CMDFA NSW Conference on Moral Injury
17 MINUTE READ
This paper gives a brief overview of recent developments in health regulation in Australia. It provides a context for understanding the current interplay between health regulators, codes of conduct and health practitioners who are operating on the front line of medical practice, day in and day out all around Australia.
A notable Monty Python comedic routine from the 1970s television show is centred on the surprise appearance of the Roman Catholic inquisitors into an otherwise ordinary domestic conversation. When someone states, “I wasn’t expecting the Spanish Inquisition”, they appear in a cloud of smoke remarking, “Nobody expects the Spanish Inquisition – our chief weapons are fear, surprise, a ruthless efficiency and an almost fanatical devotion to the Pope.”
In Australia, health regulators have extraordinary power to determine what constitutes offences of “heresy” by medical practitioners. In the case of doctors whose political and religious convictions do not align with the latest cultural ideology, these sins are not considered venial, but are considered mortal and worthy of the most serious punishment.
Health practitioners are bound by the codes of conduct and ever-increasing numbers policies that are released by AHPRA and the Medical Board.
Health practice regulators are increasingly kerbing healthcare worker freedoms with regulation of far more than just clinical care and professional ethics. In the standards that bind doctors, there is an increasing creep of contestable ideological concepts about issues like cultural safety, colonisation and systemic racism. These standards for doctors are becoming increasingly politicised and the risk is overreach into practitioners’ personal lives and the censorship of their fundamental freedoms.
“There is an increasing likelihood that religious practitioners will risk moral injury from the binding of their conscience.”
As such, there is an increasing likelihood that religious practitioners will risk moral injury from the binding of their conscience. Doctors will face the profound psychological distress which results from the choice to speak what they believe or to violate their own moral and ethical code in assenting to things which are fundamentally inconsistent with their deepest held convictions about truth, goodness and proper health care.
This really is moral Injury – to force a person to call what they believe to be true a lie and vice versa. There is a good reason that in the book 1984, the Party mentally tortures Smith and breaks him by forcing him to declare that, “2 + 2 = 5.” Such a claim to control objective reality causes fundamental stress and moral injury.
That all sounds overly dramatic, doesn’t it? And indeed, we don’t live in 1984. But the seeds are there for this kind of moral injury to practitioners to become a more regular occurrence as doctors face a modern version of the Spanish Inquisition.
Case study: Dr Jereth Kok
Dr Jereth Kok is a Chinese-Australian resident of Victoria. Jereth is married with two children. He has been practicing as a general practitioner for over ten years in a Melbourne family practice. Jereth has never been the subject of any clinical complaint about his practice.
Jereth is a devout Christian with strong conservative opinions. He likes to share them on social media. Many of his opinions relate to life, marriage, identity and sexuality. On Facebook and other social commentary internet sites he would regularly post his opinions and comments on both contentious and mundane religious and social issues.
In March 2018, an anonymous person (not a patient) complained to the Medical Board about one of Jereth’s Facebook posts that was allegedly in bad taste following the 2017 Flinders Street terrorist attack.
The Medical Board failed to notify Jereth about the complaint (as required by law) but conducted an investigation without his knowledge.1 Twelve months later, in March 2019, the Medical Board formally advised Jereth of the complaint and set out four allegations with a requirement for him to explain. Jereth responded within a month.
Unknown to Jereth, in May 2019, a second anonymous person (again, not a patient) complained to the Medical Board that Jereth had made offensive internet posts.
The Medical Board again failed to notify Jereth of this second complaint. The Medical Board also failed to provide Jereth with 3-monthly progress updates of their investigation, as is required by law.2
In late August 2019, on a Friday afternoon, Jereth was hit with an avalanche of correspondence from the Medical Board.
(a) Firstly, the Medical Board withdrew three of their four original allegations.
(b) Secondly, the Medical Board advised of the second complaint and provided him with a copy.
(c) Thirdly, the Medical Board wrote Jereth to advise that before he was even aware of the complaint, the Medical Board had met and decided that it proposed to suspend Jereth from practice using emergency powers. He had less than a week to prepare for a hearing before the Medical Board and less than two business days to prepare submissions on a complaint he had just received.
The Medical Board provided Jereth with a document of more than two thousand pages containing his complete internet-posting history. The Medical Board had scoured this in order to cherry-pick around thirty posts from a ten-year period that it used to determine that it was in the public interest that he should be suspended.
Jereth appeared before the Medical Board less than one week later on 22 August 2019. To the extent possible, he had removed all of the identified posts from the internet and he undertook to maintain complete internet silence until the Medical Board investigation was complete. The Medical Board was not satisfied and suspended Jereth immediately pending a full investigation and trial. He lost his job less than a week after finding out that it was under threat.
“That this law has made it onto Australian law books is concerning.”
On the advice of his medical defence insurer, and represented by their legal team, Jereth appealed the Medical Board’s decision to the Victorian Civil and Administrative Appeals Tribunal. On 28 February 2020, there was a hearing. On 27 March, the Tribunal published a decision rejecting that appeal.3 The Tribunal, consisting of a legal member and two doctors, decided that the Medical Board’s use of emergency powers was appropriate – Jereth must remain suspended.
Jereth has been unable to work for eighteen months at the time of writing this article, and remains unable to work as a doctor. He is at the mercy of the timing of the Medical Board’s investigation and their stated intention to strike him off the Medical Register for good when the matter finally goes to trial.
Jereth is a good doctor. He does his job well. He treats his colleagues well. He treats his patients well. That apparently doesn’t matter to the Medical Board. Solely on the basis of his internet posts, this good doctor can’t join other doctors on the front lines of the battle against a deadly disease in 2020.
This happened not because Jereth did the wrong thing but because Jereth said the wrong thing – all this originating from an anonymous complaint.
Jereth’s case raises key concerns about freedom of speech and the power of health regulators to threaten those freedoms using legal powers. All doctors are subject to the oversight of the Medical Board of Australia under the Health Practitioner Regulation National Law. This law gives the Medical Board (a bureaucratic and administrative body) exceptional power over doctors and other health practitioners. It allows them to take immediate action to suspend a doctor in a number of prescribed circumstances. These circumstances are not carefully defined and in fact the laws were amended in 2018 to give the Medical Board wider powers to take action against doctors where it is “in the public interest” to “uphold public confidence in the provision of services of medical practitioners.”
That this law has made it onto Australian law books is concerning. It is a great threat to fundamental freedoms to give far-reaching powers of censure to unaccountable administrative bodies. It is also extremely problematic for laws to provide vague and imprecise grounds such as “the public interest” on which those powers can be exercised.
Oftentimes, the people administering these laws are members of a class of society that is uniform in socio-political viewpoint and part of a privileged administrative class that is so isolated from the “public” that they are least qualified to determine what is in accordance with the public interest.
“More excellent doctors like Jereth will be targeted for their views on life, marriage, gender and sexuality rather than for real tangible issues of clinical practice.”
The biggest threat of these laws is to freedom of speech. The Tribunal observed that Jereth has “clear conservative leanings,” and he expressed his views strongly. The problematic posts related to abortion, sexuality and transgender issues and there were also suggestions that his posts could be read as supporting violence and racism. The Tribunal considered that there is a risk that Jereth’s convictions on these matters might bleed into his practice. The subtext seems to be that there is a reverse onus on conservative voices to positively prove that their views will not adversely affect their medical practice. This has the effect of silencing alternate points of view and dissenting voices.
Consider some of the comments made by doctors when this story was published in Australian Doctor news:
“‘There is no doubt that Dr Kok… has clear conservative leanings.’ And there you have it folks. What need we have of due process (or even to release the evidence)? ‘Thought Crime’ is a crime in the Peoples (sic) Republic of Victoria!”
“I would comment but not anymore.”
“Far to (sic) dangerous to comment. Disgusting result.”
“I’ve just committed a ThoughtCrime (sic) by reading this.”
Jereth’s case is also a disturbing example of how regulatory procedures can be weaponised to cancel people who hold and express unfashionable ideas and views. ‘Cancel Culture’ promotes destroying someone’s livelihood because of what they say. Speech is not met with speech. Speech is met with cancellation – boycotting, discipline and career threats. Cancel Culture targets the player and not the ball. Generally, this is done through social media campaigns and public backlash is supported by complicit media reporting to cancel a celebrity or an entertainer.
Disturbingly, this modus operandi appears to be making its way into law and the rules that govern professions in Australia. In Jereth’s case, the anonymous complainer(s) could have engaged with Jereth’s ideas instead of complaining. They did not. The best way to respond to bad ideas is with good ideas. This allows viewpoint diversity and prevents bad ideas from becoming orthodoxy simply because those who have other ideas are erased. The complainants did not engage with ideas but instead chose to attack Jereth’s career. The Medical Board decided to enthusiastically take up those complaints and to use the full extent of their powers to suspend Jereth.
It is also clear that the Covid-19 pandemic has not quarantined this administrative urge towards Cancel Culture. The Tribunal in review acknowledges that there is a public interest for doctors to be able to practice, particularly “in the current health climate where it is readily foreseeable that health services may be stretched to their capacity”. It matters not that we are in a world medical emergency not seen for a century and that Jereth has never had a clinical complaint. Jereth’s career is cancelled. He cannot practice medicine. He cannot contribute to the fight against the coronavirus, not because of any shortcoming of his practice, but because of the risk that his opinions might bleed into his practice.
“The Medical Board decided to enthusiastically take up those complaints and to use the full extent of their powers to suspend Jereth.”
Recent changes to social media policies and codes of conduct
AHPRA has recently updated its medical Code of Conduct and Social Media Policy. Unfortunately, the changes impose progressive ideology on doctors, nurses and carers. They also expand the regulator’s powers to intrude into the personal lives of health professionals and police the expression of their social, political and religious beliefs.
This is another step towards legislated Cancel Culture and forces doctors into accepting and espousing contentious ideology for fear of losing their jobs. More excellent doctors like Jereth will be targeted for their views on life, marriage, gender and sexuality rather than for real tangible issues of clinical practice.
Changes to social media policy
AHPRA updated its Social Media Policy in 2019.4 The new Social Media Policy intrudes into the personal beliefs of practitioners. It includes examples that are clear impositions on their ability to speak about their beliefs on the basis of hypothetical “harm” to certain groups.
The policy now includes a requirement stating:5
• Cultural awareness, safety and practitioner and patient beliefs – social and clinical
As a registered health practitioner, your views on clinical issues are influential. Comments in social media that reflect or promote personal views about social and clinical issues might impact on someone’s sense of cultural safety or could lead to a patient/client feeling judged, intimidated or embarrassed.
• Example 1
A health practitioner, who works in a small town makes their religious views about sex before marriage and homosexuality public by tweeting: ‘Abstinence is the best way to avoid HIV. Not sure why we are investing public dollars into developing vaccines. Just do what the Bible tells us to do’. A patient sees this and now feels concerned they cannot reveal their sexuality to the practitioner, thereby compromising their health and safety. They make a notification about discrimination.
The new policy shows the extent to which AHPRA will engage in viewpoint discrimination in favour of socially fashionable ideology. It disguises its progressive left agenda to quash doctors’ religious and political expression behind a highly contestable assertion of potential “harm”.
Changes to Code of Conduct
AHPRA has also just updated its Code of Conduct (https://www.medicalboard.gov.au/codes-guidelines-policies/code-of-conduct.aspx) for practitioners. The new Code mirrors the new Social Media Policy to extend the control of regulators over the personal lives of doctors and legislate contentious ideology.
Significant changes to the Code include:
(a) Social media guidelines: AHPRA’s social media guidelines have been specifically included as a standard for practitioner behaviour online. Use of social media is now explicitly highlighted as coming under the application of the Code. This encroaches on practitioners’ freedom of public expression and their private life.
(b) New section 2.2: A new section notes that doctors must consider the effect of their public comments outside of work, including online. This shows that AHPRA is explicit in its oversight of practitioners’ private lives and social media interaction. This is a significant overreach. The regulator should concern itself with demonstrable harm through misconduct in professional practice.
(c) Cultural safety: The concept of ‘cultural awareness’ has been changed to ‘cultural safety’. This implies that cultural sensitivity is a matter of harm and patient safety. It suggests that a practitioner who does not take cultural differences into account in treatments may be putting patients’ health at risk.
(d) Conscientious objection: A new section requires practitioners to inform their patients when their personal opinions do not align with the profession’s generally held views. This could be used maliciously, if doctors are persecuted for conservative Christian views. Various amendments also reinforce that doctors do not have true freedom of conscience anyway – they still need to give referrals to patients against their conscience.
(e) Ideological terms: References to “systemic racism” and “colonialism” have been included as matters that practitioners must be aware of and allow for in practice. These are terms that are infused with ideology and to which not all doctors would subscribe.
(f) ATSI statements: A large section has been included concerning Aboriginal and Torres Strait Islander care and safety. Much of this section is political in nature. For example, it indicates that understanding the effects of colonisation will assist in providing medical care. This is asking practitioners to be responsible for political and cultural issues that extend well beyond their profession.
(g) Bullying: A large section has been included on bullying and a requirement to report fellow practitioners. Although no one wants bullying in the workplace, the section could capture reporting for political and religious views.
Some overall implications of these changes include:
(a) Regulators now limit health practitioner’s personal freedoms: The distinction between practitioners’ professional and private lives have become blurred under the new Codes. They are an attack on freedom of speech, conscience, belief and political expression. It is concerning and telling that the Social Media Guidance says that a doctor’s personal views about social and clinical issues, “might impact on someone’s sense of cultural safety or could lead to a patient/client feeling judged, intimidated or embarrassed.” A doctor’s religious beliefs – a fundamental aspect of their identity – are to be suppressed because of hypothetical embarrassment to someone.
(b) Vague terminology will be ideologically interpreted to shut down unpopular views: Codes of Conduct are increasingly being used to shut down speech across a variety of professions. It is a standard feature of these codes to use vague and broad language so that the regulator applying the codes has maximum discretion and freedom to move in applying them.
(c) This is the politicisation of science: The medical profession is not a forum for regulators to bring culture wars. People’s physical health and wellbeing should be paramount. A health regulator should not be able to dictate a medical practitioner’s politics. It is deeply concerning that the Code says practitioners must acknowledge systemic racism – a concept promoted by cultural Marxism.
(d) Health Professionals risk their jobs for the personal views expressed outside work. A doctor can lose his job for posting something on social media that might not even be connected to medicine at all. Dr Kok’s case is an example.
A regulator should not be able to compel the speech of a doctor.
Overall, it is clear that health regulators in Australia have extraordinary power in regulating the conduct of medical practitioners. Unfortunately, Codes of Conduct and Social Media policies are also being used as a means of censoring practitioners’ fundamental freedoms. There are many potential legal implications for practitioners, as well as the potential for ongoing moral injury.
The fact that real medical practitioners are actually experiencing this reality also highlights the need for change in the way that doctors are regulated to restore doctors’ fundamental freedoms and to pull back the overreach in current regulations that allow unwarranted intrusion by the Medical Board.
A video of this talk is available to members of CMDFA. If you are not a member and would like more information please call the CMDFA Office on 02 9680 1233.
John Steenhof John Steenhof is the managing director and principal lawyer at the Human Rights Law Alliance. HRLA is a not-for-profit law firm that was established in 2019 to specialise in matters of religious freedom, freedom of conscience and freedom of speech. John has represented various individuals and organisations involved in religious liberty cases throughout Australia.
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- Health Practitioner Regulation Law (Victoria) Act 2009 (VIC), s 4; National Practitioner Regulation National Law (Queensland) (QLD), s 161(1).
- Health Practitioner Regulation Law (Victoria) Act 2009 (VIC), s 4; National Practitioner Regulation National Law (Queensland) (QLD), s 161(3).
- www.austlii.edu.au – https://bit.ly/2NCZ87f