Does Being a Nurse Remove Your Constitutional Right to Free Speech? The Carolyn Strom Case.

steven007, BSN, MSN

Just over a year ago, in April of 2018, RN Carolyn Strom lost her court appeal contesting disciplinary action that was taken by her regulatory body (the Saskatchewan Registered Nurses Association “SRNA”) for a comment she posted on Facebook about the care her dying grandfather received in a hospital.

Strom’s Facebook post read as follows:

“My Grandfather spent a week in “Palliative Care” before he died and after hearing about his and my family’s experience there (@ St. Joseph’s Health Facility in Macklin, SK) it is evident that Not Everyone is “up to speed” on how to approach end of life care ... Or how to help maintain an Ageing Senior’s Dignity (among other things!) So ... I challenge the people involved in decision making with that facility, to please get All Your Staff a refresher on the topic AND More.

Don’t get me wrong, “some” people have provided excellent care so I thank you so very much for YOUR efforts, but to those who made Grandpa’s last years less than desirable, Please Do Better Next Time! My Grandmother has chosen to stay in your facility, so here is your chance to treat her “like you would want your own family member to be treated”.

That’s All I Ask!

And a caution to anyone that has loved ones at the facility mentioned above: keep an eye on things and report anything you Do Not Like! That’s the only way to get some things to change.

(I’m glad the column reference below surfaced, because it has given me a way to segway into this topic.)

The fact that I have to ask people, who work in health care, to take a step back and be more compassionate, saddens me more than you know”

While Strom was not employed by the facility and was, in fact, not practicing nursing at all (she was on maternity leave), the nurses at the care facility took notice to these comments and filed a formal complaint against Strom with the SRNA. The SRNA launched an investigation and found Strom guilty of professional misconduct, namely that Strom engaged in “conduct that is contrary to the best interests of the public or nurses or tends to harm the standing of the profession of nursing” and “not following the proper channels”.

Strom appealed this decision to the Court of Queen’s Bench for Saskatchewan where Currie, J. upheld the administrative decision of the SRNA. In his judgement, Currie, J. holds that the judgement by the SRNA was “reasonable” and ordered Strom to pay the costs of the investigation, as well as a disciplinary penalty totaling $26,000 CAD.

It is likely that Strom will appeal this decision; however, as it stands now, this rests as valid case law and sets a precedent for nurses to be charged and disciplined for “off-duty” misconducts.

Removing our Constitutional Rights to Freedom of Speech

The precedent set in this case permits a regulatory body (such as a BON) to limit one’s constitutional right to freedom of expression. In his judgement, Currie, J. acknowledges that this was a breach of Strom’s constitutional rights to freedom of expression, but holds that, so long as a regulatory body “proportionately balanced the right to freedom of expression with the objectives of the [Nursing Act], in the context of Ms. Strom’s circumstances”, it is acceptable to limit freedom of expression. Currie, J. goes on to state that “The [SRNA’s] balancing of the rights and objectives is not required to be correct. It is required to be reasonable.”

So what makes it reasonable? Currie, J. holds that the decision was reasonable because Ms. Strom was granted other avenues of expression, namely, she was able to report the nurses providing inadequate care to the SRNA or the hospital administration. This is in fact what is recommended in the code put forth by the SRNA.

Omitting Pivotal Case Law

While Currie, J. holds that Ms. Strom was able to express herself in other avenues, he ignores holdings from previous case law where the form of expression (or the avenue chosen for expression) can only be limited if the location or method of expression removes the protection of freedom of expression (see: Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141;). While Currie, J. and the SRNA holds that Ms. Strom should have followed the methods outlined in the Code, Currie, J. and the SRNA did not apply the test as outlined in the case of Montreal v 2952-1366, where the method or location of expression can only be limited if it conflicts with one of the three values of freedom of expression (i.e. Self-fulfillment, truth-finding and/or democratic discourse). Currie, J. and the SRNA omitting this vital aspect of freedom of expression analysis has paved the way for bad precedent. Therefore, Currie, J. did not address whether the SRNA could in fact limit one's freedom of expression by law, as this step of the analysis was overlooked.

Implications

We now have this precedent standing that will for sure give a carte blanche to regulatory bodies to arbitrarily discipline their members for expressing anything that the regulatory body opposes. This will only hamper the ability of professionals (the ones arguably best suited to advocate for change in a system they are fluent in) to advocate for change and to speak out against bad public policy and other ill-doings, for risk of being reprimanded by their regulatory bodies.

Does Being a Nurse Remove Your Constitutional Right to Free Speech? The Carolyn Strom Case.

Strom’s Facebook post read as follows:

Removing our Constitutional Rights to Freedom of Speech

Omitting Pivotal Case Law

Implications

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