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  4. Trakosas v Nursing and Midwifery Board of Australia - [2023] QCAT 432

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Trakosas v Nursing and Midwifery Board of Australia[2023] QCAT 432

Trakosas v Nursing and Midwifery Board of Australia[2023] QCAT 432

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Trakosas v Nursing and Midwifery Board of Australia [2023] QCAT 432

PARTIES:

Melainie Trakosas

(applicant)

v

Nursing and Midwifery Board of Australia

(respondent)

APPLICATION NO/S:

OCR139-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 November 2023

HEARING DATE:

14 July 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms F Banwell, Nurse Panel Member

Ms H Barker, Nurse Panel Member

Mr P Murdoch, Public Panel Member

ORDERS:

  1. The Tribunal confirms the reasonable belief as expressed by the Board.
  2. Amend the schedule of conditions in accordance with annexure A to these orders.

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 21 April 2023 pursuant to ss 178(1)(a)(i) and (2)(a) of the National Law – where the applicant expressed strong views during a protest related to the pandemic and the vaccination response – where the Board decided that the applicant’s conduct is or may be unsatisfactory and imposed conditions – whether the conditions imposed were not reasonable and/or onerous and should be removed

Health Practitioner Regulation National Law (Queensland) ss 3A, 178, 225, 226

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:

G McGuire, instructed by Kristopher Jahnke, Solicitor

Respondent:

L Marshall, instructed by MinterEllison

REASONS FOR DECISION

  1. [1]
    The applicant is a highly trained registered nurse with many years of experience. As of December 2021, she had worked for many years in the Stroke and Neurology Ward at the Sunshine Coast University Hospital (SCUH).
  2. [2]
    On 21 April 2023, the Board formed a reasonable belief pursuant to section 178(1)(a)(i) of the Health Practitioner Regulation National Law (Qld) (“National Law”) that the way in which the applicant practiced her profession was unsatisfactory. The Board then decided to take action pursuant to section 178(2)(a) of the National Law by cautioning the applicant and imposing conditions on her registration.[1] The decision was communicated to her lawyers on 5 May 2023, and on 2 June, her lawyers filed an application to review the decision of the Board.
  3. [3]
    The application was set down for hearing on 14 July. Initially, I was informed that some sort of stay action by the applicant was proposed but before the hearing, the Tribunal was advised that the parties wished to have the substantive application determined on the merits.
  4. [4]
    As the record of proceedings on that day will show, Mr Maguire of counsel for the applicant appeared, and on my inquiry, indicated that his client would not be challenging the Board’s reasonable belief; however, his primary submission was that the conditions were not reasonable and/or onerous and should be removed. Counsel for the Board, Ms Marshall, informed the Tribunal that her client maintained that the conditions were a necessary and appropriate response to the applicant’s conduct by reference to Wright v Nursing and Midwifery Board of Australia[2].
  5. [5]
    Mr Maguire’s concession that the Board’s reasonable belief was not challenged, which I think was an appropriate concession, obviates the need for the Tribunal to determine afresh its belief in accordance with AMS v Medical Radiation Practice Board of Australia (No.2)[3].
  6. [6]
    The conduct the subject of the Board’s decision under review, concerned actions taken by the applicant in public forums and on social media concerning what are her beliefs about the necessity, safety and utility of the Government response to the COVID-19 pandemic. Essentially, she holds views that the vaccination programme was not evidence based and was dangerous to public health and safety.
  7. [7]
    As a result of what she says she observed in her workplace at SCUH, she refused to be vaccinated and, as a result, she was stood down from her Queensland Health position and she has not returned to work in any hospital setting.
  8. [8]
    The matters of concern that ultimately lead to Ahpra and the Board becoming involved relate to the expression of her personal beliefs about the vaccination programme in a public forum and on social media which was contrary to various Codes and Guides promulgated by Ahpra and the Board.
  9. [9]
    She participated in a number of conversations with a former Queensland politician in which she stated her beliefs, and these conversations were recorded and posted on social media. She started a group called Queensland Nurses of Choice, made up of a group of nurses who, like her, had been stood down from their jobs because they were against mandated vaccination.
  10. [10]
    In November 2021, she spoke at a public rally on the Sunshine Coast on behalf of the group, and her address was recorded and published on social media.
  11. [11]
    In all her public statements, the applicant identifies herself as a nurse or is so described by others, and at the rally she was wearing a nurse’s uniform. Given her concession, it is not necessary to enumerate all the things she said on these various occasions. It is sufficient to note that the many opinions she expressed were contrary to provisions in the Code of Conduct for Nurses, particularly the need for nurses to maintain a separation between personal views and opinions, and professional obligations of a registered health practitioner. Her conduct which is admitted, is contrary to the Board’s position statement on Nurses and Midwives and Vaccination[4] the Ahpra and National Boards Position Statement on Registered health practitioners and students and COVID-19[5], and the Social Media Guide[6].
  12. [12]
    The importance of instruments such as these is demonstrated by section 41 of the National Law, which renders such instruments as admissible evidence in proceedings such as this application as to what constitutes appropriate professional conduct or practice for the health profession.[7] They are also based on the best available scientific evidence; in this case, relating to the safety and efficacy of the vaccination programme as the central plank of the response to the pandemic. The applicant is entitled to hold the views she has, but by expressing those views publicly as she did, she contravened many provisions in these instruments.
  13. [13]
    It is not alleged that the applicant has expressed her views about the COVID-19 response in any public forum or on social media since the involvement of Ahpra. As noted above, the focus at the hearing was on the conditions. The Board contends that the conditions are not onerous and are an appropriate response in the circumstances. The applicant argues that the caution is sufficient and that the conditions are not a reasonable response to any identified risk and/or are onerous.
  14. [14]
    Once the Board took action as it did, the conditions were published on the National Register as is required by section 225(k)[8]. The Board has a discretion to decide that the conditions imposed not be recorded on the National Register in accordance with section 226(1) of the National Law.[9]
  15. [15]
    At the time of publication of the conditions imposed as a result of the Board’s decision under review, the applicant was working as an agency nurse for Serco Citizens Services. By letter dated 11 May 2023, she was advised that Serco had a policy of not employing anyone with “encumbrances on their registration”, as a result of which she would no longer be offered further casual shifts until those encumbrances were lifted. She informed me that she was now working as a casual outside her profession and earning substantially less than she had been as an agency nurse.
  16. [16]
    As the record will reveal, I expressed concern to the Board’s counsel as to how the conditions had been drafted. In her submission (at [52]), she notes that the conditions imposed on the applicant require (her) to undertake 4 hours of education and attend a minimum of 4 hours of mentoring over a 6-month period. That can be accepted as a fair summary of what her client decided however, to achieve that apparently simple purpose, the conditions are 15 in number and cover 3 pages of text. They are expressed in turgid, technical and confusing language, and could never be described as being in plain English.
  17. [17]
    It is surely not beyond the skill of Ahpra and the Boards to draft conditions in clear precise and plain English terms to avoid confusion, and the possible interpretation of any but the most astute and careful reader, of much more extensive and wide-ranging conditions or “encumbrances” than is intended. These types of conditions are commonly imposed, and it is perhaps time for all regulators of the health profession to revisit the terminology used.
  18. [18]
    In Wright[10], his Honour Judge Allen KC, after referring to the need for the Tribunal to decide a matter such as this afresh, putting itself in the shoes of the Board, and taking into account all matters before the Board and the Tribunal, referred to section 3A(c) of the National Law, which states that restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
  19. [19]
    It is clear from all the material before the Tribunal that the applicant still holds the views she expressed publicly, but it is also clear that she recognizes the need to comply with the professional and ethical obligations set down in the various Codes and other instruments referred to earlier, and as noted above, there is no evidence that she has behaved unprofessionally since the regulators got involved.
  20. [20]
    As at the date of the hearing, she could not be employed by Queensland Health if she remained unvaccinated. Her position is adequately demonstrated by the many submissions made on her behalf by her lawyers since January 2022. I suspect that the many rhetorical flourishes (for example in Mr Maguire’s hearing submission) are more the work of her lawyers than her, but my conclusions are borne out by her own words at a case conference convened in December 2022 between Ahpra, her lawyers and herself.
  21. [21]
    This does not mean that she presents now as any risk to public health and safety. She has paid a heavy price for her actions, including the regrettable loss of her agency work as a result of publication of the conditions on the National Register. I am satisfied that the applicant has learnt a harsh lesson as a result of her actions, and that she is highly unlikely to ever use her position as a nurse to publicly promulgate views that run counter to best science as determined by the Board and Ahpra.
  22. [22]
    I formed the view at the hearing that the education condition was reasonable, provided it was clear (as it was not in the Board’s version) that online programmes could be appropriate, provided that these included a social media component.
  23. [23]
    In my view, the mentoring conditions lack utility, are not directed at any identified risk, and will add nothing to public safety in the case of this applicant. I regard the need for a “reflective report” as a component of the education condition as suffering from the same problems.
  24. [24]
    The applicant has already identified a provider, hence the change to the education conditions to provide that Red-e Pty Ltd be accepted as a suitable provider with a social media component.
  25. [25]
    It is in the public interest that a nurse with the applicant’s experience be re-employed in the sector as soon as possible. It is the Tribunal’s hope that, once the applicant has performed the education hours, the Board will exercise its discretion to remove the conditions from the National Register.

Orders

  1. The Tribunal confirms the reasonable belief as expressed by the Board.
  2. Amend the schedule of conditions in accordance with annexure A to these orders.

Annexure A

Amended Schedule of Conditions

Conditions

Undertake education

  1. The Practitioner must undertake and successfully complete a program of education, approved by the Nursing and Midwifery Board of Australia and including a reflective practice report, in relation to their her understanding of Principle 7.2 of the Code of Conduct for Nurses and Social Media - how to meet your obligations under the National Law.
  2. Within six weeks of the notice of the imposition of these conditions, the Practitioner must make a nomination to undertake either one on one education or a formal education course (including on-line courses) (the education) as follows:

Formal education

On the approved form (HPN24), nominate for approval by the Board an education course, assessment or program (the education) addressing the topics required. The Practitioner must ensure the nomination includes a copy of the curriculum of the education.

One on one education

On the approved form (HPN11):

  1. nominate a person(s) to be approved by the Board to act as educator, and
  2. provide acknowledgement that Ahpra will obtain a report from the approved educator at the conclusion of the education.

It is acknowledged that the Red-e Pty Ltd learning module advised by the practitioner to the Board is acceptable to Ahpra provided that it is supplemented by a social media component.

The Practitioner must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and by an education plan outlining the form the education will take and how the topics of the education will be addressed.

  1. The education should consist of a minimum number of four hours completed over a six-month period.
  2. The Practitioner must provide evidence to Ahpra of the successful completion of the education within six weeks of the notice of the Board's approval of the education.
  3. Within six weeks of the completion of the education, the Practitioner must provide to Ahpra a reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice. Omit.
  4. Within 21 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the practitioner’s registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:
  1. within seven days of the commencement of practice at each subsequent place of practice, and
  2. within seven days of each and every notice of any subsequent alteration of these conditions. Omit.
  1. All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

Attend for mentoring

  1. The Practitioner must be mentored by another registered health practitioner in relation to Principle 7.2 of the Code of Conduct for Nurses, and social media - how to meet your obligations under the National Law. Omit.

For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

  1. The mentoring must comprise a minimum of 4 sessions with each session being of 1 hour duration occurring over a 6-month period. Omit.
  2. Within twenty-one (21) days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor.

The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person. Omit.

  1. Within twenty-one (21) days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HP 16), acknowledgement that Ahpra may seek reports from the approved mentor on any or all of the following occasions:
  1. every two (2) months
  2. at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring
  3. whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner’s conduct or professional performance, and
  4. when otherwise requested by Ahpra. Omit.
  1. In the event an approved mentor is no longer willing or able to provide the mentoring required the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the Practitioner within 21 days of becoming aware of the termination of the mentoring relationship. Omit.
  2. Within twenty-one (21) days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practice. Omit.
  3. Within 21 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the practitioner’s registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:
  1. within seven days of the commencement of practice at each subsequent place of practice, and
  2. within seven days of each and every notice of any subsequent alteration of these conditions. Omit.
  1. All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

Text on public register

As above

Review period

12 months

Footnotes

[1] Health Practitioner Regulation National Law (Queensland) (“National Law”) s 178(2)(a).

[2]  [2021] QCAT 153, [35].

[3]  [2019] QCAT 401.

[4]  Published October 2016.

[5]  Published 9 March 2021.

[6]  Published November 2019.

[7] National Law (n 1), s 41.

[8] National Law (n 1), s 225(k).

[9] National Law (n 1), s 226(1).

[10] Wright (n 2), [7].

Close

Editorial Notes

  • Published Case Name:

    Trakosas v Nursing and Midwifery Board of Australia

  • Shortened Case Name:

    Trakosas v Nursing and Midwifery Board of Australia

  • MNC:

    [2023] QCAT 432

  • Court:

    QCAT

  • Judge(s):

    Judicial Member J Robertson

  • Date:

    17 Nov 2023

Appeal Status

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

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