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

Should nurses be disciplined for posting on Facebook?

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In April of 2018, Carolyn Strom lost her court appeal against her BON, who arbitrarily disciplined her for comments she made about the care her dying grandfather received while residing in a care facility. The case sets a precedent that will allow BONs and other regulatory bodies of other disciplines to arbitrarily restrict a member's freedom of expression.

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

Steve is a registered nurse working in the field of hospital administration and psychiatry. He has been an RN for just over 6 years. He is currently in his second year of his Juris Doctor with a focus in health law and constitutional law.

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I highly doubt something so ludicrous would happen in the US. Posting online about things that may reflect on how you take care of pts is questionable but even then.. Americans free speech rights have been upheld. I hope she appeals and wins.

Hoosier_RN, MSN

Specializes in dialysis.

This appears to be a Canadian nurse. Canada does not have the same rights for its citizens as America

This happen in canada. They have Hate speech laws and various other laws that regarding speech

1 hour ago, Hoosier_RN said:

This appears to be a Canadian nurse. Canada does not have the same rights for its citizens as America

1 hour ago, Hoosier_RN said:

This appears to be a Canadian nurse. Canada does not have the same rights for its citizens as America

This has already happened in America!

https://www.statesman.com/article/20130210/NEWS/302109767

The theme is concerning for sure and I think nurses internationally need to take notice and speak up about this kind of thing.

Hoosier_RN, MSN

Specializes in dialysis.

9 minutes ago, steven007 said:

This has already happened in America!

https://www.statesman.com/article/20130210/NEWS/302109767

The theme is concerning for sure and I think nurses internationally need to take notice and speak up about this kind of thing.

He wasn't voicing an opinion, he accidentally posted sexually explicit materials meant for an adult website to a website for a nursing class that he was teaching. There's a big difference. I don't know about his state particularly, but I've heard some have morality issues addressed, and perhaps this applies. Again, we have to remember that not all countries have the same laws and freedoms that we do. Our states even have variances. I feel for the professor. Careless mistake...

Rose_Queen, BSN, MSN, RN

Specializes in OR, education.

1 hour ago, steven007 said:

This has already happened in America!

https://www.statesman.com/article/20130210/NEWS/302109767

The theme is concerning for sure and I think nurses internationally need to take notice and speak up about this kind of thing.

You're comparing apples and oranges here. An opinion on family member's care vs sexually explicit material posted into a classroom aren't even close.

Read through the published disciplinary actions for nurses in various states. Many are for either criminal acts (DUI, theft, etc) or for inability to safely practice due to use of mind-altering substances. If my state were to read the letters to the editor of my local paper, we'd have lost half our staff over the requirement to obtain a BSN- but they didn't even lose their jobs over it (although they will if they don't complete a BSN by the end of this year) let alone a nursing license.

2 minutes ago, Rose_Queen said:

You're comparing apples and oranges here. An opinion on family member's care vs sexually explicit material posted into a classroom aren't even close.

Read through the published disciplinary actions for nurses in various states. Many are for either criminal acts (DUI, theft, etc) or for inability to safely practice due to use of mind-altering substances. If my state were to read the letters to the editor of my local paper, we'd have lost half our staff over the requirement to obtain a BSN- but they didn't even lose their jobs over it (although they will if they don't complete a BSN by the end of this year) let alone a nursing license.

Yes, I wasn't necessarily referring to the sexually explicit material, I was referring to the discussion as a whole of how regulatory bodies have stated, in the USA, that your off duty conduct can merit discipline.

The one that stood out the most, at least to me, was the nurse that pulled the gun on a random person who started to charge at her in a parking garage. She didn't fire or anything, and there were no charges laid, but she was called to answer to her conduct with her BON, for self defence!

I agree that things like theft and other criminal activity would merit disciplinary action or pure revocation of your license, but these things such as acting in self-defence while off duty, or the case of the teacher who was disciplining her son, I think regulatory bodies go too far to dictate our conduct off duty. I think Hoosier_RN, MSN makes a good point, regulatory bodies are attempting to prescribe their own moral views on their members.

Rose_Queen, BSN, MSN, RN

Specializes in OR, education.

7 minutes ago, steven007 said:

regulatory bodies are attempting to prescribe their own moral views on their members.

There are states that actually have moral turpitude statutes. It's not necessarily the board trying to put their views on people but actually having to uphold the statutes- I believe that's what Hoosier is referring to.

RN-to- BSN, ADN, RN

Specializes in SCRN.

Wow, she was expressing her opinion as a family member. She did not work in the facility. Since when nurses cannot express opinions about their loved one's care?

But, she should have avoided writing the opinion on facebook.

17 minutes ago, Rose_Queen said:

There are states that actually have moral turpitude statutes. It's not necessarily the board trying to put their views on people but actually having to uphold the statutes- I believe that's what Hoosier is referring to.

That is so interesting!

Canadian courts have found that kind of thing to be unconstitutional. Any statute that talks about moral values or religion is not considered constitutional in Canada.

Its so curious how two neighboring countries that share so much in common can be so different. I find that super fascinating, I would like to read one of these statutes!!

Hoosier_RN, MSN

Specializes in dialysis.

13 hours ago, steven007 said:

The one that stood out the most, at least to me, was the nurse that pulled the gun on a random person who started to charge at her in a parking garage. She didn't fire or anything, and there were no charges laid, but she was called to answer to her conduct with her BON, for self defence!

Every employer that I have worked for, in Indiana, has a policy that states no firearms, period. It will lead to automatic termination and report to the state BON. I have a permit to carry. Doesn't matter, I'd still be fired if I had one in my vehicle on the property. As far as I know, every one of those facilities have signs of no firearms on premises except law enforcement. So, perhaps that was part of that scenario. The third with the teacher, that was a bonehead move. Anyone could have grabbed that kid, an out of control vehicle could have harmed. She did deserve that. Common sense...

TriciaJ, RN

Specializes in Psych, Corrections, Med-Surg, Ambulatory.

22 hours ago, steven007 said:

That is so interesting!

Canadian courts have found that kind of thing to be unconstitutional. Any statute that talks about moral values or religion is not considered constitutional in Canada.

Its so curious how two neighboring countries that share so much in common can be so different. I find that super fascinating, I would like to read one of these statutes!!

The title of this thread is misleading. "Constitutional right to free speech" is an American phrase. We don't have a constitution in Canada; we have a Charter of Rights and Freedoms. You are conflating the laws and practices of two separate, sovereign countries.

Having previously been a member of SRNA, I have to say I'm ashamed of them. It probably was imprudent of Ms. Strom to voice her grievances on Facebook, but I still think the SRNA was extremely heavy-handed. I don't think boards of nursing or their Canadian counterpart associations should be operating like fiefdoms.

By the way, freedom of speech means you can criticize your government and not be hauled off to jail. That's all. It doesn't mean you can say anything, anywhere, to anyone without any form of consequence.

Rionoir, ADN, RN

Specializes in Neuro ICU.

That’s Canada. A government agency in the US could not do this.

Rionoir, ADN, RN

Specializes in Neuro ICU.

11 minutes ago, TriciaJ said:

By the way, freedom of speech means you can criticize your government and not be hauled off to jail. That's all. It doesn't mean you can say anything, anywhere, to anyone without any form of consequence.

That’s not true... freedom of speech does not only apply to criticizing government, it means the government cannot take retribution against your speech, including putting you in jail. You can pretty much say whatever you want short of threatening violence or inciting a riot, etc. It also does not protect you from your employer or other non government entities taking retribution against your speech.

2 hours ago, TriciaJ said:

The title of this thread is misleading. "Constitutional right to free speech" is an American phrase. We don't have a constitution in Canada; we have a Charter of Rights and Freedoms. You are conflating the laws and practices of two separate, sovereign countries.

Having previously been a member of SRNA, I have to say I'm ashamed of them. It probably was imprudent of Ms. Strom to voice her grievances on Facebook, but I still think the SRNA was extremely heavy-handed. I don't think boards of nursing or their Canadian counterpart associations should be operating like fiefdoms.

By the way, freedom of speech means you can criticize your government and not be hauled off to jail. That's all. It doesn't mean you can say anything, anywhere, to anyone without any form of consequence.

Thanks TriciaJ for the comments! And interesting to hear from a previous member of the SRNA!!

I just wanted to correct you on one thing that I don't want people to be confused by, Canada DOES have a constitution. If we didn't, we wouldn't exist as a country (and my law school course load would be MUCH MUCH easier without the "Canadian Constitutional law" and "Advanced Constituitonal Law" courses hahaha).

While some countries don't have a formal "constitution", such as the UK and New Zealand who has an "unwritten constitution" that exists only in case law and legal mores, Canada does have a written constitution that was founded in 1867 (termed the BNA Act).

The Charter of Rights and Freedoms which you speak of is codified within the Canadian Constitution. It is an extension of the constitution and exists as a constitutional guarantee.

And Rionoir is correct, Freedom of Speech extends beyond just "not going to jail". It means you are free to express your opinions without recourse by Government agencies. The SRNA is a government agency. But otherwise, yes, there may be social consequences to your speech and even employment consequences. But when your employer is part of the government, there can be no recourse (unless you are a public servant).

Hope this clarifies and thanks again for your opinions :).

TriciaJ, RN

Specializes in Psych, Corrections, Med-Surg, Ambulatory.

16 minutes ago, steven007 said:

Thanks TriciaJ for the comments! And interesting to hear from a previous member of the SRNA!!

I just wanted to correct you on one thing that I don't want people to be confused by, Canada DOES have a constitution. If we didn't, we wouldn't exist as a country (and my law school course load would be MUCH MUCH easier without the "Canadian Constitutional law" and "Advanced Constituitonal Law" courses hahaha).

While some countries don't have a formal "constitution", such as the UK and New Zealand who has an "unwritten constitution" that exists only in case law and legal mores, Canada does have a written constitution that was founded in 1867 (termed the BNA Act).

The Charter of Rights and Freedoms which you speak of is codified within the Canadian Constitution. It is an extension of the constitution and exists as a constitutional guarantee.

And Rionoir is correct, Freedom of Speech extends beyond just "not going to jail". It means you are free to express your opinions without recourse by Government agencies. The SRNA is a government agency. But otherwise, yes, there may be social consequences to your speech and even employment consequences. But when your employer is part of the government, there can be no recourse (unless you are a public servant).

Hope this clarifies and thanks again for your opinions :).

Thanks. You are right. My history is a little fuzzy, but didn't this happen when Trudeau (the elder) repatriated it in 1982 (?) and it was no longer the BNA?

It's just that in Canada we don't make frequent references to "the Constitution" and I thought the original post was conflating it with the US Constitution which are two different things.

So wrong that a person can't express her opinions about the care her loved one received without being punished through the license that lets her earn her daily bread.

She was not on duty. Her opinions did not, I assume, have anything to do with actually being a nurse. Perhaps the catch is that she was on maternity leave, presumably some sort of paid leave time? That still should not curtail her right to express her opinion and concerns.

However, even in America it is unwise to say much, especially in anger, especially memorializing it in writing in a way that the whole world can see. I guess she did not try to talk with the granddad's facility staff at all? In a constructive, private way? or if she did, she was dissatisfied with the outcome of the talks and decided to tell the world about it.

I guess Canadian law might be different, perhaps not allowing as much personal freedom as Americans have.

It is amazing, though, to see how Parliament members in Britain yell and carry on. For people we expect to be staid and formal, it is a real lesson to see how they conduct Parliament's business.

Edited by Kooky Korky

A surgical tech I worked with got fired for this reason. She didn't have her place of work anywhere on her Facebook profile and she made her comments in what she thought was a private group. Her comment related to doctors calling a case emergent just so they could do it that day not the next just for their convenience! With I ly one call team they were also responsible for covering sections! Her concern was the fact that another team had that was not on call had to be brought in. It takes time to find a team most of the time. Personally I only lived 4 min from call to hospital and I am a smuck and always say yes no matter the case. Csection or not.

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