Mohammed Adil v General Medical Council

A doctor’s expression of a minority medical opinion does not itself amount to professional misconduct. Disciplinary action may, however, be justified where a doctor invokes professional status to promote views which are medically or scientifically baseless and dangerous to public health.

Published professional guidance satisfies the requirement that interference with freedom of expression be prescribed by law if it makes the risk of disciplinary action reasonably foreseeable. Exhaustive identification of prohibited opinions is unnecessary.

When fixing a sanction, a tribunal should consider any earlier interim suspension. Its relevance depends on the sanction’s purpose. It may count towards punishment, deterrence or marking gravity, but may have little relevance where further suspension is required to remedy impairment, prevent repetition or protect the public.

A medical practitioners tribunal found that a surgeon had committed misconduct by using his professional credentials in online videos to promote claims that Covid-19 did not exist and formed part of a conspiracy. It found that the statements were contrary to widely accepted medical opinion, undermined public health and damaged confidence in the medical profession. It imposed a six-month suspension with review.

The surgeon’s statutory appeal was dismissed by Swift J in [2023] EWHC 797 (Admin). On his further appeal, the principal issues were whether the restriction of his freedom of expression was prescribed by law and necessary and proportionate under article 10 of the European Convention, and whether the sanction was disproportionate, particularly given his earlier interim suspension.

1. Appeal dismissed. The professional disciplinary measures pursued the legitimate aims of protecting public health and safety. Maintaining public confidence in the NHS and its staff was an essential part of those aims.
2. Freedom of expression protects medical opinions which differ from majority opinion. Mere departure from widely accepted medical opinion cannot establish misconduct. The present statements were materially different: they were baseless and dangerous, were asserted as fact, and were promoted through the doctor’s senior professional status to obtain added credence. They could encourage behaviour harmful to public health and discourage vaccination irrespective of its medical merits. Disciplinary action was therefore necessary and proportionate under article 10(2) (paras 44–72).
3. The interference was prescribed by law. Sections governing misconduct in the Medical Act 1968, read with paragraphs 65 and 68 of Good Medical Practice and paragraph 17 of the social-media guidance, made it reasonably foreseeable that a doctor could be disciplined for using professional status to publish baseless views damaging to patient health and public trust. Foreseeability did not require an exhaustive catalogue of prohibited opinions. Paragraph 68 extended to communications capable of influencing potential patients, not merely the doctor’s existing clinical patients (paras 73–81).
4. On appeal, the court may substitute its own view and determine whether a professional sanction was appropriate. It should nevertheless accord substantial respect to a specialist tribunal’s evaluative assessment of professional standards, public safety, public confidence and the practitioner’s oral evidence (paras 37–40).
5. The six-month suspension was appropriate and proportionate. Conditions could not adequately address the doctor’s continuing lack of insight, risk of repetition and consequent public risk. Suspension was also required to mark the misconduct’s seriousness and maintain professional standards and public confidence (paras 86–94).
6. An interim suspension must not automatically be ignored when the final sanction is fixed. It may be relevant to punishment, deterrence or marking gravity. It may have little or no relevance where further suspension is needed to restore fitness to practise, reduce repetition or protect the public. Here the six-month period was necessary for those protective and rehabilitative purposes, so the earlier interim suspension did not require a reduction (paras 95–103).

Popplewell LJ delivered the judgment. Dingemans and Bean LJJ agreed.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 1261, unanimously dismissed the further appeal and upheld the finding of misconduct and six-month suspension.
2. High Court, Administrative Court: Swift J dismissed the statutory appeal in [2023] EWHC 797 (Admin), holding that the interference with article 10 rights was prescribed by law and proportionate and that the sanction was appropriate.
3. Medical practitioners tribunal: Found misconduct and impairment of fitness to practise, imposed a six-month suspension with review, and ordered immediate suspension pending any statutory appeal.