‘Request for Review under Rule 12’ of the GMC’s decision that Dr Jessen’s ‘dick head’ and ‘bullshit’ is just ‘free speech’

Screenshot_2019-12-10 Dr Neil MacFarlane MRCPsych on Twitter DoctorChristian gmc letter to Hollysvaccine amp; me, 3rd Octob[...]

(Update above, 10th December)

(See my previous blog piece, which was my initial complaint)

(Letter to GMC below, 7th August)

From: Dr Neil MacFarlane BA MBBS MA MRCPsych GMC 3205688 and Mrs Vicky Oakley (Please reply to both)

In the GMC’s responses to the initial complaints it stated:

(To Mrs Oakley, 23rd July, initial response): ‘We appreciate you feel that Dr Jessen’s comment was insulting towards you and that his use of language was not appropriate…His use of the term ‘dick head’ to describe you may be considered insulting.

In making this comment Dr Jessen however appears to be exercising his human right to free speech. Whether you or members of the public disagree, or find offense, with his viewpoint or comments is not a matter for us…we do not find there have been any serious breaches of our guidance.’

(To Mrs Oakley, 23rd July, further response): ‘You have…questioned whether use of such language in the workplace would be acceptable. The short answer to your question is no. We expect doctors to act in nothing other than a courteous manner with their patients and I hope I can assure you that if a doctor’s behaviour and attitude puts patient safety and public confidence at risk we would take action.’

(To Dr MacFarlane, 2nd August): ‘…we appreciate that you find the comments made by Dr Jessen to be insulting and inappropriate […] We appreciate Dr Jessen’s choice of words [the complaint included a Tweet describing Mrs Oakley’s concerns as ‘the bullshit you spread’, and others calling members of the public ‘loon’, ‘loony’ and ‘lazy fuck’] may be considered insulting and are not condoned or endorsed by the GMC, however we do believe his comments are him exercising his human right to free speech. (our emphases).

 

Our requests for review

(we reserve the right to make additional requests for review, including requests on the basis of how other regulators restrict ‘free speech’.)

‘Free speech’ is ‘Freedom of Expression’ in Article 10 of the The Human Rights Act 1998, which states: ‘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…for the protection of health [and] for the protection of the reputation or rights of others’. (https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/9)

1. The GMC has a statutory duty (Medical Act, 1983) ‘to protect, promote and maintain the health, safety and well-being of the public’. This duty must include the encouragement of reporting, and public discussion, of adverse events which follow medical treatments. The GMC itself has stated that adverse events are ‘under-researched’ and, by implication, under-reported:

1907-GMC-DrugAEs

Therefore, given that Dr Jessen has a prominent and powerful position substantially arising from his GMC registration, the ‘insulting’ and abusive Tweets that we complained of are likely to suppress reporting and discussion of adverse events, and be detrimental to public health and safety. It follows that the restriction of his free speech rights, here, is reasonable.

The GMC has stated (second response to Mrs Oakley, above) that ‘…if a doctor’s behaviour and attitude puts patient safety and public confidence at risk we would take action.’ We submit that there is no basis in law for this to apply to a doctor’s language to his own patients, but not a doctor’s language to a person identifying as a member of the public (and, in fact, in this case as a parent carer) on social media or in any other context.

2. The GMC has a statutory duty to ‘to promote and maintain proper professional standards and conduct for members of that profession’. Dr Jessen’s prominent and powerful position results in his ‘insulting’ and abusive language impairing Mrs Oakley’s ‘reputation and rights’. Therefore, it is reasonable for the GMC to restrict his free speech on that ground also.

3. The GMC has taken a highly restrictive approach to ‘free speech’ in at least one other case involving a registered doctor, therefore its refusal to investigate Dr Jessen is inconsistent. As a body with statutory duties and powers, the GMC must carry out its duties and apply its legal powers consistently.

In my case (Dr MacFarlane, Case number: C1-2141764902) the ‘Decision to refer to an Interim orders tribunal’ of 4th March 2019 alleged: ‘He has made antagonistic tweets about other psychiatrists and has caused distress to service users. The GMC has been tagged by others in response to his tweets, illustrating the concern that his tweets are causing and the public belief that he should be prevented from tweeting in this way.’

Leaving aside the fact that the GMC presented no evidence for the ‘antagonistic’ (as opposed to reasonably critical) allegation, the allegation of ‘distress’ was not based on ‘insulting’ or abusive language towards members of the public, or indeed on any language towards the public.

Mrs Oakley is not basing her complaint on an unreasonable expectation that she will not suffer any ‘distress’ as a result of being presented with evidence or reasoning concerning health issues, or witness robust discussion between professionals. As a competent person (Mental Capacity Act, 2005), she accepts that risk.

Her complaint (and my repetition of her complaint, with additional examples of Dr Jesson’s language directed at members of the public) is based on a reasonable expectation that she does not suffer a specific kind of distress: that caused by ‘insulting’ and abusive language directed towards her, from GMC-registered medical practitioners, especially one with a prominent public profile.

 

(I have not made an appeal under ‘Rule 12’ before, so at this stage am not sure what the next step will be, if the GMC does not significantly change its position.

This blog piece will be brought to the attention of various individuals and organisations for comment, including Doctorcall (Dr Jessen’s Harley Street employer, who provided a very limited comment, which avoided the issue of ‘abusive language’, on my previous blog piece), Sanofi (who have failed to comment but have stopped Tweeting their travel advertisment featuring Dr Jessen), the Vaccine Confidence Project, the Independent Doctors Federation, and the Patients Association).

About Dr Neil MacFarlane MRCPsych

Independent Psychiatrist providing culturally informed mental health opinion, advice, and a few new facts. Based near London, UK. Main qualifications: BA MBBS MA MRCPsych.

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