The ‘Seroxat is defective’ trial can only proceed on a ‘worst in class’ basis, Court of Appeal rules.
This does not look good for the claimants, whose own barristers, on the first day of opening arguments, denied that ‘worst in class’ had been central to their pleaded case in earlier ‘case management’ hearings. The point of the unusual appeal, before any evidence had been heard, was that such a narrow ‘scope’ would make it difficult for them to win.
The claimants’ solicitors have not yet made a statement on their website, as to whether they will seek to resume the trial. The main alternative appears to be that the case is abandoned, in the event of the claimants’ litigation funders deciding that the chances of winning are now too low.
Why is Carl Heneghan shy about his links to establishment psychiatry, including ‘liaison psychiatrist’ Ben Goldacre?
Carl Heneghan heads Oxford University’s ‘Centre for Evidence Based Medicine‘ (CEBM). He gave evidence to the Independent Medicines and Medical Devices Safety Review (IMMDSR). But he has been silent about the discovery that the ‘lead researcher‘ and the ‘communications lead‘ failed to disclose serious conflicts of interest.
This piece on his links to psychiatry will be of particular interest to surgical mesh patients. Especially those who have found that their reports of pain and other symptoms have been undermined, and that they have even been referred to psychiatrists as part of that undermining.
I have emailed Professor Heneghan (he is also a registered part-time GP) twice, with no response. A regular Tweeter, he declined to respond to me there, as well:
Heneghan’s most obvious ‘link to establishment psychiatry’ is the multiple relationships that Oxford University has with drug and device plcs:
But there are other links, which overlap. The Oxford CEBM’s best-known researcher and medical doctor is Ben Goldacre:
Although his biography on the CEBM website states that Goldacre works part-time in ‘liaison psychiatry, on the crossover between physical illness and mental health’, he rarely discusses psychiatry in general, and I have never come across him discussing his work in liaison psychiatry. Since 2007, none of the dozens of his publications listed on the CEBM website has been directly concerned with mental health.
However, Goldacre has supported establishment psychiatrists such as Paul Morrison and Samei Huda in their attacks on the British Psychological Society’s ‘Understanding Psychosis’ document, which made a case for more psychotherapy, and questioned the emphasis on drug treatments.
Those attacks were published on the ‘Mental Elf’ blog, which is widely regarded by critics of establishment psychiatry as biased, and is partly based in Oxford. Goldacre has repeatedly praised it. In July, after pressure from clinical psychologist Peter Kinderman, Mental Elf disclosed that Oxford Psychiatry and The Royal College of Psychiatrists were among its ‘consultancy clients’.
The GMC Register lists Goldacre as a ‘specialist’ in liaison psychiatry, so he is probably working at least a day a week, and getting revalidation every year from at least one senior liaison psychiatrist.
Surgical mesh campaigners would not claim that all mesh-promoting surgeons are ready to smear their patients who complain of symptoms as mentally disordered. But a ‘liaison psychiatrist’ might be just the kind of doctor to do it.
A prominent Oxford psychiatrist, the recently retired Dr Guy Goodwin (photograph top left in Tweet number four, above), co-published exactly this kind of ‘bizarre symptom’ smear in relation to antidepressants, along with another about ‘the incentive of litigation’, in 2014.
The reference to serious adverse effects not appearing in randomised controlled trials (RCTs) provides another link between Oxford/establishment psychiatry, Ben Goldacre and Carl Heneghan.
In 2013, Goldacre and Heneghan were co-founders of Alltrials, which campaigns on under-publication of clinical RCTs. This is an important issue, as non-publication of studies with negative outcomes for particular drugs is often accompanied by publication of more positive ones, leading to ‘publication bias’.
However, soon after its launch, Alltrials was criticised by the non-establishment psychiatrist David Healy, as overly favourable to the pharmaceutical industry. If RCTs are not actually designed to find adverse drug events, then they will not do so, despite Pharma’s claims. Ghostwriting, carried out by the company which owns the data, can further obscure even very serious adverse events, including suicidal thoughts and behaviour.
‘Study 329‘ was the notorious clinical trial of GlaxoSmithKline’s paroxetine, for depression in teenagers (average age just under fifteen years) which, as reported in a prestigious academic journal in 2001, falsely claimed both good efficacy and safety. It substantially led to GSK’s three billion dollar criminal and civil fine in 2012.
There has been pressure to formally retract Study 329 from as early as 2010. That would be deeply embarrassing to both GSK and the worldwide psychiatric establishment, but especially the UK’s, as GSK is based here. The best-known retracted paper in medicine is Andrew Wakefield’s (my paraphrase) ‘MMR vaccine may cause autism’ of 1998, retracted in 2010: a comparison that GSK would see as highly undesirable.
Goldacre endorsed GSK’s CEO Andrew Witty as ‘a good guy‘ barely three months after the 2012 fine was imposed. In 2015, Alltrials praised GSK as having ‘gone further’ than other drug companies on trial openness, and even showing ‘moral and scientific leadership that puts to shame many in the academic community’.
In 2016 Goldacre talked about Study 329 in Dublin. He started off by downplaying ‘Conflict of interest’ as ‘what people who don’t understand trial design talk about’, a ‘popular discourse’ that he himself did ‘not find interesting’. This appears a very elite, perhaps Oxford-Cambridge elite (Goldacre’s father was an Oxford professor), way of distracting attention away from who funds research published in academic journals.
He then claimed that the much more substantial 2015 re-analysis of Study 329 was merely ‘a rhetorical act…we knew that within six months of the trial being published, that the trial was crap.’ No mention that the ‘crap’ was the burial, mainly through ghostwriting, of significantly increased suicidality in children as young as twelve.
And Goldacre’s ‘we’ certainly did not include GSK, or the medical doctors in the US involved in its illegal off-label marketing, which was alleged by the US Justice Department to have occurred ‘at least through 2003’, after publication of 329 in July 2001. The illegal marketing was alleged to have begun in 1999, suggesting the pre-publication use of the trial in conference presentations and meetings with individual doctors.
In the UK, the MHRA estimated in May 2003 that there were ‘7-8,000 under-18s being treated with Seroxat’. The law was tightened after a decision not to prosecute was made five years later.
As a reason for not bothering to push for retraction of 329, Goldacre then went on to spin this wrongdoing as just what other drug companies were up to at the time: ‘…why would we be more interested in Study 329?…I think it’s a real strategic error and a backward step, to be preoccupied with one study, when you’ve identified structural problems throughout the whole information architecture of evidence based medicine.’
Some eighteen months after his Dublin talk, Goldacre Tweeted again about Study 329: this time appearing to suggest that retraction might be a good idea after all, and criticising his own previous ‘everyone was doing it’ argument. But, again, no mention of suicidal thoughts caused by the drug, ghostwriting, or the funding by paroxetine’s patent-owners at the time, GSK.
Just a problem with ‘the journal’, and ‘medicine’. The ‘information architecture’ was to blame, not the flow of money from GSK into the bank accounts of doctors, researchers, professional writers, and academics, and to the conference venues and restaurants used to ‘educate’ them.
Could Heneghan and Goldacre’s reluctance to sully themselves with talk of ‘Conflict of Interest’ be anything to do with drug and device companies substantially funding research at Oxford University across not just academic medicine, including psychiatry, but even within the Law faculty? Perish the thought.
(See 7th September piece on Whale’s role in the IMMDS Review looking at valproate (bipolar disorder, epilepsy), surgical mesh and Primodos)
‘Communications lead’ Whale failed to communicate to patient groups that his company Luther Pendragon actually started listing the IMMDS Review itself, for the March to May 2018 quarter, as a public relations client.
Patients were also not told that the pharmaceutical PLC Abbvie, and the medical imaging company Affidea, were clients in the same quarter. They did not appear in the June-August 2018 PR register.
Abbvie became notorious in early 2013 when it took legal action against the European Medicines Agency, to block publication of adverse drug events. It was successful for over a year. The APPC register only goes back to June 2013: it was a client of Luther Pendragon at that time.
Earlier this year, Abbvie unsuccessfully sued NHS England over a contract to provide Hepatitis C antivirals.
Undisclosed clients, and an undisclosed direct funder of a client, which gave evidence to the Review
The ‘June 2019 register of interests‘ which the IMMDS Review published shortly after my first August 14th piece on its ‘lead researcher’ Sonia Macleod, has not been further updated. It disclosed, for the first time, that NHS England, which gave evidence to the Review, was a Luther Pendragon client.
There are two other as yet undisclosed bodies which gave evidence to the Review. The Royal Pharmaceutical Society was not named in the Review ‘register’ as part-funding the Pharmacy APPG, which was a client until July 2019. The Professional Standards Authority is a current client.
Baroness Cumberlege ‘listened’ to ‘LGBT communities’ in 2013. Then she told them they were ‘different’, and predicted that they ‘will regret attaching their unions to heterosexual marriage’.
In 2009, Baroness Julia Cumberlege opposed the strengthening of LGBT employment rights.
Speaking against the Equality Act, she declared her financial interest in maintaining discrimination, during the House of Lords’ debate: ‘I have carried out some training for members of the Catholic Bishops’ Conference of England and Wales through my company, Cumberlege Connections, and I am aware of its concerns about the Bill.’
‘I start by stating where the Catholic Church stands on human rights. All forms of unjust discrimination are wrong…’
Cumberlege, like most successful politicians, is good at making a mere tautology (‘unjust discrimination is wrong’) sound meaningful. She went on:
‘…However, the church, like the drafters of the Bill, recognises that we can and should take account of differences between people where these distinctions are properly based and not simply a matter of prejudice.’
Then, rather than putting forward the claimed ‘properly based’ facts and reasoning as to why LGBT people should continue to be discriminated against, the Noble Lady rapidly switched to painting a picture of her clients, the Catholic Bishops, as a ‘minority’ threatened by this ‘oppressive’ legislation:
‘There are well established matters of clear belief and doctrine which religious bodies have held, in some cases for millennia, and which they are fully entitled to hold under Article 9 of the European Convention on Human Rights.’
But, alas for Cumberlege and her clients, there is no such thing as ‘full entitlement’ under Article 9, and the Human Rights Act applies to individual persons, not ‘bodies’ of them.
Cumberlege’s further argument revealed her (and/or her clients’) beliefs about LGBT identity as a legitimate basis for shame and ‘scandal’ (my emphasis):
‘Any post where liturgy and doctrinal explanation were not the whole or main tasks would have to be open to a person of any sex, marital status, transsexual history or sexuality, whatever the beliefs of the religion. It would be unlawful to reject an applicant or take action against a person in post, however grave the scandal caused.
To re-state that, Cumberlege (and presumably the Catholic Bishops) asserted it was fine for a ‘religious’ organisation to turn down any LGBT person for any job, and merely cite concerns about the ‘scandal’ that might be caused. In 2013.
She continued, with a rather desperate attempt to appeal to the (likely) heterosexual majority in the House of Lords: ‘What would this mean in practice? If a man employed as a Catholic diocesan marriage care co-ordinator abandoned his family and his wife in a well publicised and scandalous divorce case to remarry in a civil ceremony a woman with a similar history, he could not possibly have any credibility in the function in which he was employed. Yet any action the diocese took against him as a result would be unlawful.’
I believe Cumberlege’s prejudiced rhetoric failed completely, and the Equality Act became law in 2010.
In 2013, Cumberlege was again very active in opposing Equal Marriage. As a psychiatrist, I try to avoid terms such as ‘weird’, but I struggle to find anything better to describe her reasoning in one particular speech. The use of ‘communities’ implies segregation, and to talk of a deficit or ‘lack’, given the history of (real) LGBT oppression, seems a very bad idea:
‘…“Marriage” is the word that means a union of a man and a woman. Same-sex couples have a yearning for equality…Marriage between a man and a woman is different from a union between two women or two men. I believe that the lesbian, gay, bisexual and transgender communities should have the confidence to establish their own institution. What they lack is the lexicology to establish and name their own institution…’
I used to subscribe to psychiatry’s professional claim to ‘delusion’, but in fact it is a very old English word, so now I am quite relaxed about
describing Cumberlege’s ‘soon they will say’ prediction as self-deluded:
‘I believe that, in time, LGBT people will regret attaching their unions to heterosexual marriage. Soon they will say, “No, we are different. We want be different and we need to create our own institution”. Like a flag, a motto or a name, they need to find their own terminology, their own symbols…’
‘Flag’ and ‘motto’ trivialise the issue. Cumberlege’s claim to be a ‘good listener’ is, in my view, bogus.
The proposed meeting of Primodos, valproate, and mesh groups with the Department of Work and Pensions, to look at Personal Independence Payments, looks like a distraction. From the failure of Cumberlege and Chantler to remove Sonia Macleod and Simon Whale from the IMMDS Review, given their serious undisclosed financial links with PLCs supposedly under scrutiny by the Review, plus many others of direct relevance.
But any groups who do not attend run the risk of being undermined as non-cooperative, by the Luther Pendragon PR machine.
I suggest that all groups ask Cumberlege and Chantler, who have spent well over a year supposedly ‘listening’ to evidence about all three conditions, why they have not openly published a proper written statement themselves, to inform the ‘Condition Insight Reports’ that the DWP is developing.
I offer to attend the meeting on behalf of any group which is wary of it, or simply does not have the time.
I have some knowledge of how the DWP operates, and also of how establishment psychiatry has been used by the DWP to undermine illness and disability benefit claimants.
A key establishment psychiatrist is Dr Simon Wessely, currently president of the Royal Society of Medicine (RSM). It may be a coincidence, but the RSM is the only ‘club’ that Julia Cumberlege lists in Who’s Who, as accessed in the British Library last month.
He appears to have had a relationship with the DWP for three decades, and his role in the last two is well-documented, helping it to undermine patients’ symptoms and disabilities as psychological.
He played a key role in the development of a form of CBT, for MECFS, which many patients have experienced as coercive.
The DWP failed to disclose its funding for the notorious ‘PACE’ trial of this form of CBT, compounding the alienation that many patients with MECFS already held.
Pro-GMC bias at my March and September MPTS tribunals: ‘Skeleton argument’ and March 2019 transcript.
Neil David MacFarlane GMC 3209688
Submission for [MPTS] Interim Orders Tribunal 11th September 2019
[Contents, with page numbers, omitted]
A. Skeleton Argument:
1. I have complained to the MPTS about its administrator Mr Joe Marley’s unauthorised communications with the GMC. I have expressed concern that Mr M[a]rley may have been involved in procuring a biased initial MPTS IOT tribunal panel on 18th and 20th March 2019.
2. The transcript of the of 18th and 20th March IOT shows that the panel was repeatedly biased in favour of the GMC, and therefore the suspension was, and is, unsafe.
3. I previously used the term ‘registered but unlicensed’ practice to refer to what the GMC tends to call ‘unlicensed practice’. I now adopt the term ‘registered-but-non-prescribing’ practice to refer to my own position: it is not perfect, but I believe it to be a reasonable compromise in how it conveys information.
4. The GMC has categorised the ‘nature of the case’ both in March, and at this Review, as ‘Misconduct’ but not ‘Deficient professional performance’. This is inconsistent with its ‘fitness to practice’ submissions in March.
I contacted the GMC in October 2018, to inform it of my resuming registered-but-non-prescribing practice.
The GMC has not interviewed me, to determine my ‘professional performance’, despite my repeatedly suggesting that it do so, from early 2019. In July 2019 I formally complained about its failure to interview me. I have received a non-answer, failing to address the issues I raised, and stating that the GMC has no plans to interview me.
I submit that the GMC’s failure to categorise the ‘nature of the case’ as ‘Deficient professional performance’, and failure to interview me, is an attempt to evade the MPTS’s scrutiny.
5. GMC counsel, on 18th and 20th March, gave a false account of the GMC’s understanding of the Medical Act 1983, regarding registered-but-non-prescribing practice. The legal advice on the GMC’s own website shows that the legal arguments I put forward to the GMC, since early 2018, were in all important respects identical to the GMC’s own view of the law.
6. The GMC has made no progress in identifying those who have allegedly been ‘distressed’, to an extent which might amount to evidence for my ‘misconduct’, by my activities on social media. It appears to have conducted no interviews. The prospect of it obtaining credible witness statements, let alone finding witnesses who might give evidence in a hearing, appears remote.
7. Although the GMC, with the support of the biased March IOT panel, made no structured attempt to plead its case, it hinted that my criticisms of other doctors might amount to misconduct. Two weeks ago I requested that a senior medical GMC officer, plus a senior lay officer, or suitable experts, appear on September 11th to be questioned on the ‘opinion evidence’ contained with GMC guidance, especially ‘Good Medical Practice’ and the ‘Social Media Guidelines’.
8. As a reason for requesting these witnesses, I informed the GMC that in my view such GMC guidance is flawed. It fails to adequately protect and promote ‘public health and safety’, which is the GMC’s primary statutory duty.
9. Even within it own flawed guidance, the GMC is biased, in favour of doctors who overpromote the benefits of drugs and devices, while underpromoting their harms. A recent complaint that I made about another doctor [Dr Christian Jessen] is a good example of this.
10. I submit that the GMC’s bringing these allegations to the MPTS is likely to have been, and still is, an attempt to discredit and silence a doctor who promotes a balanced view of drug and device benefits and harms, while criticising establishment psychiatry in particular and establishment medicine in general, for their subservient relationships with drug and device companies.
Far from being a significant threat to the psychiatric and medical establishment by myself, it is likely that I was selected, perhaps randomly, as a minor ‘Pharma-sceptic’ participant in health campaigning and medical politics, to be an example to others.
11. I ask the panel to lift the suspension. If the GMC wishes to properly plead a case based on the new evidence it has outlined and submitted to this IOT, but which appears to be extremely flimsy, it can do so by applying to the MPTS the following morning.
[Complaints to MPTS omitted: these are ongoing. At the 11th September panel I had not received any response within 24 hours of the hearing, and I submitted that that was yet another example of pro-GMC bias.]
Transcript of IOT Hearing 18th March 2019, with my comments in bold, plus relevant extracts from (a) my recent complaint to the GMC about Dr Christian Jessen’s abusive ‘Dick Head’ and ‘Bullshit’ Tweets to parent carer Mrs Vicky Oakley (b) GMC’s legal advice on its website about registered-but-non-prescribing practice. [Edited, to highlight the bias and prejudice (words which have overlapping meanings) of the March 2019 tribunal panel]
Medical Practitioners Tribunal Service
Interim Orders Tribunal
On: Monday 18 March 2019
Held at: St James’s Buildings, 79 Oxford Street, Manchester M1 6FQ
Case of: DR NEIL DAVID MacFARLANE
Reference No: 3205688
Ms Cerys Jones (Legally Qualified Chair)
Dr Susan Ellerby
Mr David Fisher
The Doctor was present but was not represented.
I represented myself. The FTP Rules 33(3) make it clear that a doctor may appear ‘in person’, and the courts of England and Wales routinely refer to this as self-representation.
I submit that this a demeaning practice by the MPTS, prejudicial against all self-representing doctors.
It is also contradicted by current information on its website (undated, p.7): ‘…you may represent yourself.’ https://www.mpts-uk.org/-/media/mpts-documents/dc11584-resource-for-doctors—interim-orders-tribunal_pdf-76542246.pdf
MR PAUL WILLIAMS, Counsel, instructed by GMC Legal, appeared on behalf of the General Medical Council.
Transcript of the digital recording
Transcribed by T A Reed (Wiltshire) Ltd
THE CHAIR: Good afternoon. This is a meeting of the Interim Orders Tribunal on 18 March 2019, and we are now considering the case of Dr MacFarlane, who is present. My note said that you were not represented, but obviously you have got a gentleman next to you, so I wonder if you would like to introduce yourself.
[…] I am Neil’s note-taker, […].
THE CHAIR: You are a note-taker?
THE CHAIR: You are not here as a representative, you are just to take notes? Can I just check whether, because we haven’t decided yet whether this is a public or private hearing, are you happy, Mr Williams, for a note-taker? There is a transcript. These proceedings are recorded; I will just say that, so a transcript would always be available.
DR MACFARLANE: Notes as we go along is the issue.
THE CHAIR: Mr Williams, does the GMC have a view on it?
MR WILLIAMS: It is perfectly allowable for a doctor to have support with him. Sometimes, it is emotional support. This is a practical support, to take a note as we go along. As long as the doctor’s friend understands that that is his role to take a note, and not to intervene and not to speak, I have no objection whatsoever. It is a matter for you.
THE CHAIR: Thank you. Sorry, I didn’t catch your name?
THE CHAIR: I will carry on with my introductions. So Mr Williams, instructed by GMC Legal, represents the GMC. Our Tribunal Clerk today, who is sitting behind the computer, is Ms Rosanna Sheerin, and you were shown into the room by our Tribunal Assistant, Mr Jack Collister-Brown.
Dr MacFarlane, in a moment I will do the introductions to the tribunal members, but could I ask you to start the proceedings by confirming to the tribunal your name and your GMC number?
DR MACFARLANE: I am Dr Neil MacFarlane, 3205688.
THE CHAIR: I didn’t catch that, I have got 3205688?
DR MacFARLANE: Yes.
THE CHAIR: Thank you very much. Dr MacFarlane, my name is Cerys Jones. I am a lay member. I am also sitting as a Legally-Qualified Chair. On my left is Dr Susan Ellerby, a medical member, and on my right is Mr David Fisher, a lay member. It is the tribunal members who will be making the decision today.
I do have some what I might call administrative matters to run through, but I do understand you have a preliminary issue in the sense that you wanted this hearing to be held in public?
DR MacFARLANE: Yes.
THE CHAIR: Did you want to address and say anything to the tribunal about that?
DR MacFARLANE: I would give two reasons for that: firstly, the matters under consideration occurred overwhelmingly in public. I don’t really like using the hackneyed phrase, “I have nothing to hide”, but it is applicable in this case. Secondly, I regret to say that I am not fully confident that the GMC would keep this matter private indefinitely, as is supposed to happen.
THE CHAIR: Okay. I will come back to you, but I am just going to ask Mr Williams if the GMC have a view on whether it is held in public or private.
MR WILLIAMS: You know that you are governed by the rules, and the rules indicate that an interim orders hearing shall be heard in private. So that is the default position.
Correct, but I submit that on this point the Fitness to Practice Rules do not comply with the Human Rights Act 1998, Article 6 (Right to a Fair Trial) which requires that the default position be public, for both civil hearings and criminal trials.
You do have the power to open it up, if there is a good reason to open it up, so that is our starting point.
Incorrect. The FTP Rules 41(5) state: ‘A[n InterimOrders] Tribunal shall, where it is considering matters under paragraph (3)(a), sit in public where the practitioner requests it to do so.’
As I had requested to do so, it was for the GMC and/or the panel itself to provide a ‘good reason’ to oppose.
The FTP Rules are not lengthy, and are central to all MPTS tribunals, so the legally-qualified chair’s failure to correct GMC counsel on this point strongly suggests pro-GMC prejudice.
The following paragraphs follow on from this incorrect and biased application of the FTP Rules.
Listening to what the doctor was saying, “he has nothing to hide”, on the face of it is not a reason to open it up from private to public, because the whole point of these hearings is that, although an allegation or concern has been raised with the GMC, which the GMC believes should lead to an interim order, these are simply interim measures put in place while the substantive allegation or concern is investigated. So it is not so much a question of hiding anything from anybody, it is meant to be a protection, and in particular a protection for the doctor. If it were to be investigated and come to nothing, then the doctor might have had something reported in the Press that was damaging to him that perhaps never should have been reported. One of the functions of it is to protect the doctor whilst something is being looked into thoroughly.
The other limb of the doctor’s application, as I heard it, was that he does not trust that the GMC will keep it private in the long run. It is regrettable that he feels that suspicion about the GMC, but there is no foundation for it. There is no, in reality, evidential reason why he should think that.
GMC counsel submitted a false account of the GMC’s position on whether doctors[‘] mistrust of the GMC has any ‘foundation’. It (the GMC) has broadly accepted, as being well-founded, what the 2018 Williams review (p. 39) described as a general phenomenon (that is, not limited to issues around criminal investigations and prosecutions): ‘The panel was concerned about the level of fear and mistrust that the medical community reported about the GMC.’
This ‘mistrust’ has been widely reported over the last 2-3 years: it is inconceivable that the medical panel member, Dr Ellerby, was unaware of it, and the Williams report in particular. Dr Ellerby was silent throughout the hearing. Her failure to correct this clearly false submission indicates pro-GMC bias.
GMC counsel’s use of ‘evidential’ was not corrected by the panel: see below on ‘information’. Pro-GMC bias, again.
You know that I appear as an advocate, on behalf of the GMC, so one of the parties. In fact, the hearing is convened and controlled by the MPTS, a separate body,
Every email that I have received from the MPTS has ended with the following sentences, indicat[ing] that the MPTS has not bothered to consider what the higher courts call ‘the appearance of bias’:
‘The Medical Practitioners Tribunal Service is part of the General Medical Council, but it is operationally separate and it is accountable to Parliament.
The GMC is a charity registered in England and Wales (1089278) and Scotland (SC037750)’
and so we are not connected or related in that way. In actual fact, it is the MPTS, the separate body, who controls the publication, or not, of the content of the hearing, and also controls the recording devices and any transcripts that might be made. That fear also is without a basis, because it is simply not within the GMC’s gift.
This last sentence is misleading. In the event of a secret hearing neither I nor the GMC would have been provided with the transcript. The MPTS would not be able to ‘control’ false and misleading accounts of the hearing leaked by the GMC to third parties, including the media, at all.
The GMC’s (and much of the medical establishment’s) approach to its statutory duty to promote ‘public health and safety’, and ‘confidence in the medical profession’ is dominated by attempts to manipulate public opinion and close down free speech. That appears to have been the view of the Information Commissioner, given the order last month to disclose the emails of senior GMC lawyers in the Bawa-Garba case: https://www.bmj.com/content/366/bmj.l5067
THE CHAIR: I just want to say, Dr…
DR MacFARLANE: Can I clarify: is the GMC opposing it be made public? Could I clarify that, please? Is it, or is it not, opposing? If it is not opposing…
THE CHAIR: I am not going to answer for Mr Williams.
Further evidence of pro-GMC bias. It would have been a simple matter to ask GMC counsel to clarify.
I was just about say, what I thought I had heard you say, but maybe you just want to answer that.
DR MacFARLANE: Again, can I just finish my point? My understanding from MPTS staff is that they are normally in private, but at the doctor’s request they will be made public.
THE CHAIR: If I could just clarify: the usual default position is that interim order hearings are held in private. They can be held in public, and the doctor is obviously entitled to ask for that, and under the rules, which are Rules 41(3), 41(4) and 41(6) of the GMC (Fitness to Practise) Rules 2004 as amended, the tribunal may decide, but it isn’t the default position. In general, there would normally be a reason why.
Repetition of the clearly incorrect application of the FTP rules.
If your view is you just feel that you would prefer it to be held in public rather than private…
‘you just feel’ is a distortion of my submission as expressive of my ‘feelings’, well within the spectrum of ‘gaslighting’ tactics reported by NHS whistleblowers. I had provided reasons, not reported ‘feelings’. Pro-GMC bias.
If the GMC had declined to formally oppose the public hearing, I would not have had to give any reason for my request and, as considerable time was taken, including the panel deliberating for over half an hour on the issue, it is unlikely the tribunal would have had to go into a second day.
I submit that the transcript shows GMC counsel was, in fact, opposing the hearing being made public. Whether he would have formally done so if, as should have happened, the panel had invited the question, is likely to remain unclear.
DR MacFARLANE: Well…
THE CHAIR: The reason, if I just say, is that for many doctors, obviously this is an interim stage, it is not a final hearing, so the allegations at this point to some extent may be slightly unformed. The information available is quite limited, so for a lot of people, they actually prefer that this part of the proceedings is held in private, because until something more formal comes out of it, after all there has been no decision made as to what is going to happen to this going forward. That will depend on the investigation. It is not possible to say whether it will go forward.
Given that the GMC was requesting a fifteen month suspension, for the chair to state ‘…after all there has been no decision made as to what is going to happen to this going forward’ failed to take account of the seriousness of what the hearing was to consider. Strongly suggestive of pro-GMC bias.
So I think for many people, the idea that it is made public at this stage may be seen as premature and possibly not something that many doctors would wish at this stage. Obviously, if you would like us to consider it, what we will just do is take five minutes to think about it.
DR MacFARLANE: Thank you. I am a little unprepared, because that was what I was led to understand. If I can make just two or three points from the brief narrative statement that I had prepared for today, which…
THE CHAIR: Is that specifically to do with whether it is public…?
DR MacFARLANE: No, it is specifically to do with the issue of it being public.
THE CHAIR: Fine.
DR MacFARLANE: So firstly, I contacted the GMC. I contacted the GMC on 19 October and informed it of my position on the licensing issue. I have repeatedly asked the GMC to state why it maintains that providing opinion and advice, which I am quoting from my communication to the GMC at that time, requires a licence. The GMC’s only response has been that this is a grey area in law. I submit this is a failure to carry out its statutory responsibilities, as the monitoring of doctors necessarily includes the imparting of relevant information to them on their legal status under the 1983 Medical Act.
So what else is immediately relevant…
THE CHAIR: Dr MacFarlane, I don’t want to get into that, because that sounds like it is going to be part of your submissions for later, but I just want to ask if you have got anything else, because the tribunal will now take five minutes in private, I think, to decide on this point. It is ultimately for the tribunal to decide if it thinks it is appropriate to go into public or whether to sit in private. If there is anything you want to say now, I would just ask that it be directed specifically to the question of why it should go into public.
Repetition of incorrect position under the FTP Rules.
DR MacFARLANE: I believe those last two points were, and if I may just take another 60 seconds to add to that. On 6 February, I was informed there was no indication these matters would proceed to a tribunal case, and there was no further suggestion they might until 6 March, when I was informed of the IOT and given six working days to provide submissions.
On the issue of outlining a written case in advance from the GMC who bring the case to this tribunal, I am very surprised to learn that that is not normal practice, and I am quite disturbed by that, to be honest.
THE CHAIR: You are disturbed that what is not normal practice?
DR MacFARLANE: That the GMC outline its case in writing. Having obtained this tribunal a full two weeks ago and as…
Submission on ‘skeleton argument’ ignored. I submit that ‘skeleton arguments’ are usual for almost all civil and criminal proceedings, certainly any proceedings that arise from ‘investigations’ of several months duration.
THE CHAIR: Can I just come back to the point: at the moment, the only point we are considering at this precise moment is whether or not this hearing should be held in private or public. I think the points that you are raising, with respect, actually go more to what, presumably, you want to say to the tribunal later on, as part of your submissions, which is why you do, or do not, think there should be an interim order.
If there is nothing else on the question of whether it should be public or private, then we will go into private session now.
DR MacFARLANE: May I just add that what I have just said about the GMC’s behaviour in the last few weeks is relevant to the second point I made about not trusting the GMC to keep it private, and also the GMC is widely regarded by many doctors as a dysfunctional organisation. That is a fact.
THE CHAIR: This is a Medical Practitioners Tribunal Service hearing.
DR MacFARLANE: Yes, but it is the GMC that brings the case to this tribunal.
THE CHAIR: It is the GMC that brings the case to the tribunal.
DR MacFARLANE: So I am giving a reason for my mistrust of the GMC keeping this matter private. Many, perhaps most, black and minority ethnic doctors regard the GMC as racist…
THE CHAIR: So do I understand, I just want to correct…
DR MacFARLANE: These are general…
THE CHAIR: I am sure that I have correctly understood. Are you saying that the reason you would like this to be held in public is that you do not trust the GMC to keep it private – that is the basis of your decision?
DR MacFARLANE: That is one reason. The other reason is that I have nothing to hide. The two issues are connected in that I believe it is…I wouldn’t overstate this, but I believe it is to some extent implicit in the GMC psychiatrist’s reasons for proceeding to the tribunal that I am somehow trying to escape scrutiny and, therefore, in seeking to make this public, I am sending a strong message that I do not wish to escape scrutiny.
THE CHAIR: I hear what you say. We are going to take five minutes now to make a decision whether or not we hear this in public or private. So we will just let you know; I shouldn’t think we will be more than five minutes.
I wonder, could you take all your papers, bags and documents with you? We will be quite quick, so you may wish to be outside, but we will take a brief adjournment. Thank you very much. Could you just take the rucksack with you, sorry? Thank you very much.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW AND THE TRIBUNAL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
THE CHAIR: Thank you. The hearing is now resumed. The decisions of the tribunal on that point is that according to the rules, particular 41(5), we have decided that we are going to hold the hearing in public, but the tribunal is concerned that certainly in relation to one of the allegations, there may be information about third parties and they are clearly not here and able to defend themselves, or to cover what is said. So should information come out during the course of submissions, which the tribunal considers is confidential, or should be confidential, then that part will need to be heard in private and that information will not be published. I just wanted to make that clear, partly so that when submissions are made, that can be borne in mind, because obviously we need to be fair to all parties. I would again, in respect of that, just draw attention to 41(6).
That is our decision on that. Written reasons for our decision will become part of the overall determination, so I am not going to go into that in any more detail now.
So moving on with this hearing, just because this is a new case, I will just very briefly run through the process, Dr MacFarlane. The process is that Mr Williams will be asked to make submissions, on behalf of the GMC, and the tribunal can ask questions. Then subject to that, we will turn to you, Dr MacFarlane, to make submissions on your behalf; again, there may be questions. At that point, the tribunal will go into private session to make its decision. A decision is made by the three tribunal members. The purpose of today’s hearing is not to make findings of fact.
The first of many references to ‘findings of fact’ and ‘fact-finding’. I did not dispute this technical legal use of ‘fact-finding’ in the March hearing, but I now submit that the chair used it in a confusing way, and allowed GMC counsel to use it in the same way, which would disadvantage most doctors representing themselves and therefore was prejudicial in favour of the GMC.
The essence of my objection is that, even if an IOT may be primarily concerned with risk, the defending doctor must still be able to challenge the reliability of any evidence put forward. At times the nature of that challenge may be very similar to ‘disputing alleged facts’. HRA 1998 article 6.
It is to decide if there is a risk in your continuing in unrestricted practice, and, if so, how best to manage that risk. Essentially, we are doing a risk assessment today.
Incorrect. It was for the GMC to plead a case that there was a risk warranting a fifteen-month suspension, and present evidence. The panel had to decide whether that alleged risk, as pleaded, met a threshold.
I would just draw that to your attention, so the question of when submissions are made that they are probably best targeted to that particular aspect and that focus.
I just have one or two other administrative matters. One, I need to check that we all have the same papers: we have one bundle and five addenda on our iPads. That takes us up to page 164. Just because sometimes the numbering is different, the last page of that is a letter, and accompanying email, from a [name given]. That is the last one.
MR WILLIAMS: I don’t have Addendum 05.
THE CHAIR: You don’t?
MR WILLIAMS: No. I have got four addenda. It may be that it came in later.
THE CHAIR: Do we have a hard copy for Mr Williams. He may want to have a look at it, because there were 17 pages of it. When did we get it? I can’t remember, I think at some point today.
THE TRIBUNAL CLERK: Jack, can you check if there is a hard copy within the file?
MR WILLIAMS: Also, whilst that is being looked at in relation to the paperwork, can I mention that I have not had an opportunity to talk to the doctor about the case in advance, because I understand he didn’t wish to talk to me,
I had an oral message from GMC counsel requesting a discussion ‘in confidence’. Such a message implies that the fact of its being declined would also be kept confidential: it was not.
For months I had made it clear that I was available to be interviewed by the GMC, on the record.
GMC counsel’s behaviour was a further indication of the untrustworthy behaviour of the GMC.
GMC counsel referred to my refusing to have a confidential discussion with him three more times. That the chair did not point out, on any occasion, that he was breaking confidence, indicates pro-GMC bias.
but I also understand that he has further documentation that he wishes to hand up and I have not seen that documentation.
THE CHAIR: All right. Dr MacFarlane, can I just ask: do you have further documentation that you wish the tribunal to look at?
DR MacFARLANE: I think this may be a misunderstanding on my part, because actually from what you have just said, Madam Chairman, I understand that the additional submission I have brought in this morning, which included the narrative statement that I had just read a little bit, has, in fact, been made into a PDF. So now I understand that you have got that with some additional evidence, and the two letters of support.
THE CHAIR: Okay, so are there any other documents you are going to want the tribunal to look at before we start?
DR MacFARLANE: Not concerning evidential issues, no. Not concerning evidence. I have prepared in anticipating how the legal…
THE CHAIR: I don’t want to interrupt you, but what I am trying to do is to say the general principle is that documents come in and they are shared between the parties.
DR MacFARLANE: Yes.
THE CHAIR: The idea would be that we will have read all the documents before the hearing, so that we are all in a position to go ahead and that we all understand what the information is.
DR MacFARLANE: I do understand that.
THE CHAIR: If the information is presented on the day then clearly, in fairness, we not only have to read it, but also Mr Williams has to have the opportunity to read it, in case there is anything in there he has to comment on. I am just trying to say: is there anything else you want us to look at now, because it may be good to hand it over now?
Again, it was for the GMC to plead its case, and for myself to respond. The ‘document’ contained the GMC’s own legal advice published on its website, and therefore I was not obliged to disclose it in advance, especially given the GMC’s failure to submit a skeleton argument.
DR MacFARLANE: I understand all that, Madam Chairman. I have prepared written legal arguments, if you like. They are not evidence. I anticipate what Mr Williams might say on the strictly legal issues and I may, or may not, provide you with those in addition to what I say about that in my response.
THE CHAIR: If I understand you correctly, I just want to get it clear because I am still a little bit confused: what you are saying is you may have documents that you wish to hand over, but you are not sure at the moment if you do…
The chair continued to ignore my distinction between evidence and legal advice or reasoning.
DR MacFARLANE: Correct.
THE CHAIR: …and you are going to wait to see what Mr Williams says.
DR MacFARLANE: Yes.
THE CHAIR: Then you may decide to put them forward at the start of your submissions?
DR MacFARLANE: Correct, because they are legal…it is legal argument and not evidence.
THE CHAIR: What I would say is I am concerned about some time and procedure in this, which is that if you decide not to submit them then that will be fine. If you decide that you do want to submit them, I am afraid at that point, the tribunal is not going to have time. We will have to take another adjournment possibly to read these. In general, we have had the opportunity to have read them over lunch or whatever. Mr Williams won’t have seen them. He will need time to read them. I don’t know how long they are. I don’t know what they contain. The general premise is that documents should be submitted before the hearing, not at the hearing, except in unusual circumstances. Documents do get submitted on the day, but clearly you have to appreciate that the tribunal reads all the papers before the hearing and if we only get them on the day then obviously that limits the amount of time that we can look at them. I just think if you have documents, it would be better for you to hand them over now.
The chair’s exposition here again fails to be structured in terms of the GMC pleading a case.
DR MacFARLANE: Madam Chairman, I repeat my earlier statement that I find it highly unusual that a case that has been going on for four months, in effect five months, the body that brings the case to this court has not provided a written statement in advance.
THE CHAIR: I am not going to argue the GMC’s case for them…
Another distraction from the point that the GMC had not provided any ‘skeleton argument’.
DR MacFARLANE: An outline of their case…
THE CHAIR: What I am going to say to you is that if you don’t wish to hand them over now, so they can be read, then when we get to asking you for your submissions, you will obviously be able to hand them over at that point. What we won’t have is time at that point to read them in detail and you will just have to draw our attention to the key points as you go through. There won’t be time to do anything else.
MR FISHER: Just an issue, now that Addendum 05 is in front of everybody, and looking at the last two pages, which are the personal statements, they are both headed, “I request my name and address not be read out in court”, and the other one does as well. Then at the bottom, just for everybody’s information, there is a signature, there is a clear name, there is a clear address, there is a clear email, and there is a clear mobile number. In a lot of cases where people require anonymity then those are redacted and the context of it, either personal friend or, “I have known this person as a colleague, as a nurse”, is sufficient. I think bearing in mind we have now decided we are going to go public, some of the information that has been given by the doctor is possibly already in front of us that we will have to be very careful about what we are doing when we get to that. Bearing in mind how long we discussed the issue about public and private, I just wanted to raise that straightaway.
THE CHAIR: Yes.
MR FISHER: The second thing, if you would allow me another minute, Chair, is that the doctor has used the phrase several times, “evidence”. I think you have pointed out already that this is not a fact-finding tribunal, that this is about risk assessment, and that we always are very careful to use the words, “the information before us”, rather than evidence.
Mr Fisher is supposed to be providing the perspective of a lay person, but here he is expounding on legal terminology. ‘Information’ is being used here in a technical legal sense.
Article 6 of the Human Rights Act makes it clear that anyone representing himself may use ordinary language. If technical legal language is absolutely necessary at any time, the court must make a reasonable attempt to explain it.
However, Mr Fisher is in fact incorrect in his preference for ‘information’: Part 7 of the Fitness to Practice Rules repeatedly uses ‘evidence’ when it refers to Interim Orders Tribunals themselves. The single use of ‘information’ clearly refers only to matters internal to the GMC.
He has used the word “court” several times; certainly, we are not a court.
Again, I may use ‘court’ in the ordinary language sense. Dictionary definitions of ‘court’ show that it has a wide meaning. In Section 8 (in the preamble) of the HRA 1998 ‘court’ specifically includes ‘tribunal’.
We are not making findings of fact, and I want to make sure that as we proceed through the afternoon that the basis on which we proceed is understood by the doctor. This is not a court, this is an Interim Orders Tribunal, which is very clearly here for the purpose of assessing risk and looking at interim orders of interim sanctions.
Mr Fisher contradicts himself by talking of ‘sanctions’. This suggests that, in his mind, the hearing was not merely a ‘risk assessment’, and that he was complicit with the GMC’s intent to use the IOT improperly to silence reasonable criticism.
I just hope that that is understood by the doctor before we get into the meat of the event.
THE CHAIR: Thank you, I think that sets out the position very clearly.
The chair fails to correct the obvious errors.
We will have to be very careful when we move on to some of the later information.
So I am going to turn to Mr Williams in a moment. I have explained what we will do with any extra documents that come up.
Mr Williams, can I check you have now got a copy of Addendum 05?
MR WILLIAMS: I have, thank you. I have just had a quick look at it. I am content to proceed. I note what the lay member of the tribunal has said about details that would ordinarily be redacted but have not been, so we will all have to be careful not to refer to those and slip in to saying names and what have you. Likewise, with the information within the presentation and submission that I will make and the doctor will respond to, because there are some names in there and we are in public, so to be careful not to mention any of those.
Then just lastly as a footnote, because I wasn’t – and it might be my fault – quite clear on what the doctor was saying about documents he may, or may not, hand up. Can I set down a marker of my position? That is I would object to the doctor handing up anything, whatever label he gives it – evidence or otherwise – until I have seen it, because that is the normal procedure and I do ask the doctor to give me the courtesy that I would give him.
THE CHAIR: Thank you.
DR MacFARLANE: Understood.
THE CHAIR: Those are all the preliminary issues now. So I am going to turn to Mr Williams to make his submissions on behalf of the GMC.
Mr Williams – and this also applies to Dr MacFarlane – if as you are giving your submissions, you feel that you are moving into something which is confidential, you may wish to say at that point, because we have said if we think confidential information is coming out that we will at that point have to go into private session.
So other than that, Mr Williams, can I ask you to make your submissions?
Registered-but-non-prescribing practice 1 – start
MR WILLIAMS: Yes. Thank you. Madam Chairman, members of the tribunal, so this is a new case for you to consider, and I know you have read the bundle. I will begin at page 5, if I may, of the main bundle. At page 5, you will have seen from you reading, an email of 12 November 2018 that makes reference to the new referral, makes reference to the fact that the doctor is registered but not licensed. It has been passed on internally within the GMC, the fact that the GMC had received an anonymous complaint. The substance of it is in the middle of page 5, where it says:
“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.
Then it goes on to give live links to a Twitter page and blog pages. There is a quote that has been lifted from one of the blogs, but that appears further on in the communication so I shan’t read it out at this stage, but you see that it is quoted there, the bottom half of the page. It is then passed on.
Then on page 7, we have printouts, if you will, of some of these pages, and you see, at page 7, the doctor’s Twitter account, where he gives his details, qualification, “Harley Street Psychiatrist”. Then also puts “Unlicensed Opinion”.
Following on from that, one of the tweets being from the doctor to somebody else on Twitter, the name whose username appears below, and I am not going to read it out just in case that reveals any confidential information, but you see the doctor saying there:
“I could potentially help in writing to NHS Trust to support funding for that…don’t want to get your hopes up too much but I have similar experience with people I saw privately.”
That is in connection with the discussion below about the supply of NHS services.
If we scroll a bit further down, on page 9, the doctor writes:
“The GMC guidelines…?…I did actually look at those 4/12 ago but perhaps you could quote the passage(s) you consider relevant…?…And what ‘advice’ do you consider that I have offered to [then there is a name there]…?”
It is in response to, I think, some of the Twitter feed that was criticising the doctor for offering advice. It then goes on to say:
“OK I have just checked the GMC social media guidelines…can’t find ‘you must not offer advice’…phew…Doctors ‘offer advice’ on social media all the time I reckon.”
“Er…need to catch up on that as well…hence some ‘pro bono’ consultations available for a limited time only…just updated ‘About me’:”
So the doctor seems to be indicating that he is giving advice to members of the public and he is also offering pro bono consultations, medical advice and consultations obviously falling within a doctor’s ambit and being licensed actions.
GMC counsel submits a false account of the GMC’s understanding and application of the law (as shown below).
It may be that the doctor is operating under a misapprehension that the fact he is not charging money for it means he doesn’t require a license to do it, but that would be mistaken.
We then have part of his blog. It starts on page 11 and there is a book review, but then if we move down to 12 and the “About me” section, the doctor himself confirms:
“I am now offering advice, mostly suitable for people who already have some experience of mental health diagnosis and treatment. For my current GMC status, skip to ‘I have resumed practice’ below.”
Then what he does is he gives a resume, or a description, of his past experience and qualifications, running in chronological order. Then on the following page, page 13, under the bold heading, “I have resumed practice”, you see the doctor writes:
“I have resumed practice by providing written opinion and advice, which is substantially informed by my past experience as a medical doctor and licensed prescribing psychiatrist. I remain as a medical doctor on the GMC’s Medical Register, where I have been listed continuously since 1986, with an additional listing on the GMC ‘Specialist Register’ since 2002.”
Drawing on all that past experience and resumé, he seems to be indicating that he is providing written opinion and advice, so again, licensed activities.
Two paragraphs further on:
“Without a GMC licence I am free to provide opinions and advice on diagnosis, medication, and other treatments such as psychotherapy. Many unlicensed doctors work in the NHS, making clinical decisions as medical managers.”
He is there delving into diagnosis, medications and other treatments. Two paragraphs further on:
“I am (late 2018) promoting the necessity for the NHS to set up special clinics for people having problems withdrawing from psychiatric medication (“Prescribed Harm”), and offering to work myself part-time in such a clinic. I am likely to apply for a GMC licence to resume prescribing in 2019.”
The last line there:
“I welcome any offers of work, for a reduced fee or no fee, from the NHS, charities, or other organisations.”
On the following page, you have an email from the doctor to the GMC, dated 13 December of last year. It is in response to the concern initially being brought to the doctor’s attention. The doctor’s reply is:
“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 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.”
We can then scroll on. There is another email from the doctor, it begins on page 17, 14 December, again to the GMC, where he makes a complaint about the nature and extent of guidance provided by the GMC. In the lower half of that first page:
“I submit that your statement ‘you are offering advice on diagnosis and treatment to patients, for which a licence to practise is required’ is incorrect, because I am not in the NHS etc and not doing MHA [Mental Health Act] assessments (for the latter I would either have to be in the NHS etc or Section 12 approved, which I am not).
However, I am a cautious person and have changed my homepage ‘About Me’ as follows. I was planning to make some changes anyway.”
Then he quotes how the page will be changed. If we look at the top of the following page, that bold phrase:
“I plan to resume practice in early 2019, and have been listed continuously on the GMC’s Medical Register since 1986, with an additional listing on the ‘Specialist Register’ since 2002.
Until my licence (which mainly relates to prescribing) is renewed I can offer consultations and provide advice on how to enhance support and treatment from NHS GPs, other doctors, and mental health professionals. I can also provide opinion about NICE guidance and other sources of ‘Evidence based Medicine’.”
Again, the doctor is seemingly expressing his misunderstanding that a licence mainly pertains to prescribing.
False again. In my own circumstances, not working in the NHS, prescribing is indeed the key issue.
That is the part that I would highlight, but you, of course, will have read it all and will read it again.
Just one small point before I move on, his reflection on vulnerable patients, because you will have read there was a concern that some of the people that he was engaging with on Twitter and some of the Twitter feeds he had reposted had been put there originally by patients – past patients – people that might be regarded as vulnerable. The observation here from the doctor is:
“Regarding ‘vulnerable patients’, I ask you to note that the person on Twitter to whom I proposed the ‘possibility’ of a no-fee consultation was paying for private psychotherapy. I suggested that I could write to local NHS services and argue for the NHS to provide this.”
We can move further on to page 19, an email from the doctor, 20 December of last year, where other than his work details form, he says,
“Attached. I cannot think of anything to add to what I have stated in my emails to you.”
You then have the work details form.
Registered-but-non-prescribing practice 1 – end
At page 26, we have a further complaint – there is a complaint sheet. The submitted date is 17 January of this year. There is a name provided there, which I will call “Ms P”. What it says in the summary of the complaint is that:
“[The doctor] 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. [Then the Twitter account for the doctor is given and the blog account.] Please can someone get a stop to this before something serious happens.”
At page 28 the doctor is then written to by the GMC on 1 February, with some more detail. The copies of letters are there. You have the doctor’s response at page 35. Sorry, it is not the doctor’s response. It is a further part of the concern that was raised. An email dated 8 January 2019, where it says that:
“[The doctor] has increased his abusive behaviour on Twitter over the past 24 hours. I’m not sure if there are things you can do to act urgently, but if you look at his twitter timeline today [and it tells you how to do that], you will see that he is causing distress to mental health patients and fellow mental health professionals alike.
In particular, [the doctor] has been taking screenshots from a mental health patient’s social media account and using them in arguments with other psychiatrists. In one case (below) he uses extensive screenshots from a young autistic man who has spoken previously of his different experience of psychiatric mis-diagnosis. [The doctor] seems to think it is ‘fair game’ to screenshot personal information because twitter is a public platform. However, I think most mental health professional codes remind their members to act very carefully on their in relation to information that patients share online, given the relative power imbalance between doctors and patients, and the fact that vulnerable people may not have considered it could be used in bad faith by people in positions of authority.
A significant problem here is that, now Dr MacFarlane has screenshotted the conversation, it will remain on twitter even if the medical history [mental health] patient later decides to delete his own threads. Tweets with images tend to get more views than ordinary conversation so the young mans (sic) difficulties will be broadcast to a wider audience than ordinarily intended. And twitter images are quickly indexed by google and other search engines so it is very hard to remove traces. I believe this is a significant breach of your ethical code.”
It then has a screenshot as an example, and you see there a patient on Twitter talking about events when they were 14 years of age. It carries on a number of mental health users have joined the conversation to ask the doctor to stop, and he is responding in bizarre fashion, accusing them of encouraging complaints, and in one case:
“…asking a psychology undergraduate student to declare any pharma conflicts of interest! See thread.”
Then there is a thread that continues on the following page, 36, where it is somebody else that is criticising the doctor for his conduct on Twitter, and there are screenshots that have been provided. You will see the latter half there:
“But to see Neil ‘no mates’ [about the doctor]…dredge up old tweets I made about the abuse I suffered as a child to score points against me is something else.”
Then there are screenshots that follow that. So a child, or somebody who was a child patient, there making complaint.
I am not going to read all those tweets into the record, Madam Chair, members of the tribunal, because I know you have read them and I don’t want to take up that time, but we do rely on the continuity of the conversation. You will see that some of the screenshots relate to somebody, a student, who I will call “Mr R”. You will see in that conversation that the doctor does start asking him what he is studying and where he is studying, and asking if he has any relationship with the pharmaceutical industry, and you will see how that conversation develops.
You will have seen, at page 42 halfway through, there is a user whose username is made up of names beginning with R, A and F. That is midway down page 42, it is 8 January. I don’t know if you can see that or find that easily?
THE CHAIR: Yes.
MR WILLIAMS: It says:
“It’s terrifying that [the doctor] has started dragging up [another person’s] personal psychiatric history again today, despite strong complaints yesterday. He shows little self-awareness & no remorse. I hope @GMCUK consider social media behaviour when renewing applications for revalidation.”
The doctor joins in with that conversation there, saying:
“Are you encouraging a complaint [and then refers to her there. I shan’t read all of that out.]”
You then have within the bundle some of the guidance that relates to this matter, and that begins on page 43. That relates to social media guidance. Then at 48 and onwards, there are written responses from the doctor, which I think the doctor would like you to take into account.
GMC counsel failed to plead any kind of ‘misconduct’ case, except in the vaguest way. There was no attempt at any specific reference to GMC guidance, or any attempt to outline progress in obtaining credible witness statements, which would include verifying the identity of the complainants, or those with [alleged] ‘distress’.
It is well-known that participating in debate and discussion on social media may lead to discomfort and distress. Since the publication of the Mental Capacity Act 2005 the statutory basis of adults taking such risks has become clearer.
All of the examples put forward by GMC counsel were on Twitter, which is a voluntary social media format: people taking part can discontinue at any time. Any ‘distressing’ Tweeter can be either ‘muted’ or ‘blocked’ at any time.
To my knowledge, none of the Twitter participants had ever been my own patient.
Registered-but-unlicensed Practice 2 – start
On page 50, part of that, just a detail of the conversation, the GMC email the doctor on 19 February, three lines in, saying:
“…I have been transparent in letting you know that we consider that in order for you to reach and provide your medical opinion, you would be conducting medical practice, which requires a License to Practise. Therefore, I would be grateful if you could provide responses to the below questions:
- (in express terms) What points you feel you are able to provide your opinion on without holding a License to Practise?
- What information you will require from the patient/what assessment or examination you must conduct in order to reach your opinion?
- Whether you intend to offer advice to the patients and on what points?”
On the following page is the doctor’s reply of 26 February – the first line in, second sentence, he says:
“You still maintain I have to be licensed to practise privately, without prescribing, signing death certificates, or doing MHA work, and yet the Law and the GMC’s own guidance contradict that:…”
Then he makes out an argument for why he believes that is not the case. He gives two links, and then says:
“I plan to make assessments and give advice in line with my experience, while making my break from practice and unlicensed status clear. I see no reason to state any other restriction.”
Then there are two long sections, which the doctor has provided, containing articles, which I am not going to read you through.
‘Two long sections’ outlining my approach to professional practice. In these last three sentences, GMC counsel again suggests that I have ‘deficient professional performance’ unless I can prove otherwise. It was for the GMC to plead exactly why my performance created a ‘risk’: they refused to interview me, relied wholly on vague suggestions, yet failed to record ‘nature of the case’ as ‘deficient professional performance’.
The doctor is here and he can speak to that himself.
So the position is, members of the tribunal, that the GMC do submit that the doctor’s fitness to practise may be impaired. That is the test that you as an experienced tribunal know that you have to apply,
There is no attempt to outline the nature or degree of the ‘impairment’ in terms of ‘risk’ to ‘public health and safety’, so it is false to say that any kind of ‘test’ has been outlined.
but I say it in those express terms, so the doctor understands what it is that you have to apply. The GMC say in this case that both public protection and the public interest are engaged here. It appears that the doctor – and he seems to be agreeing with this – is giving advice, he is giving opinion, he says his intention is to talk about medications and diagnosis, and engage with other practitioners, for, and on behalf of, patients without a licence to practise. He seems to indicate that he believes that he is allowed to do that, particularly if he is not charging any money, or if he is doing it in private practice. At one stage, it seemed to be an important distinction to the doctor that he was not doing it within the NHS or a Mental Health Act setting.
So on the face of it, the doctor is operating on an utterly erroneous basis, and that is leading him to perform as which he is required to have a licence to do. That also, obviously, has the potential for harm for these patients, some of them who may well be anticipated to be vulnerable people.
Another reference to ‘Deficient professional performance’, but the GMC has made no significant attempt to outline what kind of ‘harm’ to patients might occur.
So we do say that it is necessary for there to be an order in this case.
Registered-but-unlicensed Practice 2 – end
In terms of the public interest, you have that concern, but then you also have the general conduct in relation to the Twitter account. He appears, on the face of it, and the concern is, that he is causing concern and distress to people who are patients,
New evidence [for 11th September IOT] – complaint against Dr Christian Jessen, which shows that the GMC routinely operates a double standard regarding ‘concern and distress’. The GMC refused to investigate the complaint. It (the GMC) appears not to advise the vast majority of complainants that they can appeal to ‘The Registrar’ under ‘Rule 12’. The complaint has been appealed, jointly with Mrs Vicky Oakley (‘Holly’s Mum’).
[The whole of my 18th July complaint to the GMC was inserted here]
[transcript continued…] …to fellow professional colleagues,
Vague allusion to ‘Good Medical Practice’.
and thereby not only is it affecting those people, but he is bringing the profession, potentially, into disrepute. We would submit that a reasonable and properly-informed member of the public would be surprised if the doctor were allowed to continue like that while under the investigation without any restriction. Absence of a restriction, we would submit would tend to undermine public confidence in the profession,
GMC counsel is pleading a sanction or penalty, despite the IOT hearing supposedly being about ‘risk’.
you having the overriding objective in mind and the need to declare and uphold proper standards and behaviour.
If you agree that it is necessary, or at least desirable in the public interest for there to be an order, then one has to consider what type of order is appropriate. Our submission in this case is that only an order of suspension can meet the circumstances of the case. You know you must act proportionality, and if it were possible to meet the justice of the case and the concerns and nature of them with an order of conditions, all would be well and good, but we submit that it is not possible to frame conditions that are workable and address these particular difficulties. When you look at proportionality, you, of course, take into account the potential effect on the doctor. A suspension would stop the doctor from doing things that he is not licensed to do in any event. So there is no prejudice to the doctor in the sense that it would not prevent him from taking up paid employment as a doctor. He can work in any other capacity he likes, but in terms of being a doctor, obviously one needs a licence to be able to practise, and the area of suspension covers the same area that the doctor is not allowed to perform in, in the absence of a licence.
So we do submit that an order of suspension is necessary, desirable, proportionate, and that conditions are not workable, and that they do not meet the gravity of the situation.
In terms of the duration of any order, whatever that might be, it is going to take some time to investigate properly and fairly. The GMC will wish to obtain witness statements from the relevant people, and then provide the Rule 7 bundle and some draft allegations to the doctor, so that he can then respond and engage to that.
I was promised ‘particularised allegations’ in May, and have repeatedly asked when they would appear.
It then goes on, as you know, to Case Examiners to be considered at Rule 8. If it is thought there does need to be a hearing, then the hearing will have to be listed and heard. You know that all of that process takes some time, so in this case, the GMC are submitting that an order of 15 months would be appropriate. If it is possible to resolve the matter more quickly than that, then obviously the interim order will be brought to an end at the conclusion of the case.
So subject to anything that I might seek to add, if there are further documents handed up by the doctor, that is my submission. Thank you.
THE CHAIR: Thank you, Mr Williams. I am going to check with my colleagues if there are any questions. There is a question from Mr Fisher.
MR FISHER: Mr Williams, you took us through the exchange of emails and the conversations between the doctor and the GMC with regard to different understandings of what being registered but not having a licence to practise meant. I notice that in the bundle that the doctor has provided to us, it is on page 111 in the addenda 01 to 04 bundle, there is some information in there under the bold heading, “Legal advice”, which is part of the Case Examiners’ decision-making that was sent to the doctor when he was referred to this tribunal. I know normally, we don’t always see that document at an IOT. So I suppose my first question to our Chair is: am I all right asking a question about it, because it is in the doctor’s bundle?
THE CHAIR: It is in the bundle, so we have seen the document.
MR WILLIAMS: I think the principle is you are entitled to ask a question about anything that is in the bundle.
MR FISHER: I think the Chair has supported that. So bearing in mind that the doctor quoted the phrase “grey area” in one of his discussions earlier on when we were talking about public and private, the second paragraph under the bold headline, “Legal advice”…
MR WILLIAMS: Can I ask you what the page was again?
MR FISHER: Sorry, page 108 in the MacFarlane Addenda 01 to 04 PDF, which I think it is probably Addendum 03 or 04. It talks about the legal advice that the Case Examiner has obtained about activities that the doctor was doing. I just wondered if you had any comment on that final sentence in that paragraph, which starts “The legal adviser could not envisage circumstances…”.
MR WILLIAMS: So that specific sentence, “The legal adviser could not …”
MR FISHER: Or that paragraph, as a whole, because you have taken us to the exchange of conversation and you have alluded to the fact that the GMC appeared to be indicating that a licence was needed and the doctor appeared to be saying not, but there was some specific legal advice sought on this point it appears, and I just wondered.
MR WILLIAMS: I think the difficulty is the question perhaps is starting to drift towards fact-finding…
MR FISHER: Okay.
How can a question about legal advice not be part of an interim tribunal, when GMC counsel has claimed to have outlined the law concerning registered-but-non-prescribing practice?
MR WILLIAMS: So that is my hesitation there. It also draws me potentially into giving evidence myself about my own knowledge and awareness of what appears on the website in relation to licence to practise and what you can and cannot do…
MR FISHER: In that case then, if you feel we are drifting into fact-finding, I will pause it there, and I apologise for asking that question.
MR WILLIAMS: No, it is a perfectly natural question, sir.
MR FISHER: If it is easier not to go any further, then I am happy not to go any further.
Mr Fisher appears very keen to make it ‘easier’ for GMC’s counsel.
MR WILLIAMS: I could give a reply, but I think my reply then would be drifting both feet into that fact-finding…
MR FISHER: In that case, I think I would prefer that you didn’t and I will leave it there.
THE CHAIR: Thank you. Mr Williams has set out what he considers to be the GMC’s position on this. I don’t think it would be appropriate for him to comment on the Case Examiner’s reasoning.
Why not? If any panel member has a question, surely he must?
We actually have an IT issue. Is there a charger cable for this particular iPad?
MR FISHER: Apologies for this. It is telling me I have got 4% battery. I don’t want to lose the document in the middle of your information.
(General discussion about powering iPads).
THE CHAIR: While we are waiting for that, I am just going to confirm that we have no further questions for Mr Williams.
MR FISHER: What I didn’t want to do was interrupt in the middle of the doctor’s submissions to say, “My screen has gone”. Apologies for this.
DR MacFARLANE: Madam Chairman, I think I may have left some notes in the Doctor’s Room. May I go back and…
THE CHAIR: We are obviously going to have to wait just for a second. I am going to ask you again at this point: did you want to hand any further documents to the tribunal before you make your submissions?
DR MacFARLANE: Not at this stage.
THE CHAIR: I am afraid I am going have to say that if you do not submit them at this stage and allow us and Mr Williams the opportunity to read them, then the tribunal will have the right to say that we don’t…
DR MacFARLANE: May I go and get my notes and then I will give you an answer on that when I get back immediately?
THE CHAIR: Yes.
DR MacFARLANE: Thank you.
MR WILLIAMS: Shall I leave the room?
THE CHAIR: I am going to suggest we take a small adjournment at this point. We obviously need to get the IT sorted out, you need to get your documents, and then we will come back. So we will take a short adjournment, hopefully for not more than five minutes.
(The tribunal adjourned for a short time)
THE CHAIR: Thank you. The hearing is now resumed and we have sorted out the IT issues.
So Dr MacFarlane, I am now turning to you to make your submissions.
DR MacFARLANE: Thank you.
THE CHAIR: You were asked in the short adjournment we have just had whether or not you had any documents that you wanted to submit, and I understand you didn’t say that you did?
DR MacFARLANE: My recollection is that you would allow me to submit two very brief documents which I believe to consist…their essential nature is legal argument. In fact…
THE CHAIR: No, the question I am asking…
DR MacFARLANE: My apologies, it is only one document, and I consider that it is legal advice from the GMC directly related to this matter.
THE CHAIR: The point I was trying to get at, Dr MacFarlane, was you have been asked whether or not you had an extra document that you wanted to submit, and the opportunity was that we would have the opportunity to read it through the short adjournment we have just had. So I understand that you didn’t produce a document then and you are now saying you do have a document that you would like us to consider.
DR MacFARLANE: I don’t agree with your account of that I gave up, as it were, my opportunity to…
THE CHAIR: So you do have a document you now want us to read?
DR MacFARLANE: I do, yes.
THE CHAIR: Can you tell us how many pages it is?
DR MacFARLANE: Only one.
THE CHAIR: Could we all have a copy?
DR MacFARLANE: Yes.
THE CHAIR: I am going to mark it as D1. I am going to give a copy to Mr Williams.
MR WILLIAMS: Madam Chair, the process really should be I should see it first.
THE CHAIR: I am going to ask for you to have a copy, so yes, sorry. You have a copy first.
DR MacFARLANE: There are four copies there.
THE CHAIR: If you could just give one to Mr Williams at the moment.
DR MacFARLANE: Okay.
THE CHAIR: Mr Williams, as it is one page, could I suggest that you just have a look at it now and then decide whether or not you would be happy to go ahead, and if not then we will have to take another adjournment. You decide.
MR WILLIAMS: Yes, I will try and be as quick as I can.
THE CHAIR: That is fine.
MR WILLIAMS: (Pause). I do object to it, and I can tell you why and you make your own mind up. It is because it is one short section of the GMC website, and I am aware of the wider sections. It is, I am sure, not intentionally so, but it is potentially misleading to put in a short section of the guidance and miss out the rest of the guidance. That said, I am also not so sure about the relevance, because you are not a fact-finding tribunal and you are not deciding if the doctor has, in fact, breached the guidance. So there are two different positions there.
THE CHAIR: Thank you. I am afraid I am going to have to ask you, we are going to have to have another short adjournment, because it will be for the tribunal to decide whether these can be admitted.
DR MacFARLANE: May I briefly respond to that, Madam Chairman?
THE CHAIR: Yes.
DR MacFARLANE: Thank you. I state that this is relevant to the legal issue on licensing and not relevant to guidance directly, as Mr Williams appears to put forward.
THE CHAIR: Could I ask some questions before we go into private session? Do you agree with Mr Williams that this is an excerpt, rather than the whole document or guidance?
DR MacFARLANE: Mr Williams appears to acknowledge that the GMC website contains several pages, much of which I submit contains legal advice on licensing…
THE CHAIR: So the answer is that that is an excerpt?
DR MacFARLANE: It is an extract, yes, but I do not agree that it being an excerpt will be misleading. I submit that that is for the tribunal to decide. It is for the tribunal to decide if it can be, or is likely to be, misleading once they have read it, and I have commented on it.
THE CHAIR: Thank you. Can I just check with my colleagues if there are any questions? No.
I am going to ask you whether you want to make any further comments, Mr Williams.
MR WILLIAMS: No, I have made my objection. If I can help you with clarification then I will. In summary, I have set out my objection.
THE CHAIR: I am very sorry but I think the tribunal certainly need to discuss this, so I am going to have to say we need another short adjournment. I am afraid I am going to have to ask you again if you could take all your documents, telephones, bags, coats, out of the room. Thank you.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW AND THE TRIBUNAL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
THE CHAIR: Dr MacFarlane, Mr Williams, the tribunal have considered – we haven’t seen the document but you have basically told us what it is. As it is very short, even though it has been submitted very late, the tribunal has decided to accept it. Obviously, we will need to decide what weight to attach to it.
As Mr Williams hadn’t seen it before, I am just going to say, before I turn to you, Dr MacFarlane, I am just going to ask Mr Williams if you want to say anything about that document now. I am going to give you the opportunity, should you wish to do so now.
MR WILLIAMS: Yes, I will, please. If I can have sight of it again because I handed it back.
THE CHAIR: As we have decided to accept it, obviously we all need a copy and I am going to mark it D1.
MR WILLIAMS: It is probably best, now you have decided to have them, if you have them and then the comments I make aren’t in a vacuum. So what you have, members of the tribunal, is part of the GMC website, and you see the top left-hand corner, under the General Medical Council, it says, “Registration and licensing”, so that is a subsection that this comes from. You can see the route, “Home > Registration and licensing>The medical register>Licence to practise resources” then it finishes on: “I’m retired and thinking of giving up my licence. What should I do?” Then there is a subsection, “Does Dr Littleman need a licence to practise?” So an illustration if you will, for the pretend character, Dr Littleman, who is a retired GP, now working as a nutritionist and homoeopath. The guidance is much more extensive than this on the actual website and there are sections that are more relevant to the question that we are dealing with, but you don’t have those.
False. The ‘extract’ I submitted was (and remains) the only significant passage containing the GMC’s legal advice on registered-but-non-prescribing practice.
So the only observation I would make is: had this been flagged-up to the GMC in advance in the ordinary way, even if it had been flagged-up this morning, if the doctor been willing to have a conversation with me, because he was not willing to have a conversation with me, then delay could have been avoided, the entirety of the guidance could have been obtained for you, and you could have put this section within its proper context. As it is, you can’t put it in its proper context.
GMC counsel implied that he has been well-briefed on the ‘much more extensive guidance’, including the guidance, which I maintained was ‘legal advice’, regarding registered-but-non-prescribing practice.
[Here I inserted an image of what I consider to be the GMC’s ‘legal advice’, which is at the top of my medium-length March blog piece, on the registered-but-non-prescribing issue]
Therefore, my fallback submission has to be that you can really put little or no weight to it. Thank you.
THE CHAIR: Thank you. I am going to ask my colleagues if there are any questions for Mr Williams. No, thank you very much Mr Wililams, the tribunal have no further questions for you.
So Dr MacFarlane, I am now going to turn to you to ask you to make your submissions. Again, you have given us information which we have read, and I would just say again that I would reiterate that the purpose of our hearing today, we are not making findings of fact, or legal determinations on the issues. We are undertaking what I would effectively call a risk assessment. I am sorry to repeat what you probably think you have heard several times, but if I could now turn to you to make your submissions.
DR MacFARLANE: Thank you, Madam Chairman. On the issue of, as you have just repeated, my contention is that although this is a risk assessment, it is still a trial, and the distinction, according to my understanding between evidence and legal argument, all those things still apply. Of course, I do accept the distinction between a risk assessment and a finding of fact, but I am not sure that I agree with the significance of that in order to address what I have…in the submission that you received this morning, my narrative statement, I asked if the tribunal would separate the issues of what I called registered but unlicensed practice and the other issues, which essentially I argue that the GMC have put the two together. I submit that they require separation. What I would ask you to do is to consider first the issue of the registered but unlicensed practice and then I would ask for a break. Because the GMC has not provided a written outline of the case that they were going to present, I will need some time to consider what the GMC has said, has picked out and stressed from the 87 pages of the evidence bundle that they provided.
THE CHAIR: Dr MacFarlane, I am afraid that is not possible. You have an opportunity now to make your submissions on all the bits of the information in front of us that you wish to draw to our attention, and state what you want to say. I am afraid it isn’t possible to do it in two chunks; in other words, to deal with the question of whether or not you have unlicensed practice and then to deal with the social media. You need to make your submissions in one session.
DR MacFARLANE: I state to you, Madam Chairman, that I am unable to do that.
THE CHAIR: I am afraid, Dr MacFarlane, I am going to have to say that you will need to do that, because otherwise when you finish your submissions, and if you say that you have finished your submissions at that point, the tribunal will then decide if there are any questions. We will then go into private session to make our decision. So I have to warn you that it isn’t possible for us to give you an adjournment on facts and issues which you have already known about before today’s hearing, so that…
To again ignore the fact, repeatedly, that the GMC had failed to produce a skeleton argument, to structure its selection of two dozen pages from the ‘87 pages of the evidence bundle’, was grossly prejudicial.
DR MacFARLANE: I am sorry, Madam Chairman, I…
THE CHAIR: No, you may not have heard the GMC’s submissions until today, but you are aware of the issues which are before the tribunal.
And again. A case must be properly pleaded.
So I am simply going to say at this point: I would invite you to make your submissions on all the points that you wish us to consider.
DR MacFARLANE: I am unable to, Madam Chairman, for the reasons that I have just outlined, and I require a break in order to consider the matters concerning what I recall Mr Williams described as breaches of the social media guidelines, although I shall have to refer to my notes again, because he has not provided a written outline of his case. If you insist on that, then I ask for a break now, and then I will continue with what I regard as the legal argument separate from the issue of the breaches of conduct…
THE CHAIR: I am afraid, Dr MacFarlane, the procedure is that the GMC are invited to make their submissions. The tribunal can ask questions. We then turn to the doctor, or the doctor’s representative, to make their submissions. You will have heard what the GMC have said and you will have your opportunity to make your submissions. I am afraid it isn’t possible…there have already been a number of adjournments in today’s hearing, for a variety of reasons, but the process anyway is that there is one opportunity to make the submissions. This is your opportunity to make them. The tribunal wants to hear your submissions on all the allegations that are before us. We very much want you to say what you feel that you want to say, but I don’t think it is appropriate for us to have another adjournment now, which would not be the normal practice, in any event, for you to consider what the GMC have said. You know what the allegations are before today’s hearing, you have been aware of what the allegations are, because they were written to you in the notice of hearing letter, the letter from the GMC…
DR MacFARLANE: Yes.
THE CHAIR: So you have known what the issues were that were coming before today’s tribunal.
There is a very substantial difference between the original raw ‘allegations’ and possible ‘issues’, and what should have been a proper skeleton argument pleading risk, and risk threshold.
I am therefore saying that you need to make your submissions on all those points now, if you want us to take them into consideration.
DR MacFARLANE: Madam Chairman, I must have time to consider whether the GMC’s submission today is different from the reasons that I received a week ago.
THE CHAIR: No, I am very sorry, Dr MacFarlane. I appreciate that you are unregistered. Obviously, the tribunal want to be as fair, as I hope we are being to you, but you did know what the issues were before the tribunal today. Therefore, you are in a position to make submissions on all those points, those allegations which you were aware of before today’s hearing.
DR MacFARLANE: No, Madam Chairman, I do not accept that the allegations were…
THE CHAIR: What the tribunal will do…
DR MacFARLANE: …as straightforward as you maintain.
THE CHAIR: The allegations were sent to you. You are aware of what the issues are. It is the role of the tribunal to hear the submissions from both parties. Then when we go into private session, we have made notes on all the submissions that have been made to us, and we will take all of that into account in reaching our decision.
DR MacFARLANE: I am unable to respond adequately on the allegations, other than the strictly legal ones, without a break, even if it is only 10 to 15 minutes. It will not be adequate.
MR WILLIAMS: Madam Chair, can I make an observation, please? Obviously, an adjournment or not is entirely a matter for you, but it is the position that not only has the doctor been served with the papers in good time, and had an opportunity to read them, but he also declined the opportunity to speak to me this morning, when I could have answered any of his questions and mapped out what I was going to say, because that is the normal practice. It is certainly my normal practice…
DR MacFARLANE: No, I disagree.
MR WILLIAMS: I am talking, please, Doctor. You will have your opportunity.
DR MacFARLANE: Sorry, I disagree.
MR WILLIAMS: You don’t know what my normal practice is. That is the normal practice here…
DR MacFARLANE: You seem to be saying it is the normal practice at the court…
THE CHAIR: Dr MacFarlane, could you allow Mr Williams to make his submission.
DR MacFARLANE: Well I…
THE CHAIR: I will come back to you before we decide…
DR MacFARLANE: In my view, you are giving Mr Williams preferential treatment.
THE CHAIR: I am not giving either party preferential treatment. What I am saying is when Mr Williams is making his submissions, I think it would be courteous if we allowed him to make them. Then if you wish to say something, I will come back to you.
MR WILLIAMS: Yes, thank you. All I am stating simply is that the normal procedure is that counsel, whether the doctor is represented or not, will normally speak to the other side and discuss the issues and map out in broad terms how the GMC are going to put their case. That is the normal procedure. I offered to speak to the doctor this morning, and I understand that he had made a decision that he did not want to speak to me. That is his right to do so, but if that then means that he doesn’t get to hear what I would have told him in the ordinary way, which is the normal practice, and certainly my invariable practice with doctors who are unrepresented so they are forewarned and forearmed, if he declines that opportunity, he can’t then complain that he doesn’t feel fully prepared now, because that is a decision that he has made.
THE CHAIR: Dr MacFarlane?
The chair has now allowed GMC counsel to break confidence concerning a proposed off-the-record discussion, while ignoring my reasons for declining that discussion, on four occasions.
DR MacFARLANE: May I respond to what Mr Williams has just said?
THE CHAIR: Yes.
DR MacFARLANE: There is an enormous difference between the GMC providing a written submission on the outline of their case. If it was going to be the same as in the reasons for going to the tribunal, they could simply have done that. I ask the tribunal to consider: why did they not do that?
As far as what Mr Williams says about the discussion with him, that would have been an entirely different matter, as far as I understand it. Neither of us would have been taking a record. If Mr Williams misled me in any way…I am not casting aspersions against Mr Williams, he has been instructed by the GMC to act in this way. It is merely the GMC’s way that they have instructed him that I am concerned with. There would have been no notes taken and if I had wanted to dispute his…I would have been unable to dispute his account of what our conversation was.
THE CHAIR: Dr MacFarlane, can I ask you just one or two questions, I think? Do you accept that you got the Notice of Hearing?
DR MacFARLANE: The Notice of Hearing…
THE CHAIR: You will have had a letter from the GMC, or you will also have had a letter from the MPTS, prior to this hearing…
DR MacFARLANE: Yes.
THE CHAIR: You have also had the Case Examiner’s decision?
DR MacFARLANE: I had the Case Examiner’s decision, but that does not normally go to the tribunal.
THE CHAIR: No, but it has done, so do you agree then that you understand the allegations which have come before this tribunal?
DR MacFARLANE: No, I do not agree, because the allegations have only been presented today, and I have taken…
THE CHAIR: No, they haven’t. The allegations are set out in the notification that you get prior to the hearing. What you have heard today from Mr Williams are the GMC’s submissions on those allegations, and it is now your opportunity to make your submissions on those allegations. So you and the GMC, if I could put it in a sort of simplistic way, is that both parties see the allegations before the hearing, as does the tribunal.
Incorrect. Allegations are evaluated by the GMC, and (as outlined above) should be properly submitted as evidence, and a case pleaded concerning risk.
The GMC do not know necessarily what you are going to say, although there is a view that all information is shared, but they don’t know what you are going to say on the day, in the same way you didn’t know what Mr Williams was going to say on the day until he said it.
A seriously false and prejudicial summary of the position as one of ‘equal submissions’.
You both know what the allegations and issues are which are coming before the hearing today.
DR MacFARLANE: Madam Chairman, I am concerned that you have just given a very inaccurate statement of what is happening today.
THE CHAIR: Dr MacFarlane…
DR MacFARLANE: Mr Williams has brought a case on behalf of the GMC and I require to be able to respond to it in an adequate way.
THE CHAIR: Dr MacFarlane, I think we are going to take a short adjournment. My view is that you have had the notice of the allegations which are to be considered today before the hearing. You have had the opportunity to put in a written submission; in fact, you have sent some in to us. You are having the opportunity now to give us verbal submissions on those allegations. When all the submissions have been heard, the tribunal members will go into private session, we will take into account all the submissions that we have heard today, together with the written information that we have seen, and we will then make our decision. I am offering you this opportunity to make your submissions to the tribunal.
DR MacFARLANE: Thank you, Madam Chairman. I continue to disagree with the summary you have again just made. I do agree that a very brief summary of the allegations was part of the notification from the MPTS, but I have not had time to study the extent to which the case that Mr Williams has made in going through the evidence bundle as he has and commenting in the way he has and his summing-up, I have not had chance to study that, either in itself or in comparison to the reasons for coming to the tribunal.
THE CHAIR: So do you feel that you are not in a position, having known what the issues were before the hearing today? Are you saying that you don’t feel in a position to make any submissions to the tribunal?
DR MacFARLANE: No, as I said, I asked for a break, either after I had made what I would call my submissions on legal arguments, but after, even if it is only 10 to 15 minutes, I have had time to consider the allegations on the alleged social media issues, because I had no idea what Mr Williams was going to focus on.
THE CHAIR: Mr Fisher has got a question for you.
MR FISHER: Again, I am looking at the Case Examiner’s reasoning, which was attached to the letter that was sent to you on 6 March, and page 11, which I asked a question of Mr Williams earlier, which seems to indicate that there is a disagreement between the GMC and yourself about what you can and can’t do without a licence to practise. Indeed, your D1 is your view on what some of the guidance from what the website says. So are we right in thinking that as far as that part of what you wish to address, which is the licence to practise issues, that that is what you have prepared?
DR MacFARLANE: I have prepared that and, separately, the social media issues.
MR FISHER: So you have prepared some social media issues?
DR MacFARLANE: I have tried to anticipate what emphasis Mr Williams might give on that, but I need a break in order to consider it, as I have said.
MR FISHER: In relation to the Case Examiner’s decision, again if you want to look at page 11, which is in that addenda, 01 to 04, under the italic heading of “public interest”, under the three bullet points there:
“Concerns have been raised about Dr MacFarlane’s online behaviour, with a number of mental health service users and professionals asking him to desist. He has made antagonistic tweets about other psychiatrists and has caused distress to service users. The GMC has been tagged by others in responses…Referral to the interim orders tribunal is necessary to maintain public confidence in the medical profession…”
You have prepared on that basis of what was in that document?
DR MacFARLANE: Yes, I would say so.
MR FISHER: So if I am hearing you right now, you believe that there is information that has been in Mr Williams’ verbal submissions which requires you to have a break…
DR MacFARLANE: Yes.
MR FISHER: …because of what you have heard. Are you saying that what Mr Williams has submitted goes beyond what is in that paragraph?
DR MacFARLANE: I just need 10 to 15 minutes to reflect on that. At this stage, I would say not substantially, certainly, but I would just like 10 to 15 minutes to reflect on that.
MR FISHER: Okay, thank you.
THE CHAIR: Taking into account that you are unrepresented, my colleagues and I have decided that we do want to hear your submissions, and I think it is important that we do. So we will give you ten minutes, which takes us to 25 past, but I would have to ask that we are all ready to resume at 25 past. That is ten minutes. At that point, the submissions will need to be made in their entirety. So 25 past. If I could ask everyone to be back for that time. Thank you very much.
(The tribunal adjourned for a short time)
THE CHAIR: Dr MacFarlane, can I ask you to make your submissions then. Thank you.
DR MacFARLANE: Thank you. Can I ask how long I have?
THE CHAIR: How long do you think you are going to take?
DR MacFARLANE: Two or three hours, ideally.
THE CHAIR: I am afraid that is not possible.
DR MacFARLANE: In that case, I ask that unless after your deliberations fail to deny the application, then I will ask for an adjournment on the grounds that I have not had, as I was saying before, I won’t…I will be brief here. I have not had sufficient time to consider the GMC’s oral submission. Also, on the grounds that I have not been allowed to question any of the GMC’s investigators who selected and compiled the evidence, despite repeated requests to do so.
THE CHAIR: Dr MacFarlane, I feel that we may be going over old ground here, but I have to say…
DR MacFARLANE: That was for the record.
THE CHAIR: …this is your opportunity to make your submissions. Could I ask you though – I am going to ask you this now, and I do sometimes ask this at the start: how long are you thinking your submissions will be, bearing in mind, and I will repeat it again, that we are not here to determine issues of fact. I am just asking for an indication at this point.
DR MacFARLANE: Thank you, your honour. I repeat my submission that the fact this is a risk assessment is not directly relevant to the amount of time that I should have been allowed to respond. Secondly, I have said two to three hours, so I don’t feel there is any need to repeat that…
THE CHAIR: Dr MacFarlane, I am going to again interrupt you at this point to say: this is an Interim Orders Tribunal.
DR MacFARLANE: Yes.
THE CHAIR: I don’t think it is appropriate for submissions to last that length of time.
DR MacFARLANE: Thank you…
THE CHAIR: If that is your proposal, you are aware that it is now half past four, because of the fact that we haven’t started back at 25 past. We have started back at after half past. Feasibly – and you may be aware, that the tribunal will have been sitting this morning since 9:30, that there are time limits which are expected on the length of time a tribunal can sit – I am going to have to say that your submissions should be limited to 30 to 40 minutes.
DR MacFARLANE: For the record, I do not accept anything of what you have just said is relevant to the issue of how long I should be allowed, but I will attempt to start and we will see…
THE CHAIR: No, we can’t…I do have to say this: we cannot start and see. If you are saying that you are simply unable to make your submissions within a reasonable timeframe then the tribunal will have to decide whether it is appropriate to continue today.
DR MacFARLANE: With respect, Madam Chairman, I regard what you have just said as unfair and oppressive. If you are giving me 40 minutes then I would…
THE CHAIR: I am just saying roughly. I am not saying that is…
DR MacFARLANE: if you are giving me 40 minutes, then I will make use of that time, but I am not removing that two to three hours would be adequate time, and I am going to request an adjournment for another day, for that reason and another reason.
THE CHAIR: Dr MacFarlane, what I am trying to do is to be fair, very fair to you, because what I don’t want to do is for you to start your submissions and then find that for administrative reasons, we actually run out of time. I don’t want you to do that. I don’t want you to feel that you have to start making your submissions and then find that you cannot complete them, because we simply run out of time, or that we run out of time to make a decision on the day.
DR MacFARLANE: In that case, Madam Chairman…sorry, Madam Chairman, you are imposing this. I am not going to agree that I have had sufficient time to make my submission today. I have made my position clear and I suggest we don’t waste time with you trying to get me to agree that 40 minutes is adequate. I am not going to…
THE CHAIR: I am just merely trying to give you a guideline…
DR MacFARLANE: Thank you.
THE CHAIR: …to the timeframe that we are working in. So if you would wish to start with your submissions now then…
DR MacFARLANE: I am not going to agree that 40 minutes is adequate. Thank you.
THE CHAIR: Can I ask then: are you requesting an adjournment?
DR MacFARLANE: No, as I said, if you dismiss the case, then there is no…my understanding is that if you deny the application, if that is the correct language, then the GMC investigation may, or may not, continue, but they will have to decide whether to bring me back to another tribunal. In that case…
THE CHAIR: No, the procedure is that if we decide today that there is no need to impose an interim order on your registration then that will be the end of the interim order process, unless the GMC, as you say, decide to refer it back. If however we decide that an order is required, it is not possible at that point to ask for an adjournment. You can ask for an early review at that point, or there will be a review period put it, but once the decision is made at the tribunal, if the Interim Orders Tribunal determines that it is necessary to impose an interim order on your registration, then the process at that point would be that you would either need to come back for an early review, you would need to go to the court to seek to have it challenged.
DR MacFARLANE: I can either ask for an adjournment now, before I have even started my submission, or I can ask for an adjournment after, it seems to me. It seems to me at any point I can ask you whether you are minded to deny the application and, if so, I could, for example, at the end of my submission ask you that. I would have to decide whether to request an adjournment then.
THE CHAIR: Dr MacFarlane, I think you may have misunderstood the process. The process is that at the end of the submissions, the tribunal will go into private session to make its decision of whether the test is met and whether an interim order is required. At that point, if the tribunal decides that an interim order is required, it isn’t possible to ask for an adjournment at that point, because the decision will have been made.
DR MacFARLANE: No, but I have just been talking about asking you whether you are minded, which I understand is…
THE CHAIR: That would be handed out when the decision is handed out.
DR MacFARLANE: In that case, I feel I have no option but to ask for an adjournment now, saying that 40 minutes is totally inadequate, and two to three hours is required.
MR FISHER: Dr MacFarlane, clearly, you have had no legal advice on this and nobody has talked to you who is experienced within the IOT framework, but the way that the MPTS IOT tribunal days work is that there can be up to five or even six cases on a day. The time period that is allowed nominally, as a rule of thumb as to whether we can finish our work or not, is an hour for a review case and two hours for a new case. That is a moveable feast within reason, but you can see that within that timeframe that anybody taking two to three hours on any submission is clearly a significant outlier and it is not accepted by GMC or MPTS, and indeed by most people that sit on these tribunals, that anybody representing themselves, or represented by somebody, needs two to three hours to put the information before the tribunal in order for the tribunal to do its job properly and do the risk assessment for the simple reason that we are not fact-finding.
So what will happen if you were to proceed would be the Chair would identify any time when you were straying into fact-finding, as Mr Williams did with me when I asked my question, and close that down. So the ideal view that you have of your position of two to three hours is not tenable in any shape or form within interim orders. If, and when, it ends up at a full Medical Practitioners Tribunal, as it does for some doctors, the situation will change, but at this moment in time, the expectation is that you can respond to the two key areas that are being explored by the GMC and you can do that in the period that the Chair has indicated. I would urge you to do that and we can then move on and get to the stage where we can do the risk assessment, concentrating on the key points that need to be addressed.
DR MacFARLANE: Thank you, Mr Fisher, but a number of the points that have been made, the timetable of the MPTS, the delay of nearly three hours, which, of course, I am not at all responsible for, the delay to consider my request for a public hearing, which itself took half an hour, despite the fact that in my narrative statement, you arrived at the conclusion which is exactly what I suggested. So these very substantial delays are simply not my fault.
THE CHAIR: Dr MacFarlane, I am afraid I may be going to pre-empt you. It is now 20 to five. Are you asking for an adjournment, because otherwise the tribunal itself can seek an adjournment? I am looking at the time at 20 to, and as I understand it, you are saying that your submissions are likely to be significant. Am I understanding that, significant and lengthy, am I correct?
DR MacFARLANE: They are, yes, they are significant and lengthy. I don’t agree perhaps with the implication that because Mr Williams’ submissions were not particularly lengthy that my submissions should be of a similar length. I repeat what I have said about not having a written outline of the case in advance, in particular.
THE CHAIR: So can I go back to the question: were you making an application for an adjournment?
DR MacFARLANE: Yes.
THE CHAIR: On the grounds that you don’t think you are going to have time today in order to make your submissions?
DR MacFARLANE: Yes.
THE CHAIR: Mr Williams, could I ask you for your view on this – your submissions on behalf of the GMC – and then the tribunal will consider this. I have got to say it is now 20 to five.
MR WILLIAMS: It puts me in somewhat of a difficult position, because ordinarily I would like to take some instructions on it, but as soon as I take instructions, I then take up more time. So I will shoot from the hip, if I may. The difficulty is that these cases, interim orders, are listed because there is a degree of urgency to them – there is a problem that needs to be addressed, a risk, which the GMC would submit needs to be guarded against. So any adjournment from today is going to extend that period of risk. That has to be a concern.
I also raise the prospect that frankly, in my submission, the doctor hasn’t really listened to you, Madam Chair, and has spoken over you on a number of occasions. I simply say so that it is a matter of record in the transcript. You sought to assist the doctor and he is not being able to hear that assistance that is being offered to him. You know, as an experienced tribunal, that a case with this amount of information within it could be readily summed-up by a lawyer for the defence in 20 minutes. The doctor is not a lawyer, so he is expected to take longer, in fairness to him, which is why I dare say you arrived at 30 or 40 minutes. His indication that he wants to take two or three hours to make a submission is plainly excessive on any view. He has also raised the spectre, although it may not have registered fully, that he wants to make an application to call witnesses. The doctor’s approach is not addressing the principles that these hearings are conducted under. He probably would be as well to read some of the guidance that the MPTS provides. I know some of it sits on the reception desk as doctors sign in.
So my concern is if we don’t meet the need today for a hearing, what is the practical effect of that? How much delay will that then create, and in any period of delay, we, the GMC, would submit that there is an ongoing risk that is not being addressed.
These references to ‘ongoing risk’ imply ‘deficient professional performance’, which was, supposedly, not being pleaded.
THE CHAIR: Thank you.
We are going to take a short adjournment to consider this.
DR MacFARLANE: May I respond to that, briefly?
THE CHAIR: Very briefly.
DR MacFARLANE: As I stated in my narrative statement that I would be willing to voluntarily suspend my offer of seeing perspective patients, I would be willing to voluntarily extend that to the resumption of the hearing after an adjournment, and I would be willing to make that position…I have made this hearing public on…this hearing is public. I tweeted about it yesterday. I will make the position clear about my voluntary suspension of my offer to see patients and I will provide an account of that on both my websites and my Twitter profile. So there will be no question of my offering…
MR FISHER: Doctor, could I just check something with you, because this is quite a serious thing that you have just said?
DR MacFARLANE: …unlicensed practice.
MR FISHER: You asked that this be made public…
DR MacFARLANE: Yes.
MR FISHER: …and you knew that that was a decision that would be made today. Until that time, all issues around MPTS tribunals and IOTs are private, which you were told in the guidelines. Yet you have tweeted yesterday, using social media, about something which was a private issue, and the tweeting that you have done has put in the public domain something that at that time was private. Is that what you have just said?
DR MacFARLANE: No. I believe, Mr Fisher, that is incorrect, because this was listed as a public hearing on the MPTS website from Thursday morning, or Thursday afternoon. So it was, in fact, public when I tweeted.
THE CHAIR: Dr MacFarlane, I think this is an opportune moment. We are going to have to have a short adjournment while the tribunal decide whether it is actually feasible to continue today, bearing in mind the time. So if I could just ask you all to go outside. We will let you have our decision as soon as is possible. Again, if I could ask you to remove all your documents, equipment and clothing.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW AND THE TRIBUNAL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
THE CHAIR: Mr Williams, Dr MacFarlane, the tribunal has determined that even allowing for the usual length of time for submissions, there really wasn’t going to be time at quarter to five to hear this case, and get it properly concluded within what might be described as a reasonable period of time that would be expected of a day’s hearing. So the tribunal has determined to adjourn today’s hearing, and we have asked that it be relisted as soon as is possible. Obviously, that will depend on availability of the members and of GMC counsel.
That concludes today’s hearing, so thank you very much.
MR WILLIAMS: Thank you.
THE CHAIR: Thank you very much.
DR MacFARLANE: Is it possible I might ask about something? May I approach the Chair to…
THE CHAIR: No. The determination is the determination…
Further bias in not allowing a brief clarification.
DR MacFARLANE: Thank you.
THE CHAIR: …and that concludes today’s hearing, but thank you very much.
(The Determination was handed down)
- At 4.30pm Dr MacFarlane submitted that he required a significant period of time in order to make his submissions. While noting the time, he submitted that he would not be able to make the submissions more briefly.
- Mr Williams, on behalf of the GMC stated that the difficulty which arises is that Interim Order cases are listed due to the urgency of them. He submitted that if possible, the case should be heard today.
- While the Tribunal did not necessarily accept Dr MacFarlane’s estimate for the time he would need to make his submissions, it has nevertheless taken account of the lateness of the hour. Bearing this in mind it did not consider that there was sufficient time today for a proper consideration of Dr MacFarlane’s case. It has taken account of the words of HH David Pearl in the case of Emmanuel v South Gloucester Primary Care Trust  in which he stated:
“… a panel should not sit so long that proceedings cannot with certainty be classed as fair.”
- In all the circumstances, the Tribunal concluded that it does not have sufficient time today to fully consider and conclude Dr MacFarlane’s case. It has balanced the possible risk to public interest in not going ahead today against the possible disadvantage to Dr MacFarlane in proceeding in the limited time available. It determined that it is both appropriate and in the interests of justice to adjourn this case.
- The Tribunal requests that the hearing be re-listed as soon as possible to avoid any further delay.
- Notification of this decision will be served upon Dr MacFarlane in accordance with the Medical Act 1983, as amended.
Transcript of IOT Hearing 20th March 2019, with my comments in bold, plus images of 2 Tweets discussed in my submission (and part of my evidence bundle on the day).
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
Medical Practitioners Tribunal Service
Interim Orders Tribunal
On: Wednesday 20 March 2019
Held at: St James’s Buildings, 79 Oxford Street, Manchester M1 6FQ
Case of: DR NEIL DAVID MacFARLANE
Reference No: 3205688
Ms Cerys Jones (Legally Qualified Chair)
Dr Susan Ellerby
Mr David Fisher
The Doctor was present but was not represented.
Prejudicial, as outlined above.
MR JOE BOYD, Counsel, instructed by GMC Legal, appeared on behalf of the General Medical Council.
Transcript of the digital recording
Transcribed by T A Reed (Wiltshire) Ltd
THE CHAIR: Good morning. This is a resumption of the Interim Orders Tribunal for Dr MacFarlane, and today’s date is 20 March 2019. As there have been some changes, I will just run through. Dr MacFarlane is present but not represented.
Repetition of demeaning description.
The GMC is represented today by Mr Joe Boyd, instructed by GMC Legal, and accompanied by…
MS QURESHI: Sania Qureshi.
MR BOYD: Sania Qureshi, from the GMC
THE CHAIR: Thank you very much. Our Tribunal Clerk today is Ms Rebecca Wood, who is behind the computer, and our Tribunal Assistant is Ms Sana Shahzad. The tribunal members remain the same.
I am just going to say, when we finished on Monday, we had reached the point where Dr MacFarlane was going to make his submissions. This is a public hearing, and we have some members of the public at the back. I will say, as I have said on Monday, should any confidential information come up, then this hearing will have to go into private and I will have to ask you to leave at that point. Thank you.
So Dr MacFarlane, I am now going to turn to you to make your submissions. Thank you.
DR MacFARLANE: Thank you. May I clarify one point before I begin, and that concerns the document that I had sought to introduce, which I said in my view was essentially GMC legal advice. Because it developed the way it did on Monday, I can’t actually remember whether it was introduced or what the state of it was.
THE CHAIR: Do you mean the excerpt from the GMC website?
DR MacFARLANE: Yes.
THE CHAIR: Yes, that has been uploaded on to our iPads.
So maybe this is a good point for me to say again, that we have seen and read all the papers, which have been sent. We are aware of the issues and so any submissions should really take that into account.
DR MacFARLANE: Yes.
THE CHAIR: I am also going to say that we are now at ten to eleven and this hearing was due to start at 10:30. I am just going to put that on the record.
So Dr MacFarlane, are you now ready to go ahead with your submissions?
DR MacFARLANE: Very nearly. (Pause). Thank you, Madam Chair. First off, I would like to say that I don’t plan to say anything that does rely on legal immunity, but I would like to make my submission, or statement, as far as possible in my own choice of words, but I do wish to be interrupted, as necessary, for clarification, rather than correction. In terms of timing, I would be surprised if I take much over an hour, because obviously, I have had time to trim and consolidate.
I repeat what I said on Monday, which was that I was disturbed by the lack of a written outline provided by the GMC, given the four months’ investigation and two weeks’ notice of this tribunal. If that is usual practice for this tribunal then I am disturbed by that usual practice.
Starting off with the reasons for the decision to refer to this tribunal, towards the end of that, it contained half a sentence to the effect that I had made antagonistic tweets to certain psychiatrists, which implied that at the time of making those tweets, I was being deliberately antagonistic, as opposed to what I maintain, which was that I have always been reasonably critical. That was not repeated in GMC counsel’s submission on Monday, but I do ask you to note that no direct evidence of antagonism, as distinct from reasonable criticism, as I say, was provided, as far as I can recall from Monday’s proceedings.
I am going to switch to a document on my computer here (pause). So if we might go to page 68 on the GMC’s evidence bundle, halfway down, you should be able to see a tweet from myself, and what I might call the person in relation to my mistake in question. So I am going to start with that incident, or that mistake on my part, and go through that. Let me just find that for myself.
The tweet that I have drawn your attention to is not the one that was involved in my mistake on that day (pause). It should get going soon, so it is 68. So it is not that day, as the date I believe, as you should see, is sometime before that, several months (pause), and demonstrates, or shows…So there is a tweet from myself and a reply, and that is a reply to me. So I draw your attention to this to point out this person was one of a number of people that I have been in Twitter interaction with for the best part of a year. If you read my tweet there, you can see that I address the person by what is known as a “twitter handle”, saying:
“…[he] is correct though that the ‘leftist’ #MHProfs [mental health professionals that is] I criticise have an affinity with far right on this issue.”
So this is a discussion about the politics of mental health and it is a comparison with what might be called party politics or ordinary politics. This person replies and offers what I think is an interesting and quite a complex and well-expressed comparison or parallel, as he puts it. So that is to show that this kind of discussion was going on at that time, and I will say that I don’t have any particular recollection of discussions with this person between then and in early January. I haven’t had time to check, it is possible to check that on Twitter, but it is a little bit time-consuming, and I haven’t had an opportunity to do that. I don’t have any particular recollection.
Coming back to the issue of risk, I will just leave that there for a moment. I felt on Monday that it was fairly unclear in relation to my mistake what was being said about risk. Perhaps I failed to hear and make note of what the GMC counsel put forward, but was it being suggested that my mistake was so serious that my three apologies and my encouragement of a complaint, evidence of which we will come to, that that could not possibly be redressed, or was it some other statement of risk? Whatever it was, I have missed the structure of it, and I would make that as a comment on the overall submissions concerning risk.
So if we go to page 85 in the GMC’s bundle, and this is my response to the GMC about the complaint, from the second complainant (pause). If we scroll down further to the bottom of page 86, we find another tweet from the person concerned, again earlier last year. I still haven’t quite sorted out how I am going to do this. What I need to do is reduce the size of my word processing screen. That is better.
I comment about this tweet in my submission to the GMC. I comment about the issue of spontaneity, and now I point out that I have been a specialist in learning disability on the GMC Register since 2002, and so I do have particular experience in evaluating autism, its variations and its spectrum of severity. I would say that based on this person’s ability in language and theory of mind, or mentalisation, it is unlikely he has severe autism. I expressed myself with caution, because it is entirely possible that this person will learn about this hearing and possibly read the transcript. Of course, this Twitter account could be two or more different people, but having read probably 200 of its tweets, maybe more, and observed many of its – so I am speaking of the Twitter account as a thing – interactions with others, I think that is unlikely, and I think it is likely that that is, in fact, one person. Of course, the fact that I do have this special knowledge and experience could be said to make my mistake more culpable, and I acknowledge that, but I hope to at least mitigate that view.
So now if we go to page 80 in your bundle, and this is my letter complaining to the Editor of Asylum Magazine that they had kept the incident – we will get on to the mistake itself, but this is afterwards, so I am jumping about a bit. So that is my letter to the Editor of Asylum Magazine, that a junior editor and perhaps others, it might be implied, had kept the incident going and not encouraged a complaint from the person in question to me. If we go to the top of page 82, in this letter some week or ten days after my mistake, you can see that although this overall letter is a complaint about Asylum Magazine’s behaviour, you can see that I am acknowledging my mistake. Actually here, I reproduce the mistake; actually, I did mean to check this, but I am not sure it has been reproduced elsewhere in the bundle. Anyway, I submit this as evidence of openness and honesty. Looking in more detail at the mistake, it is unfortunate that this particular image of it is not dated, and that indicates that the image was made on the same day. So you have eleven hours, indicating that the image was made eleven hours after my tweet, by myself, I believe. So looking in more detail at my mistake, the essence of it is my linking to this person’s tweet from six months before. Again, it is unfortunate that you cannot see that, but I believe that…you would not normally be able to see that, for a reason I will come on to in a minute. So that was my mistake, linking to that tweet from six months before, rather than making a more subtle allusion to it, or to the previous distressing experience that he describes in that. You can see the first part of the tweet from six months previously there.
The second complainant, if you recall, was concerned about my screenshotting, or making screenshots perhaps. Screenshotting is essentially making images of someone’s tweets. I state now that what I did here was not screenshotting but making a link, and that is an important difference. The significance of making a link is that it demonstrates that you are, in effect, showing that the tweet you make reference to, it might be a tweet from the same day, it might be a tweet from seven years earlier. It is all there, available publically on Twitter. This is not one’s primary intention, but what it does show is that the tweet you make reference to is wholly in the public domain. You might have to look for it, but if you search this person’s tweets, for example, it could simply be for misdiagnosis. That would be very easy to do. You could do that in a matter of seconds, and you could do that now on a mobile phone in here, assuming that it has not been deleted.
So one of the things it shows is that the tweet one makes reference to is wholly in the public domain and has been put there by the tweeter. The second complainant may simply have been mistaken about this, but what I would say is that I don’t usually take screenshots, certainly of the tweets of non-professionals, but it is common practice among the more robust professional debaters, and typically arises when one professional has been blocked by another. The blocked professional uses a different Twitter account to take a screenshot of either a single tweet of the blocker or several, and then may tweet that screenshot, often with a critical comment, or sometimes no comment, letting the screenshotted tweet speak for itself, but sometimes with a critical comment.
Turning now to my evidence, I have organised my evidence in terms of headings, which have no meaning, apart from they are purely for my own convenience. I am not quite sure how they have been translated in…I know that you have got, I think, two large PDFs of my evidence, I believe, consolidated? Anyway, it is the one that is headed, “Apologies”. Are you able to find that? Does my evidence have an index with my headings? (Pause). I don’t think I have been emailed these consolidated PDFs that I know that you have.
THE CHAIR: On page 100, which is in Addendum 01 to 04, it seems to be your evidence is in there, and “Apologies” is item 4.
DR MacFARLANE: If you go there (pause). Are you all there?
THE CHAIR: Yes, we are all there.
DR MacFARLANE: Good. So now, there should be a page which has three apologies that I made after my mistake on the same day. The first two are partial apologies.
UNKNOWN SPEAKER: That is on page 146, I think.
THE CHAIR: Thank you.
DR MacFARLANE: Are you all there with those three apologies, on the same page – three tweets? The first two are partial apologies. At the time, I noted that this person had not blocked me, so I felt that it was in order to apologise. Obviously, it is difficult to apologise to somebody if they have blocked you, but my overall judgement was not to make complete apologies. Now, with hindsight, I still feel that was reasonable. Mental health professionals sometimes talk about setting boundaries, and although it might appear strange in the context of an apology, I think this is to some extent an example. So if one goes too far with an apology, and one exaggerates it, you can actually make the person apologised to distressed, because they start to feel under pressure to accept it. This person made clear that he wasn’t accepting it. I am not claiming that all this on my part was perfect, but to some extent, he stopped rejecting it, shall we say.
The second apology mentions Samei Huda and this is Dr Samei Huda, who we will come on to shortly.
If you scroll to the third apology, after that is the tweet, which is my encouraging a complaint to me, because I haven’t included evidence here, and I don’t think it is in the GMC bundle, but it appears that someone sent this person a direct message purporting to be from somebody connected to the GMC. In fact, this person made a screenshot of the direct message and it was not very convincing, shall we say. It looked like somebody…if somebody was…if the person sending him this direct message, which was anonymous, was intending to make a convincing imitation of somebody close to the GMC, it was not very convincing. The language was rather strained. In fact, it was clear that the person in receipt of this anonymous direct message was immediately very suspicious of it, and I believe, in a fairly short time, made the conclusion that it was somebody making trouble, essentially.
To return to the second complainant’s complaint, please return to the GMC’s evidence bundle, page 49 (pause). So what I have is an image which is very large and needs to be reduced in order to view it properly. Do you all have that? That is a tweet from the second complainant. That is dated 5 January, so two days before my mistake, and it says:
“You are making a mockery of Samei &…
THE CHAIR: Could I just ask you to refer to people by their initials rather than by their names, seeing this is in public?
DR MacFARLANE: These are professionals, so…
THE CHAIR: I think it would be better. We will see how it goes, because I feel that we are moving in…
DR MacFARLANE: I am going to talk about…I have already named Dr Samei…
THE CHAIR: Do you wish to…
DR MacFARLANE: I have already named Dr Samei Huda.
THE CHAIR: Yes, I know you have.
DR MacFARLANE: These are professionals who have been tweeting in an entirely public capacity, and what I am going to say is that my dispute…
THE CHAIR: Dr MacFarlane, do you want to make your submissions? If I think it is becoming that we are starting to disclose names and information that we shouldn’t be, we will go into private session,
The chair repeatedly interrupted me and attempted to prevent the panel and public hearing my evidence concerning wholly public Tweets by other doctors, who I had a right to name. Marked pro-GMC bias.
but for the moment could you continue with your submissions, please.
DR MacFARLANE: Yes, okay. Sorry, perhaps I missed that you had allowed the naming of these two professionals. Apologies.
With hindsight, I withdraw my apology as the transcript makes clear my previous point concerning the chair’s attempt to suppress my evidence.
What I would invite you to consider is that although on first reading this tweet seems quite angry, for me reading it two or three times, it conveys perhaps more of a sense of distress. You will note that it is not actually in direct reply to me, so my Twitter handle is the second to appear, but it is clear from the last sentence that the…I think it is substantially clear that the whole of it is directed to me. So the accusation that I am “slandering psychiatrists and spreading lies” bears some resemblance to the investigating psychiatrist’s statements that I have made antagonistic tweets about certain psychiatrists. I point out now that no direct evidence for this has been produced. Now I am repeating what I said at the beginning, so I won’t do that.
Samei and Paul from the first sentence are Dr Samei Huda and Dr Paul Morrison, and they are both prominent psychiatrists, who until recently have been mutually supportive on Twitter, I believe, for years. Dr Morrison is a senior lecturer at the Institute of Psychiatry in South London, which is interconnected with the Maudsley Hospital on the same site. Both the Institute of Psychiatry and the Maudsley are seen as the leading psychiatric institutions, research and NHS in the UK, and are known worldwide.
If we go to page 85 of the GMC bundle, so we are back again at my response to this complaint, by the second complainant. So I say:
“I have since discovered that [the second complainant] previously ‘liked’ an abusive Tweet posted by the psychiatrist Dr Paul Morrison…”
Image of the abusive Tweet, as submitted in my evidence bundle of 20th March
Actually, we have left the…the one that we were previously there, that tweet has two likes on it. So liking a tweet generally, usually but not always, indicates approval. You may wish to scroll back to confirm that, and I would point out that the second complainant, what is known as a “Twitter icon”, the little image, is there on that tweet that we have just come from.
Yes, here we are, so on page 85…no, sorry. I got confused there. What I am referring to is this tweet on page 85. Yes, you can see that. So there is with the picture of the film character, Dr Evil, that you can see there, pointing his finger, and I said in my letter to the GMC, I have since discovered that the second complainant previously liked this, what I called an abusive tweet. So this is the first of some tweets, which I believe show that in accusing me of social media wrongdoing, the GMC has markedly double standards, and has been essentially protecting senior psychiatrists, who have made a number of abusive…who have been making tweets, which let us say range from abusive, which, of course, is a fairly elastic term, to perhaps more marginal sweariness (sic), as one might say.
As far as I know, the above Tweet has not been specifically complained about. But I submit that my general point was clear: abusive Tweets by ‘establishment’ doctors are not uncommon, which implies that the GMC allows them.
Many complaints have been made about these two psychiatrists, Dr Huda and Dr Morrison, by others, and my understanding is that the GMC has batted them back to employers, but then not acted when the employers have themselves done little or nothing…
THE CHAIR: Dr MacFarlane, I just think I have to sort of reign you in a little bit, because you are starting to talk about things which are not directly relevant to the allegations which are against you.
I submit that the chair here was responding, prejudicially, on behalf of the GMC. The GMC’s inconsistent application of guidance concerning professional standards, my transgressing of which it was claiming to be so great as to be an immediate ‘risk’, was indeed ‘directly relevant’.
Those two other professionals are not here today.
A clear breach of HRA Article 6, to claim [that] evidence concerning the behaviour of others can only be put forward, in one’s own defence, when those others are present at a hearing.
It is not their tweets which are actually in issue. What I would just ask is if you could target your submissions to the allegations which have been raised.
DR MacFARLANE: I repeat what I said at the beginning, Madam Chairman. I wish to present my case in my own way, and I do not wish to be interrupted in that way, and I cite Article 10 of the Human Rights Act 1998…
THE CHAIR: Dr MacFarlane, I am quite well aware of the Human Rights Act. I don’t think anyone is going to think you are not getting a fair hearing. You are being invited in session to put in all the submissions you want to do. What I am asking you is that your submissions are targeted to the allegations which have been raised against you. I am giving you quite a lot of leeway here, because you are unrepresented, and obviously it is for you to decide what you want us to hear, but obviously the tribunal can’t take into account…it is your allegations that the tribunal are concerned with today, the allegations which are raised about you. It is not the allegations or any information that has been raised about anybody else. So could I just ask you when you are making your submissions going forward, and if I could ask you to continue with your submissions, if you could just bear that in mind when you are targeting what you want to say to us. Thank you.
DR MacFARLANE: No, Madam Chairman.
THE CHAIR: Could you continue, please.
DR MacFARLANE: No, Madam Chairman. I will not bear that in mind. I again cite my right to make my defence in my own way, and I ask you to consider my defence properly.
THE CHAIR: Your defence will be considered properly. Everything that you have said and that has been provided to the tribunal will be taken into account in our decision-making. What I am asking you is if you would target your submissions to the allegations which have been raised. Can I ask you now to continue, please?
DR MacFARLANE: May I say that if it is your opinion that I am not targeting the allegations properly, then I ask you to make that clear in the final judgement.
THE CHAIR: Dr MacFarlane, what I am trying to say to you is I don’t think that it is relevant to today’s hearing for you to discuss the way that you feel
Prejudicial use of ‘how you feel’, as in the hearing of 18th March.
that other people may have been treated. What I am interested in, and what the tribunal is interested in, is the information or evidence that relates to the allegations which have been raised against you. I have said what I want to say. Could I ask you now to continue with your submissions? Thank you.
DR MacFARLANE: I will continue with my submissions, Madam Chairman, and I request no more interruptions of that kind.
THE CHAIR: Dr MacFarlane, nobody wishes to prevent you from making your submissions. Of course, you are fully entitled to do so. On the other hand, as the Chair of this tribunal, I am entitled to ensure that the proceedings are run properly. So what I would ask is that you now continue to make your submissions and the tribunal will take them into account in full when we make our decision. So could I now ask you to continue, please? Thank you.
DR MacFARLANE: Thank you, Madam Chairman. I dispute what you have just said about your entitlement.
By which, of course, I meant the chair’s entitlement to rule out my submission concerning the GMC’s double standards.
So, many complaints have been made about these two psychiatrists by others. Yes, I have already said that.
Now what I have just said about these many complaints is, of course, hearsay, but I believe it is on good authority. Young Kinderman in this tweet is Peter Kinderman, a prominent clinical…In fact, all this is, I believe, directly relevant to the allegations, because it is relevant to the understanding of what the second complainant has submitted to the GMC, although I would again draw the tribunal’s attention to the fact that those submissions by the second complainant, I have not had the opportunity to question them, because of the denial of the request that the MCE appear to be questioned on all this evidence.
So in this tweet, Dr Morrison claims that a complaint Mr Kinderman had made in February 2018 about him relating to Dr Morrison’s alleged bullying, harassment and misogyny, again on Twitter, had not been upheld. Dr Morrison, as you can perhaps see from his Twitter icon, adopts the persona of “Rumpole”. I suggest this tweet with the image below and the caption, “I’ve got a bag of SHH! with your name on it” is unpleasant and threatening to Mr Kinderman. If you look at the two icons below, I state that the second complainant is on the right, and I have checked this myself. You will note from the date that this is ten days before the incident I started with, my mistake, which was on 7 January.
The second complainant had cause to be upset by my behaviour in relation to Dr Morrison, because in September 2018, I attempted to reenergise Dr Kinderman’s February 2018 complaint by complaining myself to the Maudsley Hospital that the outcome of this bullying, harassment and misogyny tweet claim had not been made public by them. These seemed serious matters, and I had a personal interest, as I used to live close to the hospital. My reenergising was ineffective for several months, but led to information emerging recently, and last week, I made a complaint to the GMC – last week, I mean that literally – that Dr Morrison was very likely to have been dishonest in his statement about the bullying and misogyny complaint. I published my complaint of last week on my website. Yesterday, I had an indication from the person who interacts with me at the GMC that this complaint might be expedited. Looking again at the likes below the tweet, you will see an icon on the left, and that is the icon of Dr Samei Huda. Dr Huda is an NHS Consultant Psychiatrist in Thameside, East of Manchester. In the latter part of last year, I had an amicable Twitter relationship with Dr Huda, but we fell out in early December, because he refused to discuss my concerns about psychiatry’s relationship with the pharmaceutical industry, or pharma. He blocked me, and then in early January, just a couple of days before my mistake that I started with, I criticised Dr Huda as someone who closed down debate, and pointed out that in the past, he had criticised others for doing the same thing.
So at the time of my mistake, I had very recently caused distress to the second complainant about Dr Huda with my blog piece, criticising him. There was the background in early January of my attempting to reenergise the complaint about Dr Morrison four months earlier.
Before moving on to the legal issue about licensing, so I think I am doing quite well for time, just to finish with some very brief evidence on this double-standard, which results in senior psychiatrists getting away with what I would consider abusive behaviour. So now, if you can find my submission entitled, “Conspiracy”, which are only two sheets of A4. I would be grateful if you could indicate when you have that, and I will just find it in mine.
MR FISHER: Could you give us a clue as to what is on the top of the first sheet of the two-page of A4 that you referred to when you find them please.
MR BOYD: It could be 158.
DR MacFARLANE: It is a tweet from Louis Appleby…
MR BOYD: Yes, I think it is 158.
DR MacFARLANE: (Pause). Do you all have that? The tweet from Louis Appleby?
Added for 11th September:
THE CHAIR: Yes.
DR MacFARLANE: So this is to me, as you can clearly see, eleven months ago. Dr Appleby is the government’s lead on suicide prevention. He is a very senior psychiatrist. He is not currently an officer of the Royal College of Psychiatrists, but he is a government lead and he is also a professor in Manchester. You can see in the last sentence that he clearly accuses me of being a conspiracy theorist, “I’d stick to conspiracy theories”, is what he writes and publishes publically. This term can quite happily be banded about by non-professionals without serious harm, but I submit that psychiatrists, especially senior psychiatrists, have power and authority in society widely in relation to diagnosis and what might lie behind it, such as compulsory admission and treatment, for example, which many people can, and do, see and view as powerful and threatening. Conspiracy theorist is a quasi diagnosis which from a psychiatrist carries the implication of fantasist, or psychotic, or perhaps personality disorder. I believe it should not be used as a smear in this way. You can see that one Twitter user has liked this smear, and that is Dr Wendy Burn. So I have expanded her Twitter icon below, if you scroll down below, and this is all still public. We could find this tweet in seconds. You can see my reply there, so that is an immediate reply to him, “What conspiracy theories?” I had made a complaint on the issue of pharmaceutical industry conflict of interest, that was a major issue in it, to the Royal College of Psychiatrists. It is fairly clear that he was aware of it. I have been writing about it on my website.
If we scroll down to the next page, three more tweets from Dr Appleby can be seen. So you see the one to me. So I have searched his tweets for “conspiracy”, and you can see that the one to…
THE CHAIR: Dr MacFarlane, I am sorry. I know that you going to think that I should not interrupt you…
DR MacFARLANE: I have nearly finished…
THE CHAIR: I am sorry, but I do have to say this: it is not this individual who is the subject of the allegations or the purpose of this hearing today. Could I just ask you, again, to target your submissions to the allegations which have been raised against you, and really the information about other doctors, or other individuals, is actually not relevant to the allegations against you. So if I can just draw your attention to that again, which I have already done, and then ask you to continue with your submissions, taking that into account. Thank you.
DR MacFARLANE: Madam Chairman, I was going to say later that this case might go to the High Court. So I say now that if it does, the High Court might be very interested in how you keep interrupting me in the way that I have stated several times that I do not wish to be interrupted.
THE CHAIR: Dr MacFarlane, at the end of the day, there is a process to be followed. I am drawing to your attention that the information which you have put before the tribunal today should be germane to the allegations which are being raised against you. I just want to draw that to your attention and ask you to target your submissions to those allegations which have been specifically raised about you, rather than your view as to how other people may, or may not, have been treated. So if I could now ask you to continue with your submissions. Thank you.
DR MacFARLANE: Madam Chairman, I have nearly finished this point. I repeat, I cite again Article 10 of the Human Rights Act.
Although Dr Appleby’s three other tweets appear to be light-hearted references to conspiracy theory, you can see that they actually function as a warning. Their meaning is, “If you carry on with this point you are making to me, then you are a conspiracy theorist”. So, in fact, they function as a threat.
My submissions about registered-but-non-prescribing practice follow
So now on to the legal issues to do with licensing. If we can turn to sections 47 and 48 of the Medical Act 1983, that is pages 94 and 95 of the Medical Act. It will take me a little while.
THE CHAIR: We have the Medical Act in front of us.
DR MacFARLANE: Okay, thanks. This is to address what the Medical Act actually says about licensing. Nearly there. So this whole section of the Medical Act concerns…it is actually headed, “Privileges of Registered Practitioners”.
MR FISHER: Which specific paragraph are we on?
DR MacFARLANE: Sorry, the top of page 94, there is a subheading. It is called “Part VI” of the Act and that is in blue on my copy. It says, “Privileges of Registered Practitioners”. I see, you have paper copies. I have the PDF, which is linked to from the MPTS website.
THE CHAIR: Did you want to tell us what sections of the Act that you are looking at?
DR MacFARLANE: I am really drawing attention to the fact that Part VI of the Act in my copy is headed, “Privileges of Registered Practitioners”, and then if we go down to 47, it talks about, “fully registered practitioners who hold licences to practise”. So these are two different things.
In other words, one can be registered, and practice medicine, and either licensed or not.
THE CHAIR: If you want to look at the hard copy, it is on page 81.
MR FISHER: Thank you.
THE CHAIR: Thank you.
“(1) …only a person who is fully registered and who holds a licence to practise may hold an appointment as physician, surgeon or other medical officer —
(a) in the naval, military or air service,
(b) in any hospital or other place…hospital…
(c) …prison, or
(d) …public establishment, body or institution, or to any friendly or other society for providing mutual relief…”
The next section is to do with, as I understand it, foreign universities, and then the next bit talks about suspension events. So really, that is a very brief section, which has the reasons for referral to the tribunal showed, which I submitted in my evidence, that quoted me on at least two occasions, where I was quoting the Medical Act and some of the GMC guidance.
If we go to 48, this is the part which states that, “A certificate required by any enactment”, so any certificate to do with law essentially is my reading of it, that requires a licence to practise too.
THE CHAIR: Dr MacFarlane, can I just check, this is off the GMC website. It is not actually the Act itself, because we are looking at the Act. What I am saying is you have got an extract off the GMC website, but that is not what we have got in front of us at the moment.
DR MacFARLANE: What the MPTS website says…I appreciate that the MPTS website is part of the larger GMC website, but my version here is from the MPTS website.
THE CHAIR: No, I just want to ensure we have all got the same documents, that we are all looking at the same pages.
DR MacFARLANE: I hope we have, but as I say, I got this from the MPTS website, and this is the MPTS, so…
THE CHAIR: Thank you.
DR MacFARLANE: So this is to do with the other requirement for licensing. If I go back to my…so this makes clear that my submissions to the GMC, as excerpted by the MCE, were correct. The tribunal will have noted, or should have noted, that the GMC counsel on Monday made no attempt to contradict or undermine my previous submissions to the GMC on that, and simply kept repeating that I was unlicensed, as though that might magic away the problem the GMC has, which is that there is no requirement for my non-NHS practice to be licensed. The only other significant piece of law, which is relevant to me, is the Medicines Act 1968, which requires prescribers of prescription-only medication to be licensed.
If we turn to section 29A of the Medical Act, so in my version, in the MPTS PDF, it is page 32 (pause).
THE CHAIR: Yes, we have that in front of us.
DR MacFARLANE: Yes, that is taking me longer. With these large PDFs, the page-up function on my computer is very slow, so I have to use the mouse. So this section is headed in my version in blue, “Licence to Practise and Revalidation”, and then there is a subheading underneath in italics, “Duty of General Council to make regulations”. Then we have section 29A, “Regulations as to licence to practise and revalidation”. Essentially, this section concerns the GMC’s, as I read it, duty and power to make regulations in regard to licensing. This page, and I believe the rest of the Act, makes clear that the GMC cannot make regulations about registered but unlicensed practice. For the sake of completeness and also brevity, I will not go to the section in the Act dealing with indemnity and insurance, but if the tribunal cares to do so in its deliberations, it will find that the requirement for either indemnity, or insurance, or both, clearly applies only to licensed practice and by very clearly implication does not apply to registered but licensed practice.
Coming to the issue of the grey area, which was the MCE, I recall he actually put it in quotation marks. He implied that he was quoting, or perhaps paraphrasing, one of the GMC’s lawyers, saying that the issue of registered but unlicensed practice is a grey area. I submit that in the GMC staff’s communications to me and I think sometimes in its guidance, the GMC sometimes appears to imply that because this law is a grey area and there are risks, of course there are all kinds of risks, concerned with medical practitioners, then the law should be interpreted to minimise the risk and require people who wish to be unlicensed but registered practitioners, and the safe thing to do is to require people such as myself to be licensed. Even if there was a grey area, I submit that would be incorrect. In interpreting statute law, there must be a primary regard for the law as an expression of the will of Parliament, and there are significant ambiguities or unintended consequences, I submit, of the 1983 Act concerning licensing. It is well known that Margaret Thatcher’s Conservative government of 1983 had a deep suspicion of professional monopolies, and in restricting licensing to the activities specified in sections 47 and 48 of the 1983 Act, Parliament clearly intended to provide a degree of freedom to independent and perhaps especially non-NHS medical practitioners.
I submit there is no grey area. Medical practice is not defined in the 1983 Act, but registered but unlicensed practice must simply be whatever such a medical practitioner does in relation to health and medicine outside of sections 47 and 48. I submit this reasonably includes clinical work, as well as commenting in public, commenting and engaging in various forms of discourse in public on health matters, such as tweeting, blogging, health journalism and other activities, such as medical management. So the GMC has a duty to monitor all medical practice, not just licensed practice. The GMC does not dispute I submitted myself for monitoring in October.
Just very briefly on the issue of indemnity and insurance, the guidance the GMC provides in Good medical practice on indemnity is incorrect, and I asked the GMC to correct that, and to correct the many other incorrect, unclear and misleading statements it makes about licensing. As I previously mentioned, there is a possibility I might appeal an adverse decision of this tribunal to the High Court, and I believe the GMC’s history of ignoring that court is a good starting point for thinking about possible costs I might be awarded, if I have a good case. So the clock starts ticking now for the GMC on this matter of guidance concerning licensing, which is also directly relevant to the issue of its respect for the law, the courts and Parliament.
Regarding what I might say about this panel in the High Court, the MPTS is supposed to have separated from the GMC, and is supposed to adequately scrutinise the GMC and its submissions. I may draw the High Court’s attention to the interruptions of my submissions on Monday and today, the frequency with which usual practice was cited, and perhaps other things the panel members have said in response to my submissions. I might also add that the panel did not make any comment, as I recall, on the highly selective way in which GMC counsel quoted, and alluded, to the Medical Act.
This is just over an hour, I think. So to summarise my response to the GMC’s application, 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. I had planned to only cite Article 10 of the Human Rights Act at this point, but it seems unfortunate to have to cite it 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. 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 suggest we do not go to that, unless the panel wishes to. 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, who I have already mentioned, did not provide any significant response and smeared me – you can check this underneath because I put it in bold – as a person who makes pronouncements.
I now state that in the weeks before this tribunal, I requested a 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.
The other issue on which I have criticised senior psychiatrists is the failure in my view to adequately seek funding for mental health and learning disability patients, including those with autism, ADHD and related conditions.
So finally – this is very nearly the end – coming back to the issue of risk. I hope I have shown that the GMC’s submission on risk is vague and poorly evidenced. The GMC has a duty to assess and monitor the nature and risk of all practice, licensed or not, and in my case it should have done so as soon as I communicated with it, five months ago. When the investigation started, my reading of the rules which provide a framework for the GMC’s actions is that the GMC had the option of interviewing me in any way it chose, including in what is called “the Committee”. It did not do so. I ask the panel to dismiss the application.
That is it. Thank you.
THE CHAIR: Thank you, Dr MacFarlane. I am just going to check with my colleagues if there are any questions for you. No, Dr MacFarlane, there are no questions from the tribunal.
So this is the point at which the tribunal will go into private session to make its decision.
This is a new case, so I am going to put on record my advice to the tribunal, which is that the tribunal needs to consider whether in all the circumstances of this case, the test, as set out in section 41A of the Medical Act 1983 as amended has been met. In brief, this means that it needs to consider whether there may be impairment of the doctor’s fitness to practise that poses a real risk to the public, or is otherwise in the public interest, or the doctor’s own interests, so that an order is required. If it does decide, in making that decision it will be bear in mind the seriousness of the allegations, the likelihood of repetition, whether public confidence in the profession is likely to be damaged if no action was taken, and whether there is a risk to patients, or the public, or the public interest.
If it decides that an order is required, it will then go on to consider what order might be appropriate, bearing in mind that any order it makes should be no more restrictive or onerous than is required to address any risks that have been identified.
I refer the tribunal to the guidance in the Imposing interim orders guidance in making that decision.
That is my advice, so we will now go into private session. Thank you.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW AND THE TRIBUNAL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
THE CHAIR: Good afternoon. The tribunal has determined to impose an interim order of suspension on your registration for a period of twelve months, Dr MacFarlane. A copy of the determination is now being handed out. That now concludes your case for this afternoon. I would like to thank you for taking the time to attend and making your submissions. Thank you very much.
(The Determination was handed down)
DETERMINATION [See also my comments on it that I published in March, shortly after]
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.
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.
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.
The panel appears to acknowledge that GMC counsel opposed the hearing being public
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 panel quotes the key passage, but fails to admit that it erred in requiring me to give a reason for a public hearing. Pro-GMC bias.
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 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.
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.”
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.
The panel itself here clearly stated that ‘the nature of the case’ was, in part, ‘deficient professional performance’, but failed to consider my submission (six pages previous, in this document) that the GMC had not interviewed me.
Throughout its written decision, the panel simply summarized (with substantial cutting-and-pasting) the raw allegations as put forward by the GMC, without making any adverse comment about its failure to provide a skeleton argument and plead a case on risk, including some notion of a risk threshold.
The panel made no attempt to properly consider my submissions on 1. The reasonableness of my behavior on social media, and the relevance of HRA 1998 Article 10 2. The GMC’s ‘double standards’ 3. The legal position on registered-but-non-prescribing practice.
The March panel’s failures in these respects demonstrate profound pro-GMC bias.
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.
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’. 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’. 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. 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.
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 license. 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.
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.
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 license to practise 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.
Establishment medicine is already substantially ‘in disrepute’ all over the world, particularly the developed world, because of its subservient relationship with drug and device companies. Hence the failure to eradicate measles. Closing down the free speech of doctors who criticize that relationship is not the answer.
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.
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.
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 licensed but is alleged to be carrying out activities for which a license is required. It notes that Dr MacFarlane maintains that he does not require a license 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,
It is well-known that ‘medical practice’ is not defined in the Medical Act 1983. I submit that the suspension made little or no difference to my ‘practising medicine’ as I was before, because I consider that engaging in health campaigning and medical politics is ‘practising medicine’. As I had not seen any patients in formal consultation for nearly five years, and have not since March 2019, it may or my not be true that suspension has limited my actions in that respect.
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.
My understanding is that the GMC has dragged out ‘investigations’, often with bogus new ‘allegations’, for as long as 2-3 years, in attempts to discredit and silence some doctors.
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.
IMMDS panel member and ‘communications lead’ Simon Whale has done a good job so far. But what is that job?
See my 14th August piece on the ‘pro-industry, anti-patient’ bias of the ‘lead researcher’ for the IMMDS Review, and my follow-up questions to Julia Cumberlege’s initial evasive response. The initial piece has now been updated with the finding that the ‘lead researcher’ was being paid, undeclared, by two of the directly implicated PLCs, plus other pharmaceutical companies.
The ‘Panel’ have now, well over a year after the Review started, responded further by publishing a ‘register of interests’. It has already been shown to be seriously incomplete in Sonia Macleod’s case. This piece looks at ‘communications lead’ Simon Whale.
What is Whale’s role on the IMMDS Review? Is it to engage with the patient groups? To ‘communicate’ the Review’s findings and recommendations to ministers?
I suggest his main job has been to ensure that the media, and the wider public, follow the Review as little as possible. Most of the medical establishment, Pharma, and the device manufacturers, are united in wanting to see minimal pressure for a full Public Inquiry into past and present drug and device safety failures, which Sir Norman Lamb MP has implied is necessary (20-23 minutes).
Simon Whale has done this job very well. For a start, his corporate biography does not mention his government-funded employment on the Review. His PR and lobbying company, Luther Pendragon (LP), has never published a piece about mesh, valproate, Primodos, or the Review, on its website. Neither has LP ever Tweeted about them, even though it does Tweet about other clients:
After eighteen months, the Review still only has 350 Twitter followers, and views of the oral evidence have been similarly low. My first piece on the IMMDS Review criticised how it had not been publicised to doctors, and it is likely that Whale can be credited for this ‘non-communication’.
In the UK media, the health journalist who probably matters most is Hugh Pym, the BBC’s health editor. Pym has never Tweeted the Review by name; he has only Tweeted ‘valproate’ once (in April 2018) since the Review started, and ‘mesh’ and ‘Primodos’ not at all.
Pym has known Luther Pendragon since at least 2013. The PR and lobbying company appears to have ‘sponsored’ the Christmas carol service at St Bride’s (the ‘Journalists’ Church’) in Fleet Street for some years:
In March 2017, Pym ‘gave his thoughts’ and ‘shared his opinion’ at a ‘LutherNetwork’ breakfast meeting with ‘regulators, professional bodies, insurers, charities and medical services providers’. (I will ask LP, and Pym, for details, including whether he received a fee).
The account of the breakfast on the LP website states that ‘The coverage of mental health was noted as a particular example of a major shift in the way certain health topics are covered in the media’. I wonder what this means.
Simon Whale, managing director of Luther Pendragon on the left, with Hugh Pym below the LP logo.
I will also ask Pym to comment on Whale’s being a ‘panel member’ for the IMMDS Review while LP still has at least two pharmaceutical industry clients which have not been declared to patients: LGC Group Limited, and the Wellcome Trust. Wellcome has a partnership with Sanofi, which gave evidence to the review about valproate.
In her evidence to the review, Jo Cozens of OACS Charity talked about (17 minutes) the ‘lost children of valproate‘: those with fetal valproate syndrome, or their parents, who remain unaware of it and its cause. Publicising the Review more widely would have contributed to greater identification, but Sanofi is under pressure from some of the patient groups to provide financial compensation, and it is a legal fact that the primary duty of such companies is to their shareholders.
(10th September: correction of ‘Primidos’ to ‘Primodos’, and one sentence rewritten as a consequence).
(17th September: more of Simon Whale’s undeclared COIs)