Social media for regulated professionals

The context

Barely a day goes by without some case involving the use of WhatsApp appearing in the mainstream media. The use (and misuse) of social media in general and WhatsApp in particular has given rise to high profile criminal convictions (most recently involving Huw Edwards) and has provided a wealth of evidence in the Covid Inquiry. One can only speculate as to how much more painful the revelations revealed by the Post Office Inquiry would have been had social media been available at the material time. It was of no surprise to any of us who practise in this area to learn that the Cabinet Office has banned the use of WhatsApp for the conduct of official business. 

Focus to date has been mainly on the criminal and employment consequences of content distributed on WhatsApp. Less attention has been paid to the consequences of that content for regulated professionals. This article explores the risks and issues involved and provides guidance on the six main points you need to be aware of when using WhatsApp (or any other social media or messaging service).

Instant messaging has become an integral part of professional practice. It enables clinical teams to be assembled quickly, information to be distributed in real time in acute and emergency situations and issues to be discussed and positions agreed in court hearings and Board meetings. In all of these scenarios, regulated professionals are expressing opinions and giving and receiving advice and instructions. So far, so good. However, difficulties arise when the same channels and devices are used for interpersonal interactions and blurring occurs between the personal and the professional.

Social media and professional regulation

WhatsApp communications can play different roles in disciplinary proceedings. The content, possession and/or sharing of WhatsApp messages can be the basis for disciplinary proceedings. Hill Dickinson has recently acted in cases where those messages gave rise to allegations of various categories of (non-criminal) illegality. In addition, allegations can arise from mere continued membership of a group in which offensive content is shared and from failing to report fellow regulated professionals who are members of that group. 

WhatsApp messages can also form weighty and pivotal evidence in proceedings. In cases involving allegations that require the drawing of inferences as to state of mind, such as motivation or intent, and when any evaluation of such issues is required, messages sent ‘in the moment’, between persons in a relationship of trust and confidence, often sent under the assumption that they will never be seen or disclosed, provide persuasive evidence of a person’s state of mind at that time. Such material may also be used to rebut allegations of motive or bad faith.

Debunking the myths

Yet despite the media coverage of some particularly egregious cases involving WhatsApp messages, some commonly held myths remain:

First, WhatsApp messages are end-to-end encrypted but this does not mean that they cannot be retrieved and disclosed. If the police obtain the device of one member of the group who has not deleted the messages, they can obtain all the messages sent in the group. 

Second, any group is only as strong as its weakest member (and anyone they are connected with). Once content enters a group, control over it is lost. Any member of that group can forward it to any third party. In a recent case, 18,000 messages sent in a group of junior doctors over a period of two years were obtained by the police when a relative of a member of the group was arrested, his device interrogated and offensive material shared from the doctors’ group was revealed.

Third, mere membership of a group in which problematic content is shared is sufficient to give rise to liability to disciplinary proceedings, as is liking, sharing or commenting on that content. 

Fourth, the ‘private’ nature of the communications is not a defence. Courts dealing with challenges to police disciplinary proceedings decided as far back as 2012 (and reaffirmed in 2020) that there was no expectation of privacy in relation to messages sent on WhatsApp and professionals remained subject to the relevant standards of behaviour when on and off duty.  A judicial review challenge by the junior doctors referred to above to the bringing of fitness to practise proceedings against them on the basis that the messages were private and outwith the jurisdiction of the GMC was rejected in 2019. 

Fifth, a disciplinary panel (and any reviewing court) will apply an objective, and not a subjective, interpretation to words used in messages. What a person did or did not intend to mean when sending message may be mitigation but is not relevant to whether or not a message that had that characteristic was sent. So, in a recent case, a panel’s failure to uphold an allegation that statements were antisemitic was successfully challenged on the basis that the panel had wrongly relied on the registrant’s evidence as to his intended meaning and evidence of his good character. Assessment of meaning does not depend on the intention of the author or speaker. Defences that messages were banter, showing off or did not represent the true character of the author are unlikely to succeed.

Sixth, there is a need to be mindful of the reach of professional regulation. The Health Care Professions Council has indicated that historic social media activity may be considered against the relevant standards even if the individual was not a registered professional at the time and the GMC’s social media guidance reminds its registrants that it has a legal duty to investigate any concerns raised to it that reach its fitness to practise threshold.

Published guidance

A number of the statutory regulators have produced guidance on social media and the SRA has issued a warning notice about the use of social media. Some themes are:

• A reminder that the same standards and expectations of behaviour apply to all communications wherever those communications take place and whether within the registrant’s professional or private life;

• Warnings against relying on privacy settings and to proceed on the basis that anything posted will be shared and read by anyone. Nothing online is truly private and secure and messages sent in private groups may become public;

• Advice to ensure the accuracy of any information posted or shared and to ensure that the confidentiality, privacy and dignity of patients/service users/clients are maintained at all times;

• Warnings not to post, share or be associated with any information that could damage public confidence in you as an individual professional or the profession more generally;

• The need to remain mindful of blurring of the line between the personal and the professional and the responsibility to behave professionally and responsibly at all times;

• Regulatory action will be based on the nature of the communications and it is not necessary for there to be evidence that individuals, or classes of individuals, have viewed or been affected by the communication.

Concluding remarks

Content shared on WhatsApp and other social media/instant messaging platforms by regulated professionals may give rise to disciplinary proceedings or may be used as evidence in such proceedings. Caution is required in relation to the membership of groups and to staying in groups where problematic content is shared, particularly where the other members of the group are also regulated professionals. The guidance issued by the HCPC, due to take effect on 1 September 2024, concludes with advice to registrants to keep on posting, as many registrants find using social media beneficial and do so without any issues. The benefits of using social media must however be balanced against the risks and obligations that arise.