Consultation outcome

Consultation response to regulating anaesthesia associates and physician associates

Updated 11 December 2023

Foreword

Strengthening the future NHS workforce remains a top priority for each of the 4 governments of the UK. Anaesthesia associates (AAs) and physician associates (PAs) are already a valued and integral part of the multi-disciplinary healthcare team, but they have the potential to make an even greater contribution. Regulating these professions will help to increase the contribution AAs and PAs can make to the UK healthcare sector, while improving patient safety and professional accountability.

Each government is considering the operational deployment of these roles within its workforce. For example, NHS England recently published its Long Term Workforce Plan to grow and train the NHS workforce in England in which it reaffirmed its commitment to these roles and the part they play in enabling innovative ways of working as part of multidisciplinary teams. The plan commits to increasing the PA workforce to 10,000 by 2036 to 2037 and the AA workforce to 2,000 over the same period.

The GMC will be the regulator responsible for regulating AAs and PAs once regulation is introduced, following consultation and communication of that decision via written ministerial statement in 2019. Regulation under the GMC will enable a more coherent and coordinated approach to regulation and make it easier for employers, patients and the public to understand the relationship between the roles. The GMC will be key to ensuring that the roles complement doctors and other professionals within the wider NHS to support quality and safety in patient care.

The aim of the Regulating anaesthesia associates and physician associates consultation on the draft AAPAO launched in February this year was to seek views on the legislative provisions that will give the GMC the necessary powers to regulate AAs and PAs in the UK. The consultation was carried out on behalf of UK government and devolved administrations. The draft legislation that will bring AAs and PAs into regulation will shortly be laid before the UK and Scottish Parliaments under the affirmative procedure which means the AAPAO will be debated and voted on. Under the Scotland Act 1998, where new professions are brought into regulation after the coming into force of that act, the legislation required to regulate the new professions must be laid in Scotland. Similar arrangements do not exist in respect of Wales and Northern Ireland and so the UK Parliament will legislate on their behalf. Once the legislation has been laid before the Parliaments, the GMC will then have 12 months to begin regulation.

The legislation provides a high-level framework for the GMC to regulate AAs and PAs and importantly gives it more autonomy to set out the details of its regulatory procedures in its rules. The draft legislation will also pave the way for full scale reform of the regulatory frameworks of all the healthcare professional regulators by providing a template upon which we can build.

This is the first step to deliver a large-scale programme of reform that will implement improvements to the system of professional regulation; to the health and care workforce and, most importantly, patient and public safety. Recognising the novel and transformational way in which the legislation will enable regulation in the future, we are committing to keeping this legislation under review to ensure that it continues to best serve the interests of patients and the public as well as the regulators and their registrants.

While it is our intention to work as swiftly as possible to deliver reform for each regulator and profession, we will prioritise delivery based on criteria including the size of registrant base, the need for reform, and our assessment of the regulators’ readiness to implement the changes. Based on these criteria, we intend to start working with the GMC, NMC and HCPC to develop reformed legislation for their professions over the next couple of years.

Executive summary

Background

The current UK model of regulation for healthcare professionals is rigid, complex and needs to change to better protect patients, support our health services and to help the workforce meet future challenges.

Our reform programme will see the introduction of a modern, fit for purpose regulatory system, which we will achieve by updating the legislative framework for each of the 9 healthcare professional regulators.

As set out in our consultation, Regulating anaesthesia associates and physician associates, we are starting our programme of reform with the draft legislation which will provide the General Medical Council (GMC) with the framework and powers needed to regulate AAs and PAs.

The reforms span the 4 key areas of regulation:

• governance and operating framework
• education and training
• registration
• fitness to practise

The governance and operating reforms will be delivered in 2 stages, initially and to a limited extent through the Anaesthesia Associate and Physician Associates Order (AAPAO), with the remaining governance reforms delivered through the future GMC order that will introduce the reforms to the regulation of doctors. The AAPAO will provide the GMC with a high-level framework to regulate AAs and PAs and importantly gives it more autonomy to set out the details of its regulatory procedures in its rules.

The AAPAO gives the GMC powers to:

• register qualified and competent AAs and PAs
• set standards of practice, education and training, and continuing professional development and conduct for AAs and PAs
• approve AA and PA education and training programmes
• operate fitness to practise procedures to deal with associates where there are concerns about the fitness to practise of an AA or PA

The offence relating to the use of the protected titles ‘anaesthesia associate’ and ‘physician associate’ without registration will not take effect until 3 years after the AAPAO is laid, which allows for 12 months for the GMC to begin regulation and then a 2-year transition period. Transitional arrangements will be put in place by the GMC to allow individuals to meet the requirements for registration.

Consequential changes to other pieces of primary and secondary legislation will also need to be made to ensure that legislation relating to regulated healthcare professionals is updated to reflect the regulation of AAs and PAs where appropriate.

Engagement with stakeholders

The programme of work to reform the legislative frameworks of the healthcare regulators is large and complex.

We have engaged thoroughly with stakeholders including the regulators, the devolved administrations, the Professional Standards Authority for Health and Social Care (PSA) representative bodies and service users to ensure that the AAPAO provides the right template legislative framework for all of the healthcare regulatory bodies.

Over the last 6 years we have held a number of public consultations to gather stakeholder views on the possible reforms. A summary of these consultations is set out below.

In 2017 we consulted on options for reforming the regulation of healthcare professionals in the UK following publication of the Law Commission’s report, ‘Regulation of healthcare professionals, regulation of social care professionals in England’ (see Regulation of health and social care professionals).

The 2017 consultation, Promoting professionalism, reforming regulation, set out 5 objectives for the regulatory system to:

• improve public protection from the risk of harm due to poor professional practice
• support the development of a flexible workforce that is better able to meet the challenges of delivering healthcare in the future
• address concerns about the performance of professionals in a more proportionate and responsive fashion
• provide greater support to regulated professionals in delivering high quality care
• increase the efficiency of the system

In July 2019 we published the response to this consultation. This outlined our planned programme of work to provide all UK healthcare regulators with broadly consistent powers.

In 2017 we also ran a consultation on The regulation of medical associate professions in the UK. This consultation sought views on our proposal to introduce statutory regulation for 4 medical associate professions, including AAs and PAs. A response was published in 2019, confirming the decision to introduce statutory regulation for AAs and PAs.

In 2021 we consulted on our policy proposals in Regulating healthcare professionals, protecting the public. This consultation drew together the reform work with the regulation of AAs and PAs under the GMC. The policy proposals also looked to reflect a number of reports published in recent years that have had a particular bearing on proposals for the future of professional regulation in the UK. Following this consultation, we undertook an extended period of stakeholder engagement and policy development to ensure that the draft order would reflect the policy proposals effectively. We subsequently published the response to this consultation in February 2023.

Finally, in February 2023 we consulted on the draft order ‘Regulating anaesthesia associates and physician associates’.

As well as formal consultations throughout the project we have engaged with key stakeholders, including the regulators, the trade unions and professional bodies including the Faculty of Physician Associates (FPA) and the Association of Anaesthesia Associates (AAA). This additional engagement has been crucial in shaping both our policy intention and the resultant legislation, to ensure that it remains a practical piece of legislation that can be used by the regulators, for the benefit of patients and their registrants.

In October 2023 NHS England published an open letter to partners setting out the steps it is taking to ensure that AA and PA roles are expanded safely and effectively to support the delivery of the NHS Long Term Workforce Plan. This includes engaging with partners including the GMC, royal colleges and other stakeholders about the pace at which these roles grow and ensuring alignment on the remit of their work in different specialties so that the roles can be effectively trained and integrated into teams.

Timetable for regulation of AAs and PAs

The publication of this response marks the start of the next step in the process. The AAPAO will shortly be laid before the UK and Scottish Parliaments. This gives parliamentarians the opportunity to consider the legislation and to debate it.

Once debated, the legislation will either be approved or rejected by the Parliaments. If approved, His Majesty may then make the AAPAO at a meeting of the Privy Council. Once that has happened, the AAPAO will then become law. The commencement provisions within the AAPAO mean that there will be a period of 12 months from the date that it is laid in the UK Parliament before the provisions will take effect (come into force). In addition, the offence relating to the use of the newly protected titles ‘anaesthesia associate’ and ‘physician associate’ will not take effect until 3 years after the AAPAO becomes law. This time incorporates 12 months for the GMC to begin regulation and then a 2-year transition period where those who are already working as AAs or PAs can register with the GMC.

After the AAPAO has been made, the GMC will develop, consult on, and make rules to put in place the processes for regulating AAs and PAs. This will include a consultation period where the GMC will seek views from patients, the professions and other key stakeholders on how regulation will be delivered.

Next steps for regulatory reform

The draft order that we consulted on paves the way for full scale reform of the regulatory frameworks of all the healthcare professional regulators by providing a proposed template upon which we can build.

As set out in the government’s response to ‘Regulating healthcare professionals, protecting the public’, we are introducing regulation for AAs and PAs under a new reformed framework without changing the GMC’s regulatory framework for medical practitioners (doctors) at this stage. This means that the AAPAO will not include some of the governance and operating reforms that we plan to introduce in a future GMC order, such as replacing the current 2-tier council with a unitary board structure. Therefore, the AAPAO is not a complete template for the reforms that will be rolled out to the rest of the regulators. This means that the GMC’s overall governance framework and regulation of doctors will continue to be legislated for under the Medical Act 1983 (MA 1983) after the AAPAO comes into effect.

The future GMC order relating to the medical profession will be drafted and published for consultation in due course. It will cover the proposed reforms for the regulatory framework for doctors and include the remaining governance and operating framework reforms.

While it is our intention to work as swiftly as possible to deliver reform for each regulator and profession, we will prioritise delivery based on criteria including the size of registrant base, the need for reform, and our assessment of regulators’ readiness to implement the changes. As set out previously, based on these criteria, we intend to start working with the GMC, Nursing and Midwifery Council (NMC) and the Health and Care Professions Council (HCPC) to develop reformed legislation for their professions over the next couple of years. The NMC is the largest regulator with over 750,000 registrants and has been prominent in its work to support the development of these reforms. Furthermore, the NMC has completed significant preparatory work to ensure readiness to implement these changes, including preparing draft rules. The HCPC regulates around 300,000 registrants across 15 professions and operates with particularly constrained fitness to practise legislation.

We are in the early stages of the work to reform legislation for the GMC (in relation to doctors), the NMC and the HCPC. While we intend to move at pace, we will undertake 3-month consultations for every regulator to ensure that those who wish to contribute to the shaping and development of the legislation have the opportunity to do so.

Professor Sir Norman Williams’s review into gross negligence manslaughter in healthcare

In February 2018, the former Secretary of State for Health and Social Care announced that a rapid policy review into gross negligence manslaughter in healthcare would be undertaken by Professor Sir Norman Williams. The review was set up to consider the wider patient safety impact resulting from concerns among healthcare professionals that simple errors could result in prosecution for gross negligence manslaughter, even if they occur in the context of broader organisation and system failings. In particular, there was some evidence that these concerns had the potential to have a negative impact on healthcare professionals being open and transparent should they be involved in an untoward event, as well as on their reflective practice, both of which are vital to learning and improving patient care.

On 11 June 2018, Professor Sir Norman Williams published his review into gross negligence manslaughter in healthcare. The review made a number of recommendations. In line with recommendation 5.3 of the review, the AAPAO will restrict the GMC from requiring AAs or PAs to provide material produced for the purposes of professional development or in the course of reflecting on their professional practice, for fitness to practise purposes. Respondents to the consultation welcomed the inclusion of the prohibition. However, several respondents queried when the GMC would be restricted from requiring doctors to provide material produced for the purposes of professional development or in the course of reflecting on their professional practice, for fitness to practise purposes. In addition, several respondents queried when recommendation 6.1 would be implemented which would remove the GMC’s power to appeal decisions of the Medical Practitioners Tribunal Service (MPTS) to the High Court in England and Wales.

The UK government has committed to reforming regulatory legislation for doctors as a top priority after the AAPAO is laid. This future legislation will (if approved by Parliament) remove the GMC’s power to appeal decisions of the MPTS to the High Court in England Wales and it will introduce a prohibition on requesting reflective material from doctors, by the GMC, during fitness to practise proceedings.

This consultation response

The consultation response provides a summary of the changes that have been made following the consultation. It is worth noting at the outset that, on the basis of feedback received to the consultation and additional targeted engagement, there are a number of substantial changes to the drafting across a range of areas. These changes have been necessary to ensure that the legislation is fit for purpose, delivering the flexibility and autonomy required to empower regulators to be able to introduce new regulatory processes that better serve patients and their registrants.

In addition to the narrative below, annex A provides the high-level data analysis of the consultation responses we received. The remainder of this document incorporates the consultation analysis into key themes and highlights where changes have been made to the draft order post consultation and the reasons why.

Part 1: general

Citation and commencement

This article continues to set out the name of the AAPAO and the date provisions come into force.

Interpretation

This article continues to set out the definitions of certain words in the AAPAO. The definitions we have amended since the consultation are set out within the narrative on the relevant parts of the AAPAO below.

Part 2: standards and approvals

Standards for registration

The majority of consultation respondents agreed that the draft order provides the necessary powers for regulators to determine the standards and procedures for registration. Feedback generally indicated that the categories of standards set out at article 3 covered all the appropriate and recognised areas that respondents felt the GMC should set and assess associates against.

Approval of, for example, education and training

Approved qualification

Comments from regulators and other respondents to the consultation raised concerns about the definition of ‘approved qualification’ at article 2(1), which was restricted to being a qualification that was approved at article 4(1)(c).

Feedback suggested that the drafting at article 4(1)(c) could cause confusion among registrants and the public between UK qualifications obtained from providers which have been approved by the GMC (or those delivered overseas by UK institutions), and qualifications obtained overseas which the regulator may take into account as part of its wider assessment at article 6 that an applicant meets the standards for registration. Comments indicated this had broader implications for other provisions in the draft order - for example, the constitution of panels for fitness to practise cases at schedule 4, which in the consultation version of the draft order required at least one registrant panel member to hold an approved qualification.

Drafting has therefore been amended at article 4(1) (a), (b), and (c) to clearly differentiate between the power for the GMC to approve a particular programme or provider of education either in the UK or overseas, and its power to accept a qualification obtained overseas as part of a broader assessment of whether an associate meets the standards required to register in the UK.

Approvals

Feedback from regulators was that the terminology used at article 4(1) in the draft order we consulted on was confusing, as it implied that it was the GMC which was required to meet the standards set under article 3. Furthermore, the broad reference to ‘the standards’ was considered problematic as it could be interpreted that those seeking approval under article 4 are required to meet all of the standards under article 3 rather than only those that are relevant. We have sought to qualify the drafting at article 4(1) so that it is clear that only the standards relevant to an approval decision should be met by those that are seeking to provide education and training for associates.

Education and training standards and approvals powers

The majority of respondents agreed that the provisions in the draft order are sufficient to enable the GMC to fulfil its role safely and effectively in relation to the education and training of associates.

A significant proportion of comments on the powers in the draft order in relation to education and training concerned matters outside the scope of this consultation. These included comments relating to whether the GMC should be the regulator for AAs and PAs, the capacity of the medical workforce to supervise the training of associates, and public perceptions of the skills and scope of practise of associates. While we recognise the importance of issues raised in relation to the supervision of AAs and PAs and the public understanding of the AA and/or PA role, these are not issues that we are seeking to, or can, address via legislation.

Wording at schedule 3 paragraph 5(1)(d) outlines the GMC’s duty to publish information about any condition or change to the approved status of a provider or programme. In line with feedback received, we have amended the drafting from requiring the GMC to publish any ‘withdrawal’ of an approval to any ‘revocation’ of an approval.

Drafting at schedule 3, paragraph 5 has been amended following feedback from the GMC which highlighted that the provision at (2)(a) could be interpreted as preventing them from publishing approvals relating to individuals, such as an out of programme training post. The policy position is the GMC should have the discretion to be able to publish approvals relating to individuals, allowing it to balance this with its data protection responsibilities.

Amendments have been made to procedural rules drafting at schedule 4, paragraph 4(1)(a) to limit the requirement to set rules only to article 4(1). Regulators noted that the procedural rule-making duty which captured all parts of article 4 was too broad and expressed a view that it is unworkable and unnecessary for them to set standards on the co-ordination of the stages of education and training of associates. This was not our policy intent as we recognise that the broad overarching role regulators perform in this area is not limited to work that can be distilled down to the setting of standards.

International standards and recognition arrangements

We continue to work with the Department for Business and Trade (DBT) to consider the implications of current, agreed and future Free Trade Agreements (FTAs). DBT laid legislation on 17 October 2023 to implement the European Economic Area (EEA) European Free Trade Association (EFTA) FTAs for all relevant regulated professions in the UK. The legislation came into force at the start of December 2023. We have been working with the GMC in advance of the AAPAO coming into force to ensure that the FTA is reflected appropriately in its legislation in relation to AAs and PAs.

We remain committed to ensuring that the reformed legislation should not pose a barrier to delivering the government’s broader intentions for international workforce policy and that regulators should be empowered to approve or recognise education and training institutions, qualifications or training programmes overseas or enter into mutual recognition agreements with regulators in other countries.

Comments from the regulators noted that while they believed the draft order did not prevent them from using the new powers in this way, the draft provisions at article 4 did not provide explicit legal clarity on this basis. As a result, article 4(1) has been amended to ensure that this clarity is captured within the drafting, to give assurance that the legislation does not prevent regulators from complying with international trade agreement commitments.

Part 3: the register

Emergency registration provisions

Emergency registration provisions in regulatory legislation currently enable healthcare regulators to temporarily register healthcare professionals during times of emergency as determined by the Secretary of State for Health and Social Care. The MA 1983 already provides the GMC with emergency registration powers in respect of doctors. As set out in our consultation documents, the government intends to extend emergency registration powers that will enable the GMC to open emergency registers for AAs and PAs, and all the healthcare regulators for use in a future emergency.

The consultation sought views on new emergency registration powers for the GMC in respect of AAs and PAs. A majority of respondents supported the draft emergency registration provisions. It is noted that a significant portion of respondents disagreed. Comments included:

• concerns that the proposed powers were too broad with a lack of information on how the GMC would apply them in an emergency
• concerns that mobilising AAs and PAs during an emergency could present risks if their practice is not supervised or limited within safe parameters
• questions about the value and utility of the skills of the AA and PA professions to respond to an emergency

Other comments reflected concerns about the decision for the GMC to regulate the AA and PA professions, which was outside the scope of this consultation.

Analysis of responses from the consultation and engagement with Scottish Government and the Office of the Advocate General for Scotland raised some complex matters relating to the interaction between the draft provisions and the powers held by the devolved administrations. It is vital that we take the time to work through the underlying issues with the devolved administrations and the regulators, to ensure that there is a clear and appropriate mechanism to engage these powers so that there can be no doubt about their swift use during a future emergency.

As a result, the decision has been taken to not include these new powers in the AAPAO that will be laid in 2023. Our intention is now to provide the GMC with the power to establish an emergency register for AAs and PAs at the same time as we reform its governing legislation for doctors.

AAs and PAs are growing professions, and the numbers of potential AAs and PAs that could be added to an emergency register at this time would likely be very small, so we expect the impact of a delay in bringing new emergency registration provisions into force to be low. Furthermore, accounting for the 2-year transition period (as set out in the executive summary) provided for individual AAs and PAs to register with the GMC, it is unlikely that the entire professional cohorts will be registered immediately with the regulator, further reducing the impact of not introducing these powers at this time.

It is only the GMC’s new powers in respect of AAs and PAs that are affected by this decision. The GMC will retain its existing emergency registration powers for doctors as provided by the MA 1983 to establish a temporary register of doctors in the future if required, as it did during the COVID-19 pandemic where former doctors were able to join the healthcare workforce on a temporary basis.

The following section should be read in conjunction with the sections of this consultation response that relate to the GMC’s powers to restore people to the register at article 6 and the ongoing assurance of associates at article 7.

Article 5: the register

Overall comments from respondents agreed that the provisions in relation to the register and its publication will enable the GMC to effectively maintain a register of professionals.

Respondents were generally content with the powers as they relate to how the GMC will keep and maintain a register of associates. We acknowledge that there were a significant number of comments about the decision for the GMC to regulate the AA and PA professions, but this consultation is seeking views on the draft legislation to regulate the AA and PA professions, not the appropriate regulatory body to carry out that function. To deliver the policy intent set out in ‘Regulating anaesthesia associates and physician associates’ the wording at article 5(2)(b) has been changed to clarify that the GMC must only divide the register into 2 parts, one for AAs and one for PAs, as the previous wording of ‘may’ incorrectly suggested it may be divided further. The wording at article 5(3)(b) on what contact details should be recorded in the register has also been simplified for reader clarity.

Some respondents commented that the power at article 5(4) which gives the registrar discretion to record other information in the register was too open ended and were concerned about the GMC’s accountability for how it might use this this power. As set out in our previous consultation ‘Regulating healthcare professionals, protecting the public’, regulators must have a clear auditable justification for collating, processing and publishing data, and must ensure data is stored safely. This power has been included so that the GMC can record information in the register about matters that do not have a public protection purpose, such as diversity and inclusion data, and drafting has been updated to make this clearer. There is no associated power for the GMC to publish the information it records on the register using the power at article 5(4).

Article 6: registration - changes to powers and structure

We have updated article 2 of the draft order to include a definition of registrant. The definition will provide clarity for applicants for registration, associates and the public. The definition of registrant is a person registered under article 6 of the AAPAO.

We have made changes to the structure of article 6 so that initial registration comes before the restoration to the register provisions. This has been done in response to feedback that this would make the legislation more accessible for associates so that the registration expectations are clear.

Adjustments have been made to the wording at article 6(1) to reflect the changes to the structure and grouping of standards which the GMC must set for registration at article 3 of the AAPAO. The new drafting is intended to clearly link the 2 articles together and clarify that it is the specific standards for registration at article 3 which associates must meet to be registered.

We have separated the information requirements for registration, covering indemnity and insurance cover and an associate’s identity, from the professional standards and procedural requirements for registration. These were all previously found at article 6(2) but are now separated between article 6(4) (indemnity/insurance/identity) and 6(1)(a) and (c) (professional standards and procedural requirements).

As set out in ‘Regulating anaesthesia associates and physician associates’, the draft order gives regulators the power to determine in rules the procedural requirements for registration. Article 6(c)(ii) expands on this to make registration conditional on other types of requirements that the registrar may direct. This continues to build on our overall objective for reform which is to devolve the procedural and profession specific requirements to regulators, and future proof the legislation so that regulators can respond and adapt their processes and standards as workforce or patient safety demands change.

Some respondents to the consultation expressed a view that the drafting at article 6(4)(b) did not clearly reflect our policy intent that associates must hold either a standalone insurance policy or indemnity arrangement, or any combination of the 2. The drafting has been amended into a list format with no conjunction, to bring it in line with the accepted style used in legislation to provide that either option or a combination of the 2 is acceptable and communicate our intention more clearly.

Exclusion from registration due to conviction for an offence listed at schedule 2

Some respondents to the consultation queried that there was a mechanism for removing an associate from the register following conviction or a custodial sentence for one of the listed offences at schedule 2, but no prescribed exclusion from registration for associates convicted of a listed offence. It was expressed that the registration requirements should reflect the circumstances in which registration could be removed. For those wishing to apply for first registration, we recognise that conviction for one of the listed offences is likely to be incompatible with meeting the standards for registration. For those wishing to apply for registration after removal of registration under, for example, article 9(1)(c), article 6(3)(b), the associated rule-making power at schedule 4 paragraph 2(2)(d) gives the GMC the power to prescribe cases which must satisfy a set decision maker that their fitness to practise is not impaired. It is open to regulators to use this power to require persons who have been convicted of a particular offence to be subject to this process and an appropriate finding made about restoring them to the register.

Fit so to direct

Some regulators and respondents to the consultation noted that the draft order did not give any discretion to the registrar on whether or not to register a person who has met the registration criteria (powers which are commonly referred to by the term ‘fit so to direct’). We recognise this is a departure from the GMC’s current powers as they relate to doctors under the MA 1983. We have maintained the approach set out in our response to the consultation ‘Regulating healthcare professionals, protecting the public’ at question 34 where we explained the policy position that a discretionary power on who should be registered does not align with our approach of creating a transparent and proportionate system of regulation. The AAPAO continues to require the registration of associates who have satisfied the registrar that they meet the standards and requirements for registration. We are confident that the powers in the AAPAO already provide the required flexibility for regulators to be able to design proportionate and tailored registration standards and requirements for each profession and manage the registration process.

Restoration

This section should be read in conjunction with the section outlining the government’s response to the appeals and revisions powers in the draft order.

The majority of respondents to the consultation agreed that the powers in the draft order relating to the restoration to the register of former professionals wishing to be registered again were sufficient and proportionate.

Many respondents were in support of the requirement for a panel to make the assessment of whether a person who has previously been removed following a final measure should be restored to the register. However, several respondents felt the registrar was a more suitable decision-maker and comments also expressed the view that drafting was confusing as to how different decision-makers and adjudicators for the 2 elements of a restoration decision would interact and the potential challenges this would raise for managing this through the GMC’s operational processes.

As set out in ‘Regulating anaesthesia associates and physician associates’, we are clear in our policy position that associates who have previously been removed from the register due to a final measure must satisfy a panel that their fitness to practise is not impaired at the point of applying to return to the register. This requirement has been retained at article 6(2)(b) of the AAPAO.

Article 6(1)(b) in the draft order we consulted on gave the GMC powers to determine in rules the cases or circumstances in which the associates who were removed from the register for reasons other than a final measure would need to satisfy a prescribed decision-maker that their fitness to practise is not impaired. This policy is designed to ensure any fitness to practise issues that were either only at an early stage of investigation or which have come to the attention of the GMC following the professional leaving the register can be thoroughly examined prior to a return to practice. Updated drafting at article 6(3) of the AAPAO now provides this power.

Drafting has been updated at article 6(2)(a) and (3)(a) to more clearly express our policy intent that the GMC may determine which decision-makers are involved in different elements of the restoration process. The drafting remains flexible so that the same panel or decision-maker may be responsible for both elements. Paragraph 2(1) of schedule 4 has updated rules to prescribe the person or persons who will undertake the different parts of the restoration assessment.

Ultimately, where the registrar is satisfied that associates meet the standards and requirements for registration, and their fitness to practise is not impaired, they must register the associate.

Article 7: powers relating to the periodic assessment of associates (revalidation)

Article 7 is a new power relating to the periodic assessment of associates (commonly referred to as revalidation).

Consultation feedback relating to the duty for the GMC to implement an ongoing assurance process for AAs and PAs identified that the draft provisions were not sufficiently explicit, after several respondents commented that they could not easily identify where the draft order delivered this policy commitment. Feedback from the GMC and other regulators also indicated that the draft provisions did not adequately provide them with the necessary powers to enforce their intended models of assurance.

There was a concern that the drafting at the former schedule 3 paragraph 7 was overly focused on the procedural and evidence gathering powers relevant to ongoing assurance of registrants and did not provide regulators with substantive powers to evaluate and remove or take other regulatory action against registrants who fail to meet the standards needed for ongoing registration. It was also suggested that the drafting suggested a fixed point in time assessment of registrants’ performance and failed to recognise the broader policy intent and regulators’ desire to link their processes with underlying processes in the wider healthcare system such as annual appraisals and clinical governance.

Regular assurance that registered healthcare professionals continue to meet the standards needed to provide safe and effective care is central to protecting patient safety, so this is an area that was subsequently explored carefully with the GMC following our consultation ‘Regulating anaesthesia associates and physician associates’. Due to the significance of the comments received and our subsequent analysis, several powers across the draft order have been amended to ensure that the GMC is equipped with the necessary powers to deliver a model of effective, regular assessment of AA and PA registration and safeguard the public.

The key areas of the AAPAO which relate to this duty are:

• standards - the drafting at article 3 gives the GMC the power to set the standards for registration, and article 3(2)(f) provides the power to determine bespoke standards, which could include those that registrants must meet for continued registration
• duty to undertake periodic assurance of registrants - article 7 now includes a clear, substantive requirement or decision-point for the GMC to assess whether an associate meets relevant standards for continued registration
• removal from the register - the draft order only provided for the regulator to remove registration where an associate does not comply with procedural rules and evidence gathering requirements. To align with the new decision-point at article 7, article 8(2)(b) has been added to give the GMC the power to remove an associate who has been assessed as not meeting the standards it determines as relevant to article 6(5)
• paragraph 7(1)(a) of schedule 3 gives regulators clarity that they may undertake an assessment of whether an associate is meeting the standards for registration at article 3 on an ongoing basis
• paragraph 2(2)(d) of schedule 4 gives regulators a power to set out in rules which standards associates will be evaluated against when making a decision at article 6(5)
• notifications - paragraph 2 of schedule 3 includes the powers and duties for the GMC to notify associates and relevant parties of the outcome of a revalidation decision

Some respondents felt the legislation should mandate a standard revalidation period across regulators for consistency. As set out in ‘Regulating healthcare professionals, protecting the public’ the government believes that regulators are best placed to design a proportionate system of assurance for the professions they regulate. This is especially so given that the aim of the legislative reform programme is to remove prescription from legislation and free up regulators to have more control over their operational processes. Accordingly, we think that regulators are best placed to determine the period of revalidation. Regulators and the PSA should also work together to consider the implications of implementing different assurance models and identify if there are any areas which would benefit from a consistent approach.

Article 8: conditions on registration

Note this was previously article 7 in the version of the draft order we consulted on but due to the insertion of the ongoing assurance duty at the new article 7 the numbering has changed.

Our consultation ‘Regulating healthcare professionals, protecting the public’ set out our policy intent that regulators should have limited powers to create different forms of registration. This is intended to allow for the continuation of different types of registration which exist currently across the regulators - for example, provisional registration.

As outlined in the consultation, the powers at article 8 enable regulators to set conditions that will apply to the registration of associates who meet pre-determined criteria. The GMC may use rules at paragraph 2(2)(e) of schedule 4 to specify a description of associate for the purposes of article 8.

Consultation feedback suggested that our policy intent for article 8 did not accurately reflect the powers in the draft order, as it indicated that these powers could be used to enhance the scope of an associate’s registration as well as restrict it. We accept that the narrative did not clearly set out the effect of the drafting and wish to clarify that the powers at article 8 only permit the GMC to set conditions which limit the scope of registration. There is a complementary power at article 5(3)(e) for the GMC to record information in the register relating to that person’s practice as an associate where the registrar is satisfied that its inclusion will aid the protection of the public.

Some respondents commented that the terminology of ‘conditions’ at article 8 had negative connotations due to its common use in relation to fitness to practise proceedings. Regulators highlighted the potential for the powers at article 8 to be misunderstood and perceived as a negative power by registrants, employers and the public, rather than their intended use as a tool for recreating the existing, well-understood systems for different types of registration. We have reviewed the terminology, but as the powers act as a means to limit or restrict the scope of registration of associates, we are content that the language does not need to change for this provision.

Some respondents felt that the draft order should prescribe the categories of conditions on registration so that there was greater consistency between regulators. The government believes that regulators are best placed to understand the specific needs of the professions they regulate and the wider workforce and healthcare systems they work within, and we are clear that they should have the autonomy to create registration categories to meet these demands and context.

Article 9: removal

Note the removal provisions were previously at article 8 in the version of the draft order we consulted on but due to the insertion of the ongoing assurance duty at the new article 7 the numbering has changed.

Overall respondents to the consultation agreed that the powers in the draft order give the GMC the necessary and proportionate powers to remove associates from the register. Areas of the drafting which are different are highlighted below, and we also address some of the comments from consultation respondents.

As we have outlined in the section of this consultation relating to the emergency registration powers, we intend to bring forward the delivery of GMC removal powers for associates on any temporary emergency register when we reform its legislation in respect of doctors. Paragraphs 3 and 4 have therefore been removed from article 9.

Article 9(2)(b) is a new power for the GMC to remove an associate who has failed to meet the substantive standards for periodic assessment. This complements the existing powers we had already provided to the GMC at article 9(2)(c)(ii)(ee) which were intended to support the GMC in its management of the ongoing assurance process. Further details of new powers for the GMC relating to the periodic assurance of associates is included at the section of this document which describes the powers at article 7.

Article 9(2)(c)(ii)(ff) is a new power enabling the GMC to remove an associate for failure to comply with a condition on registration. This was added in response to consultation feedback from the regulators to provide an administrative mechanism for the GMC to remove registration as an alternative to using its fitness to practise powers where there is clear evidence that an associate has failed in their duty to follow a restriction that has been placed on their practice.

Some respondents raised concerns that the powers at article 9(2) gave too much discretion to the GMC on whether or not to remove an individual. This drafting is designed to reflect the varied and individual nature and circumstances that may result in the GMC opting to use its powers to remove registrants after it has made enquiries and an assessment of any relevant evidence it may have gathered (for example, after using its powers at schedule 3 paragraph 7). There is a potential safeguard which the GMC may opt to utilise at article 15(1) if it chooses to list decisions at article 9 as ones which are revisable. Article 16(1) also enables the GMC’s decision to be appealed, first to an internal panel and then at article 17(2) to the county court. One respondent commented that the draft order did not include a specific mechanism to remove registrants found to be working outside of their scope of practice. We recognise this concern stems from wider issues raised through our consultation responses around the role of associates within the healthcare system but we are not able to address these specific comments in our consultation response or through the reformed legislation. This is not a prescribed reason for removal at article 9 but the legislation does deliver the necessary powers to the GMC to remove registration where appropriate - for example, using its fitness to practise powers, the periodic assessment procedure or removal for failure to comply with a condition of registration at article 9(2)(c)(ii)(ff). We also note that these concerns should also be managed locally within clinical governance processes and through other system regulation safeguards.

A respondent noted that associates may pre-empt a forthcoming fitness to practise concern being raised with the GMC and ask to be removed from the register before the GMC is aware of the matter. They expressed a concern that these individuals could later register for practise overseas without being accountable for their actions in the UK. As set out in our consultation ‘Regulating healthcare professionals, protecting the public’ at question 37 we recognise these concerns, and this policy continues to be delivered through the discretionary powers for the registrar to remove an associate from the register at their request at article 9(2)(c)(i). Schedule 3 paragraph 1 gives the GMC powers to disclose information about an associate’s fitness to practise where it assesses it would be in the public interest to do so. Schedule 1 paragraph 3(1)(d) also places a duty on the GMC to co-operate with persons concerned with the employment, education or training of associates.

Part 4: fitness to practise

Regulated professionals are required to meet the standards for practising their profession safely and effectively. This is one of the principle means by which regulators ensure public protection. Part 4 of the AAPAO sets out the GMC’s fitness to practise process for associates. More broadly, the government’s fitness to practise reforms will aim to provide greater consistency between regulators’ fitness to practise functions and, overall, deliver a fitness to practise process that is swifter, fairer and less adversarial. We expect that these reforms will benefit all parties involved in fitness to practise proceedings and, most importantly, will ensure swift public protection where needed.

Following analysis of the consultation responses to ‘Regulating anaesthesia associates and physician associates’, we have updated the definition of fitness to practise within the AAPAO. A respondent had highlighted that the definition of fitness of practise proceedings, within the draft order we consulted on, which was ‘proceedings under Part 4’, may have been unduly narrow and unintentionally excluded Part 5 of the draft order (revisions and appeals) from the prohibition on requesting reflective material from associates during fitness to practise proceedings, contained within paragraph 7(5) of schedule 3. We have therefore updated the definition of fitness to practise to ‘Fitness to practise proceedings means proceedings and decisions which relate to consideration of whether a person’s fitness to practise as an associate is impaired’. This is to clarify that reflective material cannot be requested by the GMC during any part of fitness to practise proceedings, including revisions and appeals under part 5.

Grounds for action

In response to ‘Regulating anaesthesia associates and physician associates’ a number of respondents stated that they disagreed with the government’s policy position that there should only be 2 grounds for action: (1) inability to provide care to a sufficient standard; and (2) misconduct. In particular, several respondents were of the view that adverse physical or mental health should be a separate ground for action and some respondents were of the view that the grounds for action within section 35C(2) of the MA 1983, should be the grounds for action for all regulators. In addition, some respondents did respond to say they supported the government’s policy position on grounds for action and welcomed the revised terminology of ‘inability to provide care to a sufficient standard’.

As set out in our consultation response to ‘Regulating healthcare professionals, protecting the public’ we are of the view that where a registrant’s fitness to practise is called into question, it should always be on the basis that they do not meet the required standards of conduct, and/or they have an inability to provide care to a sufficient standard (further background to this change can be found in our previous consultation response).

The 3-stage fitness to practise process

Initial assessment stage

In our consultation, ’Regulating healthcare professionals, protecting the public’, we proposed that all regulators should have a 3-stage fitness to practise process consisting of the initial assessment stage, the case examiner stage and the Fitness to Practise Panel stage. The majority of respondents to the consultation supported a 3-stage fitness to practise process.

In our subsequent legislative consultation, ‘Regulating anaesthesia associates and physician associates’ we proposed that the initial assessment stage should be set out in the GMC’s rules rather on the face of the AAPAO. Respondents agreed that regulators should have a duty to consider a matter referred to them and a discretion to determine whether or not there exists a basis for onward referral in the fitness to practise process. However, there was a mixed response on whether the initial assessment process should be set out in a regulator’s rules or on the face of the AAPAO.

Several respondents disagreed with our policy position that the GMC should be able to set out its initial assessment stage in rules using a rule-making power. The majority of regulators responded to say they did not agree with the government’s view on this. Responses suggested that having the initial assessment stage set out on the face of the AAPAO would lead to consistency across all regulators and would uphold public confidence in the fitness to practise process. Respondents were of the view that clear initial assessment powers were required as a lack of clarity in this area could result in regulators applying different thresholds in regard to the cases they choose to investigate and refer to a case examiner. Following the closure of the consultation we have engaged significantly with the regulators on this issue.

In addition, it was highlighted by the regulators that the omission of an initial assessment stage in the draft order could lead to regulators having increased responsibilities in relation to notification of outcome decisions. Some respondents were of the view that an employer, other regulators, registrants and complainants would have to be notified of the closure of a case during the initial assessment, which is an extension of regulators’ current notification requirements, and which could disproportionately impact registrants.

We have therefore revised the draft order to include an initial assessment stage. Article 10 rather than article 9 of the AAPAO now sets out the steps which may be taken where a question as to fitness to practise arises. Where the GMC considers that a question has arisen as to whether a person’s fitness to practise as an associate is impaired, the GMC will have a duty to consider the matter referred to it and a discretion to determine whether or not there is a basis for onward referral of the case in the fitness to practise process. The GMC must set out in rules the procedure for the initial assessment stage. Furthermore, we have updated paragraph 2(1)(d) of schedule 3 to clarify that the GMC is not required to notify employers, other regulators, registrants and complainants of the closure of cases during the initial assessment stage. However, where the GMC considers appropriate, it may notify an associate that it is carrying out an initial assessment and it may notify them of the outcome decision.

Case examiner stage

The second stage of the fitness to practise process is the case examiner stage. The majority of respondents to ‘Regulating anaesthesia associates and physician associates’ agreed that the powers in the draft order would enable case examiners to carry out their roles appropriately and that the powers would help to ensure the safe and effective regulation of AAs and PAs. A number of respondents highlighted that the case examiner stage would enable more cases to be resolved without the need for a Fitness to Practise Panel stage which would lead to a less adversarial fitness to practise model and which would enable cases to be concluded more quickly. It was stated that this will be beneficial for both registrants and those who raise concerns.

Several respondents raised concerns regarding the number of case examiners that may be appointed to make a determination on a case. ‘Regulating anaesthesia associates and physician associates’ had set out that this would be at the GMC’s discretion and that the GMC would be able to appoint one or more. A number of respondents were of the view that the GMC should have a duty to appoint at least 2 case examiners (a professional and lay case examiner) to make a determination on a case. Some respondents highlighted that a Medical Practitioners Tribunal is made up of 3 people and proposed that 3 case examiners should be appointed to mirror the composition of a panel. However, the government remains of the view that the GMC should continue to have a discretion as to how many case examiners it appoints to make a determination on a case. This is on the basis that, in providing that discretion, the regulator is best placed to assess where multiple case examiners may or may not be required, ensuring a proportionate and timely outcome where cases are referred to case examiners.

By including the initial assessment stage within article 10 of the draft order we were required to amend the definition of ‘case examiner’ as a case examiner will no longer undertake all of the actions within article 10. This revised definition can be found within article 2 of the AAPAO.

Where a question arises as to whether a person’s fitness to practise as an associate is impaired, a case examiner will have to decide whether the associate’s fitness to practise is or is not impaired. Where a case examiner determines that an associate’s fitness to practise is not impaired, they will be able to close the case without taking any further action. A case examiner will also be able to make a finding of no impairment but issue a warning to an associate.

Where a case examiner determines that an associate’s fitness to practise is impaired, they will be able to conclude cases through an accepted outcomes process where the associate accepts both the findings (including impairment) and the proposed measure. Case examiners will have a full suite of final measures available to them including applying conditions to registration, suspension of registration, and removal of registration. As set out in article 13(2) of the AAPAO, the maximum period for which a condition or suspension could be applied is 12 months (although this can be extended by review). A small number of respondents disagreed with the government’s policy proposal that case examiners should be given a full range of measures with which to conclude a case. However, we remain of the view that providing case examiners with all measures will provide for a more responsive fitness to practise process that can deliver public protection more quickly.

A small number of respondents to ‘Regulating anaesthesia associates and physician associates’ raised concern with the definitions of ‘final measure’ and ‘interim measure’ in the draft order. They stated that the definitions were misleading as conditions and suspension are not currently imposed on a registrant’s ability to practise but attached to a registrant’s registration with a regulator. It was suggested that conditions for the purpose of both final measures and interim measures should be defined as ‘a condition on an associate’s entry in one or more parts of the register’. It was also proposed that suspension for the purpose of both final measures and interim measures should be defined as ‘a suspension of an associate’s entry in one or more parts of the register’ and that removal for the purpose of final measure be defined as ‘a requirement that an associate’s entry be removed from one or more parts of the register’. We agree that this clarification is useful and important and have updated the definitions of final measure and interim measure in the AAPAO to reflect this.

Associates will be required to provide a reasoned response to a notification of a proposed accepted outcome from a case examiner, within a timeframe prescribed in the GMC’s rules which may not be less than 28 days beginning with the date on which the associate received the notification. The notification must also have warned the associate that a measure may be imposed if they do not respond to the case examiner. Where an associate accepts the findings and the proposed measure they will be required to provide a reasoned response to a case examiner in order to satisfy the case examiner that they have accepted both the findings and the proposed measure. Where an associate does not accept or disputes the findings and/or the proposed measure, the associate should inform the case examiner and the case will then proceed to the panel stage. A small number of respondents to ‘Regulating anaesthesia associates and physician associates’ did not support the definition of a reasoned response and some provided alternatives. However, we remain of the view that the description is clear and understandable.

Where an associate does not provide a reasoned response to a case examiner’s offer of an accepted outcome within the GMC’s timeframe, a case examiner may impose a final measure upon the associate. This is not an accepted outcome, but a separate power and only applies where the case examiner concludes that the associate’s fitness to practise is impaired.

The draft order placed a duty on the GMC to prescribe in rules the procedure for its case examiner stage. This requirement remains unchanged.

Panel stage

The third stage of the fitness to practise process is the panel stage. The majority of respondents to ‘Regulating anaesthesia associates and physician associates’ agreed that the powers in the draft order enabled panels to carry out their roles appropriately and that the powers helped to ensure the safe and effective regulation of AAs and PAs.

Following a referral of a case, by a case examiner, to a panel, the panel must determine if a person’s fitness to practise is impaired or not. A case examiner may not refer a case to a panel unless the person whose fitness to practise is in question has been given an opportunity to make a written representation beforehand. If a panel determines that a person’s fitness to practise is found not to be impaired it can take no further action or issue an associate with a warning.

Where a panel determines that an associate’s fitness to practise is impaired it will be able to take no action or impose a final measure. Where an associate’s fitness to practise is impaired, it will usually be necessary to take action to protect the public. However, following further engagement with regulators and reviewing the current sanctions available to panels, we understand there may be exceptional circumstances to justify a panel taking no action and agree that this should be provided for in the AAPAO. Where a panel chooses to take action, it will have a full suite of final measures available to it including applying conditions to registration, suspension of registration, and removal of registration. The maximum period for which a condition or suspension can be applied is 12 months although this can be extended following a review of that final measure. A final measure cannot be imposed unless the associate affected has been given an opportunity to make a representation to the panel.

One respondent to ‘Regulating anaesthesia associates and physician associates’ was of the view that a panel should be able to impose conditions and suspensions for a longer period than 12 months as in some cases it may be necessary to extend a suspension on the basis that there has been no change in circumstances. It was felt that a limit of 12 months in these circumstances could lead to needless review hearings for a registrant at an unnecessary financial cost to a regulator. However, we remain of the view that a maximum period of 12 months for which a suspension can be applied to an associate’s registration is sufficient. Regulators will be able to extend this following a review. This will ensure that an associate does not have restrictions on their registration for longer than is required but will also provide regulators with the opportunity to extend orders where there are public safety concerns about a registrant’s practise.

A respondent proposed that there should be an express power within the order that provides case examiners with the ability to cancel referrals to panels. It was stated that this is an important mechanism to achieve proportionality and avoid unnecessary panel hearings taking place. We have therefore updated the AAPAO to include a power allowing a case examiner to withdraw a referral to a panel to subject to the panel not already making a determination on the matter.

The draft order placed a duty on the GMC to prescribe in rules the procedure for its panel stage. This requirement remains unchanged.

The GMC may choose to provide in rules that a panel can consider more than one referral in relation to the same associate at the same time. In response to feedback received, we have updated this provision within the AAPAO so that the GMC may also consider allegations against more than one associate at the same time. The GMC may provide in rules that a panel may join more than one referral and consider them at the same time.

Paragraph 11(1)(b) on rules as to fitness to practise within schedule 4 of the AAPAO sets out the criteria that people need to meet to be able to sit on a Fitness to Practise Panel. A number of respondents to ‘Regulating anaesthesia associates and physician associates’ were of the view that AAs and PAs should be able to sit as registrant members on a panel that is making a determination on an AA or PA’s fitness to practise. The government agrees that AAs and PAs should be able to sit as registrant members on such panels and the AAPAO amends the MA 1983 to permit a registered associate to be appointed to the MPTS, so that they can sit on a panel that is making a determination on an associate’s fitness to practise. However, a registered associate will not be permitted to sit as a registrant member on a Medical Practitioners Tribunal (a panel that is making a determination on a doctor’s fitness to practise) or on an Interim Orders Tribunal (a panel that is determining whether an interim order should be imposed on a doctor).

Interim measures

Interim measures are restrictions on an associate’s registration that a panel can put in place to address a public protection risk and/or an associate protection risk, while their fitness to practise is under consideration. The GMC will be able to consider a case for an interim measure at any point in the fitness to practise process, from initial receipt of the concern until a final outcome is reached. However, only a panel will be able to impose an interim measure on an associate and it may not impose an interim measure for a period longer than 18 months.

If the GMC wishes to extend an interim measure beyond 18 months it will be required to make an application to the High Court in England and Wales, the Court of Session in Scotland, or the High Court in Northern Ireland for an extension. A court will be able to extend the interim measure for a further 12 months with further extensions possible subject to the GMC making further applications to the court. A court will only be able to extend an interim measure on the condition that the period, or the period as previously extended, would not allow enough time, as considered reasonable in the circumstances of the case, for a relevant step within the fitness to practise process to be taken.

We have updated the draft order to include a specific article on interim measures. Previously the interim measures powers were included within article 9 of the draft order on case examiner and panel functions where fitness to practise question arises. The powers are now included within article 11 of the AAPAO, on interim measures, to provide clarity as to when an interim measure may be imposed. The AAPAO sets out that a panel may impose an interim measure on an associate pending an initial assessment decision, a decision by a case examiner or panel, where a question arises as to whether a person is complying with a condition on their registration or during an appeal period where an associate has chosen to appeal the imposition of a final measure to either a panel or, subsequently, a court.

Several respondents to ‘Regulating anaesthesia associates and physician associates’ were of the view that either a public protection test or grounds for imposing interim measures should be included within the draft order. These respondents were of the view that this would provide greater clarity to registrants and the public as to when interim measures will be imposed. We have therefore updated the draft order to include a public protection test that ‘an interim measure is necessary for the protection of the public or is otherwise in the interests of the public or associate.’

Respondents to ‘Regulating anaesthesia associates and physician associates’ agreed that the GMC should only be able to put an interim measure in place for a period of up to 18 months. Respondents were of the view that this would help to ensure that an associate is not subject to conditions or suspension for longer than is necessary. However, some respondents noted that this time limit may be insufficient where an associate is subject to criminal proceedings.

On interim measures extensions, respondents agreed that if the GMC wishes to extend an interim measure beyond 18 months it should be required to make an application to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland for an extension. A court should be able to extend the interim measure for a further 12 months with further extensions possible, subject to the GMC making an application to the court. The drafting of the draft order had stated that the court could impose an interim measure on an associate rather than extend it. A small number of respondents proposed that an amendment should be made to the draft order to clarify that a court may extend the period of an interim measure, rather than impose an interim measure on an associate. We have therefore updated the draft order to clarify that a court may extend an interim measure and not impose one.

Interim measures reviews

Article 12 of the AAPAO sets out the interim measures review provisions. A review of an interim measure by the GMC must take place before 6 months starting on the date on which the measure was imposed. Any subsequent reviews of the measure must also take place before the end of a period of 6 months. In addition, an associate can request an early review of an interim measure at any time. However, such a review is at the GMC’s discretion.

Some respondents did not agree with the government’s policy position that case examiners should be able to review interim measures and were of the view that only panels should be able to do this. Furthermore, some respondents were of the view that case examiners should only be able to review interim measures if the registrant and case examiner are both of the view that the interim measure should remain in force. The government remains of the view that both case examiners and panels should be able to review interim measures as this will lead to a more responsive and timely fitness to practise process.

A small number of respondents proposed there should be an express power within the draft order to allow an associate to be able to request an early review of an interim measure. Article 12(3) of the AAPAO sets out that the GMC may at any time review an interim measure which remains in force, including where a question arises as to whether an associate is complying with a condition on their registration. We are of the view that this encompasses the circumstance where an associate requests an early review of an interim measure and the GMC permits it.

A number of respondents highlighted that the draft order did not set out whether the GMC would be able to extend the duration of an interim measure, vary a condition to which the associate’s entry is subject, revoke an interim measure or substitute an interim measure for another measure on review. Respondents were of the view that the GMC’s review powers needed to be set out in the order. The AAPAO has been updated to include the GMC’s review powers.

Following a review of an interim measure the GMC may choose to make no changes to the interim measure or it may choose to extend the duration of the interim measure, vary a condition to which the associate’s entry is subject, extend and vary a condition to which the associate’s entry is subject, or substitute an interim measure for another measure if the interim measure remains necessary for the protection of the public or remains in the interests of the public or registrant. The GMC will only be able to revise an interim measure if the person affected has been given the opportunity to make a representation beforehand. In addition, an interim measure may be revoked if the measure is no longer necessary for the protection of the public or is no longer in the interests of the public or associate.

Where the GMC undertakes a review of an interim measure, it may not impose a new or keep in place an existing interim measure, where doing so would result in the affected associate being subject to an interim measure of any nature for longer than 18 months. This will only be possible where the GMC has made an application to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland.

Final measures and final measures reviews

Case examiners and panels will have a full suite of final measures available to them when imposing a final measure including applying conditions to registration, suspension of registration, and removal of registration. When imposing a final measure (other than removal), a case examiner or panel must specify the period for which the final measure is to apply, and they may not specify a period of longer than 12 months.

In response to ‘Regulating anaesthesia associates and physician associates’ several respondents stated that the draft order did not include powers allowing the GMC to carry out reviews of final measures. A review of measures allows a regulator to assess whether a registrant poses any current or ongoing risk to public protection before a final measure of conditions or suspension expires. It was stated that the draft order only provided powers in relation to the revising of a final measure decision where certain grounds have to be met for a review to be carried out, which was different to a review of final measures by a regulator.

We have therefore updated the AAPAO to include a specific article on final measures (article 13) and a separate article on final measures reviews (article 14).

Article 14(1) sets out that the GMC may review a final measure if the person’s entry in the register is subject to a condition or is suspended and where a question arises as to compliance with a condition on that person’s registration. On a review of a final measure, the GMC may revoke the measure if, in its opinion, the fitness to practise of the associate in respect of whom the final measure is imposed is no longer impaired. The GMC may also choose to make no changes to the final measure or it may choose to extend the period specified in relation to the original final measure, vary a condition to which an associate’s entry is subject, extend and vary a condition to which an associate’s entry is subject or substitute the final measure for another measure if, in the opinion of the GMC, the fitness to practise of the associate in respect of whom the final measure is imposed remains impaired. The GMC will only be able to extend the duration, vary a condition to which the associate’s entry is subject, extend and vary or substitute the final measure if the person affected has been given an opportunity to make a representation beforehand.

Some respondents to ‘Regulating anaesthesia associates and physician associates’ were of the view that there should be an express provision on the face of the order allowing the GMC to review a final measure where there has been a breach of the measure rather having this provision set out in the GMC’s rules. These respondents were of the view that allowing regulators to set out consequences of non-compliance with interim and final measures within rules would lead to inconsistent processes across regulators. Respondents were also of the view that this provision should be on the face of the order so that there was a clear appeal right for both associates and people prescribed in rules against decisions to change final measures following a breach. Including a provision in the order would also provide clarity regarding the powers the GMC has in relation to extending or varying a final measure following a breach.

On the basis of that feedback, with which the government agrees, article 14(1) sets out that the GMC may review a final measure which remains in force where a question arises as to compliance with a condition on a person’s registration. We have removed the provisions which were set out in paragraph 6 of schedule 4 of the draft order which allowed the GMC to prescribe in rules the consequences for non-compliance with an interim and final measure. Where the GMC undertakes a review of a final measure following a breach, it may extend the period of the measure or vary a condition to which an associate’s entry is subject or extend and vary a condition to which an associate’s entry is subject or substitute a final measure for another measure. This is now set out on the face of the AAPAO.

The rule-making powers within paragraph 6(3)(a) of schedule 4 of the AAPAO on rules as to panels allow the GMC to make rules on its process for case management.

We have also updated the notifications requirements in paragraph 2(1)(c) of schedule 3 of the AAPAO so that the GMC must notify an associate of a final measure review decision. The notification must be accompanied by:

• a statement of the reasons for the decision
• information regarding any right of appeal against the decision

An associate will have a right of appeal to a panel, with a subsequent right of appeal to the courts, against a final measures review decision or a part of the decision. Where an appeal is brought against a decision or a part of the decision and the decision, or part of the decision, is revoked or revised, before the appeal is determined, the appeal or the part of the appeal which relates to the revoked or revised part of the decision will lapse.

Furthermore, an associate’s employer, any other regulatory body with which the associate is registered and the complainant(s) (unless the complainant(s) does not wish to receive updates on the fitness to practise case) must be notified of a decision to revoke a final measure, extend the duration of a final measure, vary a condition to which the associate’s entry is subject, extend and vary or substitute a measure following a review of a final measure.

Part 5: revision and appeals

Respondents’ views on whether the draft order provided the GMC with proportionate and sufficient powers in relation to the revision of decisions concerning the regulation of AAs and PAs were split.

Some respondents also asked us to take into account their response to whether the draft order provided individuals with proportionate and sufficient appeal rights in respect of decisions made by the GMC and its panels.

A number of respondents were of the view that the revision of decisions article and the article on appeals appeared to provide a registrant with a right of appeal against a decision to the courts as well as the ability to request that the GMC undertake a review of the same decision, which could lead to confusion for all parties involved. It was stated that this had the potential to create a protracted dispute resolution process. We are mindful that regulatory reform should equip regulators with powers that enable them to deliver a proportionate and efficient avenue of redress, and we recognise that delays to a case’s resolution can have negative impacts on both registrants and people who raise concerns. In addition, the regulators were clear in their feedback that the outcome of the current model undermined the objectives of the regulatory reform programme by not enabling them to streamline processes to the extent intended so that they can make effective use of their resources and, in turn, registrant fees.

We have therefore updated the revisions and appeals articles in response to respondents’ feedback - in particular, the detailed feedback from regulators which presented a strong case that the drafting on revisions could be improved to facilitate the GMC’s operational requirements and make the legislation more accessible for the reader.

Revision of decisions

Respondents welcomed the government’s policy position that regulators should have powers allowing them to review and change incorrect decisions which would be separate to an appeals process. However, several respondents, including the regulators, were of the view that the draft order did not achieve this. These respondents were of the view that the revision of decisions drafting was hard to follow and complex and could lead to a registrant or applicant for registration not understanding the revision of decisions process.

Several respondents were of the view that the powers in relation to the revision of education and training, registration and fitness to practise decisions should be separated out in the draft order as including them all in one article could lead to confusion. It was also highlighted that the interplay between the article on revision of decisions and other articles was not always clear, such as its interaction with the article on review of an interim measure and imposition of a further interim measure by a court.

Furthermore, some respondents were of the view that the draft order conflated a routine review by a regulator of a final or interim measure with the more general power to review decisions which could lead to a regulator changing a decision because it was incorrect. It was highlighted that these were 2 separate actions undertaken by a regulator and should be contained in separate articles within the draft order.

We have therefore significantly updated the revision of decisions article. We have moved the powers in relation to a routine review of an interim measure into article 12 and a routine review of a final measure into article 14. Article 15 is now the article on the general power for revisions of decisions and sets out the powers the GMC has to change a decision separate to the internal and external appeal processes.

Article 15(1) of the AAPAO sets out that the GMC has the power to revise a decision of its own volition. This gives the GMC the flexibility to consider a revision either on receipt of new information received from an associate or applicant or where other internal processes such as an audit may uncover a need to amend a decision. Previously, article 11(1) of the draft order prescribed a list of decisions which the GMC had the power to revise, and paragraph 11(a) of schedule 4 provided the GMC with the ability to exclude cases or circumstances in rules in which it would not exercise its revision power. However, the regulators fed back that it would be preferable to have the revisable decisions set out in rules rather than on the face of the draft order. We have therefore removed the list of decisions from the AAPAO and paragraph 11(a) and updated the AAPAO so that paragraph 3 of schedule 4 (rules as to revision of decisions) sets out that the GMC must prescribe in rules the decisions it may revise under article 15.

Article 15(2) sets out the grounds for a decision being revised by the GMC. Responses to ‘Regulating anaesthesia associates and physician associates’ proposed that the article on revisions should confer on a regulator the power to revise specified decisions with regulators able to determine the criteria by which such revisions will be made rather than having grounds for a revision set out in the AAPAO. However, we remain of the view that for clarity, the AAPAO needs to include grounds for which a decision to revise has been made. Article 15(2) of the AAPAO sets out that the GMC may revise a decision if:

• the decision was based on an error of fact or law
• except in respect of a determination under article 10(2) to (5) and (8) (fitness to practise) and 11(1) (interim measures), a material change in circumstances has occurred since the decision was made

Following consultation, we have made a minor amendment to the second ground at article 15(2) by including a fitness to practise exemption. This exemption does not include the initial assessment stage because the GMC may need to revise a decision made at the initial assessment stage to close a case. For example, the GMC may have closed a case at the initial assessment stage and subsequently a new concern about the same associate may be received by the GMC. Following an investigation into the new concern, the GMC may need to re-open the original case because the subsequent concern raises issues pertinent to its original decision, insofar as there has been a material change of circumstance.

Case examiner and panel decisions made under articles 10(2) to 10(5) and 10(8) and a panel’s decision to impose an interim measure under article 11(1) are exempt from the second ground. This is because a case examiner or panel has made a determination that an associate is impaired and imposed a final measure at a set point in time. While circumstances may change and the associate may no longer continue to be impaired, this does not affect or change the finding of impairment at the time of the original case examiner or panel decision. This also applies to the imposition of an interim measure by a panel. The panel will have considered that the interim measure was necessary for the protection of the public or in the interests of the public or registrant at a specific point in time.

Article 15(3) of the AAPAO sets out that the GMC may not revise a decision in order to:

• extend the period for which a final measure or an interim measure is to remain in force
• vary a condition to which, by virtue of a final measure or interim measure, a person’s entry in the register is subject

Article 15(4) sets out that for the purpose of any rule as to the time allowed for bringing an appeal to either a panel or court, the decision revised under this article is to be deemed made on the date on which it is so revised.

Article 15(5) sets out where an appeal is brought against a decision or part of a decision, and the decision, or part of it, is revised under this article before the appeal is determined, the appeal (or the part of the appeal which relates to the revised part of the decision) will lapse.

Article 15(6) sets out that a decision referred to in article 15(1) includes a decision:

• as previously revised under this article
• as amended following an appeal to a panel

We are of the view that the updated revision of decisions drafting provides a clear and transparent route to challenge a decision made by the GMC while still providing the GMC with the flexibility it has asked for to revise decisions of its own initiative in circumstances it defines in rules. As such, the revision powers available to the GMC are such that, where necessary, a decision can be changed without use of the internal or court appeal processes.

Appeal to a panel and appeal to a court 

Respondents’ views on whether the draft order provided individuals with proportionate and sufficient appeal rights in respect of decisions made by the GMC and its independent panels relating to the regulation of AAs and PAs were split.

Respondents agreed with the government’s policy position that there should be a right of appeal against decisions made by the GMC or its panels on the face of the draft order. However, several respondents were of the view that the drafting was overly complex and not easily understandable. These respondents highlighted that as these provisions relate to the rights of individuals the drafting needs to be clear so that it can be easily understood.

Respondents to the consultation highlighted how the article on appeals did not always meet the government’s policy intention. For example, the appeal provision at article 12(1)(f) of the draft order allowed for appeals against decisions made under article 11(1) or (2). This drafting enabled a person to appeal the secondary decision of the regulator to not revise its original decision. This was not the government’s policy intention both because it creates a protracted and confusing model of redress that is likely to result in further delays to a professional obtaining clarity on the outcome of their case and because it is not workable for regulators. We agree with respondents that a proportionate appeals mechanism should provide a route for registrants or applicants to challenge a decision made by the regulator. However, we are of the view that this should be focused on a primary decision affecting their registration or practise, and not the secondary decision of whether a regulator has agreed to revise its decision.

It was our original policy intention for a sequential mechanism of appeal, with associates being required to follow an onward right of appeal through an internal panel mechanism, with final redress to either the High Court in England and Wales, the Court of Session in Scotland, the High Court in Northern Ireland, the County Court or a sheriff. The draft order inadvertently provided a parallel route of appeal to an internal panel and external court for some decisions.

Responses to ‘Regulating anaesthesia associates and physician associates’ highlighted concerns about access to redress via the courts due to the cost for registrants and the impact of delays in the court system on ability to earn an income, maintain practise, and registrant wellbeing and mental health. The GMC’s existing legislative framework in respect of doctors sets the precedent for a sequential appeal route for appeals against registration decisions. Evidence gathered during our policy development, consultation with the regulators and the responses to our public consultations are broadly supportive of a sequential appeals model for specific registration and fitness to practise decisions. The PSA publishes an annual review of each healthcare regulators’ performance against its Standards of Good Regulation, which currently includes an assessment of timescales for resolving fitness to practise cases and registration cases. The PSA will therefore have oversight of the GMC’s operational processes relating to panels under the reformed legislation which will be an important safeguard in monitoring associates’ access to redress.

Our view is that limiting a challenge to a decision made by the GMC to an internal panel in the first instance will provide a more proportionate, accessible and faster mechanism of appeal that is not dependent on the external court system. Article 17(4) now makes clear our intention that an appeal to an internal panel must first be exhausted before accessing an appeal through the relevant court.

We have therefore made changes to the appeals articles to clearly set out that an internal appeal followed by an appeal to the court will be available to associates and people prescribed in the GMC’s rules against some of the decisions made by the GMC and its panels. Our changes are set out below.

Appeal to a panel

Article 16(1) sets out the decisions which are appealable to a panel. Below is a list of those decisions that will be appealable to a panel in the first instance:

Registration decisions

• Article 6(1) - where the registrar is not satisfied that an applicant meets the standards and requirements for registration

• Article 6(3) - where a prescribed decision-maker (not a panel) is not satisfied that an applicant has met the standards for registration and/or a prescribed decision-maker (not a panel) is not satisfied that an applicant has satisfied that their fitness to practise is not impaired

• Article 7 - where a registrant has not met the standards determined under article 3(1) which have been prescribed under paragraph 14 of schedule 4

• Article 8 - where the regulator has placed a condition on the registration of an associate

• Article 9(2) - where the registrar has determined that an entry should be removed from the register

Fitness to practise decisions

• Article 10(3) - where a case examiner determines that an associate’s fitness to practise is not impaired and takes no further action

• Article 10(3) - where a case examiner determines that an associate’s fitness to practise is not impaired but issues a warning

• Article 10(3) and 13(1) - where a case examiner determines that an associate’s fitness to practise is impaired and an associate accepts both the findings (including impairment) and the proposed measure through an accepted outcome

• Article 10(3) and 13(1) - where a case examiner determines that an associate’s fitness to practise is impaired and imposes a final measure on a non-responding registrant

• Article 12(4) - where the GMC extends, varies or substitutes an interim measure for another interim measure following a review

• Article 14(3) - where the GMC extends, varies or substitutes a final measure for another measure following a review

A small number of respondents did not agree that there should be a right of appeal where a case examiner has found an associate’s fitness to practise to be impaired and the associate has accepted the proposed outcome and measure. These respondents were of the view that in this circumstance the registrant should not have accepted the case examiner’s findings and proposed measure and the case should have proceeded to the panel stage for a determination rather than to an appeal of an accepted outcomes decision. However, a respondent stated that they supported there being an appeal right against an accepted outcomes decision as not all registrants will have access to trade union or legal representation. In addition, some respondents were of the view that there should not be an appeal right where a case examiner has found that an associate’s fitness to practise is not impaired but has issued a warning.

We remain of the view that an associate should have a right of appeal against an accepted outcomes decision. For example, an associate may have agreed to an accepted outcomes decision because they were subject to duress or coercion by another healthcare professional to accept responsibility for a person’s insufficient care. In these circumstances it is only right that associates should have a right of appeal against the final measure that was imposed on them.

Article 16(2) of the AAPAO sets out that a person who wishes to appeal one of the above decisions set out in article 16(1) must seek permission to do so from the GMC within 28 days beginning with the date on which the decision was notified to the person.

Article 16(3) sets out following receipt of an application for permission to appeal, the GMC may:

• grant permission
• refuse permission
• where the rules as to revision of decisions permit (paragraph 3 of schedule 4 of the AAPAO) revise the decision under article 15 (revision of decisions)

Several respondents to ‘Regulating healthcare professionals, protecting the public’ were of the view that an internal appeal route should firstly be open to associates with a subsequent appeal route to the courts. These respondents were of the view that an appeal route to the court was expensive and not always easily accessible. We have therefore updated the AAPAO to include a clear internal appeal route against specified decisions made by the GMC, other than by its panels, with a subsequent appeal route to the courts.

Article 16(4) permits additional persons prescribed in the GMC’s rules to be able to appeal to a panel against one of the above decisions. The GMC therefore has the flexibility to allow persons other than an associate to appeal against a case examiner’s decision that an associate’s fitness to practise is not impaired.

Article 16(5) sets out that on appeal the panel may:

• dismiss the appeal
• quash the decision under appeal
• substitute for the decision under appeal a decision that could have been made
• remit the matter to be disposed of in accordance with directions

Article 16(6) sets out that an appeal is not permitted against an article 16(1) decision on the ground that the person has not:

• applied for registration under article 6 (registration) in accordance with procedural rules (made under paragraph 4(1)(a) of schedule 4) or
• paid a fee payable in accordance with rules as to fees (made under paragraph 8 of schedule 4)

Some respondents queried the exclusion of an appeal where the relevant fee has not been paid or a person has not applied for registration in line with procedural rules at article 15(6) and article 16(7) of the draft order. This policy was set out in ‘Regulating healthcare professionals, protecting the public’ and is intended to encourage compliance with correct procedure and in the interests of efficiency for the regulator and the courts, value for money and swift case resolution for applicants and registrants, ensures that only substantive issues can be appealed. Where a fee is subsequently paid or an application resubmitted using the correct procedure, regulators have the discretion to either consider it as a new application or determine in rules at paragraph 3 of schedule 4 if it will revise its original decision using the powers at article 15(1) and (2)(b).

Article 16(7) sets out that reference to a decision under article 16(1) includes a decision:

• as previously revised under article 15 (revision of decisions) and
• as amended following a Court’s decision to remit the matter to be disposed of in accordance with directions

Appeal to a court

The provisions in relation to an appeal to a court are now within article 17 of the AAPAO.

Respondents to the consultation had highlighted that in Scotland there is not a county court and the relevant route of appeal for some registration decisions would be to a sheriff. Therefore, we have updated the interpretation section of the AAPAO to reflect this. The AAPAO now sets out that ‘court’, except in the terms ‘county court’ and ‘relevant court’, means:

(a) in the case of a person whose address is shown in the register, or would have been so shown if the person were registered, as being:

• in Scotland, the Court of Session
• in Northern Ireland, the High Court of Justice in Northern Ireland and

(b) in any other case, the High Court of Justice in England and Wales

Articles 17(1) and 17(2) set out the appealable decisions to a court.

Following an appeal to a panel, an applicant for registration or associate will have a subsequent right of appeal against the following registration decisions to the county court or a sheriff:

• article 6(1) - refusal to register a person as they have not satisfied the registrar that they meet the standards and requirements for registration
• article 8 - decision by the GMC to impose conditions on the registration of an associate
• article 9(1)(a) - removal of a person where the registrar is satisfied the person has died
• article 9(2) - removal where registration was procured fraudulently or made incorrectly
• article 9(2) - removal where a registrant does not meet the standards determined by the regulator or revalidation
• article 9(2) - removal where a registrant has requested the removal
• article 9(2) - removal where a person has not complied with an evaluation procedure prescribed in rules
• article 9(2) - removal where a person does not have an indemnity arrangement, insurance policy or combination thereof in force which provides appropriate and adequate cover in relation to their practice as an associate
• article 9(2) - removal where a person has not maintained an effective means of contact with the registrar
• article 9(2) - removal where a person has not provided information in accordance with a requirement of, or made under, the AAPAO

Article 17(3) sets out that for the purposes of article 17(2) the relevant court means a County Court or, in Scotland, the sheriff in whose sheriffdom is situated the address - which is shown in the register as the address of the person who is appealing or which would have been so shown if the person were registered.

An associate will have a direct right of appeal to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland against the following fitness to practise decisions. An internal appeal route to a panel against these decisions is not permitted within the AAPAO:

• article 10(5) - where a panel determines that an associate’s fitness to practise is not impaired but issues a warning
• article 10(5) - where a panel determines that an associate’s fitness to practise is impaired but takes no further action
• article 10(5) and 13(1) - where a panel determines that an associate’s fitness to practise is impaired and imposes a final measure
• article 11(1) and 11(2) - where a panel imposes an interim measure
• article 6(2) - where an applicant for registration, who was previously removed from the GMC’s register, due to the imposition of a final measure, is refused restoration to the register
• article 9(1)(c) - where an associate’s register entry is removed from the register, following a conviction for a listed offence set out within schedule 2 of the AAPAO

Following an appeal to a panel, an associate will have a subsequent right of appeal to the High Court in England and Wales, the Court of Session in Scotland, or the High Court in Northern Ireland against one of the following decisions:

• article 6(3) - where a prescribed decision-maker (not a panel) is not satisfied that an applicant has met the standards for registration and/or a prescribed decision-maker (not a panel) is not satisfied that an applicant has satisfied that their fitness to practise is not impaired
• article 7 - where a registrant has not met the standards determined under article 3(1) which have been prescribed under paragraph 14 of schedule 4
• article 10(3) - where a case examiner determines that an associate’s fitness to practise is not impaired and takes no further action
• article 10(3) - where a case examiner determines that an associate’s fitness to practise is not impaired but issues a warning
• article 10(3) and 13(1) - where a case examiner determines that an associate’s fitness to practise is impaired and an associate accepts both the findings (including impairment) and the proposed measure through an accepted outcome
• article 10(3) and 13(1) - where a case examiner determines that an associate’s fitness to practise is impaired and imposes a final measure on a non-responding registrant
• article 12(4) - where the GMC extends, varies or substitutes an interim measure for another interim measure following a review
• article 14(3) - where the GMC extends, varies or substitutes a final measure for another measure following a review

Previously, the draft order set out that where a panel has found an associate’s fitness to practise to be impaired and the panel has imposed a final or interim measure on an associate, the associate will have a right of appeal to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland on the ground of error of law. Several respondents disagreed with this and were of the view that the drafting should mirror section 40 of the MA 1983 so that the ground for appeal is not restricted to error of law. This approach is contained within other regulators legislation, for example the Opticians Act 1989. Following feedback, we have removed the ground of error of law from the AAPAO. The AAPAO now no longer contains any restrictive grounds.

‘Regulating anaesthesia associates and physician associates’ set out that where a former associate’s application for restoration to the register is refused by the GMC, the applicant would have a right of appeal to the courts. Where an applicant was removed from the register due to the imposition of a final measure which was imposed due to a determination of impaired fitness to practise, and the former associate’s application for restoration is refused, the applicant would have a direct right of appeal to the High Court in England and Wales, the Court of Session in Scotland, or the High Court in Northern Ireland. Where a former associate was removed from the register for a non-fitness practise reason, for example, failure to pay a renewal fee, and their application is refused, they would be able to appeal to a panel with a subsequent right of appeal to the county court or a sheriff.

Responses to the consultation highlighted concerns that the restoration to the register appeal routes were unnecessarily burdensome, confusing for registrants, and difficult for regulators to manage within their operational processes. The draft order delivered our overall policy intent of requiring one or more prescribed decision-makers to be satisfied that a professional’s fitness to practise is not impaired and that they met the regulator’s registration criteria before a former associate could be restored to the register. However, where a refusal decision by the GMC to restore an applicant to the register was appealed, the different elements of that decision spanned 2 separate court jurisdictions. For example, the registration element would go to either the county court or a sheriff based on the applicant’s country of residence and the fitness to practise element would go to either the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland.

We recognise the strength of the evidence presented by the consultation responses that this drafting created a protracted and overlapping process which would likely cause confusion and delay the resolution of restoration to the register cases. As a result, we have updated the AAPAO so that an applicant only has a right of appeal to either the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland.

As outlined in the section of this document referencing the GMC’s powers at article 6 in relation to restoration, the drafting in respect of restoration initial decisions has also been restructured so the appeals drafting at articles 15 and 16 has subsequently been revised in line with these changes.

For cases decided at article 6(2), as a panel will have been involved in all or part of the restoration decision, in line with our sequential approach to appeals, those cases only have a right of appeal directly to the High Court in England and Wales, the Court of Session in Scotland, or the High Court in Northern Ireland at article 17(1).

The GMC has discretion to determine the decision-maker for both the fitness to practise and registration elements of the decision for cases decided using powers at article 6(3) of the draft order. Where a panel has not been involved in either part (a) or part (b) of the decision, we think it is appropriate for an associate to have the opportunity to challenge the GMC’s decision through an internal panel. This was previously shown at article 12(1)(b) of the draft order and is now covered by drafting at article 16(1).

Where a panel is the prescribed decision-maker for one or both elements of the restoration decision at article 6(3), then in line with the approach taken for cases decided at article 6(2), the only avenue for challenging such cases is through the High Court in England and Wales, the Court of Session in Scotland, or the High Court in Northern Ireland.

Article 17(4) sets out that where an associate has sought permission from the GMC to appeal to a panel, an appeal to the High Court in England and Wales, the Court of Session in Scotland, the High Court in Northern Ireland, County Court or a sheriff cannot commence unless:

• permission to appeal to a panel has been refused by the GMC or
• the panel has disposed of the appeal (for example, it has dismissed the appeal, quashed the decision under appeal, substituted the decision under appeal for a decision that could have been made or remitted the matter to be disposed of in accordance with directions)

Article 17(5) sets out that an appeal to the High Court in England and Wales, the Court of Session in Scotland, the High Court in Northern Ireland, the County Court or sheriff must be commenced within 28 days beginning with the date on which:

• the decision
• a revision to the decision under article 15 (revision of decisions)
• a refusal of permission to appeal under article 16 (appeal to a panel)
• the determination of an appeal against the decision under article 16 (appeal to a panel)

was served on the associate or applicant for registration.

Article 17(6) states that on appeal, the High Court in England and Wales, the Court of Session in Scotland, the High Court in Northern Ireland, the County Court or sheriff may:

• dismiss the appeal
• quash the decision under appeal
• substitute for the decision under appeal a decision that could have been made
• remit the matter to be disposed of in accordance with directions

Article 17(7) sets out that the High Court in England and Wales, the Court of Session in Scotland, the High Court in Northern Ireland, the County Court or sheriff may make any order as to costs as it thinks fit.

Article 17(8) sets out that no appeal can be made against a decision solely on the grounds that the person has not: 

• paid a fee payable in accordance with rules as to fees (made under paragraph 8 of schedule 4) or
• applied for registration in accordance with procedural rules (made under paragraph 4(1)(a) of schedule 4)

Article 17(9) sets out that reference to a decision in article 17 includes a decision: 

• as previously revised under article 15 (revision of decisions)
• as amended following an appeal under article 16 (appeal to a panel)

Part 6: miscellaneous

Opportunity to make representations

A small number of respondents were of the view that there was inconsistency in the draft order in relation to representations. Respondents highlighted that in some articles the draft order enabled associates to make written representations, whereas in other articles oral representations were permitted (as well as where a panel hearing is convened). It was proposed that this may lead to a protracted decision-making process. For clarity, we have updated the AAPAO to remove the prescriptive detail on the types of representations that can be made before a substantive decision is made by the GMC or one of its panels.

The draft order had set out that a panel may not impose an interim measure on an associate unless, where practicable, that associate has been given an opportunity to make representations beforehand in writing or, if the associate chooses, orally. A small number of respondents had raised concern with the terminology of ‘where practicable’. Respondents highlighted that the consultation response did not set out how ‘where practicable’ is intended to operate and were unclear on how this will be determined. We have amended the provision to, ‘where practicable, representations made by an associate will be considered prior to a decision being taken under article 11(1)’ (interim measures). We remain of the view that the terminology of practicable provides the GMC with flexibility as there may be some instances where an associate cannot make a representation beforehand because a panel needs to impose an interim measure quickly to protect the public or because it is in the interests of the public or associate.

Article 13(5) of the draft order set out that representations may, if the associate chooses, be made by a representative. Some respondents to the consultation queried the lack of clarity and detail around representatives and raised concern that only specific decisions permitted representations through a representative. These respondents were of the view that it was unnecessary to prescribe limitations on representations by a representative.  We have therefore removed this article from the AAPAO as we expect the GMC to publish detailed guidance on representatives and representations.

Offences relating to registration, and so on

See also the section of this document ‘Schedule 2: listed offences’.

Registration offences

The majority of respondents agreed that the offences in the draft order are sufficient to ensure public protection and to maintain public confidence in the integrity of the AA and PA professions. There have been no changes to the drafting in respect of article 19 offence relating to, for example, registration.

Regulators queried the terminology of ‘approved qualification’ as set out at articles 2(1) and 4 of the draft order. They felt that use of this term in respect of the registration offences at article 14(1) (now article 19) was not clear whether it included overseas qualifications accepted by the regulator for registration purposes at article 4(1)(c). As outlined in the section of this document which refers to the changes to article 4, we have clarified the definition of approved qualification in the interpretation section so that it only captures qualifications conferred either inside or outside the UK at article 4(1)(a)(ii).

There were some comments received about the drafting at article 19 (previously article 14) which requires that for an offence to be committed there must be the intent to deceive. As set out in the government response to question 31 of ‘Regulating healthcare professionals, protecting the public’, our policy position remains that prosecutions relating to the new offences will need to demonstrate that there was an intentional misuse of a protected title, with the intent to deceive others.

The majority of comments from respondents focused on concerns that associates may misrepresent themselves as being doctors and felt that there should be an offence for associates to reflect this. We recognise these comments stem from wider concerns raised through consultation responses about the scope of practise of associates, their use in the healthcare system and the public’s perception and understanding of the role of AA and PAs. This consultation is seeking views on the draft legislation to regulate the AA and PA professions, and not the role the profession will play within the healthcare system. The offences listed at section 49 of the MA 1983 in respect of pretending to be registered with the GMC as a doctor are unaffected by the offences set out in the AAPAO and those protections will remain in place and be reviewed separately when we come to reform the GMC’s legislation in respect of doctors.

Suggestions around the proposed protected titles were made under various questions. Although the PA profession is still considered relatively ‘new’ in the UK, PAs have been practising in the UK since 2002. The title of ‘physician associate’ is therefore well established among the NHS workforce and regulation by the GMC will help to embed this further by making it easier for employers, patients and the public to understand the relationship between this role and that of doctors. AAs have been working in the UK since 2004 under various titles and have been called ‘anaesthesia associates’ since 2019.

We are clear that service users should always be clear on who they’re being treated by. The AAA has produced a patient leaflet to explain the AA role and how they are trained (see under ‘Patient information’). In October 2023, the FPA published  Physician associate title and introduction guidance for PAs, supervisors, employers and organisations. The document gives PAs, supervisors, employers and organisations a structured and standardised way of using the ‘physician associate’ title.

Schedule 1: the regulator

Schedule 1 provides powers and duties in relation to the regulator and sets the basic framework for the way the GMC will operate to regulate AAs and PAs. As previously set out, the GMC’s overall governance framework will continue as under the MA 1983 after the AAPAO comes into effect.

The majority of people who responded agreed with the proposed powers and duties included in schedule 1. However, there were some comments in relation to the drafting and seeking clarity on policy intention which we have considered and made changes to the AAPAO where appropriate.

GMC functions

The functions of the GMC are set out in both the MA 1983 and the AAPAO. The legislative framework provides for the GMC to carry out preventative actions to cover things such as setting standards and checking they are met, approvals of education and training, making administrative removals, disclosing information and compiling reports under section 52A of the MA 1983.

Delegation

Schedule 1, paragraph 2 gives the GMC the power to delegate a function to another person within the organisation or any other person or third party where it is likely to lead to an improvement in the exercise of the function (subject to paragraph 8 of schedule 3 to the Health Act 1999). Functions, other than rule-making functions, may be delegated wholly or partly, generally, or only in specific circumstances, unconditionally or with conditions.

We received comments in several areas of this provision which has been amended as a result. One area of concern was regarding the drafting not being clear enough that the GMC can delegate decision-making several times within its organisation from the person that holds the power - for example, the regulator or the registrar. The draft order has been amended to make it clear that a member of the regulator to whom a function has been delegated is allowed to sub-delegate that function to internal or external parties. External parties to whom functions are delegated, however, are prohibited from sub-delegating. However, it remains that the accountability of the GMC for any delegated functions cannot be delegated.

The drafting has also been amended to ensure the GMC can delegate functions, other than rule-making functions, to a panel or the MPTS to ensure they are carried out by the most appropriate means - for example, to delegate part of the fitness to practise process to the MPTS or to delegate the power to revise certain decisions to a panel. Without the new power to allow functions to be delegated to a panel or MPTS, the GMC would not have the necessary resource, particularly in respect of fitness to practise proceedings, to efficiently and effectively regulate AAs and PAs. ‘MPTS’ has also been added to the list of definitions in article 2.

Finally, the AAPAO also contains a specific power for the GMC to discharge a function delegated to it by another person. The previous version of the draft order relied on incidental powers to do this. The power now provides clarity that the GMC can discharge a function delegated by another person and removes any doubt as to whether carrying out another regulator’s function would fall within the remit of its incidental powers. This power has been provided to ensure that, where possible, efficiencies across the regulatory system are realised. For example, it may be that multiple professionals across a number of regulators all require a specific type of training provided by a higher education institution (HEI). Using these powers, a single regulator could approve that institution on behalf of other regulators and avoid a situation where multiple regulators are approving a training provider against the same standards.

Interaction with the MA 1983

There are some areas of the AAPAO that interact directly with the MA 1983, so in various places throughout, both pieces of legislation need to be considered in conjunction with each other. Examples of these are the GMC’s overarching objectives (whereby part is set out in section 1(1B) of the MA 1983 and part in schedule 1, paragraph 3(1) of the AAPAO) and the duty to co-operate (whereby part is set out in schedule 1, paragraph 9A(1)(b) of the MA 1983 and part in schedule 1, paragraph 3(1)(d) of the AAPAO).

New legislation cannot duplicate existing legislation and therefore we have added references from the MA 1983 into the AAPAO where it is most useful to assist the reader. We recognise that this may result in those reading the legislation to cross-refer between the AAPAO and the MA 1983 and will seek to address this in the second order for the GMC in respect of doctors.

Incidental powers

Incidental powers allow the GMC to do anything which appears to it to be incidental or conducive to the purpose of, or in connection with, the performance of the GMC’s functions in relation to the regulation of AAs and PAs. This includes paying members and staff remuneration, pensions, expenses, allowances or gratuities, and borrowing. The GMC may also make arrangements for the provision of advice, assistance, accommodation, services, and other facilities for a panel, including those with the MPTS established under the MA 1983.

Some of the comments felt reliance on incidental powers was not always sufficient or appropriate and we have therefore considered these and added specific powers where we agreed, and it was felt those interacting with the legislation would benefit from clarification. The comments which have not been taken further relate to legislation that already exists within the MA 1983 - that is, the incidental powers in the AAPAO relate to AAs and PAs, and incidental powers within the MA 1983 will still apply. Incidental powers within the MA 1983 already cover, for example, establishing and abolishing sub-committees and council proceedings in the event of a vacancy. Some comments also related to policies that will form part of the second order for the GMC - for example, replacing its 2-tier Council with a unitary board.

As set out in the delegation section above, the AAPAO now includes a power for the GMC to discharge a function delegated to it by another person. The AAPAO also includes a power for the GMC to pay for services which it has contracted out under the power to delegate its functions. There is an expectation that there would be a cost involved if delegating a function, or part of a function, to a third party.

Other powers and duties

There have been no further changes made to the draft order that we consulted on in schedule 1 regarding paragraph 1 (appointment of registrar); paragraph 4 (default powers of the Privy Council); and paragraph 6 (grant-making power).

Schedule 2: listed offences

Schedule 2 lists the offences that would lead to automatic removal from the register. The drafting remains the same as the version of the draft order we consulted on.

Please also refer to the section of this document which refers to article 19 offences relating to registration, and so on.

Schedule 3: evidence gathering, notifications, publication and data

Overall respondents to the consultation agreed that the powers in the draft order enabling the GMC to gather, hold, process, disclose and quality assure information in relation to the regulation of AAs and PAs are necessary and proportionate for meeting the GMC’s overarching objective of protecting the public.

Notifications (paragraph 2 of schedule 3 of the AAPAO)

In ‘Regulating healthcare professionals, protecting the public’ we set out that regulators will have a duty to inform the person(s) who raised the concern at key points throughout the fitness to practise process, including whenever a substantive decision has been made, unless the person(s) who raised the concern does not wish to receive these updates. Some respondents to ‘Regulating anaesthesia associates and physician associates’ proposed that a waiver should be included within the draft order setting out that the duty does not apply where a complainant does not wish to be notified of a decision. However, we are of the view that an express waiver is unnecessary within the AAPAO as it is a principle of statutory construction that a complainant is able to renounce the benefit of a provision enacted on their behalf and/or in their favour.

Notification requirements in respect of revision of decisions and appeals have been amended to align with the changes we have made to articles 15,16 and 17.

To reflect the new powers in the AAPAO relating to the periodic assessment of associates, paragraphs 2(1)(a)(iii) and 2(1)(d)(I) have been added requiring the GMC to notify registrants of the outcome of any assessment under article 7 and, where known, any employer or person to whom the associate is delivering medical services, any regulatory body with which the associate is registered, and the complainant (if any).

Paragraph 2(4) of schedule 3 of the draft order set out that the GMC must notify a person whose entry has been removed from the GMC’s register, due to a conviction for a listed offence within schedule 2, that they may appeal the removal of the entry. We have amended this paragraph to specify that an associate’s right of appeal against removal from the register in this circumstance will be directly to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland. The revised paragraph states that the GMC must notify a person whose entry in the register has been removed under article 9(1)(c) that they may appeal to a court under article 17.

Power to publish

We have updated paragraph 3(1) to allow the GMC to publish the outcome of an assessment undertaken by an associate under article 7. The new provision is within paragraph 3(1)(d) of the AAPAO.

Proceedings before a panel (paragraph 9 of schedule 3 of the AAPAO)

Following the closure of the consultation and as part of our engagement with the regulators, a small number of regulators raised concerns with the rule-making power within paragraph 10(3)(d) of the draft order which permitted the GMC to make rules on any matter relating to the functions of case examiners and panels, including as to requiring persons to attend and give evidence or to produce documents. These regulators were of the view that it was not sufficient to empower them in rules to require persons to attend and give evidence or to produce documents during fitness to practise proceedings. The regulators proposed that a similar provision to paragraph 2(2) of schedule 4 of the MA 1983 should be included on the face of the draft order, which allows the GMC to apply to the relevant court to obtain a witness summons to compel the attendance of a witness during fitness to practise proceedings or to produce a specific document.

We have therefore amended the AAPAO to include a separate provision on proceedings before a panel within paragraph 9 of schedule 3. The provision sets out, for the purposes of fitness to practise proceedings before a panel in England and Wales or Northern Ireland, that a panel may:

• administer oaths and
• issue a writ of subpoena ad testificandum or subpoena duces tecum (a writ of subpoena ad testificandum is a writ compelling an individual to attend as a witness, and a writ of subpoena duces tecum is a writ requiring the production of specific documents related to the proceedings)

Furthermore, the provision sets out that any such writ must not compel a person to produce any document:

• which they could not be compelled to produce on the trial of an action or
• described in paragraph 7(5) of schedule 3 (this is the restriction on the GMC from requiring AAs or PAs to provide material produced for the purposes of professional development or in the course of reflecting on their professional practice, for fitness to practise purposes)

For the purpose of fitness to practise proceedings before a panel in Scotland, the panel may administer oaths and the Court of Session will on the application of any party to the proceedings have the power to summon and take the evidence of witnesses or require the production of specific documents related to the proceedings.

Schedule 4: rule-making powers

Schedule 4 provides the GMC’s rule-making powers. We have set out below where we have slightly amended some of the paragraphs within schedule 4 following consultation.

Rules as to revision of decisions

We have separated out the provisions within rules as to revision of decisions from rules as to appeals. Paragraph 3 of schedule 4 sets out the rules as to revision of decisions provisions and paragraph 12 of schedule 4 now sets out the rules as to appeals provision.

Paragraph 3(1) of schedule 4 sets out that the GMC must prescribe in rules decisions for the purposes of article 15(1) (revision of decisions). Paragraph 3(2) sets out that, in respect of the decisions which are prescribed, the GMC may prescribe the circumstances and cases in which it may request representations from the person to whom the decision relates. Paragraph 3(3) states that the representations from the person to whom the decision relates are to be in writing unless the GMC directs otherwise.

Regulators had fed back that where a decision is being revised, which did not involve a Fitness to Practise Panel hearing, it was unclear how oral representations could be managed and heard. We are therefore of the view that it is proportionate to limit representations for revision of decisions to written representations unless the GMC directs otherwise.

Rules as to panels

Paragraph 5 previously set out rules as to panels and paragraph 10 set out rules as to fitness to practise. In response to the consultation feedback we have amended the rules as to panels provision to include some of the provisions which were previously included within rules as to fitness to practise. The rules as to panels provisions are now within paragraph 6 of schedule 4 and the rules as to fitness to practise provisions are within paragraph 11 of schedule 4.

Respondents to the consultation highlighted that the GMC should have to set out in rules the quorum and constitution of registration and appeals panels as well as Fitness to Practise Panels. We have therefore included provisions within paragraph 6 setting out that the GMC must prescribe in rules the quorum and constitution of all of its panels and the circumstances in which a panel may comprise of a single decision-maker.

One respondent to the consultation had raised concern with the terminology on admissibility of evidence within the rules as to fitness to practise provision at paragraph 10(3)(b) of schedule 4. The provision had set out that the GMC may make rules on any matter relating to the functions of case examiners and panels, including as to admissibility of evidence. The respondent was of the view that including admissibility before evidence in the rule-making power made it too restrictive to allow a certificate of conviction to be treated as conclusive evidence in a case. We have therefore widened the scope of the provision so that the GMC can define in rules that a certificate of conviction can be treated as conclusive evidence in relevant cases. Paragraph 6(3)(c) of schedule 4 sets out that the GMC may make rules on any matter relating to the functions of panels including as to evidence. Furthermore, the provision at paragraph 11(3) within rules as to fitness to practise sets out that in respect of the functions of a case examiner the GMC may make rules in respect of case management and evidence.

We have moved paragraphs 10(3) and 10(4) from rules as to fitness to practise to paragraph 6(3) within rules as to panels to extend the provisions to registration and appeals panels as well as Fitness to Practise Panels. Paragraph 6(3) permits the GMC to make rules on any matter relating to the functions of panels, including as to:

• case management
• procedural directions
• evidence
• administration of oaths
• requiring persons to attend and give evidence or to produce documents

Rules as to non-compliance

Respondents’ views on whether the draft order provided the GMC with proportionate and sufficient rule-making powers to address non-compliance by AAs and PAs with a reasonable request from the GMC was split. Respondents who disagreed were of the view that the GMC should have a separate non-compliance power and that this should align with the MA 1983. In addition, one respondent was of the view that non-compliance with a request should be capable of being considered as misconduct. In our response to ‘Regulating healthcare professionals, protecting the public’, we set out that regulators should have a combination of specific powers and adverse inference powers available to them to address a registrant’s non-compliance with a reasonable request or direction. We remain of this view.

Paragraph 6(4)(b) of schedule 4 of the draft order allowed the GMC to prescribe in rules for a panel to be able to draw adverse inferences in circumstances prescribed in rules. Some respondents to ‘Regulating anaesthesia associates and physician associates’ were of the view that this provision should be extended to include case examiners. Respondents highlighted that both case examiners and panels will be making decisions on impairment and therefore it is essential that both panels and case examiners can draw adverse inferences in their decision-making. We have reviewed the provision and further extended it to allow panels, case examiners, regulators, the registrar and a person prescribed in rules who is making a determination on whether a former associate, who was not removed from the GMC’s register due to the imposition of a final measure, can be restored to the GMC’s register (the person prescribed in rules must be satisfied that the registration criteria set out in article 6(3)(a) is met before a former associate can be restored to the register) to draw adverse inferences in circumstances prescribed in the GMC’s rules. The revised provision is now included within paragraph 7(1)(b) of schedule 4 of the AAPAO.

We received a very small number of comments on the award of costs provisions within paragraph 6(5) of schedule 4 of the draft order. Some respondents stated that they did not support the government’s policy position on award of costs during fitness to practise proceedings. However, some respondents were supportive of the award of costs provisions. We remain of the view that these provisions should be included within the AAPAO as they will incentivise both associates and the GMC to comply with procedural directions in fitness to practise proceedings and should bring cost and efficiency savings for both the GMC and associates. We have slightly amended the provision on award of costs to clarify the rule-making power on the enforcement of an award of costs, or in Scotland expenses, by a panel. Enforcement will be in the same manner as if the award had been made by an order of the county court or on decree of a sheriff in Scotland. This provision is now within paragraph 7(2) of schedule 4 of the AAPAO.

Rules as to fees

The majority of respondents agreed with the provisions set out in the draft order for the setting and charging of fees in relation to the regulation of AAs and PAs. There were some comments regarding the general policy around fee-setting - for example, fees reflecting salary level and pro-rata payments. However, the GMC is responsible for setting fees for its registrants and we would not expect to address these issues through the legislation. That said, there are mitigations in place against the risk of fees being set too high. For example, when a regulator wishes to make material changes to its rules as to fees the regulator is required under paragraph 15(2) of schedule 4 to consult representatives of any group of persons which appear to the regulator likely to be affected by the rules; and under paragraph 6 of schedule 3 will need to submit evidence it has considered of the likely impact of any fee change in a reporting year. This evidence will be included in annual reports submitted to Parliament. ​

The draft order stated that rules ‘may’ be made with regards to setting fees. We have amended this ‘may’ to ‘must’ to ensure there is no ambiguity around the requirement for the GMC to have in place rules on fee-setting.

Secondly, as a result of feedback received through the consultation and further engagement with the regulatory bodies, the drafting has been amended to make it clearer that the GMC is able to keep sufficient reserves, not only as a matter of good practice but also to comply with Charity Commission obligations. This has always been the policy intention. However, we recognise that the previous drafting may have been ambiguous on this point. Although regulators are public bodies and non-profit making, there are certain requirements they need to fulfil. This amendment ensures that those that are registered charities are able to fulfil their obligations in relation to Charity Commission requirements, while also allowing regulators to maintain sufficient reserves to ensure financial stability across a range of economic scenarios.

The GMC is self-funded through the fees paid by its registrants and this includes the fitness to practise function. However, the drafting now includes a specific provision that excludes any activity relating to a registrant’s specific fitness to practise case from being a chargeable activity undertaken by regulators. This reflects current regulatory practice and we intend for it to continue. In certain circumstances, our policy position and legislation permit charging for certain activities which have a fitness to practise element. For example, the GMC will be able to charge third parties for administering performance or health assessments. We expect this to be most relevant in respect of former registrants who wish to undergo a health or performance assessment as part of submitting evidence in support of an application for restoration.

There has also been an addition to the final paragraph regarding fees being recoverable as a debt in Scotland. The paragraph previously only referred to England, Wales and Northern Ireland.

Schedule 5: consequential amendments

Schedule 5 provides for consequential amendments to primary and secondary legislation.

As explained in our consultation document, a number of consequential amendments to existing legislation are required to ensure that once AAs and PAs are regulated professions, this is reflected in any relevant legislation.

Some of the comments received suggested additional amendments that should be made to expand the remit of these roles - for example, in relation to prescribing responsibilities and the issuing of fit notes.

Prescribing responsibilities

We are clear that any decision to expand a form of prescribing responsibilities to either of these roles would need further consultation, requires the approval of the Commission on Human Medicines and is not within the remit of the AAPAO. NHS England, along with other key stakeholders, continues to explore the case of need for each profession in relation to prescribing. This work is exploratory at this stage, in advance of regulation.

Fit notes

The power to issue a fit note was extended to a small sub-set of professions in 2022. The Department for Work and Pensions (DWP) is currently evaluating the implementation of this rollout, and this will include a review of the professions in scope. We will continue to work with DWP on this and explore opportunities to expand the scope of the professions where appropriate.

Changes to consequential amendments

Where the consequential amendment links directly to a specific theme or area of the AAPAO, and where it has been amended following the consultation, it has been discussed in the relevant section of this document. Of the remaining miscellaneous consequential amendments that were referenced in the last consultation, only those listed below have been amended.

We have made the following changes to the consequential amendments following consultation.

National Health Service Reform and Health Care Professions Act 2002

Our changes to section 26 of the National Health Service Reform and Health Care Professions Act 2002 will permit the PSA to ask the GMC to revise one of the following case examiner decisions:

• where a case examiner determines that an associate’s fitness to practise is not impaired and closes a case
• where a case examiner determines that an associate’s fitness to practise is not impaired but issues a warning
• where a case examiner determines that an associate’s fitness to practise is impaired, and an associate accepts both the findings (including impairment) and the proposed measure through an accepted outcome
• where a case examiner determines that an associate’s fitness to practise is impaired and imposes a final measure on a non-responding registrant

Our changes to section 29 of the National Health Service Reform and Health Care Professions Act 2002 will permit the PSA to appeal to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland the following panel decisions:

• where a panel closes a case following a determination that an associate’s fitness to practise is not impaired
• where a panel closes a case following a determination that an associate’s fitness to practise is not impaired but issues a warning
• where a panel determines that an associate’s fitness to practise is impaired, and a panel decides to take no action
• where a panel determines that an associate’s fitness to practise is impaired and imposes a final measure

Where a final measure is imposed on an associate by a panel, the PSA will be able to appeal the type of final measure (for example, conditions applied to registration or suspension of registration) and/or the duration of the imposed final measure.

We are also amending section 29 of the National Health Service Reform and Health Care Professions Act 2002 to allow the PSA to refer to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland a decision of the GMC or one of its committees, panels or officers, to restore an associate to the GMC’s register following their removal due to an imposition of a final measure.

Where the regulator reviews a final measure currently imposed on an associate, the PSA will have a right of appeal to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland against the regulator’s decision to revoke the final measure, extend the duration of a final measure, vary a condition to which the associate’s entry is subject, extend and vary a condition to which the associate’s entry is subject to or substitute the final measure for another available measure, if it considers the review panel’s decision is insufficient to protect the public.

The PSA will also be able to appeal a revision to a panel’s fitness to practise decision made by the GMC under its revision of decision powers under article 15(1) of the AAPAO.

There was an error in the consequential amendments that we consulted on as part of ‘Regulating anaesthesia associates and physician associates’, which stated that the PSA would be able to appeal an interim measure decision made by a panel. Several respondents brought this to our attention. We have updated the drafting to clarify that the PSA will not be able to appeal an interim measures decision made by a panel.

The Northern Ireland Social Care Council (Appointments and Procedure) Regulations (Northern Ireland) 2001

Consequential amendments were proposed to add AAs and PAs to the disqualified list in relation to appointment as chairman or member of the Northern Ireland Social Care Council where registration has been withdrawn or suspended.

Following the consultation on the draft order a drafting error has been corrected.

Regulation and Improvement Authority (Appointments and Procedure) Regulations (Northern Ireland) 2004

Consequential amendments were proposed to add AAs and PAs to the disqualified list in relation to appointment as chairman or member of the Regulation and Improvement Authority where registration has been withdrawn or suspended.

Following the consultation on the draft order a drafting error has been corrected.

National Assembly for Wales (Representation of the People) Order 2007

Consequential amendments were proposed to add PAs to the list of professionals who may counter-sign an application by a person with a severe sight impairment or other disability for a proxy vote in the Welsh Senedd and/or Parliament elections.

Following the consultation on the draft order and further consultation with the Welsh Government the proposal has been amended to include AAs as well as PAs to maintain consistency.

Other regulated healthcare professionals

As part of the consultation, we asked questions at the end of each section aimed at seeking further information.

While the aim of the AAPAO is to pave the way to reform other healthcare regulators, we recognise that there will be some areas where specific provisions are required for specific regulators and the professions they regulate and have engaged with all the healthcare regulators as we have developed the AAPAO.

Key areas that will need to be considered in relation to other healthcare regulators that have been highlighted through the consultation and reflect our own considerations include:

• Premises regulation - 3 regulators currently regulate premises as well as professionals. The AAPAO does not include any provisions relating to the regulation of premises as the GMC is not responsible for regulating premises where AAs and PAs work. While we have already had a number of discussions with regulators around this topic, when we take forward work to reform a regulator’s governing legislation where regulation of premise already exists, detailed consideration of the legislative requirements will be undertaken

• Protected functions - we recognise that a number of regulators’ governing legislation currently have protected functions listed - for example, attending a woman in childbirth in the NMC’s legislation, and carrying out tooth whitening treatments in the General Dental Council’s legislation. While the majority of regulators do not have protected professional functions within their legislation, where they do this will be considered as part of the consultation on their legislation

The comments we have received will be used as we move forward with the programme to reform all the healthcare regulators’ governing legislation.

As set out previously, the AAPAO is the first step to deliver a large-scale programme of reform that will implement improvements to the system of professional regulation, to the health and care workforce and, most importantly, patient and public safety. 

Equalities considerations and impact on business

The purpose of the AAPAO is to bring AAs and PAs into regulation. While the legislation provides a template to pave the way for reforms to other healthcare regulators, our assessment has focused on impacts to business and equalities considerations in relation to bringing AAs and PAs into regulation. As we progress with the programme of regulatory reform, a separate assessment will be carried out on the impacts on the relevant professions to accompany the consultation on changes to the legislation of each healthcare regulator. Our consultation document outlined the potential impact on business and impacts (both positive and negative) on protected characteristics under the public sector equality duty in relation to the regulation of AAs and PAs.

Impact on business

Our analysis shows that, while there will be a small number of costs to business - for example, possible costs to HEIs in relation to ensuring that their AA and PA courses meet the GMC’s standards and the associated administration - these are likely to be limited and outweighed by the benefits of introducing regulation. AA and PA course providers have been engaging with the GMC’s quality assurance team on a voluntary basis since early 2021. All have completed a self-assessment (and received feedback), and many have participated in GMC-led quality activities. The GMC does not anticipate that course providers overall will need to make significant changes to meet the required standards.

Following analysis of the consultation responses, we have reviewed our initial analysis on the possible impact to business of regulating AAs and PAs and our conclusion remains that there will be minimal impact to business as a consequence of bringing AAs and PAs into statutory regulation.

Equalities considerations

The AAPAO is a high-level framework that will give the GMC the power to develop, and set out in rules and guidance, the details of how AAs and PAs will be regulated. The GMC will have a legal requirement to consider the impacts on protected characteristics as part of its policy development relating to the regulation of these groups. The AAPAO will give the GMC more flexibility than it currently has with doctors to adapt its processes and operations to make them more effective and responsive to individuals’ needs. This may have a positive impact on groups with protected characteristics.

Equalities issues identified by respondents

Health concerns and insufficient knowledge of English

Several respondents to ‘Regulating healthcare professionals, protecting the public’ had raised concerns with only having 2 grounds for action in a regulator’s governing legislation. Some respondents were of the view that health concerns and insufficient knowledge of English should be separate grounds for action. Following the closure of the consultation we amended the wording of one of the grounds for action. We had proposed in ‘Regulating healthcare professionals, protecting the public’ that lack of competence should be a ground for action. However, in response to feedback we amended the ground for action to inability to provide care to a sufficient standard. The other ground for action is misconduct.

We recognise why some respondents are of the view that health concerns and/or insufficient knowledge of English should be separate grounds for action within article 2(2)(a) of the AAPAO. However, we remain of the view that where a registrant’s fitness to practise is called into question, it should always be on the basis that they do not meet the required standards of conduct, and/or they have an inability to provide care to a sufficient standard.

We expect the GMC to continue to handle health and English language cases sympathetically and compassionately, while recognising the importance of English language proficiency to the safe provision of care.

Under the AAPAO, where an associate does not meet the GMC’s proficiency in English language standards following a periodic assessment, the registrar may remove the associate’s entry from the register. This form of removal from the register is different to the imposition of a removal order following a determination of impaired fitness to practise by a case examiner or panel.

Where there are concerns about an associate’s mental or physical health, the GMC may ask the associate to undertake a physical or mental health assessment. Under the AAPAO, the GMC may prescribe in rules the procedure for an assessment of a person’s physical or mental health and it may also prescribe in rules the consequences of an associate’s non-compliance with undertaking the assessment.

Duties on the regulator

Some respondents agreed with our assessment that the flexibilities being given to the GMC highlight the importance of the regulators carrying out appropriate equalities assessments when developing and implementing their regulatory processes in relation to AAs and PAs.

As set out in the consultation document, while the department has considered the impact of the powers to regulate AAs and PAs being given to the GMC, the GMC is also a designated public authority under the Equality Act 2010 in respect of its public functions and is therefore required to consider the impact its policies and processes have on protected characteristics and take action to ensure that there are no disproportionate impacts.

The GMC has committed to:

• eliminating the disproportionate pattern of fitness to practise complaints it receives from employers, in relation to a doctor’s ethnicity and place of qualification, by 2026
• eliminating discrimination, disadvantage and unfairness in undergraduate and postgraduate medical education and training by 2031

This responsibility is particularly important due to the discretionary nature of some of the powers being given to the GMC in relation to AAs and PAs under the AAPAO. The GMC is in the process of developing the policies and procedures that will apply to the regulation of AAs and PAs. As part of this work, the GMC has been carrying out its own equalities assessment and identifying any potential issues in each policy workstream and implementing mitigating actions where appropriate.

In placing greater operational responsibility into the hands of regulators, the government expects the GMC to continue to report on, and where required take action to improve, the respective experience of registrants with different protected characteristics.

The government has considered the impact the proposals may have on the equality principles. As set out in the consultation, our assessment remains that we do not expect there to be any disproportionate impacts on protected characteristics as a consequence to the introduction of statutory regulation for AAs and PAs and that, alongside the requirements of the GMC under the Equality Act 2010, the flexibility provided by the new legal framework will ensure that the GMC is able to adapt to the requirements of the professions’ demographics.

Annex A

Overview of responses

The ‘Regulating anaesthesia associates and physician associates’ consultation ran from 17 February 2023 to 16 May 2023. We received 464 responses from individuals and organisations. The consultation asked 34 questions in relation to the draft legislation that will introduce regulation for anaesthesia associates (AAs) and physician associates (PAs).

This annex provides quantitative data on the number of responses to each question.

Overview of respondents

Below is a breakdown of the types of respondents who submitted responses to the consultation.

Table 1: respondents by type - individuals and organisations

Category	Number of responses	Percentage of responses
Individuals	396	85
Organisation	68	15
Total	464	100%

Of those individuals that responded, 319 were healthcare professionals. The table below shows the types of healthcare professionals who responded.

Table 2: type of healthcare professional

Profession	Number of responses	Percentage of responses
Anaesthesia associate	5	2
Medical practitioner	169	53
Healthcare scientist	1	0.3
Other allied health professional	2	1
Other regulated healthcare professional	9	3
Other unregulated healthcare professional	3	1
Paramedic	1	0.3
Pharmacist	2	1
Physician associate	121	38
Registered nurse	6	2
Total	319	100%

Note: percentage figures have been rounded and therefore may not total 100%

Table 3: geographic location: individuals

Country of residence (individuals)	Number of responses	Percentage of responses
England	330	84
Scotland	39	10
Wales	15	4
Northern Ireland	10	3
Other	1	0
Total	395	100%

Note: percentage figures have been rounded and therefore may not total 100%

Table 4: organisation type

Sector (organisations)	Number of responses	Percentage of responses
Academic	2	3
Charity	3	5
Community group	0	0
Education	1	2
Financial	0	0
Government	1	2
Human resources or recruitment	0	0
Legal	0	0
Local authority	0	0
NHS	12	18
Patient group	1	2
Private healthcare	0	0
Regulation	11	17
Scientific	0	0
Trade union	5	8
Professional body	26	39
Other (please state)	4	6
Total responses	66	100%

The consultation questions

The consultation asked 34 questions in relation to the draft legislation that will introduce regulation for AAs and PAs by the GMC. The remainder of this annex provides a summary of responses and comments made under each question. Where respondents’ comments were not specifically relevant to the question they were made under, they have been considered under other questions.

Part 1: general

Do you have any comments relating to ‘part 1: general’ of the consultation?

198 respondents provided comments under this question.

Part 2: standards and approvals

Do you agree or disagree that the powers outlined in ‘part 2: standards and approvals’ are sufficient to enable the GMC to fulfil its role safely and effectively in relation to the education and training of AAs and PAs?

224 respondents provided comments under this question.

Table 5: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	259	56
Disagree	150	32
Neither agree nor disagree	39	8
Don’t know	9	2
Respondent left blank	7	2
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you have any additional comments on ‘part 2: standards and approvals’ in relation to the drafting approach as it would apply to all regulated healthcare professionals?

87 respondents provided comments under this question.

Part 3: the register

Do you agree or disagree that the draft order provides the GMC with the necessary powers to determine the standards and procedural requirements for registration?

120 respondents provided comments under this question.

Table 6: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	259	56
Disagree	150	32
Neither agree nor disagree	39	8
Don’t know	9	2
Unknown	7	2
Total	464	100%

Do you agree or disagree that the draft order provides the GMC with proportionate powers for restoring AAs and PAs to the register where they have previously been removed due to a final measure?

78 respondents provided comments under this question.

Table 7: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	257	55
Disagree	124	27
Neither agree nor disagree	49	11
Don’t know	19	4
Unknown	15	3
Total	464	100%

Do you agree or disagree that the draft order provides the GMC with proportionate powers for restoring AAs and PAs to the register where the regulator identifies in rules that it is necessary for the applicant to satisfy the regulator that their fitness to practise is not impaired?

60 respondents provided comments under this question.

Table 8: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	213	46
Disagree	119	26
Neither agree nor disagree	91	20
Don’t know	17	4
Unknown	24	5
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree that the powers in the draft order relating to the content of the register and its publication will enable the GMC to effectively maintain a register of AAs and PAs who meet the standards required to practise in the UK?

105 respondents provided comments under this question.

Table 9: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	257	55
Disagree	142	31
Neither agree nor disagree	39	8
Don’t know	9	2
Unknown	17	4
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree that the draft order provides the GMC with the necessary and proportionate powers to reflect different categories of registration and any conditions that apply to the registration of people in those categories?

112 respondents provided comments under this question.

Table 10: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	202	44
Disagree	135	29
Neither agree nor disagree	87	19
Don’t know	18	4
Unknown	22	5
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree that the draft order provides the GMC with proportionate and necessary powers in relation to the removal of AA and PA entries from the register which will enable it to operate a safe and fair system of regulation that protects the public?

87 respondents provided comments under this question.

Table 11: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	265	57
Disagree	128	28
Neither agree nor disagree	36	8
Don’t know	11	2
Unknown	24	5
Total	464	100%

Do you have any additional comments on ‘part 3: the register’ in relation to the drafting approach as it would apply to all regulated healthcare professionals?

76 respondents provided comments under this question.

Do you agree or disagree that the draft order provides the necessary powers to enable the GMC to implement an efficient and safe system of temporary registration for AAs and PAs during a period of emergency as declared by the Secretary of State?

98 respondents provided comments under this question.

Table 12: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	198	43
Disagree	145	31
Neither agree nor disagree	82	18
Don’t know	20	4
Unknown	19	4
Total	464	100%

Part 4: fitness to practise

Do you agree or disagree that the powers in the draft order enable the GMC to implement a 3-stage fitness to practise process for AAs and PAs proportionately and sufficiently?

136 respondents provided comments under this question.

Table 13: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	200	43
Disagree	195	42
Neither agree nor disagree	38	8
Don’t know	13	3
Unknown	18	4
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree that the powers in the draft order enable case examiners to carry out their roles appropriately and that the powers help to ensure the safe and effective regulation of AAs and PAs?

80 respondents provided comments under this question.

Table 14: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	201	43
Disagree	133	29
Neither agree nor disagree	90	19
Don’t know	13	3
Unknown	27	6
Total	464	100%

Do you agree or disagree that the powers in the draft order enable Panels to carry out their roles appropriately and that the powers help to ensure the safe and effective regulation of AAs and PAs?

108 respondents provided comments under this question.

Table 15: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	200	43
Disagree	135	29
Neither agree nor disagree	92	19
Don’t know	15	3
Unknown	22	5
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree that the powers in the draft order on reviewing interim measures are proportionate and sufficient for the safe and effective regulation of AAs and PAs?

70 respondents provided comments under this question.

Table 16: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	191	41
Disagree	150	32
Neither agree nor disagree	85	18
Don’t know	16	3
Unknown	22	5
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you have any additional comments on ‘part 4: fitness to practise’ in relation to the drafting approach as it would apply to all regulated healthcare professionals?

63 respondents provided comments under this question.

Part 5: revisions and appeals

Do you agree or disagree that the powers in the draft order provide the GMC with proportionate and sufficient powers in relation to the revision of decisions concerning the regulation of AAs and PAs?

73 respondents provided comments under this question.

Table 17: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	186	40
Disagree	135	29
Neither agree nor disagree	96	21
Don’t know	21	5
Unknown	26	6
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree that the powers in the draft order provide individuals with proportionate and sufficient appeal rights in respect of decisions made by the GMC and its independent Panels relating to the regulation of AAs and PAs?

53 respondents provided comments under this question.

Table 18: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	142	31
Disagree	121	26
Neither agree nor disagree	99	21
Don’t know	24	5
Unknown	78	17
Total	464	100%

Do you have any additional comments on ‘part 5: revision and appeals’ in relation to the drafting approach as it would apply to all regulated healthcare professionals?

46 respondents provided comments under this question.

Part 6: miscellaneous

Do you agree or disagree that the offences set out in the draft order are sufficient to ensure public protection and to maintain public confidence in the integrity of the AA and PA professions?

94 respondents provided comments under this question.

Table 19: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	244	53
Disagree	141	30
Neither agree nor disagree	35	8
Don’t know	18	4
Unknown	26	6
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you have any additional comments on ‘part 6: miscellaneous’ in relation to the drafting approach as it would apply to any regulated healthcare professionals?

44 respondents provided comments under this question.

Schedule 1: the regulator

Do you agree or disagree with the proposed powers and duties included in schedule 1, the regulator in relation to AAs and PAs?

65 respondents provided comments under this question.

Table 20: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	203	44
Disagree	139	30
Neither agree nor disagree	83	18
Don’t know	17	4
Unknown	22	5
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you have any additional comments on schedule 1, the regulator, in relation to the drafting approach as it would apply to all regulated healthcare professionals?

34 respondents provided comments under this question.

Schedule 2: listed offences

Do you have any comments on schedule 2, listed offences?

53 respondents provided comments under this question.

Schedule 3: evidence gathering, notifications, publication and data

Do you agree or disagree that the powers in the draft order enabling the GMC to gather, hold, process, disclose and assure information in relation to the regulation of AAs and PAs are necessary and proportionate for meeting its overarching objective of protecting the public?

66 respondents provided comments under this question.

Table 21: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	222	48
Disagree	109	23
Neither agree nor disagree	87	19
Don’t know	15	3
Unknown	31	7
Total	464	100%

Do you have any additional comments on schedule 3, evidence gathering, notifications, publication and data, in relation to the drafting approach as it would apply to any regulated healthcare professionals?

39 respondents provided comments under this question.

Schedule 4: rule-making powers

Do you agree or disagree that the draft order provides the GMC with sufficient and proportionate rule-making powers to enable it to effectively maintain a register of AAs and PAs who are safe to practise?

77 respondents provided comments under this question.

Table 22: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	237	51
Disagree	127	27
Neither agree nor disagree	32	7
Don’t know	11	2
Unknown	57	12
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree that the draft order provides the GMC with proportionate and sufficient rule-making powers to address non-compliance of AAs and PAs?

51 respondents provided comments under this question.

Table 23: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	191	41
Disagree	134	29
Neither agree nor disagree	87	19
Don’t know	17	4
Unknown	35	8
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree with the provisions set out in the draft order for the setting and charging of fees in relation to the regulation of AAs and PAs?

76 respondents provided comments under this question.

Table 24: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	187	40
Disagree	130	28
Neither agree nor disagree	91	20
Don’t know	21	5
Unknown	35	8
Total	464	100%

Note: percentage figures have been rounded and therefore may not total 100%.

Do you agree or disagree that the rule-making powers set out in the draft order will enable the GMC to deliver the safe and effective regulation of AAs and PAs?

93 respondents provided comments under this question.

Table 25: summary of responses

Proposal position	Number of respondents	Percentage of respondents
Agree	241	52
Disagree	137	30
Neither agree nor disagree	34	7
Don’t know	11	2
Unknown	41	9
Total	464	100%

Do you have any additional comments on schedule 4, rules in relation to the drafting approach, as it would apply to all regulated healthcare professionals?

37 respondents provided comments under this question.

Schedule 5: consequential amendments

In relation to schedule 5, consequential amendments, do you have any comments on how the draft order delivers the policy intention in relation to AAs and PAs?

94 respondents provided comments under this question.

Would you like to provide any further comments on the draft order?

72 respondents provided comments under this question.

Costs, benefits and equalities analysis

Do you think there are any further impacts (including on protected characteristics covered by the public sector equality duty as set out in the Equality Act 2010 or by section 75 of the Northern Ireland Act 1998) from the legislation as currently drafted?

67 respondents provided comments under this question.