To what extend do professionals have the right to express their personal views outside of their professional lives?
In the recent decision of Strom v Saskatchewan Registered Nurses' Association, 2020 SKCA 112, the Saskatchewan Court of Appeal provided further clarity regarding the degree of analysis expected of professional regulators in assessing whether a member's off-duty comments amounts to professional misconduct.
Carolyn Strom, a registered nurse was licensed by the Saskatchewan Registered Nurses' Association (“SRNA”). While on maternity leave, and following the death of her grandfather, Ms. Strom posted critical comments on Facebook about the level of care received by her grandfather in his final days at a long-term care home and long-term care in general. Ms. Strom also posted a link to an article about end-of-life care and tweeted the posts to the Saskatchewan Minister of Health and the Saskatchewan Opposition Leader.
Ms. Strom was found guilty of professional misconduct by the SRNA Discipline Committee for the public Facebook posts. The Discipline Committee focused on the fact that she did not go through proper channels to voice her concerns. As she identified herself as a registered nurse in the Facebook posts, the Discipline Committee found that Ms. Strom's posts harmed the nursing profession's reputation. The Discipline Committee found that although its decision infringed on Ms. Strom's freedom of expression, the infringement was justified as the Discipline Committee needed to ensure that nurses advocate in a professional manner. The Saskatchewan Court of Queen's Bench subsequently affirmed the Discipline Committee's decision.
Saskatchewan Court of Appeal Decision
On appeal, the Saskatchewan Court of Appeal overturned both the lower court's and the Discipline Committee's decisions. They held that in order to determine whether off-duty comments amount to professional misconduct, a regulator must look at the entire context behind the comments. The Saskatchewan Court of Appeal found that the Discipline Committee failed to do this thereby missing key factors including: Ms. Strom was grieving the loss of her grandfather; that she also made comments praising certain staff members; and that her posts were intended to raise awareness on improving palliative care in Canada in general. The tone, content and purpose of the post were all important factors to consider when determining whether Ms. Strom's off-duty conduct would be considered professional misconduct.
The Saskatchewan Court of Appeal also found that the Discipline Committee's failure to perform a contextual analysis resulted in a decision that unjustifiably infringed on Ms. Strom's right to freedom of expression. In making these findings, the Saskatchewan Court of Appeal recognized that professionals have the right to voice their opinions. The Discipline Committee's decision unjustifiably denied Ms. Strom and other registered nurses their ability to offer constructive criticism and contribute to discussions on important public health issues.
The Saskatchewan Court of Appeal noted that professionals remain bound by their profession's rules and requirements with respect to civility, respectful communication, confidentiality, advertisement and other matters that impact freedom of expression. However, the enforcement of these limits must be proportional to the alleged offensive speech. Not every statement that causes offence should attract discipline. In this case, Ms. Strom's posts were made as a grieving granddaughter. They were not shown to be false or exaggerated. There was no evidence that the public interest or the reputation of facility, staff and nursing profession were negatively impacted. In these circumstances, the Discipline Committee's decision to discipline Ms. Strom for her off-duty speech did not justify infringing on her Charter right to freedom of expression.
The Saskatchewan Court of Appeal's decision highlights the importance for regulators to examine the entire context when dealing with off-duty conduct. A contextual analysis must focus on whether there is a nexus between the off-duty conduct and the profession, such that there would be a negative impact on the public, the professional or the profession.
When an individual makes a statement, the tone, content, and purpose of the statement are important contextual factors that a regulator should consider when assessing whether the conduct amounts to professional misconduct. It is important that the regulator not cherry pick elements of an individual's conduct to make a finding of professional misconduct.
The Saskatchewan Court of Appeal's decision also serves as a reminder that professionals have voices and roles outside of their professional lives and that they have the right to express their views. Public discourse is important and professionals can offer unique and informed contributions to these discussions. Limits can be imposed if they are necessary to protect the public or profession as a whole. However, speech should not be limited simply because it may offend others. A full contextual analysis of the situation is required to properly balance the need to impose these limits and the right of members to freedom of expression.
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