The MPTS Interim Tribunal Decision: with my notes and corrections.
All bold emphasis is mine. Square brackets contain my corrections of what appears to derive from the initial transcription. My comments in green. ‘IOT’ is ‘Interim Orders Tribunal’.
“Dr MacFarlane is currently the subject of a fitness to practise investigation by the GMC. Pursuant to section 35(C) of the Medical Act 1983 as amended (“the Act”), his case was referred to the MPTS by the GMC. The role of this Tribunal is to consider whether a doctor’s registration should be restricted on an interim basis, either by suspension or by imposing conditions on their registration. In accordance with section 41A (1) of the Act, the Tribunal will make an order if it is satisfied that there may be impairment of a doctor’s fitness to practise, which poses a real risk to members of the public or may adversely affect the public interest or the interests of the practitioner and, after balancing the interests of the doctor and the public, that an interim order is necessary to guard against such risk.
Disappointing that the fact I contacted the GMC three weeks before they received the first complaint was not noted. First indication of the tribunal’s possible bias, and rubber-stamping of the GMC’s application
At the commencement of the proceedings on 18 March 2019, Dr MacFarlane stated that he wished for these proceedings to be held in public. Dr MacFarlane stated that the matters under consideration occurred in a public forum. He also said that he was not satisfied that the GMC would keep the matter private and for that reason he asked that the proceedings should be held in public.
The tribunal had been listed as public for four days, and I was taken aback that there would be a serious deliberation about this by the panel. I recall saying ‘I apologise for using a hackneyed phrase, but I believe ‘I have nothing to hide”. See my previous blog pieces for my concerns about the GMC.
Mr Williams stated that the default position is for Interim Order Hearings to be held in private. He submitted that there was no evidential reason for Dr MacFarlane to believe that the GMC would not keep the Interim Order Hearing matters private. He also stated that the MPTS is a separate organisation to the GMC and it is the MPTS who controls publication of the contents of hearings and any transcriptions made, not the GMC.
I believe the transcript will show that GMC counsel started with a remark about the default privacy of IOT’s being due to the ’emotional’ state of doctors in them. Although he did not go on to make any attempt to ‘gaslight’ me, it is clear how this could happen. Private hearings do not result in a transcript so the defendant is vulnerable in this respect.
I was concerned that the panel chair did not simply ask GMC counsel if my request for the hearing to be public was opposed. She appeared to be asking him for advice, which would be completely out of order. However, this paragraph implies he did oppose it, albeit subtly.
It is disappointing that the GMC counsel’s ‘the MPTS is a separate organisation to the GMC and it is the MPTS who controls publication’ was reproduced here as a serious submission. The GMC must have full knowledge of private hearings they are party to, and it was their behaviour in relation to confidentiality I expressed concern about.
The panel might have reasonably deliberated on this for five minutes. It did so for thirty-five.
The Tribunal has considered Rule 41(5) of the General Medical Council (Fitness to Practise Rules) 2004 as amended (‘the Rules’) which states:
“(5) A Tribunal shall, where it is considering matters under paragraph (3)(a), sit in public where the practitioner requests it to do so.”
The Tribunal determined to hear these proceedings in public. However, it also determined that should any issues arise involving private matters the Tribunal would sit in private to deal with those matters and redactions would be made to the written determination as appropriate.
The hearing was public throughout. There were no public attenders on the first day, when a friend came to be my note-taker. There were two public attenders in the resumed hearing, two days later.
The matters before the Tribunal relate to a referral email to the GMC dated 12 November 2018. In the referral email it states:
“The above‐named doctor has an active Twitter presence and blog in which he claims he has resumed practice as a medical doctor/psychiatrist. However, according to your register, he does not currently hold a license to practise medicine. I am concerned that he has been approaching potentially vulnerable people on Twitter, offering services that he is not licensed to offer. He seems to be acting upon a belief that the GMC license is needed only to prescribe medication. It seems possible that he is offering medical advice to vulnerable groups and individuals to build a portfolio to assist with his planned revalidation; however, he seems to be acting unsupervised and could potentially cause great harm.”
The Tribunal has noted the content of the screenshots of Dr MacFarlane’s twitter account and blog posts, supplied with the referral.
I have repeatedly pointed out to the GMC that the Medical Act 1983 provides for registered-but-unlicensed practice, in my reading of it. They have repeatedly refused to offer any response to my reasoning except in the ‘reasons’ for proceeding to the IOT when a GMC lawyer was reported as stating this was ‘a grey area’. I dispute this: blog piece to come soon.
The screenshots show that I suggested as a ‘possibility’ that I could write to a Tweeter’s local NHS Trust to support their private psychotherapy being paid for by the NHS. I have repeatedly made the point (including in the tribunal) that many people are financially ‘vulnerable’ from having to pay for private mental health support. (Although I did not make the point about this ‘possibility’ offer, this directly links to my criticism of RCPsych leaders that they have failed to secure adequate mental health and learning disability NHS funding).
The Tribunal has had regard to the email correspondence from Dr MacFarlane to the GMC dated 13 December 2018 following receipt of the notice of GMC investigation in which he states:
“Yes, all this appears to be factually correct. I believe that I emailed the GMC about my plans to offer Pro Bono/reduced fee consultations in October (I cannot find the email so perhaps you have it), and I received a response from you at 10.14 on 19th October. As yet I have had 2 enquiries but I have not formally offered any consultation. I am also actively engaged in resuming professional relationships with mental health practitioners in London.”
The Tribunal has noted the content of the GMC Online Complaint Form dated 17 January 2019 in which it was stated :
“Dr Neil MacFarlane has been extremely derogatory against service users living with a diagnosis. These online users have been reduced to unnecessary stresses and serious upset, I have had many direct messages that he is impacting on their mental health. He has also caused much upset with mental health professionals, namely psychologists and psychiatrists. I feel he is bringing both professions into disrepute. His blog has slandered many people and he continues to antagonise twitter users. He has pulled myself and many other people into threads with people who we do not wish to engage with, including pillshamers, prescribed harm groups. I feel extremely upset that he is trying to tarnish the good reputation of many doctors from all areas of mental health disciplines. Could someone please put a stop to his continuation and refusal to stop this nonsense. I have tried to get him to delete blogs and tweets for several months now and he refuses to listen to anyone. There doesn’t appear to be anyone online via twitter that has any respect for him. My biggest concern is the welfare of patients that he’s impacting on their mental health. Some have even told me he has been abusive. I personally do not want to take screenshots of his behaviour as I feel extremely stressed out myself over his online antics. This is his twitter account: XXX and this is his blog https://XXX Please can someone get a stop to this before something serious happens.”
I believe that I have repeatedly pointed out to the GMC that this complainant, and anyone else who finds my Tweets annoying, can block me. Some have. I believe the GMC at no time provided any direct evidence of my alleged slander, abuse etc.
The Tribunal has had regard to the documentation provided on Dr MacFarlane’s behalf. This includes:
- Dr MacFarlane’s work details form dated 20 December 2018;
- GMC Case Examiners Decision dated 4 March 2019;
- Narrative Statement undated;
- Documents titled “Complaints”
- Documents titled “Conspiracy theory”;
- Letters of support.
The Tribunal has considered all of the information presented to it including the submissions made by Dr MacFarlane, and those made by Mr Williams, Counsel, and Mr Boyd, Counsel, on behalf of the GMC.
Mr Williams took the Tribunal through the detailed background of the case. He submitted that Dr MacFarlane has admitted that he has been giving medical advice, opinion and diagnosis for patients without having a license to practice. He submitted that Dr MacFarlane has been operating on an erroneous basis and that his actions have the potential to cause harm to patients. He submitted that given the concerns that have been raised in relation to Dr MacFarlane there may be impairment of his fitness to practice.
Mr Williams submitted that on the face of it appears that Dr MacFarlane’s actions are causing concern and distress to patients and colleagues and could bring the reputation of the profession into disrepute. He submitted that it would not be possible for the Tribunal to frame conditions which would be workable and would address the concerns raised. For that reason, he submitted that given the concerns raised in this case, an order of suspension should be imposed on Dr MacFarlane’s registration to protect members of the public, and is in the public interest.
These two paragraphs are vague and do not address the legal arguments about licensing. My notes show that there was no reference to case law and minimal reference to the GMC’s ‘Good Medical Practice‘.
He submitted that the order should be imposed for a period of 15 months on to allow sufficient time to allow the GMC to investigate these matters, to take any witness statements required, for any Rule 7 bundle to be produced and for referral to an MPT if necessary.
Dr MacFarlane submitted that he considered he was not ‘antagonistic’ in his tweets, but that he had aimed to be ‘directly critical’ [‘robustly critical’]. He referred the Tribunal to a number of his tweets and submitted that he made a ‘mistake’ in relation to a particular tweet, in that he directly linked to it ‘rather than making a more subtle allusion to it’. Dr MacFarlane submitted it was important to note that he had linked to the tweet, rather than ‘screenshotted’ the tweet, but noted that the tweet concerned was in the public domain. Dr MacFarlane referred to the 2 ‘partial apologies’ he made in relation to the incident, and stated that he still considered this the correct approach. He stated that he had made 3 apologies and that this was indicative of his ‘openness and insight’ [‘openness and honesty’, a phrase from ‘Good Medical Practice’]. Dr MacFarlane stated that there was no direct evidence to support the assertion by a complainant that he had made ‘abusive tweets’ about two senior psychiatrists [this may refer to the ‘antagonistic tweets‘ allegation, I am not sure]. Dr MacFarlane told the Tribunal that he had ‘been smeared’ on Twitter, and he felt that the GMC had applied ‘double standards’ in his case.
The second complainant was not anonymous. In the tribunal I discussed a Tweet by her, from the GMC’s evidence bundle, which showed her to be a supporter of Dr Paul Morrison and Dr Samei Huda. I later discussed an abusive Tweet by Dr Morrison which she had ‘liked’. That Tweet had also been ‘liked’ by Dr Huda. These points are not mentioned in the Decision.
I tried to take care not to say that I received more smears and abuse than others. My point about a ‘double standard‘ is a wider one.
Dr MacFarlane referred to the Medical Act 1983 (as amended) and the GMC Guidance available in relation to Registration and Licensing, submitting that there are grounds for him to appeal to the High Court, on the interpretation of where and how a practitioner is allowed to work with or without a licence. Dr MacFarlane submitted that he considers he is within his rights to continue to offer consultations and provide advice, on a limited basis. He asked that the Tribunal reject the application made against him.
I did not frame the licensing issue as a matter of my ‘rights’. I spent 10-15 minutes on the issue and it is very disappointing that there is no attempt to summarise my reasoning at all.
In accordance with Section 41A of the Medical Act 1983, as amended, the Tribunal has determined, based on the information before it today, that it is necessary to impose an interim order. It has determined to impose an interim order of suspension for 12 months.
The Tribunal has determined that, based on the information before it today, there may be impairment of Dr MacFarlane’s fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest. After balancing Dr MacFarlane’s interests and the interests of the public, the Tribunal has decided that an interim order is necessary to guard against such a risk. The Tribunal has further considered that, were the allegations later proved, public confidence in the profession could be seriously undermined if he were permitted to practice whilst concerns regarding his conduct remain unresolved. The Tribunal was satisfied that, in all the circumstances, the statutory test for the imposition of an order is met in this case.
The phrase ‘public confidence in the profession’ does appear in the Medical Act. I am not sure if GMC counsel used it. This Decision has him saying (above) that I ‘could bring the reputation of the profession into disrepute‘. ‘Reputation’ does not appear in the Medical Act. No case law was cited. Very disappointing.
I recall making the point that in my opinion (and that of many others) patients and the public were at risk from senior psychiatrists. At no point (I believe) has the GMC suggested that my opinions on mental health are themselves a ‘risk’ to the public.
In reaching its decision the Tribunal has borne in mind the nature of the allegations in this case, which include acting outwith the boundaries of a doctor with medical registration but no licence to practice and ‘abusive’ posting on social media. It also noticed that some interactions were alleged to be with ‘vulnerable’ people, though the Tribunal notes that Dr MacFarlane disputes this. The Tribunal was concerned that there is a risk that the tone and content of some of Dr MacFarlane’s online interactions could bring the profession into disrepute. The Tribunal took into account the concerns that had been raised online and to the GMC that some of the posts made by Dr MacFarlane were inappropriate and had the potential to adversely affect some vulnerable individuals. The Tribunal bore in mind Dr MacFarlane’s submissions that this was a public forum, together with his reference to and submissions on other tweets in this area. It determined however that the concerns are serious and may lead to significant consequences for patients and for public confidence in the profession.
I did not dispute that I have interacted with ‘vulnerable’ non-professionals but submitted that my interactions have been reasonable except, among the examples brought to the tribunal’s attention, for the ‘mistake’ which I went through at some length, as the transcript will show. The summary above does not note that I apologised several times for that mistake on the same day, and later invited a complaint.
If ‘tone and content’ are deemed to be relevant to risk then it seems necessary to cite at least one example of my ‘risky’ online interactions. I cited article 10 of the Human Rights Act 1998 (see below), which does not exempt doctors and is of course more recent than the Medical act 1983.
This paragraph repeats the ‘professional reputation’ of GMC counsel, again without noting that this is not in the Medical Act. Perhaps there is case law. I am concerned that this MPTS tribunal basically rubber-stamped the GMC’s application. This is very disappointing given that the chair (as usual) was a lawyer and the other two panel members will have had substantial training in law.
The Tribunal is mindful that it is not its role to make findings of fact or resolve disputes in the evidence, nor is it its role to make a legal determination on when a licence is required. However, in light of the concerns raised, the Tribunal considers that a serious risk could arise in regard to patient safety if a doctor without a licence were to undertake activities for which a licence is necessary. For that reason it considered there may be a real risk to patient safety if Dr MacFarlane were to practise while this issue remains unresolved. Further in view of these concerns the Tribunal considers that a reasonable and well informed member of the public would be surprised and concerned to learn that Dr MacFarlane were permitted to hold unrestricted registration while the GMC investigation into these matters continues.
I should perhaps have made the point that any prospective patients who did not like my ‘robust’ Tweets to some professionals would be very unlikely to want to see me, and so would not be at risk of being upset by any such ‘robust’ comment on Pharma-enmeshed psychiatrists (for example) in a person-to-person consultation with me. I doubt that would have tipped the decision in my favour.
The Tribunal first considered if an order conditions were appropriate. In the circumstances of this case, the Tribunal did not consider that it was able to formulate workable, measureable, appropriate or enforceable conditions which would address the risks identified. It noted that Dr MacFarlane is currently not licenced but is alleged to be carrying out activities for which a licence is required. It notes that Dr MacFarlane maintains that he does not require a licence in order to practice in this way. Further it notes that the allegations relate to activities taking place within a public forum. Taking all of these factors into account, the Tribunal considers that an order of conditions would not be appropriate or workable and that an order of suspension is therefore the necessary and proportionate response in this case.
The Tribunal has taken account of the principle of proportionality and has balanced the need to protect members of the public and the public interest with the consequences for Dr MacFarlane of the imposition of suspension on his registration. Whilst it notes that the above has removed Dr MacFarlane’s ability to practise medicine, the Tribunal considers the order is the proportionate response given the reasons detailed above.
The Tribunal considers a period of 12 months will be sufficient for the GMC investigation to be concluded.
The order will take effect from today and will be reviewed within six months.
Notification of this decision will be served upon Dr MacFarlane in accordance with the Medical Act 1983, as amended.”
The tribunal decision failed to mention:
That I cited article 10 of the Human Rights Act 1998 when the tribunal chair repeatedly interrupted me, including when she sought to stop me submitting evidence on the GMC’s double standard (see my previous blog piece). I recall her saying that was ‘not relevant’.
Any of the contents of my summary in oral submission, which defends my criticisms of ‘senior psychiatrists’ as reasonable. Here are my notes for that summary:
‘I first point out that I have chosen to be critical of senior psychiatrists on two main issues. It seems unfortunate to have to cite article 10 of the Human Rights Act, more than two decades old, in defence of my criticisms, but I do.
My criticisms are of two main kinds. Firstly that of psychiatry’s relation with the pharmaceutical industry, and its refusal to engage with what any reasonable observer would describe as interested stakeholders. There are many patients and members of the public that senior psychiatrists have refused to engage with on this issue, and therefore those psychiatrists have been for many years and still are on any disinterested view, in flagrant breach of Good Medical Practice every day.
The panel will have seen my email exchange with the CEO of the Royal College of Psychiatrists in May last year, although I will not go to that now, the panel may recall that I was seeking a response in regard to what I have often described in my Tweets as ‘smears and abuse of people concerned about Prescribed Harm’, by current and recent College officers. The CEO, who I believe is directly responsible to the President Dr Wendy Burn, did not provide any significant response and smeared me as a person who makes ‘pronouncements’.
I now state that in the weeks before this tribunal, I requested, as formal legal disclosure, information about the anonymous investigating psychiatrist’s possible links to the Royal College of Psychiatrists. I did not make any enquiry about his or her identity. My disclosure request was denied, and I suggest this might also be of interest to the High Court. [I had previously stated that in my view an appeal to the High Court would have a reasonable chance of success given irregularities in the GMC investigation and the tribunal hearing]
The other issue on which I have criticised senior psychiatrists is their failure, in my view, to adequately seek funding for mental health and learning disability patients, including those with autism, ADHD and related conditions.’