Doctor’s suspension after questioning the severity of Covid 19 did not breach his Article 10 rights

20 November 2023 by Rosalind English

This was an appeal by a doctor against a decision of the medical practitioners’ tribunal that he was guilty of misconduct. He also appealed against the tribunal’s decision to suspend his registration for six months.

Factual and legal background

The appellant (“A”) is a colorectal and breast surgeon who has been registered since 1990, having qualified in Pakistan. He had been working as a locum consultant surgeon at the North Manchester Hospital NHS Trust between April and October 2020. This was during the Covid-19 Pandemic and included the early stages of lockdown imposed by the Government. A appeared on a number of YouTube videos voicing his doubts about the severity of the COVID-19 pandemic. The gravamen of the allegations agains him was that he had used his position as a doctor to promote his opinions and that his actions were “contrary to widely accepted medical opinion” and had undermined public confidence in the medical profession.

This is what he is said to have alleged on the You Tube platform:

a. the Sars-CoV-2 virus and/or Covid-19 disease do not exist or words to that effect;
b. the Covid 19 pandemic was a conspiracy brought by the United Kingdom, Israel and America or words to that effect;
c. the Covid-19 pandemic was a multibillion scam which was being manipulated for the benefit of:
i. Bill Gates;
ii. pharmaceutical companies;
iii. the John Hopkins Medical Institute of Massachusetts;
iv. the World Health Organisation,
or words to that effect;
d. the Covid-19 pandemic was being used to impose a new world order or words to that effect;
e. the Sars-CoV-2 virus was made as part of a wider global conspiracy or words to that effect.

a. undermined public health, and/or;
b. were contrary to widely accepted medical opinion, and/or;
c. undermined public confidence in the medical profession.

When criticised about these activities, A undertook to remove the videos, but failed to do so.

Importantly, the GMC and the Tribunal considered that A’s opinions on mask wearing and the discharge of elderly patients from hospital might have been controversial, but that they remained within the domain of freedom of expression for doctors as well as the wider public. (My italics. The jury is still out on mask wearing, and the doctor in this case was rightly free to opine on their efficacy).

The problem was his pronouncements on social media that the virus was a hoax and did not exist, and his promotion of conspiracy theories suggesting that vaccines were in development for the deliberate harm or manipulation of the public

The GMC considered that A was guilty of misconduct and demonstrated impairment of his fitness to practise. It referred to the GMC’s “Good Medical Practice” and its guidance on “Doctors’ use of social media” and concluded that immediate suspension of D’s registration was appropriate.

Before the Tribunal, the GMC argued that A had used his position as a doctor in the UK to promote his opinions.

The gravity of the impact of the coronavirus and Covid-19 on public health was being explained on a daily basis to the public and disseminated to medical professionals. The general public was required to comply with the restrictions and the messages were provided to set out the rationale for the restrictions and the reasons compliance was required. …In the Tribunal’s view they ran counter to the public health messages being disseminated at the time.”

…”In the Tribunal’s view, and in the context of the status of the pandemic at the time, hearing such opinions expressed by an NHS consultant surgeon would, on the balance of probabilities, have the effect of undermining public health. One of the key government messages at the time was that compliance with restrictions [were] required to ‘Protect the NHS’.

The Tribunal considered that an NHS consultant asserting as fact such statements of the kind as set out above undermined important public health messages.

A submitted that (1) the tribunal’s decisions did not meet the Article 10 tests of necessity or proportionality; (2) the GMC’s guidance did not meet the Article 10(2) “prescribed by law” condition; (3) suspension was disproportionate and inappropriate, particularly given the 18-month period of successive interim suspension orders.

Appeal to the High Court

The grounds of appeal focussed primarily on whether the Tribunal’s decisions were consistent with A’s article 10 rights. Ground 1 was that the conclusions on misconduct and impairment were contrary to article 10(1) because they give rise to an interference with article 10 rights that was not “prescribed by law” that, for that reason alone, did not meet the requirements laid down within article 10(2) and is unlawful.

Ground 2 was that, in any event, the conclusions on misconduct and impairment were a disproportionate interference with A’s rights under article 10(1). Grounds 3 and 4 were aspects of Ground 2. The former was that the Tribunal was wrong to conclude that expressing views “outside widely accepted medical opinion” either amounted to misconduct or was capable of providing justification for interference with A’s right to freedom of expression. The latter was that there was no evidence to support a conclusion that what A said damaged the reputation of the medical profession. This too, it was submitted, goes to whether the conclusions of misconduct, impairment, and the penalty imposed could be proportionate interferences with A’s Convention rights. Ground 5 was that the decisions to impose a final order for suspension and to make an immediate order suspending Mr Adil pending any appeal were disproportionate in that each failed to give sufficient weight to mitigating or compensating circumstances.

The Court’s conclusion

The High Court upheld the tribunal’s decision, finding that its conclusions on A’s misconduct and impairment of fitness to practise constituted a necessary and proportionate interference with his right to freedom of expression under Article 10 of the European Convention on Human Rights.

A’s appeal was dismissed.

The medical practitioners’ tribunal had not erred in finding that a doctor’s use of his position to promote his negative opinions on the existence and credibility of the COVID-19 disease constituted misconduct and demonstrated impairment of his fitness to practise. The seriousness of the conduct justified the conclusion that it fell short of the standards expected of a doctor and had undermined public trust in the medical profession, and the application of disciplinary sanctions constituted a necessary and proportionate interference with his Article 10 rights under the ECHR. The sanction imposed of a six-month suspension from the register was appropriate and proportionate, notwithstanding an 18-month period of suspension already served under interim orders.

The tests of necessity and proportionality under Article 10: The test is one of necessity, importing a high threshold, more than mere desirability. What is meant by “necessary” in this context has been established by the Strasbourg jurisprudence as something less than indispensable but involving a pressing social need: see for example The Sunday Times v United Kingdom (1979) 2 EHRR 245 at [59] and Hertel v Switzerland (1998) EHRR 534 at [46(ii)]. Maintaining public confidence in the NHS and its staff was an essential aspect of promoting and maintaining public health and safety. Sanctioning doctors for comments likely to undermine public health and safety to deter such behaviour also directly engaged that aim. A’s central argument on this ground was that it was an unlawful interference with freedom of expression to sanction a doctor for views on matters of medical, scientific or political significance, even if they were minority views contrary to widely accepted medical opinion. However, that proposition obscured the need to focus on the particular views expressed by A. By using his professional medical credentials, A’s views were intended to, and likely to, engender more credence than if expressed by a lay person. His views were expressed in extreme terms and asserted as fact. There was an important qualitative difference between a doctor’s views which had some supporting scientific basis, even if not widely accepted, and baseless views. That was a matter of professional conduct when, and because, the views were being expressed in a form or manner which invoked the professional’s medical expertise. The views were also likely to undermine public health and safety. They were dangerous, in relation to social behaviour and vaccination, for reasons which did not trespass into the area of medical or political debate on the lockdown, other Government requirements or the medical or scientific merits or disadvantages of vaccination. In those circumstances, sanctioning A for misconduct was in pursuit of the legitimate art.10(2) aim of protecting public health and safety. The seriousness of A’s conduct justified the conclusion that it fell short of the standards to be expected and undermined public trust in the medical profession. It also justified the application of disciplinary sanctions as a necessary and proportionate interference with freedom of expression in the interests of public health and safety, in order to maintain public trust in the NHS and to deter others from such unprofessional and dangerous conduct.

The appropriate structure for analysing the application of article 10 Convention rights was the series of questions identified by the Divisional Court (Singh LJ, Farbey J) in DPP v Ziegler [2020] QB 253 at [63] and approved and applied by the Supreme Court in that case [2022] AC 408 at [16] and [58], and in In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32, at [24], [110 ff]: 

Article 10’s requirement that any infringement of free speech should be prescribed by law: It was foreseeable from the published guidance that using one’s status as a doctor to promote views on social media which were baseless and damaging to patient health would be regarded as misconduct and attract disciplinary sanction. A argued that a particular class of expression had to be identified. The guidance covered expressions of medical opinion. Making baseless and dangerous comments was self-evidently proscribed. Statements which undermined public trust in the profession could be many and various, and it would be undesirable to try to identify or categorise them definitively. It would not be practical or realistic, to expect a regulator to publish exhaustive guidance on such matters, Sunday Times v United Kingdom (A/30) (1979-80) 2 E.H.R.R. 245, [1979] 4 WLUK 163 and Chauvy v France (64915/01) (2005) 41 E.H.R.R. 29, [2004] 6 WLUK 661 applied. That was inevitable in the sphere of freedom of expression, where the application of art.10.2 required a fact-specific evaluation of issues of necessity and proportionality (paras 73-80).

Proportionality of suspension – It was submitted on A’s behalf that the sanction imposed was not proportionate for three reasons. The sanction should not have been one of suspension but one of attaching conditions to immediate return to practice; alternatively six months’ suspension was excessive in itself; and there should have been no further period of suspension taking into account the lengthy period of suspension already imposed by interim suspension orders.

The Court rejected this submission. A period of suspension was necessary to enable A to gain insight into the seriousness of his conduct and to avoid the risk of repetition. That directly engaged the need to protect the public from harm. Nothing less than a suspension would be sufficient to mark the seriousness of the misconduct in order to promote standards within the profession and public trust. The six-month period was not excessive (paras 82-94).

Effect of interim suspension orders – Paragraph 22 of the GMC’s sanctions guidance, which provided that the tribunal should not give undue weight to whether an interim order had been imposed, or to its length, because no findings of fact would have been made prior to imposition, was unhelpful and illogical. Whether and to what extent a practitioner’s interim exclusion from their ability to practise should be taken into account was an independent question. Here, the suspension was required to rehabilitate him to remedy his lack of insight; to remove or mitigate the risk of further commission of such misconduct; and for the protection of the public from harm. The six-month period was necessary for those objectives, to which the interim period of suspension was irrelevant, Kamberova v Nursing and Midwifery Council [2016] EWHC 2955 (Admin), [2016] 10 WLUK 34 applied, Ujam v General Medical Council [2012] EWHC 683 (Admin), [2012] Med. L.R. 285, [2012] 3 WLUK 568 considered (paras 96-103).