PA union seeks judicial review over Leng recommendations

The trade union for physician associates (PAs) has announced it is seeking a judicial review after the Government accepted recommendations made in the Leng review.

United Medical Associate Professionals (UMAPS) – which was officially recognised as a trade union by the Government – said it sent pre-action letters to health secretary Wes Streeting and NHS England notifying them of an intended judicial review claim.

Professor Gillian Leng, who led the review into the safety and effectiveness of the roles, was also sent a copy as a ‘potential interested party’.

All recommendations made in the review have been accepted in full by the Government, including that PAs should be renamed ‘assistants’, should not see undifferentiated patients outside of clearly determined protocols and that they should have at least two years’ training in secondary care before being allowed to practise in primary care.

Following the review, NHS England wrote to ICBs and PCNs asking them to take some ‘immediate actions’, including adopting the updated terminology recommended by the review.

The BMA GP committee has now issued advice to GP practices saying that they should review their PA terms of employment to determine whether change needs to be made in light of the review.

The pre-action letter, seen by Pulse, directly challenges five of the Leng review’s eight recommendations for PAs including the name change, requirement for two years’ experience in secondary care, and recommendation that PAs should not see undifferentiated patients.

It accuses the Government of ‘unilaterally’ changing the terms and conditions of employment for PAs ‘without any proper consultation with them or their recognised trade union’.

In a statement, UMAPS alleged that the Government ‘did not properly consult medical associate professionals before implementing recommendations’ which ‘massively impact’ their scope of work and pre-existing contracts.

It wanted the Government to ‘reconsider the decision to implement’ the recommendations of the Leng review.

Should they refuse to do so, UMAPs requested that they provide ‘reasons for having originally accepted the Leng Review recommendations on the day of publication’ and ‘reasons for refusing to reconsider’ by this Friday (1 August).

In new advice, the BMA’s GP Committee told practices that they should review their PA terms of employment to determine ‘whether implementation of the requests by NHS England requires changes to be made’.

It said: ‘We recommend that as with all roles and services, due diligence is carried out, taking into account the clinical and cost effectiveness of overall needs, and factoring in the costs of GP supervisors and supervision time.

‘Should employers continue to employ or begin to employ PAs, we advise that our guidance and the RCGP guidance is referred to and provided to all staff working with PAs in their organisations/practices, noting that liability for the PAs work lies with their employers/supervising GPs.’

It also highlighted the fact the PCN DES contract specification currently still gives scope for PAs seeing undifferentiated patients ‘where (a PA’s) named GP supervisor is satisfied that adequate supervision, supporting governance and systems are in place’.

While this was yet to be updated to reflect the review, ‘NHS England is unlikely to seek to enforce a PCN’s obligations which are directly contradicted by the Leng review recommendations and its own request for immediate action’, in the BMA’s view.

UMAPS general secretary Stephen Nash said: ‘Despite admitting that there is a toxic debate around MAPs and a risk of bias in the existing research, the Leng Review found no hard evidence that physician associates are unsafe or ineffective.

‘Nevertheless, Wes Streeting has accepted the Review’s recommendations to completely overhaul our job roles, without so much as consulting UMAPs as the recognised trade union for PAs and AAs. That is both unfair and completely irrational.’

A DHSC spokesperson said: ‘The Government launched this review to make sure patients get the highest quality care, have clarity about who is treating them, and have confidence in the health system.

‘Gillian Leng is one of the UK’s most experienced healthcare leaders and has delivered a comprehensive report.

‘The health secretary has agreed to implement the recommendations of her report in full, prioritising safety and reassuring patients that, when they seek medical advice for a range of symptoms, they will be seen and diagnosed by a qualified doctor.’

Judicial reviews challenge the lawfulness of a decision taken by a public body rather than challenging the conclusion it reached.

If the judicial review finds in favour of the claimant, the public body may still make the same decision again, if it does so in a lawful way.

Last week, UMAPS sent a letter to members saying it did not accept the review’s findings and was seeking legal advice to dispute them.

Pulse has analysed what the Leng review means for general practice and attempted to answer the burning questions GPs have about PAs.

Grounds of challenge in the pre-action letter

Grounds of challenge to the NHSE Decision

The NHSE Decision to implement recommendations of the Leng Review is challenged, as set out in the Table in Annex 1 to this letter, on the following grounds:−
(1) Breach of the duty to consult, by failing to consult our client, or Associates, properly or at all;

(2) Failing properly to take into account the apparently tainted nature of any information apparently or actually influenced or affected by the ‘bias’ referred to in the Leng Review;

(3) Breach of the Tameside duty to seek relevant information necessary to the decision to be taken;

(4) Irrationality and/or procedural unfairness in NHSE accepting recommendations made on the basis set out in the Leng Review:

(a) when it was apparent from the Review itself that there was in fact no warrant for fundamental changes (comprising the recommendations challenged) on the evidence and Professor Leng’s approach to determining whether the status quo should be maintained (at least until the necessary relevant information was obtained) was fundamentally flawed by setting a hurdle (of ‘overwhelming evidence’) which was irrational and unfair in that, as Professor Leng well knew, could not be met;
(b) when there was no cost/benefit analysis (also subject to the Tameside duty, above);
(c) when the effect of the NHSE Decision was directly contrary to the Objectives in the NHS Mandate.

(5) Breach of the public sector equality duty;

(6) Irrationality in relying on recommendations in the Leng Review which, in reality, substantially redefine the core duties and permitted scope of practice of Associates, despite a proposal of “a set scope of practice” being expressly disavowed from the recommendations;

(7) Failing to have any or proper regard to basic tenets of employee relations, the duty of NHSE and/or NHS employers in England to consult on changes to terms and conditions and/or the undermining of trust and confidence and/or other potential but serious breaches of employment contracts, as relevant factors in taking the NHSE Decision; and

(8) Apparently making recommendations for a collateral purpose, as set out above and principally seeking to address grievances of Resident Doctors rather than safety of Associates.

Source: Shakespeare Martineau Solicitors on behalf of UMAPS