I have previously reported on a medical practitioner who lost his registration for posts made on social media – see Inappropriate online comments: Professional misconduct (April 24, 2019).
Another doctor has come to grief for his posting on social media (and again I thank Bill Madden’s WordPress site for bringing this to my attention). In Ellis v Medical Board of Australia (Review and Regulation) [2020] VCAT 862 Dr Ellis was subject to immediate suspension of his registration for material he posted online. VCAT (the Victorian Civil and Administrative Tribunal) said (at [11]-[15]):
Medical practitioners and social media
Before we consider Dr Ellis’ social media commentary, we make these important points.
We are not required to consider the right to freedom of expression that all citizens enjoy. The right to freedom of expression is in any event not unlimited . Similarly, this case does not concern academic freedom. Rather, the case concerns a registered health practitioner’s particular use of social media.
Registered medical practitioners have special obligations. Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014) (the Code) includes the following statement at 1.4 – Professional values and qualities of doctors:
While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice. Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy. Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality. Doctors have a responsibility to protect and promote the health of individuals and the community. Good medical practice is patient-centred. It involves doctors understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, recognising that these cultural differences may impact on the doctor–patient relationship and on the delivery of health services. Good communication underpins every aspect of good medical practice. Professionalism embodies all the qualities described here, and includes self-awareness and self-reflection. Doctors are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients and colleagues, and on their own health and wellbeing. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession. (Emphasis added)
Guidelines issued in November 2019 entitled Social media: How to meet your obligations under the National Law (the Social Media Guidelines) note that the inappropriate use of social media can result in harm to patients and to the profession. The Social Media Guidelines further note that information stays on social media indefinitely – that it is often impossible to remove or change and it can be circulated widely, easily and rapidly. In a section about “common pitfalls” the Social Media Guidelines advise that National Boards may consider social media use in a practitioner’s private life (even where there is no identifiable link to the person as a registered health practitioner) if it raises concern about the practitioner’s fitness to hold registration. There is this warning: “While you may think you are engaging in social media in a private capacity because you do not state you are a registered practitioner, it is relatively easy and simply for anyone to check your status through the register, or make connections using available pieces of information”.
The Social Media Guidelines give examples of when social media activity could trigger someone making a notification about a registered practitioner:
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 responsibilities. Practitioners need to take care when commenting, sharing or ‘liking’ such content if not supported by best available scientific evidence.
and –
Cultural awareness, safety and practitioner and patient beliefs – social and clinical
As a registered health practitioner, your views on clinical issues are influential. Comments in social media that reflect or promote personal views about social and clinical issues might impact on someone’s sense of cultural safety or could lead to a patient/client feeling judged, intimidated or embarrassed.
On his various social media accounts, Dr Ellis made posts that were classified as ‘medical’ or ‘social’ statements. At [21] the Tribunal said:
In the notice of proposed immediate action, AHPRA described the 56 posts. It described posts 1-38 as commentary expressing and encouraging views regarding vaccination, chemotherapy, and treatment for COVID-19 and other health topics that have no proper clinical basis and/or are contrary to accepted medical practice and/or are otherwise untrue or misleading . It described posts 39-45 as statements that are denigrating and demeaning to the LGBTQI community. It described posts 46-48 as “anti-abortion sentiments”. It described posts 49-56 as denigrating and/or demeaning and/or broadly critical of the religion of Islam and that specifically call for the end to migration to Australia by Muslims.
In considering whether or not to confirm the decision to immediately suspend Dr Ellis’ registration, VCAT said (at [81]-[82]):
In considering whether we reasonably believe that because of his conduct Dr Ellis poses a serious risk to persons, we focus on the Medical Statements. On the basis of the evidence we have referred to, we have a reasonable belief as to the following matters in particular. Dr Ellis has published material – about vaccines, chemotherapy, and vitamin C and COVID-19 – that has no proper clinical basis or that is contrary to accepted medical practice or that is otherwise untrue or misleading. He has publicly disparaged medical practitioners, including psychiatrists, the hospital system and pharmaceuticals. Dr Ellis’ commentary has had at least the potential to deter members of the public from obtaining vaccination for themselves or their children, or from having chemotherapy; to encourage them to rely on unproven protocols for the prevention or treatment of COVID-19; and to undermine their confidence in doctors, hospitals and pharmaceuticals. There were evidently thousands of persons who (wherever they were located) accessed the social media commentary. A proportion of them knew that the commentary was by a registered medical practitioner. Members of the public include vulnerable persons or persons who at least lack the qualifications necessary to evaluate the Medical Statements properly and make safe decisions about their health care.
The coronavirus pandemic has increased the risk that vulnerable or unqualified persons would, out of fear or desperation, turn to “advice” from unreliable sources.
And (at [92]):
In summary, expressing the matter in terms similar to those used by Horneman-Wren J in Oglesby, we have a reasonable belief that, because of his conduct, Dr Ellis poses a serious risk to persons. We consider that there is a real possibility that he will engage in conduct that could be harmful to persons – whether by publishing (in one form or another) statements that are the same as or similar to the Medical Statements we have been considering; or by practising medicine in accordance with the views he has expressed in those statements rather than in ways that have a proper clinical basis and are in accordance with accepted medical practice. The possibility of Dr Ellis acting in that way is not remote or fanciful, and the possible harm is not trivial.
On the question of whether immediate suspension was required, the Tribunal said (at [109]-[112]):
The Code and the Social Media Guidelines acknowledge that doctors have their own personal beliefs and values. The Code and the Social Media Guidelines nevertheless make clear what the problems associated with Dr Ellis’ social media commentary are. The Code provides that doctors are required to display qualities such as integrity, truthfulness and compassion. Doctors have the responsibility to protect and promote the health of individuals and the community. Doctors must be culturally aware and respectful of the beliefs and cultures of others. The Social Media Guidelines require that doctors ensure that any comments they make on social media – whether by commenting, sharing or “liking” – are consistent with the codes, standards and guidelines of the profession and do not contradict or counter public health campaigns or messaging, lest they give legitimacy to false health-related information and breach their professional responsibilities. The Social Media Guidelines further advise that social media comments that reflect or promote personal views about social and clinical issues might impact on someone’s sense of cultural safety or could lead to a patient feeling judged, intimidated or embarrassed.
By making the Medical Statements Dr Ellis has failed to display integrity and truthfulness and he has failed to protect and promote the health of individuals and the community. He has contradicted or countered public health campaigns or messaging and so given legitimacy to false health-related information. By making the Social Statements Dr Ellis has failed to display compassion. Further, by making the Social Statements Dr Ellis has not been respectful of the beliefs and cultures of others. Dr Ellis’ Social Statements have had the capacity to impact on persons’ sense of cultural safety or to lead to patients feeling judged, intimidated or embarrassed.
We re-state that this case does not involve consideration of the general right to freedom of expression, or academic freedom. Counsel for Dr Ellis made a submission to the effect that today’s “heretics” are tomorrow’s “pioneers” and that, while he was not describing Dr Ellis as a pioneer, he was submitting that to go so far as to suspend Dr Ellis’ registration would have a “chilling effect” on doctors who had an interest in “advancing medicine”. Counsel submitted that it would be dangerous to suspend a doctor for expressing “fringe” views because to do so may deter other doctors from engaging in debate. Counsel further submitted that Dr Ellis’ “sin” was to publish his views via the “wrong” medium – where debate and discussion can be intemperate – and that, on reflection, Dr Ellis readily admitted that.
We do not accept those submissions. Doctors are free to make contributions towards the advancement of medicine. Ordinarily, they do so through appropriate discourse within the professional community. In this context, there is an obvious difference between publication via social media and, say, publication in medical journals. But there is a broader point. Dissemination of material by a registered medical practitioner to the general public that is disparaging, denigrating and demeaning, or that otherwise has the capacity to cause harm to the community in the ways we have identified, is expression of a different kind altogether. To take lawful, appropriate measures against the kind of expression that Dr Ellis has engaged in cannot reasonably be claimed to deter doctors from making contributions towards the advancement of medicine. The Code and Social Media Guidelines make clear where the lines are drawn.
And (at [116]):
… In Kok, VCAT expressed concerns about whether the community would accept that any medical practitioner could switch, as though they were a light, from airing disrespectful views online to providing respectful and appropriate treatment for those who fall within a class they denigrate online: at [88]. Counsel for Dr Ellis challenged this notion by referring to Dr Ellis’ many positive character references, and by remarking that people can be chameleons. Counsel for the Board acknowledged that Dr Ellis may ultimately have an answer to the concern, but he highlighted, correctly in our view, that the question is whether we have a reasonable belief that immediate action should be taken. We emphasise that the concerns that we have are not only about the public’s reaction to the Social Statements but also the public’s reaction to the Medical Statements. We express our reasonable belief that the public would legitimately have grave concerns that Dr Ellis’ published views on both medical and social topics would influence his practice of medicine.
Dr Ellis claimed that his views did not affect his practice but the Tribunal was not convinced. At [88] they said:
… we can and we do have a reasonable belief that because of Dr Ellis’ conduct in expressing the particular views on social media (in the manner he has, and for the period of time that he has) he poses a risk to patients in his practice. The reasonable belief involves the straightforward proposition that people are more likely to act according to their views and opinions than contrary to them. In saying that, we acknowledge that health practitioners should generally be able to give priority to accepted medical practice over any conflicting personal views they may hold. But in Dr Ellis’ case, we are considering a practitioner who has repeatedly published emphatic, and often extreme, views. We are conscious that Dr Ellis strongly maintains that when he sees patients, he gives priority to accepted medical practice. The character references provide some support for that. We emphasise, however, that we are not weighing probabilities. We are considering our reasonable belief.
VCAT confirmed the decision of the Medical Board to take immediate action to suspend Dr Ellis’ registration pending final resolution of the allgations against him.
Discussion
Registered health practitioners, including paramedics, are bound by their ethical codes and those of their registration board including social media codes (for paramedics, see https://www.paramedicineboard.gov.au/Professional-standards/Codes-guidelines-and-policies/Social-media-guidance.aspx).
We are all entitled to our own views, but we are bound by professional codes and law. The interplay may be shown by the diagram below:
In an ideal world the three circles would overlap completely, but that is unlikely if not impossible. There are no-doubt things that some think are good and proper that a professional code or the law prohibits whilst there are others that some would think are wrong or improper that a professional code or law allows.
A paramedic with a firm belief in the healing power of crystals may believe that passing a crystal over a person with abdominal pain is appropriate treatment, but their colleagues and the law would probably assess that as inappropriate care. Regardless of their own committed belief, when practising as a paramedic they have to demonstrate that skill expected of a reasonable paramedic (see High Court overturns finding of negligence against Queensland paramedic (August 13, 2020)), not a crystal healer. By joining a profession, you become bound to practice within the bounds and norms of that profession which may require you to put aside your own personal views. If you cannot manage that conflict you have to consider whether you can remain in the profession.
Conclusion
Although this case was about a medical practitioner the warning applies to all registered health professionals. Membership of a profession may require putting aside personal views and beliefs to practice within the accepted norms of the profession.
Australian Emergency Law 
Excellent analysis by VCAT. I believe Michael Eburn’s conclusion can be applied to ANY profession, not just the health profession.
This is an interesting read – thank you.
I think the title of the post is is misleading though. The practitioner attracted criticism for sharing of nonsense, ie: “ Dr Ellis has published material – about vaccines, chemotherapy, and vitamin C and COVID-19 – that has no proper clinical basis or that is contrary to accepted medical practice or that is otherwise untrue or misleading. “
Perhaps instead of calling the post “The dangers of social media for registered health professionals” it should be called “The dangers of sharing bullshit for registered health professionals“
Good point; it’s not the use of social media that was the issue but the content. The outcome we can expect would be the same if he produced pamphlets, spoke from a soap-box or took out a paid ad, it’s the message not the media that’s the issue. Title changed. Thank you
That’s a terrific response. Thanks! 🙂
Further to this post another health professional has come to grief for spreading their views on COVID-19 and vaccines. Bill Madden’s wordpress reports on
“… a UK fitness to practice committee finding in relation to Kay Allison Shemirani (available at https://www.nmc.org.uk/globalassets/sitedocuments/ftpoutcomes/2021/may-2021/reasons-shemirani-ftpcsm-76998-20210528.pdf).
The case against Nurse S arose from statments in relation to Covid 19 on social media and at public events. It was said that those statements promoted health advice contrary to official health advice and encouraged members of the public to distrust or disregard such advice. She was a leading activist against vaccines and the existence of Covid 19. Her social media accounts with Facebook, Twitter, YouTube and Instagram had since been blocked by the respective organisations.
Some of the statements by Nurse S appear to have been quite extreme – such as her comparison of nurses in the UK today with healthcare professionals who cooperated in the Nazi extermination and euthanasia programmes of the 1930s and 1940s and complicit in geocide.
Perhaps unsurprisingly the Panel determined that Mrs Shemirani’s conduct was sufficiently serious to justify the imposition of an interim suspension order, until a striking-off order takes effect.”
The Panel did say:
“It is accepted that the Registrant is personally entitled to those views however
by seeking to promote them the Registrant has encouraged people to act in a
way which places them and others at risk of serious harm.”
One has to at least give her credit for putting her money where her mouth is. If she genuinely believes the claims she was making one can make the argument that it was appropriate and ethical for her to draw attention to what she saw as inappropriate behaviour in the medical and nursing profession – the sort of conduct we value whistleblowers for. As a nurse she clearly put what she saw as the public and patient’s interests above her own personal interest. That’s the problem with moral codes, lots of people who behave in what is a moral way – in a way that is selfless, brave, and advancing what they see as a greater good ahead of their own interest – in fact do very bad things. Their moral compass is right, but the beliefs that drive them are misguided.