Climate activist doctor’s appeal against suspension dismissed

An appeal of a doctor’s suspension from the medical register as a result of her actions relating to a climate protest has been dismissed.

Sarah Benn (pictured above) was suspended from the GMC register for five months in April 2024 after a tribunal found her fitness to practise was impaired owing to misconduct.

Dr Benn breached an injunction by standing on a grass verge holding a sign that said ‘Stop new oil’ by Kingsbury Oil Terminal in April 2022 in protest at its continued burning of fossil fuels.

She served 32 days in prison for contempt of court, which last year’s tribunal concluded amounted to misconduct. The tribunal raised ‘no clinical concerns’.

The misconduct decision was upheld in the ruling by Mrs Justice Yip, who dismissed the appeal.

Two days of submissions were heard at the Royal Courts of Justice in December, attended by The Doctor.

Jenni Richards KC, representing Dr Benn, laid out her position that, while she accepted Dr Benn was found in contempt of court, which triggered the April tribunal, she disagreed with the tribunal’s findings.

She disputed that Dr Benn’s fitness to practise was impaired by reason of misconduct and argued the sanction of a five-month suspension from the medical register was wrong.

Ms Richards used multiple examples of case law to argue that, for an incident to be classed as misconduct, it must either take place as part of their role as a doctor, or if outside of professional role, must be ‘sufficiently immoral or outrageous’.

She gave previous examples, including one of a doctor committing sexual offences against their daughter and one of a vet who was found to mistreat animals in a separate role as a farmer.

These cases, Ms Richards argued, showed ‘moral turpitude’ whereas Dr Benn’s action showed ‘the opposite’, that she cared for her patients by campaigning on public health grounds.

Ms Richards said the word ‘serious’ in the ‘serious misconduct’ that the GMC had to prove in the tribunal had to be given its proper weight, and asked: ‘What is the yard stick?’

She posed the question whether some people ‘disapproving’ of an action means it is objectively ‘disgraceful’.

Laying out the facts of Dr Benn’s activism, where she stood on a grass verge holding a sign saying ‘Stop new oil’ and sat in the road during three protests at an oil terminal, Ms Richards argued her actions were informed and selfless in support of public health.

She had already been punished, serving a custodial sentence of 32 days, Ms Richards noted.

Further, Dr Benn’s honesty, integrity and unblemished record in her career in the NHS were also referenced in her counsel’s argument, and that she had fully considered the effects of her actions and chose the ‘least disruptive’ action that would still draw attention to her cause.

Ms Richards told the judge that ‘nowhere is the standards expected of a doctor defined’. She said doctors convicted of offences such as speeding or drink driving do not automatically face tribunal. Therefore, ‘the GMC is wrong to say that anything not within the law must by definition be misconduct’.

‘Disproportionate weight’ was also given by the tribunal to the effects on police resources during the protests, it was argued.

Ms Richards said that, even if the judge was to uphold the finding of misconduct, such a finding does not implicitly mean a doctor’s fitness to practise has been impaired.

It was argued the tribunal gave no explanation or analysis as to how Dr Benn had brought the medical profession into disrepute.

The tribunal’s conclusion that ‘an overwhelming majority’ of the public would object to Dr Benn’s actions was said to be ‘mere supposition’ by Ms Richards, who argued there was only evidence in support of Dr Benn – and none that showed a majority against.

In the second day’s submissions, Ms Richards produced new evidence – a piece of research commissioned by the GMC in 2019 – which asked questions of public attitude towards doctors who have been convicted for matters not linked to their role as doctors.

Examples given in this research included a doctor who got into a fight inside a nightclub and a GP caught stealing gloves worth £10.

In both examples, the GMC research found a ‘vast majority’ of 88 per cent of respondents felt the regulator should either take no action or warn the doctor about their future behaviour.

Ms Richards said it showed: ‘The nature and severity of the offence decided the expectation of regulatory action, not the presence of a conviction.’

Rory Dunlop KC, representing the GMC, accepted the research – commissioned to inform the Hamilton review into gross negligence manslaughter and culpable homicide – is ‘more objective’ than other surveys or petitions.

But he said: ‘The role of the GMC is not to respond to the public mood’, adding there was a ‘spectrum of opinion’ and the tribunal was within its rights to make the decision based on its expertise.

When rebutting the point that there were numerous surveys and petitions which showed support for Dr Benn, Mr Dunlop argued these were organised by organisations ‘sympathetic’ to her cause.

Mr Dunlop submitted that the tribunal’s decision of misconduct ‘deserves respect’ arguing ‘a custodial sentence is an indicator of seriousness’ and ‘it is disreputable to defy a court order’.

He added that behaviour ‘does not have to be immoral to damage public confidence in the profession’.

Responding to Ms Richards’ submission that there is no definition of what constitutes misconduct for doctors, Mr Dunlop said it is ‘not appropriate’ to ‘squeeze’ a definition into a limited number of categories, arguing it is impossible to predict the nature of the next case.

He accepted that a list of examples of what can be considered bringing the profession into disrepute is helpful but said such a list should not be ‘exhaustive’.

Mr Dunlop said the GMC’s Good Medical Practice guidance made it ‘quite clear that what is expected of a doctor goes further than how to treat patients’ and argued this includes acting within the law.

He said Dr Benn had ‘deliberately flouted’ the law by repeatedly breaching an injunction, which he argued shows the seriousness of her actions and a failure to act with integrity.

The GMC was right to conclude that Dr Benn’s fitness to practise was impaired, said Mr Dunlop. Not doing so, he submitted, ‘would be saying a doctor wilfully committing contempt of court repeatedly isn’t bad’.

Mr Dunlop also defended the sanction placed on Dr Benn, a five-month suspension from the medical register. He said it could have been more punitive, such as erasure from the register, and that a review gave Dr Benn the chance to ‘reflect’ and decide not to take similar actions again.

When it was put to him that Dr Benn’s custodial sentence meant she has already been punished, and that GMC guidance says sanctions should not be imposed in order to punish, Mr Dunlop said: ‘It’s not just the criminal courts that have a role to play in the rule of law.’

Ms Richards responded, saying Dr Benn ‘did not get away with breaching court orders, she went to prison for 32 days’.

In her ruling, Mrs Justice Yip found that the tribunal ‘overstated the requirement for a doctor to act within the law at all times’, noting: ‘The guidance in [Good Medical Practice] did not and does not impose particular responsibility on doctors, as argued by the GMC, to uphold the rule of law. The rule of law applies to all.’

She said the tribunal ‘mischaracterised’ the issue when suggesting Dr Benn’s arguments would result in it permitting doctors to act outside the law.

Good Medical Practice ‘must be construed sensibly according to the ordinary meaning of the words used, taking it as whole and in light of its context and purpose’, she said.

The judge also noted that the tribunal was ‘wrong’ to rely on a view that the majority of the public would not condone what Dr Benn did. She said ‘it was for the tribunal to form their own evaluative judgement’.

Mrs Justice Yip said Dr Benn’s action was misconduct and there was ‘no doubt that it was serious’. It was ‘not within the norms of behaviour and boundaries set by the governing body of the profession’, she said.  

‘Dr Benn’s motivations were relevant but did not convert that which is otherwise obviously misconduct into something less,’ she said.

Dr Benn ‘brought her profession into her action’, the judge said. ‘She made it clear that she was conducting herself as a doctor. She intended that her misconduct would attract additional attention because she was a doctor, and doctors are trusted voices within society.

‘She relied upon that public trust and the fact that it would be considered shocking for a doctor to act unlawfully to spread her message. In doing so, she recognised that she was acting outside the boundaries set for the medical profession.’

‘These factors provide the connection with the medical profession that the authorities require such that, although the acts were committed outside medical practice, they crossed the dividing line into professional misconduct.’

She added: ‘It is apparent that the tribunal gave careful consideration to all the unusual circumstances of this case, including Dr Benn’s motivations and her stated intention to continue to act outside the law.’

Mrs Justice Yip said the tribunal ‘expressed respect for Dr Benn’s views’, noting: ‘She was perfectly entitled to campaign vigorously and to protest. She was entitled to do so invoking her status as a doctor to engender trust and support for her views. What she was not entitled to do was to rely on her status as a member of the medical profession and the special trust that brings while repeatedly defying a court order (causing public disruption on the final occasion) resulting in her imprisonment.’

She said the tribunal ‘was not wrong’ to say Dr Benn’s fitness to practise was impaired because she said she would continue with her activism and could not promise not to break the law again to this end. This, the judge said, is ‘incompatible with her status as a member of the profession, whatever her motivations’.

Mrs Justice Yip said the five-month suspension was a ‘necessary and proportionate response’ and said it may not have been required if Dr Benn had said she would ‘conduct herself within the standards expected of the profession in the future’, which ‘would not be to preclude her continued involvement in environmental activism’ within the law.

Dr Benn’s suspension, which had been postponed while the appeal process took place, has now come into effect.

The judge ruled the GMC is entitled to recover its legal costs. Dr Benn has a week to decide if she wishes to appeal the decision.

GMC chief executive Charlie Massey said: ‘We agree that climate change is one of the greatest threats facing us all, particularly given the serious threat a changing climate poses to human health and wellbeing.

'Our guidance is clear that doctors, like all citizens, have a right to express their personal opinions on important issues like climate change, and there is nothing in our guidance that prevents them from exercising their right to lobby government and campaign – including taking part in protests.

‘However, patients and the public have a high degree of trust in doctors, and that trust can be put at risk when doctors fail to comply with the law.’

BMA representative body chair Latifa Patel said: ‘This judgment is naturally disappointing and will be very worrying for doctors who want to express their real and urgent concern about the climate crisis.

‘The climate crisis is a health crisis and doctors regularly see the impact of changing temperatures and worsening pollution on their patients. They feel immensely helpless.

‘Doctors, like everyone, may be expected to adhere to the law, but we all know that there are circumstances in which a law can be unjust. We are very concerned that the GMC, which has recently apologised for the way in which it struck off gay doctors who had broken unjust laws as recently as the 1980s, appears not to have learnt and reflected on this.

‘Taking part in peaceful protest does not impact a doctor’s ability to practise medicine. The GMC needs to take a far more flexible and pragmatic approach.

‘Dr Benn is being punished twice for the same thing – and something that bears no influence on her clinical skills, ability or safety.

‘We will now be carefully considering the tribunal full judgment and any next steps, including grounds to appeal.’

Dr Benn said: 'I am obviously disappointed that the appeal against my suspension has been dismissed.

'I am deeply appreciative of the assistance I have received from the BMA, the legal team representing me, and the very many medical colleagues and members of the public who have spoken out in my support.

'Now though, the conversation must be brought back to the climate emergency. What further steps I take or decisions I make will be driven solely by this imperative.'