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Blog May 17, 2018

The Nurse’s Facebook Case that calls into question the reasonableness of the “reasonableness standard”

The Disciplinary Committee of the Saskatchewan Registered Nurses Association (SRNA) says that Carolyn Strom engaged in professional misconduct in her comments on Facebook and Twitter about her grandfather’s end-of-life care.  Ms. Strom, a nurse, wrote about the need for quality and compassion in care and to maintain the dignity of patients.  She offered both thanks for the provision of excellent care by some (not named) people at a named health facility and a plea to “Please Do Better Next Time!” to those (not named) “who made Grandpa’s last years less than desirable”.  Recently the Court of Queen’s Bench for Saskatchewan upheld the decision of the SRNA to fine Ms. Strom $26,000 for professional misconduct.

I am not aware of any attempt to formally canvas public opinion on the Strom case.  But I can say that the vast majority of the discussion I’ve encountered on this topic indicates that people are decidedly appalled by what’s happened to Ms. Strom. 

Of those whose anger includes policy concerns, there is widespread agreement with the editorial by Steven Lewis and Ken Norman that “[i]f 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.”

In other words, how can it be that a nursing association mandated to uphold the public interest is allowed to squelch even moderate public criticism of health care by those best-positioned to give an informed view?

Many people would assume that the fact that the court upheld the misconduct finding of the SRNA must mean that the court agreed with the decision.  But that isn’t necessarily the case.  What the court does on an appeal of this kind of administrative decision is key to understanding the weakness of rights protections in this arena. 

An appeal from a professional regulatory body like the SRNA or other administrative tribunal can be conducted on the basis of two different standards of review. In administrative law, the court needs to decide when it will hold the administrative body to a standard of correctness and when it will be sufficient that the decision of the administrative is merely reasonable, even if it is not correct.  The court in this case held the SRNA to a standard of reasonableness.

The general idea of having two standards is to recognize the respective spheres of expertise of the institutions.  In this approach, courts show deference to administrative bodies for decisions that fall within those bodies’ areas of expertise (the reasonableness standard); and only overturn the decision of the administrative body where the matter involves important questions of law outside the expertise of the administrative body (the correctness standard). 

You can see how this approach would work well in the context of a question relating to professional conduct of a nurse who was alleged, for example, to be incompetent with respect to an aspect of practice or ignoring best practice guidance.  A specialized body made up of registered nurses is presumably better positioned than a court to adjudicate such a question.  But what about adjudicating Charter rights, like the right to free expression? 

Typically when we speak of a “Charter challenge” we mean a case that claims that a law (like a part of a statute or regulation) violates the Charter.  The legal framework for such a case is called the Oakes test.  Among other things, this test requires the government to have a “pressing and substantial objective” to justify impairing a Charter right and must be “minimally impairing” of that right. 

But that is not the analysis that is used to assess a claim that a decision by an administrative body violates Charter rights.  The case that guides that assessment is the Supreme Court of Canada’s decision in Dore v Barreau de Quebec, which says that the focus of a challenge brought against an adjudicated decision is not on Charter rights, but on Charter values.  In this legal framework, unless the administrative decision disproportionately impairs the Charter right, the decision will be found “reasonable” by the court.  

In essence, with respect to the law, our Charter rights are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  With respect to decisions made under those laws, they can breach our Charter rights so long as that’s not unreasonable.  To state the obvious: the second one is a seriously diluted standard of protection.

And so it proved in the Strom case.  

No one denied that Ms. Strom’s right to free expression was at issue.  But the SRNA Disciplinary Committee, in justifying the violation of that right, was merely required to demonstrate a “balancing” between Ms. Strom’s right of free expression and the objectives of the Registered Nurses Act.  The court found evidence of the required “balancing” in paragraph 58 of the discipline decision:

58. …The Discipline Committee does not seek to “muzzle” registered nurses from using social  media.  However, registered nurses must conduct themselves professionally and with care when communicating on social media. 

That’s it.  That’s all that’s required.  This is taken to show that the committee was seized of the need to proportionally balance the factors that needed to be balanced and then “explained its decision”.  The court then goes on to find the $26,000 cost to Ms. Strom is also “not shown to be unreasonable”.  These costs are comprised of a $1,000 fine and the $25,000 the committee requires Ms. Strom to pay to contribute to the cost of the administrative proceeding she was forced to undergo to conclude that the violation of her rights was reasonable. 

All of which begs the question of what is reasonable about a “reasonableness standard” that produces an outcome that respected commentators cite as “preposterous” and “persecution”. 

A further appeal is anticipated.   It’s been reported that McGill Nurses for Healthy Policy has headed up a GoFundMe campaign in a show of support for Ms. Strom.  Public discussions have been galvanized by the case with media stories about self-regulation and how we can ensure that self-regulatory bodies are in fact working for the public interest.  All of which is good. 

But at the end of the day, it may be that the goal of protecting expression will require a bigger project of refashioning the powers and mandates of professional regulatory bodies with respect to the expressive rights of their members and/or refining the way that courts review decisions of regulatory bodies that violate constitutional rights.

May 17, 2018
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