors. 

In a ruling published today, a High Court judge dismissed all three of the BMA’s claims, which concerned the GMC’s use of the term ‘medical professionals’ in its standards document Good Medical Practice. 

The BMA also challenged the GMC’s decision to make GMP applicable to both doctors and PAs, and its lawyers argued that this ‘conflates the professional roles’.

Mrs Justice Lambert noted that ‘underlying’ the claim was the BMA’s concern that the role of PAs and anaesthesia associates (AAs) in the NHS is ‘vague’, leaving patients ‘confused about their function and status’. 

‘It is the claimant’s case that patient safety requires that the distinction between medically qualified doctors and non-medically qualified associates is made clear by the GMC,’ the ruling added. 

During the hearing, BMA lawyers pointed to coroner findings which raised concerns about the safety PAs, including a report on the death of Pamela Marking where the coroner drew attention to patient confusion around PA roles. 

The doctors’ union therefore sought to establish that the application of GMP to PAs and the use of the term ‘medical professionals’ by the GMC are both ‘unlawful’.

Following the judge’s ‘regrettable’ ruling in favour of the GMC today, the BMA said it is now ‘considering next steps’.

On the use of the term ‘medical professionals’ in GMC standards, the judge found that ‘on a fair overall reading of the policy it does not give a misleading account of the law’. 

‘It uses an umbrella term in places for members of the three different professions, who are all fairly described as medical professionals, while stressing that a member of the PA and AA professions should not misdescribe themselves as a medically qualified person when they are not,’ she added. 

Mrs Justice Lambert also found that the GMC ‘acted to further patient safety’ by including both doctors and associate roles within the GMP document, citing the ‘lengthy’ consultation process ahead of this decision.

She said the outcome of this consultation clearly pointed in ‘one direction’ – that PAs ‘should be held to the same high professional standards as doctors’.

On the ‘rationality’ argument, the judge ruled that there is ‘nothing irrational or inherently confusing’ about PAs and doctors working to the same standards, or the use of the term ‘medical professionals’.

She added: ‘Associates are members of a profession, trained to the medical model, undertaking work which might otherwise be performed by doctors and working as members of a multi-disciplinary team in a healthcare context. 

‘Viewed in this way, the defendant was entitled to conclude that the term “medical professional” was apt.’

In response, BMA council chair Professor Phil Banfield said the High Court ruling was ‘disappointing’, emphasising that PAs ‘do not study medicine and are trained to a very different standard to doctors’. 

‘Having ruled on the legal technicalities the Court has ignored common sense, and the effect will be to perpetuate the patient safety issues caused by this confusion,’ he added. 

Professor Banfield also pointed to the 600 reports, recently published by the BMA, from GPs and other doctors of ‘serious concerns’ about PAs working in the NHS.

These reports show the ‘potential for patient harm in equating the two roles’, he argued.

Professor Banfield continued: ‘During the hearing the GMC was at pains to stress that it had no enforceable statutory duty to protect patient safety: a terrible statement from the medical regulator, though in keeping with its determination to ignore the blaring alarm bells sounded by doctors, coroners and patients.

‘As doctors, however, we do have a duty to uphold patient safety and to speak out when it is compromised. The BMA is considering its next steps in relation to this regrettable ruling.’

But the GMC has since criticised the BMA’s comments, emphasising that the judgement is ‘quite explicit’ that the regulator ‘acted at all stages to further patient safety’.

‘Patient safety is at the core of everything we do and it is wrong, disappointing and misleading of the BMA to take technical legal arguments out of context,’ a spokesperson said.

The GMC welcomed the High Court’s judgment dismissing the BMA’s claim for judicial review ‘in its entirety’.

Chief executive Charlie Massey said: ‘We are pleased the court has recognised that our decision to produce our guidance in the form of a single set of core standards for all three professions we regulate was a logical and lawful decision to reach, and one which followed an exhaustive and detailed process of consultation, research and inquiry which engaged all major stakeholders, including the BMA.’

He added: ‘We have made it very clear that we recognise and regulate doctors, PAs and AAs as three distinct professions.

‘We have also been consistent in saying that, as their regulator, we expect PAs and AAs to always work under supervision and to practise within their competence. They have a responsibility to clearly communicate who they are, and their role in the team.’

The regulator is also facing a High Court case from a group of doctors over its refusal to set an official scope of practice for physician associates, which will be heard in mid-May.

During the BMA’s case, the judge noted that there is currently ‘no nationally agreed scope of practice for either PAs or AAs’.

Pulse recently revealed that the GMC has so far spent more than £55,000 defending these legal claims over its regulation of PAs.