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This article was originally published in AMA Victoria's VICDOC, Autumn 2024.
This article was co-authored by Irene Lin, Paralegal, Melbourne.
Medical practitioners should be very careful when posting on social media to ensure that they do not post or communicate material that could be seen as offensive, or bringing the profession into disrepute, even on their personal or private accounts.
In November 2019 the Australian Health Practitioner Regulation Agency (AHPRA) issued guidelines titled ‘Social media: How to meet your obligations under the National Law’ (Social Media Guidelines). The Social Media Guidelines identify that health practitioners must comply with professional obligations as defined in the Board’s Code of Conduct, maintain professional boundaries and communicate professionally and respectfully with patients, colleagues and employers.[1] The Social Media Guidelines further note that inappropriate use of social media can result in harm to patients and to the professions.
Use of social media in one’s private life can become a relevant consideration for the Medical Board in assessing the practitioner’s fitness to hold registration, even if the online profile has no identifiable link to the person as a registered health practitioner.[2]
In Ellis v Medical Board of Australia (Review and Regulation) (Ellis), Dr Ellis faced immediate action from the Medical Board to suspend his registration for social media commentary made containing misleading medical statements, statements that could be offensive to the LGBTQI community and to the religion of Islam, as well as anti-abortion sentiments. The Victorian Civil and Administrative Tribunal (VCAT) was critical of Dr Ellis’ inappropriate use of social media to air his personal views on clinical and social issues.
VCAT said that a registered health practitioner’s comments in social media reflecting or promoting personal views about social and clinical issues may impact on someone’s sense of cultural safety or could lead to a patient or client feeling judged, intimidated or embarrassed.[3]
VCAT focused on Dr Ellis’ comments on medical issues that had no proper clinical basis and ultimately decided that he posed a serious risk to persons and upheld the Board’s decision to take immediate action by suspending his registration to protect public health or safety, despite Dr Ellis having ceased using social media. VCAT considered that even though the risk that Dr Ellis would use social media inappropriately again would be relatively low, the risk was not completely eradicated as his online conduct posed a serious risk to persons in the way Dr Ellis would practise medicine.[4]
In Fidge v Medical Board of Australia (Review and Regulation), VCAT held that a Facebook post made by Dr Fidge voicing anti-vaccination views was directly in the course of Dr Fidge’s clinical practice and hence a relevant consideration for the Medical Board.[5] VCAT stressed that Dr Fidge was identified as the principal of a medical practice on the Facebook page and the post referred to Dr Fidge’s expertise as a medical practitioner. VCAT considered that Dr Fidge was clear in his motivation to engage individuals who were vaccine hesitant in his capacity as a medical practitioner, and such conduct falls within the meaning of professional conduct within the scope of Section 178 (1)(a) of the National Law.[6] Dr Fidge was cautioned that when commenting or posting on social media where his professional status can be identified, to ensure he takes care to avoid conveying a message that can be construed by the public as contrary to established public health programs.
Racial and Religious Tolerance Act
A standard has been set in Victorian legislation that in some circumstances statements made regarding race or religion can be unlawful. The Racial and Religious Tolerance Act 2001 (Vic) makes it unlawful to incite hatred against/ serious contempt for / revulsion or sever ridicule of a person on the ground of:
- race of the person or class of persons (s 7); or
- religious belief or activity of the person or class of persons (s 8).[7]
In Chief Commissioner of Police v Police Appeals Board [2012], the Victorian Supreme Court clarified that “vilification” must involved conduct of a “quite serious nature”.[8] In Catch the Fire Ministries Inc and ors v Islamic Council of Victoria Inc and anor (2006), the court interpreted the provisions to include inchoate or preliminary conduct, whether or not the conduct has caused the kind of third party response it is calculated to encourage.[9] The effect of vilification must be assessed from the view of a reasonable member of the class of persons to whom the conduct is directed.[10] Under s 9 of the Act, the person’s motive and dominant ground for engaging in any conduct is irrelevant.[11]
Currently, there are limited precedents on the application of the Act. The leading precedent is Catch the Fire Ministries Inc and ors v Islamic Council of Victoria Inc and anor (2006) which dealt with alleged religious vilification in relation to statements by Pastors and subsequent publications by a Christian association on the religion of Islam. The Victorian Supreme Court of Appeal ultimately found contravention of the religious vilification provision and upheld the previous orders of corrective advertising and prohibition of republication of vilifying material. A contravention of the Act does not create any civil or criminal liability unless the act is considered as serious vilification.[12]
It would not be necessary for a social media post to contravene the Act for the Medical Board to take disciplinary action against a doctor. The Medical Board could initiate disciplinary action if it determined that statements or comments made on social media breached the Code of Conduct by reflecting or promoting personal views about issues that may be offensive to a group of people, or may impact on someone’s sense of cultural safety or could lead to a patient or members of the community feeling judged, intimidated or embarrassed.
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