Surgeon’s YouTube Videos in Court of Appeal

2 November 2023

A surgeon launched a second appeal to the Court of Appeal in respect of disciplinary proceedings against him which engaged the right to freedom of expression guaranteed by the common law and under Art 10 European Convention of Human Rights and Fundamental Freedoms: Adil v General Medical Council [2023] EWCA Civ 1261 Bean, Popplewell, Dingemans LJJ

The surgeon, a colorectal and breast 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.

The Medical Practitioners Tribunal found him guilty of misconduct and imposed a suspension of six months. His first appeal to the High Court was dismissed by Swift J. Surgeon’s Covid Conspiracy Theories – Barry Baines; Adil v General Medical Council [2023] EWHC 797 (Admin)

Giving the judgment of the court, Popplewell LJ said that considering the appellant’s Art 10 rights, the key aspects of his conduct were that his views were (a) baseless and (b) dangerous.

The extent to which his views were capable of medical and scientific support was a matter of importance. There was an important qualitative difference between a doctor’s views which had some supporting scientific basis, even if not widely accepted, and views whose validity or accuracy was unconnected to any supporting evidential basis, in other words, baseless.

This was so as a matter of professional conduct when, and because, the views were being expressed in a form or manner which invoked the professional’s medical expertise in order to seek to give added credence to them. It might be a lawful exercise of freedom of expression for a member of the public to deny the existence of the virus or disease. But for a doctor to do so invoking his medical experience and expertise brought into play different considerations, in a disciplinary context, when considering the effect it may have in trust and confidence in the profession and on public health.

The Tribunal’s views were that in the context of the pandemic at the time such statements containing misinformation and conspiracy theories could be both confusing and destabilising. They breached the trust the public had a right to place in him as a doctor and his comments went far beyond helpful legitimate comment into the realms of scaremongering conspiracy theories. They would be considered deplorable by his peers.

The Court agreed with the Tribunal that the views were likely to undermine public health and safety. They were dangerous both in relation to social behaviour and in relation to vaccination, for reasons which did not trespass into the area of any medical or political debate on the lockdown or other requirements of the Government or the medical or scientific merits or disadvantages of vaccination.

There could be little doubt, in his Lordship’s view, that sanctioning the appellant for misconduct was in pursuit of the legitimate Art 10.2 aim of protecting public health and safety. It was well established that conduct was capable of amounting to professional misconduct notwithstanding that it occurred outside clinical practice.

“Misconduct” involved a standard of behaviour falling short of what was proper or reasonably to be expected of a doctor in the circumstances: Roylance v General Medical Council (No 2) [2000] 1 AC 311

It was quite clear from the published guidance that using one’s status as a doctor to promote views on social media which were baseless and damaging to patient health would be regarded as misconduct and attract disciplinary sanction. Making comments which were baseless and dangerous was self-evidently proscribed by para 65 of Good Medical Practice quite apart from para 68, and para 17 of the Social Media Guidance.

On the question of sanction, it had been repeatedly emphasised that the principal considerations in determining what sanction to impose were the message it sent to others so as to promote standards of conduct within the profession and the maintenance of public confidence in the profession, rather than deterrence or retribution for the individual concerned. This was also reflected in the GMC Sanctions Guidance.

A period of suspension was necessary in order to enable the appellant to gain insight into the seriousness of his conduct and avoid the risk of repetition. It directly engaged the need to protect members of the public from harm. Nothing less than suspension was sufficient to mark the seriousness of the offending in order to promote standards within the profession and public trust.

The six month period of suspension was relevant for those objectives, to which the period spent suspended under interim suspension orders was irrelevant. Accordingly, there was no error in the Tribunal failing to reduce it on account of the interim suspension orders.

The appeal was unanimously dismissed.

Cases Cited in Judgment:

Sunday Times v United Kingdom (1980) 2 EHRR 245
Sastry & Okpara v General Medical Council [2021] EWCA Civ 623
Bolton v The Law Society [1994] 1 WLR
Ghosh v General Medical Council [2001] 1 WLR 1915
Preiss v General Dental Council [2001] 1 WLR 1926
Marinovich v GMC [2002] UKPC 36
Gupta v General Medical Council [2002] 1 WLR 1691
Meadows v General Medical Council [2007] QB 462
Raschid & Fatnani v General Medical Council [2007] 1 WLR 1460
Bawa-Garba v General Medical Council [2019] 1 WLR 1929
DPP v Ziegler [2020] QB 253
In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32,] Forstater v CGD Europe [2022] ICR 1
The Sunday Times v United Kingdom (1979) 2 EHRR 245 ] Hertel v Switzerland (1998) EHRR 534
Bamgbelu v General Dental Council [2015] EWHC 4123 (Admin)
R (Pitt) v General Pharmaceutical Council [2017] 156 BMLR 222
Khan v Bar Standards Board [2018] EWHC 2184 (Admin)
Diggins v Bar Standards Board [2020] IRLR 686 
Remedy UK v GMC [2010] EWHC 1245
Chauvy v France (2005) 41 EHRR 29
Roylance v General Medical Council (No 2) [2000] 1 AC 311
Salisbury v Law Society [2009] 1 WLR 1286
Ujam v. General Medical Council [2012] EWHC 683 (Admin)