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Questions about freedom of speech in a contested, politicised pandemic environment

Alison Barrett writes:

Senior doctors have raised concerns about a decision by the Medical Board of Australia to impose conditions on the registration of a rural emergency doctor, Dr David Berger, because of his comments on social media about pandemic management.

ABC broadcaster Dr Norman Swan, a prominent Australian Medical Association member Dr Andrew Miller and public health leaders, including Professor Raina MacIntyre and Dr Peter Tait, are among those raising concerns.

From the early days of the COVID pandemic, Berger has been outspoken about government and public health responses to the pandemic, including advocating for appropriate protection for healthcare workers.

Together with Dr Andrew Miller, anaesthetist and past president of the Australian Medical Association WA Branch, Berger has recommended authorities pay more attention to the prevention of airborne transmission of the SARS-CoV-2 virus. He is known for being quite vocal and “occasionally sweary” on Twitter, according to Miller.

Miller wrote in the West Australian this week that an anonymous complaint was made about Berger’s tweets to the Australian Health Practitioner Regulation Agency (AHPRA), who are responsible for working with national health and medical boards to “ensure the community has access to a safe health workforce across all professions registered under the National Registration and Accreditation Scheme”.

The 7 June decision by the Medical Board of Australia outlined that Berger must: “undertake and successfully complete a program of education, approved by the Medical Board of Australia and including a reflective practice report, in relation to behaving professionally and courteously to colleagues and other practitioners including when using social media in accordance with Good medical practice: a code of conduct for doctors in Australia.”

In essence, Berger must undertake the required education or risk deregistration.

In addition, a letter from AHPRA obtained by and read out on ABC’s PM program said that:

“When Dr Berger has made comments that disagree with politicians, government bodies and public health organisations, pharmaceutical companies and other medical professionals, he has done so using emotive and pejorative language. When referred to in this manner, it would be reasonable for the reader to doubt the integrity of the persons and organisations targeted and to lose confidence in the public health pronouncements and programs promoted by them.”

A spokesperson for AHPRA told Croakey that “We can’t provide exact numbers but can confirm that we are managing a handful of matters involving online behaviour by registered health practitioners” in similar manner to that of Berger.

Freedom of speech

With misinformation rife on social media, the decision raises questions and concerns about curbs on free speech and essential public health debate.

Professor Nick Talley, Editor-in-Chief of the Medical Journal of Australia, told ABC’s PM program there needs to be more clarity on the social media guidance for health practitioners.

Croakey asked some medical and public health experts for their views of AHPRA’s decision and the general use of social media during the pandemic.

The Public Health Association of Australia and the Royal Australian College of General Practitioners declined to comment.

Many experts told Croakey that they were not privy to all the details about AHPRA’s decision, only what has been made publicly available and some personal investigation on social media.

Dr Norman Swan, medical broadcaster on the ABC

This seems to be a disproportionate decision on the part of AHPRA, especially when you consider that some of the decisions and pronouncements of health authorities during this pandemic have had a questionable basis in evidence and were often made in secrecy.

Public discussion about the rationale for such important decisions is essential and it’s fair to assume these conditions imposed on Dr Berger will inhibit others from speaking out because the boundaries are not at all clear.

It’s not as if Dr Berger was arguing that public health authorities should be recommending sheep dip or carefree liposuction as solutions for COVID-19.

Professor Adrian Esterman, Chair Biostatics and Epidemiology, University of South Australia

I only heard about the David Berger case is a couple of days ago. Out of interest, I read one of his recent Twitter threads, and agree with everything he said. Usually, it takes a case of sexual abuse, malpractice, or fraud for a GP to be penalized by AHPRA. Lack of courtesy to fellow practitioners does seem a bit trivial! However, to be fair to AHPRA, I haven’t read every one of his tweets.

Clearly, practitioners are going to have to be more careful in future as to what they say online.

Dr Peter Tait, GP and Clinical Senior Lecturer in Population Health at ANU Medical School

I suspect this might have a chilling effect on doctors putting opinion about services and therapeutic goods into the public domain in a variety of communication modalities not only social media.

This may extend to doctors voicing opinion on other potentially controversial topics or topics a government of the day might want not discussed.

It definitely makes one adverse to questioning the government’s public health messaging if one thinks it is wrong.

It does lead me to want to be clearer about what the rules and limitations to comments are. AHPRA’s Standards for social media use give general examples but the nuances are not readily decipherable.

Professor Raina MacIntyre, Head of Biosecurity Program, Kirby Institute

It appears to me that AHPRA and the TGA were weaponised by government during the pandemic in 2021 to silence dissenting doctors. The reason was the fallout from poor procurement decisions, the limited vaccine options, and the use of AstraZeneca in younger adults when TTS was a known complication. I myself did not comment at all about vaccines from January to August 2021 because I knew it would be dangerous for me personally. Some cheerleaders for government began policing doctors and lodging complaints. It was ironic that any non-medical expert who knew little about clinical vaccine adverse events could wax lyrical in the media about side effects, but doctors could not. How is that in the interests of public health?

This is a classic example of dual-loyalty – where doctors are forced into being subservient to the demands of the state, even if the policies of the state are wrong and not in the best interests of patients.  History shows us that blind obedience to the State is not always right, and that State policies may not always be in the interest of patients. I believe the social media issue has become enormous for insurance companies that indemnify doctors. I think the new government and state health ministers need to urgently look into how much of the resources of AHPRA are spent on this, compared to issues of patient safety, which is their core remit.

In June 2022, the Medical Council of NSW tightened their policy, stating “Inappropriate social media activity includes: Activity that contradicts public health orders, public health messaging or reputable scientific evidence such as: Making comments, endorsing or sharing information, or posting ‘likes’ or ‘dislikes’ with or without additional comments.”

If that does not chill you, it should. It is so broad that it theoretically allows them to target some doctors while letting others get away with a breach. We already saw doctors criminalised for trying to advocate for the health of asylum seekers. What if a future government introduces policies that are framed as utilitarian but that result in eugenics? Then dissenting doctors could face deregistration for speaking up. Society should be thankful for the brave few who speak out for them because life is harder for those who speak up.

Dr Andrew Miller, anaesthetist and past president of the Australian Medical Association WA branch

This decision seems to me to be overreach, which could stifle legitimate debate that is in the public interest.

I think the condition on Dr Berger should be withdrawn until we all understand what seems to be a much tighter control they are attempting to exert over us. If it is to be respected and fair the same rules should apply to all commentators.

The reported reasons, if it were to be consistently applied, would now make comment by any registered practitioner who wants to critique the public health response, or take issue with it in any way, risky to the extent that most would choose to remain silent.

Already there is a culture of secrecy because of the gags in state health employment contracts.

AHPRA is suggesting we must support the government line and couch it in language that is considered to be courteous and professional. (for example in the statement at the end of this broadcast segment: https://www.abc.net.au/radio/programs/pm/health-practitioners-speaking-up-on-covid-will-be-penalised/13970048)

It leaves open at the moment whether it would also be regarded as unprofessional to criticise other aspects of government health policy, given these are also informed by their “best” medical advice, as to do say may “undermine public confidence” in those running the healthcare systems in general, not just in relation to the pandemic.

In short, it looks very much like authoritarian censorship which, if applied across the board, would make any comment that criticises government health programmes by even registered office bearers of the AMA or Societies or Colleges, as it is currently practised, difficult.

However, I cannot imagine we are all going to give every Australian politician and bureaucrat a free kick by shutting up under the threat of their regulator exercising unpredictable discretion, based on anonymous complaints.

It is not reasonable to force “re-education” because we disagree with a government in language that the ordinary community might use, and this does not seem to me to be a well thought through or widely endorsed policy from AHPRA and the Medical Board.

We don’t do this for any other issue, why would we just roll over and have our tummy scratched during the most important health crisis of a century?

There is an ongoing legitimate and reasonable debate to be had about the actual health advice that should be given to governments, as is seen around the world with the continuing pandemic threat. Government advisors are a limited group in expertise, diversity and number and we need to be able to debate their reasoning in the public interest. To be frank they have at various times been spectacularly wrong about important matters, such as airborne spread.

More importantly, there is at times a wide gap, sometimes a famous gap, between the health advice governments have received, and what they actually decide to implement.

We must be able to comment on that gap, and critique it in a way that the public can relate to. To get attention requires, at times, the use of powerful language.

Ironically, to remain silent would be against the spirit of AHPRA’s own code which requires us to use our influence to advocate for public health (Sections 7.3 & 7.4).

Anonymous complaints must not become a weaponised side-effect of a regulatory system that is supposed to be about patient safety.”

AHPRA response

A spokesperson from AHPRA responded that:

Respectful relationships with colleagues, other healthcare professionals, team members and patients are essential for safe patient care. The Medical Board’s Code of conduct explains that good medical practice involves behaving professionally and courteously to colleagues and other practitioners including when using social media. Other National Boards’ Codes of conduct have similar content.

A primary object of the National Registration and Accreditation Scheme (the National Scheme) is to protect the public. Community trust in registered health practitioners is essential. Every practitioner has a responsibility to behave professionally to justify this trust.

When concerns about a practitioner’s conduct are raised with us we must consider the conduct against what might reasonably be expected of the practitioner by the public or the practitioner’s peers.

While we’re not able to comment on individual cases, the National Scheme’s primary objective is public protection. The National Boards’ Codes of conduct provide guidance about good professional practice, including when contributing to public discussions.

Social media: How to meet your obligations under the National Law provides guidance to help registered health practitioners understand and meet their obligations when using social media. Tips to avoid common pitfalls in using social media are also available on the Ahpra website. This guidance is reviewed and will be updated periodically.

One of the ways in which registered health practitioners can meet their professional obligations when using social media is to communicate professionally and respectfully with or about patients, colleagues and employers.

Wider discussion of social media and the pandemic

Social media, in particular Twitter, has been used as a resource and a place to share, learn and engage with others during the pandemic. While most of the experts we asked found discussions to be mostly respectful and courteous, some reported trolls, bullying and a battleground of ideologies.

Professor Brendan Crabb reflected on the ABC PM program that “we want lots of robust debate out in the community amongst our experts. There’s a pandemic going on, we don’t know what all the answers are. We do, though, need to have respectful debate”.

Professor Adrian Esterman

I mainly use Twitter, and it has been a wonderful platform for debate and information about COVID-19. There are always a few trolls around, but the vast majority of professionals are courteous to each other, even if we sometimes disagree. I think the general public also appreciates the ability to learn from and talk to professionals.

Dr Peter Tait

There has been an enormous volume of medical conversation and discourse on social media (mostly I follow Twitter) during the pandemic commenting on the whole range of topics including the government’s response and actions, from professors of epidemiology to on the ground front line clinicians. Most of it sensible, some of it critical of government’s policy and processes. All polite and courteous.

Professor Raina MacIntyre

I generally do not make comments about individuals, do not attack anyone, and tend to be quite careful on social media, but I am policed intensely by haters who are quick to jump at the slightest perceived breach. I have never reported a colleague to AHPRA, but bullying does occur on social media. The pandemic has been very polarising, which to me reflects a total failure of leadership in government – a good government would help people come together through difficult times and move forward in a united way, instead of stoking divisions and creating hatred. The pandemic has caused enormous suffering and loss for many people, so it is easy to vilify those of us who acknowledge it is real and try to advocate for public health – public health is health protection, health promotion and prevention. Social media has become a battleground and brought out the best and worst in people, but it is a part of democracy and freedom of speech to allow dissenting views.

Dr Andrew Miller

Social media has been crucial for connecting a diverse hive-mind of practitioners who very quickly distil and expand on arguments in the public interest and also disseminate information. You can hear from a Nobel Laureate, a GP, a Professor of Immunology, an experienced international front-line colleague, and a patient in the same thread.

We don’t all agree, so this remains a crucible in which ideas can be tested and many times I have been corrected immediately when mistaken and am the better for it.

Some people reveal their less charitable nature, which is unpalatable, but if need be then you can block them.

It has, overall, been a terrific force for connection during very stressful times in the healthcare systems, for sharing innovation and research.

There has been a lot of emotion at times, but that can be a good thing – it has affected the polity and been influential on policy. We should understand the human side of disease, disability and death. The prospect of massive numbers of deaths should make you feel something.

The amount of push-back from politicians and their lackeys (I don’t include AHPRA in that group, to be clear) online at times is simply testament to the effectiveness of grassroots social media advocacy. Long may it last.


PostScript from Croakey, 20 July: A reader asked if we deliberately quoted only sources supportive of Dr Berger. We reached out to 12 people and the PHAA and RACGP for comment. As noted in the article, the PHAA and RACGP declined to comment. Five people provided comments in the article above; of the remaining seven people we contacted, three people declined to comment and we didn’t hear back from four. Of those we asked for comment, we assumed that a few would be supportive of Dr Berger but we did not know in advance the positions of most of those we asked. We note that since Croakey published this article, more than 1,600 people have signed an open letter of support for Dr Berger.


See Croakey’s archive of articles on social media and health.

 

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