A doctor suspended for his comments about Covid 19 has lost a further appeal to the Court of Appeal.

Adil v General Medical Council [2023] EWCA Civ 1261 (02 November 2023), concerns disciplinary proceedings against a doctor which engage the right to freedom of expression guaranteed by the common law and under article 10 of the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’). The grounds of appeal raised issues only under article 10 of ECHR and not at common law.

The appellant is a colorectal and breast surgeon who has been registered since 1990, having qualified in Pakistan. A medical practitioners tribunal (‘the Tribunal’), which is a committee of the respondent, the General Medical Council (‘the GMC’), found that he was guilty of misconduct in relation to what he said about the Covid-19 pandemic in videos posted on YouTube between April and October 2020; and imposed a sanction of six months’ suspension with a review. He appealed to the High Court against the finding of misconduct and the sanction. His appeal was dismissed by Swift J which gave rise to the case in the Court of Appeal.

Grounds of Appeal

There were three grounds of appeal. Lord Justice Popplewell commented:

“The first two essentially repeat grounds 1 and 2 advanced before the Judge. Ground 1 is that the GMP and SM Guidance do not meet the “prescribed by law” condition in article 10.2.

“Ground 2 is that the decisions of the Tribunal do not meet the tests of necessity or proportionality in article 10.2. The appellant’s written skeleton argument relied on article 9 in addition to article 10, although it was not mentioned in oral argument. Article 9.1 protects freedom of thought, conscience and religion, rather than freedom of expression, and is not in my view engaged in this case. In any event article 9.1 is subject to the same qualifications in article 9.2 as are found in article 10.2, so far as relevant to this case, and so raises no issues which differ from those under article 10.

“The third ground of appeal challenges the sanction as disproportionate and inappropriate.”

For its part, the GMC sought to challenge the Judge’s conclusion that the terms of the Act were insufficient, without GMP and the SM Guidance, to meet the prescribed by law condition.

Insight Works Training

In turning down the appeal, Lord Justice Popplewell said the doctor’s comments regarding Covid-19 were “were baseless and dangerous”, saying:

“Where statements are made by a doctor invoking his status to engender trust and support in them, the extent to which the views are capable of medical and scientific support is a matter of importance. This is recognised by paragraph 68 of GMP which provides that in communication with patients and colleagues a doctor must make clear the limits of their knowledge and make reasonable checks to make sure any information given is accurate. Mr Hoar submitted that this was confined to existing clinical patients of the doctor, but there is no reason as a matter of language or good sense why this should be so. A doctor may express views on diseases or treatment to those he hopes will become clinical patients, for example by advertising; he may express such views to existing or potential clinical patients of other practitioners. All those to whom such views are expressed are encompassed by the expression “patients” in this paragraph because they may be expected to act on them in a way which affects their health and they are potentially NHS patients. It follows that, in my view, paragraph 68 is directly applicable to the appellant’s YouTube videos.”

He continued:

“…there is an important qualitative difference between a doctor’s views which have some supporting scientific basis, even if not widely accepted, and views whose validity or accuracy is unconnected to any supporting evidential basis, in other words baseless.”

Rejecting the third ground of appeal, Lord Justice Popplewell, said:

“Leaving aside, for the present, the significance of the interim suspension orders, the six month suspension in this case was both appropriate and proportionate. The misconduct was serious because it was damaging to public health, which was also one of the reasons it undermined confidence in the profession. The Tribunal found that at the date of imposing the sanction, the appellant’s fitness to practice remained impaired by his lack of insight, which meant that they could not conclude that the risk of his repeating his conduct had disappeared. The appellant still failed to recognise that it was a failure of standards of professional conduct to ignore his RO’s instructions to stop posting the material, and to mislead him by saying that he had taken down the videos or would do so when he had not and did not. These conclusions about lack of insight and risk of repetition were reached by an expert tribunal who had the benefit of seeing and hearing the appellant making submissions over a number of days, and should be accepted by this court, which does not have those advantages.”

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