The doctor will tweet you now – but should he face disciplinary action for doing so?

Diagnosis download. Shutterstock

Many bosses would argue that mixing work with social media is not a good idea. Just ask Christian Solomonides, a hospital consultant who was recently suspended after he admitted posting strongly worded messages on Twitter. The tweets included a description of 90% of A&E admissions as “fucking bullshit”, a complaint that he was “sick of busting balls to ensure that a patient with a broken finger nail (who called an ambulance) is seen within four hours” and a comment that “ADHD is merely a polite term for a child who is just a little shit”. He also criticised a patient for “stinking of fags and demanding calpol on prescription” and called for fines to be imposed on people who “abused” the A&E system.

The tweets, posted over three-and-a-half years, came to light after the doctor was referred to the General Medical Council following an anonymous complaint in January 2015. According to the fitness to practice hearing, in a subsequent letter to his hospital trust, Solomonides recognised that he had undermined his position of authority and his credibility by publicly voicing his controversial views. However, he also stated that these views never undermined his clinical practice.

The fact that he faced disciplinary proceedings raises some interesting questions. Why shouldn’t Solomonides be allowed to express himself as he did? The tweets demonstrated criticism of the the NHS and its patients, but his comments were aimed more directly at society rather than any individual or specific group. There was no suggestion that he voiced his opinions to patients while he was performing his medical duties. Nor is there any suggestion that his treatment of patients or professional ability was compromised.

According to the European Court of Human Rights, in the case of Handyside v United Kingdom, freedom of expression includes the right to say things or express opinions “that offend, shock or disturb the state or any sector of the population”. Solomonides’ comments may be forceful and frustrated opinions on the state of the NHS and the behaviour of patients generally, but in my opinion there is nothing remotely “offensive, shocking or disturbing” about them. Equally, one of the main purposes of Twitter is to facilitate expression. Provocative positions are often the most aired and shared, so if there is no protection for these views, the purpose of social media itself is undermined.

Shooting the messenger

When we express ourselves on social media who, legally speaking, is the audience? In the context of criminal law, Paul Chambers won a high court challenge in 2012 against a conviction for sending a tweet of “menacing character” about blowing up Robin Hood airport in South Yorkshire, which had been closed due to snow. Chambers maintained that he did not believe anyone would take his comment seriously.

The long running case was a clear example of the difficulties in defining what is meant by an “audience” in the world of social media, where spontaneously sent messages can be unexpectedly passed on to a large number of people, resulting in a wide range of interpretations and varying degrees of acceptance.

Twitter target Tom Daley. Flickr/Tom Daley/Jim Thurston, CC BY-SA

Thoughts, feelings and frustrated rants or inappropriate jokes can be sent, initially, to a very small group and then re-distributed to a potentially unlimited audience as happened with footballer Daniel Thomas' homophobic tweet about Team GB divers Tom Daley and Peter Waterfield in 2012. Thomas was arrested following the tweet, but the Crown Prosecution Service later decided the message was “not so grossly offensive that criminal charges need to be brought”.

Although the initial recipients may not see the message as being obscene or menacing or offensive, members of a wider audience may do so. Herein lies the problem with social media, as surely it is reasonable to expect that provocative statements of the sort made by Solomonides, an NHS doctor working in the current climate of cuts and junior doctor demonstrations, might easily spread more widely?

Social media sackings

This isn’t the first time that an employee has fallen foul of their social media activity. As far back as 2010, an ACAS report recognised a rise in dismissals concerning the use of social media by employees, because users are still often oblivious to the risks, and the way in which social media can blur the lines of private and public life.

Since then, there have been numerous examples of employees being disciplined, or even fired, as a result of things they have said in this context. In cases where hostility has been directed towards the employer, colleagues or customers, there is normally a clear breach of contract, such as Apple sacking an employee for criticising the firm on Facebook. Such cases aren’t particularly problematic from a freedom of expression standpoint. However, as recognised by law professor Paul Wragg, where employees are being disciplined based on social media expression that may have a tenuous, or even no connection, to any aspect of their work, the right to freedom of expression is, potentially being undermined.

Solomonides’ hearing is a stark case in point, and an illustration of the challenge currently being faced by lawyers, employers and employees trying to find their place in this brave new social media world.