AC-2024-LON-003354 - [2025] EWHC 2270 (Admin)

Fecha: 05-Sep-2025

Claimants’ Evidence of Risk to Patient Safety

Claimants’ Evidence of Risk to Patient Safety:

49.

Dr Richard Marks is one of the founder members and directors of Anaesthetists United Ltd, an advocacy organisation for anaesthetists. He qualified as a doctor in 1979 and as a consultant anaesthetist in 1991. He describes himself as “semi-retired” though still undertakes some private practice work. In his first witness statement he describes how he has dedicated himself to helping his own patients and to enabling other doctors and colleagues to work to the high standards that patients are entitled to expect from the NHS.

50.

Dr Marks sets out the background to the rollout of the associate roles, and the growing recognition of the risks posed by them. He explains how the concerns of the First Claimant and other bodies developed once the 2024 Order had been made and they became aware of how the defendant proposed to regulate associates; and their failed attempts to engage with the defendant as to the inadequacy of its proposed system (which then led the claimants to issue this claim). Dr Marks also points to various documents which, he says, support the view that the defendant would be responsible for imposing limits on associates’ clinical tasks.

51.

As further evidence of the systemic risks to patient safety arising from – and the concerns associated with – the use of associates, the claimants rely upon two main categories of material. The first category is the responses to a number of community surveys which were commissioned or issued by different bodies:

(a)

As noted above, in June 2020, the defendant issued a survey on professional standards to its COI Survey. The survey included questions concerning the safety and effectiveness of associates; public understanding of the role(s); and any specific issues which needed to be addressed when adapting GMP for associates. The free-text responses received indicated concerns over a lack of clarity on associates’ scope of practice leading to them practising outside of their competence and a lack of understanding about the role amongst patients and the wider public who often mistook them for doctors.

(b)

In February 2024, the BMA published the results of its November 2023 Medical Associate Professions survey (‘the BMA Survey’), which had collected over 18,000 responses from doctors in the UK. Around 80% of respondents were concerned that associates were occasionally or frequently working beyond their competence; 87% believed that the way associates worked ‘sometimes’ or ‘always’ posed a risk to patient safety. Some respondents shared anecdotal experiences of PAs treating undifferentiated patients in primary care and GPs or A&E, leading to incorrect diagnoses. Some respondents stated that the introduction of associates had increased their workload due to their new supervision responsibilities.

(c)

In November 2023, the Doctors’ Association UK (DAUK) held a nationwide survey of doctors to gain insight into how concerns regarding associates were manifesting on the ground. Some 680 (mainly anonymous) responses were received which primarily focussed upon PAs, although some respondents commented upon AAs. These were summarised in the first witness statement of Dr Kneale dated 21 March 2025. The overarching concern was that patient safety was being compromised by the expansion of the PA role; and these included (i) a lack of transparency about PAs (which they were themselves contributing to by failing to adequately communicate their role with patients); (ii) PAs acting outside their competence; and (iii) a lack of clarity about supervisor responsibilities.

(d)

Between April-May 2024, the Royal College of General Practitioners (RCGP) surveyed its members, receiving 5,000 responses which were published on its website in June 2024. The key findings were reproduced in Mr McAlonan’s (for the BMA) first witness statement. They echoed the concerns expressed in the other surveys above. In particular, it noted that 24% of respondents said they were aware of the RCGP’s ‘red lines’ (various principles relating to the use and deployment of PAs which the College had adopted) being breached. The survey findings led the RCGP to call for a halt to the recruitment of PAs into general practice until they could be better regulated and to issue a series of guidance documents for members including a scope of practice and guidance on supervision for PAs in general practice.

(e)

In February 2025, the BMA undertook another survey of its members on associates and safety. Of 14,000 respondents, 95% agreed/strongly agreed that there should be nationally determined scope of practice for associates, 87.3% disagreed/strongly disagreed that restricting the range of tasks which associates could do and designating them as assistants would negatively impact patient care and 82.6% disagreed/strongly disagreed that PAs should be able to provide initial care to undifferentiated patients in primary care and in the Accident and Emergency Department.

52.

It is the claimants’ case that these surveys taken together demonstrate that the wider medical community holds serious concerns about the systemic risks posed by associates to patient safety which relate to Grounds 1(a)-(c). In the absence of a national scope of practice associates are alleged to frequently (sometimes intentionally) practise beyond their competence, including being the first point of contact for patients, sometimes leading to adverse clinical consequences. Doctors complained of the lack of guidance concerning, and difficulties associated with, delegating to and supervising associates. Patients themselves had little to no understanding of the associate roles, and often wrongly assumed that they were being seen by doctors. Some PAs failed to correct that assumption whilst others introduced themselves in misleading ways.

53.

Dr Marks sets out the guidance on scope of practice which was issued by the RCA in 2016. The document provides guidance on supervision and the role and responsibilities of the supervising anaesthetist: for example, the supervising consultant anaesthetist must be present in the theatre suite and must be easily contactable and available to attend within two minutes; the supervising anaesthetist must directly supervise emergence from anaesthesia until the handover to recovery. The guidance does not set limits on the practice of AAs by reference to specific tasks save to remark that the nationally agreed curriculum leads to limits on scope of practice on qualification and that AAs are not qualified to induce regional anaesthesia, obstetric or paediatric anaesthesia or provide initial airway management of an acutely ill patient.

54.

Dr Marks comments that, to the extent that he has been able to research the issue, the 2016 guidance on scope of practice (such as it is) is not uniformly followed by Trusts. In some instances it is ignored, in others it is “worked around.” Trust practice is hugely variable with local protocols, policies and practices differing from Trust to Trust. The Royal Colleges have not so far delivered scopes of practice. Neither the Royal College of Physicians nor the Royal College of Surgeons has promulgated scopes of practice yet and are, according to Dr Marks, unlikely to do so soon. He remarks that the valuable work undertaken by the Fourth Interested Party is without teeth and unenforceable (absent its being formally adopted by the defendant).