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

Fecha: 05-Sep-2025

Ground 2: Tameside duty of inquiry

Ground 2: Tameside duty of inquiry

164.

Mr de la Mare submits that the enactment of the 2024 Order gave rise to a question which the defendant had to answer concerning the use of its discretionary regulatory powers (since the 2024 Order did not prescribe the approach it had to take). In his skeleton argument he poses the question thus: “What regulatory approach was the Defendant going to adopt to address the various risks posed by Associates in order to safeguard public safety (and would this include the safe and lawful practice measures)?”. In the course of his oral submissions, Mr de la Mare ventured that the words within the brackets could be deleted (in response to the defendant’s written submissions), but that did not alter the fundamental submission which was this. The core question was one of risks to patient safety, and how those ought to have been managed. It was therefore incumbent upon the defendant to make appropriate inquiries into those matters. However, as a result of its irrational starting point it had sidelined this issue and focused solely upon the question of regulatory approach divorced from risk. It follows that the defendant’s approach was Tameside deficient for having failed to inquire into the topic of what was in fact happening on the ground.

165.

In their written submissions, the claimants list specific examples of the defendant’s unreasonable approach to its inquiries:

(a)

Failing to make adequate focused inquiries into the serious problems and harm to which the existing system had given rise and, on the contrary, assuming that the longstanding nature of the problems supported essentially continuing the status quo. Rather than explore the differences between associates and doctors, and investigating the particular patient risks posed thereby, the defendant started from the premise that they could be regulated just like doctors, such that nothing further needed to be done.

(b)

Failing to investigate the risks posed by the absence of any or any consistent employer approach to associates’ scope of practice (e.g. how is safe delegation possible when little is known about the skills of a particular associate and there is no training path against which to benchmark them?). Instead of considering the risks posed by the absence of such a scope of practice, the defendant decided that fixing limits was not for it and so did not consider the systemic risks posed by its absence or whether there was anything it could do to mitigate or control such risks.

(c)

Failing to gather adequate evidence about the risks posed by the different approaches being taken by NHS Trusts and other employers in order: (i) to understand whether, how and why they were creating a problem of associates acting beyond competence (as the PFD Reports indicated); and (ii) to inform any conclusion as to whether such employers could be trusted, absent further regulation from the defendant, to empower delegating and supervising doctors to set safe limits on associate practice. Indeed, the defendant did not simply fail to make inquiries but seemingly ignored evidence that could easily have been obtained about employers pushing the boundaries of safe practice, such as was obtained by the claimants.

(d)

Even after receipt of the PFDs (the two PFD reports and one record of inquest which existed at the time and raised serious concerns), failing to gather and consider further information on serious harm, including deaths, caused by the lack of safeguards. This failure to investigate is said to be particularly striking in the context of informed consent. For instance, the defendant did not research into whether or not patients were confused or had any expectation in certain clinical contexts that they were being treated by a doctor.

(e)

Viewing its COI survey results as supportive of its approach, when the defendant should have raised a red flag as to the need to consider taking a different approach, in particular by considering introducing the safe and lawful practise measures; and subsequently claiming to have addressed relevant concerns when in reality they were ignored or dismissed.

(f)

Dismissing concerns raised in workshops, other meetings and responses to consultations, rather than further investigating them, where they did not suit the defendant’s settled approach, and/or claiming to have addressed the problems raised when in fact they had not

166.

Mr Dunlop submits that the core of the claimants’ complaint on this ground is that the defendant’s inquiry has not been of a sufficient intensity. Yet as R (Khatun) v Newham LBC [2004] EWCA Civ 55, [35] (Laws LJ)shows, the manner and intensity of inquiry into a relevant factor to be undertaken are matters for the decision-maker and not this court to decide, subject only to Wednesbury reasonableness. Moreover, the question framed by the claimants is one of their own creation arising in these proceedings – there is nothing in the terms of the 2024 Order which requires the defendant to answer it, and it is in any event based on the faulty assumption that the public would be safer if the defendant implemented the safe and lawful practise measures. Even accounting for Mr de la Mare’s deletion of the wording in the brackets, their formulation of the question is based solely on the aspect of risk but does not account for the other side of the coin of public protection, which is that in the future associates may be required to provide further healthcare assistance in new and developing ways (as articulated in the PSA’s submissions to the Leng Review).

167.

The correct question which the defendant needed to answer under the 2024 Order was, quite simply, ‘What regulatory approach should be adopted to best protect the public?’. In determining the standards which should apply to associates, the defendant took various steps as set out above by Professor Melville in his evidence. It has never been suggested that the various consultations were in any way deficient, nor have they been challenged on that basis. It follows that these extensive inquiries satisfy the requirements of the defendant’s Tameside duty.

168.

The list of failings spelled out by the claimants above represents a misunderstanding of what Tameside requires. It is not required to conduct the sort of end-to-end review which Professor Leng is undertaking; there was no obligation upon the defendant to commission further evidence in light of the steps which it had already taken above. In any event, the defendant was well aware of the differences between doctors and associates, since these were inherently interlinked with matters which the defendant regulated such as education, training and different types of registration. Moreover, it had explored a wide range of concerns through its initial research and subsequent engagement, and it did substantively respond to the two PFD reports which had been addressed to it. Nor was it for the defendant to undertake detailed investigations into alleged failings by employers since those were for NHS England, the CQC and other regulators to resolve. To the extent that concerns were raised which were appropriate for the defendant to consider and deal with, that had been done; and it had also noted those concerns which were more appropriately dealt with by others. There was therefore no merit in Ground 2.