2021-12-05 12:45:02
In Dr Samuel White v General Medical Council [2021] EWHC 3286 (Admin), the High Court considered an interim order that curtailed freedom of expression, following the posting of views on social media, including a seven-minute video on Instagram. Although healthcare fitness to practise tribunals have considered numerous cases involving social media, this appears to be a rare case in which an interim order was sought and the Court found that different considerations apply to interim order applications where an order is sought that would curtail freedom of expression. The judge also commented on how allegations in such cases should be framed.
Dr White was alleged to have posted misinformation on social media platforms about the Covid-19 virus, vaccinations and PCR testing and to have encouraged people not to wear masks or take the vaccine
An Interim Orders Tribunal considered that:
- Dr White’s manner of expressing his own views to the general public may have a real impact on patient safety.
- 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.
- Dr White’s alleged means of imparting information in his capacity as a registered doctor, by way of social media platforms, to a wide and possibly uninformed audience did not allow for individual circumstances and did not give the opportunity for a holistic consideration of Covid19, its implications and possible treatments and potential for reducing risk to health in individual circumstances.
The Tribunal concluded:
- It had information to suggest that Dr White may pose a real risk to public safety if he were permitted to remain in unrestricted clinical practice, given the nature of the concerns raised from a number of separate complainants.
- Public confidence in the profession may be seriously undermined, if no order were made, in the light of the public nature of the alleged misinformation which has the potential to reach a large audience.
- The allegations were made against a background of the Covid-19 pandemic and was concerned that the impact of such alleged conduct may be significant.
The Tribunal did not suspend Dr White from practising, but conditions restricting him to not posting or sharing his views on the Covid-19 pandemic and its associated aspects on any social media platforms and required previous posts to be removed.
Dr White sought a review of the Tribunal’s decision, relying amongst other things on Article 10 of the European Convention on Human Rights which deals with freedom of expression. The Convention was incorporated into law in the UK by the Human Rights Act 1998.
The GMC submitted that freedom of expression under Article 10 is a qualified right and one of the qualifications specifically identified within the Article is the legitimate aim of pursuing public safety and the protection of health.
Dr White relied on section 12 of the Human Rights Act which provides that no relief is to be granted so as to restrain publication before trial unless the court or tribunal is satisfied that the applicant is likely to establish that publication should not be allowed.
Mr Justice Dove held that the effect of section 12 is that although a tribunal dealing with an application for an interim order would not normally make findings of fact in relation to the allegations made by the regulator, the Tribunal did have to decide whether the regulator is likely to establish at a final hearing that publication should not be allowed, or normally that success at a final hearing must be shown to be more likely than not.
Mr Justice Dove held that the Tribunal had not directed itself to the tests required by section 12 (its decision had not mentioned section 12 of the Human Rights Act). This was an error of law and a clear misdirection in the Tribunal’s decision-making process. It followed that the Tribunal’s decision was clearly wrong and could not stand.
The GMC asked the judge to make his own assessment under section 12, but he held that the court did not have power to do so. It remained open to the GMC to make a fresh application to an Interim Orders Tribunal.
Finally, the judge expressed the view that if an interim order is sought that would have the effect of curtailing freedom of expression, in order to be proportionate, it is likely to need to be specific as to what views or opinions the person subject to the order is precluded from expressing.