Background
Ms Trakosas, a highly trained registered nurse, held the view that the Covid-19 vaccination programme was not evidence based and was dangerous to public health and safety. She refused to be vaccinated, and was subsequently stood down from her hospital role.
These beliefs were published on public forums and social media. For example, she had spoken at a public rally, the speech recorded and published online. The views expressed were clearly contrary to various Codes and Guides published by Ahpra and the Nursing and Midwifery Board (the Board), including the Code of Conduct for Nurses.
In April 2023, the Board alleged it had formed a reasonable belief that Ms Trakosas had practised the profession in an unsatisfactory manner. The Board decided to caution Ms Trakosas and impose education and mentoring conditions on her registration (the Decision).
Ms Trakosas sought review of the Decision. She did not challenge the Board’s reasonable belief that she had practised the profession in an unsatisfactory manner, rather, she argued that the conditions were not reasonable and/or were onerous and should be removed.
Outcome
The Tribunal accepted that Ms Trakosas still held the views she expressed publicly. However, it did not follow that Ms Trakosas currently presented any risk to public health and safety.
The Tribunal considered Ms Trakosas was unlikely to use her position as a nurse to publicly promulgate views opposed to best science again, noting the consequences suffered, including the loss of her employment.
Overall, the Tribunal agreed that an education condition requiring Ms Trakosas to undertake 4 hours of education with a social media component was reasonable. However, the mentoring conditions and the need to provide a reflective report after undertaking the appropriate education lacked utility, were not directed to any identified risk and would add nothing to public safety.
Accordingly, the Tribunal only imposed the education condition and removed the monitoring condition and the need for Ms Trakosas to provide a reflective report to the Board.
Implications
Ultimately, any action by Ahpra and the Board should be based on the need to protect the public from an identified risk. Practitioners and lawyers alike should be live to whether proposed regulatory action achieves this purpose, challenging this in appropriate circumstances.
As a final observation, we wish to highlight the Tribunal’s criticisms of the way in which the conditions were drafted by Ahpra, which were described as “turgid, technical and confusing … [and not] in plain English”.
The Tribunal commented that “perhaps it is time for all regulators of the health profession to revisit the terminology used”. We would agree with the Tribunal and urge Ahpra and the relevant Boards to draft conditions in “clear precise and plain English terms to avoid confusion, and the possible interpretation of … much more extensive and wide-ranging conditions … than is intended”.
To read the decision in Trakosas v Nursing and Midwifery Board of Australia [2023] QCAT 432, click here.
