A nurse in Saskatchewan who is facing a $1,000 fine and a $25,000 costs order after using social media to complain about her grandfather’s care at a palliative care facility is appealing the finding of misconduct and penalty ordered in the case. Health professionals and their regulators will be watching with interest whether the Saskatchewan Court of Queen’s Bench upholds the finding of professional misconduct or the penalty imposed. Colleagues of the nurse and many commentators have expressed their objection both to the penalty, feeling it is excessive, and to the fact that the nurse was sanctioned for comments made in her personal capacity. In this era of social media and quick and easy access to a public platform on which to air grievances or broadcast opinions, these types of disciplinary proceedings may be on the rise.
The trouble began when a nurse decided to post on Facebook about what she considered was her grandfather’s poor treatment at a palliative care facility. The nurse commented that the staff at the facility were not “up to speed” on palliative care, nor did they know how to “help maintain an aging senior’s dignity”. She also opined that the staff made her grandfather’s last years “less than desirable”. Nevertheless, she also noted that some of the staff “provided excellent care”.
After reading the Facebook post, and knowing that the poster was a nurse, some of the staff at the palliative care facility made a complaint to the Saskatchewan Registered Nurses’ Association (the regulatory body of professional nursing in Saskatchewan, “SRNA”).
The nurse was brought before the discipline committee who charged the nurse with five professional and ethical breaches: not respecting patient confidentiality by identifying her grandfather (this was later dropped); failure to follow proper channels in making a complaint; making comments that have an impact on the reputation of staff and a facility; failure to first obtain all the facts; and using her status of registered nurse for personal purposes.
In October 2016 the SRNA found the nurse guilty of professional misconduct. Recently, the penalty portion of the case was decided and the nurse was ordered to pay $26,000.00, which included a $1,000 fine and $25,000.00 to cover the costs of the hearing. In addition, she was required to write a “self-reflective essay” on what she did wrong and how she will change her behaviour in the future and to complete an online course on the Canadian Nurses Association’s code of ethics. The nurse is appealing the decision.
This case highlights several important trends in regulatory proceedings involving healthcare professionals.
First, regulators are being increasingly scrutinized and held accountable for how they regulate registrants and hold them accountable for unprofessional conduct. In this case the public feels that the regulator’s finding of misconduct and penalty was excessive. In other situations, members of the public and the media have argued that the regulators have been too lenient. Either way, these decisions are being heavily scrutinized by the public, whom the regulators are there to protect.
Secondly, “off duty” conduct by health professionals is increasingly being brought to the attention of, and subject to sanction by, regulators. The ease of social media and the instant dissemination of information have brought this issue to the forefront. Professionals can quickly get into trouble for impulsive social media posts. While this nurse may have been posting as a “granddaughter” and not as a nurse, health care professionals can never truly separate themselves from their regulated professional role.
Thirdly, in this particular case there was a very quick response in defence of the nurse by her fellow nurses and other health care professionals. They saw this as an unfair result, so much so that they made the unprecedented move to use crowdfunding to raise funds for the nurse’s legal costs and fine.
On a final note, the sanction itself was actually minimal: $1.000 fine and the need to draft a reflective essay. The harsher penalty of a suspension was not imposed. It was the legal costs of $25,000 that perhaps has raised the ire of the public. Costs are not intended to be punitive, but they must address the fact that investigations and prosecutions are expensive and that the profession as a whole should not bear the costs of members’ misconduct. Costs are meant to indemnify the regulatory body for (typically a portion of) the costs it has incurred as a result of a member’s professional misconduct. In this case, the nurse was ordered to pay $25,000 of the $150,000 in costs that were incurred. When courts have examined costs awards in disciplinary proceedings in past cases, they have assessed whether the costs were fair and reasonable, and proportionate to the case: see for example Reid v. College of Chiropractors of Ontario 2016 ONSC 104.
As noted, the nurse in this case is appealing this decision. It will be a case of interest to all health professionals, regulatory bodies, and the public at large. We will provide an update once the appeal has been heard and a decision released. In the meantime, health care professionals should remain thoughtful and professional when posting on social media and remind themselves of how any comments might be perceived by the public.
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