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More legal adventures in social media

Recent cases in this rapidly evolving realm involve nursing, bullying, privacy, defamation and employment.

This article follows two previous ones concerning bullying and the use of social media within the nursing profession; both of which generated great interest.

Workplace bullying costs employers and the economy somewhere between $6 billion and $36 billion annually, Productivity Commission data states. Direct costs associated with bullying come from absenteeism, staff turnover, legal and compensation expenses, redundancies and early retirement payouts. Hidden costs include nurse management time spent addressing bullying claims and investigating allegations of bullying through formal grievance procedures, and workplace support services such as counselling. Hence, bullying is a serious issue for the nursing profession.

Last December, the full bench of the Fair Work Commission (FWC) handed down a determination concerning the use of social media away from the workplace, outside of work hours, and its possible relationship to protections for victims under the anti-bullying legislation. It is relevant to the nursing profession.

First, unsurprisingly, the FWC reaffirmed in the case that bullying can occur through the use of social media. There is no differentiation between sharing comments or pictures in cyberspace through social media and doing so through other forms of communication.

Then, the commission had to rule on a more contentious issue. The FWC has jurisdiction to make orders to stop bullying only if the commission is satisfied that “the worker has been bullied at work”. In this case, the parties who posted the offending comments argued that the FWC could not make anti-bullying orders, as the comments were posted away from the aggrieved employee’s workplace and posted outside of work hours. The germane argument was that bullying behaviour has to occur either in the workplace and/or within working hours and/or whilst undertaking working duties. As an example of the latter, if two nurses attend a work-related interstate conference and bullying occurs, whilst it is not occurring physically in the workplace it is deemed at work, as their attendance is part of their working duties, hence within the FWC’s jurisdiction.

The full bench noted that the use of social media to engage in bullying behaviour creates particular and evolving challenges. That said, the full bench also stated that the posting of bullying comments “… is not limited to the point in time when the comments are first posted on Facebook. The behaviour continues for as long as the comments remain on Facebook. It follows that the worker need not be ‘at work’ at the time the comments are posted; it would suffice if they accessed the comments later while ‘at work’.” Note: an interesting aspect of this ruling is that a nurse manager may have a policy of no access to social media whist working but a nurse taking a lunch break (a break from work duties) who may access Facebook during lunch time is, pursuant to OHSW law, deemed to be ‘at work’. Nurses and nurse managers need to be aware that bullying behaviour involving social media it is not limited to the physical workplace, usual work practice and hours.

Delivering medical results and advice via social media – confidentiality consequences

The use of text messaging and the internet to make and confirm appointments is widespread and has practical benefits. But as the facts in one case demonstrate, a professional, particularly a medical practitioner, should observe appropriate care in communications to ensure patient confidentiality is preserved. In this regard, it is important that nurses bear in mind information conveyed by text messages and social media can easily be corrupted or misused.

A rural health practitioner used Facebook to provide medical advice and convey pathology results. A disciplinary tribunal did not ultimately make a finding as to the propriety of this conduct. On the social media topic, the tribunal alluded to a distinction between making appointments via social media and the provision of results and advice. It also noted the lack of direction or advice available to practitioners regarding social media use in “a time of rapidly developing technology and changing methods of communication”.

The tribunal did note that any policy a practitioner implements that involves disclosure of confidential medical information via email or social media should be subject to a patient’s informed consent.

Any nurse working in a medical practice needs to be very careful as to what information they are texting to patients beyond that which is related to making and confirming appointments.

Comments about other clinicians – defamatory consequences

In this case, a critical posting on private settings and just to ‘friends’ by a medical practitioner became public through reposting, hence the author lost control of its readership. The practitioner wrote:

Dear emergency registrar,

Thanks a million for misdiagnosing my patient’s perforated bowel as constipation and treating aggressively with laxatives. I’m sure she appreciated the subsequent cardiac arrest and multi-organ failure. Don’t worry, she just needs a new set of kidneys and a liver and she’ll be right.

And with that kind of performance, I’m sure you can help her acquire them.

Kind regards,

Lowly intern

Whilst the intern appears to be frustrated and used the most secure of settings, once in the public domain, the comments clearly not only create professional, ethical and disciplinary issues but also potentially defamation problems (if the victim can be reasonably identified by a reasonable number of fellow clinicians).

Same goes for a nurse in a similar situation.

Fun times in the workplace – employment consequences

Nurses and doctors were suspended from a UK hospital after posting photos of themselves on Facebook planking on the hospital premises. The aim of such behaviour is to take photos of oneself lying inert in ridiculous places, such as on bins or ambulances. A hospital manager saw the pictures on a Facebook site of staff posing on hospital trolleys and ward floors and reported the postings. The staff members faced disciplinary action because the hospital set “high standards for staff behaviour at all times and therefore took any such breaches extremely seriously”.

This case demonstrates that nurses may view their actions as innocent fun or a social joke but they still may be subject disciplinary measures by a nurse manager, even if they’re not the one who posts the pictures.

These brief examples highlight the absolute need for nurses, nurses in management and the wider profession to keep abreast of this rapidly evolving area of social communication and the potential for a multitude of negative consequences.

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University.

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