Saskatchewan’s highest court has ruled in favour of free expression for a nurse who criticised what she called “sub-par” care that her grandfather received at the end of his life. It is a decision that sets an important precedent for professionals exercising their Charter-protected rights without fear of being silenced by regulators.
On October 6, the Saskatchewan Court of Appeal released its decision in Carolyn Strom v Saskatchewan Registered Nurses Association. In 2015, Ms. Strom, a registered nurse, had posted on Facebook about what she perceived as substandard care her grandfather had received in a long term care facility at the end of his life. The posts were balanced, used non-inflammatory language, and did not name any names. Ms. Strom criticised some of the care her grandfather received as “sub-par”, but also praised some of the care and she attached to her post a news article about the need to improve palliative care.
For all this, Ms. Strom was dragged before the nursing Disciplinary Committee, which concluded that her off-duty comments amounted to professional misconduct. She was fined $1,000 and ordered to pay an additional $25,000 in costs of the proceeding.
The Disciplinary Committee found that Ms. Strom’s comments harmed the reputation of nurses, and that if she had a complaint she should have used formal channels – complaining to the individual nurses, their managers, the facility and finally to the Minister of Health, until all options were exhausted.
The current crisis has shown us how these so-called proper channels in the usual system are slow and often do not work. Nurses should not need to jump through bureaucratic hoops in order to point out failures in care. Nurses have been some of the most outspoken advocates for improving long term care during this pandemic. They have stood up for many long term care residents who cannot speak for themselves.
Because of this decision, nurses need not worry about looking over their backs for fear of being disciplined if they wish to speak out about the conditions and care they observe.
The Court found that the Disciplinary Committee had erred, and that Ms. Strom’s social media posts did not amount to misconduct. Indeed, the court commented that depending on the circumstances, comments by nurses on the healthcare system may enhance the reputation on nurses and advance the public interest.
The Court also found that the Discipline Committee had erred by failing to give, not just enough, but any weight to Ms. Strom’s right to freedom of expression. The Court held that Ms. Strom’s speech had been infringed and that the infringement was not justified. Very little was gained by disciplining her, and the infringement on her right to free expression was serious.
The Disciplinary Committee had ignored important facts: namely that Ms. Strom’s comments were intended to contribute to awareness and discourse to improve the healthcare system, that she had attached a news article about public policy, that her comments were balanced, and that there was never a finding that they were untrue or even unfair. The Discipline Committee also completely ignored the context that Ms. Strom was emotionally distraught after just losing her grandfather.
The right to participate in social and political discourse is an important aspect of personal autonomy, and free speech is the heart of a liberal democracy. Even though the Court did not need to address Ms. Strom’s Charter rights, having found there was no misconduct, they nevertheless upheld these rights.
While there are standards that professionals must abide by, this does not mean the entire life of a professional should be subject to inordinate scrutiny and the fundamental rights of professionals substantially curtailed. The “professional bargain” that nurses make does not require that they fall silent on all matters of health care.
This is not just a good thing for nurses, it’s a good thing for the patients they advocate for as well. Speaking out will help improve the system, which is a goal we all need to share in these perilous times.
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