Regulatory Consequences for Professionals’ Statements to the Public and on Social Media

Introduction

We are in a time of increasing social media use to express opinions and perspectives, personally and professionally. We are also in a time of a ‘cancel culture’, which is generally described as the withdrawal of support of people who have done or said something considered objectionable or offensive. As a result, health professionals should consider the risks when posting on social media. Posting controversial opinions or positions on social media or speaking to patients or colleagues in demeaning ways may lead to regulatory consequences.

Right to Freedom of Expression Does not Preclude Discipline for Public Statements

A recent decision by the Saskatchewan Court of Appeal which has attracted a great deal of attention (and which we blogged about) overturned a decision finding a nurse guilty of professional misconduct for posting comments on her personal Facebook page. The nurse posted about the care her grandfather had received in a long-term care facility. The Discipline Committee of her regulatory college found that she had committed various professional and ethical breaches, but the Court of Appeal found that the nurse’s Charter right to freedom of expression was infringed upon and that she had a right to criticize the care her grandfather received. The Court of Appeal was clear, however, that a professional regulator can impose expectations relating to civility, respectful communication, confidentiality, advertising, and other matters that impact freedom of expression, and that breach of these expectations could constitute professional misconduct and result in disciplinary proceedings. Although this case provides a framework for Discipline Committees to use in assessing whether professionals’ public statements constitutes professional misconduct or is protected by their right to free expression, this does not change the fact that professionals could face significant consequences for statements to the public or on social media. Below are some examples of regulated health professionals who were found to have acted unprofessionally by their regulatory body, either on social media or in writing directly to others. These examples involve physicians, psychologists and pharmacists, and underscore that any regulated professional can be found to have engaged in conduct or acted in ways that can be regarded as disgraceful, dishonourable or unprofessional as a result of posts on social media or public statements.

Using Vulgar Language and Name-Calling on Social Media

An Ontario surgeon who used vulgar language to describe two other Ontario physicians on Twitter was found to have engaged in professional misconduct by the Discipline Committee of the College of Physicians and Surgeons of Ontario (CPSO). Though he publicly apologized on Twitter, the surgeon faced discipline and received a penalty, which included a suspension. The surgeon’s conduct sparked an ongoing discussion about online decorum and the increasing intolerance of various regulatory bodies towards this type of conduct. [1]

Sending Confrontational Messages to Patients on Social Media

The Health Professions Appeal and Review Board (HPARB) confirmed the decision of the Inquiries, Complaints and Reports Committee (ICRC) of the College of Psychologists of Ontario to caution a psychologist after the psychologist sent the complainant’s spouse a confrontational message on Facebook and responded to a negative review on the website, RateMDs.com. In deciding to take steps, the ICRC expressed concerned about the tone, content and public nature of the member’s responding post on the RateMDs website. The ICRC found that the post and public retaliation undermined the public’s trust in the practice of psychology and reflected poorly on the profession. [2]

Demonstrating Lack of Control when Addressing Complainants

A patient made a complaint to the Ontario College of Pharmacists alleging that a member behaved rudely and aggressively towards her. The member provided a written response to the complaint, which was also provided to the patient. The ICRC required the pharmacist to complete coaching in order to improve his communication skills with patients. HPARB confirmed the ICRC’s decision. The member sought judicial review of HPARB’s decision, alleging that the ICRC improperly based its decision on the tone of the member’s response to the complaint and that he did not receive notice that consideration would be placed on tone. The court found that the member’s response was “intemperate” and that the ICRC was not obligated to provide the member with notice that the tone of his response would be taken into account. [3]

Sending Offensive and Unprofessional Emails to a Wide Audience

A physician whose hospital appointment was not renewed faced discipline for sending emails to a wide audience and posting Facebook messages during the time that the physician was appealing the denial of his reappointment. The physician CPSO ICRC investigated and referred allegations of professional misconduct to the Discipline Committee, which found that the emails contained violent and hostile language and were unprofessional and offensive. The Discipline Committee also found that the physician used inappropriate language in numerous offensive Facebook posts, which made allegations and accusations against the hospital. This was determined to be conduct that members of the profession would reasonably regard as disgraceful, dishonourable or unprofessional and unbecoming of a physician. [4]

Conclusion

These examples act as a reminder to all health professionals that the jurisdiction of regulatory bodies extends beyond clinical complaints to comments made online, in public and to others. Not only are health professionals held accountable for statements made on social media and in public forums, they are also responsible for their language and tone when responding to patients, colleagues or complainants. Health professionals must recognize their influence and responsibility when expressing their opinions, perspectives, insights and experiences. Health professionals are reminded to conduct themselves professionally and respectfully and in accordance with the standards and guidelines of their profession at all times. As these cases illustrate, what health professionals say and how they say it matters.

[1] Jackie Dunham, “Ontario surgeon suspended for crude Twitter remarks about 2 female doctors” CTVNews, January 24, 2020 https://www.ctvnews.ca/canada/ontario-surgeon-suspended-for-crude-twitter-remarks-about-2-female-doctors-1.4782257#:~:text=On%20Friday%2C%20the%20College%20of,a%20tweet%20from%20September%202018.

[2] W.N. v. M.D., 2017 CanLII 87100 (ON HPARB).

[3] Papazian v. Ontario College of Pharmacists, Eade, Siskind 2015 ONSC 3929.

[4] Ontario (College of Physicians and Surgeons of Ontario) v. Waddell, 2020 ONCPSD 9 (CanLII).