Fitness to practise: How human rights laws can raise challenges for regulators

With freedom of speech in the headlines, here we look at some unique issues that regulators must consider before they impose interim restrictions on a professional that might curtail this right.

In Dr White's case he was alleged to be spreading misinformation about Covid-19, and in White v General Medical Council ("GMC") [2021] EWHC 3286 (Admin), the High Court overturned an 18-month interim order of conditions imposed by Interim Orders Tribunal ("IOT") of the Medical Practitioners Tribunal Service.

This case provides clarification to IOT's on the correct approach when considering a person's rights under article 10 (freedom of expression) of the European Convention on Human Rights ("ECHR") when facing a potential interim ban, pending a substantive decision in their case.

Background

The allegations against Dr Samuel White related to a video he published on YouTube where he raised concerns about Covid-19 policies and practices. In particular, he doubted the need to wear masks, the safety of Covid injections, and questioned the "vaccination" of children and informed consent.

In response to this YouTube video, the claimant was suspended by his employer, NHS England South East. The GMC commenced proceedings and alleged 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.”

Following the IOT hearing on 17th August 2021, the conditions imposed on Dr White included the following:

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

• 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 IOT did not impose any conditions preventing the claimant from practising medicine. In September 2021, Dr White filed for a review in the High Court of the IOT decision, arguing that the conditions imposed by it breached his rights to freedom of expression.

Decision of the High Court

The High Court's decision found that the IOT failed to properly consider a claimant’s rights under article 10 of the ECHR as applied by s.12 of the Human Rights Act 1988 *"HRA").

The right to free speech comes with particular protections which usually require an IOT to consider the likelihood of success at a substantive hearing. This is not something interim order decision makers would usually do. Indeed, case law specifically confirms that this exercise is not required when a Committee is deciding if the test for an interim order is met.

The Court found that the IOT had not applied the correct legal principles to the case; namely that because section 12 (3) of the HRA was engaged, "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."

The case does not really wrestle with the balance to be struck between freedom of expression and the public interest (that will no doubt have to be considered in the substantive decision in Dr White's case). However, because the IOT had erred in law by failing to apply the correct legal principles, the claimant won his case against the IOT. It is unclear whether the GMC will seek to impose fresh interim restrictions subject to the IOT applying the correct test.

While this is specific to Interim tribunals, it is a good reminder that human rights laws can raise challenges for regulators who must then ensure any balancing exercise expressly considers any specific requirements under the HRA.

With thanks to Legal Professional, Bronagh Conlon, who contributed to this article.