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

I start by setting out what I understand to be the residual issue between the parties on the claimants’ first (and primary) argument, which focusses upon standards of professional conduct (rather than informed consent).

Both parties are in agreement that patient safety and public confidence in the profession do not require an associate to inform a patient that he or she is not medically qualified in all circumstances. The claimants’ case is that associates must inform patients that they are not medically qualified if undertaking a task which a patient might reasonably expect a doctor to perform. To this extent there is, or can be, no complaint by the claimants that the existing standard (set out in GMP) “You must always be honest about your experience, qualifications, and current role. You should introduce yourselves to patients and explain your role in their care” is not apt. The complaint is that the defendant has not gone far enough and it should set out in (either in GMP or in guidance) that an associate must inform the patient that he or she is not medically qualified if, broadly, they are performing a task or function that the patient might expect a doctor to perform.

Mr Dunlop draws my attention to the advice on Introductions in “PAs and AAs in practice” (February 2025). The document provides advice on the requirement that associates must introduce themselves to patients and explain their role in their care. It provides examples of how associates can or should introduce themselves. It advises (a) using and explaining their title in full before using any abbreviations (b) taking time to explain their role during clinical interactions (c) remembering that role titles may not always be immediately clear to others and could sometimes be misunderstood if not clearly explained and (d) offering patients and staff the opportunity to ask for more information about their role and taking sufficient time to explain.

I asked Mr Dunlop why the section did not spell out that an introduction might require the associate to state clearly that they were not medically qualified in certain circumstances. His response was that the February 2025 advice “amounts to the same thing” and that an associate following this advice will “in many contexts” be required to say that they are not doctors. Although he made no concession on the point, I did not understand Mr Dunlop to be disagreeing that those contexts would include the situation in which a patient might reasonably expect a doctor to be the one performing the task or function.

As I understand the position, therefore, the defendant’s case is that the current advice, if followed by the associate, will require him or her to say that they are not medically qualified if they are engaged in a task or function that a patient might reasonably expect a doctor to perform. The claimants require this to be spelled out. This is the difference between the parties.

The question for the court is whether the defendant’s guidance is irrational. My view is that the current state of affairs is not. The advice set out in GMP and associated guidance properly understood is to the same effect as that contended for by the claimants. I accept that the February 2025 advice could be clearer but, as Mr Dunlop has submitted, there will always be alternative ways of expressing the advice and it not the role of the court to get drawn into a detailed review of the drafting of the guidance and/or to make suggestions on how it might be improved. As the Supreme Court has made clear in R(A) a challenge to guidance will only succeed if the guidance falls into one of the three categories set out in paragraph 46. The defendant’s guidance does not fall into any one of those categories.

I move on then to Ms Patel’s further argument under ground 1(b) by which, by her proposed extension of the principles in Montgomery, she submits that an associate who fails to inform a patient that he or she is not an associate will have failed to inform the patient of a material risk or factor and have failed to obtain informed consent.

I can deal with this point shortly. I have no hesitation in declining the invitation to extend the scope of the law on informed consent as suggested by Ms Patel. The contention that the qualifications of the person offering the advice or performing the task is a “material risk” is a novel and very significant extension of the principle in Montgomery. If Ms Patel’s submission were accepted, then as she acknowledges, a failure by an associate to tell the patient that he or she is not medically qualified may result in the associate being subject to criminal sanction.

I have a number of difficulties with Ms Patel’s proposition. First, there is no authority for the proposition advanced and I have no doubt that if any such authority existed either in this jurisdiction or elsewhere it would have been unearthed. Second, any such argument should be considered in the context of an individual set of facts, either agreed or as found at trial, rather than in the abstract. Third, the proposition for which Ms Patel contends has far more wide ranging implications for healthcare professionals generally than she appears to acknowledge. If, as she submits, the qualifications of an associate are a material risk factor to any treatment undertaken then it may be argued that any medically qualified professional who has failed to disclose that they have never undertaken the proposed procedure before, or not for a long time, or that there are others who are more experienced has failed to disclose a material fact or risk and have failed to obtain informed consent and may therefore be guilty of a criminal act. Further, Ms Patel appears to suggest that the principle in Montgomery extends beyond the duty of a doctor to advise a patient upon the material risks of a treatment or procedure but to advice on other topics, for example diagnosis (as in the case of Ms Chesterton) and that (presumably) such advice is vitiated by the associate’s failure to inform the patient of their qualifications. Such an extension is novel to say the least. It is axiomatic that the common law develops incrementally and by analogy and in the context of a particular set of facts. It is not developed in giant leaps by reference to theoretical situations.

For all of these reasons I am against Ms Patel in her submissions on ground 1(b).