We look at a recent appeal case involving the General Medical Council (GMC), which highlights key considerations for regulators when pursuing allegations of social media misconduct in respect of registered persons’ use of social media, and the application of Article 10 of the European Convention in Human Rights (Article 10) – Freedom of expression.
Adil v General Medical Council  EWHC 7979 (Admin)
Mr Adil was suspended for a period of six months in June 2022 by the Medical Practitioners’ Tribunal (the Tribunal), following allegations that he used his position as a doctor to promote his views about Covid-19 on social media. At the time of events, Mr Adil worked as locum consultant colorectal surgeon.
The allegations of social media misconduct which were the subject of the appeal, related to Mr Adil’s appearance in videos published on YouTube between April and October 2020. In summary, it was alleged that Mr Adil had made a number of claims in respect of Covid-19. For example, that it did not exist; that it was a conspiracy made up by the UK, Israel and the US; that the pandemic was a scam manipulated for the benefit of Bill Gates, pharmaceutical companies and the World Health Organisation. It was alleged that Mr Adil used his position as a doctor to promote these views.
Grounds of appeal against social media misconduct
The appeal was brought in respect of Mr Adil’s rights of freedom of expression in respect of Article 10. Mr Adil appealed the Tribunal’s conclusions on misconduct and impairment, on the basis that they:
- (1) interfered with his Article 10 rights in a way that was not prescribed by law, and/or
- (2) that they were a disproportionate interference with those rights.
- It was also said that (3) the Tribunal was wrong to conclude that expressing views ‘outside widely accepted medical opinion’ was justification for interference with Mr Adil’s Article 10 rights.
- Further grounds for appeal put forward, were that, (4) there was no evidence to conclude that what Mr Adil had said, damaged the reputation of the medical profession, and
- (5) the sanction of suspension and imposition of an immediate order were disproportionate.
The appeal was heard by Mr Justice Swift, who held that the appeal was dismissed on all grounds.
The dismissal of the appeal will be of interest to regulators when considering whether to take action where they consider that the published opinions of a registered person may amount to social media misconduct.
Key points for regulators to note arising from this decision include:
- The judgment shows that obligations provided for within a regulator’s guidance documents, are sufficient for the purposes of the ‘prescribed by law’ condition set out within Article 10.
- Where such guidance is relied on in the allegations formulated, it is advisable for express reference to be made to the relevant guidance within the charges.
- Consideration must be given to whether it was (or should have been) reasonably foreseeable that a registered person’s actions might conflict with the professional standards set out by a regulator.
- When considering whether an interference with the right to freedom of expression is justified, the margin of appreciation that a court should afford a decision-maker is a narrow one.
The right to freedom of expression is a right jealously guarded.
- The maintenance of the good-standing of a profession is pursuit of a legitimate objective for the purposes of Article 10(2), and the opinion of a specialist tribunal on what is necessary for this objective is highly relevant in applying Article 10(2).
- Where a registered person presents themselves as a professional within social media content, it cannot be said that they were acting outside the professional sphere.
- A key consideration for a regulatory tribunal in assessing whether interference with Article 10 rights is justified, is whether such content, on the basis of a registered person’s credentials, is likely to diminish public trust in the profession.
- Where a registered person’s professional opinion is so far removed from, “any conceivable notion,” of received opinion, reference to ‘widely accepted’ opinion’ is not decisive.
- Whether conduct tended to diminish public trust and confidence in a profession, requires a specialist tribunal to apply its own expertise to assess whether, objectively, the conduct had that effect on ordinary, reasonable members of the public. Specific evidence on the issue is not necessary because it is an objective standard to be applied by the tribunal.
As the conduct of professionals on social media comes under ever increasing scrutiny, regulators may wish to review their guidance documents and communications relating to social media misconduct. Where such guidance documents are relied on, it is also advisable to make express reference to them within the allegations put before a tribunal.
For professional advice on best practice for guidance and communications, or for support in dealing with social media misconduct, contact Blake Morgan’s specialist regulatory lawyers.
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