As time goes on, I’m seeing more fitness to practise cases arising from COVID19-related activities.
My colleagues and I have previously posted about the Irish GP interim suspended after describing COVID-19 as a hoax and the first UK nurse struck off by the Nursing and Midwifery Council (NMC) as a result of COVID-19 denial activities.
On Friday, the High Court handed down a Judgment quashing the GMC interim order of conditions previously imposed on a GP, Dr Samuel White, as a result of his actions arising from the pandemic. Dr White came to the GMC’s attention as a result of “spreading misinformation and inaccurate details about the Coronavirus and how it is diagnosed and treated”. His comments have included assertions that the COVID-19 vaccine “inserts a code”, masks do “absolutely nothing” and hydroxychloroquine, budesonide inhalers and ivermectin are “safe and proven treatments”.
The interesting point arising from Dr White’s High Court appeal is the technical point on which he won. The High Court found that the Medical Practitioners Tribunal Service (MPTS – the adjudication wing of the GMC) panel made an error of law in not properly considering the test required by section 12(3) of the Human Rights Act 1998 when deciding whether to impose an interim order.
The usual legal test for imposition of an interim order is set out at section 41A of the Medical Act 1983. This provides that an interim order of suspension or conditions may be imposed on a doctor’s registration if the panel is satisfied that an order is:
- necessary for the protection of members of the public, or
- is otherwise in the public interest, or
- is in the interests of the person concerned.
In Dr White’s case, the interim conditions imposed on his registration required him not to use social media to share any views about the COVID19 pandemic and to try and remove any pre-existing posts sharing his views. These conditions clearly interfered with Dr White’s Human Rights Act Article 10 right to freedom of expression.
When deciding whether to impose an interim order, the MPTS panel applied the conventional legal test of section 41A Medical Act 1983. However, the Human Rights Act includes a specific provision relating to the granting of interim relief in cases engaging freedom of expression. Section 12(3) provides that, where a court is considering whether to grant any interim relief, “no such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”.
The Court held that the MPTS panel fell into error by not appreciating and applying the specific provisions which ought to be considered in any interim order application seeking to restrict a doctor’s freedom of expression. Essentially, the MPTS panel should have asked themselves “will the GMC probably succeed at the final fitness to practise hearing in imposing the restriction now sought?”.
The Court quashed the interim order on Dr White’s registration and declined the GMC’s invitation to “in effect, entirely remake the decision applying correct legal principles”.
It seems likely that the GMC will make a fresh application for an interim order. The Court emphasised that “the decision was wrong from a purely procedural perspective” and the Court’s decision “has no bearing whatever on the substantive merits of the parties’ competing positions on the issues”.
If you need assistance in relation to any fitness to practise or interim order matter, please don’t hesitate to contact me.