by Written on behalf of Wise Health Law April 13, 2018 9 min read

A Saskatchewan Court recently dismissed the appeal of a registered nurse (RN) who had been found guilty of professional misconduct and finedby the Saskatchewan Registered Nurses Association (SRNA) (the regulatory body governing RN’s in that province), after she used Facebook and Twitter to express concern about the quality of end-of-life health care provided to her grandfather.

What Happened?

The RN’s grandfather passed away in January 2015. Several weeks after his death, the RN posted a series of comments to Facebook and later Twitter, commenting on the level of care the grandfather had received at a palliative care centre in Macklin, Saskatchewan. At the time that she made the posts, the RN was on maternity leave and was not working or engaged in the practice of nursing. She had never worked at the facility in question. Her posts read, in part:
My grandfather spent a week in palliative care before he died and after hearing about his and my family's experience there, it is evident that not everyone is 'up to speed' on how to approach end of life care or how to help maintain an ageing senior's dignity. … I challenge the people involved in decision making with that facility to please get all your staff a refresher on this topic and more. Don't get me wrong, 'some' people have provided excellent care so I thank you so very much for your efforts, but to those who made Grandpa's last years less than desirable, please do better next time. … As an RN and avid health care advocate myself, I just have to speak up…Whatever reasons/excuses people give for not giving quality of life care, I do not care. It just needs to be fixed.
While these posts were made on the RN’s private Facebook profile, she later tweeted a link to them to the province’s Minister of Health as well as the Leader of the Opposition, effectively making the posts fully public. An RN at the palliative care facility in question saw the posts, felt that they were “embarrassing” and “humiliating” and made a formal complaint to the SRNA, claiming that the RN who had made the posts had failed to meet her professional obligations.

The Discipline Committee’s Findings

The SRNA’s Discipline Committee found the RN guilty of professional misconduct contrary to s. 26(1) of the Registered Nurses Act, 1988(the Act) and guilty of breaching several provisions of the Code of Ethics and Standards & Foundation Competencies for the Practice of Registered Nurses. The Committee found that the RN’s comments had harmed the reputation of the staff at the facility and undermined public confidence in the staff. The Committee further found that:
Nurses should advocate for “the provision of safe, compassionate, competent and ethical care” (see page 5 of the Code of Ethics). However and rather than raising concerns or complaints about care to the health care team, Ms. Strom engaged in a generalized public venting about the facility and its staff and went straight to social media to do that.
The Committee emphasized that the fact that the RN had identified herself as such provided credibility to her comments and established a clear connection between her online posts and her position as an RN. The RN should have raised any concerns she had with her grandfather’s care through the “appropriate organizational channels” and that “…as a registered nurse, should know better than anyone about the lines of authority in a health care facility.” The Committee considered whether the Charter’s free speech provisions would protect the RN’s comments but concluded that any person who references their credentials while publicly expressing their opinion must adhere to the code that governs their profession. Ultimately, the Commission found that:
The Discipline Committee accepts that Facebook post and the subsequent online communication she engaged in was motivated by perhaps grief and anger. It is accepted that was not driven by malice. is a professional bound to act with integrity and in accordance with the Code of Ethics. The Discipline Committee does not seek to “muzzle” registered nurses from using social media. However, registered nurses must conduct themselves professionally and with care when communicating on social media.

The Penalty

The RN was subsequently fined $1,000 and ordered to pay the costs of the discipline proceedings ($25,000). She was also ordered to:
  • Review the Standards & Foundation Competencies for the Practice of Registered Nurses and and the Code of Ethicsprovide written “self-reflective” essays to the Registrar referencing the relevant competencies and provisions related to her conduct and how the competencies and the Codewill guide her future practice; and
  • Complete the Canadian Nurses Association Code of Ethics online learning modules.
The RN appealed the discipline and penalty decisions.

The Appeal Decision

The Court of Queen's Bench for Saskatchewan noted that, by law, the Discipline Committee had “a great deal of leeway in coming to its decisions” and that the focus of the appeal was whether its discipline and penalty decisions fell within that leeway or exceeded it in a way that was unreasonable and had to be reversed. The Court ultimately concluded that the committee’s decision fell within the leeway provided to it and dismissed the RN’s appeal. The Court noted that the Discipline Committee’s decision could be broken down into four components:
  1. That the RN’s off-duty conduct was subject to discipline;
  2. That the RN engaged in professional misconduct;
  3. That the infringement of her Charter right to freedom of expression was justified;
  4. That she should pay costs.
The Court reviewed each of these elements.

Off-Duty Conduct

The RN had argued that she was on maternity leave and had not been engaged in the practice of nursing when she made her comments. In her opinion, she should not have been subject to discipline because she had made the comments as private individual, not as an RN. However, the Discipline Committee had concluded that she had been acting as both a private individual and as an RN, as had been evidenced through her testimony that she was motivated to be an “advocate nurse”. The Discipline Committee found that the RN had “made that link between her views of the care provided to her grandfather and her position as a registered nurse”. The RN had further argued that the rules and ethics that govern nurses do so only when those nurses are engaged in the practice of nursing. The Discipline Committee had relied upon comments made by the Alberta Court of Appeal in a case involving the professional misconduct of a chartered accountant, in which the Court said, about off-duty conduct:
Professionals in every walk of life have private lives and should enjoy, as much as possible, the rights and freedoms of citizens generally. A chartered accountant’s status in the community at large means that his/her conduct will from time to time be the subject of scrutiny and comment. While acknowledging the legitimate demands of one’s personal life, and the rights and privileges that we all enjoy, private behaviour that derogates from the high standards of conduct essential to the reputation of one’s profession cannot be condoned. It follows that a chartered accountant must ensure that her conduct is above reproach in the view of reasonable, fair-minded and informed persons.
The Committee had adopted these comments as applicable to RN’s, and the Court of Appeal agreed, noting that such an adoption falls within the range of decisions available to the Committee. The Court further noted that the decision about whether the RN’s off-duty conduct should be subject to discipline is precisely the type of decision that was contemplated when the SRNA was given broad powers under the Act,noting:
The decision is made by people who have knowledge and expertise in the area. When such a decision is made by such people, registered nurses are being governed through the lens of that knowledge and expertise.
The Court found that the Committee’s decision about the RN’s off-duty conduct had been reasonable.

Professional Misconduct

Section 26(1) of the Actdefines professional misconduct as:
…any matter, conduct or thing, whether or not disgraceful or dishonourable, that is contrary to the best interests of the public or nurses or tends to harm the standing of the profession of nursing is professional misconduct within the meaning of this Act.
The Court noted that the Discipline Committee’s analysis of whether the RN had engaged in professional misconduct had considered several factors:
  • The RN knew that her comments would become public and widely viewed;
  • The RN identified herself as such to give her comments more “credibility and legitimacy”;
  • The comments caused “quite a disruption” at the facility in question and RN’s there were demoralized and distraught;
  • The comments “harmed the reputation of the nursing staff at and undermined the public confidence in the staff at that facility”; and
  • This harm was “contrary to the best interests of the public or nurses or tends to harm the standing of the profession of nursing”.
The Court also noted that it was open to the Committee to make these findings, particularly in light of the RN’s knowledge of various cautions that had been issued to RN’s by the Saskatchewan Union of Nurses (SUN) about online behaviour and social media (especially when they identify themselves as RN’s in any posts). Moreover, the Court noted that it had been open for the Committee to interpret the reference to “nurses” in s. 26(1) to include only some, but not all, nurses in the province (i.e. the nurses at the facility in question). The Discipline Committee’s finding that the comments had damaged the reputations of the nurses at the facility was reasonable. The Court further noted that the Committee’s findings also went broader than that since they concluded that since the comments damaged the reputations of the nurses at that facility and undermined public confidence in them, this had the more general impact of harming the standing of the profession of nurses as a whole. The Committee’s decision was within the range of possible, acceptable outcomes and the Court did not interfere with it.

Infringement of CharterRights

The RN argued that the Discipline Committee had violated her s. 7 right to life, liberty, and security of the person, and her s. 2(b) right to freedom of expression. The Court noted that it is well-established law that the right to life, liberty and security of the person does not apply in the context of practicing one’s profession, and that s. 7 did not apply to this case. The Court further noted that there was no question that the SRNA infringed on the RN’s freedom of expression, but the issue was whether this infringement had been justified. The noted that the Committee’s decision that the infringement was justified could only be reasonable if the committee proportionately balanced the right to freedom of expression with the objectives of the Act in the specific context of the RN’s circumstances. The Court found that the Discipline Committee had considered both the RN’s s. 2 right to freedom of expression and the objective, set out in s. 26(1) of the Act, of governing RN’s in the best interests of the public and of the profession. The Court noted that the Committee had been alive to the importance of the right to freedom of expression and resolved the balance issue by stating, in its decision, that:
…The Discipline Committee does not seek to “muzzle” registered nurses from using social media. However, registered nurses must conduct themselves professionally and with care when communicating on social media.
Ultimately, the Committee found professional misconduct not because the RN had expressed her opinion, but because of the way she went about expressing it. In balancing the objective of governing the profession with the right to freedom of expression, the Committee found that in this case the RN could still have acted as an “advocate nurse” and exercised her right to freedom of expression by advancing her criticisms in a way that did not harm other RN’s and the nursing profession. The Court did not interfere with the Committee’s decision in this respect.

Costs

Among other things, the RN argued that the Committee’s penalty decision ordering her to pay $25,000 in costs was unreasonable and that over the years, costs awards against RN’s have increased in an arbitrary way. The Court disagreed, noting that there has been a progression in costs awards but that such a progression recognizes that if a nurse is found guilty, whatever costs are not paid by that nurse and borne by all of the nurses who are members of the association. The Court further noted that the Committee had conducted a thoughtful and thorough review of many factors in coming to its decision, and that the actual costs of the proceedings were six times more than the $25,000 the RN had been ordered to pay. The Court upheld the costs decision.

The SRNA’s Reaction to the Decision

The Executive Director of the SRNA told CBC News that she “expected” the Court of Appeal’s decision, noting that the judge was “…very clear that the discipline committee did act within the leeway of the law and within the parameters given to them”. She further emphasized that RN’s are allowed to use social media and air concerns online as long as they do so within the confines of their code of ethics. In this particular situation, the Executive Director believes that the RN should have brought her concerns to staff at the facility in question, then the facility’s director, and only if those options were unsuccessful, to ministry officials. CBC reports that the RN is planning a further appeal. If you are a regulated health professional facing a complaint, investigation, or disciplinary hearing at your College, or wish to appeal such a decision, contact the trusted and respected health lawyers at Wise Health Law. We will assist you in understanding your rights, guide you through the process, and represent you throughout. With offices in both Toronto and Oakville, Ontario we are easily accessible. Contact us online, or at 416-915-4234for a consultation.


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