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On October 6, 2020, the Saskatchewan Court of Appeal issued its decision in the appeal of Carolyn Strom. Ms. Strom is a Registered Nurse who was disciplined by the Saskatchewan Registered Nurses’ Association – the nursing regulator in Saskatchewan – for comments she made on social media. The Court of Appeal set aside the discipline. The case dealt with questions about professional regulation in relation to a nurse’s private life, social media, and the guarantee of freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms.
At the time of the events giving rise to the discipline, Ms. Strom lived and practiced nursing in Prince Albert, Saskatchewan. In January 2015, her grandfather died at St. Joseph’s Health Centre, a nursing home in a town about 350km away.
In February 2015, Ms. Strom, who was on maternity leave, posted comments on her Facebook page about the care her grandfather had received at the nursing home. She included a link to an article about end-of-life care. She then used Twitter to tweet the posts to Saskatchewan’s Minister of Health and the Saskatchewan Opposition Leader.
A Registered Nurse who worked at St. Joseph’s reported Ms. Strom’s posts to the RN Association. A discipline committee of the Association found Ms. Strom guilty of professional misconduct. The discipline committee gave her a reprimand, a fine of $1,000, and ordered Ms. Strom to pay costs of $25,000. It also ordered her to review the standards of practice, review and complete training on the code of ethics, and write two-self reflective essays.
Ms. Strom successfully appealed the decision. The Court of Appeal found that the discipline committee was wrong to find Ms. Strom guilty of professional misconduct.
First, the Court found that the posts did not constitute professional misconduct, when the tone, content and purpose of the post as a whole were properly taken into account.
Second, the Court found that the decision unjustifiably infringed Ms. Strom’s right to freedom of expression under the Charter. In its analysis, the Court emphasized the need for proportionality between the goals of a regulator and a nurse’s interest in privacy and personal autonomy. The Court summarized the issue this way:
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. It does, however, allow the regulator to impose limits. The question as to whether it has imposed excessive limits is the proportionality question.
In Ms. Strom’s case, the Court found the regulator’s actions were not proportional and had a serious impact on Ms. Strom’s freedom of expression. In reaching its decision, the Court took into account the following factors:
- Ms. Strom posted as a granddaughter who had lost one grandparent and was concerned for the future of another.
- Although she identified as a nurse and an advocate, she was not and did not purport to be carrying out her duties as a nurse.
- She was on maternity leave and spoke to the quality of care provided by a distant facility with which she had no professional relationship.
- The private aspect of the posts was made clear and was significant.
- The posts were not shown to be false or exaggerated and, on the face of it, would appear to be balanced.
The Court also found that the role of nurses in raising concerns with the healthcare system, and long-term care in particular, was of critical public importance:
Criticism of the healthcare system is manifestly in the public interest. Such criticism, even by those delivering those services, does not necessarily undermine public confidence in healthcare workers or the healthcare system. Indeed, it can enhance confidence by demonstrating that those with the greatest knowledge of this massive and opaque system, and who have the ability to effect change, are both prepared and permitted to speak and pursue positive change. In any event, the fact that public confidence in aspects of the healthcare system may suffer as a result of fair criticism can itself result in positive change. Such is the messy business of democracy.
The Saskatchewan Court of Appeal’s conclusions do not mean that nurses can never be disciplined by their regulator for comments they make online. The outcome will depend on the facts in each case. The decision, however, should send an important message to regulators. When they receive complaints about a nurse’s statements or conduct outside of work, regulators should proceed with caution and ensure they adequately consider the nurse’s interest in privacy, autonomy and freedom of expression.
