Social Media Pitfalls and Doctor Misconduct
Doctors have various duties as registered professionals to not bring the profession or themselves into disrepute, or to cause harm, through their online written or video contributions to national and international debates and discourses.
A doctor must also avoid advancing medical topics that have no valid underpinning in clinical research. The elevated status of a registered doctor carries with it obligations to do good to society rather than cause harm.
Doctors who transgress could face fitness to practise proceedings before the GMC. Doctors who are GPs might also face disciplinary investigation by way of the NHS Performers List process.
Social media, including video tubes, can be useful arenas in which to disseminate useful information and opinion to others. However, there are risks with having an online presence, particularly if a doctor’s professional registration or status is easily discernible or directly connected with their online postings.
The GMC has published guidance (2023) called Using Social Media as a Medical Professional, which sets out further obligations. See for example, para 7:
“Maintaining Public Trust …
7. How you behave when using social media matters. Medical professionals, like everyone else, have rights to freedom of belief, privacy, and expression. But exercising these rights when using social media as a medical professional has to be balanced with the possible impact on other people’s rights and interests.
…
15. When interacting with or commenting about individuals or organisations on or using social
media, be aware that communications are subject to the same laws of copyright, defamation,
discrimination, and harassment as written or verbal communications – whether they are
made in a personal or professional capacity.”*
The GMC’s 2024 version of the code of conduct, Good Medical Practice, holds that a doctor (at para 69):
69. When communicating publicly, including speaking to or writing in the media, you must maintain patient confidentiality. You should remember when using social media that communications intended for friends or family may become more widely available.
Article 10 of the European Convention on Human Rights is clear that people have a right to express themselves, but that a state can regulate such freedoms in order to uphold morality and to provide societal safeguards. The UK Human Rights Act 1998 sets out the text of the convention (see especially the bold text, emphasis added):
Freedom of expression
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
See also the ECHR’s (2023) Fact Sheet on Hate Speech for how states are to balance regulation and the freedom of expression.
Free speech case law was neatly summarised in the case R (Miller) v The College of Policing & Anor [2020] EWHC 225 (Admin) (February 2020), which cites several cases that affirm the right to speak freely in the UK, save for exceptional circumstances that are prescribed by law. The case explores the legitimate aim of the relevant legislation, applying them to the facts of the case, also exploring the concepts of necessity and proportionality of rules of the the legislation in question, in a democratic society.
*
Anti-Semitism In Professional Standards Authority for Health and Social Care v General Pharmaceutical Council & Ali [2024] EWHC 577 (Admin) (14 March 2024) the court determined how a tribunal should examine words used by registered clinicians (in this case a pharmacist), to determine whether their comments are anti-semitic. (The pharmacist received a warning, having apologised and undertaken remediation. They had spoken at a public rally about the situation in Gaza.) The court held that the test for whether words were antisemitic was an objective one, * The Posting of a GIF image In Steele v Deputy Chief Constable of the Public Service of Scotland [2022] CSIH 10, (June 2021), a serving police officer challenged by way of judicial review the suggestion that the act of posting a GIF on social media, posted by them, could be said to be professional misconduct. The court of the first instance (Outer House) and the court of appeal (Inner House) (March 2022) in Scotland upheld that the wider commentary, in which the posted GIF might be contextualised, was relevant. While no view was expressed by the courts that the posting of the GIF was misconduct, as that was a matter for the tribunal to determine, judicial review relief would not be granted as it was not beyond the realms of reasonableness that a tribunal might find that the conduct could constitute misconduct. * Comments on Transgenderism In R (Miller) v The College of Policing & Anor [2020] EWHC 225 (Admin) the claimant challenged the approach of the police to online posted comments that touched on the discourses concerning legislation and transgender recognition. It was held that the police were entitled to make a record of a complaint by a third party who was offended, but that (at para 289): “‘the police’s treatment of the Claimant thereafter disproportionately interfered with his right of freedom of expression, which is an essential component of democracy for all of the reasons I explained at the beginning of this judgment.” The judge had found that (see para 286): “The Claimant’s Article 10(1) right to speak on transgender issues as part of an ongoing debate was extremely important for all of the reasons I have given and because freedom of speech is intrinsically important. There was no risk of him committing an offence and Mrs B’s emotional response did not justify the police acting as they did towards the Claimant. What they did effectively granted her a ‘heckler’s veto’. “ The judge had set out the police’s concerns earlier on in the judgement (at para 268): “During the hearing I asked Mr [U] what criminal offences the police had in mind when they warned the Claimant about escalation and further tweeting. He suggested the offence under s 127 of the Communications Act 2003 which, to recap, makes it an offence to send ‘a message or other matter that is grossly offensive or of an indecent, obscene or menacing character’ via a public telecommunications system. He also suggested the offence under s 1 of the Malicious Communications Act 1988. In my judgment the suggestion that there was evidence that [the] Claimant could escalate so as to commit either offence is not remotely tenable.” (February 2020)
Doctors Defence Service advises doctors facing GMC allegations of misconduct, for their alleged online activity or the exercise of their freedom of expression right. For more information, contact us on 0800 10 88 739
