Nurse’s Facebook Comment Not Professional Misconduct

Facebook is increasingly known to be used by older people, with well over a third of Canadians on Facebook being older than 45 years in August 2020. Despite the smaller user base, Facebook is almost two-thirds of all social media use by visits by all social media users in Canada.

With that much use, there’s bound to be problems. And where there are problems, there is often litigation.

The Saskatchewan Court of Appeal recently released a decision in Strom v Saskatchewan Registered Nurses’ Association, which set aside the decision by the Discipline Committee of the nurses’ regulatory college, that a Facebook post constituted professional misconduct.

The nurse in question was on maternity leave at the time in January 2015, during which her grandfather died at a health care facility. This would be a difficult time for any person, and as many people do she turned to her friends and social supports through the vehicle that many of use these days to do so – on Facebook.

She had been a nurse for 13 years and had worked in palliative care settings, so the personal subject matter was also something of great interest and passion to her professionally. The nurse commented on the care she observed of her grandfather, and did so in a critical manner. She also tweeted (on Twitter) to the Minister of Health and the provincial Opposition Leader a link to this Facebook post.

The discussion that ensued on her Facebook account was emotional but nuanced, made reference to contemporary commentary in the news, and indicated a general interest in improving care provided in this area. Some of her Facebook friends shared some of their own experiences with a grandparent’s death.

All of this might seem entirely normal and ordinary, as typical content found on Facebook, for those people who use it routinely. Some might even suggest this was a healthy and therapeutic way to deal with grief and suffering, especially in a free and democratic society.

Although the nurse indicated the post was initially only shared privately to her added “friends,” she claims that it was made public “inadvertently.” She claims this was caused by sharing it with the politicians and adding the hashtags “#LongTermCare #Sask #Health #TheyDeserveBetter,” but it’s unlikely that these actions alone would turn a post from private to public. This part of the mystery remains unsolved, even by the Court of Appeal.

Some employees of the health care facility came across this post and her comments, and took exception to it. The Facebook post made its way to the health centre’s board of directors, and even the regional health authority. An employee of the health care facility reported her to the Saskatchewan Registered Nurses’ Association (the SRNA) in March 2015, by a member of the same regulatory body.

The SRNA charged her with professional misconduct, pursuant to s. 35 of the Registered Nurses ActThe charges of conduct includes a failure to follow the professional channels, in that she did not take her concerns to the appropriate health care providers and managers, tarnishing the reputation of the facility and its staff, a failure to obtain all of the relevant facts, and using her status as a nurse in her Facebook post for personal purposes, thereby violating the SRNA’s code of ethics.

And here we thought we just had a grieving granddaughter reaching to to her friends for support, and expressing her frustrations to her elected governmental representatives, whose jobs are literally to listen, consider, and respond to exactly these types of concerns.

The nurse’s statutory appeal of this decision was dismissed, but that was before the Supreme Court’s decision in Vavilov in 2019, which completely transformed how decisions like this are reviewed by the courts. The Saskatchewan Court of Appeal, which heard the case prior to the Court’s decision in Vavilov, described the case as follows,

[3] … Her appeal raises questions at the intersection between professional regulation, Ms. Strom’s private life, and the s. 2(b) Charter guarantee of freedom of expression in the age of social media. Those questions are not unique to Ms. Strom or to registered nurses. Further, Ms. Strom asks for relief at a time when those who believe freedom of expression is threatened by “cancel culture”, and those who believe too little heed has been paid to the ability of speech to inflict wounds and cause division, can often be heard debating in the virtual public square.
[emphasis added]

The basis for her Charter rights was grounded in Irwin Toy and Montréal (City) v 2952-1366 Québec Inc., on the basis that the social media activity was directly connected to her core expression values and pursuit of democratic discourse, truth finding and self-fulfillment.

The Discipline Committee first attempted to decide whether the nurse was required to abide by the SRNA’s ethics and codes of professional conduct outside of work, keeping in mind that the nurse in question was not at work, but on a statutorily protected leave. They concluded that a broad interpretation of these Act in relation to these values was necessary to “protect the public and promote the public standing of the profession of registered nursing.”

Citing a related case in a different regulated profession in Erdmann v Complaints Inquiry Committee, the Discipline Committee effectively stated,

[20] Professionals in every walk of life have private lives and should enjoy, as much as possible, the rights and freedoms of citizens generally. A [registered nurse]’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 [registered nurse] must ensure that her conduct is above reproach in the view of reasonable, fair-minded and informed persons.
[emphasis in the original; modified to reflected emphasis]

Applying the test for off-duty conduct Fountain v British Columbia College of Teachers, but erroneously referring to the wrong case, the Discipline Committee concluded that the nurse’s reference to her profession in the post was intended to bolster credibility and legitimacy to her comments, and distinguished this case from Whatcott on that basis.

You might think that a mis-citation of this nature might foster some sympathy from an appellate bench, but this was not the case. Applying the reasonableness standard to all aspects of the grounds of professional misconduct under a Doré framework, the Queen’s Bench judge concluded that these were discretionary decisions of the regulatory college “was justified, transparent and intelligible, and fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.”

This approach to professional regulation of members’ social media might leave quite a few members of a great number of different professionals significantly concerned about expressing their thoughts on any high profile news item in their area of practice, let alone one that directly relates to a personal issue, tragedy, or life event that may have transpired. Fortunately, this was not to be the last chapter of this case, as Vavilov was released after the matter was heard, with the Court stating,

[36] We have reaffirmed that, to the extent possible, the standard of review analysis requires courts to give effect to the legislature’s institutional design choices to delegate authority through statute. In our view, this principled position also requires courts to give effect to the legislature’s intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that the court is to perform an appellate function with respect to that decision…

[37] It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review…

[38] We acknowledge that giving effect to statutory appeal mechanisms in this way departs from the Court’s recent jurisprudence…

This means that statutory appeals should apply the Housen factors, which do not include a standard of reasonableness. An error of law, including evaluating the scope of a decision-maker’s authority, is reviewed on a standard of correctness, and an error of fact or mixed question of fact and law is reviewed on a standard of palpable and overriding error.

Crucial in the Queen’s Bench decision was that the judge improperly applied even the old test of standard of review, focusing exclusively on the outcome in a Dunsmuir analysis, rather than the entire process. The decision therefore lacked the Duinsmuir criteria of “justification, transparency and intelligibility within the decision-making process.”

The Court of Appeal rejected the position of both of the parties, namely that all issues in the appeal were errors of law, to be reviewed on correctness, while the SRNA pointed to s. 26 of the Act itself, which specifies that professional misconduct is a question of fact, and not law.

[72] In my view, that is the correct approach. Indeed, it is self-evident that the exercise undertaken by the Discipline Committee cannot be characterized as deciding a question of fact simpliciter for standard of review purposes. Issues will arise on an appeal of a finding of professional misconduct that are not questions of fact. That is so in this case, where Ms. Strom and the SRNA have raised questions as to the interpretation of s. 26(1)of the Act. Questions of statutory interpretation are questions of law. Indeed, the statutory framework is always in play, regardless of whether there is an extricable question of law…

[73] In the result, a discipline committee deciding whether a registered nurse is guilty of professional misconduct is not deciding a question of fact for standard of review purposes. It is either deciding a question of mixed fact and law or making a discretionary decision…

[86] …I conclude that the decision as to whether Ms. Strom’s conduct amounted to professional misconduct within the meaning of s. 26(1) was a discretionary decision.

The Court of Appeal emphasized that the proper view of the public interest for regulatory bodies is also served by the protection and promotion that is achieved for the public by a properly functioning self-governing profession. The Act itself provides a revocation to any provision that is deemed to be contrary to the public interest, emphasizing the importance of this overriding criteria in regulatory matters.

They also indicated the need for a sufficient nexus or relationship between the personal off-duty conduct that would engage the obligations of the regulator to promote and protect this public interest. The regulator cannot sanction a professional for just any misconduct. They can only sanction a professional for professional misconduct.

Applying discretionary decision-making to discipline a professional about the need for improvement in the area they practiced, without mentioning any specific names or institutions, would not justify a finding of professional misconduct. Nor would a single emotional outburst by a professional at the deathbed of a loved one, which would be a profoundly person expression of grief.

Although the Facebook post was neither of these circumstances, the Discipline Committee’s decision was still deficient in that it omitted very important content. The nurse’s original post included a newspaper link, which contained policy arguments for improvements directly related to the subject matter and palliative care. Much of the Facebook post was about long-term care generally, and there were even positive comments made by her in this context in the same post.

The Court of Appeal also set aside the Discipline Committee on the basis of the regulatory college’s Charter analysis. Taking the complete contextual factors particular to an individual case, the statutory objective of protecting the public interest was not served by enforcing standards of public speech by a professional related to their profession, as it lacked proportionality.

The regulatory college adopted a binary approach, assuming that the only two options available to them was to convict or acquit the nurse, because “there was no other reasonable and less intrusive option, as doing nothing would not advance the statutory objective.” The Court of Appeal disagreed with this interpretation of proportionality of Charter rights,

[160] The freedom to criticize services extends equally to public services. Indeed, the right to criticize public services is an essential aspect of the “linchpin” connection between freedom of expression and democracy. In Canada, public healthcare is both a source of pride and a political preoccupation. It is a frequent subject of public discourse, engaging the political class, journalists, medical professionals, academics, and the general public. 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.

[165] This infringement is properly characterized as a serious impact on the type of speech that s. 2(b) of the Charter seeks to protect. The significance of that impact is increased by the fact that it related to Ms. Strom’s freedom of expression while off duty and in relation to her private life. Essentially the same issue – although not the Charter right – was emphasized in the analysis of the professional misconduct ground. Becoming a member of a regulated profession comes with benefits but at a cost. 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. 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.

[166] …[T]hat does not mean the entire life of a professional should be subject to inordinate scrutiny on the basis of more onerous standards of behaviour, as that would lead to a substantial invasion of the privacy rights and fundamental freedoms of professionals. The word “inordinate” can be understood as a shorthand expression of the need for proportionality. 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.

[168] The denial of the right to speak in these circumstances is important. Proportionality, of course, is not concerned solely with the severity of the impact on Charter rights. It is concerned with the balance between rights and objectives….

Because the Discipline Committee was incorrect in finding an infringement of the Charter rights being justified on the basis of proportionality, their decision must be set aside.

Those disinterested in administrative law, who must be strange creatures disinterested in the law generally, may not appreciate the overly zealous obsession of the subject matter on the standard of review. This case, with a late hour reformulation of the standard and how it is to be applied, certainly illustrates the importance of the subject matter, perhaps even to those skeptical of the art.

One further observation may disillusion even those potential converts. This case identifies a gap in the Vavilov analysis, which ultimately will require further commentary from the Court, namely what is the appropriate standard of review when the actual issue is whether an administrative decision limits Charter rights, but is raised on a judicial review instead of an appeal? The suspense from true adherents to administrative law are undoubtably already found themselves in a state of suspense.

Of broader interest is the role of regulatory colleges in regulating the speech of their members, even when the subject matter relates to their profession. Despite a reputation for often being bullish on the role of a regulator in the legal profession, this is not the type of conduct that a professional regulator should easily find themselves involved in.

Without an explicit and unambiguous intention of using social media for a professional purpose, such as posting a press release related to a client or a case, the nexus or relationship between the personal off-duty conduct and the public interest may be more challenging to identify. This is especially true where the conduct itself is nuanced, personal in nature, and intended for commentary or exchange or political discourse.

The voice of a professional, even on social media, may have limits, and in fact should have limits when it comes to discriminatory conduct or disparaging views about members of the public, who might be in need of those professional services. But those limits do not approach in any way the type of conduct described here, which we should all be thankful for, or we would likely have no professionals left at all.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)