White v General Medical Council [2021] EWHC 3286 (Admin)

A case in which the High Court reminds the regulator of requirements for imposing curbs on free speech.

Dr Samuel White is a GP. Earlier this year he posted a seven-minute video on Instagram explaining that he had resigned from his job because, he said, he could no longer stomach the lies surrounding the NHS approach to the pandemic and because medical professionals were having their hands tied behind their backs in treating patients. He stated that he was being prevented from using treatments that had been established as being effective both as prophylaxis and treatment for Covid-19, naming hydroxychloroquine, budesonide inhalers and ivermectin, which he described as safe and proven. He raised concerns about the safety of the Covid-19 vaccine and claimed that 99% of people who contract the virus survive, with the only fatalities in those with multiple medical problems. He stated that masks do absolutely nothing. He invited his viewers to do their own research but referred to a number of websites which supported his view.

A complaint was made to the General Medical Council, which commenced an investigation into his fitness to practise as a doctor. The GMC referred his case to an Interim Orders Tribunal on the basis that his practise should be restricted pending investigation and the conclusion of the case. The role of an IOT is not to find facts, but to conduct a risk assessment based on the information before them and determine whether an interim order is necessary to protect patients or otherwise in the public interest.

At a hearing before the IOT on 17 August 2021 the GMC invited the imposition of conditions on Dr White’s practise. As is customary, the GMC did not suggest what conditions would be appropriate, leaving that to the IOT’s judgment. Dr White strenuously objected to any restriction being placed on him. He submitted a lengthy witness statement and extensive literature in support of the claims made in the Instagram post. Counsel instructed on Dr White’s behalf argued that an interim order would breach his article 9 (freedom of thought, conscience and religion) and article 10 (freedom of expression) rights.

The IOT determined that it was necessary to make an interim order on the basis that Dr White may pose a real risk to public safety if allowed to practise unrestricted. They considered that the allegations that Dr White posted misinformation online could have a real impact on patient safety. The IOT stated that they “consider[ed] that any doctor has a responsibility to provide sufficient and balanced information about Covid-19 to allow any potential patients and other members of the public to access the potential risks and benefits of any treatment or preventative measures under consideration and then make an informed choice”, a responsibility with which it appeared to the Tribunal Dr White was not complying.

Interim conditions were imposed including:

“4.  He must not use social media to put forward or share any views about the Covid-19 pandemic and its associated aspects.

5.  He must seek to remove any social media posts he has been responsible for or has shared relating to his views of the Covid-19 pandemic and its associated aspects.”

Dr White appealed against the imposition to the High Court. Dove J, handing down judgment on 3 December 2021, was scrupulous in not commenting on the merits of the views that Dr White had expressed. In allowing the appeal he identified that the effect of the conditions were to place clear and obvious limitations on Dr White’s right to freedom of expression under article 10. He noted that section 12 of the Human Rights Act 1988 makes specific provision in relation to the granting of relief which might affect article 10 rights. One of the conditions imposed by section 12 is that:

(3)  No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

It was not disputed that section 12 applied to the IOT proceedings and the “relief” referred to therein could be read as applying to the interim order. The judge found, however, that the IOT had not addressed their minds to the issue of whether they could be satisfied that it was likely that publication of the matters covered by the conditions would not be allowed following a final fitness to practice hearing. He commented that this was, perhaps, understandable given there was no reference to this in the guidance provided to the IOT, which focusses on the function of risk assessment. It was held that the failure to consider section 12(3) was an error of law which vitiated the decision to impose conditions and the IOT’s order was quashed.

This decision poses difficulties for the GMC in bringing doctors before an IOT in these circumstances. The “trial” referred to in section 12(3) will, in this context, be a final Fitness to Practise hearing before a Medical Practitioners Tribunal. The function of such a tribunal is to determine whether, on the facts it finds, a doctor’s fitness to practise is impaired and, if so, what the appropriate sanction will be. The available sanctions are conditions, suspension and erasure from the medical register. The GMC will not be in a position to say at the interim stage, prior to completion of its investigation, what sanction it is likely to seek. It is only if it were to be considering seeking conditions, which included curtailment of the doctor’s social media output, that the requirements of section 12(3) could ever be met. There would be difficulties in obtaining such an order from the MPT, but it is conceivable. However, the GMC is unlikely to want to tie its hands by saying at the interim stage that it would want to seek such an order at a final hearing. Indeed, the GMC are not usually prepared to say what conditions they consider it appropriate for an IOT or MPT to impose at the hearing, let alone months or more in advance.

The solution would seem to be that, if the GMC consider it appropriate to go to an IOT in a case such as this, they seek conditions which do not infringe the doctor’s right to free expression (although such conditions might not be directed at the risk identified), or they seek an interim suspension (which might be said to be disproportionate). The other option is not to seek an interim order, but to wait for a final hearing; in those circumstances the GMC could be criticised for failing to take sufficient action against doctors who are seen by the majority as peddling false claims.

It will be interesting to see if the GMC bring Dr White back before an IOT and, if so, what approach they take.