Discipline committee should consider context and facts surrounding the nurse’s speech, court says
The Court of Appeal for Saskatchewan has overturned a finding of professional misconduct against a nurse who criticized on social media the healthcare service received by her relative.
In Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112, the appellant nurse made a post on her personal Facebook page discussing the care that her deceased grandfather had received in a health centre in Macklin, Saskatchewan. The post linked to an article that criticized the training and knowledge of physicians in Canada. The post received comments, to which she replied. She then tweeted these posts to Saskatchewan’s health minister and opposition leader, at which point the posts became public.
Employees of the health centre reported the posts to the Saskatchewan Registered Nurses’ Association, which issued professional misconduct charges pursuant to ss. 26(1) and (2) of the Registered Nurses Act. The association’s discipline committee found professional misconduct on the part of the nurse, for which she was reprimanded, fined, made to pay costs and ordered to submit two self-reflective essays. The Court of Queen’s Bench then dismissed her appeal.
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The Court of Appeal for Saskatchewan allowed the present appeal and set aside the discipline committee’s finding of professional misconduct. The appeal court also ruled that the discipline committee’s decision had unjustifiably infringed on the nurse’s right to freedom of expression under s. 2(b) of the Charter.
The appeal court held that, while the discipline committee’s decision regarding professional misconduct was discretionary in nature, this discretionary power was neither unfettered nor unlimited. The discipline committee’s analysis in this case did not sufficiently consider important criteria when it exercised its discretion, the appeal court said.
“Its analysis was one dimensional, referring repeatedly to the fact that Ms. Strom made critical comments on social media rather than through proper channels,” wrote Justice Brian A. Barrington-Foote for the appeal court. “It did not reflect the complete contextual inquiry necessary to determine whether professional misconduct had been made out on the evidence.”
Regarding the Charter issue, the appeal court emphasized that the applicable standard of review is correctness, not reasonableness as used by the Chambers judge. In deciding whether healthcare-related speech amounts to professional misconduct, the discipline committee should have considered the unique circumstances, including “what the registered nurse said, the context in which they said it and the reason it was said,” to assess the value of the assailed speech, wrote Barrington-Foote. The appeal court went on to enumerate the possible relevant contextual factors.
“A fact-specific approach that takes account of all contextual factors would enable the Discipline Committee to proportionately balance the Charter right of registered nurses to free expression and the SRNA’s legitimate concern with off-duty speech by registered nurses with a sufficient nexus to the profession,” wrote Barrington-Foote.
The appeal court said that criticism of the public healthcare system in Canada is in the public interest. Here, the nurse intended for her posts to raise public awareness and spark public discourse. Registered nurses should be allowed to choose their means of communication and their audience and to utilize their unique knowledge and professional credibility to discuss important healthcare-related issues, stated the court.
Christine Van Geyn, litigation director of the Canadian Constitution Foundation, which acted as one of the intervenors in the case, called the decision a victory for freedom of expression and said that it meant that “the province of Saskatchewan, through a professional regulator, cannot restrict her right to free expression or stop her from blowing the whistle on what she perceived as poor quality care.”
Field Law said in a write-up analyzing the case that “social media policies or other standards that address off-duty conduct should be reviewed in light of the Court of Appeal’s decision to ensure that they account for the contextual analysis discussed by the Court of Appeal.”