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  4. Price v Nursing and Midwifery Board of Australia - [2022] QCAT 439

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Price v Nursing and Midwifery Board of Australia[2022] QCAT 439

Price v Nursing and Midwifery Board of Australia[2022] QCAT 439

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Price v Nursing and Midwifery Board of Australia [2022] QCAT 439

PARTIES:

bradley price

(applicant)

v

the nursing and midwifery

board of australia

(respondent)

APPLICATION NO/S:

OCR077-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 November 2022 (ex tempore)

HEARING DATE:

1 November 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms J Felton

Ms M Sidebotham

Mr B Dixon

ORDERS:

  1. The Tribunal confirms the decision made by the Board on the 24th March 2022.
  2. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the applicant is a registered nurse – where the applicant seeks to review the decision of the Board dated 24th March 2022 pursuant to section 178(1)(a)(i) and (2)(c) whereby the Board decided that the applicant’s conduct is or may be unsatisfactory and imposed conditions on his registration – where the applicant expressed strong views on social media related to the pandemic and the vaccination response – whether the conduct of the applicant as a professional health practitioner is or may be unsatisfactory.

Health Practitioner Regulation National Law Act 2009 (Qld) sch (‘Health Practitioner Regulation National Law’), ss 3A, 178

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21(1)

AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401

Wright v Nursing and Midwifery Board of Australia [2021] QCAT 153

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms NJ Brooks for the Nursing and Midwifery Board of Australia instructed by MinterEllison

REASONS FOR DECISION

  1. [1]
    The Tribunal has before it an application to review a decision made by the Nursing and Midwifery Board of Australia (‘the Board’) on the 24th of March 2022, pursuant to section 178(1)(a)(i) of the Health Practitioner Regulation National Law (Qld)[1], and its decision contemporaneously to impose conditions on the applicant’s registration pursuant to section 178(2)(c) of the National Law[2]. Mr Price’s application was filed on the 6th of April 2022.

Background

  1. [2]
    The applicant is a registered nurse. He has strong views concerning the pandemic vaccination response, which he expressed in various posts on social media, in some of which he identifies himself as a nurse.[3]
  2. [3]
    It is not in issue that the applicant was working as a registered emergency department nurse at Greenslopes Private Hospital until he was stood town in or about November 2021 because he refused to comply with his employer’s direction to be vaccinated for COVID-19.
  3. [4]
    There are many documents in the Hearing Brief, including the social media posts, that reflect the applicant’s view on the national COVID-19 vaccination program and response.
  4. [5]
    He informed the Tribunal this morning that he remains suspended from his work and is unable to work as a nurse. His passionate views were expressed today to the Tribunal, in which he referred to a lot of the material that has been filed in the Tribunal, and in particular he referred to the vaccines, such as Pfizer and AstraZeneca, as a “bio weapon”.
  5. [6]
    There are many documents in the Hearing Brief that reflect his view on that program.
  6. [7]
    On the 11th of August 2021, the Office of Health Ombudsman (‘OHO’) received a complaint that the applicant was advocating against public health advice regarding COVID-19 vaccination in a public forum. The complainant provided screenshots of Facebook comments and posts made by the applicant, which are those screenshots and comments and posts referred to earlier.
  7. [8]
    The Australian Health Practitioner Regulation Agency (‘Ahpra’) wrote to the applicant on 1 December 2021 informing him of the application to OHO and inviting him to provide a written response to both the notification and to the materials provided by the complainant for the Board to consider when making a decision about the notification. 
  8. [9]
    On the 3rd of January 2022, the applicant provided a written response to the notification. He made statements in that notification which are similar to the statements that he has made to the Tribunal this morning. The Tribunal accepts that he legitimately holds these views, and he holds these views passionately.
  9. [10]
    He told Ahpra that he had witnessed risky and unlawful and dangerous practices and it was his responsibility as a health practitioner to report it. He referred to what he alleged to be an injustice revolving around COVID-19 management and vaccination mandates. He stated there is no transparency in the current narrative from “politicians and assigned health officers” who “refused to hear objections”, are “illogical”, “continually making errors and mistakes”, and “appear to be going against the science”.
  10. [11]
    He stated that COVID-19 vaccines have “caused more death and adverse effects than ANY of the vaccines COMBINED”. He referred to voicing his concerns to management and other health personnel and being ignored and shunned. He contended that the content he provided on his social media posts has come from government sources, such as the CEC and WHO.
  11. [12]
    He has voiced his own concerns, which he says stem from high-profile individuals, and he does not want to see family and friends comply with a potentially harmful procedure without proper informed consent and “medical personnel are withholding critical data”.
  12. [13]
    He stated that there have been concerns that Pfizer has falsified data and that most doctors and nurses know nothing of the information he tells them, and that is the reason for his social media posts. He stated that he has been stood down because he could not voluntarily consent to the inoculation, and he is being excluded from society as a result.
  13. [14]
    He stated that he has personally witnessed family, friends and staff adversely affected by the vaccine and some have suffered permanent damage. He also stated that he has witnessed patients suffer severe adverse reactions, and emergency departments are overwhelmed with vaccine injury, and that his freedom of speech has been taken away.
  14. [15]
    On the 25th of January 2022, the Board resolved that it had formed a reasonable belief, pursuant to section 178(1)(a) of the National Law, that the applicant’s professional conduct is, or may be, unsatisfactory, and that it proposed to impose conditions on his registration pursuant to section 178(2)(c) of the National Law.
  15. [16]
    On the 9th of February 2022, Ahpra informed the applicant that the Board had formed a reasonable belief that his professional conduct is, or may be, unsatisfactory and that it proposed to impose conditions on his registration; had considered the information provided by the notifier and the applicant’s submissions; and had referred to:

(i) the Nursing and Midwifery Board of Australia Code of Conduct for nurses (‘the Code of Conduct’);

(ii) the Ahpra social medial guide;

(iii) the All Boards notice reminding registrants of their obligations to comply with their profession’s Code of Conduct in all settings, including online; and

(iv) the Ahpra Position Statement on COVID-19 Vaccination released March 2021.

  1. [17]
    Ahpra advised him that the Board considered his conduct to breach the expectations and requirements those documents placed on practitioners. He was invited to provide written or oral responses.
  2. [18]
    On the 10th of February 2022, he provided a response to the Board’s proposed actions. He submitted, in part, that he was doing his best to use his professional judgment and expertise to obtain the best available scientific evidence and data to protect and advance health and wellbeing of individuals in society, allegedly in accordance with the Ahpra’s position statement in relation to COVID vaccination issued on the 9th of March 2021.
  3. [19]
    He apologised if it seems he is trying to undermine the National Immunisation Campaign, but he stated that that is not the case. He stated again that he has observed COVID injuries and death toll and is concerned – that he is also concerned at the events and deaths caused by the vaccine versus its efficacy. He stated that it is unnerving that Pfizer has requested it be able to hide COVID-19 vaccine data for up to 55 years, and he does not believe this has occurred for previous vaccinations. He stated that he should not be penalised for being conscientious in his profession and expressing concern when new information is being released.
  4. [20]
    On 8th of March 2022, the Board found that:

On consideration of the information available, the Board reasonably believes the conduct of RN Price is or may be unsatisfactory, and constitutes unsatisfactory professional conduct, as defined by the National Law.

  1. [21]
    It held:

In accordance with AHPRA social media guide on “How to meet your obligations under the National Law”, the Board notes that:

“While you may hold personal beliefs about the efficacy or safety of some public health initiatives, you must make sure that any comments you make on social media are compliant with the codes, standards and guidelines of your profession and do not contradict or counter public campaigns or messaging. A registered health practitioner who makes comments, endorses or shares information which contradicts the best available scientific evidence, may give legitimacy to false health-related information and breach their professional responsibility. Practitioners need to take care when commenting, sharing or “liking” such content, if not supported by best available evidence.”

The Board considered the risk posed by RN Price’s conduct is twofold. On matters of public health, the public perceive registered nurses as credible and reliable sources of information. As such, the dissemination of misinformation about vaccines by a registered nurse carries the risk of increasing community non-compliance with evidence-based public health measures aimed at minimising the spread of communicable diseases and minimising the effect of a communicable disease. Further, dissemination of information that contradicts evidence-based public health measures brings a profession into disrepute by undermining the profession’s credibility on matters of public health.

  1. [22]
    The Board decided the regulatory response warranted by the conduct of the applicant was the imposition of conditions on his registration because:

Despite the assertions put forward by RN Price in his submission, the Board remained of the view that RN Price had shown a lack of insight and reflection regarding the concerns raised in the notification.

  1. [23]
    On 24th March 2022, the Board informed the applicant it had imposed the following conditions (in summary) on his registration, subject to review after six months:

(a) The applicant to complete, at his own expense, a program of six hours of education approved by the Board and which includes a reflective practice report in relation to his professional practice obligations under:

(i) The Code of Conduct for nurses; and

(ii) The Ahpra social medial guide, specifically “A nurse’s role in health advocacy and health promotion with respect to disease prevention, including vaccination”.

(b) Within 21 days of being notified of the conditions, the applicant to nominate a person approved by Ahpra or the Board as an educator, and provide acknowledgment that Ahpra will obtain a report from the educator;

(c) Within 21 days of being notified of the conditions, the applicant to provide the contact details of a senior person at each current place of practice who Ahpra will contact and provide with a copy of the conditions on the applicant’s registration; and

(d) The applicant to complete the education within six months of Ahpra’s approval of the education and to provide evidence of that completion to Ahpra within 21 days of that completion, as well as the required reflective report

Relevant Legal Principles

  1. [24]
    Pursuant to section 21(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Board for reconsideration, with directions the Tribunal considers appropriate. In exercising its review jurisdiction, the Tribunal has all the functions of the board for the reviewable decision being reviewed.
  2. [25]
    The application is to be dealt with by QCAT as an appeal de novo, such that the Tribunal is to consider the Board’s decision to impose conditions afresh, having regard to all available evidence and material before it. The purpose of the review hearing is to produce the correct and preferable decision.
  3. [26]
    Section 178(2) of the National Law permits a national board to take relevant action in relation to a registered health practitioner if it forms a reasonable belief that the way a health practitioner practices their profession, or the practitioner’s professional conduct, is, or may be, unsatisfactory.
  4. [27]
    The condition for the exercise of the power pursuant to section 178 of the National Law turns on the existence of the relevant reasonable belief and does not require a finding on the balance of probabilities that the belief is correct or true.[4]
  5. [28]
    In the matter of AMS v Medical Radiation Practice Board of Australia (No 2), the then Deputy President of the Tribunal, his Honour Judge Allen KC, held:

I am required to determine whether, pursuant to section 171(1)(a)(i) of the National Law, I reasonably believe that the way the practitioner practises the health profession or the practitioner’s professional conduct is or may be unsatisfactory. In doing so, I need to have regard to the principle that the health and safety of the public are paramount and that restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

With respect to the terms of section 178(1)(a) of the National Law, I note that “belief” is the inclination of the mind towards assenting to rather than rejecting a proposition ...

The words “is or may be” must also be given their natural meaning. I am not required to hold a reasonable belief that the practitioner’s practice or his conduct is unsatisfactory -it is sufficient if I reasonably believe that it may be. The words “or may be” clearly indicate that reasonable belief as to the possibility that the practitioner’s practice or professional conduct is unsatisfactory is sufficient.[5]

  1. [29]
    In considering whether a practitioner’s professional conduct is, or may be, unsatisfactory, his Honour held in Wright v Nursing and Midwifery Board of Australia [2021] QCAT 153 (at 8):

...perfection is not expected of any professional and an absence of perfection or a single lapse in best practice is not something which would normally reasonably base a belief that a practitioner’s practice or professional conduct is or may be unsatisfactory. I construe the terms of section 178(1)(a)(i) of the National Law to be concerned with characterisation of a practitioner’s practice or professional conduct in a wider sense than whether a particular act, such as a clinical examination, may have been less than a model of perfection. While section 3A of the National Law stipulates that the health and safety of the public are paramount in administering that law, restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality. If conditions are considered necessary, the impact of the conditions on the registration of the health practitioner is a relevant consideration. The conditions should specifically address the relevant risk identified and be the least onerous possible to address the specific risk.

Discussion

  1. [30]
    The focus of the decision under review is the Board’s reasonable belief pursuant to section 178(1)(a)(i) of the National Law that the conduct of the applicant in disseminating what the Board says is misinformation contrary to the National Immunisation Campaign in response to the pandemic, was contrary to the Board’s Code of Conduct, the Ahpra social media guide and the Board’s September 2020 notice and its Position Statement on COVID-19 Vaccination released March 2021, and therefore “is or may be unsatisfactory”.
  2. [31]
    Ahpra and the Board’s position statement published 9th of March 2021[6] states (in part):

Vaccination is a crucial part of the public health response to the COVID-19 pandemic. Many registered health practitioners will have a vital role in COVID-19 vaccination programs and in educating the public about the importance and safety of COVID-19 vaccinations to ensure high participation rates.

  1. [32]
    The position statement allows for conscientious objection, both for a practitioner based on his or her personal beliefs, not to have a vaccination or to participate in the vaccination scheme, but, in such a case, practitioners “must ensure appropriate referral options are provided for vaccination”.
  2. [33]
    In relation to social media, the position statement[7] states (in part):

Ahpra and the Board’s Statement on the Appropriate Use of Social Media:

Ahpra and the National Boards appreciate the importance of a vigorous national debate on public policy during the COVID-19 pandemic. However, we remind all registered health practitioners that their obligation to comply with their profession’s Code of Conduct applies in all settings – including online.

The Codes of Conduct emphasise that practitioners must always communicate professionally and respectfully with or about healthcare professionals.

We have received concerns about the conduct of some health practitioners engaged in online discussion, including in semi-private forums.

Community trust in registered health practitioners is essential. Whether an online activity can be viewed by the public or is limited to a specific group of people, health practitioners have a responsibility to maintain professional and ethical standards, as in all professional circumstances.

In using social media, health practitioners should be aware of their obligations under the National Law and their Boards’ Code of Conduct.

  1. [34]
    The Board’s own social media guide[8], which is referred to in the position statement, is, in part, in these terms:

Public Health Messages:

While you may hold personal beliefs about the efficacy or safety of some public health initiatives, you must make sure that any comments you make on social media are consistent with the codes, standards and guidelines of your profession and do not contradict or counter public health campaigns or messaging. A registered health practitioner who makes comments, endorses or shares information which contradicts the best available scientific evidence may give legitimacy to false health-related information and breach their professional responsibility. Practitioners need to take care when commenting, sharing or “liking” such content, if not supported by best available scientific evidence.

  1. [35]
    The decision notice under review also refers to the Board’s Code of Conduct, in particular principles 7.1(a) and 7.2(a) and 7.2(c).
  2. [36]
    It is clear from the material filed in these proceedings, including the material filed on the 15th of May 2022, and indeed in the applicant’s oral submissions to the Tribunal this morning, that he is really seeking to use these proceedings as a forum for debate about the scientific efficacy, and reliability of data relevant to the National Immunisation Program as a response to the COVID-19 pandemic.
  3. [37]
    The role of the Tribunal, as I told him, is limited to that set out above. What is clear is that the applicant’s position on the vaccination program has not changed since the conditions were imposed on his registration. That is not to be critical of him – it is merely pointing out that his personal views have not changed. He has not resiled from any of the views he expressed in the social media posts. It is abundantly clear, as reflected in the position statement set out above, that Ahpra and the Board strongly support the National Immunisation Program, and the vaccination program which underpins it, on scientific grounds as being essential to public health.
  4. [38]
    Neither the Board or the Tribunal have the full content of responses to the posts from members of the community who responded to the applicant because the documents produced in the Hearing Brief are those documents provided to OHO by the confidential notifier, but it is clear that a number disputed his claims and his response to some of those people is instructive of his attitude now. In particular, I refer to the posts at pages 205, 207, 209 and 215.

Conclusion

  1. [39]
    The applicant’s conduct in publishing the social media posts is inconsistent with the role of health practitioners in the context of the COVID-19 pandemic and the COVID-19 vaccination program. It is inconsistent with conduct expected of health practitioners in this context is and unsatisfactory.
  2. [40]
    The applicant’s social media posts contradict the COVID-19 vaccination program and undermine the National Immunisation Campaign. The Ahpra and National Board’s position statement makes clear that they do not support statements or health advice which undermines the National Immunisation Campaign. Further, the Board’s social media guide specifically states that practitioners must make sure that comments they make on social media “do not contradict or counter public health campaigns or messaging”.
  3. [41]
    Accordingly, the applicant’s conduct in publishing the social media posts is inconsistent with the reasonable expectations of health practitioners and unsatisfactory, regardless of whether or not the applicant considers the posts to be evidence based, which the Board and the Tribunal, does not accept.
  4. [42]
    Furthermore, the applicant does not profess to hold the relevant qualifications to be assessing and publicly sharing information and materials that are critical of the safety or efficacy of the vaccination program mandated by health authorities, whether by his own evaluation or by “researching and critiquing” the commentary or analysis of others.
  5. [43]
    The applicant does not appear to have insight into the potentially detrimental impact of his conduct or with the success of important public health measures, or indeed the possibility that he might contribute to the fear and uncertainty felt within the community about the pandemic itself.
  6. [44]
    The Board’s Code of Conduct requires the applicant to “participate in efforts to promote the health of communities and meet their obligations with respect to disease prevention, including vaccination, health screening and reporting notifiable diseases”. The applicant’s conduct is inconsistent with this requirement.
  7. [45]
    In my opinion, supported by all the assessors, including the professional assessors, the material establishes a reasonable belief that the applicant’s conduct as a professional health practitioner is or may be unsatisfactory.
  8. [46]
    The conditions imposed by the Board are not onerous and are sufficient, in the opinion of the tribunal, to protect the health and safety of the public. In those circumstances, the order of the tribunal is that the tribunal confirms the decision made by the Board to take the relevant action and impose education conditions on the applicant’s registration under section 178 of the National Law.

Orders

  1. [47]
    The following findings and orders are made by the Tribunal:
    1. The Tribunal confirms the decision made by the Board on the 24th March 2022.
    2. No order as to costs.

Footnotes

[1] Health Practitioner Regulation National Law Act 2009 (Qld) sch (‘Health Practitioner Regulation National Law’), s 178(1)(a)(i) (‘National Law’).

[2] Ibid, s 178(2)(c).

[3] The posts appear to have been during 2021 and are at a number of places in the Hearing Brief including pages 19-36 and 196-214.

[4] National Law, s 178.

[5] AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401 at [26]-[28].

[6] Hearing Brief, 249.

[7] Hearing Brief, 254.

[8] Ibid, 251.

Close

Editorial Notes

  • Published Case Name:

    Price v Nursing and Midwifery Board of Australia

  • Shortened Case Name:

    Price v Nursing and Midwifery Board of Australia

  • MNC:

    [2022] QCAT 439

  • Court:

    QCAT

  • Judge(s):

    Judicial Member J Robertson

  • Date:

    01 Nov 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401
2 citations
Jump To
Cite 1 - [2019] QCAT 401
Cite 2 - [2019] QCAT 401
Wright v Nursing and Midwifery Board of Australia [2021] QCAT 153
2 citations
Jump To
Cite 1 - [2021] QCAT 153
Cite 2 - [2021] QCAT 153

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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