Factual and Procedural Background
This appeal arises from disciplinary proceedings against a doctor, a colorectal and breast surgeon registered since 1990, concerning statements he made about the Covid-19 pandemic in videos posted on YouTube between April and October 2020. The General Medical Council ("GMC")'s medical practitioners tribunal ("the Tribunal") found the doctor guilty of misconduct related to these statements and imposed a six-month suspension with review. The doctor appealed to the High Court, where the appeal was dismissed by Swift J. Permission to appeal to this court was granted by Andrews LJ.
The allegations against the doctor were grouped into three categories: clinical treatment at a hospital in 2019 (found proved but not misconduct or impairment); statements made during the Covid-19 pandemic in 2020 (the focus of this appeal); and a medical condition diagnosed in 2022 (found not to impair fitness to practise but relevant as partial explanation for conduct). The Tribunal found the statements made in the videos undermined public health, were contrary to accepted medical opinion, and undermined public confidence in the medical profession. The Tribunal also found the doctor used his professional status to promote these views and failed to remove the videos despite agreeing to do so.
The Tribunal imposed sanction after considering statutory provisions, GMC guidance documents ("Good Medical Practice" and "Doctors' use of social media"), and the Human Rights Act 1998 incorporating Article 10 of the European Convention on Human Rights (ECHR). The Tribunal found the misconduct justified suspension to protect public confidence and health. The suspension was ordered to take immediate effect pending appeal.
Legal Issues Presented
- Whether the Tribunal's findings of misconduct and impairment constituted an interference with the appellant's Article 10 rights to freedom of expression that was "prescribed by law".
- Whether any interference with Article 10 rights was justified as necessary and proportionate in pursuit of legitimate aims including protection of public health, safety, and maintenance of public confidence in the medical profession.
- Whether the sanction of suspension and the immediate suspension order were proportionate and appropriate.
Arguments of the Parties
Appellant's Arguments
- The conclusions on misconduct and impairment were not "prescribed by law" and thus unlawfully interfered with Article 10 rights.
- The interference with freedom of expression was disproportionate.
- Expressing views contrary to widely accepted medical opinion should not alone constitute misconduct or justify interference with Article 10 rights.
- There was no evidence that the appellant’s statements damaged the reputation of the medical profession.
- The sanction of suspension, including the immediate suspension order, was disproportionate and failed to sufficiently consider mitigating circumstances.
Respondent's (GMC) Arguments
- The statutory provisions combined with GMC guidance sufficiently meet the "prescribed by law" requirement for restricting freedom of expression.
- The appellant’s statements were baseless and dangerous, undermining public health and confidence in the profession, justifying the interference with Article 10 rights.
- The Tribunal’s findings and sanction were reasonable, necessary, and proportionate given the seriousness of the misconduct and risk of repetition.
- The sanction was consistent with GMC Sanctions Guidance and necessary to protect the public and maintain professional standards.
- The Tribunal appropriately considered the appellant’s health and mitigating factors but found they did not negate the seriousness of misconduct.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Sunday Times v United Kingdom (1980) 2 EHRR 245 |
Requirements for "prescribed by law" in Article 10(2) including accessibility and foreseeability of legal rules. |
The court applied these principles to assess whether GMC guidance and statutory provisions sufficiently prescribed the interference with freedom of expression. |
| Hertel v Switzerland (1998) EHRR 534 |
Reiteration of the foreseeability requirement and proportionality in restricting Article 10 rights. |
Used to support the analysis of whether the interference was lawful and necessary in a democratic society. |
| DPP v Ziegler [2020] QB 253; [2022] AC 408 |
Framework for assessing interference with Article 10 rights including legitimacy, necessity, and proportionality. |
The court applied the five-step test from Ziegler to determine if the restrictions on the appellant’s freedom of expression were justified. |
| Bolton v The Law Society [1994] 1 WLR |
Deference owed to professional disciplinary tribunals in assessing misconduct and sanction. |
The court accorded respect to the Tribunal’s expertise in evaluating misconduct and appropriate sanction. |
| Ghosh v General Medical Council [2001] 1 WLR 1915 |
Professional misconduct defined as conduct falling below the standard expected of a doctor. |
Guided the court’s understanding of misconduct and its application to the appellant’s conduct. |
| R (Pitt) v General Pharmaceutical Council (2017) 156 BMLR 222 |
Certainty and foreseeability of professional conduct rules in relation to freedom of expression. |
Supported the court’s conclusion that GMC guidance provided sufficient foreseeability for disciplinary action. |
| Bawa-Garba v General Medical Council [2019] 1 WLR 1929 |
Sanction principles emphasizing public confidence and professional standards over individual interests. |
Reinforced the Tribunal’s and court’s approach to sanctioning serious professional misconduct. |
| Metropolitan Church of Bessarbia v Moldova (2002) 35 EHRR 306 |
Duty of neutrality regarding legitimacy of beliefs under Article 10. |
Referenced in appellant’s argument regarding freedom of expression and legitimacy of minority views. |
| Forstater v CGD Europe [2022] ICR 1 |
Legitimacy of beliefs and freedom of expression. |
Referenced in appellant’s submissions on freedom of expression. |
| Roylance v General Medical Council (No 2) [2000] 1 AC 311 |
Definition of misconduct as falling short of proper standards expected of a doctor. |
Supported the court’s interpretation of misconduct in the context of the case. |
| Bamgbelu v General Dental Council [2015] EWHC 4123 (Admin) |
Lawful interference with Article 10 rights in professional regulation. |
Used to affirm the lawfulness of disciplinary restrictions on freedom of expression. |
| Raschid & Fatnani v General Medical Council [2007] 1 WLR 1460 |
Sanction principles and deference to tribunal expertise. |
Supported the court’s approach to sanction and deference to the Tribunal. |
| Ujam v General Medical Council [2012] EWHC 683 (Admin) |
Consideration of interim suspension orders in sanctioning. |
Discussed in relation to whether interim suspension periods should reduce sanction length. |
| Kamberova v Nursing and Midwifery Council [2016] EWHC 2995 (Admin) |
Sanction principles regarding interim orders and professional regulation. |
Referenced to support reasoning on sanction and interim suspension relevance. |
| Abdul-Razzack v General Pharmaceutical Council [2016] EWHC 1204 (Admin) |
Sanction principles in professional disciplinary context. |
Referenced in sanction analysis. |
Court's Reasoning and Analysis
The court analysed the appeal by reference to the statutory framework of the Medical Act 1968, GMC guidance documents, and Article 10 of the ECHR as incorporated by the Human Rights Act 1998. It accepted that the doctor’s statements engaged his right to freedom of expression, but that this right is qualified and may be restricted if the interference is prescribed by law, pursues legitimate aims, and is necessary and proportionate.
The court found that the GMC’s guidance documents, especially paragraphs 65 and 68 of Good Medical Practice and paragraph 17 of the Social Media Guidance, provided sufficient legal certainty and foreseeability to satisfy the "prescribed by law" requirement. The statutory provisions alone were insufficient, but the guidance supplemented them adequately.
The Tribunal’s findings that the statements were baseless, dangerous, and made using the appellant’s professional status to engender trust were supported by evidence. The statements undermined public health by denying the existence of Covid-19 and promoting conspiracy theories, which could discourage compliance with restrictions and vaccination. This justified interference with Article 10 rights for the legitimate aims of protecting public health and safety and maintaining public confidence in the medical profession.
The court applied the five-step test from DPP v Ziegler and concluded the interference was necessary in a democratic society with a pressing social need. The Tribunal’s assessment that the misconduct was serious and the sanction of suspension appropriate was reasonable and proportionate, given the risk of repetition and the need to uphold professional standards and public trust.
The court rejected the appellant’s arguments that expression of minority or controversial medical opinions should be immune from sanction, noting that the appellant’s views were baseless and dangerous, not legitimate medical debate. The Tribunal’s expertise and direct observation of the appellant’s conduct entitled its findings deference.
Regarding sanction, the court acknowledged the appellant’s prior interim suspension but held that where suspension is necessary for rehabilitation, public protection, and risk mitigation, prior interim suspension periods do not reduce the sanction length. The six-month suspension with review was appropriate to allow the appellant to develop insight and was consistent with GMC Sanctions Guidance.
The court declined to consider additional evidence submitted after the hearing, emphasizing appeals are decided on the material before the court and arguments made in open proceedings.
Holding and Implications
The court DISMISSED the appeal in its entirety.
The direct consequence is that the Tribunal’s findings of misconduct and impairment stand, and the six-month suspension with review remains in effect. The immediate suspension order pending appeal is also affirmed. No new precedent was established beyond confirming the application of existing principles regarding freedom of expression, professional misconduct, and sanctioning within the medical regulatory context.