Nursing and Midwifery Board of Australia v Harries, Pamella - [2023] QCAT 515

[2023] QCAT 515

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

JONES, Judicial Member

Assisted by:

DR A HARLEY
MS D BLOND
MR B DIXON

No OCR 285 of 2022

NURSING AND MIDWIFERY BOARD OF AUSTRALIA Applicant

HARRIES, Pamella Respondent

BRISBANE

5 DECEMBER 2023 JUDGMENT

JUDICIAL MEMBER: The findings of the Tribunal are as follows. In respect of ground 1, the Tribunal finds that the respondent has participated in conduct that amounts to professional misconduct. In respect of ground 2, for reasons which will be expressed in a moment, the Tribunal finds that the respondent has participated in conduct that amounts to unprofessional conduct. It is further ordered that the respondent be reprimanded.
This proceeding is concerned with an application by the Nursing and Midwifery Board of Australia, referred to hereafter as the applicant, seeking relief against Ms Pamella Harries, who will be referred to as the respondent. The respondent was previously a registered nurse, first registered in 1978. Since then the respondent has surrendered her registration and that occurred on the 19th of July 2023.
During the course of the proceeding, the respondent advised the Tribunal that she in fact wanted to surrender that registration at an earlier time but was informed that she was unable to do so. The Tribunal makes no finding one way or the other about that.
In response to what appears to be an anonymous caller to the Office of the Health Ombudsman to the effect that the respondent was a vocal anti-vaccination advocate, particularly in regard to the COVID virus epidemic, that organisation carried out some investigation into the conduct of the respondent.
The respondent’s so-called anti-vaxxing stance included Facebook messaging, but it should be noted at this stage that the respondent was no longer practising as a registered nurse and in fact was practising as “a herbalist” since sometime around 2005. That is consistent with information that was posted on social media by the respondent who said that she has not practised as a registered nurse since 2005 but instead worked in private practice as a herbalist. Indeed, in this regard, in her letter surrendering her registration, the respondent described herself as a:
Medical Herbalist, Bowen Therapist and Bio Resonance Practitioner
The relief sought against the respondent was that in respect of both counts there be a finding of professional misconduct and that the respondent be reprimanded. The conduct relied on by the applicant consists of two allegations. The first allegation, ground 1, alleges that, on eleven occasions between 2011 and 2021, the respondent had made false declarations that she met the Board’s recency of practice registration requirements when submitting online applications for renewal of her registration as a registered nurse for each of those years from 2011 to 2021.
That the respondent participated in that conduct has not been denied and, indeed, it is consistent with her own evidence that she has not practised as a registered nurse since 2005. In this regard, the respondent said that she maintained that registration for sentimental reasons and during the course of this proceeding added that it may have also involved a sense of loyalty and that it would also seem permitted her to assist others. By way of example given by her was to sign passport photos and things of that nature.
In respect of the second allegation, that involves the respondent participating in a number of social media posts. On the 17th of July 2021, the respondent posted the following:
On Tues the AU Gov decided that any Health Care worked [sic] who speaks out about vaccinations WILL BE DE-REGISTERED… WTAF… I was a bit concerned about this vaccine… Now Im [sic] terrified… The censorship around this issue is REALLY disturbing… I have NEVER seen so many highly creditable people throw their entire Medical careers on the ground before them, to say we need WAIT… We need to look further… There may be a better way… There may a [sic] less dangerous solution. I am NOT an antivaxer [sic] BUT I did swear an oath… FIRSTLY DO NOT HARM… The Covid vaccines are still in the stage 3 trials… YOU ARE THE STAGE 3 Trials… Often there are no problems… BUT… There ARE a disturbing amount of Horrifically Serious Side Effects... How can they decide that anyone that dies with a Covid infection is a DEATH BY COVID … BUT will not accept that the reactions that are reported … Oh No that stroke isnt [sic] from the vaccination … that was given weeks ago. The stats are NOT accurate. THEY ARE LYING TO US.... I believe IF we can gather the TRUE evidence… We may reconsider this vaccination choice…
Then, in a reply to comment made by another person on social media, the respondent posted as follows:
I literally believe I will be better off catching the virus & treating myself. Then I will have a natural immunity for at least 8-10yrs. Im [sic] happy to converse NICELY with you about WHY I think this way…
Then further:
…we should be able to pause & gather information… we cant [sic] do that if everyone is being silenced and data is being squewed [sic]
And then further:
…there is GOOD data coming in for alternative early treatments. What Im [sic] scared about is that despite being muzzeled [sic], Im [sic] seeing an increase information [sic] that suggest that in some people the neurological side effects of the vax is WORSE than long term Covid. We need to slow down & silencing the medical community is just WRONG
The respondent contended in various forms that, notwithstanding those postings, she was not herself an anti-vaxxer. That is difficult to reconcile with the nature of those posts and also, in other information, the respondent on 17 July 2021 said on social media among other things:
I originally Registered as a Nurse in 1978… However I have not worked as a Registered Nurse since 2005… I work in private practice as a Herbalist…. I do not rely on an income dependent on my AHPRA registration… Im [sic] sentimental and I just couldnt [sic] let it go (I worked so hard for it)… THAT IS THE ONLY REASON WHY I STILL HAVE MY VOICE TODAY…
In cases such as this, general deterrence looms particularly large. Personal deterrence is of little significance here. The respondent is no longer practising as a registered nurse, has no intention of re-entering that profession and it is also clear that she is both remorseful and ashamed for what she has done. The need for general deterrence warrants the finding of professional misconduct in respect of ground 1. In respect of ground 2, ordinarily the requirement for general deterrence would in many instances also warrant a finding of professional misconduct.
It ought be stressed just how seriously those practising in the health profession ought be deterred from posting messages that might discourage people who should participate in vaccination, or indeed any other medical participation, from doing so. However, in this case, there are a number of militating circumstances. First, as already referred to, the respondent is deeply remorseful for what she has done. She has insight as to the nature of her conduct and is ashamed of it. She also took swift action to delete her social media posts and she has said, and this has not been disputed in any way, that at the time she was in, to use her terms, “an emotional state”.
It is clear that these proceedings have had an enormous impact on the respondent. She says, and it can be accepted, that the impact has been such as to at least in part cause her to no longer practise as a herbalist or in any other form of that sort of practice. It is for these reasons that the Tribunal has reached the conclusions and made the orders that have already been referred to.
In the circumstances, I will make the following orders:
1.In respect of ground 1, the Tribunal finds that the respondent has participated in conduct that amounts to professional misconduct.
2.In respect of ground 2, the Tribunal finds that the respondent has participated in conduct that amounts to unprofessional conduct.
3.The respondent be reprimanded.