The case of NSW Paramedic Sally-Ann John received media attention in 2021 when she posted images of herself taking part in anti-COVID lockdown or vaccination protests ((See Daily Mail https://www.dailymail.co.uk/news/article-9854987/Covid-anti-lockdown-protest-Sydney-Paramedic-Sally-Ann-John-suspended-NSW-Ambulance.html, 3 August 2021). At the time she her registration was suspended by the NSW Paramedicine Council.
In article I wrote for Response – the official journal of the Australasian College of Paramedicine – titled ‘Ways to Lose your job – Part 1’, I described this case (as well as the proceedings against John Larter) as ‘unsatisfactory’. I said:
… there are no published reasons for her suspension on either AustLII or NSW Case Law nor is there any reference to action against her on the AHPRA web site. In the absence of any published reasons, paramedics might infer, but it is impossible to know, what Ms John did that was considered contrary to professional standards or a threat to the community that warranted her suspension.
In terms of ‘learning lessons’ this situation is problematic. Without published reasons by either NCAT, a Committee, the Paramedicine Council, AHPRA or the Paramedicine Board, paramedics cannot identify what it is that either Mr Larter or Ms John are alleged to have done, how that breached the professional expectation of paramedics and why their conduct warranted immediate suspension. Without that, other paramedics cannot learn what is expected from them and what constitutes unprofessional conduct or a breach of the AHPRA Policy Statement. That is not a satisfactory position.
We have now seen decisions in both matters – with respect to John Larter see Paramedic John Larter’s appeal to NCAT – you lose some, you win some (February 9, 2023). On 13 April 2023 the NSW Civic and Administrative Tribunal (NCAT) delivered its reasons in the matter of Ms John – Health Care Complaints Commission v John  NSWCATOD 45.
In this matter there was no determination by the Tribunal with respect to Ms John’s conduct as she admitted that her conduct constituted professional misconduct.
Paramedicine is regulated by the Health Practitioner Regulation National Law. Despite the title this is not a Commonwealth law, rather it is a national law created by the process of cooperative federalism. Queensland, the lead jurisdiction, passed the Health Practitioner Regulation National Law Act 2009 (Qld). That Act contains, in Schedule 1, the Health Practitioner Regulation National Law. The law has then been adopted by, or copied into, the law of each Australian state and territory (Health Practitioner Regulation National Law (ACT) Act 2010 (ACT); Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW); Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT); Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas); Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) and Health Practitioner Regulation National Law (WA) Act 2010 (WA). The national scheme is being challenged as unconstitutional: Bay v Australian Health Practitioner Regulation Agency & Others Queensland Supreme Court file number 14178/22. It is my opinion that this challenge will not succeed, but if it does it will certainly cause a major upset in Australia’s health professions including paramedicine).
Despite the ideal of a national scheme, there are minor variations between the jurisdictions. One of the most significant is that NSW is a co-regulatory participant which means NSW has its own discipline processes including a Paramedicine Council to exercise many functions that in other states are exercised by the Paramedicine Board (including the power to take urgent action to suspend a paramedic). NSW also has its own definitions of unsatisfactory professional conduct and professional misconduct (Health Practitioner Regulation National Law (NSW) Parts 5A and 8). For this discussion however, the relevant defintiions in NSW are consistent with the National Law adopted across Australia. Relevant to this discussion are the definitions of unsatisfactory professional conduct and professional misconduct. Unsatisfactory professional conduct (s 139B) includes
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Professional misconduct (s 139E) means:
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration.
What Ms John did
The allegations (which were admitted) were on 24 July 2021 whilst NSW was subject to mandatory COVID-19 lockdowns, Ms John attended a protest rally. This was contrary to the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (NSW) that was then in force. It was also contrary to the Public Health (COVID-19 Self-Isolation) Order (No 2) 2021 (NSW) as Ms John had been identified as a COVID-19 close contact and was required to self-isolate for 14 days from 13 July 2021. Failure to comply with these orders was a criminal offence. Ms John was charged and entered a plea of guilty on 19 July 2022. ‘The Local Court made a 12-month conditional release order without recording a conviction’ ().
Apart from attending the protest, Ms John (-):
… live-streamed her participation in that rally publicly on TikTok, using an account that identified her as a paramedic.
During the livestream, the Respondent made highly offensive remarks about the police who were attending the area, shared anti-vaccination sentiments, and made abusive remarks of members of the viewing public.
The Respondent had earlier made anti-vaccination statements on Facebook.
The Health Care Complaints Commission (HCCC) made three complaints. The first was that by attending the protest, Ms John committed an offence under the Public Health Act and that (at )
… by reason of this conduct, the Respondent acted contrary to or demonstrated an unwillingness or inability to comply with a range of requirements in the Paramedicine Board of Australia’s Code of Conduct for Registered Health Practitioners (June 2018), specifically:
(a) that ‘[p]ractitioners have a responsibility to protect and promote the health of individuals and the community’, including by ‘understanding the principles of public health, including health education, health promotion, disease prevention and control and screening’ and ‘participating in efforts to promote the health of the community and being aware of obligations in disease prevention’ (clauses 1.2 and 5.4);
(b) ‘ensuring that the personal views of a practitioner do not affect the care of a patient or client adversely’ (clause 2.2(m));
(c) ‘practising in accordance with the current and accepted evidence base of the health profession, including clinical outcomes’ (clause 2.2(n));
(d) ‘facilitating the quality use of therapeutic products based on the best available evidence and the patient or client’s needs’ (clause 2.2(p));
(e) that ‘practitioners must display a standard of behaviour that warrants the trust and respect of the community’ (clause 8.1); and
(f) in relation to the practitioner’s own health, ‘being aware of the risks of selfdiagnosis and self-treatment’ and ‘understanding the principles of immunisation against communicable disease’ (clause 9.2(b) and (c)).
The second complaint related to the use of social media. The particulars were (at ):
(iv) Particulars 1 and 2 of this complaint relate to the Respondent’s abusive comments about police set out above. In circumstances where the Respondent’s TikTok account identified her as a paramedic and part of the Respondent’s role as a paramedic required her to work closely with police, those comments contravened the requirements in the Code of Conduct that practitioners:
(a) engage in effective communication, and act professionally including in their relationships with colleagues (clause 1.2);
(b) using social media appropriately (clause 3.31);
(c) behave professionally and courteously to colleagues at all times, including when using social media (clause 4.2(c)); and
(d) display a standard of behaviour that warrants the trust and respect of the community (clause 8.1).
(v) Particulars 3 and 4 of Complaint Two relate to the Respondent’s negative comments about the lockdown and COVID-19 vaccine at the rally. Those comments:
(a) contravened the requirements in clauses 1.2, 3.3(1), and 8.1 of the Code of Conduct set out above relating to appropriate communication and maintaining the trust and respect of the community;
(b) by expressing scepticism and discouraging use of COVID-19 vaccines contrary to the accepted scientific and public health position, demonstrated an unwillingness or inability to comply with clauses 2.2(m), (n), (p) and 9.2(b) and (c) of the Code of Conduct set out above, and were inconsistent with AHPRA’s position statement on COVID-19 vaccination, which stated (among other things) that:
‘[v]accination is a crucial part of the public health response to the COVID 19 pandemic’; and
‘[a]ny promotion of anti-vaccination statements or health advice which contradicts the best available scientific evidence or seeks to actively undermine the national immunisation campaign (including via social media) is not supported by National Boards and may be in breach of the codes of conduct and subject to investigation and possible regulatory action’; and
(c) in their language and subject matter, were inconsistent with AHPRA’s social media guidance, which (among other things) stated that ‘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 including ‘to take care when commenting, sharing or “liking” … content if not supported by best available scientific evidence’.
(vi) Particulars 5 and 6 of Complaint Two relate to the Respondent’s Facebook comments referred to above. These comments contravened or demonstrated an unwillingness or inability to comply with the same clauses in the Code of Conduct, AHPRA’s position statement on COVID-19 vaccination and AHPRA’s social media guidance as set out above.
Complaint three was that taken together Ms John’s conduct constituted unsatisfactory professional conduct that is her conduct was ‘of a sufficiently serious nature’ to justify suspension or cancellation of her registration.
As noted Ms John admitted the complaints so the Tribunal did not have to decide whether or conduct did or did not meet the thresholds for professional misconduct or unsatisfactory professional conduct. The Tribunal’s decision was to determine the appropriate sanction for the admitted breaches.
The Health Care Complaints Commission sought to have her registration cancelled and she would not be able to apply to become registered again for 12 months. Ms John, via her lawyers, argued that a reprimand would be sufficient ().
It should be noted that the Paramedicine Council had suspended Ms John’s registration so she had been unable to practice as a paramedic since 30 July 2021. She was also subject to disciplinary proceedings by NSW Ambulance that were still ongoing. Although she remained employed by NSW Ambulance she had been suspended initially with pay but then without pay and that situation continued.
As if often the case, the Tribunal found a middle ground between Ms John’s call for a reprimand and the HCCC’s call for de-registration. The Tribunal said (at -):
We reject the Respondent’s submission that a reprimand would be sufficient. The Respondent’s misconduct was serious. It involved a number of breaches of her obligations as a registered health practitioner. It is necessary that there be an element of both specific and general deterrence in our determination. It is also necessary that there be denunciation of her conduct.
A period of suspension as opposed to cancellation will, in our view, meet the protective objectives of the National Law.
We also accept that there have been very significant adverse consequences already endured by the Respondent as a result of her misconduct on one day in July 2021. It is clear her conduct involved an error of judgment for that isolated occasion and that the motivation for her conduct was, in part, a concern for the impact the “lockdown” was having on a family business which had already been impacted by COVID-19 spreading in the community.
Ms John’s registration as a paramedic was suspended for three months. The parties agreed to the conditions that would be imposed on her registration when she returns to practice.
Interestingly the parties agreed that Ms John should ‘post to her social media accounts a public apology for the conduct that is the subject of the complaints’. Notwithstanding that agreement the Tribunal did not make that a condition of Ms John’s registration. The Tribunal said (at ) ‘In our view, such a step is likely to draw comments and arguments in respect of vaccination or anti-vaccination on social media which will not be helpful or will be counter-productive.’
The effective conditions (set out in Schedule A to the judgment) were that Ms John is have a mentor appointed to assist in her practice, that she complete approved training in professional ethics and infection control, vaccination and public health and that she delete material relating to COVID-19 from her social media pages and comply with the AHPRA ‘Guideline on ‘Social media: How to meet your obligations under the National Law’ dated November 2019 (as amended or replaced from time to time)’.
Because the allegations were admitted, there is no judicial determination of what conduct constitutes unsatisfactory professional conduct or professional misconduct nor any analysis of the line between a practitioner’s right to express personal views and their professional obligations. Wherever that line lies, Ms John admitted she had crossed it. That was a reasonable call given, amongst other things, her public recognition as a paramedic.
The decision is still helpful as the complaints have been published so other paramedics can see how the conduct was framed and how the various Codes of Conduct are applied in the practice of one’s profession.
Of particular concern to the HCCC [(32]) was her ‘public attack on the police and encouraging resistance to officers performing their duties on the day.’ In days where violence to front line emergency workers is rightly condemned, having a paramedic urge others to resist police seems particularly egregious.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Would they be allowed to attend a BLM protest?
Not if it’s a prohibited event; they make calls on people to resist the police and make unscientific claims in support of whatever position they stand for.