Collective nouns and confusion in the Court of Appeal
R (British Medical Association) v General Medical Council & Ors [2026] EWCA Civ 143
Introduction
In recent years, there has been much controversy over the increased use of physician (and anaesthetic) associates (referred to together as associates in this piece) in primary and secondary care in the NHS. Associates practice clinically, alongside and under the supervision of doctors, but are not medically qualified. One angle of concern is the possibility for confusion between associates and doctors. ‘Physician associate’, the argument goes, is a misleading title, which is apt to mislead an unexpecting patient into thinking – wrongly – that they have been seen by a doctor.
The Leng Review, a root and branch review of the use of and approach to associates, recognised this, finding concerns were raised over “lack of clarity about the role, including identification and confusion with a doctor”. There have also been a number of prevention of future deaths reports by issued by coroners concerned about the role that physician associates played in patient deaths. For example, in the inquest touching the death of Pamela Marking, the coroner raised concerns that the deceased’s son understood she had been seen by a doctor, and more concerningly noted that evidence from the Trust had, without evidence, equated the physician associate with a Tier 2 resident doctor.
Against this background, it is unsurprising that the Leng Review’s first recommendation was that the role should be renamed ‘physician assistant’, “reflecting the role as a supportive, complementary member of the medical team”.
In R (British Medical Association) v General Medical Council & Ors [2026] EWCA Civ 143, the Court of Appeal considered the BMA’s appeals against Lambert J’s decision, handed down before the Leng Review was published, that the GMC had not acted unlawfully by:
- creating a single, unitary professional standards document (Good Medical Practice) for both doctors and associates; or
- adopting the term ‘medical professionals’ to refer, collectively, to both doctors and associates, especially in Good Medical Practice (see [38] and [43]).
Only the latter challenge was maintained on appeal. The focus of the case, then, was on the narrow (but arguably important) issue of the GMC’s linguistic choice to agglomerate doctors and associates (soon likely to be assistants) under the single collective noun (as Coulson LJ refers to it at [61]) ‘medical professionals’; it was “no more and no less than a complaint about a label”. The intuitive basis on which the BMA – representative body for doctors (but not associates) would bridle at this lumping together is easy to grasp (though Coulson LJ noted that his “instinctive” answer was that the case should fail: [61]), but their case in public law was more complicated.
It is worth noting, too, as Coulson LJ did, that the challenge was aimed not at the confusion-generating label ‘associate’, which is outside the GMC’s power, but at the term ‘medical professionals’ ([69]).
The British Medical Association’s Argument and the Decision at First Instance
The BMA attacked the GMC’s approach to nomenclature in two ways: first, it was argued that the statutory framework, the Medical Act 1983, was inconsistent with labelling associates as medical professionals, a term it impliedly reserved for (registrant) doctors. The 1983 Act requires the GMC to keep a register of ‘medical practitioners’, defined as persons registered under the act with a license to practice ([11]). The act also created a criminal offence, committed by:
“any person who wilfully and falsely pretends to be or takes or uses the name or title of physician… or any name, title, addition or description implying that he is registered under any provision of this Act, or that he is recognised by law as a physician…”
The Claimant’s approach was to argue that the labelling was inconsistent with the scheme of the 1983 Act, but this came unstuck at first instance, when Lambert J noted that the court in R (A) v Secretary of State for the Home Department [2021] UKSC 37, had set out an exhaustive basis on which the court could find a policy document unlawful (without resorting to another, independent, ground of review), and the Claimant’s challenge did not meet any of the requirements of R (A): it did not involve a positive statement of the law, let alone one that was wrong. Nor did it encourage associates to commit any offence ([85]).
The second attack was on the process by which the decision had been reached. The BMA argued that the GMC had, by adopting the terminology medical professionals in Good Medical Practice, acted irrationally and contrary to the statutory purpose of the power to issue that guidance, engaging the Padfield principle.[1]
Lambert J at first instance held that the purpose for the term’s adoption had been “clarity and readability”, which was well within the statutory purpose ([117]). Nor was there anything the in decision-making process that could properly be described as irrational ([118]).
The Court of Appeal’s Decision
The BMA was off to a bad start when, “stand back and survey the wood” before plunging into the trees, Coulson LJ noted that there was no challenge to Lambert J’s first instance finding to the effect that ([63]):
He agreed that “neither expressly nor impliedly encourages” associates to introduce themselves to patients as ‘medical professionals’ ([64]), and noted the context, which was not that of a public facing document, but was directed at medical professionals themselves ([66]).
Turning to the first ground of appeal, that Lambert J had erred in holding that Good Medical Practice was not incompatible with the scheme of the 1983 Act, Coulson LJ noted that ‘medical professionals’ is not a protected title ([93]), did not amount to encouragement for associates to describe themselves as registered doctors ([94]), and did not undermine public confidence (contrary to the aims of the 1983 Act) because it was not the label which was responsible for patient confusion (as opposed to the description of associates as associates) ([95]).
This determined the challenge against the appellant, but it is nonetheless of interest to public law practitioners that the Court of Appeal went on to consider whether Lambert J was correct to treat R (A) as, if not exhaustive of the bases on which a policy can be found to be unlawful (without separate recourse to another ground of judicial review), then at least the only applicable basis she could apply. As before Lambert J, the Claimant was, on appeal, unable to identify any other recognised public law basis on which the policy could be said to be unlawful on the grounds of amounting to a ‘misdirection in law’ in relation to the 1983 Act. Coulson LJ observed, taking a similar approach to Lambert J, that ([102]):
Coulson LJ went on to observe that while the categories of judicial review are not “hermetically sealed”, there must be some precedential basis; the legal basis and test must be capable of being identified. Because the policy was impugned on the basis that it contained erroneous statements of law, the “same broad principles” apply; “the test in R(A), or something very like it, must apply as a matter of common sense” ([104]-[105]).
On the Padfield and irrationality arguments, Coulson LJ observed that these arguments had mostly been directed to the unitary guidance issue (not pursued on appeal), and held that “[i]t stretches public law to breaking point to suggest that the simple labelling exercise represented by the two words “medical professionals” could give rise to a Padfield or Wednesbury argument” ([112]). Unsurprisingly given this comment, the Claimant was unable to persuade the Court of Appeal that Lambert J had erred in finding the approach neither irrational nor contrary to Padfield ([127]-[129]).
Comment
The BMA’s concern in this matter was fierce but appears to have been misdirected. As the Court of Appeal observed, the real issue where public understanding is concerned is not with the description of associates as medical professionals in a document few patients know exists. It is with the fact that the patient might well, for example, attend a GP surgery and be reviewed by someone introduced as a physician associate and believe they have seen a doctor when they have not. This, it is hoped, will be addressed by the Leng Review, but would not have changed even had the BMA been successful in its judicial review. It is hard to see what, practically, the BMA hoped to achieve with this litigation.
Legally speaking, the most interesting aspect of the decision is its affirmation of R (A) as pretty much the only game in town when it comes to challenging a policy qua policy (rather than, say, arguing that it is unlawful on another basis, such as because adopting it was irrational or ultra vires). It is also of note how the Padfield arguments were given such short shrift. These arguments are hard to make at the best of times, but as Coulson LJ observed, it is hard to see how a two-word labelling decision could ever, in normal circumstances, engage Padfield.
Jasper was judicial assistant to the High Court and assisted Lambert J with the case at first instance (though, as it always the case for judicial assistants, played no part in deciding the case). He was not involved in the appeal process.
[1] Which is, roughly, that as the Court put it at [80]: “where Parliament conferred a discretion on a Minister in order that the policy and objectives of an Act could be promoted, that discretion was not unlimited. If it appeared that the effect of the Minister’s refusal to take a particular step was to frustrate the policy of the Act in question, the court was entitled to interfere.”
