Yet more regulatory overreach
The Health and Care Professions Tribunal Service have struck off biomedical scientist Malcolm Needs. I think their decision is unlawful.
On 13th October 2022 Biomedical Scientist Malcolm Needs was struck off following a hearing initiated by his regulator, the Health and Care Professions Council. The charge was that between 26 February 2021 and 12 October 2021, he engaged in inappropriate and/or unprofessional conduct via social media via his posting on Twitter. This was deemed to be misconduct and his fitness to practice thus impaired.
The Tweets
a. On 26 February 2021 you tweeted “Sorry, but it is STILL wrong. They are not pregnant persons (obvious to anyone who could pass the 11 plus), but, unless they already have at least one child, they are not pregnant mothers. They are, quite simply, pregnant women.” NOT FOUND ‘ill advised’ but not unprofessional or inappropriate
b. On 26 February 2021 you tweeted “Is there ANYTHING that is not racist?”. FOUND being designed to inflame a controversial and heated situation.
c. On 08 March 2021 you tweeted a response, “On International Men’s Day, will you be thanking your other 35% of members (assuming, of course, that there even is an International Men’s Day)?” - NOT FOUND statement of fact, not unprofessional
d. On 09 March 2021 you tweet along side a picture of your former colleagues, “There have been an awful lot of ignorant people on here saying that I hate women in work and especially if they are a POC. This was the staffing in my own laboratory just before I retired. The three “non-POC” women are a Portuguese woman and two Australian women. Strange that.” FOUND inappropriate and unprofessional, sarcastic to colleagues
e. On 09 March 2021 you tweeted, ““Get out of Black folk’s business? If that isn’t blatantly racist, I don’t know what is. It is “folk’s business”, not “Black folk’s business””. FOUND dismissive and offensive towards black people
f. On 09 March 2021 you retweet, “Multiculturalism destroys culture”. FOUND inflammatory, divisive and prejudiced and inciting racial hatred
g. On 09 March 2021 – “What do they need to learn then DIANE HALF WIT WHITE RACE HATER? Who are you to tell them how it should be… another eg of how BLM is tying to rule this country. Just shut up you racist.” FOUND seriously offensive
h. On 11 March 2021 you retweeted a post, “What are we all today, racists or rapists? I can’t keep up”. FOUND seriously offensive
i. On 15 March 2021 you retweeted , “All the bra burners should be marching about this surely?” FOUND unprofessional and inappropriate, being deliberately designed to cause division and prejudice.
j. On 09 May 2021 you retweeted, “Can’t get any worse can it?” along with an image which would cause offense. FOUND unprofessional and inappropriate, being deliberately designed to cause division and prejudice.
k. On 10 May 2021 you retweeted, ““Cultural enrichment” This is Noaun Asefa. He lives in the UK on benefits. Last night he was caught by a paedophile hunting team for sexually grooming a 13 year old child and attempting to get her to travel to him. Well done to STOP UK. Link to video:”” FOUND unprofessional and inappropriate, being deliberately designed to cause division and prejudice and inciting racial prejudice
l. On 12 September 2021 you retweeted, “Man beats woman and we’re supposed to be celebrating this?! Really.” FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics.
m. On 13 September 2021 you tweeted, “And make them pay, like they paid the people smugglers to come over in the first place, and give our own taxpayers a rest”, along with an image stating, “Putting illegal immigrants up in 5* hotels has saved the hotel industry. So let’s save the airline industry by flying the f___ers back home!!”. FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics
n. On 14 September 2021 you tweeted, “It would appear that Black Lives Matter, but not those of other ethnicities. ANOTHER knife crime Cressida Dick and Sadiq Khan. What is your “score” for this year?” FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics
o. On 17 September 2021 you tweeted, “Black Lives Matter Then” along with a post by another user regarding an incident of theft. FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics and inciting racial prejudice
p. On 18 September 2021 you tweeted, “Gang members jailed for a “brutal” street stabbing murder of NHS worker… Yet another case of Black Lives Mattering”. FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics and inciting racial prejudice
q. On 19 September 21 you retweeted, “Nana Akua: I’m going to say something that may be controversial to some…only biological women have a cervix. Shock horror!”FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics
r. On 26 September 2021 you retweeted, “Only women have a cervix. There, I said it, it’s not difficult. Women also have a right to women-only spaces. Speaking up in defence of women’s rights doesn’t mean we can’t respect how others wish to live their lives.”FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics and inflaming gender discrimination
s. On 26 September 2021 you retweeted, “I Swear my head will explode if another person classes me as a “cis woman”. I am NOT a cis woman but I AM a woman. I have a cervix which no man can claim to have and biologically that will never change. I am not just tired of this insanity but I’m fed up of being labelled.” FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics and inflamming gender discrimination.
t. On 12 October 2021 you retweeted, “I see that Black History month is being promoted everywhere. No doubt this is celebrating their history. Fine. But why are they allowed to demean and & insult non-black history? Pandering & virtue signalling”. FOUND unprofessional and inappropriate. The Panel considered that these tweets demonstrated sarcasm, hostility and an offensive and derogatory attitude towards several groups with protected characteristics
The hearing proceeded without the registrant , who had emailed to say he was retired and wanted nothing to do with the ‘Kangaroo Court’. He was last employed by the NHS in October 2016. The complaint was made on 18th March 2021 by a scientist at the London School of Hygiene and Tropical Medicine who considered his twitter feed “a deeply unpleasant tirade of racist, misogynistic, trans-phobic and nationalistic tweets”.
The guidance for Registrants offered by the HCPC sets out some “top tips” for using social media in a way which meets the HCPC standards of Ethics and Conduct:
Think before you post;
Think about who can see what you share;
Maintain appropriate professional boundaries;
Do not post information which could identify a service user unless you have their permission;
Do not post inappropriate or offensive material;
The Panel asserted that they were aware of the Registrant’s rights to Freedom of Speech ‘which should be accorded the utmost respect’. They were referred to the case of Jon Holbrook and reminded themselves that the right to political speech is not entirely unfettered, and would lose protection if it involved
gratuitous personal abuse
derogatory racist or sexist language
or was grossly offensive and disparaging.
As the the Panel was not satisfied that the Registrant had any appreciation as to the hurt and damage his tweets may have caused and members of the public would be ‘rightly concerned’ by his conduct, his fitness to practise was impaired in both the personal and public component of impairment. He was struck off.
Why do I think this decision is unlawful?
Because it is irrational and disproportionate. It cites Holbrook but does not correctly apply it. Only one person complained. It is concluded that some of the tweets ‘incite racial hatred’ without any proper consideration or justification for why this is found.
As the Tribunal said in Holbrook
“However, given the importance ascribed to freedom of expression… It follows that, for the expression of a political believed to be such that it diminishes the trust of the public in the particular barrister or in the profession as a whole it will require something more than the mere causing of offence. At the very least, the relevant speech would have to be seriously offensive or seriously discreditable… Even in such cases there would have to be a close consideration of the facts to establish that the speech had gone beyond the wide latitude allowed for the expression of the political opinion”.
Some of the tweets clearly fall into the category of ‘ill-advised’ - such as g), m), n) o) and p) - and I can accept that some people would find them offensive. I am less sure as to whether any of Mr Needs tweets can be said to incite racial hatred or justify striking off. Many members of the public would share his scepticism about Black Lives Matter amid serious allegations of misuse of funds by its organisers.
However, in my opinion it is beyond doubt that the decision with regard to q) r) and s) provides a very clear and alarming example of unlawful regulatory overreach and discrimination. These comments are manifestation of a protected gender critical belief, as confirmed by Forstater and Bailey, they are not expressed in a derogatory or abusive manner, they do not threaten violence, they are not offensive or disparaging.
To find, as the Panel did, that these comments ‘inflame gender discrimination’ or are ‘derogatory and offensive’ is absurd and itself a statement of discrimination towards those who hold gender critical belief. Tweet (a) asserting that only women could be pregnant was deemed not ‘unprofessional’ but ‘ill-advised’. No explanation is given as to why it is ‘ill-advised’ to state this fact.
We are left with the clear impression that this Panel begin from the starting point that any expression of gender critical belief is inherently wrong and bigoted. As I explained in my submissions regarding Social Work England’s action against a social worker, this is unlawful.
It is a great pity that Mr Needs was not represented, so that there could have been some better effort to distinguish between those comments which were a) lawful and protected b) ill-advised and should require reflection and c) arguably could cause serious offence that would damage the reputation of the profession.
It is clear that Mr Needs did not wish to engage and was contemptuous of the process which gave the Panel little room to manoeuvre. However, the Panel has mixed and muddled posts which were a) or b) and put them into c) and I do not think their decision could survive an appeal.
It seems we still have some way to go in educating employers and regulators that gender critical belief and its manifestation are protected, and will be engaged in LawFare a little while longer.
Therein lies the problem. Framing reality/truth as a set of beliefs “gender critical beliefs” legitimises transgender ideology. All of this gobbledegook deriving from the extremities of post-modernist theory needs to be debunked and excised from institutional guidance. It is like a cancer through our society and we cannot just live with it because it will eat us.
When did sarcasm become worthy of censure?