Home > The Health and Care Professions Council’s social media guidance and the rights to freedom of expression and respect for private life

The Facts

A paramedic (X) was given a suspended prison sentence of 18 months for possessing large numbers of images of child abuse and extreme pornographic images. The case was publicly reported and included X’s name, age, profession and details of their offending. Another paramedic (Y), who had worked on a double-crewed ambulance with X for a number of years, shared a link to the press article about X’s offending on a personal Facebook page and expressed horror over what X had done, and shock that X had only received a suspended sentence. X complained to the HCPC about Y’s post on the basis that it had caused him distress. The initial investigation into the complaint concluded that Y’s actions may have constituted misconduct and by virtue of that misconduct, Y’s fitness to practise may have been impaired. The case was then referred by the committee for a full hearing.

The Social Media Guidance

Article 21(1) of the Health Professions Order 2001 (“the Order”) requires the HCPC to establish standards of conduct, performance and ethics expected of registrants and arrangements to protect the public from those whose fitness to practise is impaired. Article 21(2) provides that the HCPC may issue guidance in respect of those standards.

Standard 2 of the HCPC’s Standards of Conduct, Performance and Ethics (“the Standards”) issued under Article 21(1) of the Order is titled “Communicate appropriately and effectively” and is split into 7 sub-paragraphs. The last of those sub-paragraphs relates to social media and provides that registrants “must use all forms of communication appropriately and responsibly, including social media and networking websites”. Significantly, while all the other sub-paragraphs concern the standards that the HCPC sets for those it regulates during their professional work, the sub-paragraph relating to social media is concerned with standards that the HCPC sets for conduct by individuals away from work in the sphere of their private life.

The HCPC’s “Communication and Using Social Media” (“the Guidance”) issued under Article 21(2) of the Order states that registrants should not “post inappropriate or offensive material”, should use their “professional judgement about whether something you share falls below the professional standards expected of you”, should “apply the same standards as you would when communicating in other ways when using social media”, and should “be polite and respectful, and avoid using language that others might reasonably consider to be inappropriate or offensive”.

The HCPC Investigating Committee applied these Standards and Guidance in concluding that Y’s postings on Facebook constituted a potential case of misconduct and may have impaired her fitness to practise.

Article 8 and Article 10

The HCPC is a public authority for the purposes of the Human Rights Act 1998; accordingly, it is unlawful for the HCPC to act in a way which is incompatible with a Convention right, such as Article 8 respect for private life and Article 10 freedom of expression.

With regards to Article 8, the HCPC is, in principle, entitled to consider disciplining registrants arising out of matters of conduct in their private life provided either: (a) the alleged conduct realistically touches on a person’s practise of their profession or (b) the alleged conduct affects the standing of the profession (as per the Divisional Court in Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin) at [54]). However, any attempt to discipline a registrant for conduct in a person’s private life with which falls outside (a) or (b) above may amount to an unjustified interference in the person’s Article 8 rights.

With regards to Article 10, the Guide to Article 10 published by the Council of Europe explains that the right to say things that others might be offended, shocked or disturbed by, or which others might consider impolite, is part of free speech rights that are protected under Article 10. Further, interference with Article 10 is only lawful if the conditions in Article 10.2 are satisfied, namely, the interference is prescribed by law, in pursuit of a legitimate aim and necessary in a democratic society.  Hence, it is a breach of a person’s Article 10 rights for a professional regulator to say that no professional can say anything which another person finds offensive.

When the HCPC was challenged about both this individual case and the Guidance that the committee applied, the HCPC agreed to quash the decision and end the disciplinary proceedings against the paramedic.  The HCPC also agreed to commence a formal review of the Guidance.

Commentary 

The problem this case raised was the blanket way in which the HCPC Guidance sought to impose restrictions on the ability of registrants to express their views on social media within their private lives.  The HCPC’s areas of legitimate interference with conduct in a professional’s private life are far less extensive than in a professional work context. The Guidance sought to impose obligations on registrants to be “polite” at all times and not to post material that anyone else might find offensive, regardless as to whether anyone else was justified in taking offence or not.

The legal problem with such Guidance is that postings on social media outside a work context attract the protections of Article 8 and Article 10 ECHR.  A person’s rights under Article 10 specifically include the right to express opinions that offend, shock or disturb others.

The warning to the HCPC and similar regulatory bodies is that social media guidance may be unlawful if the guidance fails to identify and impose limits on the areas where the regulator can legitimately intrude into the expression of opinions or facts.

We would suggest, in particular:

  1. There is a huge difference between regulated professionals expressing views or making statements as part of their professional work, whether to colleagues or to service users, and a person making a comment on a personal Facebook page outside of a work context; and
  2. Regulators’ guidance must be cautious about seeking to regulate the conduct of individuals’ private lives or to restrain the exercise of every part of their free speech. Doctors, lawyers and other regulated professionals are entitled to hold and express minority views with which others disagree and even find offensive.  Whilst there are clear limits set by the law (racially offensive material, overt sexism or prejudice against those with protected characteristics under the Equality Act 2010), it will rarely be appropriate to interfere with a professional’s right to express a minority political, religious or scientific view.

In summary, we would suggest that guidance must recognise that the professional body usually has no legitimate role in policing the social media postings of individuals unless it can be shown that either (a) the alleged conduct realistically touches on a person’s practise of their profession or (b) the alleged conduct seriously affects the standing of the wider profession by bringing the profession into disrepute.

Georgina Fenton is a barrister at Landmark Chambers.

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