Turner v Professional Conduct Committee of the Nursing Council of New Zealand
[2025] NZHC 134
•12 February 2025
IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE
CIV-2024-435-8
[2025] NZHC 134
IN THE MATTER of an appeal pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003 BETWEEN
AMANDA JEAN TURNER
Appellant
AND
PROFESSIONAL CONDUCT
COMMITTEE of the NURSING COUNCIL OF NEW ZEALAND
Respondent
Hearing: 25 September 2024 Appearances:
I C Bassett for Appellant
M F McClelland KC and C Taylor for Respondent
Judgment:
12 February 2025
JUDGMENT OF BOLDT J
Introduction
[1] The appellant, Amanda Turner, is a registered nurse. Before her dismissal in April 2021 she had been employed by the Wairarapa District Health Board (the DHB) for six years as a palliative care nurse.
[2] While her performance as a nurse has never caused any complaint, in March 2024 the New Zealand Health Practitioners Disciplinary Tribunal (the
TURNER v NURSING COUNCIL OF NEW ZEALAND [2025] NZHC 134 [12 February 2025]
Tribunal) found her guilty of professional misconduct.1 The charge arose because of a series of Facebook posts Ms Turner made in 2020 and 2021.
[3] The posts fell into two categories. The first comprised 14 statements about Muslims, refugees, ethnic minorities and gender diverse people, while the second consisted of five posts about the Government’s response to the COVID-19 virus, and the (then) newly-developed vaccine. There is no dispute Ms Turner made the 19 posts.
[4] The Tribunal concluded that each set of posts was likely to bring discredit to the nursing profession. It also concluded they were sufficiently serious to warrant disciplinary sanction.2 In July 2024 the Tribunal suspended Ms Turner’s registration for nine months, censured her and ordered her to complete two courses, one on cultural competency and tolerance, and the other on gender affirming care.3 It ordered her to engage with a mentor for twelve months to discuss the issues the courses raised, and the way registered nurses demonstrate professionalism.4
[5] Ms Turner appeals the Tribunal’s finding of professional misconduct. This appeal is not concerned with penalty; Ms Turner has indicated she will challenge her suspension and the other sanctions separately if the present appeal is dismissed.
[6] Ms Turner has sought to characterise the present appeal as one which engages her right to freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990. She also contended her posts, initially visible only to her 86 Facebook friends, were properly regarded as private communications. She submitted, in effect, that as long as she performs competently and professionally as a nurse, her personal views, which she attributes to deeply-held religious beliefs, are not the Nursing Council’s concern.
1 Professional Conduct Committee v Turner HPDT 1381/Nur22/557P, 27 March 2024 [Decision under appeal].
2 At [132]–[136].
3 Professional Conduct Committee v Turner HPDT 1408/Nur22/557P, 15 July 2024 [Penalty Decision] at [5]–[7].
4 At [6].
Background
[7]Ms Turner was charged with professional misconduct under ss 100(1)(a) and
(b) of the Health Practitioner Competence Assurance Act 2003 (the Act). The Tribunal found her conduct satisfied the requirements of s 100(1)(b), which provides a practitioner may be found guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, “has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred”.5
[8] The first set of posts can generically be described as Ms Turner’s “offensive” posts. The Professional Conduct Committee (the PCC), which prosecuted the charge, alleged those posts contained “offensive and/or inappropriate comments and/or comments which were derogatory to minority ethnic and/or religious groups and/or gender diverse people”.
[9] The second set of posts can collectively be described as Ms Turner’s “Covid” posts. The PCC alleged these posts “undermined and/or potentially undermined and/or was intended to undermine the COVID-19 vaccination rollout implemented by the Ministry of Health, and/or communicated offensive and/or inappropriate rhetoric and information and/or misinformation related to the COVID-19 vaccine, for the purpose of discouraging vaccination against COVID-19”.
[10] Much of the factual background was canvassed in Ms Turner’s unsuccessful challenge to her dismissal in the employment jurisdiction.6 In May 2024 the Court of Appeal declined Ms Turner’s application to bring a further appeal in that proceeding.7 It summarised the immediate background as follows:
[6] In March 2021 the DHB became aware that Ms Turner had been posting content on her personal Facebook page complaining that the COVID-19 vaccine was unsafe. That came to the attention of the DHB after an associate charge nurse, who was visiting an aged residential care facility in South Wairarapa, was advised by one of the nurse managers at the facility that
5 Decision under appeal, above n 1, at [127]–[136].
6 Respectively Turner v Wairarapa District Health Board [2022] NZERA 259 [Employment Relations Authority decision] and Turner v Te Whatu Ora – Health New Zealand [2023] NZEmpC 158, (2023) 19 NZELR 974 [Employment Court decision].
7 Turner v Te Whatu Ora [2024] NZCA 203 [Court of Appeal decision] at [36].
Ms Turner had been posting anti-vaccine information on Facebook. Ms Turner was a well-respected nurse looked up to by other staff members, and concerns were expressed that the posts had caused staff at the care facility to question whether they should be vaccinated against COVID-19. The charge nurse raised the issue with a manager at the DHB. In response to an enquiry, a different nurse provided the DHB with copies of various Facebook posts made by Ms Turner.
[11] After it was alerted to concerns about Ms Turner’s online activity, the DHB asked one of Ms Turner’s Facebook friends, a fellow nurse named Ms R, if she would supply it with copies of Ms Turner’s posts.8 She willingly did so, taking screenshots which she then passed to the DHB.
[12] At the material time, Ms Turner had 86 Facebook friends. Her privacy settings ensured her comments and posts would, in the first instance at least, be seen only by her friends. Her settings also ensured that if one of Ms Turner’s friends shared a post on which she had commented, the original post would be shared, but Ms Turner’s comment would not. Ms Turner said she thought, as a result, that her comments would be seen only by her family and friends and could not be disseminated more widely. It was common ground that it was possible for one of Ms Turner’s friends to take a screenshot of her comments and share that; Ms Turner acknowledged she had shared comments using that method herself. The Tribunal recorded it was common ground Ms Turner’s 86 Facebook friends could see her posts.
[13] Ms Turner held, and continues to hold, strong personal views about a number of social, religious and political issues. In cross-examination she vigorously defended both her right to express her opinions, and the opinions themselves.
[14] Ms Turner’s strongly held personal beliefs did not affect her practice as a registered nurse in the decades prior to 2020. On behalf of Ms Turner, Mr Bassett submitted she had “23 years of compartmentalising”. Before 2020, Ms Turner kept her opinions to herself, but around the middle of that year she began sharing her views.
8 The Tribunal made an order suppressing the name of the staff member who supplied the Facebook posts to the DHB.
[15] The 14 posts in the first category — those the PCC contended were offensive, inappropriate and/or derogatory — were as follows:9
[1.1] On 20 July 2020, Ms Turner shared a Stuff.co.nz article titled “Police called
to calm tensions at Christchurch refugee event” and commented:
“I know why don’t we just send you all back to where to came from! I for one are sick of you lot wasting my tax dollars!” [sic]
[1.2] On 24 July 2020, Ms Turner shared a USA Today article titled “Fact check: [United States member of the House of Representatives] Ilhan Omar was not photographed in an al-Qaida training…” and commented:
“Still can’t stand the women and I’m sure she’s guilty of other things, she certainly isn’t faithful to the country that took her in as a child, schooled her only for her to bite the hand that’s feed her” [sic]
[1.3] On 14 September 2020, Ms Turner shared a MSNBC article titled “Rep. Ilhan Omar: ‘The majority of people in Minneapolis don’t trust . . .” and commented:
“Why are you two losers even in America? Go back to your place of birth if you’re both so dissatisfied with the United States of America!”[sic]
[1.4] On 28 October 2020, Ms Turner shared an Islamic State Watch article titled
“Newsroom: a case against teaching Islam in schools” and commented:
“This is why allowing Islam into our education system cannot work” [sic]
[1.5] On 29 October 2020, Ms Turner shared a photo of [a[ Muslim man from a news article and commented:
“This [clown face emoji] whats freedom of speech taken from kiwis! He is not a nzlder and belongs to an ideology that is responsible for terrorism around the world. This man also got to make his demands known on our national news! So he gets freedom of speech but we don’t [confused-face emoji] oh and all the while our beloved PM stood by and listened!” [sic]
[1.6] On 3 November 2020, Ms Turner posted a meme of a Muslim man with the text “Thank you for allowing me into your country. Now we need to talk about the things that have to change around here to accommodate my beliefs” and commented:
“This is what this government is allowing in NZ” [sic]
[1.7] Also on 3 November 2020, Ms Turner shared a Radio New Zealand article titled “Charity for Christchurch mosque victims accused of lack of transparency” and commented:
“Whatever you lot have been dodgy from the start, your in NZ and you will
be caught if you’re being fraudulent!” [sic]
9 Decision under appeal, above n 1.
[1.8] On 18 November 2020, Ms Turner shared a Facebook post that said “Take note: on the face of it an apparently unnocuous notice that KFC outlets in New Zealand have not received halal certification” [sic] and commented:
“Hello! Muslims, this is NZLAND! and we don’t eat halal killed meat, if this bothers you, go somewhere it doesn’t bother you!” [sic]
[1.9] On 17 January 2021, Ms Turner shared a RNZ article titled “Covid-19 update: 10 new imported cases in past two days” and commented:
“Stop bringing in immigrants!”
[1.10] On 30 January 2021, Ms Turner posted on her Facebook page:
“I like the way they say, New Zealand ally ‘Australia’, should show RESPECT to China”
Who are they talking about? I don’t think Australia should show CCP any respect! As a NEW ZEALANDER I don’t respect China, I personally think this communist government has sold us all into communism! This is what I think of China and this Government” [sic]
[1.11] On 17 February 2021, Ms Turner shared a NZ Herald article titled “Isis bride grew up in Australia — now they’re sending her to New Zealand” and commented:
“Get a second pet Jacinda and stop rescuing loosers that will one day bite the hand that feeds them!” [sic]
[1.12] On 11 March 2021, Ms Turner shared a post relating to Islam which contained a photo of a Muslim man and the text “Westerners need to accept the fact that Islam will dominate all land it touches. The holy Quran teaches us that where we put our feet, we shall rule” and commented:
“This is why we don’t need muslimes pushing their agenda in our schools!” [sic]10
[1.13] Also on 11 March 2021, Ms Turner shared a Stuff.co.nz article titled “Non-binary renter has to ‘straightwash’ themselves to appeal to. . .” and commented:
“Thats because SHE knows it’s not normal” [sic]
[1.14] On 12 March 2021, Ms Turner shared a Magic.co.nz (radio station) article titled “A new program aims to teach kids in schools more about Muslim culture” and commented:
“Why don’t you teach muslim children how to live in NEW ZEALAND! How is filling our kids heads with your backwards beliefs helpful? You’re just trouble makers who are trying to bring barbaric ways to our country, just like your hideous ideology has done in the UK!” [sic]
10 The Tribunal accepted (at [89]) that Ms Turner intended to type Muslims, and that “muslimes” was a typographical error.
[16]Ms Turner’s Covid-related posts were as follows:
[2.1] On 3 January 2021, Ms Turner shared information titled “COVID-19: Vaccine planning” with text below the title saying “We’re paving the way to make sure we have access to safe and effective vaccines at the earliest possible time” and commented:
“Just remember this when your work place trys to “encourage” you to get the vaccine” [sic]
[2.2] On 15 February 2021, Ms Turner shared a Newshub article titled “Question of the Day: How are you feeling about the Alert Level change?” and commented:
“I think YOU Jacinda Adern should resign! We didn’t have covid here but you kept letting so called nzlders back in, who else have you allowed in? Refugees? Tourists?
And if you think nzlders are going to receive that murderous vaccine,
you’re dreaming!” [sic]
[2.3] On 18 Feb 2021, Ms Turner shared a RNZ article titled “Māori-specific Covid-19 vaccine plan to account for increased risk” and commented:
“Don’t do it people, this vaccine is unsafe.
They talk as if we are all living 200 years ago when Maori were susceptible to all the diseases the pakeha brought into NZ.
Anyone with underlying health issues can get this Chinese flu and have a reaction to the vaccine! You’s are not special! They’re lying to you!” [sic]
[2.4]On an unknown date after 12 March 2021, Ms Turner shared a post from the “Unite against COVID-19” Facebook page about receiving the first vaccine, and commented:
“The injection is not “free” the tax payers of NZ ARE paying for it! I’m glad the word voluntary is used, so we can decline the injection” [sic]
[2.5] On an unknown date after 12 March 2021, Ms Turner shared a post regarding someone’s reaction to the first COVID-19 vaccination and commented:
“they say its safe Ha!” [sic]
[17] The Tribunal decided three of the posts in the first category — posts [1.4], [1.9] and [1.10] — did not have the potential, either individually or in combination with others, to bring the profession into disrepute.11 It found the remainder did. The
11 Decision under appeal, above n 1, at [75], [83] and [84]. The Tribunal found post 1.4 – “this is why allowing Islam into our education system cannot work” – was not intrinsically offensive, inappropriate or derogatory. It found the PCC had not shown that post 1.9 – “Stop bringing in immigrants!” – was offensive or derogatory to any ethnic or religious group. It found post 1.10, in which Ms Turner argued Australia should not show the Chinese Communist Party any respect, and that as a New Zealander she did not respect China, was directed to the Governments of China and New Zealand rather than being derogatory of all Chinese people and was better characterised as a political statement.
Tribunal concluded that six — posts [1.1], [1.5], [1.7], [1.8], [1.13] and [1.14] — had
that tendency on their own, while posts [1.2], [1.3], [1.6], [1.11] and [1.12], when considered cumulatively and in combination with the first six, brought discredit to the profession and were sufficiently serious to warrant disciplinary sanction.12
[18] The Tribunal explained why it considered the first set of posts brought discredit to the profession:
[132] … The Tribunal considers that members of the public, hearing that a registered nurse had posted these comments to her Facebook page would conclude that the reputation of the nursing profession is lowered by Ms Turner’s comments. Ms Turner has said that she has not discriminated against patients she has cared for, but the Tribunal finds that she has made her views known. Adopting the wording used in Hugill, consumers […] are entitled to feel confident that they are not being dealt with by a nurse who holds views about ethnic, religious or gender diverse groups that have been so strongly expressed. Members of the public, in particular the minority groups affected would likely feel very uncomfortable receiving health services from Ms Turner and may prefer not to. There is a risk that the discomfort extends to the nursing profession in general, especially for the minority groups affected, and the Tribunal finds that Ms Turner’s conduct has brought discredit to the nursing profession.
[19] Ms Turner freely admitted the posts in the second category — her Covid posts — were written to discourage her family and friends from receiving the Covid vaccine. The Tribunal found two of those posts — posts [2.2] and [2.3] — were sufficient, on their own, to bring discredit to the profession, and that the five Covid posts, considered together, brought discredit to the profession and were sufficiently serious to warrant a disciplinary sanction.13 It observed:
[134] … the Tribunal does not accept that Ms Turner’s posts about the COVID-19 vaccine were her effort to provide balanced information to people on the risks and benefits of the COVID-19 vaccine. Ms Turner’s posts about COVID-19 were unprofessional and inflammatory. Referring to the vaccine as “murderous” was not merely inaccurate, it was provocative and not befitting of a registered nurse. The public, including Ms Turner’s 86 Facebook friends, deserve to have confidence in the nursing profession, particularly during a time of a global pandemic. The Tribunal finds that reasonable members of the public would conclude that such conduct lowers the reputation of the nursing profession and finds particular 2.2 individually is conduct that brings discredit to the nursing profession.
12 At [133].
13 At [134]–[136].
[135] The Tribunal reaches the same conclusion about particular 2.3, in which Ms Turner said, “Don’t do it people, this vaccine is unsafe” and “They’re lying to you!” There was nothing balanced, measured, or professional about these comments. It was scaremongering and emotive. The Tribunal finds that undermining the rollout of the COVID-19 vaccination during a global pandemic in this way is also conduct that brings discredit to the profession.
[20] While Ms Turner resisted the charge on multiple bases, her evidence had two main themes. First, she contended her Facebook posts were private communications, and that she believed her privacy settings prevented her posts being distributed more widely. She gave evidence she believed the posts were only available to a select group of family and friends, and that she assumed none of those for whom they were intended would pass them on.
[21] Ms Turner’s second contention, which flowed from the first, was that while her Facebook friends knew she was a nurse, she made the posts in her private capacity, and accordingly that they should not be the subject of professional scrutiny. As Ms Turner put it in evidence “I was a nurse when I was a nurse. In my private life, it’s my private life. I have never had any complaints against me. I’ve always held the same opinions.”
[22]The Tribunal disagreed. It observed:
[61] The parties were agreed that although the 86 Facebook friends could “share” Ms Turner’s posts with their wider circle, Ms Turner’s comments would not be included in that “share”. However, Mr McClelland submitted that at the very least, they could be read out by a “friend” to a third party, who could also read the posts on the “friend’s” device. The posts could be screenshot or printed and circulated to third parties and could be the subject of a discussion between “friends” and third parties. In the Employment Court Decision,14 Judge Holden noted:
…As the evidence demonstrated, the posts were accessible to other employees of the DHB and most of the aged residential care facility. Even if the material in the posts had been said or sent directly to one or only a few other employees or professional contacts, that could have been of concern to the DHB; being posted on a Facebook page with a much wider audience is even more of an issue.
[23] After noting its finding that Ms Turner’s Facebook friends could share her comments either by reading them out or making and sharing screenshots, and that
14 Employment Court decision, above n 6, at [73].
Ms Turner’s apparent belief that would not occur amounted to a “naïve and incorrect assumption”,15 the Tribunal continued:
[65] In questioning from the Tribunal, Ms Turner accepted that one of the posts she had shared had been a screenshot of someone else’s post and in another instance, she had taken a photograph of someone else’s post and then shared that. This illustrates that no matter what settings one has their Facebook posts set at, those posts can be disseminated, and that is exactly what Ms Turner herself had done with other people’s posts.
[66] In conclusion, the Tribunal does not consider that Ms Turner’s posts were in any way private or confidential communications. They were public statements made to at least 86 people known to her in circumstances where those statements could be further shared with others.
…
[122] In the present case, the Tribunal finds that posts on a Facebook page that has 86 followers is not a private conversation. By posting her comments, Ms Turner was making her views public, and for the reasons outlined above, those comments could be broadcast further using a number of means, including social media.
[24] The Tribunal observed while Ms Turner “did not post these comments and links in the performance of her duties as a nurse, she did not cease to be a nurse during the time that she engaged in that conduct.” It added she needed to be mindful of her role in the community and how others would perceive her, not just as an individual, but as a nurse, and that it was incumbent upon her to consider how her behaviour might reflect on the profession.16
Issues on appeal
[25] Mr Bassett pursued several grounds of appeal. There was no dispute about the underlying factual background, though a central part of Ms Turner’s case continues to be that the posts were, and were always intended to be, private communications. Nonetheless, he argued the absence of evidence about how many people actually saw the posts, and how widely they were shared, means the Tribunal’s finding they were likely to bring discredit to the profession cannot be sustained.
15 Decision under appeal, above n 1, at [62].
16 At [131].
[26] Mr Bassett also sought to raise wider issues of principle. He argued that everyone is entitled to their views, and that the Tribunal’s approach to s 100(1)(b) unacceptably censored “low value expression”.17 He argued that the Tribunal interpreted s 100(1)(b) in a way which infringed Ms Turner’s right to freedom of expression — which must include the right to hyperbolic expression — under s 14 of the Bill of Rights Act.
[27] In addition, Mr Bassett maintained his submission that the DHB acted unlawfully, and in breach of s 21 of the Bill of Rights Act, when it obtained Ms Turner’s posts, and accordingly that the Tribunal should have declined to admit them as evidence. He complained about the adequacy of the PCC’s pre-hearing disclosure. He argued, for example, that Ms Turner should have been given details of all communications between the DHB and Ms R, who Mr Bassett described as “the employee who betrayed the confidence of the appellant”.
Discussion
[28] This appeal must be considered against the background of Ms Turner’s now-resolved employment proceedings. While the issues in the two proceedings are plainly different, Ms Turner advanced a number of the same arguments in the employment jurisdiction, particularly with respect to the manner in which the DHB obtained her communications.18 She also argued, as she did in this Court, that the loss of her job represented a breach of her rights under s 14 of the Bill of Rights Act.19 All those arguments failed.20
Unreasonable search and seizure
[29] The Court of Appeal’s conclusion that the DHB did not breach Ms Turner’s rights under the Bill of Rights Act conclusively resolves that question in this Court too. Ms Turner argued the DHB had acted unlawfully, and in breach of her rights under s 21 of the Bill of Rights Act, by asking one of her Facebook friends to obtain
17 Which he described as “(… mundane or innocuous private or semi-private) social discourse regarding matters of political opinion and debate”.
18 Employment Court decision, above n 6, at [38].
19 At [39].
20 At [86].
copies of her posts. Section 21 of the Bill of Rights Act provides that “[e]veryone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.”
[30]The Court of Appeal observed:21
[25] …The relevant actions of the DHB in this case were not subject to s 3(b) of the Bill of Rights Act. They were ancillary to its functions, duties and powers. Accepting Ms Turner’s argument would mean a public service employer could not discipline members of staff claiming the right to express opinions directly contrary to the employer’s policies and critical of racial or ethnic groups. We do not consider the question raised is seriously arguable and we will not grant leave to pursue this question on appeal.
Breach of confidence / invasion of privacy
[31] Mr Bassett acknowledged Ms Turner’s s 21 argument cannot survive the Court of Appeal’s analysis. There was no breach. Instead, he submitted the DHB (and, presumably, the PCC and the Tribunal) had breached Ms Turner’s right to privacy. He argued the DHB unlawfully obtained Ms Turner’s private communications, and that Ms R, in providing Ms Turner’s posts to the DHB, had committed an actionable breach of confidence.
[32] Ms Turner advanced the same submission in the Employment Court, accusing the DHB of “spying” on her private communications. That argument was given short shrift. In her Employment Court decision, Judge Holden observed:22
[59]In carrying out its investigation, the DHB was entitled to seek information about the posts on his Turner’s Facebook page and to ask her colleague if she would provide them. …
[60]There was nothing untoward in the way the DHB went about obtaining copies of the Facebook posts.
[33] The Judge noted that a post to 86 Facebook friends is significant enough to mean the comments it contained could not be regarded as truly private, and that the posts had been accessible to other employees. She observed that posts of the kind Ms Turner made would have been of concern to her employer even if shared with only
21 Court of Appeal decision, above n 7.
22 Employment Court decision, above n 6.
one or a few colleagues or professional contacts; the fact they were posted to Facebook with a much wider potential audience was even more of an issue.23
[34] The Court of Appeal recorded Ms Turner’s submission that her posts should properly have been regarded as private, and that the DHB had ignored her right to privacy. It noted Judge Holden’s analysis of the issue,24 and dismissed the application for leave to appeal without commenting further.
[35] In this Court, Mr Bassett spent considerable time in oral argument contending that Ms R had unlawfully assumed the role of the DHB’s agent, and had “hacked” Ms Turner’s Facebook account in order to obtain the posts. The reality was rather more prosaic. When pressed, Mr Bassett readily acknowledged he does not fully understand how Facebook works, but assumed Ms R must somehow have gained access to Ms Turner’s private Facebook account. His argument lost a lot of its force when it was explained that as a Facebook friend Ms R could access Ms Turner’s posts by opening her own Facebook page, finding the relevant posts and taking screenshots. The fact the information could be accessed by Ms R, from her own device, is a compelling answer to the submission that Ms R unlawfully intruded upon Ms Turner’s privacy.
[36] Nonetheless, Mr Bassett relied on the principles of the tort of breach of confidence to argue the DHB had made unauthorised use of private information. He relied, for example, on Coco v AN Clarke (Engineers) Ltd, in which Megarry J set out the three elements required to establish an actionable breach of confidence:25
(a)The information has the necessary quality of confidence about it;
(b)The information has been in positive circumstances importing an obligation of confidence;
(c)There has been unauthorised use of that information.
23 At [73].
24 At [14].
25 Coco v AN Clarke (Engineers) Ltd [1969] RPC 41 (Ch) at 46.
[37] None of the elements of breach of confidence can be established here. The information Ms Turner posted was not confidential. Similarly, she had no ongoing expectation of privacy. A post to Facebook is the antithesis of a private communication.
[38] Facebook is a social media platform. One of its key functions is to allow users to share their private opinions with a wider audience. While users can choose who will see their posts in the first instance, they have little control over what happens to them after that. Once something is posted, the genie is out of the bottle. Stories of posts which were initially shared with a small audience, but which subsequently went viral, are as old as the Internet. I agree with Mr Bassett that everyone has the right to privately held views. But once Ms Turner decided to ventilate her opinions on social media, they were no longer privately held.
[39] Mr Bassett argues Ms Turner did not give “permission” for her Facebook friends to disseminate her posts more widely, and that she assumed her privacy settings would, in any event, prevent them from doing so. The Tribunal was right to characterise that position as naïve and incorrect.26 Ms Turner herself had made and posted screenshots when she wished to share other people’s information. She was plainly aware there was no technical impediment to her friends doing the same. Nor was it reasonable to assume none would — once someone shares information on Facebook, the obvious implication is that it is not private. Ms Turner acknowledged she never counselled her friends to keep her posts confidential,27 and Facebook was an entirely inappropriate medium if that had been her intention.
[40] Moreover, the more controversial a post is, the more likely it is to find a wider audience. It is unsurprising that Ms Turner’s posts, especially those which attacked the vaccine rollout, generated chatter and alarm among those of her colleagues who saw them, and eventually led to the DHB learning what she had been saying.
26 Decision under appeal, above n 1, at [62].
27 When cross-examined about doing so, Ms Turner noted that she could have asked her friends not to pass her posts on, but “then if you do that, you don’t believe in what you’re doing, so of course I’m not going to [write] a tab up there because it’s an opinion”.
[41] At least two of those who were privy to Ms Turner’s posts were fellow nurses. Many posts were — as Mr Bassett conceded — undeniably offensive, and the Covid posts ran directly counter to the clear public messaging being presented at the time by both the Ministry of Health and Ms Turner’s employer. Her colleagues — both those who saw Ms Turner’s posts and those who heard about them second hand — were entitled to be concerned, and to bring their concerns to their employer’s attention.
[42] It follows I reject Ms Turner’s central argument, namely that the Tribunal’s process was tainted by an unlawful intrusion into her private communications. That argument was untenable in the employment proceedings and is equally untenable here.
Freedom of expression
[43] The same comment can be made about Ms Turner’s submission that the Tribunal’s interpretation of s 100(1)(b) breached her right to freedom of expression under s 14 of the Bill of Rights Act.28 Ms Turner argued her posts were simply expressions of opinion and constituted legitimate contributions to an ongoing socio-political debate. She argued that even if her opinions were offensive to some, they fell within the bounds of political discourse, and should accordingly be protected by s 14.
[44] Mr Bassett’s submission that Ms Turner was engaging in “matters of intense political debate”, “the engine room of a democratic state” and “three of the highest profile socio-political debates (namely vaccines, immigration and sexuality)” is not immediately consistent with Ms Turner’s other main argument, namely that her remarks were private and confidential.29
[45] In any event, the Court of Appeal noted the Employment Court’s findings that Ms Turner had not been sacked because of her religious beliefs or her political views,
28 In the employment proceedings, Ms Turner also argued (unsuccessfully) her right to freedom of religion had also been breached. She sensibly declined to renew that submission in this Court.
29 Ms Turner’s own evidence was that she was seeking to contribute to a wider discussion. For example, she said:
That is my way of putting my comment on mainstream [media]. We can’t have a say. You try and talk to the media, you try and go in there say, I disagree with this. They’re not going to print your stuff. That’s why you have social media, that’s your platform to have your say, freedom of speech.
but because her posts were directly contrary to the position being taken by the DHB at the time, and breached relevant staff policies and codes of conduct by which she was bound.30 A similar analysis applies in the present appeal.
[46]Section 14 of the Bill of Rights Act provides:
Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form.
[47] There is no suggestion Ms Turner’s utterances were unlawful. While offensive, her first set of posts reflected a school of thought which is far from uncommon online. The law does not suppress opinions of that kind, nor does it protect the sensibilities of those who find Ms Turner’s views objectionable. Similarly, thousands of people in New Zealand, and millions around the world, have rejected the official narrative about the safety of the Covid vaccine. There is nothing unlawful about doing so.
[48] But that is not what this case is about. Everyone who joins a regulated profession assumes a series of obligations. One obligation, shared by every occupation whose practitioners answer to a professional body, is to refrain from bringing the wider profession into disrepute. It follows that every nurse, like every doctor, lawyer, teacher, accountant and engineer, undertakes to moderate their public utterances to ensure their duty to the wider profession is upheld.
[49] Put another way, when Ms Turner chose to become a registered nurse, she accepted a statutory obligation to refrain from acting or speaking in a manner likely to discredit the profession. In addition, she was obliged to abide by the Nursing Council Code of Conduct.31 Principle 8 requires nurses to maintain trust and confidence in the nursing profession, while Standard 8.1 provides that nurses must:
Maintain a high standard of professional and personal behaviour (see Guidance: fitness to practise and public confidence). The same standards of conduct are expected when you use social media and electronic forms of communication.
30 Court of Appeal decision, above n 7, at [30].
31 Decision under appeal, above n 1, at [128]. The Nursing Council issued the Code of Conduct under s 118(1)(i) of the Act. It is binding on all nurses.
[50] Mr Bassett characterised the Tribunal’s condemnation of Ms Turner’s posts as “censorship”. In fact, her breach arose from her disregard of the Code of Conduct, and the fact her remarks were hyperbolic, highly offensive, and likely to bring discredit upon the profession. Any compromise to her freedom to say exactly what she wishes is a consequence of the obligations she assumed when she decided to become a nurse.
[51] Mr Bassett argued the Tribunal was obliged to read s 100(1)(b) in light of s 14. I agree. As Radich J noted in New Health New Zealand Inc v Director-General of Health:32
[103] While the Court must make the ultimate decision under the Bill of Rights Act, an essential component of New Zealand’s Bill of Rights Act obligations is for decision-makers to use rights-focused lenses when making decisions and to demonstrate that the lenses have been attached. There must be an expectation on the part of New Zealanders that, when rights are engaged, any interferences are, to use the words of the authors of Butler and Butler, deliberate, measured and properly scrutinised before the interference occurs.
[52] I am satisfied the Tribunal understood its obligations under the Bill of Rights Act, and applied them appropriately. The Tribunal was at pains to stress that Ms Turner’s comments constituted professional misconduct only when they were likely to damage the wider reputation of the profession. For example, the Tribunal did not criticise Ms Turner’s assertions that that Islam should not be taught in schools, that all immigration should cease, and that the Governments of Australia and New Zealand owed no respect to the Government of China.33 All three positions are controversial and many would consider them distasteful. Nonetheless the Tribunal regarded those remarks as matters of political expression on which Ms Turner was entitled to comment robustly. It was only when her remarks became abusive towards members of minority communities, or sought to undermine the Government’s vaccine rollout, that it concluded she had crossed the line, and that her posts were likely to bring discredit to the profession.
[53] Orlov v New Zealand Law Society provides a good example of a practitioner’s freedom of expression yielding to the requirements of a professional body’s code of
32 New Health New Zealand Inc v Director-General of Health [2023] NZHC 3183, [2024] 2 NZLR 1.
33 Decision under appeal, above n 1, at [75], [83] and [84].
conduct.34 In that case the applicant for judicial review, Mr Orlov, challenged decisions by three standards committees established under the Lawyers and Conveyancers Act 2006. The committees had decided a series of complaints should be referred to the New Zealand Lawyers’ and Conveyancers’ Disciplinary Tribunal. Mr Orlov urged a “rights centred approach”, arguing that any attack on a lawyer’s independence is an implicit breach of ss 14 and 19 of the Bill of Rights Act. Justice Heath observed:
[86] In my view, only limited assistance can be gained from references to international instruments and the Bill of Rights. My focus must be on the purpose of the disciplinary process created by Parliament, the words of the 2006 Act and its objectives. Other legislation and international instruments will only inform my consideration of the application if directly relevant to the interpretation of a relevant provision in the 2006 Act.
[54] The Court of Appeal dismissed Mr Orlov’s appeal, noting it agreed with Heath J that lawyers’ freedom of expression is constrained by their obligations under Lawyers and Conveyancers Act (Code of Client Care) Rules 2008.35 It noted that lawyers do not have carte blanche to behave in any way they please, and that “the provisions of the Bill of Rights must be read in light of the duties on counsel that are either articulated in the Act or implicitly recognised.”36
[55] The same analysis applies, in the nursing context, to Ms Turner. Parliament has fashioned a regulatory regime in which the need to preserve the integrity of the wider profession constitutes a reasonable limitation on a health practitioner’s right to express offensive opinions in public.
Discredit to the profession
[56] The Tribunal was right to conclude that both sets of Facebook posts brought, or were likely to bring, discredit to the profession, and that both warranted disciplinary intervention.
34 Orlov v New Zealand Law Society [2012] NZHC 2154, [2013] 1 NZLR 390.
35 Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562 at [162].
36 At [77].
[57] It is essential the nursing profession is, and is seen to be, open and welcoming to patients and families from all backgrounds and nationalities, including refugees, religious minorities and members of the rainbow community. It is inevitable that a registered nurse who openly expresses antipathy towards members of minority communities will damage the trust and confidence in which the wider profession is held.
[58] The revelation that a registered nurse holds views of the kind expressed by Ms Turner would cause reasonable apprehension among minority groups that they may not be treated with appropriate compassion and professionalism. Patients and their families are inherently vulnerable. They should not have to worry, even for a moment, that they might be in the hands of a nurse who harbours palpable hostility towards them.
[59] Ms Turner’s defence appears to be that sharing her offensive views with a small number of people would not harm the wider profession because she expected that no potential patients, and no-one connected with the profession, would learn of her posts. For the reasons discussed above, that position is untenable.
[60] The inevitability that Ms Turner’s posts would seep into the wider public domain was all the greater in the case of her Covid posts. As already noted, at least two of Ms Turner’s Facebook friends were colleagues. The posts came to light because of reports that staff at the care facility where Ms Turner worked were questioning whether they should get vaccinated. Among recipients who did not work in the health sector, there was a high risk Ms Turner’s position as a nurse, and the ostensible credibility it afforded her, would be cited as part of the ongoing discussion about the safety of the vaccine. Ms Turner freely acknowledged she was seeking to dissuade her friends and members of her family from being vaccinated. It is one thing for a lay person to make inflammatory remarks about the vaccine in the midst of a public health emergency, but quite another for a registered nurse to do so.
[61] Moreover, Ms Turner’s references to the vaccine being “murderous” and her assertion the authorities were “lying” were extreme and ill-informed. The fact those remarks were made by a practising nurse, at a time when New Zealand’s pandemic
response required health care workers to receive the vaccine, could only harm the reputation of the profession. The Tribunal was right to note there was nothing balanced, measured, or professional about her comments.
[62] It follows it does not matter that Ms Turner has never overtly discriminated against a patient from a minority background. The damage to the profession arose from Ms Turner’s decision to advocate positions which, when articulated by a registered nurse, damaged the profession’s standing among actual and potential patients, and in the wider community.
Evidential gaps
[63] Mr Bassett sought to argue that there were fatal evidential gaps in the PCC’s case. Ms Turner gave evidence that “not all the people saw [her] posts”. In light of that evidence, Mr Barrett argued it was incumbent upon the PCC to prove how many people actually read them.
[64] Ms Turner’s evidence on the point, given in the course of two exchanges several minutes apart, was as follows:
Q: I think it was in the Determination from the Employment Relations Authority that said you had something like 200 friends?
A: No, that was not true. I had 84 friends and I had groups, so not all the people saw my posts. There was selected few friends that I trusted, that I considered friends, but that apparently doesn’t mean anything anymore (sic).
…
Q: It wasn’t only your family, was it, it was either 86 or 200 Facebook friends?
A: There was never 200 on my thing. I don’t know where that number came from, that was a total exaggeration. There were 84 people on my posts, not all were privy to my post.
[65] The number of Facebook friends who were able to see Ms Turner’s posts was not in issue before the Tribunal. Both parties agreed that Ms Turner’s friends could see her posts.37 Both references to the posts being seen by a smaller group were made
37 Decision under appeal, above n 1 at [61], reproduced at [22] above.
in response to a suggestion that they may have been seen by up to 200 people. It is possible Ms Turner’s evidence was simply a rejection of that larger number. At a minimum, her evidence on this point required clarification before she could rely on it to challenge the otherwise undisputed evidence that her friends could see and read her comments, but could forward them to others only if they made screenshots.
[66] More importantly, the nature of her remarks and the platform on which they were posted meant it was likely, if not inevitable, that they would circulate more widely regardless of how many people were among the initial recipients. At least two fellow nurses received them. The posts generated chatter and vaccine hesitancy at the care facility where Ms Turner worked. Mr Bassett acknowledged Ms Turner was seeking to participate in a high-profile public debate. In those circumstances she can scarcely be surprised her remarks attracted attention and pushback.
Disclosure
[67] Mr Bassett complained that Ms Turner did not receive full disclosure prior to the Tribunal hearing. Mr Bassett was not counsel at the time, and Ms Turner’s advocate made no complaint to the Tribunal.
[68] There is nothing in this point. Ms Turner’s advocate received all relevant documents in the PCC’s possession prior to the hearing. Mr Bassett’s instructing solicitor wrote to the Nursing Council prior to the appeal asserting that no pre-hearing disclosure had been made. On 26 July 2024 Mr McClelland KC, on behalf of the PCC, replied:
It is not correct that there was no pre-hearing disclosure made by the PCC. As no doubt your client can confirm, the PCC provided full copies of all documents and information obtained by it during the course of its investigation. In large part, this documentation was included in the bundle of documents that went before the Tribunal. No additional documentation was obtained by the PCC following the conclusion of its investigation and determination to bring a charge.
[69] On appeal, Mr Bassett submitted that the disclosure he had seen contained “none of the kinds of categories of investigative or briefing documents, which the PCC could have been expected to generate during its investigations”. He noted the absence, for example, of the names and contact details of witnesses the PCC interviewed,
interview notes, potential witnesses who were not interviewed and other communications between the PCC and witnesses. He also argued the Tribunal should have ordered “pre-hearing disclosure by the DHB”.
[70] Mr Bassett’s submission takes no account of the matters that were actually in issue before the Tribunal. The factual background was not in dispute. There was no dispute about the content of the posts, or Ms Turner’s authorship of them. The issues before the Tribunal turned on the law, and the Tribunal’s interpretation of the undisputed facts.
[71] Mr Bassett appears to submit that greater disclosure might have allowed more detail to emerge about the process by which Ms R obtained Ms Turner’s posts for the DHB. But there is no basis to look behind Mr McClelland’s assurance, and there was already considerable material before the Tribunal on that point, including internal emails from within the DHB. The sequence of events that led to the posts’ discovery was not in dispute.
Conclusion
[72] Ms Turner practised successfully as a nurse for many years. She gave evidence that her personal opinions have not changed in recent years, and it was only in 2020 and 2021 — a stressful period which generated intense online activity — that she began sharing her opinions with a wider audience.
[73] It was unprofessional of Ms Turner to do so. A lay person could post similar content without consequence, but in the hands of as a registered nurse Ms Turner’s posts were irresponsible and damaging to the wider profession. It is unclear whether, even now, Ms Turner properly appreciates the offensive nature of her posts, or her responsibilities to her colleagues throughout the country.
[74] I am satisfied the Tribunal made no error when it found the charge of professional misconduct established. Both sets of posts were likely to bring discredit to the profession.
Costs
[75] Mr Bassett asked, in the event the appeal is dismissed, that the question of costs be reserved. I am happy to do so, though in light of the result, and my overall conclusion that the appeal lacked merit, it will come as little surprise that my preliminary view is that costs should follow the event.
[76] If the parties are unable to reach agreement, the PCC may file a memorandum, of no longer than ten pages, within 15 working days of the delivery of this judgment. Ms Turner may file a memorandum in response, also no longer than ten pages, within a further ten working days.
Result
[77]The appeal is dismissed.
[78]Costs are reserved.
Boldt J
Solicitors:
Ian Bassett Barrister, Auckland for Appellant Harbour Chambers, Wellington for Respondent
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