It was agreed that the video was sent to the nurse in a WhatsApp group called ‘Christ is Coming Soon’ with the caption “be careful who you leave your kids with”. The nurse gave evidence that she went to the police station to report the video at the time, but was told that nothing could be done at a local level as the video was made in the USA. In November 2018, the nurse was reminded of the video during a conversation with colleagues at work regarding crime and punishment in Australia, and showed the video in the context of that discussion. The two colleagues were distressed by the video and raised it with their employer. The nurse was suspended from employment and subsequently resigned following a formal interview.
The Board took immediate action (revoked on appeal after the police confirmed they were not laying any charges and there was no ongoing investigation), and later filed a disciplinary complaint with the Tribunal.
The nurse unsuccessfully argued that a finding of professional misconduct, unprofessional conduct or unsatisfactory performance under the National Law required some moral wrongdoing on the practitioner’s part, some dishonesty, moral dereliction or similar deficiency of character. The Tribunal confirmed that the standards imposed by the National Law are objective and that the subjective intentions of an individual practitioner may be relevant to penalty but are not relevant to the question of whether objective standards of the profession have been met.
The Tribunal held that the nurse’s conduct amounted to professional misconduct, as her colleagues could reasonably expect that she would not show them child exploitation material of the most serious kind in the workplace, irrespective of her motives for doing so. The Tribunal considered that the nurse had breached the Code of Conduct (not to participate in unlawful conduct such as possessing the video) and the International Council of Nurses Code of Ethics for Nurses (to participate in creating a positive practice environment and maintain safe, equitable social and economic working conditions). The Tribunal accepted that the nurse was relatively inexperienced and had already suffered significant consequences from the conduct, including losing her job and being unable to find further work. However, the Tribunal remained concerned that the nurse did not fully understand why her conduct was wrong and confirmed that she needed to understand “it was wrong to keep and replay the video because its content was abhorrent and showed conduct that she knew to be criminal conduct. It was wrong to show the video to her colleagues, irrespective of her reason for doing so, because it was reasonably foreseeable that to do so would distress them”.
The Tribunal ordered that the nurse be reprimanded, with conditions requiring further education in relation to (1) working in a culturally aware and safe working environment and supporting the health and wellbeing of colleagues, and (2) the appropriate use of electronic devices and social media at work.
To read the full case of Nursing and Midwifery Board of Australia v Johnson [2020] SACAT 17, click here.