Nursing & Midwifery Board of Australia v Stanley Horne  TASHPT 7 (15 December 2020)
Last Updated: 15 January 2021
JURISDICTION: HEALTH PRACTITIONERS TRIBUNAL
CITATION: Nursing & Midwifery Board of Australia v Stanley Horne  TASHPT 7
PARTIES: NURSING & MIDWIFERY BOARD OF AUSTRALIA
HELD AT: On Papers
REFERENCE NO(S): HPT3/2019
HEARING DATE(S): Written submissions
DELIVERED ON: 15 December 2020
DECISION OF: Deputy Chairperson Wilkins
CATCHWORDS: Registered nurse – professional misconduct – social media posts – racially, culturally and sexually offensive – reprimand and cancellation of registration.
Kok v Medical Board of Australia  VCAT 405;
DETERMINATION: The respondent is reprimanded. The respondent’s registration as a nurse practitioner is cancelled.
Applicant: J Kaye
Respondent: N Edmondson
Applicant: Minter Ellison
Respondent: Ogilvie Jennings
REASONS FOR DETERMINATION
1. By an application dated 25 September 2019 the Nursing & Midwifery Board of Australia (“the Board”) referred to the Tribunal the conduct of Mr Stanley Horne, a registered nurse.
2. The referral was made pursuant to s193(1)(a) of the Health Practitioners Regulation National Law (“the National Law”). The Board believed that the conduct of Mr Horne amounted to professional misconduct under s193(1)(a) of the National Law.
3. The Board referred to the Tribunal allegations in relation to Mr Horne’s conduct between 10 February 2016 and 26 February 2016 (Allegation 1). This allegation has not been pursued before the Tribunal, but is relevant because the conduct involved in Allegation 1 was the subject of a decision of the Immediate Action Committee of the Board on 15 August 2016 to suspend Mr Horne’s registration, pursuant to s156 of the National Law. Mr Horne has continued to be suspended as a result of that immediate action.
4. The second aspect of Mr Horne’s conduct that was brought before the Tribunal by the Board’s application concerned public statements by Mr Horne on social media between about mid February 2017 and 19 June 2017. The particulars of those allegations were set out in the application to the Tribunal, and Mr Horne has conceded those matters.
5. Particulars of the Board’s allegations are:
“That Mr Horne engaged in:
professional misconduct within the meaning of the definition of professional misconduct in paragraph (c) of section 5 of the National Law;
in that, between about 13 February 2017 and about 19 June 2017, Mr Horne engaged in conduct that is inconsistent with him being a fit and proper person to hold registration as a nurse, in that he posted racially offensive and/or culturally offensive and/or sexually offensive and/or vilifying content on social media.
(i) at all material times, Mr Horne was a registered nurse whose registration was suspended on 15 August 2016 by an Immediate Action Committee of the Board;
(ii) at all material times, Mr Horne maintained a publicly accessible Facebook page, listed under his name, 'Stanley James Horne', which included material such as comments made by him, and comments made by him in relation to pictures and/or videos and/or articles posted by others;
(iii) the material referred to at (ii) above was accessible by any person who searched for, or wished to access, Mr Horne's Facebook page;
(iv) between about 13 February 2017 and about 19 June 2017, Mr Horne authored and/or caused to be posted statements on his public-facing Facebook page, which include, but are not limited to:
(A) racially offensive and/or culturally offensive and/or sexually offensive and/or vilifying comments towards women, including:
(I) referring to a female news presenter as:
(1) a 'slack arsed Marxist troll posing as a media slut';
(2) 'well past her prime'; and
(3) a 'shop-steward class warfare shithead';
(II) referring to Cindy Prior (Plaintiff in a racial discrimination case) as:
(1) 'a disturbed and racist lunatic';
(2) a 'c...t'; and
(3) a 'piece of shit';
(III) stating, in relation to Tori Spelling (actor/celebrity) giving birth to a baby boy:
(1) 'congrats ..Tori ...you have done something worthwhile in your lfe..';
(IV) stating, in relation to women wearing hijabs:
(1) 'Happy womens day .. .fuckwits .. .';
(V) stating, in relation to Senator Sarah Hanson-Young:
(1) 'she is such a dumb cunt..hateful,belligerent talent-less, dumb rancid arsehold ... she would smell....poor hygiene ...';
(VI) stating, in relation to Gillian Triggs (President of the Australian Human Rights Commission, at the relevant time):
(1) a 'rancid old cunt';
(2) 'piece of leftist filth..needs to ..well just die'; and
(3) 'Hitler Stalin and Goebbels, would have loved this totalitarian piece of panty waste..dried up old cunt';
(B) racially offensive and/or culturally offensive and/or sexually offensive and/or vilifying comments towards the Islamic faith and/or people of Islamic faith, including:
(I) referring to the Islamic faith and/or people of Islamic faith as
(1) 'fucking idiot terrorists .. .';
(2) 'mohammedan/fakestinian cabals...paedophiles ,and tellers of lies .. .';
(3) 'mohammedan pigs';
(4) 'ungrateful mohammedan immigrants;'
(5) a 'satanic cult';
(6) 'mohammedan cults which are the killers of women and children and supports paedophilia and forced marriage from age 6...';
(7·) 'the cults of mohammed are evil and cults of death';
(8) 'fucking mohammedan cults,,the cults of terror..the cults of misogyny ..the cults of stupidity';
(9) 'the mohammedan cults are a cancer';
(10) 'he is sub-human..an offence to humanity ...following a perverted ideology..of the paedophile "profit" and the pig god...';
(11) 'the mohamedans are the non...people as they are only a small minority of the world..and shrinking fast..as we kill them ...';
(12) 'in their own states the mohammedans fuck pigs, goats etc.. .the rape culture is wel documented in mohammedan states ...';
(13) 'these sub-human male mohammedans ned to be castrated..for raping people other than mohammedan women..who I personally do not give a toss about ...';
(14) 'most mohammedan so called marriage is rape of children in the name of allarrghh..and the notorious profit..mohamed the paedophile';
(15) 'mohammedan terrorists do nopt discriminate..they kill Hindus, Buddhist, Christian,Jews and non faith people ,due to their warped ideology of hate,based upobthe coran ,unholy book ...'; and
(16) 'these mohammedans ..are the new facsists of the world..mohamedan cults..are the new nazis..only force with destroy theri ideology as with the nazis';
(17) 'mohammedans are parasites upon the lands of democracy';
(18) 'they are parasites ,off democracies and Christian states..the political ideology of mohammedanism is to be a parasite cult';
(19) 'the cults of mohammed are not fit for a democracy'
(20) 'these mohammedans ,are parasites ...living off a democracy, whilst extolling a fascist political and theological dogma ... stop the mohammedan cults from immigrating .. .';
(21) 'totalitarian cults of mohammed, and the totalitarian far left Marxist killers';
(22) 'cults of the paedophile..mohammed.,and the god of pigs ,allarrrgghhh, as fraudulent and killers of democracy'; and
(23) 'sharia law is not compatible with any democracy .. .it is a criminal religious system of torture and to enable, the killing of peoples of other faiths ... ';
(24) 'mohammed was a pig fucking paedophile';
(25) 'the paedophile known as mohammed ...';
(26) 'it is just medieval ratings of a group of serial paedophiles ...';
(27) the creeping sharia of the coran document ...written by a paedophile and his fellow pig fuckers....only 1400yrs ago....';
(28) 'sharia law is an abomination ..on the face of humanity..it is a ridiculous medieval cult of killing those who oppose you.. .the law of the pig fuckers......';
(II) making statements to the effect that people of Islamic faith ought be harmed and/or eliminated from society, including:
(1) Just kill this mohammedan piece of pig fucking shit';
(2) 'may they kill each other ..Shiite killing sunni ,fuckheads';
(3) 'we need the Knights now..to destroy the mohammedan cults..in western democracies ..and drive them back to their satanic mohammedan lands....';
(4) 'dirty fucking mohammedan arsehole these devil worshiping mohammedans need to die.....';
(5) 'dirty fucking mohammedan, pig fucking terrorist..kill this pig fucker and deport all of his relatives..';
(6) 'mohammedism are a death sentence to others....';
(7) 'do not enable them to breed...';
(8) 'fucking criminals ... deport them..';
(9) just kill these terrorist things as they try to kill us, the majority of the world that is of decent faiths and peoples...';
(10) 'it is time for all good people to stand against the hate cults of mohammed';
(11) 'exterminate all daesh fighters and their supporters....it will stop them breeding....or just castrate all returnees from Syria, and, and cut off their hands..should work..no more little jihadis ...lets face it...';
(12) 'we will kill you..and all the mohammedan terrorists...pig fuckers...and paedophiles ..just like allarrggh and mohammed the paedophile ..best to kill you first ...';
(13) 'if a mohammedan terrorist cunt, and paedophile says he will blow us up..lets just kill it..and kill its supporters'; and
(14) 'we are at war with mohamedan ideology and theology.. e will win..as we are many and we are righteous..mohammedan cults will fail..as the Nazis did..'
(C) racially offensive and/or culturally offensive and/or vilifying comments towards the people of North Korea, including:
(I) referring to North Korean people as 'inbred rabids'; and
(II) referring to North Korea as a 'brain diseased nation of thugs [that] needs to be extinguished';
(D) racially offensive and/or culturally offensive and/or vilifying comments towards the people of China, including:
(I) 'kill acomunist chinese fucker'; and
(II) stating that flammable cladding manufactured in China:
(1) 'should only [be] use[d] in in communist china..for population control...';
(E) racially offensive and/or culturally offensive and/or vilifying comments towards the famine in Somalia, stating:
(I) 'a somalian famine..this tragic mohammedan state is a cancer on the face of the earth ... these death cults need to die a natural death..and famine is very natural ...'”
Characterisation of the practitioner’s conduct
6. Where a National Board reasonably believes, based on a notification or other reason, that a registered health practitioner has behaved in a way that constitutes professional misconduct, the Board is required by the National Law to refer the matter to the Tribunal. S5 of the National Law defines professional misconduct as follows:
“Professional Misconduct, of a registered health practitioner, includes –
(a) Unprofessional conduct of the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with a practitioner being a fit and proper person to hold registration in the profession.
7. It was agreed between the parties in these proceedings that the conduct of Mr Horne which is presently before the Tribunal, is professional misconduct within the meaning of sub paragraph (c) of the definition of “Professional Misconduct” in s5 of the National Law.
8. The Tribunal was referred to the Board’s Code of Conduct, the Board’s social medial policy, and the Board’s Code of Ethics, all of which were current at the time of the conduct that has been conceded by Mr Horne. I will not set out the professional and ethical standards in their entirety, but note that they hold nurses to the highest standards of respect, tolerance and responsibility in dealing with cultural and community diversity.
9. Having noted the concessions made by Mr Horne, and the particulars of his conduct that are before the Tribunal, I am satisfied it is appropriate to find that Mr Horne’s conduct amounts to professional misconduct within the meaning of s5(c) of the National Law. The Facebook posts are a multiplicity of comments that are racially, culturally, and sexually offensive, and would be considered to be so by the vast majority of members of the public who might view Mr Horne’s publically accessible Facebook presence. The comments are at odds with the standards of behaviour imposed on the nursing profession by the Board’s Codes of Conduct and Ethics, and I accept the submission made on behalf of the Board that Mr Horne’s statements that certain groups should be harmed or killed were fundamentally inconsistent with the values of the nursing profession, and undermines public confidence in the nursing profession.
10. The solicitors for the Board referred me to a recent decision of the Victorian Civil & Administrative Tribunal in relation to social media posting by a registered medical practitioner, Kok v Medical Board of Australia  VCAT 405. The observations at paragraph 69 apply equally to a member of the nursing profession as to a member of the medical profession:
“We are satisfied that such posts have the real potential to undermine public confidence in the provision of services by health professionals. There is a real likelihood that the maintenance of the standards of the medical profession will be undermined by such posts, particularly when posted by a registered medical practitioner. The reputation of the profession is thereby impacted.
And paragraphs 92 and 93:
“We consider that both past and present patients may reflect on their treatment differently if they were to become aware of the views expressed on social media by Dr Kok.
We reiterate that it is not to the point that social media inspires and encourages diatribe or vitriolic comments. Members of the medical profession cannot allow their commentary to escalate unchecked without any regard to the impact or sensibilities of their code of conduct. They have responsibilities to current and/or future patients or vulnerable members of the community and the profession regarding their posts.”
11. The purposes of orders made in response to findings of professional misconduct is set out in Craig v Medical Board of South Australia  SASC 169, where the South Australian Supreme Court noted at paragraph 41:
“The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent person who are unfit to practice from practicing, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will ensure the public that appropriate standards are being maintained within the relevant profession.”
12. In addition to agreeing that Mr Horne’s conduct ought to be characterised as professional misconduct within s5(c) of the National Law, the parties jointly reached a position as to what the appropriate determination by way of sanction ought to be and invited the Tribunal, in accordance with that joint position, to make the following determination:
(a) That Mr Horne is reprimanded under s196(2)(a) of the National Law; and
(b) That Mr Horne’s registration as a nurse practitioner is cancelled under s196(2)(e) of the National Law.
13. An agreement between the parties as to a sanction does not remove from the Tribunal the ultimate duty to assess and determine what sanction is appropriate, but such an agreement is a highly relevant factor to be taken into account by the Tribunal.
14. The Tribunal has the power to reprimand a practitioner under s196(2)(a) of the National Law. A reprimand is a serious sanction. “It tells the public, patients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured” (Medical Board of Australia v Xie (Review & Regulation)  VCAT 1924). I accept that a reprimand is appropriate in the circumstances. Mr Horne’s conduct took place over an extended period of time on very many occasions. His repugnant comments had the potential to seriously undermine public confidence in the nursing profession.
15. For the same reasons, I accept that cancellation of Mr Horne’s registration is also necessary as both a specific and general deterrent, and to safeguard the reputation of the nursing profession.
16. The parties further agreed that, had Mr Horne’s registration not already been suspended by way of immediate action for a period of a number of years as a result of the Board’s immediate action arising from Allegation 1, then a disqualification period of three years pursuant to s196(4)(a) of the National Law may have been appropriate. The parties agreed that in the context of the period of suspension, it was not appropriate that the Tribunal be asked to impose a disqualification period during which Mr Horne could not apply for re-registration. I accept the agreed position reached by the parties, but I confirm that, had the previous period of suspension not been in place, a disqualification period of up to three years is something the Tribunal is likely to have considered to be appropriate in addition to the cancellation of Mr Horne’s registration.
17. The parties further agreed that there should be no order as to costs in relation to these proceedings. I accept this to be appropriate, and will therefore make no formal order in that regard.
18. Having found that Mr Horne has engaged in professional misconduct within the meaning of s5 and s196(1) of the National Law, and having accepted the submissions as to appropriate sanction as agreed by the parties, I make the following determination:
(a) Mr Horne is reprimanded.
(b) Mr Horne’s registration as a nurse practitioner is cancelled under s196(2)(e) of the National Law.
L. D. WILKINS