Surgeon’s Covid Conspiracy Theories
5 April 2023
A surgeon uploaded videos to YouTube between April 2020 and October 2020 to the effect that the SARS-CoV-2 virus did not exist, that the pandemic was a result of a conspiracy between the United States, the United Kingdom and the Israeli governments to impose a new world order, and was being exploited for profit by pharmaceutical companies, reputable medical organisations and Bill Gates.
His appeal against a finding of misconduct and impairment by the Medical Practitioners Tribunal resulting in a suspension of 6 months was dismissed by the High Court: Adil v General Medical Council [2023] EWHC 797 (Admin) Swift J
The doctor’s primary grounds of appeal focused on the consistency of the decision with his Art 10 ECHR rights. Art 10(1) was a right to freedom of expression without interference by public authority. That freedom may be restricted by such formalities or conditions prescribed by law: Art 10(2)[1].
The prescribed by law condition was a requirement for legal certainty; laws must meet qualitative standards of accessibility and foreseeability.[2]
The obligation within paragraph 65 of Good Medical Practice to maintain public trust in the medical profession was framed in general terms. The Social Media Guidance confirmed that the obligation applied when using social media, such as YouTube, and also made clear that “serious or persistent failure” that presented a risk to public trust in doctors could be misconduct. Although the obligation was stated generally, in the context of the regulation of a profession that was sufficient for the purposes of the prescribed by law condition.
The point was well made that that the charges against the doctor were not formulated expressly by reference to paragraph 65 of Good Medical Practice or by reference to the GMC’s Social Media Guidance, although his Lordship did not consider this error to be a matter of substance.
It was also a significant misfortune, and a point well made, that in paragraphs 4a and 4b the misconduct alleged against the doctor was characterised (and classified as misconduct) by reference to rubrics that could not be directly traced either to Good Medical Practice or any other GMC guidance, but that did not go to the legality of the Tribunal’s decision because they were no more than further particulars of paragraph 4c. That did not affect the prescribed by law condition.
Up to a point, the court accepted the submission that when the right to freedom of expression was justified, the margin of appreciation that a court should afford a decision maker was a narrow margin; the right to freedom of expression was a right jealously guarded. In deciding that question, because the decision-maker was a specialist adjudicative body, some significance must attach to its assessment, at least so far as the Tribunal was dealing with matters squarely within its expertise.[3] Moreover, maintaining the good-standing of the medical profession was, for the purposes of Art 10(2) pursuit of a legitimate objective. The opinion of a specialist tribunal was relevant to the application of Art 10(2).[4]
The court disagreed with the submission that when the doctor took part in the YouTube videos he was acting outside his professional sphere. It was significant that when taking part he presented himself as a doctor. The substance of the remarks squarely engaged his professional responsibilities.
It was also submitted that it was wrong for the Tribunal to address the matter before it by reference to a standard of whether what had been said was “contrary to widely accepted medical opinion” and that there was no evidence to support the conclusion that the doctor’s actions had undermined confidence in the medical profession.
Whether a breach of Art 10 had occurred was a matter of substance not form. What the doctor said was so far removed from any conceivable notion of received medical opinion that the tribunal’s reference to “widely accepted medical opinion” did not come close to being decisive.
A Tribunal such as this was required to apply its own expertise to assess whether, objectively, the conduct found to have occurred had the effect of diminishing public trust and confidence on ordinary, reasonable members of the public.
The upshot is that the public has been deprived of the services of a colorectal surgeon for six months because of what the majority of “ordinary, reasonable members of the public” would regard as his crackpot views about the Covid pandemic. These are the same members of the public who we are told are quite capable of putting prejudicial matters out of their mind in jury trials. Some may point out that this is 2023 not 1950 and members of the public are much more capable of identifying nutty theories that abound on Social Media.
This doctor has been punished not because he committed some sort of misconduct in his professional life but because he, a registered medical practitioner, in his private life made some extraordinary comments about the Covid pandemic. Saying things that may offend, shock or disturb others is part of free speech.
How does this conduct realistically touch upon his work as a colorectal surgeon? It is respectfully suggested that such conduct merely reflects upon him as an individual; it does not affect the standing of his profession or undermine confidence in his profession.
It is also, perhaps, time for a debate on the concepts of “upholding confidence in the profession” and “bringing the profession into disrepute”. Should either of them still be subject to regulatory sanctions?
[1] Art 10(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.
[2] Sunday Times v United Kingdom (1980) 2 EHRR 245
[3] General Medical Council v Bawa-Garba [2019] 1 WLR 1929
[4] Ghosh v General Medical Council [2001] 1 WLR 1915