The province’s highest court heard both that the ability of nurses to criticize issues of public health was at risk and that an identifiable group of nurses had their reputations slandered during verbal arguments in the appeal of Prince Albert nurse Carolyn Strom’s case Tuesday.
Strom is appealing a Court of Queen’s Bench decision upholding the Saskatchewan Registered Nurses’ Association (SRNA) disciplinary decision punishing her for comments made in a 2015 Facebook post in which she criticized her grandfather’s end-of-life care.
The court of appeal reserved its decision.
Strom is out to overturn the finding of professional misconduct and cancellation of her fees. SRNA is looking to uphold its finding. They may also seek additional damages, which could be as high as $5,000.
In her post, Strom said the care for her grandfather at St. Joseph’s Health Facility in Macklin was “subpar.”
Staff from the facility complained, and Strom was fined $1,000 for professional misconduct and charged $25,000 to cover some of the investigation’s costs.
Arguments Tuesday focused on whether the SRNA disciplinary board properly considered the implications of Strom’s rights under section 2b of the Canadian Charter of Rights and Freedoms, which protects freedom of thought, belief opinion and expression.
The hearing was live-streamed.
“Individuals do not rely on the freedom of expression to say hello,” Strom ‘s lawyer, Marcus Davies, said during his arguments.
“We rely on the right of free expression (when we say something that might) make someone feel uncomfortable. Apparently, she made an institution and staff members uncomfortable.”
Davies argued that if Strom did something beyond just making the institution and its staff members uncomfortable, they could have proceeded by accusing her of libel, an action they did not take.
Davies said the decision of the disciplinary committee “simply isn’t” reasonable.
While Strom’s case is between herself and the SRNA, it has attracted considerable attention both within and outside of Saskatchewan.
The case attracted the attention of three interveners who were permitted to also present arguments to the Court of Appeal.
Those interveners included the Saskatchewan Union of Nurses (SUN), the BC Civil Liberties Association and the Canadian Constitution Foundation.
The SRNA decision to find Strom guilty of professional misconduct “has unreasonably lowered the bar” for professional misconduct, SUN lawyer Ronni Nordal argued.
She added that the SRNA committee had an “unreasonable” interpretation of the Registered Nurses Act.
SUN took issue with the assertion that by commenting on the standard of care at one particular facility, Strom brought the profession of nursing into disrepute.
“The SRNA does not defend or protect the reputation of individual nurses,” Nordal said.
She also argued that Strom should not have been disciplined for professional misconduct because, in the original post, she did not identify herself as a nurse. It was only later, Nordal said, in the ensuing discussion, that Strom identified herself as a nurse.
Greg Fingas, who appeared on behalf of the civil liberties association, spoke of the value of advocacy by health professionals and the relevancy of social media as a means of expression.
He argued that justifications for restricting someone’s freedom of expression have to be reasonable, and in this situation, weren’t.
He also said the punishment of Strom was not in the public’s interest.
He called the argument that the public would have greater respect for nurses because Strom was disciplined for expressing concern for the care of her grandparent “a stretch.”
The SRNA argued that Strom should have gone through proper channels, such as filing a proper complaint.
But Fingas said Strom’s role as a family member commenting publicly on the circumstances of family members in are “should be accorded substantial value.
“There’s a valid reason for a person to be raising those types of issues and no value to be invoking professional misconduct concerns,” he said.
“(She) shouldn’t’ have to justify speaking out publicly because another reporting mechanism may be available.”
He added that it’s possible for someone to identify their professional background in a discussion without that becoming an issue of misconduct— SRNA argued that because Strom is a nurse, she should have known better than to go public and should have known to go through official channels.
Roger Lepage, the lawyer retained by SRNA, argued to counter those concerns.
“There is no charter right for professionals to act unprofessionally,” he said.
“There is no charter right for individuals to harm the reputation of other professionals. When a professional nurse takes to social media to … harm the reputation of other professionals without getting the acts and going through the proper channels, she should be disciplined for that.”
Lepage argued that the public at large would be harmed if nurses could “just say what they want about medical establishments based on what they heard that day or what they ate,” and that it would lower trust in the health care system.
“Our submission is that Ms. Strom broadcast fake news on Facebook and used her position to do it.”
The justices hearing the case stopped Lepage and asked him a question. Previous arguments made by the SRNA said they would not be arguing whether or not what Strom said was true. Why now accuse her of not getting the facts and of spreading fake news?, they asked.
Lepage said they were not discussing whether what Strom said was true.
Rather, “the truthfulness … is the contextual background,” he said.
“You can’t ignore that in this case. She made no attempt to get the facts.”
He also argued that Strom’s post was not public speech or an attempt to have a discussion on a political issue, but rather a “statement harmful to the reputation of a group of people.” He argued her comments “are closer to defamation.
“If you’re talking about a letter by a doctor about end of life care and he’s making a statement where he says the government will have to increase their level of funding … it’s about broad political discussions. He’s not focused on a particular group. Those are political debates that warrant free speech.
“If you look at Strom’s post … she’s criticizing a group of individuals for specific health care in a specific facility. It’s not attacking a broad social policy or health care policy.”
That, Lepage said, puts it further away from the core value of the type of free speech protected by the charter, and closer to defamatory speech.
He added that on her Facebook profile, Strom identified herself as a registered nurse with a passion for prevention, attempting to refute the argument that Strom did not identify herself as a nurse.
“If you read her post, it’s very personal She’s zeroing in on St Joseph’s, on Macklin, on … the staff. She’s saying, some of you are providing sub-par care. Some of you aren’t compassionate _ those are serious allegations against an identifiable group. That’s what takes this out of …. Public discourse open to debate.”
That’s compounded, Lepage said, by the fact that the staff being accused of not being compassionate could not have defended themselves without violating their obligations to protecting patient privacy.
“What (Strom) was engaging in was a one-sided attack on a facility and an identifiable group of health workers.”
He read the testimony of a few of the nurses from the original disciplinary hearing who said they were hurt and their reputation suffered because of Strom’s comments.
That, he said, is what puts the reputation of the profession into disrepute.
He said that Strom had an opportunity to just admit she was wrong and take ethical training. She refused.
Lepage was questioned by the justices hearing the case.
“If it was a fair criticism, would it be a bad thing that public interest was undermined?” he was asked.
“Aren’t we dealing here with the ability of a member of a professional organization to criticize other members of the professional organization?”
Lepage responded that the professional should go through the proper channels or get the facts and not just go onto social media and make “whatever allegations you want.
“If you’re a nurse,” he said, “you know better.”
The judges pressed a bit further, asking Lepage where the original committee finding was that said Strom defamed the facility and said things about the nurses that wouldn’t true.
Lepage again argued that it was implied when the committee said Strom’s comments were just public venting, and that by not going through proper channels she didn’t ensure she got the facts.
The judges asked him where the accusation of defamation came from. They acknowledged that there may have been harm, but stressed that defamation was a very different thing.
Lepage said the “parallels” were there.
The judges then pressed him on the arguments surrounding whether the disciplinary committee properly balanced the breach of Strom’s charter rights with the test of whether the committee’s decision was proportionate.
Lepage pointed to statements made by the committee that they aren’t muzzling nurses and that Strom still has the right to file formal complaints. That, he said, shows they took those issues of proportionality into account.
“I would ask you to look at this as being a reasonable conclusion,” Lepage said of the discipline committee’s original findings.
“It would create problems for regulatory bodies if they’re not engaged when a member gets involved in this kind of social media attack on an identifiable group of nurses who cannot defend themselves. It would be fundamentally unfair for professionals to not defend their reputations if their professional bodies do not do it for them.”
Once SRNA had submitted their arguments, Davies took a few minutes to reply.
“As a lawyer who represents nurses, often, I heard one of the most shocking statements I have ever heard. He said that the public would be harmed if nurses could say what they want. That’s what he said. I think that’s what’s actually going on here for four years. I can’t imagine … any representative saying the public could be harmed if doctors could speak,” he argued.
“I think that says an awful lot.”
Davies implored the justices to carefully consider where the line is when it comes to appropriate and inappropriate comments.
“We’ve heard that the truth doesn’t matter and we’ve heard defamation said several times here, in which case truth does matter,” he said.
“If a group is identifiable … all critical comment could be about an identifiable group. What would I be criticizing, the colour of the air in this room? You have to have a group if you’re making a criticism on public policy.”
He also took issue with the argument that Strom was offered a deal to sign an agreement that she had been wrong and the whole issue would have been avoided.
“It alleged she was incompetent,” he said.
“Of course she’s not going to sign … that (she) is incompetent. This was not an option.”