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Pengelly email on political tweeting "unlawful"

An email sent by Richard Pengelly, permanent secretary at the Department of Health, on the use of social media has been assessed by legal experts
Seanín Graham

NORTHERN Ireland's biggest doctors' union has sought legal advice over an "extreme" email sent by a senior health chief warning medics not to tweet about politics.

The British Medical Association (BMA) has revealed a QC's response to Richard Pengelly's instruction that "overtly political tweets" were "not appropriate" and staff should remain "neutral", as potentially unlawful.

Mr Pengelly is the permanent health secretary at the Department of Health and is married to former DUP MLA and special adviser Emma Little Pengelly who is standing for the party in South Belfast in the forthcoming Westminster election.

He is the most senior civil servant at the Department.

His email, which was sent to chief executives of the north's five health trusts before the last Assembly election in March, backfired spectacularly and led to accusations of censorship and conflicts of interest.

BMA chief, Dr John D Woods, wrote to his union members earlier this week on the use of social media in the run-up to next month's election following doctors' "concern" at Mr Pengelly's order, which they perceived as an attempt to restrict their private views.

In correspondence seen by the Irish News, the union leader said they had approached an expert in employment law, John Hendy QC of Old Square Chambers London, to provide a "detailed opinion" on the controversial action.

"This legal advice states that doctors using social media must follow their employer’s employment policies and procedures where these are contractual and lawful. We would therefore advise members to read the relevant policies before engaging in any social media activity," Dr John D Woods wrote.

But the BMA chief adds:

"However, the QC's opinion is that it would be unlawful for Mr Pengelly or the chief executives of Health and Social Care Trusts to seek to prevent clinical staff from, or to punish clinical staff for, expressing their political views on Twitter or any other form of social media in their time away from their work, so long as such ‘tweets’ do not transgress any contractual restrictions."

Dr Woods further revealed he had written to Mr Pengelly with the "key points" of Mr Hendy's advice and were "awaiting his response".

He concluded: "In summary, the legal advice we have received states that, provided you comply with your employer's policy, then you have the right to express your opinion on social media".

The Irish News asked the Department of Health what the permanent secretary's view was in relation to his actions being potentially unlawful.

A spokeswoman said: "The Permanent Secretary has received correspondence from the BMA which will be responded to in due course".

Mr Pengelly's email was prompted by two posts on Twitter by high-profile doctors in which the DUP and Sinn Féin were criticised.

Sources have told the Irish News that both medics received a "slap on the wrist".

At the time, former BMA chief Dr Brian Patterson described Mr Pengelly's action as "somewhat unusual, even extreme".

He told the BBC that people were entitled to their own views especially in Northern Ireland where "health is a very prominent issue".

Meanwhile, the head of the Royal College of Nursing Janice Smyth, whose members have expressed political opinions on social media as part of a pay campaign, told the Irish News she encourages nurses "to engage in political campaigns" but within their "Code of Professional Conduct" and employment contract.

Ms Smyth added: "Unfortunately, rightly or wrongly, Mr Pengelly's email has been interpreted by some as an attempt to silence them from expressing their views and opinions."

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