The use of social media is widespread in today's world. It is used by nurses, doctors, lawyers, engineers, and other professionals to communicate with friends and others in both their professional and private lives. Social media use by professionals raises questions about the interaction between such use and the codes of conduct, professional standards, and a regulator's authority that govern professionals.
The Saskatchewan Court of Appeal addressed some of these questions in Strom v Saskatchewan Registered Nurses Association, 2020 SKCA 112. In this decision, the Court of Appeal quashed a finding of professional misconduct against Carolyn Strom, a registered nurse, who used Facebook and Twitter to criticize the health care her grandfather received. The finding of professional misconduct received widespread media coverage across Canada, indicating significant public interest in the issue.
In 2015, approximately a month after her grandfather died after spending 13 years in long-term care, Ms. Strom posted comments on her personal Facebook page about the care her grandfather received in his last days. Her Facebook posts were only available to her friends. The posts identified Ms. Strom as a registered nurse and stated her grandfather received "subpar" care, that the care lacked compassion, and that the care was not "up to date." They also urged others to come forward with concerns about the care provided at the facility. At the time of the posts, Ms. Strom was on maternity leave. Her post also included a link to a newspaper article about end-of-life care. Ms. Strom and some of her Facebook friends engaged in a conversation about health care through further Facebook posts, in which Ms. Strom expressed some gratitude to nurses. Ms. Strom also used Twitter to tweet the posts to Saskatchewan's Minister of Health and the Saskatchewan Opposition Leader. At this time, the Facebook posts became public.
Some employees from the long-term care facility where Ms. Strom's grandfather resided took exception to the posts and reported them to Ms. Strom's regulator, the Saskatchewan Registered Nurses Association ("SRNA"). While specific employees were not named in the posts, they worked in a small facility in a small town and felt they could be identified. The SRNA charged Ms. Strom with professional misconduct. Ms. Strom was found guilty of such professional misconduct by a Discipline Committee and was reprimanded, fined $1,000, required to submit two-reflective essays, and ordered to pay $25,000 in costs. After an unsuccessful appeal to the Court of Queen's Bench, Ms. Strom appealed the finding of professional misconduct to the Court of Appeal. In deciding her appeal, the Court of Appeal addressed the interaction between professional regulation, a professional's private life, and the Charter guarantee of freedom of expression in the age of social media.
The first issue addressed by the Court of Appeal was whether the Discipline Committee erred in finding Ms. Strom guilty of professional misconduct. Concerning the standard of review of the finding of professional misconduct, the Court of Appeal somewhat surprisingly applied the standard that applies to the review of "discretionary" decisions. This enabled the Court to consider whether the Discipline Committee failed to give sufficient weight to relevant considerations. In doing so, the Court did not provide any significant deference to the Discipline Committee's analysis and decision.
The Court of Appeal rejected the argument that off-duty conduct could only be disciplined if the conduct was reprehensible if undertaken by an ordinary member of the public, ignoring the professional status. It stated the central question in the imposition of professional sanctions for off-duty conduct is whether there is a nexus between the off-duty conduct and the profession that demonstrates a sufficiently negative impact on the profession or the public interest. Such a question calls for a contextual analysis where the answer to whether professional misconduct has occurred is dependent on all of the circumstances.
In examining the circumstances of Ms. Strom's case, the Court of Appeal noted that the Facebook posts were balanced and that they were about the need for improvement in the quality of palliative care, without naming nurses or identifying a particular institution. It found the tone, content, and purpose of the posts, being to generate or engage in political or social discourse, did not damage the ability of Ms. Strom to carry out her professional duties, or negatively impact the interests of the public, or tend to harm the reputation of the profession. The Court of Appeal also observed that the context of the posts, coming after the death of a loved one and involving a brief online conversation with few participants that occurred in the course of a single day, was important. The Court of Appeal also found that public discourse relating to the healthcare system by a registered nurse could enhance the profession's reputation and advance the public interest.
In deciding the first issue, the Court of Appeal found the Discipline Committee erred by conducting a one-dimensional analysis that focused on only the fact that Ms. Strom made critical comments on social media rather than through proper channels. The Discipline Committee's analysis did not reflect the contextual inquiry necessary to determine whether professional misconduct had been established. The Court of Appeal found that Ms. Strom's conduct did not amount to professional misconduct in light of all the circumstances, including that Ms. Strom posted primarily as a granddaughter who lost a grandparent by way of private posts which were balanced and not false or exaggerated.
The second issue addressed by the Court of Appeal was whether the finding of professional misconduct unjustifiably infringed ms. Strom's Charter right to freedom of expression. The parties agreed that Ms. Strom's freedom of expression was infringed and that the question was whether that infringement was justified. The Court of Appeal applied a correctness standard of review to this issue. It stated that the Court's task in answering the question in the context of professional discipline was whether the decision-maker disproportionately limited the Charter right or whether it struck an appropriate balance between the Charter right and statutory objectives. A contextual and fact-specific analysis must be conducted to determine appropriate balancing.
The first step in the analysis is to determine the statutory objective. The Court of Appeal described the statute's purpose in question as being to provide for a professional regulatory body to license and regulate registered nurses, with an overriding objective of safeguarding the public interest. In looking at the issue of speech, the statutory objective was protecting the public interest and standing of the profession by setting and enforcing standards as to public speech by registered nurses relating to health care. The second step is to account for each case's unique circumstances, such as what was said, the context in which it was said, and the reason it was said, and to determine if the individual should be disciplined despite the infringement of their right to free expression. The second step involves a consideration of the "full panoply of context factors", including:
- whether the speech was made while the nurse was on duty or otherwise acting as a nurse;
- whether the nurse identified themselves as such;
- the extent of the professional connection between the nurse charged and the nurses or institution criticized;
- whether the speech related to services provided to the nurse or their family or friends;
- whether the speech was the result of emotional distress or mental health issues;
- the truth or fairness of any criticism;
- the extent of publication and the size and nature of the audience,
- whether the expression was intended to contribute to social or political discourse about an important issue; and
- the nature and scope of the damage to the profession and public interest.
The Court of Appeal found that the Discipline Committee failed to recognize Ms. Strom's comments were both critical and laudatory and that they were intended to contribute to public awareness and public discourse. The Court observed that the right to criticize public services such as the healthcare system is in the public interest and that it can enhance public confidence by demonstrating those with the greatest knowledge and ability to effect change are both prepared and permitted to speak and pursue positive change. The Court of Appeal concluded Ms. Strom's posts were not impulsive, gratuitous social media venting and that the Discipline Committee's decision effectively precluded registered nurses from using their knowledge and credibility to publicly advance important issues relating to long-term care. The Court rejected the argument that Ms. Strom should have followed formal channels to communicate concerns as this would prevent professionals from choosing their own means of communication and audience. The Court concluded the finding of professional misconduct was excessive given all the circumstances and that the infringement of Ms. Strom's right to freedom of expression was not justified.
There are many similarities between the Court of Appeal's reasoning on whether the off-duty conduct was professional misconduct and whether the infringement on freedom of expression was justified. Both assessments involve examining all of the circumstances of the case and performing a contextual analysis. This contextual analysis, as well as specifics comments from the Court of Appeal, demonstrates that professionals can be found guilty of professional misconduct for social media posts and that such a finding can be a justified infringement on the freedom of expression. While a professional does not need to remain silent on social media or in other public places, the regulator can impose limits on expression. The Court specifically observed that it 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. Failing to abide by such rules can be found to constitute professional misconduct." If a contextualized analysis demonstrates that social media posts result in a sufficiently negative impact on the profession or the public interest, a finding of professional misconduct will likely be upheld. However, this does not mean that the entire life of a professional should be subject to inordinate scrutiny that would lead to a substantial invasion of privacy rights and the fundamental freedoms of professionals. It is the facts of the case that matter.
The decision of the Saskatchewan Court of Appeal is not binding in Alberta. Nonetheless, its robust analysis provides a roadmap that may be persuasive to Alberta decision-makers. This roadmap provides an opportunity for regulators to review their standards of practice, codes of conduct, and policies regarding off-duty conduct and freedom of expression. Specifically, social media policies or other standards that address off-duty conduct should be reviewed in light of the Court of Appeal's decision to ensure that they account for the contextual analysis discussed by the Court of Appeal. Field Law's Professional Regulatory Group is available to assist with this review and to answer any questions that you may have.
The SRNA has not commented on whether it will seek leave from the Supreme Court of Canada to appeal the Court of Appeal's decision. We will continue to monitor the case and will provide further updates if leave to appeal is sought.
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