Overview of consultation

Between March and May 2024, the General Medical Council (GMC) opened a consultation on the proposed rules, standards and guidance that set out how anaesthesia associates and physician associates will be regulated. The consultation also covered draft principles that will inform the content of fitness to practise decision-making guidance that will apply to doctors as well as to PAs and AAs from December 2024.

Consultation questions

Please note, not all questions were answered by MPS as part of our submission. The full list of questions can be found on the GMC Consultation Hub.

Gaining entry to and removal from the AA and PA register

9) To what extent do you agree or disagree with our proposed approach to removal, as described within our rules?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

Where removal is not with the express consent of the associate i.e. for cases of alleged non-compliance, the GMC should exercise its powers to remove the associate from the register with significant caution and safeguards that should be included within the rules and which require consideration of the following: whether the request for information/assessment, including the timeframe given for compliance was reasonable; whether there are any circumstances that could have prevented the associate from complying with the request including but not limited to, their health and / or cultural reasons; whether the associate has access to advice from an MDO and / or a qualified lawyer; and the extent to which the associate’s non-compliance can be regarded as a deliberate act or omission by the associate.

10) To what extent do you agree or disagree with our proposed approach to handling requests for removal (including where there may be outstanding fitness to practise concerns), as described within our rules?

• Agree
• Disagree
• Neither agree nor disagree or don’t know
  

We presume that Guidance will be issued to clarify when it would be appropriate for the Registrar to refer an associate’s application for removal for a decision to the case examiner, as opposed to the Associates Tribunal.  In either case, there should be clarity around how such an application should be made (content and method), how the referral should be made and how such applications should be determined in order to minimise any delays to the Tribunal hearing.

11) To what extent do you agree or disagree with our proposals for when decisions to remove an entry from the register will take effect? 

• Agree
• Disagree
• Neither agree nor disagree or don’t know

Fitness to practise proceedings and decision-making principles

12) To what extent do you agree or disagree with our proposed approach to initial assessment, as described within our rules? 

• Agree
• Disagree
• Neither agree nor disagree or don’t know

The ‘test for onward referral’ set out in Rule 3 is unclear as it is unclear what is meant by the term ‘reasonable likelihood’ in the context of Rule 3(1)(b). 

Before the Regulator makes a disclosure under Rule 4(6), we propose that the Regulator must first inform the associate of its intention to do so, the reason for that decision and a provide a reasonable window of opportunity for the associate to raise an objection.

The words, within 5 business days, should be added to the end of Rule 5(4), or alternatively ‘as soon as reasonably practicable’.

13) To what extent do you agree or disagree with our proposed approach to interim measures and interim measure reviews, as described within our rules?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

The following changes ought to be made to the Rules:

Unless the Regulator has reason to believe that it would not be in the Associate’s best interests e.g. it may have an adverse effect on the Associate’s health or wellbeing, the Associate must be notified of any decision taken by the Regulator, case examiner or a MPTS tribunal as soon as reasonably practicable, with the reasons for that decision to be provided within 5 business days beginning with the day on which the decision is made. 

A Regulator, case examiner or any MPTS tribunal should have a discretion to consider any representations made by an Associate where it would be in the interests of justice to do so, and even where a given deadline for those representations to be provided has expired.

The Regulator should, as part of exercising the discretion under Rules 13(3) or 16(9), also inform the Associate of what has been (or is to be) disclosed, to whom and when.

14) To what extent do you agree or disagree with our proposed approach to accepted outcomes, as described within our rules?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

We ask for the following to be considered and the relevant Rules and / or Guidance to be amended accordingly:

Rule 18(6) and 21(3) – the Associate should at the same time be informed of what has been disclosed and to whom.

Rule 20(3) – Where it appears that the Associate has not provided a response, the GMC should be slow to impose the Final Measure without a referral to an Associates Tribunal and having regard to the following: whether there are any circumstances that could have prevented the associate from providing the response including but not limited to, their health and / or cultural reasons; whether the associate has access to advice from an MDO and / or a qualified lawyer; and the extent to which the associate’s lack of response can be regarded as a deliberate decision by the associate.

Rule 20(4)(b) We would expect that an Interim Measure would need to be revoked as a matter of course at the same time as the Final Measure takes effect.  The use of the word ‘If’ implies that there may be scenrios in which it may not be appropriate to revoke an Interim Measure and we would welcome clarification on this.

Rule 22 the second reference to ‘the case examiner’ should be replaced with ‘the Regulator’.

Rule 24 Guidance would be appreciated to clarify in what circumstances it would be appropriate for a referral to be withdrawn; it would, for instance, be unfair for this provision to be used as a means for the GMC to re-present its case before a new Tribunal where an earlier Tribunal has already made factual findings but did not get as far as making a determination on impairment. 

15) To what extent do you agree or disagree with our proposed approach to adjudication, as described within our rules?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

Rule 26(3) – The power for Case Managers to issue practice directions is likely to have significant consequences on the process and outcome of hearings given the wide discretion envisaged by this rule.  As such, there should be scope within the Rules to challenge - at a directions meeting or a preliminary legal arguments hearing - the extent to which a practice direction should apply to a particular case. Moreover, the Associates Tribunal should retain discretion to disregard the practice direction (like any other direction given by the case manager) if there has been a material change in circumstances or it is not in the interests of justice for the practice direction to be binding. 

Rule 48(1) – It would be helpful for the potential impact of this Rule to be reflected in Guidance and / or Conditions bank in cases where conditions are imposed as a sanction.  The GMC will be aware that there are often practical steps that must be put in place by a registrant in order to practice to comply with the conditions.  In cases, where an immediate Order is not necessary, it should be possible for the Associates Tribunal to reflect the time required for the Associate to make the appropriate arrangements within the body of the Conditions; not doing so, would have the effect of suspending the Associate from practice.

16) To what extent do you agree or disagree with our proposed approach to final measure reviews, as described within our rules? 

• Agree
• Disagree
• Neither agree nor disagree or don’t know

Rule 56(2)(b) We are concerned that the fact an associate may request an earlier review of a Final Measure could lead some decision makers to impose longer sanctions, especially in conditions cases.  As such, we ask that this is addressed in Guidance. 

Rule 62(3) - Where it appears that the Associate has not provided a response, the GMC should be slow to impose the Final Measure without a referral to an Associates Tribunal and having regard to the following: whether there are any circumstances that could have prevented the associate from providing the response including but not limited to, their health and / or cultural reasons; whether the associate has access to advice from an MDO and / or a qualified lawyer; and the extent to which the associate’s lack of response can be regarded as a deliberate decision by the associate.

Rule 64(3) Case examiners should be given the discretion to consider any written representations made by the associate even if this is outside the specified deadline for doing so.

Rule 65(2) the Rule should be amended so that the Regulator is required to notify the associate of a decision to withdraw a referral as soon as reasonably practicable, and to provide the information in subparagraphs (a) and (b) within 5 business days beginning with the date of the decision.  This small change may help the associate to avoid or reduce incurring costs in preparation for the hearing.

17) To what extent do you agree or disagree with our proposed approach for accepted outcome decisions to be made by a single case examiner, selected from a team of case examiners? 

• Agree
• Disagree
• Neither agree nor disagree or don’t know

We appreciate that the Order provides for decisions to be made by a single case examiner and the steps that the GMC have outlined to mitigate the risk of unconscious bias etc.  However, we would ask for consideration being given to decisions being made by two case examiners in cases that may involve the associate’s protected characteristics, such as, race, gender, disability; or even culture.  In all cases, it is important that the case examiner empowered to make the decisions is kept at arms length from the investigation.   

18) To what extent do you agree or disagree with our proposed decision-making principles for impairment guidance? 

• Agree
• Disagree
• Neither agree nor disagree or don’t know

It would be helpful for the Guidance to include reference to matters which are of a historical nature, such as, warnings that may have been imposed more than 5 years ago, and the extent to which these should influence decisions on current impairment. 

19) To what extent do you agree or disagree with our proposed decision-making principles for guidance on what restrictive action is required?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

We appreciate that this document sets out the principles, as opposed to the proposed guidance itself.  As such, it is possible that some or all of what follows would have been reflected in the guidance in any event:

As a general point, it would be helpful to include reference to relevant caselaw (where available) where assertions are made on what is or is not likely to be the appropriate conclusion in certain circumstances.  For instance, what is the authority for the assertion towards the top of page 3 that: ‘in most cases…’ such statements should be explained and appropriately evidenced due to their potential for negating the various factors that would otherwise suggest a less restrictive action would be appropriate. 

The footnote on page 3 regarding testimonials should include that GMC verification is not required where this has been carried out by the associate’s legal representative. 

Page 6, paragraph (d) – we ask that the words ‘are likely to’ are replaced with ‘will reasonably need’ to reduce the risk of longer than necessary orders being made.

Page 7, second paragraph and page 9, third paragraph: we feel this guidance is incomplete in that it provides no examples of where time spent under an interim order could be relevant.  The supplementary guidance issued by the MPTS on taking interim orders into account is more balanced in comparison.

Final paragraph of Section 7, top of page 14 – we welcome the inclusion of the principle that erasure would not usually be appropriate in the initial consideration of health only cases.

20) To what extent do you agree or disagree with our proposed decision-making principles for guidance on warnings?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

Whilst agreeing with the principles overall, we would ask that guidance be included to reflect the approach to be adopted where an associate may have been given a warning in the past for similar conduct/behaviour; a proportionate approach should, in our view, take account of the age of the warning and whether there have been any other similar incidents until the issue at hand; that an associate was given a warning in the past should not in and of itself mean that a subsequent case cannot be concluded with a warning. 

Revisions and appeals

21) To what extent do you agree or disagree with our proposed approach to revisions, as described within our rules?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

Rule 7(b) – should a fee be payable given the restrictions on when fees can be charged in Sched 4, para 8(2) of the Order?

Rule 8(1)- we would ask that this be amended so that the Regulator ‘must’ notify the associate where the Regulator is considering whether to revise a revisable decision unless this is as a result of the associate’s request.

22) To what extent do you agree or disagree with our proposed approach to internal appeals, as described within our rules?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

Rule 3(g) – should a fee be payable given the restrictions on when fees can be charged in Sch 4, para 8(2) of the Order?

Rule 4(2) – ‘real prospect of success’ – could this be defined in the Rules or is this intended for Guidance?

Rule 10(2) – to what extent can this rule apply to written appeals under Rule 10(1)(b) i.e. how will parties have a reasonable opportunity to provide representations ‘before’ a decision to adjourn is made ‘after an Appeal Panel has met to determine a written appeal’?

Fees

23) To what extent do you agree or disagree with our proposed approach to setting and charging fees, as described within our rules?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

We disagree that fees should be levied in connection with appeals that relate to fitness to practise investigations to the extent that this may be inconsistent with Sch 4, para 8(2) of the Order.

24) To what extent do you agree or disagree with our proposed principles for setting and varying fees in future?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

Equalities considerations and our Welsh Language Standards obligations

25) Referring to our separate EQIA, to what extent do you agree or disagree that we have identified all relevant impacts (for AAs, PAs and members of the public) for our proposed rules / guidance / standards as currently drafted?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

We would urge the GMC to closely monitor the impact of these proposals on those with protected characteristics and/or from differing backgrounds over time. The impact of these policy proposals will become more apparent if and when the diversity of the future PA and AA and workforce becomes clearer and as these policy proposals are implemented. It will therefore be important to keep this under close consideration and we would urge a review be conducted a few years after these policy proposals come into effect.

A key consideration we would like to flag up, which we have highlighted in our consultation response, is the extent to which those without access to advice from an MDO and or a qualified lawyer could be disadvantaged when it comes to alleged non-compliance with an investigation. Evidence from established professions, like doctors and dentists, suggests that overseas graduates are less likely to have legal representation when appearing before a tribunal. If over time there were to be an increase in PAs and AAs coming to work in the UK after qualifying overseas then the impact of these policies on these registrants is a particular area the GMC should keep under consideration

26) In your opinion, could the proposals have either positive or negative effects on opportunities for people to use the Welsh language and on treating it as no less favourable than English?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

27) Could the proposals be revised in any way to increase opportunities for people to use the Welsh language and to help treat it as no less favourable than English?

• Agree
• Disagree
• Neither agree nor disagree or don’t know

About MPS

MPS is the world’s leading protection organisation for doctors, dentists and healthcare professionals with more than 300,000 members around the world. 

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

MPS is not an insurance company. We are a mutual non-for-profit organisation and the benefits of membership of MPS are discretionary as set out in the Memorandum of Articles of Association.

Contact

Should you require further information about any aspects of our response to this consultation, please do not hesitate to contact us.

Megan Ball
Policy and Public Affairs Manager
[email protected]