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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
