Mohammed Adil v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell,Lord Justice Dingemans,Lord Justice Bean |
| Judgment Date | 02 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1261 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000811 |
[2023] EWCA Civ 1261
Lord Justice Bean
Lord Justice Popplewell
and
Lord Justice Dingemans
Case No: CA-2023-000811
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE SWIFT
Royal Courts of Justice
Strand, London, WC2A 2LL
Francis Hoar and Savannah Laurent (instructed by PJH Law Solicitors) for the Appellant
Martin Forde KC and Peter Mant (instructed by GMC Legal) for the Respondent
Hearing date: 19 October 2023
Approved Judgment
This judgment was handed down remotely at 10:30am on 2 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal concerns disciplinary proceedings against a doctor which engage the right to freedom of expression guaranteed by the common law and under article 10 of the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’). The grounds of appeal raised issues only under article 10 of ECHR and not at common law.
The appellant is a colorectal and breast surgeon who has been registered since 1990, having qualified in Pakistan. A medical practitioners tribunal (‘the Tribunal’), which is a committee of the respondent, the General Medical Council (‘the GMC’), found that he was guilty of misconduct in relation to what he said about the Covid-19 pandemic in videos posted on YouTube between April and October 2020; and imposed a sanction of six months' suspension with a review. He appealed to the High Court against the finding of misconduct and the sanction. His appeal was dismissed by Swift J. He appeals to this court with permission granted by Andrews LJ.
The statutory context and materials
Sections 1(1A) and (1B) of the Medical Act 1968 (‘the Act’) provide:
(1A) The over-arching objective of [the GMC] in exercising their functions is the protection of the public.
(1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession.
Section 35 of the Act empowers the GMC to provide advice for members of the medical profession on (a) standards of professional conduct; (b) standards of professional performance; and (c) medical ethics. It has done so in a number of published documents, two of which are relevant to the current dispute, namely “Good Medical Practice” published in March 2013 and updated in April 2014 and 29 April 2019 (‘GMP’); and social media guidance in a document entitled “Doctors’ use of social media” (‘SM Guidance’), also published in March 2013.
Under s.1(3)(e) and (h) of the Act the GMC has amongst its committees an investigation committee, and one or more individual medical practitioner tribunals. The investigation committee is involved where an allegation is made against a registered person that his fitness to practice is impaired. Section 35C(2) identifies the six matters by which fitness to practice can properly be regarded as impaired, which include “(a) misconduct”; “(b) deficient personal performance”; and “(d) adverse physical or mental health”.
The investigation committee may refer the allegation of impairment of fitness to practice for determination by a medical practitioner tribunal whose powers and functions are regulated by s.35D of the Act. Section 35D provides that where it finds the person's fitness to practice is impaired, it may order erasure from the register, suspension for up to 12 months, or attachment of conditions to continued registration. Suspensions may be made subject to a review prior to the end of the period, with power to extend the suspension for further periods of 12 months at a time (or in a health case in some circumstances indefinitely); and power to substitute the suspension with erasure.
By s. 40 of the Act, a decision of a medical practitioner tribunal imposing a sanction pursuant to the provisions of s. 35D may be appealed to the High Court.
The allegations
The allegations against the appellant fell into three broad groups. The first group concerned treatment he had provided when working as a locum consultant colorectal surgeon at the Chesterfield Hospital in November 2019. The Tribunal concluded that three of these allegations were proved, but that none of those three matters amounted to misconduct and none demonstrated any impairment of the appellant's fitness to practise. They are not therefore the subject of this appeal.
The second group of allegations concerned matters that took place when the appellant was working as a locum consultant colorectal surgeon at the North Manchester Hospital NHS Trust between April and October 2020. This was during the Covid-19 Pandemic and included the early stages of lockdown imposed by the Government. These allegations did not concern treatment given to any clinical patient, but rather Mr Adil's statements in talks, interviews and rallies published as videos on YouTube. The allegations were set out as follows, in what has been referred to as the ‘charge-sheet’:
“2. Between April 2020 and October 2020, you appeared in videos that were uploaded to video sharing platforms in which you said that:
a. the Sars-CoV-2 virus and/or Covid-19 disease do not exist or words to that effect;
b. the Covid 19 pandemic is a conspiracy brought by the United Kingdom, Israel and America or words to that effect;
c. the Covid-19 pandemic is a multibillion scam which was being manipulated for the benefit of:
i. Bill Gates;
ii. pharmaceutical companies;
iii. the John Hopkins Medical Institute of Massachusetts;
iv. the World Health Organisation,
or words to that effect;
d. the Covid-19 pandemic was being used to impose a new world order or words to that effect;
e. the Sars-CoV-2 virus was made as part of a wider global conspiracy or words to that effect;
f. Bill Gates infected the entire world with Sars-CoV-2 in order to sell vaccines or words to that effect;
g. Covid-19 vaccines:
i. would be given to everyone, by force if necessary;
ii. could potentially contain microchips that affect the human body and further the 5G mobile phone technology agenda;
iii. will transform human psychology and beliefs;
iv. could be used to control and/or reduce the world's population,
or words to that effect.
3. In the videos referred to at paragraph 2, you used your position as a doctor in the UK on one or more occasion, to promote your opinion.
4. Your actions as referred to at paragraph 2:
a. undermined public health, and/or;
b. were contrary to widely accepted medical opinion, and/or;
c. undermined public confidence in the medical profession.
5. On or around 12 May 2020 you said to your responsible officer, Professor [Youssef], that you had and/or would remove the videos referred to at paragraph 2 from video sharing platforms or words to that effect.
6. Further to the discussions with Professor [Youssef] referred to at paragraph 5, you subsequently:
a. Failed to remove the videos;
b. appeared in further videos which were uploaded to video sharing platforms and in which you made comments as referred to at paragraph 2.”
The third group of allegations concerned the appellant's health. By amendment these were reduced to a single matter, namely that on 5 May 2022 he was diagnosed as suffering from an identified medical condition. The Tribunal found that this did not impair the appellant's fitness to practice, and its relevance to the present appeal lies in it having been treated by the Tribunal as an explanation in part, but in part only, for some of his conduct charged in paragraphs 2 to 6 of the charge sheet.
The Tribunal proceedings
Before the Tribunal the GMC was represented by counsel and the appellant attended in person. The Tribunal had transcripts of the videos, running to over 200 pages (which were also before this court) and watched some of the videos (which were not before this court). Professor Youssef gave oral evidence. The appellant chose not to give evidence but submitted a witness statement dated 15 June 2022. He addressed the Tribunal at each stage of the proceedings. He accepted that he had made the statements and expressed the views set out in the videos. He told the Tribunal that he now regretted making them and disagreed with the comments he had made.
The Tribunal expressed its decision in four written reasoned determinations: a Determination on the Facts made on 21 June 2022; a Determination on Impairment made on 27 June 2022; a Determination on Sanction made on 29 June 2022; and a Determination on Immediate Order also made on 29 June 2022. By its Determination on the Facts the Tribunal reached conclusions on whether the allegations made against the appellant were proved. The Determination on Impairment concerned whether what had happened amounted to misconduct and was such as to amount to an impairment of the appellant's fitness to practise. The final two Determinations addressed the sanction to be imposed.
In its Determination on the Facts the Tribunal found each of the allegations at paragraph 2 of the charge sheet proved, concluding from its own analysis of the videos that that paragraph accurately amalgamated and summarised the statements and reflected the meaning of what was being said. There is no appeal from that finding.
The Tribunal also found proved the allegation at paragraph 3 of the charge sheet that the appellant had used his position as a doctor to promote these statements. There is,...
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