Social media can present a myriad of opportunities. It is crucial that medical practitioners are educated on how to use this platform as they are not immune to its risks. A defamatory action or claim for breach of confidentiality can be just a click or swipe away.
To most, social media is not a new phenomenon – Twitter, Facebook and blogs have become a necessity and are innate to many. What is new is the need to shape these platforms into business opportunities and use them to build a strong social media presence.
Although expected professional standards are drilled into medical practitioners from day one of training, many medical practitioners are only just beginning to realise that maintaining the same high level of professionalism expected in face-to-face interactions can be especially challenging with social media. While the law regulating social media is constantly evolving and there are few precedents in Australia, the potential risks surrounding social media can be mitigated in a number of simple ways.
Patient Confidentiality
It is essential to think prudently about what you are doing before deciding to post patient information online. The Medical Board of Australia: Good Practice Guidelines states, “Patients have a right to expect that doctors and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations”.
If an individual or organisation posts content on its own website, Facebook, Twitter or blog then that individual or organisation is responsible
Express consent must be provided by the patient and an acknowledgement of their consent should be published in an online post and documented in the health record. While a single post on a social media website may be entirely de-identified, the information may be compromised by other information available online such as news articles or other social media posts. A Rhode Island doctor was found guilty of unprofessional conduct for revealing patient information on Facebook. The doctor did not share the personal details of patients but in describing her experiences in a hospital ER, she included enough detail to allow a third party to identify the patient.1
Patient Complaints
It is not uncommon for my firm to be asked for advice about what an individual or organisation can do about damaging or defaming comments on social media. The High Court of Australia has already determined that defamatory material published online around the world will be actionable in Australia if it is read or downloaded in Australia.2 If an individual or organisation is responsible for monitoring content on a website, Facebook page or blog, then it must ensure these media are carefully monitored and any problematic posts are deleted or appropriately dealt with as soon as they come to the individual’s or organisations’ attention.
Facebook and Twitter have policies regarding the use of social media by their users that allow for a social media post in breach of these policies to be removed from the user’s profile or page without warning. For example, a user publishing confidential information relating to his or her employment would be in breach of both Facebook and Twitter policies relating to privacy and security. Consequently, a request may be made of Facebook and/or Twitter to delete the comment on this basis. Other sites may be less amenable, depending on their policies.
Problems may arise when it comes to Twitter as this is a real time information network that allows an individual or organisation to ‘tweet’ anyone who follows the account. The tweet can be viewed by anyone, even those without a Twitter account and can very quickly spread in the online world.
A senior hospital doctor in the United Kingdom ranted offensively about Accident and Emergency patients, among other things, and was required to face the Medical Practitioners Tribunal Service.3 In addition to the widespread dissemination on Twitter, it was noted during the hearing that those tweets were easy to find on a Google search. If a tweet containing adverse comments is posted by a third party to, or in response to, the Twitter account of an individual or organisation, it cannot be removed. It is not therefore implausible that a third party tweet may result in a claim that an individual or organisation is liable for the publication of comments that may be misleading or deceptive, defamatory or even discriminatory. To prevent this occurring there should be careful monitoring of Twitter feeds. If an entry is made by a third party which is cause for concern, immediate action should be taken to qualify it so the individual or organisation will not be considered to have also published that information. It may well be that the courts are likely to expect immediate action as Twitter is a real time network.
Social Media Policy
It is wise for all employers (including healthcare professionals) to have a detailed workplace policy regarding the use of social media at work and its use regarding work, whether that use takes place during working hours or otherwise. Types of matters that should be addressed within a policy include defining the parameters of social media use during working hours; access to social media sites for business networking; prohibiting confidential information, discriminatory, negative or defamatory comments from being posted online, prohibiting harassment and bullying. Breaches of the policy may result in disciplinary action including dismissal in sufficiently serious cases.
Political/Personal Commentary
People are now inclined to turn to social media to vent their frustrations and share their personal views. During 2016 a NSW chiropractor received a suspended jail sentence for posting abusive and racist comments about former Labor Senator Nova Peris.4 This matter highlights, inter alia, that commentary on social media is the same as any other form or written commentary and such posts will not be tolerated from the Courts, healthcare community and the public. If an individual or organisation posts content on its own website, Facebook, Twitter or blog then that individual or organisation is responsible for the publication of that content and may be prosecuted in the criminal courts or sued in the civil courts.
Potential Liability
Social media is woven with enormous opportunities for the medical profession however it is important that medical practitioners do not underestimate the challenges it brings and the potential for liability if these challenges are not fully appreciated.
Scott Chapman leads TressCox Lawyers’ National Health Services group. His expertise includes negotiations with government health departments, professional conduct and administrative law matters, risk management, business structures and governance, corporatisation of medical practices and advising clients with respect to legislative interpretation and amendment. Mr. Chapman was actively involved in the drafting of significant amendments to the Medical Practice Act, the Health Care Complaints Act, the Health Administration Act and the Health Services Act following the recommendations of the Walker Special Commission of Inquiry and subsequent legislative reviews.