Another reminder to exercise caution when using social media – midwife dismissed for FaceBook messages

While the media is dubbing the case as an example of an employee being dismissed for a FaceBook message – the crux of the decision was based upon a health practitioner’s disclosure of confidential information. While social media makes the sharing of information quick and easy, the absence of prompts such as verbalising the information being shared and making statements face to face, means that health practitioners need to be even more vigilant in ensuring that they do not disclose confidential information via social media.

A midwife in Adelaide learnt that lesson the hard way.

The midwife, who had worked at the Women & Children’s Hospital in Adelaide for 9 years, discovered at the commencement of her shift that Ms H, the estranged partner of her friend, Mr A, had given birth to their child. The midwife immediately sent a Facebook message to Mr A, advising him of the birth of his son, the babies weight and details of the delivery. The midwife undertook to find out the babies name and let Mr A know. The midwife then sent a FaceBook message to the midwife who delivered the baby for details of the baby and, on her next shift, found out the babies name and informed Mr A. Mr A then sent a text message to Ms H angry about her failure to inform him of the birth. The relationship between Mr A and Ms H was allegedly volatile and, as a result Ms complained that her confidential information had been disclosed by the midwife.

The midwife was dismissed for serious and wilful misconduct arising out of, amongst other things, the disclosure of confidential information to a member of the public. In particular, the Hospital summarised the importance of trust and the security of confidential information in the health setting as follows:

This trust is particularly relevant for a Hospital providing obstetric care, such as the [WCH], given the evidence which highlights that pregnancy/childbirth is a high risk factor for intimate partner violence. One in five women is known to experience emotional and/or physical abuse by an intimate partner in the first twelve months post-partum … Accordingly, it is the woman’s right to determine who receives information about her pregnancy and her childbirth, given the potential and known threat of harm to herself and her baby that can exist at this vulnerable time. Women do not always disclose such risk factors to Midwives, and therefore ensuring the confidentiality of the woman’s healthcare information and security of information regarding her childbirth is imperative. Whilst no judgement is made about whether such concerns were in place in this patient’s case, health professionals must be alert to this possibility when caring for pregnant women. Protecting the confidentiality of women’s health information is integral to the requirement for trust and security in this relationship”

The midwife commenced proceedings against the Hospital alleging that her dismissal was harsh in the circumstances, namely that she was deeply remorseful for the disclosure of information, the disclosure was a momentary lapse of judgment and was motivated by concern for her friend who she felt should have been informed of the birth of his child.

In determining whether the dismissal was harsh, unjust or unreasonable, Deputy President Bartel relied upon the High Court decision Byrne and Frew v Australian Airlines which stated that:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

In relation to the midwife’s dismissal, the Deputy President in took into account the seriousness of the misconduct, that is that the midwife had put Ms H and her baby in a position of risk by advising Mr A of the birth details and her actions led to a loss of confidence by Ms H in the ability of the Hospital to protect her confidential information, and the fact that the misconduct had taken part over several days and therefore did not amount to a “momentary lapse of conduct”. While there were mitigating factors, such the midwife’s insight into her error and the lack of malice, they were not sufficient to conclude that the dismissal was harsh, unjust or unreasonable.

The decision is Kore v Chief Executive, Department of the Premier and Cabinet.

Of interest to those who advise health practitioners, the outcome of a disciplinary investigation carried out by the Australian Health Practitioner Regulation Agency (AHPRA), was somewhat different – a good reminder of the differing focus of a disciplinary investigation. AHPRA cautioned the midwife and directed her to undertake further training in professional ethics and confidentiality. Disciplinary investigations are directed towards, amongst other things protecting the public from harm, therefore an influential factor in disciplinary proceedings is the extent to which a practitioner has insight into their conduct and the likelihood that it will occur again. No doubt the insight and remorse that it was accepted the midwife had was given greater weight by the Nursing and Midwifery Board than the Industrial Relations Commission.

A large portion my practice is assisting health practitioner respond to disciplinary investigations. Please contact me if you wish to understand that jurisdiction in more detail.

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