The BMA has expressed its disappointment after a legal challenge to the GMC’s failure to regulate PA (physician) and AA (anaesthesia assistants) was rejected by the High Court.
A judicial review brought by the doctor’s campaign group Anaesthetists United and supported by the association has been dismissed on all grounds following the handing down of a judgment on 4 September.
The case had sought to challenge the medical regulator’s approach to regulating PA/AAs asserting that it had acted irrationally by refusing to issue a scope of practice for these staff or ensure informed patient consent or adequate supervision in their use.
The case also argued that the GMC failed to comply with its duty of inquiry, by failing to gather and consider sufficient information to address the question whether it should introduce safe and lawful practice measures.
In bringing the legal challenge, Anaesthetists United were joined by Marion and Brendan Chesterton, whose daughter Emily died in 2022 after being misdiagnosed by a PA who she had believed to be a GP.
In her judgment, however, Ms Justice Christina Lambert rejected claims that the regulator had acted irrationally or that it had failed to take into account material evidence or mandatory consideration.
'Disappointing outcome'
Responding to the judgment, BMA council chair Tom Dolphin said that, while he was ‘disappointed’ at the outcome, the case had nonetheless highlighted the fact that medical opinion overwhelmingly supports nationally agreed scopes of practice for association staff in the interests of patient safety.
Dr Dolphin also paid tribute to Anaesthetists United and to Marion and Brendan Chesterton for their bravery and determination in bringing forward the legal challenge.
He said: ‘This is a disappointing outcome. The case was rightly brought by Anaesthetists United and the family of Emily Chesterton following the failure by the GMC to act on the overwhelming consensus of doctors that there should be a clear scope of practice that sets safe limits on what physician assistants can and cannot do. That consensus is still correct even though the court today decided that who sets scope is not a matter for a court of law.
‘We thank Emily’s parents Marion and Brendan for their bravery in bringing this case, and the many doctors who supported AU directly by providing funds to ensure it could be heard. We remain proud to have stood by AU, the wider medical profession, and the Chesterton family, and are sorry that today’s outcome didn’t deliver the outcome we all wanted.
‘It is important to make clear that the court has not vindicated the GMC’s refusal to set a scope or adopt scopes set by others. Instead, it has simply stated the GMC’s decision not to do so was not unlawful. The GMC should take no comfort in this outcome. The prevailing weight of medical opinion agrees that nationally agreed scopes of practice will protect patients, and that the GMC has a role to play to ensure that when these are set, they are enforced.’
He added: ‘Along with AU and the Chesterton family, the BMA will be considering next steps in relation to this regrettable ruling.’