Case points the way to the future

December 1, 2020

An historic case against a nurse who made racist comments on social media demonstrates how ‘law’ and ‘lore’ can work together.

The decisions made at the recent Health Practitioners Disciplinary Tribunal hearing against mental health nurse Deborah Hugill were “ground-breaking”, according to witness Cherene Neilson-Hornblow (Ngāpuhi me Ngāti Porou).

“This case has set a very high benchmark, setting the way forward for all organisations,” Neilson-Hornblow, a forensic mental health nurse, said. “It is the first case in which the tribunal has considered the harm caused by racist comments on social media.”

The hearing was held in New Plymouth over two days at the end of July. It saw Hugill, who had made racist comments on an NZNO Facebook page in May last year, lose her registration. She is unable to return to practice for two years, and has strict conditions placed on any return to practice.

A second charge related to her continuing to work as an RN in the weeks after the Nursing Council had suspended her annual practising certificate. The tribunal upheld both charges.

In her Facebook post, Hugill accused Māori nurses and management in Taranaki of being lazy, dishonest and unprofessional. Neilson-Hornblow described the comments as “very damaging”.

“When I first read her posts on Facebook, I tried to stop her conversation. However she continued to slander people from Taranaki that she worked with – clients, nurses, her employers and other organisations. I made a complaint to many health organisations and the Nursing Council responded.”

Neilson-Hornblow was impressed how respectfully the council’s professional conduct committee lawyers followed a kaupapa Māori approach, using tauparapara, karakia and waiata. She was also impressed that Judge Maria Dew took into account the need for restorative justice, ensuring there was a way forward for the people of Taranaki, whose mana had been “trampled on” by Hugill’s racist comments.

“The Nursing Council supported me, as did my husband, other whānau members and mana whenua present at the hearing,” Neilson-Hornblow said. “In supporting my call for restorative justice to be returned to Taranaki, I believe the Nursing Council went above and beyond its regulations. They offered manaakitanga to me throughout the whole process.”

Council’s code of conduct

In reaching its decision to discipline Hugill, the tribunal pointed to principle 2 of the Nursing Council’s Code of Conduct which requires nurses to respect the cultural needs and values of health consumers, with a particular focus on recognising and addressing Māori health inequalities. It also pointed to the council’s social media guidelines that state that: “Nurses are responsible for maintaining the same standards of professional behaviour in social and electronic media as they would when communicating face to face.”

“Judge Dew provided a space for Deborah to offer restoration to the people she had offended, but it was obvious she would not take responsibility for the harm she had caused,” Neilson-Hornblow said. “Judge Dew then invited me to describe how restorative justice could be achieved. I asked that mana whenua be invited to work with me, as I felt I could not reply on their behalf. When I read out the agreed statement the next day, everyone was in tears – the judge, the reporter from Stuff, witnesses, and Nursing Council and tribunal members. It was a moving experience.

“In my closing statement, I acknowledged the mana whenua of Taranaki who live under the raukura [the white feathers’ symbol of peace], established by the 19th century prophets and passive resistance leaders Tohu Kākahi and Te Whiti o Rongomai from Parihaka.

“In the Māori world, ‘takahi’ means to trample on, abuse, transgress, offend, breach or infringe. Ms Hugill has trampled on the heads of our people and caused great offence to the people of this rohe. I believe a formal apology should be afforded to the Taranaki whānui, whānau, hapū and iwi. The people of Taranaki whānui have and continue to suffer from passive and overt levels of racism. Taranaki whānui believe it is time for individuals and systems to be held accountable.”

In thanking the tribunal, Neilson-Hornblow also acknowledged Nursing Council members for “planting a seed of hope, manaakitanga, kaitiakitanga, tino rangatiratanga and most of all aroha”.

Manu Pīwakawaka – he tohu, he tohu, ki te kotahitanga

Ka tae mai he tohu, he tohu nō runga, he manu Pīwakawaka hāmate. I te rangimārie, he tohu mōku, kia reri, ki te maumahara ki tōna wairua, ki te karakia. He tohu he tohu, ki te karakia.

Manu Piwakawaka
Manu Piwakawaka
Last month, a wairua whakaari lore was held at Parihaka marae Takitūtū and Toroanui. This case in lore was named Houhou i te Rongo – to make peace – by kaumātua Hokianga Tua. It was a way of bringing restoration to the people through discussion with Parihaka haukāinga.

Neilson-Hornblow was accompanied by her whānau and Nursing Council representatives – chief executive Catherine Byrne, senior legal adviser Clare Prendergast, lawyer Nick Davies and director Māori responsiveness Hikitia Ropata.

“We received a humbling, respectful pōwhiri, facilitated by Taranaki kaumātua Dr Ruakere Hond and Parihaka whānau,” Neilson-Hornblow said. “Several groups shared their own tono, karakia and waiata. Nick Davies presented the facts of the case (the law), then I presented the lore. These two worldviews then united in kotahitanga. Later we presented a kete with framed manu pīwakawaka feathers as he tohu, a symbol of guidance.”

For Neilson-Hornblow, the gatherings were wonderful examples of bringing together taha tikanga Pākehā and taha tikanga Māori, of “law” and the “lore” becoming intertwined. Mana was restored and healing and peace achieved.

She identified a number of key highlights emerging from the case. It was:

  • The first time a tribunal was conducted with a kaupapa Māori focus, led by mana whenua o Taranaki.
  • The first time that restorative justice has been documented for mana whenua iwi o Taranaki.
  • The first time a kaupapa Māori process benchmarked the way the professional conduct committee operated.
  • The first case concerning racist comments on social media that the Health Practitioners Disciplinary Tribunal had dealt with.

Kotahitanga through te Tiriti

“The key message for everyone is to kotahitanga and to action Te Tiriti o Waitangi now,” Neilson-Hornblow said. “I would like the Crown, Minister of Health and the Ministry of Health to review the tribunal, as it made a few tikanga and kawawhakaruruhau mistakes during the hearing. Māori appointments also need to be made to the tribunal. This case highlights a way forward for all government organisations in Aotearoa New Zealand.

“Nurses need to call out racism and demand that every organisation takes responsibility and action to achieve better equitable health outcomes for Māori. Then whānau, hapū and iwi can thrive and succeed.”

Neilson-Hornblow believes the case will do much to unite and enhance the mana of the Parihaka marae. She sees it as a human rights campaign worthy of United Nations attention and hopes that one day, November 5, Parihaka Day, will be recognised nationally.

“Lastly I thank each and everyone involved in this case and most importantly I acknowledge my guidance from ngā taonga tuku ihu o ngā tupuna.”

New benchmark set

Catherine Byrne
Catherine Byrne
The cancellation of a nurse’s registration for derogatory comments against Māori on a social media site sets a new benchmark for serious misconduct involving racism in New Zealand.

Nurses are expected to maintain the highest professional standards at all times. As with face-to-face relationships, the nurse has a responsibility to ensure their use of social media is professional and the public’s trust and confidence in the nursing profession is upheld.

The nurse’s actions were serious enough for a professional conduct committee, appointed by the Nursing Council, to lay charges against the nurse and for the tribunal to find that the conduct amounted to professional misconduct.

Not all complaints the Nursing Council receives about social media comments and alleged racism are within its jurisdiction to take action. However, in this case the link between the nurse’s inappropriate social media postings and the risk to public safety was clear.

This case provides an evidence-based platform for change and provides health regulators with significant lessons:

  • The tribunal hearing process may be alienating for Māori who participate either as a nurse under investigation or as witnesses, and the council is working to transform the process and culture for Māori.
  • We have to be proactive about making space for LAW and LORE to interact together – that is what being responsive to Te Tiriti o Waitangi means.
  • It has fundamentally questioned how we deliver our business services – we are making stepped changes to lift our capability and capacity to respond to Māori, we are questioning more, and are doing some things differently.
  • Tribunal members may require cultural safety professional development with the need for the Crown and the Ministry of Health to review the appointments process for Māori to the tribunal and governance boards.
  • The case provides insights into the harm that racism can cause and the difficulties that social media can get professionals into. We all have a collective responsibility to talk and take action about individual and systemic racism in our systems.

The council will be consulting on its code of conduct and social media guidelines in 2021 in response to this case and to other complaints it has received about nurses’ communication.