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

Ms Patel KC, for the claimants on this ground, advanced an argument on two bases: do either (i) the statutory objectives of patient safety and public confidence (the primary submission), or (ii) the law on informed consent as set out in Montgomery v Lanarkshire Health Board [2015]AC 1430 (the secondary submission) require patients to be made aware that they are being treated by associates instead of doctors?

Ms Patel cited the various surveys and coroners’ investigations and PFD reports (as well as the evidence of Mrs Chesterton and Mr Pollitt) as evidence that knowledge of an associate’s role – and specifically the fact that they are not a doctor – is material to the statutory objectives of patient safety and public confidence. She submits that the evidence shows that patients and the wider public lack an understanding of the differences between associates and doctors, in circumstances where they expect to be seen by the latter. That is a problem which goes to public confidence.

These issues are also relevant to the validity of the patient’s consent to being treated. As Ms Patel submits, without valid consent, any treatment of the patient may amount to battery. In Montgomery, the Supreme Court held that doctors are under a duty to take reasonable care to ensure that patients are aware of any ‘material’ risks involved in recommended treatment. The judgment reflected a shift from the paternalistic relationship between medical professionals and patients to one which respects patient autonomy. Doctors must apply the test of materiality, as explained by Lord Reed and Lord Kerr in the judgment of the Court:

Ms Patel accepts that Montgomery concerns doctors and not associates. She accepts also that the case concerned material risks of the treatment proposed rather than the risks associated with the treatment provider. She submits however that the case is authority for the proposition that the fact that an associate is not medically qualified is a material factor to the patient’s consent to receiving treatment from the associate. The fact that associates are not medically qualified and far more lightly trained than doctors may have an important bearing on, say, the patient’s decision to seek a second opinion or choice of follow-up care.

Ms Patel argues that a rational exercise of the powers conferred under the 2024 Order required the defendant to ensure patients are made aware that they are being treated by associates in certain contexts, in order to satisfy the statutory objectives and comply with the law on informed consent. This is something which has been recognised by other bodies, yet the defendant has failed to do the same.

One way of ensuring this would be to require associates to introduce their title and explain their role in all circumstances, but Ms Patel accepts that something less than this would be lawful. She accepts that it is not always material to know that the person treating you is not a doctor. Treatment by an associate is not necessarily more risky than treatment by a doctor. It depends upon the nature of the treatment and the context. In the SFG, the claimants submit that the key is whether in a particular context the patient would reasonably expect the practitioner in question to be a doctor. This is context specific, considering factors such as the setting and task to be undertaken. The patient may not have a reasonable expectation that minor matters such as those routinely performed by nurses would be performed by a doctor. But when an associate undertakes a task that the patient would reasonably expect to be ordinarily performed by a doctor especially where the setting contributes to the impression then informed consent does require a clear statement that the associate is not medically qualified.

The defendant’s standards and guidance are deficient and have not, it is submitted, satisfied the threshold. The current standards and guidance either approve or direct associates to act in a way which is unlawful in certain contexts (being contrary to the law on informed consent for the reasons set out above). In particular, the guidance is said to fall within the three categories of unlawful policy set out at R(A) v Secretary of State for the Home Department [2021] UKSC 37 in that it (i) includes a positive statement of the law which is wrong and would induce an associate to breach their legal duty in some way; (ii) omits to explain the correct legal position in circumstances where the Defendant is under a legal duty to provide accurate advice about the law; and (iii) even if the defendant was under no such duty, the defendant has nevertheless failed to give a full account of the legal position because of that omission.

For the BMA, Ms Richards echoes the submissions of the claimants and adds two further points of her own.

First, she highlights the discrepancy between the defendant’s approach to the issue of informed consent as between on the one hand (i) doctors and associates; and on the other (ii) doctors and medical students. In both circumstances, there is said to be a “type” difference between doctors and the other group. Unlike associates, however (and as set out in its guidance for medical students in Achieving good medical practice: guidance for medical students), the defendant recognises that it is both necessary for a medical student to inform a patient that they are a medical student and not a doctor and that this knowledge is explicitly linked to the issue of informed consent. The discrepancy is particularly illogical where there is ample evidence that patients and the wider public do not know or understand how an associate differs from a doctor; whereas they would much more easily recognise that a medical student is not a fully-trained doctor.

Second, the interim GMP (drafted in anticipation of a delay in the 2024 Order coming into effect) itself noted the link between providing patients with information about an associate’s ‘role and responsibilities in the [medical care] team’, and informed consent. That is the reason why the BMA’s own scope of practice requires associates to make clear that they are not doctors to patients. In contrast, the existing provision in GMP does not in fact require associates to do anything of this sort. It provides that:

“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.”

As GMP itself makes clear however, the words ‘You must’ are used for ‘for a legal or ethical duty you’re expected to meet (or be able to justify why you didn’t)” whereas “You should” is used for “duties or principles that either: may not apply to you or the situation you’re currently in, or you may not be able to comply with because of factors outside your control’. In the upshot, taken at its highest GMP could be said to only require an associate to state their title – which patients will not correctly understand – but not to require associates to convey the critical fact that they are not a doctor.

Mr Dunlop submits that the standard set in GMP is that associates should explain their role. The guidance, in particular the guidance set out in the December 2024 document “PAs and AAs in Practice” explains how that standard is to be achieved. There will be some contexts in which explaining one’s role means setting it out in full and saying you are not a doctor; and there will be others where this is not necessary. In these circumstances, it is not therefore appropriate to be prescriptive of precisely what associates should tell a patient. He argues that nobody applying the defendant’s advice appropriately would end up in a situation where they would simply state ‘I am a PA/AA’ in circumstances which warranted a fuller explanation.

As to the claimants’ secondary submission on the ingredients of informed consent, Mr Dunlop observes that the claimants are asking the court to extend the legal principle in Montgomery to apply in an entirely different context where the risk to the patient arises not from the treatment, but rather the person treating them. There is no authority to support such a proposition. It amounts to a significant and novel development of the common law. He submits that it is not appropriate for the court to do this, particularly not in the abstract and not in a very sensitive area of law which could have serious criminal consequences for medical practitioners.

Turning to R(A), Mr Dunlop submits that none of the three categories of unlawful guidance set out at para. 147apply here. In relation to category (i), the claimants have not pointed out any specific example of guidance which the defendant had produced which was wrong, and which would induce an associate following it to act unlawfully in some way. The claimants’ argument is not that GMP or the guidance and advice are wrong, but rather that they do not go far enough. As to category (ii), neither Art. 3 of the 2024 Order nor the common law required the defendant to produce guidance or advice on informed consent, and in any event the advice which is offered is accurate. Finally, as to category (iii), the guidance issued by the defendant does not purport to be a full account of the legal position on informed consent. Instead, it says quite simply that medical professionals should give patients the information they want to make a decision.