News & Insights

Freedom of Speech and Fitness to Practise: Tribunals Must Apply a Higher Test Before Restricting Speech

07/03/2022

Vanessa Reid considers a recent High Court decision relating to interim conditions preventing a doctor from using social media to share any views whatsoever relating to the Covid-19 pandemic. The decision makes clear that fitness to practice tribunals must look more closely at the ultimate merits of a case before imposing restrictions on a registrant’s freedom of expression.

INTRODUCTION

The recent High Court decision in Dr Samuel White v General Medical Council [2021] EWHC 3286 has clarified the approach that professional disciplinary tribunals must take when considering restraints on a registrant’s freedom of expression at the interim order stage.

The decision makes clear that interim order tribunals must apply the test set out in section 12(3) of the Human Rights Act 1998, which establishes that a court should not restrain publication prior to final determination of the issues in a case unless it is satisfied that it is “more likely than not” that it will be established at the final hearing that publication should not be allowed. This necessarily requires an examination of the substantive merits of the case and is therefore in tension with the standard guidance on imposing interim orders, which emphasises that interim order tribunals typically do not make findings of fact or resolve disputes of fact.

This decision is particularly significant in light of the increasing number of professional discipline cases addressing speech related to the Coronavirus pandemic and its attendant controversies, as well as the general increase in scrutiny of the use of social media by registered professionals.

BACKGROUND

The allegations against Dr White related to a video he posted on YouTube expressing his views about Covid-19 policies and practices. In the video, Dr White complained that doctors and nurses were being prevented from providing effective treatments for Covid-19, naming hydrochloroquine, budesonide inhalers, and ivermectin as “safe and proven treatments” that he had been prevented from offering to patients. These are controversial treatments for Covid-19 and their efficacy has not been widely accepted in the medical profession.

Dr White went on to question the safety of the Covid-19 vaccine and the need to have it. He raised concerns about PCR testing for Covid-19, claiming that the false positive rate was greater than 90%. One of his final claims was that “masks do absolutely nothing.”

In response to the publication of this video, the General Medical Council (“GMC”) commenced proceedings against Dr White and referred him to the Interim Orders Tribunal (“IOT”) for it to consider restrictions on his medical practice under section 41A(1) of the Medical Act 1983.

The GMC alleged that Dr White had spread misinformation and inaccurate details about Covid-19 and how it is diagnosed and treated, including that the vaccine is a form of genetic manipulation which can cause serious illness and death and that patients should not wear masks. The GMC alleged that by disseminating this misinformation Dr White had potentially put patients at risk and diminished the public’s trust in the medical professional.

INTERIM ORDER TRIBUNAL PROCEEDINGS

At the IOT hearing, the GMC submitted that conditions on Dr White’s registration were necessary but made no submissions as to what specific conditions were appropriate. The GMC stated that the issue would be whether Dr White’s communications fell within the bounds of legitimate freedom of speech protected by Article 10 of the European Convention on Human Rights (“ECHR”) or whether it went beyond “legitimate medical comment to conspiracy theories.”

Dr White prepared a lengthy witness statement disputing the GMC’s allegations and standing by the substantive claims made in his YouTube video. He produced an extensive volume of literature and scientific and medical opinions which he contended supported his opinions. Dr White’s representative made submissions in relation to ECHR Article 10 and the potential infringement of the right to freedom of expression that was at stake.

At the end of the hearing, the Chair of the IOT set out the approach she and her colleagues were proposing to take, making reference to the ordinary guidance and procedures for considering applications under section 41A.

The IOT concluded that in all the circumstances there was information to suggest that Dr White might pose a real risk to public safety if he were permitted to remain in unrestricted practice, given the nature of the concerns raised, and that public confidence in the profession might be seriously undermined in light of the public nature of the alleged misinformation posted by Dr White. The IOT noted that it had considered the submissions made in relation to Dr White’s right to freedom of expression, but that it “considers that Dr White’s manner of expressing his own views to the general public may have a real impact on patient safety.”

The IOT therefore imposed an 18-month interim order of conditions of practice which included the following conditions:

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.

RELEVANT LAW: FREEDOM OF EXPRESSION

Article 10 of the ECHR

Article 10 of the ECHR provides that: “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…”

Article 10 is a qualified right, subject to conditions and restrictions as prescribed by law where necessary to further the legitimate aims of a democratic society. Two of the qualifications specifically identified within article 10(2) are the aims of pursuing public safety and the protection of health. The right to freedom of expression is therefore not absolute, but subject to the limits of proportionality.

Section 12 of the HRA 1998

Section 12 of the Human Rights Act 1998 applies where a court is considering whether to grant any relief which, if granted, might affect the exercise of the right to freedom of expression under the ECHR. Section 12(3) states that: “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.”

Lord Mance set out the approach to section 12 in paragraph 19 of PJS v News Group Newspapers Limited [2016] UKSC 26 judgment: “[T]he general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court that he will probably (‘more likely than not’) succeed at the trial.”

HIGH COURT PROCEEDINGS

Dr White challenged the IOT’s decision on a number of grounds. The High Court decision, delivered by Dove J, focused on Dr White’s arguments that in reaching their conclusion the IOT failed to afford sufficient respect to the claimant’s right to freedom of expression under Article 10 and failed to have adequate regard to the high test to be satisfied before such restrictions could be imposed.

It was not disputed that section 12 of the 1998 Act was applicable to proceedings in the IOT, that section 12(3) applies to any application for prior restraint of any form of communication that falls within Article 10, or that the IOT had imposed conditions which restrained Dr White’s ability to express his views before trial. The High Court found that section 12(3) of the 1998 Act was therefore engaged, although this specific statutory provision had not been raised by either of the parties.

The High Court found that it was clear that the IOT did not direct themselves to the test required by section 12(3). There was no reference anywhere in the IOT decision to section 12 and the IOT were not directed in relation to this statutory provision. It was evident from both the observations of the chair during the hearing and the subsequent written determination that the IOT had approached this case on a “conventional” assessment of the balance of risk and proportionality.

As Dove J noted, this was perhaps unsurprising, as there is no reference in the IOT Guidance to the approach to be taken where there is an application to impose conditions preventing a medical practitioner from exercising his right to freedom of expression. The Guidance in fact expressly states that “the IOT does not make findings of fact or resolve disputes of fact.”  

Dove J rejected the GMC’s submissions that the assessment made by the IOT was effectively the equivalent of the test under section 12(3) or, alternatively, that the findings made by the IOT would satisfy the test. He noted that section 12(3) requires a specific enquiry into the merits of the case, which the IOT expressly did not undertake.

The High Court found that the failure to allude to section 12 or apply the test which it requires was clearly wrong and could not stand. Dove J emphasised that the IOT decision was wrong from a purely procedural perspective and that the decision had no bearing whatsoever on the substantive merits of the parties’ competing positions.

As a final observation, Dove J noted that there were potentially troubling aspects of the nature of the challenged conditions that might offend the proportionality principle. In particular, condition 4 as it was drafted by the Panel would have prevented Dr White from expressing even conventional views about the pandemic, including views which the GMC supported. Dove J noted that “any condition proposing to curtail freedom of expression on an interim footing, in order to be proportionate, is likely to need to be specific as to what views or opinions the person subject to the order is precluded from expressing.”

CONCLUSION

The immediate consequence of the High Court’s decision in White v GMC is that interim order tribunals considering prior restraint of a registrant’s freedom of expression will need to consider the merits of the substantive allegations in order to determine whether it is “more likely than not” that it will be established at the final hearing that the speech should be prohibited. This is a significant departure from the standard procedure for interim order tribunals, which ordinarily do not make findings of fact or resolve disputes of fact.

Some ambiguity remains regarding what, exactly, will need to be established at the interim order stage in order to meet this test. Restrictions on speech as a temporary condition of registration are one of many possible sanctions which a tribunal may impose at the end of fitness to practise proceedings, and will depend on their findings regarding the Registrant’s impairment at that time, among other considerations. It is not within the powers of a fitness to practise tribunal to impose a permanent ban on publication, and any conditions restricting speech will be tied to registration status. This is in contrast to, for example, a civil action for an injunction prohibiting speech, in which the central issue to be determined at trial is whether publication should be prohibited. In addition, interim order applications are often made at an early stage of proceedings before full evidence is available.  

Further difficulty arises in the context of restricting speech relating to Covid-19 controversies, which clearly divide some members of the profession, but undeniably have the potential to bring the medical profession into disrepute and to increase the risk to patients who are exposed to misinformation. Where an allegation of disseminating misinformation has been made, it will be incumbent on a regulator to adduce medical and scientific evidence which is capable of establishing which information is correct and which amounts to misinformation.

This case illustrates yet more ways in which both the Covid-19 pandemic and the rise of social media are shaping the development of law and creating new and difficult considerations for regulatory practice. Regulators, tribunals, and practitioners alike will have to remain flexible and continue to adapt to the changing landscape.

PRACTICAL TIPS FOR PRACTITIONERS

  • The test to be applied in cases where an interim restriction on speech is sought is whether it is “more likely than not” that the regulator will succeed in establishing at the final hearing that the speech should be prohibited.
  • At interim order hearings in which restrictions on speech are at issue, both regulators and registrants will need to be prepared to make robust submissions regarding the ultimate merits of every stage of the case, including submissions on the likely sanctions to be imposed at the conclusion of fitness to practise proceedings.
  • Any condition restricting speech must be specific and narrowly tailored in order to comply with the proportionality requirement of the ECHR.
  • Regulators should consider making submissions regarding the specific conditions said to be necessary at the interim order stage rather than leaving the formulation of conditions to the tribunal.

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