White v General Medical Council [2021] EWHC 3286 (Admin) (03 December 2021)

Dr Samuel White sought a review of the decision of the Interim Orders Tribunal (“the IOT”) to impose conditions on his registration following a hearing on 17th August 2021. The conditions at the heart of this application are as follows:

4. He must not use social media to put forward or share any views about the Covid-19 pandemic and its associated aspects.

5. He must seek to remove any social media posts he has been responsible for or has shared relating to his views of the Covid-19 pandemic and its associated aspects.

The allegations which were pursued and which formed the basis of the subsequent IOT proceedings were specified as follows:

  • Through a social media video, Dr White spread misinformation and inaccurate details about the Coronavirus and how it is diagnosed and treated, including saying the vaccine is a form of genetic manipulation which can cause serious illness and death and that he advised against wearing masks.
  • Dr White has potentially put patients at risk and diminished the public’s trust in the medical profession by disseminating misinformation and inaccurate details about the measures taken to tackle the Coronavirus pandemic.
  • Dr White signposted viewers of his online video to comments and articles of others on the internet who share the same views as him and this raises concerns as those individuals also promote information which is inaccurate or untrue.”

In his seven-minute Instagram video, Dr White looked to explain why he had resigned from his job as a GP. He laid out his experience as a doctor and advised he was leaving conventional medicine to pursue a career in functional medicine. He said he could no longer work in his previous roles ‘because of the lies’ surrounding the NHS and government approach to the pandemic which have been ‘so vast’ he could no longer ‘stomach or tolerate’ them. He claimed doctors and nurses were ‘having their hands tied behind their backs’ preventing them from using treatments that had been established as being effective both as prophylaxis from Covid-19 infections and as treatments for it. He named hydroxychloroquine, budesonide inhalers and ivermectin as the drugs he was particularly concerned about. He called them ‘safe and proven treatments’ and he raised concerns that he had been prevented from offering these drugs as a form of ‘early intervention in the community’.

In response to these allegations, and for the purposes of the IOT hearing, the claimant prepared an extensive witness statement running to 106 paragraphs that addressed, point by point, the allegations contained in the summary of the YouTube video.

The judgement’s transcript notes:

“At the hearing of the IOT the respondent (GMC) made clear that whilst it was submitted that conditions were necessary, no submissions were to be made as to any specific conditions appropriate to the claimant’s case. Further, in the course of the respondent’s submissions it was stated that the issue would be whether what was indisputably said fell within the bounds of legitimate freedom of speech protected by article 10 of the European Convention on Human Rights (“the ECHR”), or whether it went beyond “legitimate medical comment to conspiracy theories, accusing the government of a campaign of lies and of a hoax” and were therefore matters which departed from “Good Medical Practice”, undermining confidence in the profession and raising concerns as to patient safety. In response to these contentions Mr Hoar, who appeared on behalf of the claimant before the IOT, developed extensive submissions in relation to both article 9 and, in particular, article 10 of the ECHR, and the apparent infringement of the right to freedom of expression which was involved in the respondent’s submissions to the IOT, as well as rehearsing the content of the responses to the GMC’s allegations which were raised in the claimant’s witness statement and its supporting material.”

Handing down his judgement, Mr Justice Dove commented:

“In my judgment it is important to observe two features of the order which was made by the IOT which are obvious, but which have significant legal consequences in relation to the approach to be taken to whether or not the order should be made imposing conditions of the kind in question in this case, in particular on an interim basis. The first is that the order, and in particular the conditions which are attacked by the claimant, are clear and obvious limitations on his right to freedom of expression under article 10. This is undisputed and indisputable. The second is that the effect of the order is to impose those constraints on an interim basis, prior to the issues in respect of compliance with article 10 having been fully heard and resolved at a final hearing.”

Dove J set out the correct approach to be adopted by the IOT saying:

“As explained in PJS, that required the IOT to ask themselves the question as to whether or not the respondent would probably succeed at any subsequent tribunal hearing in imposing the restrictions which were now sought. The question or test to be applied is whether it is likely to be established at the final hearing that publication of the claimant’s views should not be allowed. “

Dove J noted that:

“Having scrutinised the decision-making process in the present case it is clear that the IOT did not direct themselves to the tests required by section 12(3) and which applied in the particular kind of case which they were considering. Firstly, nowhere in the decision is there any reference to section 12 of the 1998 Act, and Miss Hearnden conceded that the IOT had not been directed in relation to this central statutory provision. Unfortunately, it appears that neither side’s representatives drew the attention of the IOT to this statutory material. Secondly, it is clear from both the observations of the chair of the IOT during the course of the hearing, and also the subsequent written determination, that the IOT approached the making of the order in this case on what might be described as a conventional assessment of the balance of risk and proportionality, without appreciating and applying the specific provisions arising if they were proposing to restrict the practitioner’s freedom of expression.”

“The failure to allude to section 12 of the 1998 Act or apply the test which it requires was, in the particular circumstances of this case, in my judgement an error of law and a clear misdirection in the IOT’s decision-making process. In this respect, therefore, the decision of the IOT was clearly wrong and cannot stand.”

The GMC sought to persuade the Court that, despite the lack of reference to section 12 of the 1998 Act, the court might undertake its own assessment having regard to the correct approach that should have been taken, but Dove J rejected that argument saying it would be inappropriate for the court to embark upon such an exercise.

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