Freedom of Speech, Covid Scepticism, and Interim Orders: What Will be the Effect of White v GMC [2021] EWHC 3286? – Lexology

Freedom of Speech, Covid Scepticism, and Interim Orders: What Will be the Effect of White v GMC [2021] EWHC 3286?

Introduction

In the recent case of Dr Samuel White v General Medical Council [2021] EWHC 3286, the High Court overturned an interim order of conditions imposed by an Interim Orders Tribunal (IOT) of the Medical Practitioners Tribunal Service on the registration of a doctor who was alleged by the GMC to have spread misinformation about Covid 19 and related matters. The basis for the decision was, put briefly, that the panel failed to give consideration to section 12(3) of the Human Rights Act 1998 (HRA) and consider whether the GMC was likely to establish that publication should not be allowed of the material that was the subject of the allegations at a substantive fitness to practise hearing.

The Facts and Judgment

The allegations which formed the subject matter of the interim order application by the GMC were as follows:

The IOT imposed an order requiring, among other conditions:

(i) that he must not use social media to put forward or share any views about the Covid-19 pandemic and its associated aspects, and

(ii) that he must seek to remove any social media posts he had been responsible for or had shared relating to his views of the Covid-19 pandemic and its associated aspects. It considered an interim order imposing conditions of practice both necessary to protect the public and also in the wider public interest.

The doctor applied to the Court to terminate the order under section 41A(10) of the Medical Act 1983.

Dove J said that the conditions which were attacked by the doctor were clear and obvious limitations on his right to freedom of expression under Article 10 ECHR. This was agreed by both parties. The effect of the order was to impose 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. Specific provision existed within the HRA in relation to the granting of relief in cases engaging freedom of expression and it was not disputed at the hearing that section 12 of that Act was of application to proceedings in the IOT.

The test as outlined by the Supreme Court in PJS v News Group Newspapers Ltd [2016] UKSC 26 was whether the party seeking to restrain a person exercising free speech before trial was likely to establish that publication should not be allowed. The IOT did not direct its mind to this test nor was the provision drawn to its attention by the parties during the hearing. Instead, 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, and that was an error of law.

The Court rejected the GMCs submissions that the questions it did direct itself to, namely those of 'risk' and of 'necessity' were equivalent to the requirements of section 12(3).

The Court also observed, obiter, that any condition proposing to curtail freedom of expression on an interim footing, in order to be proportionate, is likely to need to be specific as to what views or opinions the person subject to the order is precluded from expressing.

Analysis

This judgment is likely to have a significant impact on a number of cases where registrants have made comments on social media and other platforms which their regulators consider to be inappropriate, for scientific or other reasons, and where the regulator intends on using an interim order to restrain them from such further publication.

There are, however, a number of matters which remain unclear.

(2) If the person against whom the application for relief is made ("the respondent") is neither present not represented, no such relief is to be granted unless the court is satisfied

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified

Sub-section (2)(a) would appear to require a departure from the usual approach adopted by panels when considering applications to proceed in a registrants absence and the principles in Adeogba v General Medical Council [2016] EWCA Civ 162, whereby serving a notice of hearing on a registrants registered address is adequate to discharge its duty of notifying the registrant of a hearing.

Regulators would be advised to take extra steps to ensure it can demonstrate actual knowledge of the hearing by the registrant in cases where section 12 HRA is likely to be engaged.

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Freedom of Speech, Covid Scepticism, and Interim Orders: What Will be the Effect of White v GMC [2021] EWHC 3286? - Lexology