PA union loses High Court bid for temporary block on Leng review changes

Credit: Getty/BrasilNut1

By Daniel Pye at the High Court in London

A union has lost a High Court bid to temporarily block NHS England from proceeding with changes to the roles of physician and anaesthesia associates after the Leng review.

United Medical Associate Professionals (UMAPs) wanted to halt the implementation of the recommendations until the conclusion of the judicial review it is bringing against NHS England and health secretary Wes Streeting.

However, Justice Ian Dove denied the injunction at a hearing at the Royal Courts of Justice on Friday.

Shortly after the Leng review was published the government announced it would accept all the recommendations, including a name change to physician assistants and that PAs should not be caring for untriaged patients.

Patrick Green KC, for the union, said that a temporary injunction should be granted to “maintain the status quo” before the full challenge is heard.

Mr Green told the court that the recommendations affect the titles, employment, scope of practice and careers of PAs and AAs.

NHS England opposed the injunction bid and is also opposing the wider legal challenge.

In July, NHS England sent a letter to all trusts, integrated care boards and primary care networks stating PAs should immediately have their names changed to physician assistants and should not triage or see undifferentiated patients.

These instructions were “completely sidestepping the employment rights and all the processes that the NHS would normally go through by issuing this instruction”, Green submitted.

'People will be sacked'

“There’s objection to this change being made overnight in this way,” he added. The changes would mean “people will be sacked”, he said.

Oliver Jackson, representing NHS England, said that the letter did not tell employers to change the official titles of PAs in their employment contracts.

An information document that the organisation is seeking to publish - which would have been prevented by the injunction - will offer advice for employers on how to implement the review’s recommendations without breaching employment law, Jackson submitted.

Doctors are called registered medical practitioners in their employment contracts but are still referred to as doctors in their job roles, Jackson said.

“There is a strong public interest in the NHS being able to address” the uncertainty around the name of physician associates,” Jackson told the court.

In written submissions, Jackson said it would be “far-fetched to suppose that preserving the current situation in aspic would lead to a betterment of the position for PAs and AAs”.

NHS England is not the employer of PAs and AAs and contractual disputes are down to their employers, the court heard.

“It is clear that the Leng review is in the public domain,” Justice Dove said, and it is a “matter to be considered by NHS employers”.

'Real evidence of patient confusion'

Representing Streeting, Jonathan Lewis said: “There is real evidence of patient confusion – of patients’ thinking they have seen a doctor when they have not and not being able to make an informed decision”.

Streeting is “entitled to act now” on an expert review that is not being legally challenged, Lewis said.

The court also heard that the injunction would not have changed the fact that the Leng review has been published and the Royal College of General Practitioners had already advised its members to not let PAs see untriaged patients months before.

Green said that the government could have chosen not to accept the Leng review’s recommendations.

But Justice Dove called the review “a sophisticated exercise of judgement from an acknowledged expert in her field”.

If her review is unchallenged by UMAPs it is difficult to make the case that accepting the recommendations was irrational, the court heard.

Denying the injunction, Justice Dove said: “I am not satisfied it’s appropriate to grant interim relief in this case,” he said.

Professor Leng was not a defendant in the hearing and her review was not considered unlawful. Green said that UMAPs' upcoming judicial review would be amended to add her as a defendant.

Among the claims set to be made by UMAPS in the judicial review are that the government and health service failed to properly consult PAs and AAs before implementing recommendations which impact their scope of work and pre-existing contracts.

There is no date yet for the judicial review.

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