The limits of free speech for regulated professionals – an update on Adil v GMC

If you are one of our regular Newsletter readers you may remember our article on Adil v GMC [2023] EWHC 797 (Admin). In that case the High Court ruled that Covid conspiracy theories were not protected speech under Article 10 of the European Convention on Human Rights. The case has now been to the Court of Appeal [[2023] EWCA Civ 1261], and in a judgment earlier this month the decision of the High Court was upheld.

Mr Adil was a colorectal surgeon who published, on social media, his beliefs in a positively heroic variety of Covid conspiracy theories. They ranged from the virus not existing at all, to theories referring to the Bill Gates/Israel/USA/5G/microchips, not neglecting his belief that there would be enforced injecting of the population with a bogus vaccine in order to establish a New World Order. He was taken to a tribunal and suspended.

The appeal concentrated on the alleged violation of his Article 10 rights to Freedom of Speech. It was argued that the GMC rules and guidance (specifically Good Medical Practice and the GMC’s social media guidance) were not clear enough to amount to a prohibition on such speech being “prescribed by law”. The other main ground was that even if it was prescribed by law, the interference in his freedom of speech did not meet the required standards of necessity and proportionality.

The Court of Appeal found as follows:

1. The GMC rules and guidance were sufficient to satisfy the “prescribed by law” requirement. It followed the High Court by including the social media guidance in the material needed to establish that.
2. It also agreed with the High Court that it would be better if the allegations were formulated explicitly in terms of the guidance they breached, which raises the possibility that regulators will start to charge “contrary to Paragraph 65 of Good Medical Practice” and similar.
3. The speech was not protected because the views were plainly baseless (rather than a contribution to a legitimate debate), positively dangerous and he had leaned on his status and credibility as a doctor to promote them.
4. His position might have been more defensible if he was objecting to the restrictions the government tried to impose, rather than undermining belief in the reality of the health threat the government was informing the public about.

The court did not find this case difficult on the facts. Nevertheless, it is clear that there remains a high bar to restrictions on freedom of speech, and regulators should analyse carefully what it is about the speech that means it is not protected from suppression.

Ben Rich