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Exposing wrong-doing in the NHS or spread of misinformation?

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Dr Sam White, an experienced GP, posted a video on social media announcing that he was resigning as a GP because he could no longer tolerate the lies being told by the Government and the NHS relating to the Covid pandemic, that doctors were being prevented from using treatments that were effective against Covid, and raising safety concerns about the Covid vaccines. He signposted viewers to websites that he believed supported his views and encouraged them to do their own research.  

Dr White also wrote to the CEO of the NHS setting out his concerns.

These events – and concerns that were apparently expressed by colleagues about Dr White’s health - resulted in his suspension and the commencement of fitness to practice proceedings against him (which are ongoing). The Interim Orders Tribunal of the General Medical Council (GMC) placed conditions on his registration for 18 months:

  1. preventing him from using social media to put forward or share any views about the Covid-19 pandemic and its associated aspects; and
  2. requiring him to remove any social media posts.

They did not place any restrictions on Dr White’s ability to practice as a doctor, and his suspension was lifted prior to the hearing. The Tribunal approached the issue on the basis that Dr White was spreading misinformation and that it believed Dr White may pose a real risk to patient safety.

White v GMC – the judgement

The High Court recently handed down judgment upholding Dr Sam White’s application, to overturn the decision by the Interim Orders Tribunal of the GMC.

The High Court overturned the conditions on registration. It held that the Interim Orders Tribunal had not afforded sufficient respect to Dr White’s article 10 right to freedom of expression, in particular by failing to properly consider the effect of section 12(3) of the Human Rights Act 1998, which provides that interim relief restraining publication before trial should not be ordered “unless the court is satisfied that the [GMC} is likely to establish that publication should not be allowed”.  

The court declined to consider or express any view as to the other grounds of appeal, which addressed the question whether the views expressed by Dr White did in fact amount to misinformation, and whether the GMC had failed to take into account scientific and medical opinion which supports for Dr White’s views.

If you’re really interested, you can read the full judgment here.

Why is this case important?

It is worth putting this case in the context of the GMC’s own ethical guidance on “Raising and acting on concerns about patient safety”:

7 All doctors have a duty to raise concerns where they believe that patient safety or care is being compromised by the practice of colleagues or the systems, policies and procedures in the organisations in which they work. They must also encourage and support a culture in which staff can raise concerns openly and safely.

9 You may be reluctant to report a concern for a number of reasons. For example, because you fear that nothing will be done or that raising your concern may cause problems for colleagues; have a negative effect on working relationships; have a negative effect on your career; or result in a complaint about you.

10 If you are hesitating about reporting a concern for these reasons, you should bear the following in mind.

  1. You have a duty to put patients’ interests first and act to protect them, which overrides personal and professional loyalties.
  2. The law provides legal protection against victimisation or dismissal for individuals who reveal information to raise genuine concerns and expose malpractice in the workplace.4
  3. You do not need to wait for proof – you will be able to justify raising a concern if you do so honestly, on the basis of reasonable belief and through appropriate channels, even if you are mistaken.

Source Link here

Looking at it from an employment law perspective

Under the Employment Rights Act 1996 any worker who makes a disclosure of information which they reasonably believe to be in the public interest is protected from detriment or dismissal. That is the case even if the information they disclose is later shown to be incorrect, provided that they reasonably belief it to be true.

Whatever you may think of Dr White’s views, if the GMC’s response to doctors raising concerns about patient safety is suspension, commencing fitness to practice proceedings, and placing conditions on their registration, doctors will understandably be fearful of speaking out against the system in the future. That is the opposite of what the whistleblowing legislation was designed to achieve, and the NHS does not have a particularly good track record when it comes to exposing malpractice.

The same rationale applies to other regulated professionals. After the financial crash the FCA has been keen to promote protection for whistleblowers in financial services. The SRA has made it clear that there is a similar burden on solicitors to speak out about any potential breaches of regulatory obligations.  If the consequence of speaking out is to a loss of profession and preservation of self-interest, it means that wrongdoing will not be exposed.