Health care professionals have a voice on social media, court rules

A major provincial court has provided strong support for the right of nurses, physicians and other health care professionals to express concerns about healthcare on social media.

Earlier this week, the Saskatchewan Court of Appeal – the province’s highest court – ruled in favour of Carolyn Strom, a nurse who was disciplined by the Saskatchewan Registered Nurses Association after she complained on Facebook about the care her grandfather had received at end of life in a long-term care facility in Macklin, Saskatchewan.

The decision by the nurses association had prompted widespread concern that the regulatory body was infringing on the right of a health care professional to express their views about healthcare.

“Nurses, doctors, lawyers and other professionals are also sisters and brothers, and sons and daughters,” Mr. Justice Brian Barrington-Foote wrote. “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.”

While the appeal court stated regulators have the authority to impose limits, Mr. Justice Barrington-Foote wrote that in this case the nursing association’s actions had an excessive impact on Strom’s right to freedom of expression.

“Ms. Strom posted as a granddaughter who had lost one grandparent and was concerned for the future of another. That fact was front and center for a reader of the posts. Although she identified as a nurse and an advocate, she was not and did not purport to be carrying out her duties as a nurse. She … spoke to the quality of care provided by a distant facility with which she had no professional relationship. The private aspect of the posts was made clear and was significant. Further … the posts have not been shown to be false or exaggerated and, on the face of it, would appear to be balanced.”

The Facebook comments by Strom were posted on Feb. 25, 2015 and she subsequently copied her concerns to the provincial minister of health and opposition leader on Twitter. Some employees of the home long-term care home took exception to the posts and reported them to the nurses association.

 On Oct. 18, 2016, she was found guilty of professional misconduct by a discipline committee of the nurses association and ordered to pay a $1,000 fine and $25,000 to cover the cost of the tribunal. She appealed the association’s decision to the province’s Court of Queen’s Bench, but this appeal was dismissed in 2018. The decision by the Court of Appeal came following a hearing which took place almost a year ago in September, 2019.

“Criticism of the healthcare system is manifestly in the public interest,” Mr. Justice Barrington-Foote wrote. “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.”

The decision noted that having focused solely on the critical portions of Strom’s post, the discipline committee “failed to recognize that her comments were not only both critical and laudatory but were self-evidently intended to contribute to public awareness and public discourse. Ms. Strom spoke to the need for training and of the right of all residents to quality and compassionate care. She spoke to the need for the loved ones of residents in extended care to play a part in the accountability of the system.”

The appeal court said it made no findings about whether those employed at the long-term care home “failed to provide appropriate care to Ms. Strom’s grandparents.”

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