Right to Freedom of Expression for regulated professionals: a qualified right:
Medical professionals are entitled to freedom of expression under Article 10 of the European Convention on Human Rights. However, a question arises when individuals engage in speech that is considered by their regulator to be contrary to their position as a medical professional. Mr Adil was a colorectal surgeon who posted several videos on YouTube during the Covid-19 pandemic that broadly amounted to Covid misinformation, including allegations that Covid-19 did not exist and that the pandemic was a conspiracy. As a result, the General Medical Council (“GMC”) accused Mr Adil of undermining public health, promoting views that were contrary to widely accepted medical opinion, and undermining public confidence in the medical profession. The Medical Practitioners Tribunal (“the Tribunal”) of the GMC found the allegations against Mr Adil proved. Mr Adil subsequently appealed this, in part alleging the decision interfered with his Article 10 right.
The High Court dismissed the appeal. The Court found that the right to freedom of expression under Article 10 is a qualified right, and infringements on it are permitted where they are prescribed by law. The test for ‘prescribed by law’ is whether the infringement on Mr Adil’s Article 10 right was accessible and foreseeable to him. The Court found that these tests were met as the GMC’s power to regulate the medical profession was set out in statute and that they had published numerous guidance documents for practitioners to understand their obligations.
The Court went on to consider whether Mr Adil’s Article 10 right had been infringed because he had posted the YouTube videos in his private (rather than professional) capacity. The Court considered it had not and particularly noted that Mr Adil had used his credentials as a doctor to bolster his arguments, routinely referring to himself as a doctor in videos. Consequently, the Court considered that it was open to the Tribunal to consider that the infringements on Mr Adil’s Article 10 rights were justified and the appeal was dismissed. This case is a reminder for medical professionals that their conduct outside of work is still potentially subject to regulatory action by their regulator if it is sufficiently linked to their role. It is also an example of the importance for regulators to produce robust and clear guidance documents to enable medical practitioners to be aware of their obligations.