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New Zealand Health Practitioners Disciplinary Tribunal |
Last Updated: 18 April 2024
BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL
TE RŌPŪ WHAKATIKA KAIMAHI HAUORA
HPDT NO: 1372/Nur23/587P
UNDER the Health Practitioners Competence Assurance Act 2003
(“the Act”)
IN THE MATTER of a disciplinary charge laid against a health practitioner under Part 4 of the Act
BETWEEN A PROFESSIONAL CONDUCT COMMITTEE appointed by the NURSING COUNCIL OF NEW ZEALAND
AND Ms DEBRA ELIZABETH GREEN, of Christchurch, Registered Nurse
Practitioner
HELD IN Christchurch on 13 December 2023
TRIBUNAL Ms A J Douglass (Chair)
Dr B McCulloch, Ms K Batchelor, Dr C Taua and Ms S Matthews MNZM (Members)
IN ATTENDANCE Ms G Fraser, Executive Officer
Ms K O’Brien, Stenographer
COUNSEL Mr M McClelland KC and Ms H O’Connor for the Professional Conduct Committee
No appearance for or by the Practitioner
DECISION OF THE TRIBUNAL
Dated this 15th day of March 2024
CONTENTS
Introduction
[1] Ms Debra Green is a Registered Nurse based in Christchurch. She faces one Charge of professional misconduct under ss 100(1)(a) and 100(1)(b) of the Health Practitioners Competence Assurance Act (the Act).
[2] The disciplinary Charge (the Charge) is set out in the Schedule to this decision. 1
[3] The Charge arose from Ms Green’s video interview on 20 November 2021 with Ms Chantelle Baker, a widely known social media influencer, prominent for her COVID-19 anti- vaccination and anti-mandate views (video interview). The two particulars of the Charge are verbatim excerpts from the video interview.
[4] The Professional Conduct Committee of the Nursing Council (PCC) alleges that Ms Green engaged in inappropriate rhetoric relating to alleged COVID-19 vaccine injuries; that she made hdisparaging comments about other health professionals in the Emergency Department (ED) at Christchurch hospital; and that such conduct is malpractice and/or negligence by Ms Green that has brought discredit to the nursing profession.
[5] The Tribunal has found the Charge of professional misconduct established. We set out our reasons for our decision on the liability, penalty and cost orders below.
The hearing
[6] Ms Green initially engaged with the PCC’s investigation and was represented for her interview with the PCC. Ms Green then instructed Ms Eglinton, as counsel for the hearing. Subsequently, Ms Eglington withdrew as Ms Green’s counsel prior to the hearing.
[7] In a letter to the Tribunal, Ms Green advised the Tribunal that she would not be attending the hearing. While she accepted that she gave the video interview she did not consider that her conduct amounted to professional misconduct.2
[8] As Ms Green did not attend the hearing or defend the Charge the hearing proceeded by way of formal proof. The PCC presented its evidence and witnesses and submissions from counsel, Mr McClelland KC.
[9] At the end of the first day of hearing the Tribunal gave an indication on liability and then heard submissions on penalty from counsel for the PCC.
[10] The Tribunal then deliberated on the second day and issued a Minute indicating its decision on proposed penalty and costs orders.3 Ms Green was given the opportunity to provide a submission on costs and she has responded via her union representative.4
Background
[11] Ms Green holds a Bachelor of Nursing and has been a registered nurse since 7 August 2002.5
[12] From 2013 until 19 November 2021, Ms Green had been working as a pool nurse staff member at Christchurch hospital, Canterbury District Health Board (DHB).
[13] On 11 October 2021 the Government announced that workers in the health and disability sector would be required to be fully vaccinated against COVID-19 before the close of 1 January 2022, and must have received their first vaccination before the close of 15 November 2021 (Mandate Notice).6
2 Document 4, Letter dated 25 September 2023 addressed to the Tribunal and filed with memorandum of counsel seeking leave to withdraw.
3 Minute as to Liability and Indication of Penalty dated 14 December 2023.
4 Email from Hilary Max, New Zealand Nurses Organisation dated 20 December 2023 received by the Tribunal.
5 Bundle/BOD, p 18 Nursing Council registration details, Debra Green.
6 The mandatory vaccine requirement was formally implemented by way of an amendment to the COVID-19 Public Health Response (Vaccinations) Order 2021 which became effective from 25 October 2021.
[14] On 8 November 2021 Ms Lynne Johnson, Director of Nursing at the Christchurch Hospital Campus sent a letter to Ms Green confirming that the Canterbury DHB records showed that she had not yet received the COVID-19 vaccination.7
[15] On 15 November 2021, following discussions with her, Ms Green received notice of termination of her employment with the Canterbury DHB (termination letter) as she had chosen not to be vaccinated in accordance with the Mandate Notice.8
[16] The termination letter advised Ms Green that unless and until the DHB could confirm that she had been vaccinated, the DHB was required to stand her down from her duties because she would be in breach of the Mandate Notice. The stand down would be effective from 11.59pm on 15 November 2021.
[17] The letter confirmed the consultation process that had been undertaken with Ms Green. The letter recorded that a representative from the DHB had spoken with her by phone on 10 November 2021 seeking her feedback on her reasons for not getting vaccinated and whether she intended to be vaccinated in the future; and whether there were any suitable redeployment opportunities available.
[18] The letter also set out the Canterbury DHB’s understanding Ms Green’s reasons why she had chosen not to be vaccinated. They are set out as follows:
- You stated that you did not believe the vaccine was safe or effective;
- You consider the vaccine to be experimental and you have seen friends and family suffer after the vaccination;
- You do not believe the Order is legal, is discriminatory and breaches your rights.
7 Document 7, Letter from Canterbury DHB to Ms Green dated 8 November 2021.
8 Document 8, Letter from Canterbury DHB to Ms Green dated 15 November 2021.
[19] The letter records that all staff had been provided with information about the vaccination as well as support numbers to call to discuss their decision if they chose not to vaccinate.
[20] Ms Green’s employment with the DHB was terminated on Friday 19 November 2021, the day before the video interview at the Freedom March.9
[21] On 20 November 2021 Ms Green attended the Freedom March in Christchurch to protest against the New Zealand Government’s COVID-19 vaccination and mandate policies.
[22] At this protest march Ms Green wore her nursing uniform as encouraged by the organisers of Freedom Rights Coalition. 10
[23] Ms Green was approached by Ms Chantelle Baker for an interview. Ms Green’s video interview with Ms Baker was filmed and a segment of it was posted on Ms Baker’s Facebook page.
[24] On 23 November 2021, [Ms T], [position] at Canterbury DHB received an email from the Chair of Manawhenua Ki Waitaha Charitable Trust expressing concern about a “CDHB nurse, in uniform, on TikTok relating to heart admissions to Christchurch Hospital as vaccine related
– it’s a shocker”.
[25] Between 22 November and 25 November 2021, the Nursing Council received seven notifications regarding Ms Green’s conduct in the video interview.11
[26] On 7 December 2021, Ms Green was referred to a PCC of the Nursing Council.
[27] On 15 November 2022 Ms Green attended a meeting with the PCC. She provided a statement.
[28] On 22 May 2023 the PCC laid the disciplinary Charge before the Tribunal.
9 Bundle, p 20. Brief of evidence of [Ms T], at [3].
11 Bundle, p 23 Affidavit of [Ms S] dated 13 October 2023, Exhibit 1.
Evidence and witnesses before the Tribunal
[29] The PCC produced a Bundle of Documents (the Bundle). The Bundle included:
- (a) the notices of complaint that had been received by the Nursing Council regarding Ms Green’s video interview, the subject of the disciplinary Charge,12;
- (b) Ms Green’s registration details;
- (c) Ms Green’s statement dated 14 November 2022 provided to the PCC of the Nursing Council;13
- (d) The transcript of the meeting of the PCC with Ms Green and her legal representative, Hilary Max;14 and
- (e) The Nursing Council’s Code of Conduct 2012.
[30] The Tribunal viewed the video recording of Ms Green’s interview with Ms Baker.
[31] A transcript of the video was produced by [Ms S].15 Ms [S] is the [position] at the Nursing Council.
[32] At the hearing, the PCC called one witness, [Ms T]. Ms [T] is the [position] at Te Whata Ora Waitaha Canterbury.16 She produced the specific correspondence that was sent to Ms Green regarding Ms Green’s decision not to be vaccinated and her subsequent termination of employment from Canterbury DHB under the Mandate Notice.
[33] Ms [T] answered questions from the Tribunal and provided background to how the vaccine mandate operated at the Canterbury DHB and the context in which Ms Green gave her video interview in November 2021.
12 Bundle, pp Exhibits to affidavit of Debra Green.
15 Bundle, p 22 and p 79, Affidavit and supplementary affidavit of [Ms S].
16 Document 6, Brief of evidence of [Ms T].
[34] Ms Green did not attend the hearing. The principal statements that she has made are first to the PCC17 and her interview with the PCC,18 and secondly, in a signed letter from Ms Green to the Tribunal dated 25 September 2023.19
Relevant law
[35] The primary purpose of the Tribunal’s disciplinary powers is the protection of the public and the maintenance of professional standards. Section 100 of the Act defines the grounds on which a health practitioner may be disciplined.
[36] Ms Green has been charged with professional misconduct under both s 100(1)(a) and / or (b) of the Act as follows:
100. Grounds on which health practitioner may be disciplined
(1) The Tribunal may make any 1 or more of the orders authorized by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—
- (a) the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or
- (b) the practitioner has been 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;
[37] In B v Medical Council of New Zealand, 20 the Court stated:
The structure of the disciplinary processes is set up by the Act, which rely in large part upon judgment by a practitioner’s peers, emphasises that the best guide to what is acceptable professional conduct is the standards applied by competent, ethical and responsible practitioners. But the inclusion of lay representatives in a
17 Bundle, p 37, Statement of Debra Elizabeth Green dated 14 November 2023, Exhibit 2 to Affidavit of [Ms S].
18 Bundle, p 47, Transcript of interview with PCC on 15 November 2022.
19 Document 4, Letter dated 25 September 2023 addressed to the Tribunal and filed with memorandum of counsel seeking leave to withdraw.
20 Elias J, HC Auckland HC 11/96, p 15 noted at [2005] 3 NZLR 810.
disciplinary process and the right of appeal to this court indicates that usual professional practice, while significant, may not always be determinative: the reasonableness of the standards applied must ultimately be for the court to determine, taking into account all the circumstances including not only usual practice but also patient interests and community expectations, including the expectation that professional standards are not permitted to lag. The disciplinary process is in part one of setting standards.
[38] The Tribunal and the Courts have considered the term “professional misconduct” under s 100(1)(a) on many occasions. In Collie v Nursing Council of New Zealand,21 Gendall J described negligence and malpractice as follows:
Negligence or malpractice may or may not be sufficient to constitute professional misconduct and the guide must be standards applicable by competent, ethical and responsible practitioners and there must be behaviour which falls seriously short of that which is to be considered acceptable and not mere inadvertent error, oversight or for that matter carelessness.
[39] “Malpractice” is defined in the Collins English Dictionary as:22
The immoral, illegal or unethical conduct or neglect of professional duties. Any instance of improper professional conduct.
[40] Malpractice is defined in the New Shorter Oxford English Dictionary:23
1. Law. Improper treatment or culpable neglect of a patient by a physician or of a client by a lawyer ... 2. Gen. A criminal or illegal action: wrongdoing, misconduct.
[41] Section 100(1)(b) of the Act creates another route by which a finding of professional misconduct may be made. This is where the practitioner’s conduct has or is likely to bring discredit on the particular health profession. In Collie v Nursing Council of New Zealand, Gendall J considered the meaning of conduct likely to bring discredit on the nursing profession as follows:24
To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard with the question to be asked by the Council being whether reasonable members of the public, informed and with knowledge of all the factual circumstances, could reasonably conclude that the
21 [2001] NZAR 74 at [21].
22 Collins English Dictionary (2nd Edition).
23 Shorter Oxford English Dictionary (1993 ed), as cited in Dr E 136/Med07/76D at [12]–[14].
24 Collie v Nursing Council of New Zealand [2001] NZAR 74 at [28].
reputation and good-standing of the nursing profession was lowered by the behaviour of the nurse concerned.
[42] The burden is on the PCC. It is for the PCC to establish that Ms Green is guilty of the Charge and to provide the evidence that proves the facts upon which the Charge is based.
[43] The standard of proof is the civil standard of proof, that is, proof which satisfies the Tribunal that on the balance of probabilities the particulars of the Charge are more likely than not. The Tribunal must apply a degree of flexibility to the balance of probabilities taking into account the seriousness of the allegation and the gravity of the consequences flowing from a particular finding.25
[44] Ms Green has chosen not to attend the hearing. Nonetheless, the Tribunal must consider all the material before it when determining whether the PCC has established the Charge to the requisite standard, including any statements that Ms Green has made in respect of the issues which are the subject of the Charge and any correspondence she has had with the PCC or the Tribunal.
[45] As France J observed in A v A Professional Conduct Committee [2018] NZHC 1623 at 13:
... since it is well established that a health professional has a professional responsibility to co-operate. This will almost inevitably be given effect to by the professional providing an explanation and giving evidence. Any evidential onus is thereby met. This task of the Tribunal is then to weigh all the evidence available in determining if the Charge is made out.
Threshold test for disciplinary sanction
[46] There is a well-established two-stage test for determining professional misconduct under s 100 of the Act.26 The two steps are:
- (a) First, did the proven conduct fall short of the conduct expected of a reasonably competent health practitioner operating in that vocational area? This requires an
25 Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1 (SC) at [112] as cited in PCC v M
1051/Nur19/440P at [22].
26 PCC v Nuttall 08/Med04/03P; F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA), as applied in Johns v Director of Proceedings [2017] NZHC 2843 at [78].
objective analysis of whether the health practitioner’s acts or omissions can reasonably be regarded as being negligence and / or malpractice or, having brought or are likely to bring discredit to the practitioner’s profession; and
(b) Secondly, if so, whether the departure from acceptable standards has been significant enough to warrant a disciplinary sanction for the purposes of protecting the public and / or maintaining professional standards? This is referred to as the disciplinary threshold.
[47] In Martin v Director of Proceedings,27 the High Court has said that the disciplinary threshold should not be regarded as “unduly high” but that “a notable departure from acceptable standards” is required; and that the threshold is to be reached with care, having regard to both the purpose of the Act and the implications for the practitioner.28
Professional standards and guidelines
When assessing the standards reasonably expected of a nurse the Tribunal is guided by the Nursing Council’s Code of Conduct for Nurses (2012) (Code of Conduct). The Code of Conduct describes the behaviour or conduct that nurses are expected to uphold.
[48] Relevant principles in the Code of Conduct include: working in partnership with health consumers to promote and protect their wellbeing;29 working respectfully with colleagues to best meet health consumers’ needs;30 acting with integrity to justify health consumer’s trust;31 and, maintaining public trust and confidence in in the nursing profession.
[49] The Nursing Council has also published Guidelines: Social Media and Electronic Communication (Social Media Guidelines) which state:
Nurses are responsible for maintaining the same standards of professional behaviour in social and electronic media as they would when communicating face-to-face.
28 Martin v Director of Proceedings [2010] NZAR 333, Courtney J at [32].
29 New Zealand Nursing Council’s Code of Conduct for Nurses (2012), Principle 3
30 New Zealand Nursing Council’s Code of Conduct for Nurses (2012),, Principle 6
[50] The Social Media Guidelines specify how particular parts of the Code of Conduct apply to social media use, including in relation to Principle 6:
Be respectful to your employer, colleagues and other health providers in all communications or posts. Be professional in the opinions you express.
[51] In relation to Principle 8:
If you are identified as a nurse on-line you should act responsibly and uphold the reputation of your profession.
Liability
Tribunal’s consideration of the Charge
[52] The Tribunal’s task is to assess each of the two particulars of the Charge independently and then cumulatively to assess whether a Charge of professional misconduct is established under sections 100(1)(a) and (b) of the Act.
[53] The central aspect of this disciplinary Charge relates to the interview of Ms Green with Ms Chantelle Baker on 20 November 2021. Particulars 1 and 2 are the transcript of two excerpts from the video interview.
[54] Particular 1 relates to the alleged rhetoric by Ms Green about the COVID-19 vaccine injuries in the ED at Christchurch hospital.
[55] Particular 2 is more concerned with comments made by Ms Green that are alleged to be disparaging of other health professionals, including a doctor at the ED.
PCC submissions
[56] Mr McClelland KC, counsel for the PCC, submitted that the context in which Ms Green gave the video interview is relevant to the Tribunal’s assessment of her conduct.
[57] Counsel submitted that Ms Green chose to attend the Freedom March protest wearing a nurse uniform. She was identified on Chantelle Baker’s Facebook page as a nurse who “has recently been pushed from her role in the CDHB”.
[58] The PCC submitted that members of the public would be open to consider Ms Green’s words (in the video interview) to have significant weight based on her role as a registered nurse, her representation as an ED nurse, and her reported experiences and witnessed accounts.
[59] Counsel referred to Ms Green’s statement to the PCC where she accepted a number of the relevant facts, the circumstances in which she gave the video interview and the fact that the interview was then posted by Ms Baker who interviewed her.
[60] The PCC submitted that on the evidence before it, the Charge and its particulars have been established to the required standard and amounts to professional misconduct being conduct likely to bring discredit to the profession, and that conduct is deserving of a disciplinary sanction.
Comparable cases
[61] Since the Government’s COVID-19 vaccination mandate in 2021 there have been several cases in the Tribunal involving nurses who have been found guilty of professional misconduct and in breach of the Code of Conduct and Social Media Guidelines relating to using social media to disseminate misinformation and discouraging vaccination against the COVID- 19 in the course of the pandemic.
[62] In Tepou32 a registered nurse faced three charges which related, in summary, to her posting comments on Facebook, circulating template letters on Facebook and participating in a radio interview with her Pacific community, for the purpose of discouraging vaccination against COVID-19.
[63] The Tribunal found the practitioner guilty of professional misconduct in respect of her inappropriate social media comments towards her fellow health practitioners and the spreading of COVID-19 misinformation through social media and a radio interview. The conduct in respect of each of three charges was established as malpractice and negligence
and conduct that was likely to bring discredit to the nursing profession warranting a disciplinary sanction.
[64] In PCC v Smart,33 Ms Smart a registered nurse posted and reposted on her Facebook page comments and misinformation that was found to have undermined the Government’s MMR public health vaccination programme in 2019 and the COVID-19 vaccine in 2021. A total of 19 of the 33 sub-particulars were established.
[65] The Tribunal found that the nature of the conduct involved negligence rather than malpractice by the practitioner because her conduct reflected a lack of insight on Ms Smart’s part as to the impact of her social media use rather than the express intention to publicly derail the Government’s vaccination programmes.
[66] Ms Smart’s conduct was found to fall below the standards reasonably expected of a registered nurse in the circumstances appearing before the Tribunal and both negligence and discredit to the profession were found to establish professional misconduct.
[67] Counsel for the PCC also referred the decision in Canaday.34 Dr Canaday appealed to the District Court against the interim suspension of his practising certificate imposed by the Medical Council. Dr Canaday had taken a vocal public stance against the COVID-19 vaccination programme and the public health measures taken in response in New Zealand.
[68] In the subsequent Tribunal hearing on of the disciplinary charge against Dr Canaday, 35 there were 12 particulars to the charge of professional misconduct, the majority of which were not made out (3 out of 12 particulars were established). However, in respect of those established particulars, the Tribunal found that the conduct met the disciplinary threshold for professional misconduct and warranted a disciplinary sanction.
33 PCC v Smart Nur22/565P. The Smart decision was issued on 6 March 2024 and was not available at the time of the hearing for this disciplinary charge in December 2023.
[69] We now turn to consider each of the particulars of the Charge.
Particular 1: Statements about the operation of the Emergency Department at Christchurch Hospital
[70] The first particular relates to Ms Green’s statements in the video interview about the operation of the Emergency Department (ED) at Christchurch hospital where she was working as a casual pool nurse.
[71] The video interview shows Ms Baker interviewing Ms Green with her uniform on. The video interview commences immediately with Ms Green’s statement as set out in particular 1 as follows:
See the bulk of the patients would be vaccinated. If you’re not vaccinated you get segregated, you get put in a different part of ED, put into isolation and people, they just, I mean I had one consultant on my last night, she stood in front of our big board with everybody, all the patients and all their symptoms and she said, what’s going on? Why have we got so many patients, it's all cardiac, cardiac, cardiac, short of breath, you know, collapses, falls and I just can say – tick, tick, tick, this is adverse reaction, adverse reaction. All of our wards are full, you know, of people having cardiac problems, people with flare ups from their cancer, like you name it. It’s just, I guarantee a hospital is full of vaccine damaged, it’s just, people were blind, people just cannot see it.
[72] In summary, this statement suggests:
- “segregation” of unvaccinated people in the ED;
- The large number of cardiac patients which she linked to adverse reactions to the COVID-19 vaccine;
- That the hospital was full of what she described as “vaccine damaged” people;
- Ms Green alleges that the staff are “blind” to the damage caused by the vaccine.
[73] These statements were designed to have a persuasive and impressionable effect but were lacking in sincerity and meaningful content. It was quite misleading for Ms Green to suggest that the hospital was full of “cardiac” patients. The ED is available for people with acute admissions including those with heart conditions.
[74] Ms Green was personally identifiable as a nurse, she premised her comments based on her expertise and experience and drew specific attention to the clinical decision-making of doctors and nurses working at Christchurch hospital.
[75] Ms Green was representing herself as an ED nurse when in fact she was a nurse in the casual pool. This meant that she could be placed anywhere in the hospital and while she did work on occasions in ED, she was not a full time ED nurse. 36
[76] The statement that the staff are “blind” to the damage caused by the vaccine is unprofessional and disparaging of her colleagues.
[77] Just five days before attending the Freedom March on 15 November 2021, Ms Green had received the termination letter from the [position]Canterbury DHB.
[78] Ms Green explained that in the lead-up to the march the organisers asked people who had lost their jobs to wear their uniforms as a show of solidarity.37 The Tribunal observed that in the video interview Ms Green was wearing her nursing uniform, the New Zealand Registered Nurse badge and the Canterbury DHB employee identification tags.
[79] Ms Green did this willingly and without any concern as to how this would look and without questioning the implications it could have if she wore her uniform.
[80] Ms Green stated:
My intention was to show solidarity with other nurses who had also lost their jobs. It became blatantly obvious once I arrived, I was one of a very small minority to come in their uniform, and I felt quite uncomfortable about this, and felt it “drew attention” to my position and made me stand out in the crowd.
Because of my uniform, I think I was easily spotted by Chantelle Baker, and she quickly approach me asking me to be interviewed. I did not intend to speak or to be interviewed when I attended the Freedom March.
36 Bundle, p 20 Statement of [Ms T] at [8].
37 Bundle, Statement of Debra Elizabeth Green dated 14 November 2022 at [25]-[26], p 41.
[81] Whilst at the Freedom March, Ms Green was interviewed by Ms Baker, a social media influencer, prominent for her COVID-19 anti-vaccination and anti-mandate views.
[82] Ms Green felt that she was caught off-guard by the interview. She said:38
On reflection I was caught off-guard by the request from Chantelle. I had just arrived at the march with several friends of mine who were also nurses who had lost their jobs because of the Mandate. I was not particularly keen on doing so, I felt uneasy and vulnerable, but my friends encouraged me to do it to talk on behalf of them.
[83] Ms Green’s interview with Ms Baker was filmed and a segment of it was posted to Ms Baker’s Facebook page.
[84] Ms Green has not disputed that by 25 November 2021 the video interview had been shared by approximately 5,000 people on Facebook. It was also shared and posted on at least one other prominent Facebook site (that of Gerard Otto, a prolific poster and commentator on political and news matters).39
[85] The video interview was also posted to TikTok, a social media platform.
[86] The Tribunal accepts the PCC’s submission that when Ms Green spoke, she did so in a way that was emotive, heightened and had a real possibility of inciting fear and distrust in the medical staff at the hospital.
[87] Ms Green has accepted that she did exaggerate her concerns including her comment that “the hospital is full of vaccine damaged people”.40 Ms Green has also accepted that she appeared to be animated in this interview.41
[88] A further aspect of the video interview observed by the Tribunal is that in response to Ms Green’s answers Ms Baker, the interviewer, often appeared shocked by Ms Green’s statements.
38 Bundle, Statement of Debra Elizabeth Green dated 14 November 2022 at [27], p 41.
39 Document 3, PCC submissions as to Liability at [30].
40 Bundle, p 45. Ms Green’s statement dated 15 November 2022.
[89] Although she gave the impression that she worked full time as an ED nurse she was only a nurse in the casual pool and was not working full time in the ED.
[90] The Tribunal is satisfied that Ms Green’s statements about the state of the ED at Christchurch Hospital were exaggerated and misleading. As noted by Ms [T] the very reason to separate (“segregate”) patients who were not vaccinated was for the purposes of protecting their health and safety.42
[91] The Tribunal is satisfied that the statements in this particular are inappropriate and made in rhetoric language designed to be persuasive among others, including health professionals who had chosen not to be vaccinated. These statements were made in the context of a protest march against the COVID-19 vaccination mandate.
[92] Particular 1 is established and amounts to malpractice and conduct that has brought discredit to the profession.
Particular 2 – Anecdote relating to alleged malpractice by a doctor in ED
[93] In the video interview, Ms Green then goes on to recount an anecdote relating to, in effect, alleged malpractice by a doctor in the ED. Particular 2 is as follows:
“So, I mean I’ve heard of, it depends on the doctor. So, when a person comes into ED, it really depends on who they get looking after them. I’d say the majority of doctors are pretty blind themselves and will swear black and blue that whatever they’re going through is nothing to do with the, you know, with the vaccine. The odd, depending on how severe, the odd, you know, doctor will say oh this, this could be the vaccine, you know. Like you get a disgustingly healthy 30-year-old guy, has not got any lung issues, cardiac issues and he’s in having acute chest pain, you know, the constant feeling of pressure on his chest, shortness of breath and yet he’s healthy. And they’re like oh well, maybe it could be from, you know, your second jab that you got three days ago. But and so they’ll run tests, in fact, I had one doctor – so I did blood tests on this guy and I said, oh I reckon we should get a D-Dimer, which is the test to look for, you know, presence of blood clots in the body and he’s like, oh yeah, I suppose you could do that. So, I did a D-Dimer, it came back and it was through the roof, it was like a thousand and a D-Dimer should be zero and he’s like, he just turns to me and said, you know what, I wish I’d never taken that blood test. And I’m like, okay, well you have now so you’re obligated to do something about it. So, you know, the blood test wouldn’t have been done, he would have gone home, he
could have died at home... Because now he’s got to follow through and he’s got to do all the tests whereas, you know, like the, a lot of nurses in the background were like oh, you know, like it’s just the same old, people are assuming it's the vaccine, there’s nothing wrong with the vaccine, it’s you know, he’s anxious or he’s got anxiety or he’s, you know, it’s all in his head. This is what nurses are saying, it’s all in people’s head, you know. You don’t go to ED unless something is seriously wrong”.
[94] The doctor is not named. However, Ms Green asserts that the doctor failed to initiate a “D-Dimer test” for a young 30-year-old male. A D-Dimer test is a test for blood clots. Ms Green said that she requested the additional blood test and asserted that there was an abnormally high result – “one thousand”. Ms Green claimed that the doctor said, “I wish I’d never taken that blood test”, implying that the doctor regretted taking the blood test because it revealed a vaccine injured patient.
[95] This anecdotal story about the ED doctor is prefaced with Ms Baker’s question where she asks Ms Green what research has been undertaken and how were staff talking to people.
[96] Ms Baker’s question is as follows:
Ms Baker: So I have had a lot of people reaching out to me recently saying, We tried to do the right thing. We went and got our jab, we thought we were being a good part of society, were really contributing and we’ve had horrible reactions and the doctors have turned to us and said, we don’t know what it is, we can’t help you, good luck effectively and it seems bizarre that’s our stance on this. What research and in the hospitals were they giving out, were they talking about with people that had reactions, was anyone talking about it or was it too taboo to talk about?
[97] Ms Green does not answer the question put to her by the interviewer. Instead, she recounts an anecdote of a 30-year-old male in the ED. The effect of the anecdote is for Ms Green to allege that nurses and doctors in the ED were discounting patients’ concerns around possible “reactions” – namely, vaccine injuries.
[98] This second part of the interview is also in the context where Ms Green has already been disparaging of the reliability of ED doctors, suggesting that it depends on who the patient is seen by in the ED. She had already suggested that the majority of doctors are “pretty blind” and that they deny any health issues could be related to the vaccine.
[99] The interview concludes with the statement that “You don’t go to ED unless something is seriously wrong”. The Tribunal finds this statement very concerning as it gives the wrong message to a vulnerable population.
[100] As confirmed by Ms [T] in her evidence, this statement is highly misleading. There are a range of reasons why people will attend the ED. The public is encouraged to attend the ED before something goes seriously wrong.
[101] Particular 2 is established and amounts to malpractice and conduct that has brought discredit to the profession.
Liability finding
[102] The Tribunal is satisfied that that the established conduct set out in particulars 1 and 2 each fall short of the conduct expected of a nurse.
[103] Both of these statements, as itemised in particulars 1 and 2, were inappropriate statements related to the COVID-19 vaccine injuries and disparaging comments about colleagues at Christchurch hospital.
[104] We accept the PCC’s submissions that Ms Green’s conduct was in breach of the standards in the Code of Conduct principles, 3.1, 3.8, 6.4, 7.1, 7.2 and 8.1 set out below:
Principle 3: Work in partnership with health consumers to promote and protect their wellbeing.
Standard 3.1: Explain and share information with health consumers that they want and / or need. Give health consumers information that is honest and accurate in a way they can understand and invite questions.
Standard 3.8: Use your expertise and influence to promote the health and wellbeing of vulnerable health consumers, communities and population groups.
Principle 6: Work respectfully with colleagues to best meet health consumers’ needs.
Standard 6.4: Your behaviour towards colleagues should always be respectful and not include dismissiveness, indifference, bullying, verbal abuse,
harassment or discrimination. Do not discuss colleagues in public places or on social media. This caution apples to social networking sites, e.g. Facebook, Blogs, emails, Twitter and other electronic communication mediums. [Emphasis added]
Principle 7: Act with integrity to justify health consumer’s trust.
Standard 7.1: Be open and honest in your interactions with health consumers.
Standard 7.2: Protect vulnerable health consumers from exploitation and harm.
Principle 8: Maintain public trust and confidence in the nursing profession.
Standard 8.1: Maintain a high standard of professional and personal behaviour. The same standards of conduct are expected when you use social media and electronic forms of communication.
[105] The Social Media Guidelines recognise the nurses will use social media in their personal lives. However, nurses are responsible for maintaining the standards of expected professional behaviour.
[106] In relation to particular 1 and the alleged vaccine injuries, Ms Green spoke in a manner that implied her expertise and experience was drawn on her role as a nurse working in the ED at Christchurch Hospital.
[107] In relation to particular 2, the comments of the unidentified male ED doctor were particularly disparaging of her medical colleagues and by implication the whole clinical team in the ED. There is an element of scaremongering in the way Ms Green’s descriptions of the ED setting is portrayed.
[108] On an objective analysis the Tribunal is satisfied that the conduct established in the two particulars, separately and cumulatively, amount to malpractice and brings or is likely to bring, discredit to the nursing profession.
[109] In Ms Green’s letter to the Tribunal dated 25 September 2023 she stated:
What I said regarding vaccine injuries / adverse reactions and how they were being treated by health professionals at the time, was truthful. I therefore consider it appropriate to raise this as part of the general discourse on vaccinations, as occurs in a free and democratic society. That said ... I did exaggerate the concerns I had, which I did not mean to do. For this I do wish to apologise. [Emphasis added]
[110] Counsel for the PCC accepted that the New Zealand Bill of Rights Act 1990 (NZBORA) applies, in particular s 14, which states:
14 Freedom of expression
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.
[111] Section 5 of the NZBORA provides that the right to freedom of expression:
... may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[112] The Tribunal does not have the benefit of any further explanation by Ms Green about her statement that she considered it appropriate to raise the general discourse on vaccinations as occurs “in a free and democratic society”, when she has acknowledged that she did exaggerate those concerns in the video interview.
[113] In Canaday, Judge Harrop made the following assessment in response to Dr Canaday’s submission that he has the right to freedom of expression under s 14 of the NZBORA in respect of his public views on the COVID-19 vaccination.43
The right to freedom of expression that Dr Canaday strongly asserts and holds dear must yield to some extent in the context of professional responsibility. As Mr Mount points out the Court of Appeal has held as much in the legal professional disciplinary case of Orlov v New Zealand Law Society44:
We agree that with Heath J 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. Excessively aggressive or scandalous conduct that breaches those obligations will not qualify for protection under the right of freedom of expression.
44 [2013] NZCA 230 at [77].
[114] The Tribunal considers that the statements made by Ms Green in her video interview must be taken in the context of a public health emergency in circumstances where those who were uncertain about whether to get vaccinated were especially vulnerable to being misled. Her comments were inaccurate and disparaging of her colleagues in the ED at Christchurch Hospital.
[115] Ms [T], the [position] at Canterbury DHB, was asked what opportunity there was for someone such as Ms Green to express her views and have an informed discussion about the COVID-19 vaccination in a safe environment with colleagues.45
[116] Ms [T] responded that all managers were able to meet with the staff and discuss these issues one-to-one, rather than in an open environment. This was because staff sometimes felt that they could not raise these issues in front of other staff. Support was also offered to staff so that they could speak with experts at Christchurch hospital, such as Dr Ramon Pink.
[117] When speaking publicly, Ms Green was required to adhere to the professional responsibilities expected of a nurse. While the right to freedom of expression is engaged, in the circumstances of Ms Green’s statements, it is not protected and the s 5 limitation on this right applies.
Is the disciplinary threshold met?
[118] The second step of the Tribunal’s assessment of professional misconduct is for the Tribunal to consider whether it is satisfied that the acts or omissions by Ms Green are a sufficient departure from professional standards that warrant a disciplinary sanction.
[119] We are satisfied that the conduct was deliberate and highly unethical. For that reason, we consider the conduct is one of malpractice rather than negligence.
[120] In PCC v Canaday,46 the PCC alleged in particular 11 of the Charge that the comments made by Dr Canaday were disparaging and / or amounted to unprofessional criticism of other health practitioners and had the potential to encourage criticism of other health
professionals. The Tribunal found that particular 11 did not meet the disciplinary threshold for professional misconduct. The Tribunal stated: 47
The Tribunal finds that these comments are disparaging in the sense that Dr Canaday is saying that salaried doctors do not have independent thought and are more susceptible to bullying tactics and to that extent might have the potential to encourage criticism of other health practitioners. Particular 11 is established, but on its own does not amount to professional misconduct.
[121] In contrast to Cannady, in the respect of both particulars in this case, we are satisfied that Ms Green was indirectly identifying her nursing and medical colleagues in the ED. Although the specific doctor was not identified, Ms Green was identifying the ED team of nurses and doctors. She was specifically suggesting that the clinical team were turning “a blind eye” to vaccine injuries. Furthermore, she was holding herself out as an expert amongst her colleagues when that was not the case. She had no basis to be speaking authoritatively about the circumstances of the ED.
[122] We are satisfied that Ms Green’s conduct brings discredit to the nursing profession by making disparaging comments and undermines the trust and confidence in the nursing profession.
[123] The initial notification to the Nursing Council was from a community health care trust followed by seven independent notifications from health professionals and members of the public who had viewed the video interview once posted on Facebook.
[124] The notifications for example, included a complaint that: “the nurse is spreading misinformation about those in hospital with Covid.”48
[125] Concerns were raised about the misinformation on the video suggesting that:49
47 PCC v Canaday Med 22/575P at [277].
This nurse..... guarantees all cardio related patients in our wards are because of vaccine damage to Chantelle Baker{sic)....” Meanwhile our providers and DHBs are trying hard to reach and save the lives of the same vaccine hesitant people.
[126] One notifier had already reported the video to Facebook and stated that,
She is doing so in her role as an apparently registered nurse. I believe that this poses a risk of public harm and brings the profession into disrepute.”
[127] Reasonable members of the public informed and with the knowledge of all the facts and circumstances would likely conclude that the reputation and good standing of the nursing profession has been lowered by Ms Green’s very public statements in a misleading authoritative tone about the circumstances she described in the ED.
[128] In Ms Green’s letter to the Tribunal, she states that she regrets she gave the interview but the information that she shared in the interview was truthful but exaggerated. She maintains that her conduct does not amount to professional misconduct.50
[129] Ms Green has described herself as vulnerable due to losing her employment as a nurse by not following the vaccine mandate. The practitioner’s personal circumstances at the time of the events in question, including the subjective reasons for the conduct are not relevant to the Tribunal’s decision about the disciplinary threshold, but instead go to the question of penalty.51
[130] The video interview was undertaken during the course of the COVID-19 pandemic in circumstances where those who were uncertain about whether to get vaccinated were likely to be especially vulnerable to being misled. Ms Green was not an expert as she portrayed and had no legitimate authority to purport to whistle blow about the circumstances of the ED to Christchurch.
50 Letter date 25 September 2023.
51 McKenzie v MPDT [2004] NZAR 47 at [71]; Cole v PCC [2017] NZHC 1178, [128]-[130].
[131] Her conduct carried a significant likelihood of undermining the public trust and confidence in both the public health response to the COVID-19 pandemic and the nursing profession.
[132] The Tribunal is satisfied that Ms Green’s conduct is a serious departure from the Code of Conduct and Social Media Guidelines. The Charge of malpractice and bringing discredit to the profession is established pursuant to s 100(1)(a) and (b) of the Act and warrants a disciplinary sanction for the purpose of protecting the public and maintaining professional standards.
Penalty
[133] Having found the Charge established, the Tribunal must go on to consider the appropriate penalty order under s 101 of the Act. The penalties may include:
- (a) Cancellation of the practitioner’s registration;
- (b) Suspension of the registration for a period not exceeding three years;
- (c) An order that the practitioner may only practise with conditions imposed on employment, supervision or otherwise;
- (d) Censure;
- (e) A fine of up to $30,000; and
- (f) An order that the costs of the Tribunal and/or the PCC to be met in part or in whole by the practitioner.
[134] The Tribunal adopts the principles contained in Roberts v Professional Conduct Committee,52 where Collins J identified the following eight factors as relevant whenever the
52 [2012] NZHC 3354 per Collins J at [44]-[51].
Tribunal is determining an appropriate penalty. In particular, the Tribunal must consider the penalty that:
(a) most appropriately protects the public and deters others;
(b) facilitates the Tribunal’s important role in setting professional standards;
(c) may punish the practitioner, though this is not the objective of any penalties;
(d) allows for the rehabilitation of the practitioner;
(e) promotes consistency with penalties in similar cases;
(f) reflects the seriousness of the misconduct;
(g) is the least restrictive penalty appropriate in the circumstances; and
(h) looked at overall, is the penalty which is “fair, reasonable and proportionate in the circumstances.”
[135] There are several factors that are relevant to assessing what penalty is appropriate in the circumstances. The primary factor will be what penalty is required to protect the public and to deter similar conduct. The need to punish the practitioner can be considered but is considered of secondary importance as noted by Keane J in A v Professional Conduct Committee.53
[136] As noted by Williams J in Katamat v Professional Conduct Committee,54 citing A v Professional Conduct Committee,55the overall decision is ultimately one involving an exercise of discretion.
53 A v Professional Conduct Committee.
54 [2012] NZHC 1633, [49]-[53] 21 December 2012.
[137] Mr McClelland KC, counsel for the PCC submitted that the following penalties are appropriate in this case: censure, a condition that Ms Green complete a course on professional ethics as approved by the Nursing Council followed by a written reflection on professional responsibility regarding both social media and the principles in the Code of Conduct; and further that a condition that Ms Green must disclose this information and the Tribunal’s decision to any potential employer for a period of 12 months.
[138] Counsel for the PCC submitted that there were a number of aggravating factors that the Tribunal should take into account and noted some mitigating factors. These are addressed below.
[139] In PCC v Tepou,56 Ms Tepou received a 12-month suspension of her registration, censure and conditions following the resumption of practice. Ms Tepou did not engage in the Tribunal process at all and did not attend the hearing of the Charge.
[140] In PCC v Smart57 the Tribunal ordered a period of six months’ suspension from practice, censure and the two conditions sought by the PCC.
[141] Ms Smart made a number of Facebook posts (and re-posts) at a time when largely she was not practising as a nurse. However, the Tribunal found that whilst it would have considered a period of three months’ suspension would have been appropriate, the aggravating factor was that Ms Smart’s posts involved two crucial public health occurrences: firstly, at the time of the of measles, mumps and rubella (MMR) epidemic in 2019, and secondly, during the COVID-19 pandemic in 2021 – thus suspension for the two periods “3 + 3” months, a total of six months suspension was imposed by the Tribunal
[142] We do not consider that the conduct in question here is as serious as in the case of PCC v Hugill58 where the practitioner made racist generalisations about Māori nurses within the
Taranaki region, which the Tribunal found offensive, inappropriate and derogatory of Māori and other nurses. There was a second charge for practising while suspended from practice. The Tribunal found the practitioner’s conduct was malpractice and brought discredit to the profession and fell well short of the expectations within the Code of Conduct and Social Media Guidelines, resulting in cancellation of the practitioner’s registration.
Aggravating and mitigating factors
[143] We address the aggravating and mitigating factors as summarised by the PCC and note that some of the aggravating factors submitted by the PCC fall into the category of being considered part of the established Charge rather than aggravating circumstances that raise the severity of the Charge.
[144] The Tribunal takes into account the following aggravating factors when determining the appropriate penalty:
- (a) Ms Green attended the protest in her Canterbury DHB uniform wearing her Registered Nurse badge and employee identification tags. We consider that there was no doubt that she was identifying as a nurse. In the lead up to the Freedom March and the organisers had told that for those who had lost their jobs to wear their uniforms as a show of solidarity.59
- (b) Ms Green made very deliberate statements when interviewed by Ms Baker, a prominent social influencer known for her anti-vaccine and anti-mandate views. Ms Green would have been well aware of her far-reaching audience. One of the notifications to the Nursing Council confirmed that at the time of their complaint 5,000 people had shared the post. In addition, the screenshot of the video shown on Ms Baker’s Facebook page showed 2,500 “shares”60 and nearly 22,000 “likes”.61 The screenshot of the video interview stated:
60 Bundle, p 31 Screen shot of Chantelle Baker Facebook page.
Deborah is a nurse from New Zealand, she has recently been pushed from her role in the CDHB and says she i... See more
(c) Ms Green’s disparagement of her medical colleagues at the ED at Christchurch Hospital, included criticising their clinical judgement and decision-making. Although no individual doctor is identified, they are an identifiable team of approximately 11 senior registrars. Ms Green also made disparaging comments of her nursing colleagues by suggesting that they were dismissive of patients’ concerns. These disparaging statements were inappropriately made in a public forum.
(d) Ms Green inappropriately assumed the role as an expert without any robust or balanced evidence of her criticism of her colleagues or claims she made as to the extent of the vaccine injuries. Ms Green misrepresented herself as an ED nurse, when in fact she was a nurse in a casual pool who on some occasions worked in the ED.
(e) Ms Green represented the functioning of the ED at that time. She said that the “segregation” of patients in the ED was a result of patients’ non-vaccination status, when the reason for their isolation was for the health and safety of those patients who were not vaccinated and therefore were vulnerable to infection. Her exaggerations included that it was not usual for the ED to have so many patients presenting with cardiac problems when it is typical for an ED.62
(f) Ms Green did not attempt to raise any specific concerns about patient care with her colleagues through the appropriate channels. If a nurse has a specific concern about patient safety, they are ethically required to discuss those concerns with the health professional concerned and / or report to an appropriate person. As an experienced nurse, the Tribunal considers that Ms Green would have been well aware what the accepted process was.
(g) Ms Green did not accept that her actions amounted to professional misconduct and she has not participated in the Tribunal proceedings.
[145] The following are mitigating factors:
- (a) Ms Green stated that she turned up to the Freedom March unprepared for an interview and was caught off-guard when she was asked to be interviewed. Whilst Ms Green described herself as feeling uneasy and vulnerable, her friends encouraged her to do the talk on behalf of them. She describes her feeling of grief around that time after losing her job. She had been registered for 20 years and she faced the prospect of being unable to financially provide for her family, something that she took pride in.
- (b) In her letter dated 25 September 2023 to the Tribunal, Ms Green apologised to the Tribunal. Although not accepting that her conduct amounts to professional misconduct, Ms Green has expressed her regret at participating in the interview and demonstrated some insight into the way in which her actions have reflected poorly on the hospital and on her health professional colleagues who worked there.
- (c) Ms Green did engage with the PCC investigation and meeting and with the Tribunal up to one month before the hearing. She provided a statement and was represented at the PCC meeting.
[146] Counsel for the PCC submitted that a mitigating factor was that Ms Green did not actively pursue a public “campaign” against the COVID-19 vaccination. We are not persuaded that this was a mitigating factor. While Ms Green’s actions may have been precipitous and possibly naïve, she did deliberately undertake an interview with Ms Baker knowing the far reach of the audience.
[147] The Tribunal agrees with the PCC submission that it is inexplicable that Ms Green has chosen not to participate in these proceedings. Ms Green stated herself that she is aware that
health practitioners should co-operate when faced with disciplinary proceedings. Whilst this is her right, it is nonetheless perplexing choice for a nurse of 20 years’ registration who apparently wishes to keep practising.
[148] The PCC submitted that Ms Green’s conduct is not sufficiently serious to warrant a suspension or cancellation of her registration. We disagree.
[149] Having given careful consideration to the PCC’s submissions and Ms Green’s statements including her most recent letter to the Tribunal, the Tribunal considers that a period of three months’ suspension of Ms Green’s registration is proportionate to reflect the seriousness of the professional misconduct in this case.
[150] An order for suspension is also a deterrent to others to recognise the importance of maintaining professional standards and the trust and confidence that is placed in the nursing profession.
[151] A relatively short period of suspension is also consistent with comparable cases regarding practitioners who speak inappropriately and in a misleading manner through social media and / or video or radio communications.
[152] We do not consider the matter is as serious as Tepou where Ms Tepou received a 12- month suspension of her registration, censure and conditions following the resumption of practice. There was clear pre-meditation by the nurse in that case. Ms Tepou did not engage in the Tribunal process at all and did not attend the hearing of the Charge.
[153] In PCC v Smart the Tribunal ordered a period of six months’ suspension from practice, censure and the two conditions sought by the PCC.
[154] We consider Ms Green’s conduct is more comparable with Smart. In Smart the nurse received 6 months suspension - “3 + 3” months – for the two distinct periods of professional misconduct.
[155] In the circumstances of this case, the video interview was one period of professional misconduct which justifies a period of three months suspension from practise. Ms Green
ought to have been well aware of the impact of her public video interview and the impact the video interview could have on the vaccine-hesitant population.
[156] The Tribunal considers that suspension is appropriate because although Ms Green expressed regret for the interview and the admitted exaggeration of her claims, there is no indication to the Tribunal in her recent letter that she has shifted her stance or engaged in any rehabilitation or professional development.
[157] In addition to the conditions sought by the PCC to apply upon Ms Green’s return to practice, she is to undertake a course focusing on evidence-based practice which aims to help nurses comprehend and assess credible and thorough research evidence. Irrespective of personal viewpoints, nurses are expected to regularly access and meticulously analyse research to better inform healthcare practices.
[158] There will also be censure to mark the Tribunal’s disapproval of Ms Green’s conduct.
[159] In summary, the Tribunal makes the following penalty orders:
- (a) The practitioner’s registration is suspended for a period of three months as at the date of this decision pursuant to s 101(b) of the Act;
- (b) The practitioner is censured pursuant to s 101(1)(d) of the Act to mark the Tribunal’s disapproval of her conduct by making inappropriate comments related to COVID-19 vaccine injuries made in a widely disseminated video interview and disparaging and unbecoming comments about her medical and nursing colleagues, contrary to standards expected of a registered nurse.
- (c) The following three conditions apply upon Ms Green’s recommencement of practice pursuant to s 101(1)(c) of the Act as follows:
- (i) Within six months of recommencing practice as a registered nurse following suspension, the practitioner is to complete the following courses at her own expense: firstly, a course on professional ethics and secondly, a course on
research and evidence-based practice, both courses to be approved by the Nursing Council;
(ii) The practitioner is to obtain professional supervision for a period of 12 months to be approved by the Nursing Council at her own expense; and
(iii) The practitioner must disclose this information and the Tribunal’s decision (when it is available) to any employer or potential employer for a period of 12 months from the date of this decision.
Costs
[160] The Tribunal may order the practitioner to pay part or all of the costs and expenses of and incidental to the PCC’s investigation and prosecution, so far as they relate to the subject matter of the Charge and the costs of the hearing by the Tribunal.63
[161] Costs in any health professional disciplinary proceeding involves a judgement as to the proportion of the costs which should be properly borne by the profession as a whole (being responsible for maintaining standards and disciplining its own profession) in a proportion which should be borne by a practitioner who has caused the costs to be incurred. 64
[162] The PCC costs in relation to its investigation and this prosecution are estimated as
$27,769.32. The Tribunal’s costs are estimated at $34,142.06. This is a total of $61,911.38.
[163] An award of costs is not intended to be punitive and the practitioner’s means, if known, should be considered.65
[164] At the conclusion of the hearing the Tribunal issued a Minute and offered the practitioner an opportunity to provide supported evidence of her financial means if she chose to do so. An email response was received from Ms Hilary Max on behalf of Ms Green directed
63 Health Practitioners Competence Assurance Act 2003, s 101(f).
64 Cooray v Preliminary Proceedings Committee HC Wellington, AP23/4 Doogue J, 14 September 1995;
Vatsyayann v PCC [2012] NZHC
1138.
65 Vatsyayann
v PCC [2012] NZHC 1138.
at the proposed conditions and there was no submission received on the proposed costs order. 66
[165] The Tribunal is satisfied that the total costs are reasonable. We are aware that the practitioner is working in aged residential care and therefore appears to be in employment. However, counsel for the PCC have not had the opportunity to discuss any aspect of the hearing with Ms Green. The Tribunal were advised that the PCC provided a copy of their submissions to her in advance of the hearing.
[166] The Tribunal is satisfied that the costs are reasonable especially in light of the additional steps needed to be taken for a formal proof hearing when the practitioner does not defend the Charge. Due to Ms Green’s co-operation at the initial stages of the PCC investigation and her legal representation prior to the hearing, albeit that she declined to attend the hearing, we are satisfied a reduction of the starting point of 50% by 20% is fair, reasonable and proportionate.
[167] The practitioner is to pay a contribution of 30% of the total costs to both the PCC and the Tribunal, in proportion to those costs, to be fixed at $18,000.00.
Non-publication orders
[168] The practitioner has not made an application for permanent name suppression and her interim name suppression will lapse as at the date of this decision.
[169] Counsel for the PCC sought permanent non-publication orders under s 95 of the Act for the two witnesses in relation to the disciplinary hearing and the six complainants who gave notifications about Ms Green’s conduct to the Nursing Council.
[170] They are:
- (a) [Ms T]
(b) [Ms S]
(c) [Mr N]
(d) [Mr A]
(e) [Ms G]
(f) [Ms E]
(g) [Ms L]
(h) [Dr M]
[171] The Tribunal is satisfied that the non-publication order sought is desirable to protect the privacy of those persons who made notifications to the Nursing Council and gave evidence for the hearing of the disciplinary charge. There is no public interest in knowing the identity of the complainants or the two witnesses in the hearing.
[172] The Tribunal makes an order under s 95 of the Act for permanent suppression of the names of any of the two witnesses and six complainants who notified the Nursing Council, in relation to this Charge. The Order does not apply to the practitioner.
Results and orders of the Tribunal
[173] The one Charge with two particulars of professional misconduct is proved as malpractice and bringing discredit to the nursing profession both separately and cumulatively as professional misconduct under s 101(a) and 101(b) of the Act.
[174] The Tribunal makes the following penalty and cost orders:
- (a) The practitioner’s registration is suspended for a period of three months as at the date of this decision pursuant to s 101(1)(b) of the Act;
[175] Ms Green’s interim non-publication order of her name and identifying details will lapse as at the date of this decision.
[176] The PCC’s application for permanent name suppression of the names of the two witnesses and six complainants who made notifications to the Nursing Council will be made permanent pursuant to s 95 of the Act.
They are:
(a) [Ms T]
(b) [Ms S]
(c) [Mr N]
(d) [Mr A]
(e) [Ms G]
(f) [Ms E]
(g) [Ms L]
(h) [Dr M]
[177] Pursuant to s 157 of the Act, the Tribunal requests the Executive Officer:
- (a) To publish this decision, and a summary, on the Tribunal’s website; and
- (b) To request the Nursing Council to publish either a summary of, or a reference to, the Tribunal’s decision in its next available publication to members, in either case including a reference to the Tribunal’s website so as to enable interested parties to access the decision.
DATED at Dunedin this 15th day of March 2024
A J Douglass Chair
Health Practitioners Disciplinary Tribunal
SCHEDULE PARTICULARS OF AMENDED CHARGE
TAKE NOTICE that a Professional Conduct Committee appointed by the Nursing Council of New Zealand pursuant to section 71 of the Health Practitioners Competence Assurance Act 2003 (“the Act”) has determined, in accordance with section 80(3)(b) of the Act, that the complaint about the conduct of Debra Elizabeth Green, (“Ms Green”) registered nurse of Christchurch, referred to the Committee pursuant to section 68(1) of the Act, should be considered by the Health Practitioners Disciplinary Tribunal. The Professional Conduct Committee has reason to believe that grounds exist entitling the Tribunal to exercise its powers under section 100 of the Act.
CHARGE
1.0. That on or about 20 or 21 November 2021, Ms Green in her role as a registered nurse participated in a video interview with Chantelle Baker, where Ms Green communicated inappropriate rhetoric related to COVID-19 vaccine injuries and/or made comments which were disparaging of other health professionals. In particular:
Particulars:
1.1. Ms Green stated during the interview about COVID-19 vaccine related injuries:
“See the bulk of the patients would be vaccinated. If you’re not vaccinated you get segregated, you get put in a different part of ED, put into isolation and people, they just, I mean I had one consultant on my last night, she stood in front of our big board with everybody, all the patients and all their symptoms and she said, what’s going on? Why have we got so many patients, it's all cardiac, cardiac, cardiac, short of breath, you know, collapses, falls and I just can say – tick, tick, tick, this is adverse reaction, adverse reaction. All of our wards are full, you know, of people having cardiac problems, people with flare ups from their cancer, like you name it. It’s just, I guarantee a hospital is full of vaccine damaged, it’s just, people were blind, people just cannot see it”.
1.2. “So, I mean I’ve heard of, it depends on the doctor. So, when a person comes into ED, it really depends on who they get looking after them. I’d say the majority of doctors are pretty blind themselves and will swear black and blue that whatever they’re going through is nothing to do with the, you know, with the vaccine. The odd, depending on how severe, the odd, you know, doctor will say oh this, this could be the vaccine, you know. Like you get a disgustingly healthy 30-year-old guy, has not got any lung issues, cardiac issues and he’s in having acute chest pain, you know, the constant feeling of pressure on his chest, shortness of breath and yet he’s healthy. And they’re like oh well, maybe it could be from, you know, your second jab that you got three days ago. But and so they’ll run tests, in fact, I had one doctor – so I did blood tests on this guy and I said, oh I reckon we should get a D-Dimer, which is the test to look for, you know, presence of blood clots in the body and he’s like, oh yeah, I suppose you could do that. So, I did a D-Dimer, it came back and it was through the roof, it was like a thousand and a D-Dimer should be zero and he’s like, he just turns to me and said, you know what, I wish I’d never taken that blood test. And I’m like, okay, well you have now so you’re obligated to do something about it. So, you know, the blood test wouldn’t have been done, he would have gone home, he could have died at home . . .
. . . Because now he’s got to follow through and he’s got to do all the tests whereas, you know, like the, a lot of nurses in the background were like oh, you know, like it’s just the same old, people are assuming it’s the vaccine, there’s nothing wrong with the vaccine, it’s you know, he’s anxious or he’s got anxiety or he’s, you know, it’s all in his head. This is what nurses are saying, it’s all in people’s head, you know. You don’t go to ED unless something is seriously wrong”.
In respect of particulars 1.1 and 1.2 the PCC relies on the full context of the video recording.
The conduct alleged in Charge 1.0 amounts to professional misconduct pursuant to section 100(1)(a) and/or (b) of the Act and particulars 1.1 and 1.2 either separately or cumulatively, are particulars of that professional misconduct.
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