A nurse just lost her freedom to criticize health care. That’s bad for everyone

Carolyn Strom is a nurse from Prince Albert, Sask. In 2016, the Discipline Committee of the Saskatchewan Registered Nurses Association (SRNA) found her guilty of professional misconduct after she used social media to voice her concerns about the care her grandfather received at the end of his life in a nursing home in Macklin, Sask., a town in which Strom herself did not practice. Her comments were, by contemporary standards, balanced and restrained; she named neither individuals nor their profession and she thanked those who had provided good care. She ran afoul of the SRNA for hurting the feelings of a handful of nurses. The SRNA fined Strom $26,000, most of it to cover the costs of her own disciplinary investigation and hearing.

Strom appealed the decision to the Court of Queen’s Bench for Saskatchewan. To our chagrin, she lost. In his decision last month, Justice Grant Currie invoked the principle of judicial deference to the powers delegated to administrative tribunals. Based on two cases decided by the Supreme Court of Canada, the judge ruled that the SRNA need not demonstrate that it made a good decision (the judgment hints that it is not), only that it is “reasonable” — that is, it took the matter seriously and considered the relevant factors, including Strom’s Charter right to freedom of expression.

There is an unavoidable tension between judicial activism and judicial restraint. We suggest two tests for whether to overrule or defer to decisions of self-regulating professions. One is to consider whether the alleged misconduct has harmed a member of the public, whose protection is the primary mandate and obligation of regulators. The second is whether the decisionmaker has carefully and proportionally balanced its regulatory authority against a fundamental Charter freedom.

Both concerns are in play in the Strom case. The alleged harm was to the sensibilities of some nurses in the Macklin nursing home. (We note the irony that, while no one has contested Strom’s assertion that her grandfather received substandard care, his alleged harm was of no relevance to the hearing or the decision.)

There should be a much higher bar for finding someone guilty of professional misconduct where the alleged victims are not members of the public, but peers, and where the nature of the offence is speech. It is in the public interest for health-care professionals to express their concerns about the quality of care (set aside the fact that Strom was acting primarily as a family member, not a nurse). If a general critique of care in a facility and an exhortation to do better is misconduct, the public loses a voice and perspective to inform our understanding of a system that to most of us is bewilderingly complex. It shouldn’t matter if the critique is contestable, only that it isn’t malicious or wilfully inaccurate.

Both the SRNA and Justice Currie acknowledged that the disciplinary decision abridges the freedom of expression enshrined in the Charter. There are circumstances when Charter rights can be overridden, but this is surely not one of them. Justice Currie noted that the discipline committee didn’t elaborate on why Strom’s Charter right to freedom of expression deserved to be set aside.

A moderate critique of the care of a family member is hardly akin to falsely yelling fire in a crowded theatre, directing hate speech against an identifiable group or viciously impugning the character or conduct of a fellow health-care worker. Where speech is not so extreme, Supreme Court doctrine imposes a very heavy burden on those who would justify curbing it. If the expression for which Strom was disciplined is the new standard for misconduct, the consequence will be a severe constraint on the latitude of professionals to criticize anything that occurs in a system in which error and serious harm are everyday occurrences.

Strom will appeal once more, but there is no assurance it will be decided differently. We hope the higher court will determine that the discipline committee’s frontal assault on her moderate exercise in freedom of expression deserves not deference, but rebuke.

If an appeal court does not overrule this decision, the issue falls to the legislature. When governments gave professions self-regulatory powers, we doubt they envisioned those powers would be used to muzzle the sort of expression at the heart of this case. Thankfully, most professions don’t. Through one avenue or another, the Strom decision cannot stand if the public interest is to be served.

• Steven Lewis is a health policy consultant in Saskatoon and adjunct professor of health policy at Simon Fraser University. Ken Norman is emeritus professor of law at the University of Saskatchewan and former chair of the Saskatchewan Human Rights Commission.