Court of Appeal upholds suspension for covid conspiracy doctor

The recent case of Adil v General Medical Council [2023] EWCA Civ 1261 considered a doctor’s right to freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR”). Article 10 of the ECHR states:

Freedom of expression

1. 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
      
   2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The Allegations

The Appellant, a locum colorectal and breast surgeon, appeared in videos published on YouTube between April and October 2020 in which he made statements about the Covid-19 pandemic. Within these videos, he stated that:-

• The Sars-CoV-2 virus and/or Covid-19 did not exist;
• The Covid-19 pandemic was a conspiracy brought by the UK, the US and Israel;
• The Covid-19 pandemic was a multibillion scam which was being manipulated for the benefit of Bill Gates, pharmaceutical companies, the John Hopkins Medical Institute of Massachusetts and the World Health Organisation;
• The Covid-19 pandemic was being used to impose a new world order;
• The Sars-CoV-2 virus was made as part of a wider global conspiracy;
• Bill Gates infected the entire world with Sar-CoV-2 in order to sell vaccines;
• Covid-19 vaccines:
  • Would be given to everyone, by force if necessary;
  • Could potentially contain microchips that affect the human body and further the 5G mobile phone technology agenda;
  • Would transform human psychology and beliefs;
  • Could be used to control and/or reduce the world’s population

He was alleged to have used his position as a doctor in the UK to promote his opinion put forward in the videos.

He then allegedly confirmed to his Responsible Officer in May 2020 that he would remove the videos from video sharing platforms but then have failed to have done so and appeared in further videos.

Final hearing before the Medical Practitioners Tribunal

At the original Final Hearing before the Medical Practitioners Tribunal (“the Tribunal”), the facts of the allegations were found proved. The Tribunal concluded that the Appellant’s actions fell seriously short of the conduct expected of a doctor and amounted to misconduct for the following reasons [emphasis added]:

"70. The Tribunal bore in mind that numerous potentially controversial comments had been made by Mr Adil in the videos that had not been brought by the GMC to form part of any allegation. These included, for example, opinions on mask wearing and the discharge of elderly patients from hospital. Whilst potentially controversial, the Tribunal agreed with the GMC's position that these remained within the domain of freedom of expression for doctors as well as the wider public.

71. However, the statements made by Mr Adil that formed the basis of Paragraph 2 of the Allegation [the statements in the videos] stated that the virus was a hoax and did not exist, promoted and perpetuated various conspiracy theories and suggested that vaccines were in development for the deliberate harm or manipulation of the public. The Tribunal had already found that these were contrary to widely accepted medical opinion and undermined public health and public confidence in the medical profession. It was gravely concerned that these were made by Mr Adil using his credentials as a doctor in the UK to promote his opinions and to engender trust in him on the part of those listening.
72. In the Tribunal's view, these could not fall within the domain of legitimate freedom of expression for a doctor in the context of the pandemic at the time; such statements breached the trust that the public had a right to expect of him as a doctor in the UK. Despite his protestations that he was trying to help in a period of widespread confusion, his comments went far beyond helpful legitimate comment into the realms of scaremongering conspiracy theories, which added to public confusion. The effect of these statements could have been that, believing Mr Adil, members of the public failed to adhere to required restrictions or failed to get vaccinated when the vaccines became available.”

The Tribunal concluded that the Appellant did not have full insight into the consequences of his actions and the regret and remorse he showed came late in the day in the proceedings. As such, it found his current fitness to practise to be impaired.

He was suspended for six months with a review.

High Court

The Appellant appealed to the High Court against the findings of misconduct and impairment on the basis the conclusions interfered with his Article 10 ECHR rights.

His appeal was dismissed by Swift J.

The Appellant then appealed to the Court of Appeal.

The Court of Appeal

In his appeal to the Court of Appeal, the Appellant advanced three grounds, namely:

1. Good Medical Practice (the professional standards for doctors: ) and the GMC’s Social Media Guidance did not meet the “prescribed by law” condition in Article 10(2);
2. The decisions of the Tribunal did not meet the tests of necessity or proportionality in Article 10(2);
3. The sanction imposed was disproportionate and inappropriate.

The Appellant’s representative submitted that it is an unlawful interference with freedom of expression to sanction a doctor for views on matters of medical scientific or political significance, even if they are minority views contrary to widely accepted medical opinion. He stated that such matters are always something on which a doctor should be able to express his views, save where they would be seriously offensive to others, particularly groups with protected characteristics. Popplewell LJ disagreed with this, likening the appellant’s statements to a doctor publishing views that there was no link between smoking and cancer, that smoking was good for health and that people should be encouraged to smoke at least 40 cigarettes each day: “In such a case, the views would be so far removed from any concept of legitimate medical debate that an appeal to the importance and breadth of the freedom of expression protected by Article 10 would be misplaced. All depends upon the facts of each individual case.”  Further, “by using his professional medical credentials, the Appellant’s views on these matters were intended to, and likely to, engender more credence than if expressed by a layman. The Appellant’s views were expressed in extreme terms, and were, as the Tribunal held, asserted as fact.” Popplewell LJ called the Appellant’s conduct baseless and dangerous.

Popplewell LJ distinguished the Appellant from a member of the public making such statements, who may be lawfully exercising their freedom of expression. The Appellant was a doctor invoking his medical experience to give credence to his views, and consideration must be given to the trust and confidence the public place on the profession. In particular, people will take medical views from doctors on trust and may reasonably consider them to be representative of the views of the profession more widely.

For the reasons given above, Popplewell LJ concluded that sanctioning the Appellant was in pursuit of the legitimate Article 10(2) aim of protecting public health and safety. He continued that the legitimate aims in this case were sufficiently important to justify interference with freedom of speech and that a professional disciplinary regime imposing sanctions is a rational means of doing so for medical practitioners.

In terms of proportionality, the most important factors of the Appellant’s conduct were the views he repeatedly expressed during the early stages of the pandemic were baseless, dangerous and given by a doctor invoking his senior professional status and experience to lend them credence. The seriousness of that conduct meant that the application of disciplinary sanctions was a necessary and proportionate interference with freedom of expression in the interests of public health and safety, to maintain public trust in the NHS and deter others from such “unprofessional and dangerous conduct”.

In terms of the sanction imposed, the Court confirmed that the six-month suspension was not disproportionate or inappropriate. The Court did however comment on the effect of prior interim orders. The Appellant had previously been subject to an interim suspension order between 1 June 2020 and 11 January 2022, after which the interim order became one of conditions of practice until the sanction was imposed in June 2022. He had therefore been suspended from practice by that point for approximately 18 months. The Court made clear that in some circumstances, previous periods of suspension under interim orders should properly be taken into account by tribunals when deciding on the length of a suspension to order and when a practitioner should be allowed to return to practice. A balance must be struck between affording fairness to the practitioner whilst ensuring that the sanction appropriately punishes them, deters them from repetition of the conduct in question, marks the gravity of the offence, returns them to fitness to practise, mitigates the risk of further commission of the misconduct and/or for the continued protection of the public from harm. As such, much will turn on the individual circumstances of each case.  In the instant case, Popplewell LJ concluded, "...the suspension was required to rehabilitate him so as to remedy his continued impairment to practice through lack of insight; to remove or mitigate the risk of further commission of the misconduct; and for the protection of the public from harm. The six month period was necessary for those objectives, to which the period spent suspended under interim suspension orders was irrelevant. In those circumstances there was no error in the Tribunal failing to reduce it on account of the interim suspension orders."

Comment

This case reminds us that the Article 10 right to freedom of expression is a qualified right. Exercise of the right may be restricted when necessary in the interests of public safety, for the protection of public health and for the protection of others. Regulated professionals are held to a higher standard than members of the public due to their professional status and the resultant trust the public places in them. In this case, the way in which the appellant used his medical expertise and experience as he did, he intended to give his “baseless” and “dangerous” comments credence that they may otherwise not have had. It was reasonable to assume that members of the public may have followed his advice in ignoring the threat posed by Covid-19 given his assertions, which was clearly a threat to protection of the public. Protection of the public is the core purpose of a regulator and so it was entirely proper for his regulator to intervene.  Further, it was or should have been reasonably foreseeable to him that his actions might have conflicted with the professional standards set by the GMC.

The Court of Appeal made it clear that a doctor expressing a minority view is not, of itself, sufficient to amount to misconduct. There are many matters of medical debate and the fact that a doctor’s view is shared by even a small minority of his peers would not be sufficient to render the doctor’s conduct improper. However in this particular case, the relationship between the views expressed by the appellant and widely accepted medical opinion was not irrelevant to the question of whether his conduct undermined confidence in the profession. This was because of the extreme nature of his views that he asserted as fact and how far they departed from the widely accepted medical opinion and advice being provided at the time.

Regulated professionals must therefore be careful that they do not use (or abuse) their professional status and experience to give credence to views that risk protection of the public. If they do, they cannot expect to rely on their Article 10 rights to avoid disciplinary action by their regulator.

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