A panel of the Health Practitioner’s Disciplinary Tribunal (“the Tribunal”) convened on 14 August 2023 in Christchurch to hear a charge laid by a Professional Conduct Committee (“the PCC”) of the Medical Council of New Zealand (“the Council”) against Dr Samantha Annabel Hope Bailey (“the Doctor”).

Charge

In summary, the charge alleges that the Doctor:

Posted 23 videos on publicly available websites which the PCC alleged were inappropriate, inaccurate, misleading and/or had the potential to mislead:

Particular 1 sub-particulars a – k: in relation to PCR testing as a means of detecting COVID-19;

Particular 2 sub-particulars a – c in relation to COVID-19 vaccines;

Particular 3 sub-particulars a – n in relation to COVID-19 and /or issues related to COVID-19, and

Particular 4 sub-particulars a and b in relation to videos that were inappropriate towards fellow medical practitioners.

The PCC alleged that the behaviour above either separately or cumulatively amounted to malpractice or negligence under section 100(1)(a) and / or brought or were likely to bring discredit to the medical profession section (100(1)(b) of the Health Practitioners Competence Assurance Act 2003 (HPCAA).

Background

The Doctor graduated from Otago University with a Bachelor of Medicine and Bachelor of Surgery in 2005.  She registered with the Council in a General scope of practice in November 2006 and last held a practising certificate in 2021.

In addition to her medical practice, the Doctor produced and published videos on health issues on YouTube, Odysee and other publicly accessible websites.  During COVID-19 the Doctor included content on the public health response to the virus, particularly PCR testing and COVID-19 vaccines.  The videos the subject of the charge, were published between 2 September 2020 and 27 July 2021.

In the videos the Doctor repeatedly referred to her training in medical school, her profession as a medical doctor and the scientific and medical skillset she accordingly has.  She also promoted a book she has co-authored entitled “Virus Mania” and directly asked her viewers to financially support her.  She also used visual aids such as memes and GIFs and animated facial expressions to emphasise points she made.

While the Doctor did not participate in the Tribunal process and did not attend the hearing, she did participate in the PCC investigatory process. In fairness to the Doctor, the PCC identified to the Tribunal, some of the Doctor’s previous responses  during the PCC investigation.

The Doctor continued to publish videos after the Council raised concerns with her, after the PCC began investigating, and even after the present charge was filed.

 Finding

The Tribunal found that the alleged conduct fell within the Doctor’s general scope of practice.  While not occurring in a clinical context, the Doctor was holding herself out as being authorised to practise and was providing information to her audience she gained, in at least part, from her medical training.  The scope envisions non-clinical practice as being included within the scope.

In relation to freedom of speech, the Tribunal agrees that while the Doctor may express an opinion on medical matters, professional standards require her to do so in a balanced way. The Doctor’s professional obligations constitute the justified limitation on the right to freedom of speech.  Health professionals must consider and assess evidence in a balanced manner providing sufficient evidence from reputable sources especially essential within the context of a public health response where the potential for harm is greater.

The Tribunal agrees that at times, medical professionals are likely to engage in robust debate on areas of disagreement.  However, it is incumbent upon health professionals to engage professionally, respectfully, and with sufficient evidence to support opinions.  Making personal attacks on fellow health professionals is unacceptable. 

The Tribunal found the conduct objectively serious and that the Doctor lacked insight into her behaviour.  The charge was upheld, warranting disciplinary sanction.

Particular 1 sub-particulars a – h, j and k, separately and cumulatively under 100(1) (a) & (b) HPCAA.

Particular 2 sub-particulars a – c, separately and cumulatively under 100(1) (a) & (b) HPCAA.

Particular 3 sub-particulars c – f, h – l and n, separately and cumulatively under 100(1) (a) & (b) HPCAA.

Sub-particulars a, b, g and m, cumulatively with the other sub-particulars.

Particular 4 sub-particulars a and b separately and cumulatively under 100(1) (a) & (b) HPCAA.

Penalty

The Tribunal ordered:

• Cancellation of registration. Not to apply for re-registration for two years from the date of the decision.
• Censure.
• Fine of $10,000.
• Conditions on re-registration.
• Payment of $148,450.41 amounting to 60% of the total costs of the PCC investigation and hearing estimated costs.

The Tribunal directed the Executive Officer to publish the decision and a summary on the Tribunal’s website.