Dr White, a GP, was called to attend a GMC Interim Orders Tribunal “IOT” hearing on 17 August 2021 following a social media video which he had made about the COVID-19 pandemic. Dr White publicly expressed views contrary to mainstream public opinion and contrary to the advice issued by the UK governments and the NHS about measures to tackle the covid-19 virus. He has been critical of covid-19 vaccines, mask wearing and PCR tests.
The GMC alleged the doctor had spread misinformation and inaccurate details about the virus.
IOT determination
The IOT referred to their guidance which requires them to assess the risk which a doctor might pose to the public, and also to the public’s confidence in the profession if the doctor in question continues to hold unrestricted registration.
The IOT noted the doctor’s use of social media platforms to share his views in his capacity as a registered doctor to a “possibly uninformed audience” and given the submissions made by his legal representative, they were of the view that there was a high chance the doctor would repeat his behaviour. They decided to impose an order of interim conditions. They set conditions restricting the doctor’s ability to post or share his views about the COVID-19 pandemic and its associated aspects on any social media platform. The conditions also required the doctor to remove his previous posts on these matters.
Dr White’s High Court application
The doctor made an application to the High Court arguing the conditions breached his rights to freedom of expression.
On 3 December 2021 Mr Justice Dove agreed the conditions did limit the doctor’s right to freedom of expression protected by Article 10 of the European Convention of Human Rights “ECHR”.
In reaching their decision the Judge said the IOT had also failed to consider article 12 (3) of the Human Rights Act 1998, which required the IOT to be satisfied that a final hearing of the issues would likely determine the publication should not be allowed. Neither the GMC nor Dr White’s representative had drawn the IOT’s attention to article 12 (3) of the 1998 Act.
In his judgment, Mr Justice Dove went on to conclude the IOT had erred in law and had been wrong procedurally in its approach. When it comes to considering the impact on freedom of expression, he suggested the IOT needed to take a less conventional approach to its assessment of risk and proportionality.
Our comments
The IOT is tasked only with considering the information which it has in front of it on that day. Many IOTs are convened early on in an investigation before all the information is known. It is not a fact-finding panel, and so although it is caught by article 12 of the Human Rights Act it would probably have difficulty in carrying out the assessment required under article 12 (3).
A different IOT panel might have suspended the doctor on an interim basis on the grounds of public interest and protection. This would have restricted the doctor’s practice but would not have infringed upon the doctor’s right to freedom of expression.
The GMC might reconsider its guidance as currently there appears to be no guidance in relation to freedom of expression, perhaps a new phenomena of the covid-19 pandemic.
