Over the past two years of the pandemic, there has been a more or less continuous stream of guidance and data about Covid from the Government, NHS, SAGE and local public health authorities. This has become a normal feature of our daily life.
At the same time, advice offered on social media often takes issue with official guidance, whether concerning the efficacy and safety of vaccination, or whether lockdown measures have been for the benefit of society and, recently, on whether it is justifiable to make vaccinations mandatory for employees in certain fields of work.
Some would argue there has been a steep increase in the spread of misinformation and divisive stances around science-based public guidance, voiced under the banner of freedom of expression.
The case of Dr Sam White
This recent GMC case raises important questions about freedom of expression by medical professionals on these particular matters, but also more generally. GP Dr White openly criticised official NHS advice and Government rules concerning the wearing of masks, the reliability of PCR testing, and vaccine efficacy.
The GMC opened an investigation into whether his social media posts constituted professional misconduct because they presented a risk to the public. He was called to an Interim Orders Tribunal (IOT). The IOT had to consider whether it should impose an interim sanction on Dr White’s registration while investigations were under way, so as to protect the public. It concluded it was likely he would continue posting his views to a ‘possibly uninformed audience’ and imposed an order of interim conditions attempting to restrict Dr White’s ability to post his opinions on social media platforms, and it also ordered him to remove his existing posts.
Dr White appealed to the High Court which, in December 2021, agreed with Dr White that his rights to freedom of expression had been breached by the interim order. Those rights are protected by the Human Rights Act 1998 which adopts the European Convention on Human Rights. The High Court quashed the interim order giving rise to a complex question around the GMC’s position on, and approach to, issues surrounding freedom of expression for healthcare professionals.
Where’s the line?
The GMC plainly overstretched itself in its approach to this case. GMC guidance to doctors does not say anything to suggest that it is unprofessional to express certain opinions about matters of health. As it stands, GMC guidance only refers to the writing of expert reports, advertising professional services and the need to preserve patient confidentiality when sharing information publicly, none of which had any relevance to Dr White’s case. Nor is any guidance available to IOTs on the difficult matter of balancing a doctor’s right to freedom of expression with its own perception of risk to the public or to public confidence in the medical profession.
It would surely be untenable for the GMC to allege professional misconduct about matters on which it has published no rules, principles or guidelines. Dishonesty, it might be objected, is plainly unprofessional, but it was not alleged that the opinions Dr White had expressed were not honestly held and would be difficult to prove as such even so.
Has a precedent been set?
At this point, it is worth noting that the IOT is not a fact-finding panel. It is tasked only with considering the information that it has in front of it on the day of its risk assessment. As such, healthcare professionals should not assume that Dr White’s case sets a precedent for them to express any view they want without repercussions.
For example, a different IOT may have concluded there were no workable conditions and instead opted to suspend the doctor on the grounds of public safety and maintaining confidence in the profession. This would have restricted the doctor’s practice without infringing on his right to free expression.
Where possible, it is perhaps best to seek advice first before issuing any controversial statements in public.
Going forward
Covid has exacerbated sensitivities around the spread of misinformation, and there is a good chance greater public and professional scrutiny over science and official health guidance will continue beyond the pandemic.
If the GMC wishes to make the expression of certain views a matter of potential professional misconduct, or (for example) if it wishes to make it a professional rule that any publicly expressed views on medical matters must be supported by evidence of a certain quality, then it should set out its rules on the matter. Those rules must be sufficiently clear that they can be understood by members of the medical profession. Further, any such rules should be supplemented by guidance not only for the profession, but also for the Tribunals which will have to apply them, namely the Interim Order Tribunal and the MPTS.
Deepika Raino is head of practice professional discipline at Adkirk Law
READERS' COMMENTS [4]
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The GMC needs clarification. A charcoal filter or degreaser perhaps. The GMC code of practice looks quite comical alongside the Politicians ministerial code. Frank hipocrasy is what we have all learnt. It’s all there, plain to see what’s going on. Truth and transparency are dirty words these days. But the doctor must hold the beacon of light, and ultimate persecution. This free system, where the opposite integrity, actions and responsibilities are permissible by the system itself and encouraged by even the customer, and its own leaders. Let us not even start with the Health secretary, nor Prime Minister. Their corruptions are well cited. Leaders in one’s own back yard, Professors – so called “colleagues”, the “advisors” – you know the group, have tactically worked against your freedom and resolve, and even autonomy of recent weeks. Appointed to do the deed of translating what they say, to what you must do. “Leaders” – converted doctors. There is much to write and think about that. Their partying, manipulations and savvy trade is admirable. One-way traffic. Double standards everywhere. Healthcare staff, shackled by a standard so elevated into the clouds with a pseudo-evangelical set of commandments, but treated themselves like slaves, criminals and perpetrators like they’re the consistent problem and untrustworthy noise, not the solution or saviour to a beleaguered society of woes and mortal suffering. Comical. Anyway, the Government institutes have shown clear evidence of seeded corruption, running through hierarchies, procurements and secrecy. The Department of Health is just one arm. The GMC perhaps a soulless vacuum. The CQC it’s shadow. All layers of hypothetical policing, dismissal and intimidation – to keep their noses “clean”, and you in the limelight of golden standards and ethical morse codes, not upheld by the policy makers themselves. Based on little reality, probable jealousy, and a perverse sense of control. But they never looked in the mirror. *Hadiza Bawa-Garba and countless others. Their friends got away with it, yours didn’t. The system has done incredibly well to silence carers, that deserves an MBE, CBE or OBE, but itself will now run from it’s own countless cover-ups under it’s own roof, as the universe continues to do it’s rounds.
I don’t really understand. If we are commenting in a private not a proessional capacity; ie on a personal social media page not a professional one, then the GMC has no role. We don’t have a public ofice, unlike politicians, so we can’t commit any offences in public office. What in God’s name does our posting on our personal facebook page, in a personal capacity have to do with our professional role. Maybe we just put a disclaimer at the start of every post; posting in a personal not a professional capacity. That should cover it. GMC seem to have got their knickers in a twist. Posting information that doesn’t match government guidelines is not a criminal offence. Posting in a personal capacity doesn’t interface on our professional role. I just don’t see any legal basis for any of this hoo ha.
Where possible, it is perhaps best to seek advice first before issuing any controversial statements in public.
^^ I love this- the nebulous nature of the language used is indicative of a masterly legal mind- “possible”, “perhaps” “best to” etc etc. Who would bestow “advice”? Are controversial views simply those which no longer have cultural acceptance, or are yet to get such acceptance?
Culture, language and meaning (which is always applied to language and not an existential feature of it) are deeply entwined, and their effects on perception are poorly appreciated. Social media is simply a new domain where such ignorance is allowed to thrive. Opinions abound, and it does not take much contemplation to see that nobody ever has “all the information” to produce an absolutely irrefutably informed position, and yet each shoshul meejar user is wedded to their opinion as if they do have all the info. Tragic but quite amusing simultaneously.
The GMC needs to get lost and stop infirnging people’s personal liberty.