A doctor suspended for 6 months, with immediate effect, has lost their appeal against the suspension in Adil v General Medical Council  EWHC 797 (Admin) (05 April 2023).
In this case, at the time of the events relevant to the Tribunal’s decision, the applicant worked as a locum consultant colorectal surgeon, first at the Chesterfield Hospital and then at the North Manchester Hospital NHS Trust.
The Tribunal took four decisions: a Determination on the Facts (made on 21 June 2022); a Determination on Impairment (made 27 June 2022); a Determination on Sanction (made on 29 June 2022); and a Determination on Immediate Order (also made on 29 June 2022). The Tribunal concluded that the applicant’s registration in the register of medical professionals should be suspended for six months and that immediate suspension was necessary – i.e., that “in order to protect public confidence in the medical profession” the applicant would be suspended pending any appeal against the substantive suspension order.
The allegations before the Tribunal fell into two broad groups. The first group concerned treatment he had provided at the Chesterfield Hospital in November 2019 to a patient referred to as Patient A. There were six such allegations. In its Determination on the Facts, the Tribunal concluded that only three of these allegations were proved. At the Determination of Impairment stage, the Tribunal concluded that none of those three matters amounted to misconduct and that none demonstrated any impairment of the applicant’s fitness to practise. None of these matters were therefore the subject of this appeal.
The second group of allegations concerned matters that took place when the applicant worked at the North Manchester Hospital NHS Trust. These allegations did not concern treatment given to any patient, but rather his appearances in videos published on YouTube between April 2020 and October 2020. The allegations relate, in summary, to him saying that Covid-19 disease do not exist (or words to that effect) and that Covid 19 pandemic is a conspiracy.
Grounds of appeal
The grounds of appeal focus primarily on whether the Tribunal’s decisions are consistent with the applicant’s article 10 rights. Ground 1 is that the conclusions on misconduct and impairment were contrary to article 10(1) because they give rise to an interference with article 10 rights that is not “prescribed by law” that, for that reason alone, does not meet the requirements laid down within article 10(2) and is unlawful. Ground 2 is that, in any event, the conclusions on misconduct and impairment are a disproportionate interference with the applicant’s rights under article 10(1).
Mr Justice Swift, hearing the appeal, found that, whilst the charges, were not formulated expressly by reference to the Good Medical Practice or by reference to the GMC’s Social Media Guidance;
“There is no dispute that the comments made by Mr Adil in the YouTube videos were made in exercise of his right to freedom of expression, protected by article 10. Nor is there any dispute that the Tribunal’s decisions concluding that those statements amounted to misconduct, that the misconduct was such as to amount to impairment of Mr Adil’s fitness to practise, and to impose a disciplinary sanction, each comprises an interference with Mr Adil’s article 10 rights.”
“The interest in preserving the article 10 right to freedom of expression is important. On an appeal … the question for the High Court was whether the Tribunal’s decision was “wrong”…. However, when deciding that question, because the decision-maker is a specialist adjudicative body for a profession, some significance must attach to its assessment, at least so far as the Tribunal is dealing with matters squarely within the scope of its expertise. This was the point explained at some length by the Court of Appeal in Bawa-Garba…. In the present case, the Tribunal applied its expertise in the course of the application of article 10 to Mr Adil’s conduct.”
“…given the facts of the present case, the reference to the “contrary to widely accepted medical opinion” standard when dealing with Mr Adil did not produce any breach of article 10. Whether a breach of article 10 has occurred is a matter of substance not form. What Mr Adil said (and through YouTube, broadcast) was so far removed from any conceivable notion of received medical opinion that the Tribunal’s reference to “widely accepted medical opinion” does not become close to being a decisive matter.
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