Can health practitioners be disciplined for sharing misinformation?
In PCC v Tepou, the Health Practitioners Disciplinary Tribunal (the Tribunal) found that a nurse engaged in professional misconduct through making inappropriate social comments about her fellow health practitioners, and through spreading COVID-19 misinformation on social media and in a radio interview. The Tribunal suspended Nurse Tepou from practice for 12 months, censured her, imposed conditions on her return to practice, and ordered her to pay costs.
Between April and June 2021, during the New Zealand Government’s rollout of the COVID-19 vaccine, Ms Tepou:
Made comments on Facebook stating that DHBs could not be trusted in relation to the COVID-19 vaccine, and describing the vaccine as a “nanotech prick”.
Circulated letter templates on Facebook and on her website that could be sent to schools by parents, grandparents or students over the age of 16, advising that the students concerned would not be receiving the COVID-19 vaccination. The letters included statements that the vaccine caused myocarditis.
Appeared in an interview on a Tokelauan radio station where she described herself as a health professional and made various misleading comments about the vaccine.
The HPDT found that the above conduct amounted to malpractice / negligence and to conduct likely to bring the profession into disrepute. Its specific findings were:
Ms Tepou’s Facebook comments about DHBs encouraged distrust of other health professionals and DHBs and were demeaning and disrespectful towards other nurses. The HPDT considered that contributing to public scepticism and mistrust of health professionals during the COVID-19 response was unacceptable behaviour amounting to professional misconduct.
Ms Tepou’s letter templates lacked balance and overstated the evidence against the vaccine, and could have had far-reaching effects on the health of the New Zealand public in the midst of a pandemic. These also amounted to professional misconduct.
In relation to her radio appearance, Ms Tepou had knowingly and deliberately used her status as a member of the Pacific Island community and a self-identified health professional to undermine the audience’s confidence in the efficacy of the COVID-19 vaccine without providing any evidence. The HPDT considered the low vaccination rates within Pacific Island communities were particularly relevant to the risk of confusion Ms Tepou’s comments could have caused.
As part of its decision, the HPDT considered the right to freedom of expression conferred under the New Zealand Bill of Rights Act 1990 (NZBORA). The NZBORA provides that rights such as freedom of expression may only be limited by law to such an extent as can be demonstrably justified in a free and democratic society. The HPDT considered that against the context of a global pandemic, regulating the spread of misinformation by health professionals to vulnerable communities was a justified limitation on Nurse Tepou’s freedom of expression.
This decision demonstrates that, despite the general right to freedom of expression, practitioners can face professional consequences for making public statements in their capacity as health professionals. Health practitioners hold a special position of trust in society, including when they provide medical information to the public. The Tribunal has indicated that spreading information which may undermine public health initiatives and / or potentially harm communities can be treated as an abuse of that trust and lead to disciplinary processes. Here, it seems that the link between the statements (misinformation about healthcare) and Ms Tepou’s role (as a healthcare provider) was close enough to justify a limit on freedom of expression. Ultimately, Tepou is a useful reminder that freedom of expression is not unbridled in the professional regulatory context.
Article written by Joesph Corbett and Tim Bain
To find out more about our Professional Disciplinary practice please contact; Stephanie Bishop, Sally Carter, Tim Bain or Richard May