This appeared last week:
The perils of social media - recent Tribunal decision
25 Oct 2022
Mark Helier Solicitor - Legal Services
A recent Tribunal decision has demonstrated
the Medical Board’s desire to send a “strong and clear message” that
unacceptable online content posted by practitioners of a serious nature will
have serious consequences.
In the decision, Medical Board of Australia v Lee [2022] VCAT 667, the
Tribunal found that Dr Lee had engaged in professional misconduct resulting in
a reprimand, cancelling of his registration and disqualification from applying for
registration (totalling 54 months) which, taking account of suspension already
served, will be in December 2023.
The conduct by Dr Lee had to be extremely serious to warrant this sort of
penalty. There were two allegations of professional misconduct, one relating to
posts by Dr Lee described by the Tribunal as gruesome images and abhorrent
messages and the second relating to confidential patient information on
internet forums and social media sites.
The judgement provides significantly more detail regarding the allegations. The
posts included graphic and gory images. Dr Lee provided commentary about those
images. Intimate photographs of Dr Lee’s wife were posted without her consent.
The judgement describes the commentary as:
- Extremely misogynistic which endorsed violence against women, objectifying or humiliating women including Dr Lee’s wife;
- Xenophobic, racist, bigoted and discriminatory in relation to Muslims, Indian men, Palestinians and Singaporean women;
- Endorsing violence against women, persons with mental illnesses and physical disabilities.
In relation
to the confidentiality issues, the images contained Dr Lee at work, patients,
clinical records and his treatment of some patients.
In 2019 Dr Lee was subject to immediate action by the Board resulting in the
suspension of his registration. He had not practised from the time of the
immediate action to the Tribunal hearing, some 3 years later.
At the hearing, Dr Lee accepted the posts were ‘utterly unacceptable’ and that
his conduct in relation to the posts amounted to professional misconduct.
Professional misconduct is defined in section 5 of the National Law as:
(a) unprofessional conduct by the practitioner that amounts to conduct that is
substantially below the standard reasonably expected of a registered health
practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered
together, amounts to conduct that is substantially below the standard
reasonably expected of a registered health practitioner of an equivalent level
of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the
practice of the health practitioner’s profession or not, that is inconsistent
with the practitioner being a fit and proper person to hold registration in the
profession.
The Tribunal found that Dr Lee’s conduct fit that definition.
There were submissions on penalty – should Dr Lee have his registration
suspended or cancelled and, if so, for how long?
Dr Lee’s position was that suspension was an appropriate penalty as his conduct
was causally linked to a (previously undiagnosed) mental health condition,
Autism Spectrum Disorder (ASD). The Board’s position was that having regard to
all of the conduct, cancellation of Dr Lee’s registration was appropriate and
that his ASD did not significantly reduce his moral culpability.
The judgement sets out the Tribunal’s considerations regarding the purpose of
determinations (being caution, reprimand, fine, suspension or cancellation of
registration) and their application in this matter. Their purpose is to protect
the public with an assessment of the ongoing risk posed by the doctor and the
degree of insight shown by the practitioner. The Tribunal also has to
consider the effect of Dr Lee’s ASD on his moral culpability.
By the time of the hearing, Dr Lee had proactively engaged in treatment of his
ASD and he understood the factors that had led to the misconduct, had developed
insight and remorse and strategies to manage the ASD to avoid a repeat of his
conduct.
The Tribunal decided to cancel Dr Lee’s registration.
More here:
https://www.miga.com.au/Bulletin/perils-of-social-media-recent-Tribunal-decision
This is a pretty ugly and really quite sad but it does go to show there are real limits, and for professionals, crossing lines can have life altering and disastrous outcomes!
Think before you type seems to be a sensible rule for a long and happy life on social media I reckon!
David.
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