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

The claimant, Dr Samuel White,  is a GP with an unblemished professional career.

He published of a video (“the video”) in which he:

• Explained 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’.
• Raised concerns about the safety of the Covid-19 vaccine and the need to have it. With no mention of the variety of vaccines available for Covid-19 he claimed the vaccine inserted a code for the spike protein of the vaccine.
• Said that 99% of people who contract Covid-19 survive, and that most of those who had died had also suffered from multiple medical problems.
• Asked his viewers to do their own research online and signposted them to UK and USA websites which record the side effects of the vaccine. He asked the viewers to consider the number of deaths and serious side effects the vaccine was causing.
• Raise concerns about the method of tracing for Covid-19, PCR. He claimed that once a PCR test multiplied traces of viral code more than 24 times, the false positive rate was greater than 90% and as such he believed the use of the test was a fraud which ‘vitiates everything’.
• Discussed common law and the inability of the authorities to justify the ‘civil rules and regulations’ that had been brought into force during the pandemic.
• Claimed that ‘masks do absolutely nothing’.”

General Medical Council

Following publication of the video, Dr White was suspended on 25^th June 2021 by NHS England South East. This suspension was revoked on 21^st July 2021.

The GMC commenced proceedings against Dr White on 15th July 2021, and referred him to the Interim Orders Tribunal (“the IOT”) for it to consider restrictions on his medical practice pursuant to regulation 27 of the General Medical Council (Fitness to Practise) Rules 2004. 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.

The IOT imposed conditions on his registration following a hearing on 17th August 2021. The controversial conditions at the heart of the appeal were as follows:

• 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.

At the hearing of the IOT the GMC did not make any submissions on any specific conditions appropriate to the case but 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.”

The Appeal

The appeal was heard by Mr Justice Dove.  Dove J observed in his judgement that there were “two features of the order … 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.”  These were:

1. limitations on his right to freedom of expression under article 10
2. 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.

“The test is whether the party seeking to restrain a person exercising free speech before trial is whether that party is “likely to establish that publication should not be allowed”, or normally that success at trial must be shown to be more likely than not.”

In the context of the GMC seeking to interfere with a doctor’s Human Rights with particular reference to Interim Orders, the correct approach for a tribunal is to ask itself the question as to whether or not the GMC 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.

So in effect, the correct approach for an Interim Orders Tribunal to take is to stand in the shoes of a final Fitness to Practise Tribunal and assess whether the final tribunal would impose the restrictions which were being sought based in the evidence before it.

In this case, Dove J concluded that the GMC Interim Orders Tribunal misdirected itself, although it should be noted that Dove J commented that

“…the decision was wrong from a purely procedural perspective” and therefore his judgement “has no bearing whatever on the substantive merits of the parties’ competing positions on the issues.”