The limits of free speech for regulated professionals – Adil v General Medical Council  EWHC 797 (Admin)
Anyone who followed social media after the Covid 19 virus took over our lives in early 2020 will be depressingly familiar with the range of conspiracy theories that flourished in cyber-space. Users assertions included that the 19 virus did not exist, the ‘pandemic’ was a conspiracy brought about by the UK, Israel and America or a multi-billion pound scam for the benefit of Bill Gates and pharmaceutical companies, or (in contradiction) that Bill Gates had infected everyone in the world with the virus so he could make everyone take vaccines, which contained microchips which would further the 5G agenda and that a new world order was being imposed. Mohammed Adil, a consultant colorectal surgeon, subscribed to all of these views, and set them out in a series of videos on social media. In June 2022 he was suspended by a Medical Practitioners Tribunal for uploading the videos.
It was never suggested that he had expressed these views in the course of his work, or to patients directly, but in the videos he had traded heavily on the fact that he was a doctor with an unblemished career. At one point he promised to remove the videos, but then did not remove them and uploaded some more.
Mr Adil appealed against the decision mainly on the grounds that it was an unjustified interference with his Article 10 right to free expression, under the European Convention on Human rights, in that it was not “prescribed by law”. He further contended that one of the allegations (that his views were “outside widely accepted medical opinion”) could not amount to misconduct or be justified in the face of Article 10. Mr Adil’s appeal was dismissed, but in doing so the court had a number of significant things to say about Article 10 in its application to medical professionals.
Mr Justice Swift accepted that the point of the requirement that any interference should be prescribed by law was to provide foreseeability for people when they express their views. The GMC argued that Section 1(1A) and (1B) of the Medical Act (the overriding objective) when read with Section 35 (the power to provide advice to members of the profession on standards of conduct etc) were sufficient to provide certainly. Swift J disagreed. In fact he found that while Good Medical Practice was the most important to providing certainty, the GMC’s Social Media Guidance played an important role in explaining to any doctor how the general provisions of GMP would be applied in practice.
Although it did not taint the decision in this case, Swift J stated that it was an error by the GMC that some of the charges were not drafted in the terms of GMP and the Social Media Guidance [at para 18]:
“It is a matter of significant misfortune that in paragraphs 4a and 4b the misconduct alleged … is characterised (and classified as misconduct) by reference to rubrics that cannot be directly traced either to Good Medical Practice or any other GMC guidance. This risks the impression that the GMC is formulating the rules on what amounts to misconduct only after the event.”
It did not invalidate the decision because the issue was whether Mr Adil could foresee that his remarks would be unacceptable at the time he made them, and GMP and the Social Media Guidance would have made it clear to him that expressing his views in this way would not be acceptable.
The judge also rejected the submission that Mr Adil should not have been sanctioned as the offending statements were not made in the professional sphere. Here, it was important the extent to which he had emphasised his status as a doctor, and his seniority and expertise as a scientist.
Finally Swift J was not impressed by the charge alleging that part of the misconduct came from expressing views that were “contrary to widely accepted medical opinion”. He described is as a “hostage to fortune” which, in another case, might well indicate that the boundary with an unjustified interference in Article 10 rights had been crossed. However Mr Adil’s views were so extreme, and so potentially damaging to public health, that the challenge did not bite in his case.
This is an issue that is likely to occur frequently. The writer of this article recently dealt with a complementary therapist who had expressed his hostility to a particular therapy in ‘western’ medicine during a consultation with a patient who was taking it. He was found to have said that he would need to treat her to “stop you getting cancer” from the treatment. In a separate case, another complementary therapist faces accusations of persuading a patient (or possibly former patient) to stop taking some conventional medication which she had been prescribed, with the alleged effect that her condition deteriorated and only recovered when she restarted it. Given that complementary therapists are by their nature quite likely to be sceptical, to say the least, about some aspects of conventional medicine how far are they allowed to go to express those views?
What can be taken from Adil is that cases where Article 10 is invoked require a nuanced and detailed investigation of the extent of the restriction, and the justification for it. Regulators should draft allegations in terms of their rules and guidance if they wish to demonstrate that the restriction was foreseeable by the practitioner.