Can Private Health Care Workers Make Public Statements?
Recent cases involving healthcare professionals’ rights to speak publicly confuse rather than clarify what are the ground rules.
In 2015, Carolyn Strom, a nurse in Saskatchewan, posted on Facebook criticizing the health care her grandfather received while in palliative care. In the post, Strom said staff at St. Joseph's Integrated Health Centre needed to do a better job of looking after elderly patients. Strom believed she commented as a private person with genuine concerns for her grandfather’s healthcare rather than in her capacity as a nurse.
Some nurses at St. Joseph’s felt Strom's post was a personal attack and complained to the provincial regulator. The Saskatchewan Registered Nurses Association ruled the post brought the nursing profession into disrepute and violated its social media policy. Strom was found guilty of professional misconduct and fined $1,000 and ordered to pay $25,000 in tribunal costs. Strom appealed.
That appeal was dismissed by a lower court, and in September 2019 Strom appealed to the Court of Appeal.
Strom’s lawyer argued at the Court of Appeal that her Facebook comments were made in good faith and she had a right to free speech, among other arguments.
The regulator argued she ought to have gone through the correct channels and lodged an official complaint and that Strom’s comments were an attack on an individualized group. The regulator also argued that Canadians would be harmed if nurses could say whatever they wanted about the healthcare system.
This last argument is off the mark. The position has never been that nurses should be permitted to ‘say anything’. That argument raises the question, why isn’t a nurse qualified and permitted to speak about the healthcare system, in good faith and without malice, as a front-line healthcare worker. Wouldn’t Canadians want ready access to healthcare workers’ opinions, among other opinions, to educate themselves and reducing potential harm to themselves?
The Court of Appeal has reserved, and a decision is expected anytime. If the court decides in favour of the regulator, its decision may set a precedent for all professionals who want to share their opinions or concerns. That includes the authors of this blog.
Dr. Najma Ahmed is a trauma surgeon at St. Michael’s Hospital in Toronto. She treated victims of the fatal mass shooting in Toronto last summer. She is also the founding member of Canadian Doctors for Protection from Guns. That group is calling for a national ban on private ownership of handguns and assault rifles.
A group called the Canadian Coalition for Firearm Rights encouraged its supporters to file official complaints to the College of Physicians and Surgeons of Ontario about Dr. Ahmed’s advocacy work. The College received about 70 complaints.
The CPSO has exercised its discretion not to investigate the complaints. The CPSO has called the complaints an abuse of process and that the college’s procedures should not be used to advance a political agenda or silence or intimidate physicians.
The Committee wrote, “It is concerning to the committee that the respondent (Dr. Ahmed) has been subjected to what appears to be a campaign to dissuade her from voicing her views.” The committee said, “Physicians’ roles include responsible advocacy with respect to matters affecting public health. The complaint process should not be used as a tool to silence or intimidate physicians.” The complaint raised no issues relating to clinical care or professional conduct, only matters relating to statements made in a public forum, as part of a political discourse.”
Dr. Nancy Whitmore, registrar of the CPSO stated, “The CPSO’s role is not to resolve political disagreements when clinical care/outcomes or professional conduct is not in question. We recognize that physicians can play an important role by advocating for system-level change in a socially accountable manner.”
Reconciling Opposing Decisions
The two cases above do not have identical facts; no two cases do. However, there is sufficient overlap of the facts to raise serious questions about how each of the provinces’ regulators treat similar conduct. One province seems opposed to any public discourse, while the other seems to encourage responsible advocacy and discourse. One province believes it should regulate private conduct unrelated to clinical care, while the other believes such conduct falls outside of its jurisdiction.
If the Court of Appeal for Saskatchewan rules that Strom’s conduct in her personal life is conduct that can be regulated by the provincial nurses’ regulator, this sets a bad precedent. That decision may hurt all provinces regulators and cause professionals from coast to coast to stop talking.
Is that what you want to hear?