Health Practitioners Competition Assurance Act 2003 – Health Practitioners Disciplinary Tribunal – Nursing Council Code of Conduct – practitioner’s use of social media – whether conduct amounts to negligence or brings profession into disrepute – freedom of expression
Professional Conduct Committee v Tepou 1331/Nur22/556P.
This decision of the Health Practitioners Disciplinary Tribunal concerns three disciplinary charges laid by a Professional Conduct Committee (PCC) against Sarai Ive Tepou, a registered nurse of Auckland. The charges were laid under s 100 of the Health Practitioners Competence Assurance Act 2003 (HPCAA).
The essence of the charges relates to inappropriate social media comments made by Tepou towards her fellow health practitioners and her spreading of covid-19 misinformation through social media and a radio interview. As Tepou did not engage with the PCC investigation or the tribunal, the matter proceeded by way of formal proof.
Relevant law and regulations
There are two ways in which a practitioner may commit professional misconduct under s 100 of the HPCAA: because of an act or omission that amounts to malpractice or negligence in their registered scope of practice or because of an act or omission that has brought or is likely to bring discredit to the profession. Before a finding of guilt under s 100 can be made, the tribunal must also be satisfied that the practitioner’s acts or omissions require a disciplinary sanction, whether for the purpose of protecting the public, maintaining professional standards or punishing the practitioner.
When assessing whether an act or omission accounts to malpractice, regard is given to relevant professional standards. Relevant to the present case is the Nursing Council’s Code of Conduct which, amongst others, sets out principles requiring nurses to work in partnership with health consumers to promote and protect their wellbeing, work respectfully with colleagues, act with integrity to justify health consumers’ trust and maintain public trust and confidence in the nursing profession.
Charges and decision
Charge 1 involved Tepou making comments about the covid-19 vaccine on a Facebook group. In her comments, Tepou stated she was a nurse and expressed distrust of her colleagues (“im a nurse don’t trust my peers”). Of the covic-19 vaccine, she stated, “foods lifestyle improve immunity…try REFRAIN FRM DHBS” and referred to unvaccinated persons as belonging to a “GOLDEN DNA COMMUNITY”.
The tribunal found that while nurses are entitled to private lives online, their professional obligations persist where they are commenting on matters touching on their scope of practice. Tepou’s comments contributed to public scepticism and mistrust of health professionals during a critical public health response. This was completely unacceptable behaviour which constitutes malpractice and requires disciplinary sanction.
Charge 2 concerned Tepou circulating two letter templates from her business Facebook page, one entitled ‘refusal to vax for under 16” and the other entitled “refusal letter over 16s”. These letters were intended to be used to object to covid-19 vaccines being administered in schools.
The tribunal accepted that by circulating the letter templates, Tepou intended to undermine the roll-out of the covid-19 vaccine. While she points to reports of incidents of myocarditis, the general tenor of the letter lacked balance and stated the “overwhelming” evidence against the covid-19 vaccine. If the circulation of the letter templates influenced the decision of one or more people not to get vaccinated, this may have had far-reaching effects on the health of the New Zealand public in the midst of a pandemic. Consequently, the tribunal found Tepou’s conduct was malpractice and required a disciplinary sanction.
Charge 3 involved Tepou giving a radio interview where she identified herself as a health professional and made several claims about the covid-19 vaccine, unsupported by evidence. The interview was aired on a Tokelau radio station and Tepou is a respected figure in the Tokelauan community. The tribunal considered this to be the most serious of the three charges, because her comments were aimed at a community already experiencing challenges with health literacy and with low vaccination rates. Accordingly, it found her actions were professional misconduct which requires a disciplinary sanction.
The decision also briefly touched on s 14 of the New Zealand Bill of Rights Act – the right to freedom of expression. The tribunal found the right was engaged, but it must yield, to some extent, in the context of professional responsibility.
Applicable principles: practitioner’s use of social media – whether spreading misinformation amounts to professional misconduct – whether disciplinary sanction is required – whether right to freedom of expression engaged
Held: Allegations in each charge are established. The charges, separately and cumulatively, amount to professional misconduct. Tepou’s registration is suspended for 12 months, she is censured and certain additional conditions apply if she recommences practice within the six or 12 months after suspension.