As you can imagine, the MIGA Legal Services team has been extremely busy assisting our members and clients during Covid-19. We have had hundreds of enquires ranging from access to and use of PPE, telehealth and State and Territory government restrictions on procedures just to name a few. Like you, we have had to adapt to the use of video technology whilst working from home. Most Courts, Tribunals and Regulators are conducting matters on-line or by way of paper submissions/responses. MIGA has adapted to video conferencing, working remotely and in isolation quickly and efficiently but like our members’ experiences, there have been challenges.

Social media has been flooded with observations and commentary in the wake of Covid-19. Millions of people around the world have used various platforms to share their thoughts and opinions on home schooling and working during lock down and how countries are dealing with the pandemic.

Frustrations have also been vented on public forums leading to an increase in requests from members for assistance when comments have not been well received. Seemingly, innocent remarks have triggered disciplinary action from employers or investigations by the regulator when a patient, colleague or peer complains. Broad examples include urging the public not to attend A&E, publicly complaining about how their employer is not providing adequate PPE and medical opinions on the virus itself and treatment of it.

AHPRA and the Medical Board of Australia have historically taken a dim view of health professionals’ use of social media in relation to their practice. This was recently affirmed by the Victorian Civil and Administrative Tribunal in an Appeal brought by a medical practitioner who was to be suspended following 56 posts on his Facebook pages¹. The posts contained information and opinions about vaccines, chemotherapy, other medical topics and opinions about certain religious and other groups. Importantly, the decision goes into some detail regarding the doctor’s posts about treating Covid-19 with vitamin C. Although admitting to never treating a patient with Covid-19, he posted a statement on 2 March alleging that vitamin C is “very effective at killing the [corona] virus – and boosting the immune system” Despite receiving correspondence from the RACGP that effectively stated that there was no evidence to support the statement in relation to vitamin C in April 2020, the practitioner did not remove the post until he received the Board’s notice of proposed suspension (in May 2020). This fact later went to the level of the doctor’s insight and whether or not he was remorseful for posting misleading information.

When weighing up the risk this (and many other) comments posed to the public, the Tribunal members noted that “The coronavirus pandemic has increased the risk that vulnerable or unqualified persons would, out of fear or desperation, turn to “advice” from unreliable sources”.

Further the Tribunal stated “there is the obvious point to make that the practice of medicine is not limited to the physical acts involved in treating patients. The practice of medicine includes the discussions that a doctor has with his patient . . . 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 practicing medicine in accordance with the view he has expressed in those statements rather than in ways that have a proper clinical basis and are in accordance with accepted medical practice.”

Given the risk to the public, the Medical Board’s decision to suspend the doctor was upheld by the Tribunal.

Guidance for members
The Tribunal turned to two important pieces of guidance:

  1. Good Medical Practice: A Code of Conduct for Doctors in Australia
  2. Social media: How to meet your obligations under the National Law

In summarising these, the Tribunal highlighted that “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.

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”.

Conclusion
The decision has cemented the long held view that where possible, medical practitioners should be very cautious when considering the use of social media.

The Legal Services team is here to assist and guide you should you require support when considering social media in your practice or if you are the subject of a complaint, claim or disciplinary action that has arisen in this context.

¹ Ellis v Medical Board of Australia [2020] VCAT 862

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