Is Gagging NHS Workers Lawful? Coronavirus and Freedom of Speech

by George Letsas and Virginia Mantouvalou

This unprecedented restriction on the freedom of speech of healthcare workers takes place against the background of considerable secrecy surrounding the UK Government’s response to the pandemic.  There has so far been limited information on the situation in hospitals, on the scientific evidence upon which the Government acted during the early days of the crisis, and on the health of the Prime Minister after he was hospitalised. During the early stages of the outbreak, the government even announced that it would stop reporting daily on confirmed cases and deaths, a decision it reversed soon afterwards, following heavy criticism. What is more, there has been no public admission that the government might be filtering information about the pandemic and hence no official justification for why restrictions on freedom of speech are currently necessary.

According to official data, the loss of life because of the pandemic is already over 10,000 deaths in hospitals alone. As the government does not follow the most comprehensive way of counting deaths, there is credible evidence that the toll is much higher. The UK is on a path to becoming the worst affected country in Europe. On the view of many experts this was preventable. Anyone who has been following the news in the last few weeks would be aware of warnings (including by public health experts, like Anthony Costello, Richard Horton and Devi Sridhar) that the UK was going to face suffering and loss of life on a scale similar to or even greater than Italy.

There are valid concerns that the way the UK government has so far handled the situation has been inadequate. If anything, now is the time for greater transparency, publicity and accountability. If the scientific evidence on which the government is acting is unreliable, or if the government is proving incompetent in implementing the measures indicated by the scientific experts, then public scrutiny will help to expose any shortcomings and improve the government’s fight against the pandemic. With Parliament being closed, the need for public scrutiny is even more pressing. Transparency can save lives too.

Equally important is the legitimacy of the measures: the public and NHS workers cannot be expected to rally behind the government’s response, if there is no transparency about the rationale and the effectiveness of the measures. Early on, the idea of ‘herd immunity’ was mentioned, i.e. allowing the virus to infect 60% of the population. This idea was later dropped without any explanation. Suppose, for the sake of the argument, that behind the idea of herd immunity was not a scientific approach, but a sinister ideological plan to allow the pandemic to wreck the NHS with a view to privatise it subsequently. If that were the case, would we still expect NHS workers to risk their lives implementing such a devious plan? The legitimacy of the government’s measures crucially depends on transparency and availability of information.

There is, finally, another reason to be especially concerned with freedom of speech during a pandemic. It is a known fact that events perceived to be threatening the life of a nation, such as wars or pandemics, have a substantial degree of a so-called ‘chilling effect’ on free speech: people typically rally behind their leaders and feel reluctant to voice their criticisms, adopting a stance of self-censorship. Even in the absence of any legal restrictions on free speech, a pandemic is likely to result in suppression of information and decreased levels of accountability. Those in power may take advantage of this chilling effect in order to avoid scrutiny, or to advance party-political, rather than national, interests. As a matter of principle, restrictions on freedom of speech during a pandemic should be seen with considerable skepticism.

In the light of the above considerations, can the restriction on the right of NHS staff to speak out be justified as lawful?

NHS Workers’ Freedom of Expression During the Pandemic

Governments’ response to the pandemic across Europe, and the rest of the world, has been accompanied by unprecedented restrictions on people’s lives: things like how often we leave our home, where we go, and for what reason. To a significant degree, these restrictions are justified in a context of a public health emergency. Yet they cannot go unchecked. The Council of Europe released Guidance to Governments of its 47 Member States on how to respond to the pandemic, while also respecting human rights.

The right to free speech is protected in article 10 of the ECHR which says: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. Free speech is fundamental in a democratic society, and the right to receive and impart information are central in this context. As early as 1976, the European Court of Human Rights in Strasbourg said in Handyside v UK that its ‘supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man’. A decade later, in Lingens v Austria, the Court said that the press has a right ‘to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.’ The ECtHR itself recognises the value of political speech for pluralism and democratic accountability.

NHS workers, like other workers, have a right to free speech. Restrictions on their rights through intimidation, monitoring of their social media, and disciplinary action may violate the ECHR/HRA directly, as the NHS is a public sector institution (section 6 of the HRA). In present day circumstances, their right has to be protected strongly both when they speak to mainstream media and when using social media because it can both help disseminate important public health information that can save lives, and can also play an accountability function when the press and the public assess the Government’s response to the pandemic.

The right to free speech may be limited according to the second paragraph of article 10 if there is a legitimate aim, such as the protection of public safety and public health, and only insofar as it is proportionate to the aim pursued. To be sure, when applying the test of proportionality in assessing violations of the Convention, the European Court of Human Rights has accepted that the special nature of some professions, such as that of a lawyer or a doctor, must be taken into account in considering whether a restriction on free speech responded to a pressing need. But any restriction has to be in pursuit of a legitimate aim, as they are listed in article 10 ECHR, and be proportionate to it.

While certain restrictions on the right to free speech may legitimately be grounded on a duty of loyalty of the worker towards the employer, there are certain restrictions that are just illegitimate. This is best exemplified by the strong protection of whistleblowers, in the UK Public Interest Disclosure Act 1998, the case law of the ECtHR and the Council of Europe Recommendation CM/Rec2014(7). Whistleblowers are people who reveal information on a harm to the public interest in the context of their work-based relation in the public or private sector. The information that whistleblowers share has to reveal a threat or harm to the public interest. The strong protection of whistleblowing is justified because of its role of transparency and democratic accountability.

This strong protection is reflected in the statutory provisions on whistleblowing in the UK. According to the Employment Rights Act 1996 (‘ERA’), any complaint about, for instance, health and safety risks will be a protected disclosure under section 43B(1)(b). It will also be a breach of 43(B)(1) (a) and (b) too, if alleging e.g. breach of PPE Regulations or a duty in sections 2 and 3 of the Health and Safety at Work Act. A worker then has a right not to be subjected to a detriment. There is no proportionality test to be applied. In addition, a worker has the right to urgent interim relief if they are dismissed for such a reason, in effect keeping them in their job (sections 103A and 128 of the ERA). Damages are unlimited, either for the detriment or unfair dismissal.

In the recent Guidance of the Council of Europe, it was explicitly said that ‘the pandemic should not be used to silence whistleblowers’, so this would not be a legitimate aim of NHS trusts that threaten their staff.

But what about NHS workers who simply share stories of the situation as they experience it, without seeking to make a concrete public interest disclosure? The Guidance accepts that free speech during the pandemic may be limited. However, even during a pandemic, restrictions must be proportionate to a legitimate aim, such as public health or safety.

With respect to press freedom, for instance, the Guidance gives this example: ‘exceptional circumstances may compel responsible journalists to refrain from disclosing government-held information intended for restricted use –such as, for example, information on future measures to implement a stricter isolation policy’. Here, a restriction on press freedom is justified because, and in so far as, it leads directly to the saving of lives. If journalists disclosed such information, it could be counter-productive, as some people might try to make the most of the last few days or hours before the adoption of the stricter policy by going out and socialising, which would in turn lead to more infections and deaths.

 

Is there a Legitimate Aim? Public Health, Scaremongering and Public Order

 By contrast to certain restrictions on the press as described above, there is no necessary link to harm in allowing NHS staff to share their day-to-day experiences on social media. In fact, there is a lot to be gained: any shortcomings in the government’s approach (such as shortage of PPE) will come to light, putting it under pressure to correct them. It may also mobilise civil society to help the NHS effort. Finally and crucially, it will contribute towards holding the authorities into account if they fail to take the necessary measures. Pluralism is crucial not just for a democratic society, but also for a healthy society. As Li Wenliang, the Chinese doctor who died in February, aged 33 years, fighting coronavirus in China said: ‘I think a healthy society should not have just one voice’.

As there has been no official justification given for why restricting the free speech of some NHS staff is necessary, we can only hypothesise about what might be a suitable rationale.  In the Guardian article it is suggested that the aim is to ‘stop scaremongering when communications departments are overloaded with work at a busy time’. While discouraging scaremongering is legitimate, there is little reason to think that NHS staff will exaggerate the scale of the situation in hospitals, not least because we know hospitals around the world are being tested to their limits. The government’s official line until recently was that washing our hands would be sufficient in addressing coronavirus, while it is also fine to shake hands with coronavirus patients, as the Prime Minister said here. Perhaps because of statements like this, the issue most countries face, including the UK, as we approach the peak of the pandemic, goes in the opposite direction: several people do not take the threat of the virus seriously enough, flouting the lockdown measures. Disseminating information about how dire the situation is in hospitals will pressurise more people to stay home and save lives.

Another possible rationale is the protection of patients’ privacy. This is obviously legitimate, but NHS staff are well aware that they should not reveal patients’ identities. Sharing their accounts about their overall experience in the pandemic, though, is different to revealing individual patients’ information. It helps the public understand the nature of the public health emergency better, develop a considered view on the Government response, and demand answers to questions about the measures taken. Workers’ accounts of their experience provides critical information to the public who need to understand the problem and the Government response to it.

But perhaps the rationale behind restricting the speech of some NHS workers is different altogether. Perhaps there is a legitimate aim in the limitation of the right, consisting in the fear that if NHS workers start sharing their horrific experiences on mainstream or social media, this will undermine the public’s morale and trust in the NHS, and may even lead to social unrest. This rationale is very old, going back to the heavy restrictions on reporting during wartime (it was due to such wartime restrictions, for instance, that the 1918 pandemic came to be known as the Spanish influenza, because Spain was neutral and free to report on the pandemic).

We are not really at war, however, and the analogy with war is problematic at many different levels. It suggests that criticisms of the Government’s approach are unpatriotic, because we all have to be united against an external threat. But the coronavirus is not a foreign enemy who will take advantage of any publicly available information about the shortcomings of the UK Government (see also this). On the contrary, more publicly available information leads to increased scrutiny which, in turn, strengthens – rather than weakens – our ability to fight the epidemic. As to the argument that sharing information about the situation in hospitals will undermine the public’s morale, it is deeply paternalistic. It assumes that the nation is not mature enough to understand that even the most advanced and prepared healthcare systems will be stretched by this horrible pandemic and that even the most professional and committed health workers will be challenged, physically and mentally, to treat all the patients who will need ventilation. There is nothing unpatriotic about letting healthcare workers share their experiences, horrific as they might be, with the public, whose health they are desperately trying to protect. If anything, it seems unpatriotic to deny them the right to tell us what they are going through. Surely patriotism means  – above all else – that we are all in this together.

It is always legitimate, of course, to worry about the danger of civil unrest. If the government is perceived – in the eyes of the public – to be wholly incompetent to deal with the pandemic, we could conceivably be led to instances of civil unrest, violence or riots. But legal principles here are clear: there must be evidence of a clear and present danger before any drastic measures are taken to limit free speech and no such evidence exists at the moment. And recall that the ban on some NHS staff speaking out appears to be indiscriminate: it does not only apply to images or reporting that may shock or outrage the public. It applies to any comment NHS staff might want to make about their experiences in hospital. According to well-established human rights case law, indiscriminate and blanket restrictions on human rights are likely to be disproportionate even when the aim is legitimate.

A crucial consideration, on the other hand, is for all NHS workers to be open about the challenges that they are facing. Powerful testimonies such as this help citizens understand the seriousness of the situation and act accordingly by following social distancing advice. Such testimonies also emphasise the immeasurable contribution of NHS workers, which has often been undervalued. In addition, sharing their stories and receiving public support may help NHS staff themselves, many of whom are faced with a risk of post-traumatic stress disorder.

Even assuming that there is a legitimate aim, then, we are not convinced that gagging some NHS workers is proportionate to the aim pursued. Just a final point about a possible derogation, before concluding. Article 15 of the ECHR provides that states may derogate from some human rights obligations, including free speech, in times of emergencies that threaten the life of a nation. Certain countries have derogated from articles 8 (right to private life) and 11 (freedom of assembly and association) but the UK is not one of those, as it has not notified the Council of Europe that it is derogating from the Convention under article 15. In any case and contrary to Government rhetoric on an imaginary war (see also here), this is not a war, as we said earlier, where secrecy and restrictions on free speech might be justified. Today the threat to the life of the nation is such that more rather than less information is needed so that countries across the world adopt the best-informed response to the challenge. If a derogation were made, the ECtHR would examine whether the UK went beyond the ‘extent strictly required by the exigencies’ of the situation, the nature of the rights in question, and the proportionality of the restrictions. In our view, a derogation from the right to free speech for NHS staff would not survive human rights scrutiny.

Bans on some NHS staff members’ freedom of speech cannot be justified: they do not fit the image of a democracy that values freedom and do more harm than good to the public interest. Pluralism is crucial both for a democratic and a healthy society. It was earlier said that the restrictions on NHS workers’ free speech cannot have as an aim the suppression of whistle-blowing. As explained earlier, whistleblowers are strongly protected in domestic law. Yet the chilling effect of the reported intimidations and threats of disciplinary action on all aspects of NHS workers’ speech, including expressions of concern about the way the situation has been managed, has to be recognised. This intimidation raises questions about how open the Government is to accountability and how much it values people’s lives.

 

George Letsas is Professor of the Philosophy of Law at UCL, Faculty of Laws.
Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL, Faculty of Laws. She is co-editor of Philosophical Foundations of Labour Law with Hugh Collins and Gillian Lester.

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