A recent decision by the Saskatchewan Court of Appeal overturned a decision of the Discipline Committee of the Saskatchewan Registered Nurses’ Association (upheld on appeal to the Court of Queen’s Bench) finding a nurse guilty of professional misconduct for posting comments on her personal Facebook page about the care her grandfather had received in a long-term care facility.
The Discipline Committee found that the nurse had committed various professional and ethical breaches including failing to follow proper channels in making a complaint; making comments that have an impact on the reputation of staff and a facility; and using her status of registered nurse for personal purposes. The nurse was reprimanded, fined $1,000, required to submit two self-reflective essays, and ordered to pay $25,000 in costs.
The Court of Appeal found that the nurse’s Charter rights to freedom of expression was infringed upon and that she had a right to criticize the care her grandfather received. The Court of Appeal recognized that:
Criticism of the health-care system is manifestly in the public interest. Such criticism, even by those delivering those services, does not necessarily undermine public confidence in health-care workers or the health-care system. Indeed, it can enhance confidence.”
The Court of Appeal recognized that bringing discipline proceedings against a health professional for statements made on social media was an infringement on the professional’s freedom of expression. As such, the Court considered the purpose of the legislation (to provide for a professional regulatory body to license and regulate registered nurses, with an overriding objective of safeguarding the public interest) and its statutory objective (protecting the public interest and the standing of the profession by setting and enforcing standards as to public speech by registered nurses relating to healthcare). The Court then assessed whether the decision finding the nurse guilty of professional misconduct was the least intrusive option available to promote this objective and, as such, whether it infringed freedom of expression no more than was reasonably necessary. The Court of Appeal found that the Discipline Committee erred by failing to adopt an approach that provided for the consideration of the “full panoply of contextual factors.” The Court of Appeal found that:
The correct approach to assessing whether speech relating to healthcare constitutes professional misconduct would account for the unique circumstances of each case — such as what the registered nurse said, the context in which they said it and the reason it was said — thereby enabling the Discipline Committee to accurately gauge the value of the impugned speech. The relevant contextual factors might include, without limitation:
(a) whether the speech was made while the nurse charged was on duty or was otherwise acting as a nurse;
(b) whether the nurse charged identified themself as a registered nurse;
(c) the extent of the professional connection between the nurse charged and the nurses or institution the nurse charged has criticized;
(d) whether the speech related to services provided to the nurse charged or their family or friends;
(e) whether the speech was the result of emotional distress or mental health issues;
(f) the truth or fairness of any criticism levied by the nurse charged;
(g) the extent of the publication and the size and nature of the audience;
(h) whether the public expression by the nurse was intended to contribute to social or political discourse about an important issue; and
(i) the nature and scope of the damage to the profession and the public interest.
This decision provides guidance to any discipline committee assessing whether public speech constitutes professional misconduct on the part of a professional: discipline committees must take “a fact-specific approach that takes account of all contextual factors” in order to proportionately balance the Charter right of the professional to free expression and the regulator’s legitimate concern with off-duty speech by professionals with a sufficient nexus to the profession.
The Court of Appeal recognized that professionals are held to a higher standard of conduct than others with respect to public statements, noting that “those who sign up as doctors, nurses, lawyers, engineers, or any other of the regulated professions that crowd the statute books choose to subject themselves to the requirements, rules and processes imposed by legislation, to applicable codes of conduct and professional standards, and to the authority of the regulator” and that “[i]t is entirely legitimate for a professional regulator to impose requirements relating to civility, respectful communication, confidentiality, advertising, and other matters that impact freedom of expression”, the breach of which could constitute professional misconduct. However, the Court of Appeal recognized that professionals have personal lives and fundamental rights and freedoms as well:
Nurses, doctors, lawyers and other professionals are also sisters and brothers, and sons and daughters. They are dancers and athletes, coaches and bloggers, and community and political volunteers. They communicate with friends and others on social media. They have voices in all of these roles. The professional bargain does not require that they fall silent.
The Court of Appeal ultimately found that the nurse’s posts were made in her personal capacity, not as a professional, and that the posts were not false or exaggerated and were balanced. In these circumstances, the infringement of the nurse’s Charter right to freedom of expression was not justified. As such, the decision was overturned.
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