Sentence annulled against nurse who criticised Covid resources

The judge of the Contentious-Administrative Court number 3 of Alicante has annulled the sanction and dismissal of a nurse who criticised on her social media account the lack of resources at the Marina Baixa Hospital during the third wave of the Covid-19 pandemic.

The judge believes that the health authority’s statements, which were reported in a newspaper and a television channel, did not in any way infringe the statute governing health service personnel.

However, the judge did note a possible violation of personal data protection by the Ministry of Health officials who included personal data of patients, some of whom had died, in the disciplinary file raised against the nurse.

For this reason, it is agreed to extract testimony from the judgment and the administrative file and bring them to the attention of the Spanish Data Protection Agency.

The events date back to January 2021, when the nurse, who was a temporary staff member assigned to a health centre, posted a message on her Facebook profile stating, among other things, that during her night shift on a ward at the La Marina Baixa Regional Hospital, located in La Vila Joiosa, two people had died “because there was no more room in the ICU to intubate them”.

Following these demonstrations, in September 2022, the General Directorate of Human Resources of the Ministry of Health imposed a sanction of two years of suspension from duties for a very serious offence.

This decision was later confirmed, in November of that year, by the Undersecretary of the Ministry, who rejected an appeal for reinstatement by the sanctioned party, who finally ceased her job by order of the Administration on October 10, 2023.

The Ministry understood that the professional had violated an article of the Framework Statute that regulates the statutory staff of health services, which sanctions the breach of due confidentiality regarding data relating to the centre or institution or the personal privacy of users and information related to their process and stay in institutions or health centres.

However, the judge of the 3rd Administrative Court of Alicante has concluded that the facts that the Administration was trying to impute to the person under investigation “have not been even minimally proven” and do not constitute an infringement.

According to the ruling, which can be appealed, the nurse made comments “in a purely personal capacity”, as she herself “was witnessing first-hand the common feeling of fear (…) and sadness and exhaustion in society, but without providing any personal information about anyone”.

Furthermore, the professional had an “irrelevant” public profile, since she was neither a “well-known influencer” nor did she have a significant number of followers that would allow us to speak of a “significant diffusion” of her message, but rather it was amplified by the publication of a provincial newspaper and a program on national television, the resolution states.

In short, according to the judge, the professional only used her social networks “as a means of exonerating herself” and her comments “did not reveal any secret” nor did they give false data or information about the operation of the hospital’s services.

In any case, and in view of the Administration’s insistence on the falsity of the information, the judge recalls that it is not its function to determine “the absolute truth of the statements that its employees may make” and for this there are “much more effective” formulas, such as issuing a press release, “before opening a disciplinary file.”

The judge also decided in his resolution to bring to the attention of the Spanish Data Protection Agency a possible infringement of the legislation in this area, which he attributes to the instructor and the other persons responsible for the disciplinary file, for incorporating in that document specially protected health data of more than fifty patients, some of them deceased, without the express permission of these patients or their relatives.

“We are faced with the largest leak and dissemination of personal and medical data that this court has ever seen. This is data that was absolutely unnecessary to include in the disciplinary file, or could have been provided in an anonymised form, but above all it has left the scope of the Administration and has been made public by personal decision of the person in charge of the case,” the judge said.