High Court holds Interim Orders Tribunal failed to apply correct test in freedom of expression case22/03/22
The High Court has overturned a decision of the Interim Orders Tribunal (IOT) of the General Medical Council (GMC) to impose conditions on the registration of a doctor prohibiting him from using social media to share his views on Covid-19 and related issues (White v General Medical Council  EWHC 3286 (Admin)).
Disregarding the rights and wrongs of certain viewpoints, this important case provides guidance to regulatory tribunals on the correct approach to take when considering interim orders which may affect freedom of expression under the European Convention on Human Rights (ECHR).
In this insight, Cameron Scott explains the judgment and its potential effects for professional regulators.
Dr White is a GP with an unblemished career. He was suspended by his local NHS Trust in June 2021 following his publication of a video on social media in which he, amongst other things, expressed his strong views questioning the Government’s response to the Covid-19 pandemic, raising concerns about the safety of vaccines and claiming that masks were not effective. He referred to a number of websites which he claimed supported his views.
The suspension was revoked but the matter was taken up by the GMC who referred it to the IOT to consider restrictions on Dr White’s practice. The GMC alleged that:
- Dr White spread misinformation and inaccurate details about coronavirus and how it is diagnosed and treated.
- He potentially put patients at risk and diminished the public’s trust in the medical profession.
- He signposted viewers of his video to others on the internet who promoted inaccurate or untrue information.
The IOT’s decision
Under section 41A of the Medical Act 1983, the IOT has power to suspend or impose conditions on a person’s registration if they are satisfied that it is necessary for the protection of the public or is otherwise in the public interest or is in the interests of a registered person.
IOT Guidance lists a number of factors to be taken into account when considering making an Interim Order. It also considers specific situations in which Interim Orders might be considered (such as sexual misconduct and criminal charges) but these do not include the expression of controversial views.
At the IOT hearing, Dr White submitted a lengthy witness statement and exhibited scientific and medical opinion in support of the views expressed in the video. The IOT did not make any findings of fact about the allegations. However, it formed the view that the manner in which he expressed his views could have a real impact on public safety. It said that doctors have a responsibility to provide sufficient and balanced information about Covid-19 to allow patients and other members of the public to make an informed choice. Dr White did not do this. Further, the strength of his views on the subject meant that his conduct was likely to be repeated
It was decided that Dr White “may pose a real risk to public safety” and that public confidence in the profession may be undermined. It therefore made an interim order placing conditions on his registration including that:
- He must not use social media to put forward or share any views about the Covid-19 pandemic and its associated aspects
- He must seek to remove any social media posts he has been responsible for or has shared relating to his views on the Covid-19 pandemic and its associated aspects.
Dr White’s application to the Court
Broadly, there were two strands to Dr White’s application. First, he alleged that the tribunal had been wrong to find that he had spread disinformation; and second, that they had not afforded sufficient respect to his right to freedom of expression under ECHR Article 10.
Dove J, in overturning the IOT’s decision, decided, probably wisely, to avoid the first strand (which would undoubtedly have found him wading into the Covid-19 anti-vax/ mask debate) and, instead focussed on Article 10 and section 12 (3) of the Human Rights Act 1998 (HRA). He recognised that freedom of expression is of course not an absolute right and Article 10 allows it to be subject to restrictions in various circumstances including in the interests of public safety and for the protection of health. However, section 12(3) provides that, in cases where a court is considering making an order which might affect the right to freedom of expression:
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.
The judge found that this provision applied to the IOT in this case. In other words, before placing restrictions on Dr White’s registration which would effectively curtail his freedom of expression, the IOT should have considered whether the GMC would probably succeed at a final tribunal hearing in imposing these restrictions. As the IOT did not consider this, the decision was legally flawed and could not stand. However, Dove J. was at pains to state:
The decision was wrong from a purely procedural perspective… that outcome arises purely as a result of a misdirection on the procedure … and has no bearing whatever on the substantive merits of the parties’ competing positions on the issues.
He suggested that the GMC may wish to ask the IOT to reconsider the case. However, he did raise concerns about the proportionality of the conditions which were imposed and stated that any such conditions would need to be specific as to precisely what views the person was prohibited from expressing in order to be proportionate.
What the case means for future interim orders
This decision potentially places a significant restriction on the ability of any tribunal which has the power to make interim orders which might infringe a person’s right to freedom of expression under Article 10. (It is worth noting that the HRA does not impose a similar restriction in relation to interim orders affecting Article 9 rights – Freedom of Thought, Conscience and Religion).
Tribunals will need to conduct an enquiry into the merits of the case and come to a decision on the likelihood of the relevant regulator succeeding in preventing the expression of their views at a final hearing. In Dr White’s case, this would undoubtedly have involved a lengthy consideration of medical and other opinion evidence relating to vaccines, masks and other aspects of the response to Covid-19.
Given the subject matter, and its potential effect on other cases in which controversial views are expressed by medical professionals, this is an important issue and we await with interest to see whether the GMC will indeed ask the IOT to reconsider Dr White’s case and how it, and other healthcare regulators, will approach similar cases in future.
How Capsticks can help
We have represented numerous regulators for more than 20 years. With a large team of specialists, we help regulators to deliver the right outcomes, in the right time frame, on the right budget. Our practitioners have a vast amount of experience in handling cases involving interim orders. We also have a large team of advocates who regularly present cases before interim order committees as well as substantive committees, and in the appellate courts.
For more information on any of the issues discussed in this insight, please contact Cameron Scott or any of your regular contacts at Capsticks.