Written By Valerie Prather, Brynne Harding and Patrick Schembri
Since the advent of the COVID-19 pandemic, state responses to the virus have become the subject of vigorous public debate. While some impugn measures they say are too weak to protect the vulnerable, others lament incursions on their liberties.
Physicians, nurses, and other health care professionals have weighed in, with op-eds, and on social media. When "insiders"—those with special knowledge of the healthcare system, and medical science—voice their opinions publicly, their views can carry special weight. As regulated medical professionals, the law limits the ability of health care professionals to wield their credentials to influence public opinion. In this way, the law limits their freedom of expression.
This raises the important question: to what extent can statutory bodies that regulate professions (Colleges) limit their members' freedom to express their opinions on controversial topics?
Charter Section 2(b): Freedom of Expression and its Limits
Section 2(b) of the Canadian Charter of Rights and Freedoms affords all Canadians the right to "freedom of thought, belief, opinion and expression." Section 1 provides that Charter rights are guaranteed, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The right to freedom of expression has protected news media, literature, political speech and more. The law in Canada has long recognized, however, that members of regulated professions, like lawyers, physicians, accountants, dentists and others, exchange some of their right to free expression for the privilege of practising their trade.
In the seminal case of Doré v Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada upheld a College's sanction upon a lawyer for speaking uncivilly to a justice of the court. The College's Code of Ethics required the conduct of all lawyers to "bear the stamp of objectivity, moderation, and dignity." The Court held (at para 66) that a proportional balance was required between:
…[T]he fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession.
These remarks from 2012 resonate as many medical professionals participate in open and forceful criticism of public health responses to the pandemic. At the same time, they must comply with their legal and professional obligations, adhering to practice standards and maintaining appropriate professional boundaries and relationships with patients and colleagues.
Strom v Saskatchewan Registered Nurses' Association
The case of Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112 [Strom] outlines the legal principles that apply when health care professionals speak publicly about medical issues and the health care system.
In Strom, a nurse in Saskatchewan who was on maternity leave posted on social media, criticizing her grandfather's care at a long-term-care facility. In one post, Strom identified herself as a registered nurse and wrote:
"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 this topic AND More."
The posts also attached an article written by a psychiatry professor that was critical of palliative care in Canada.
Initially, Strom made the posts on Facebook, and later tweeted them at the Minister of Health and the Opposition leader of Saskatchewan. A nurse who worked at the long-term care facility reported the matter to the College, and an investigation and hearing ensued.
The College sanctioned Strom for professional misconduct under section 26 of the Registered Nurses Act, 1988, SS 1988-89, c R-12.2 (the Act). A statutory appeal to the Court of Queen's Bench was dismissed. Strom succeeded on her second appeal, which was to the Court of Appeal. The Court concluded that the lower court had erred in its selection of the standard of review, and reviewed the College's decision anew pursuant to the correct standards.
a) Professional Misconduct and Off-Duty Communications
The first issue before the Court was the College's ruling that Strom was obliged to comply with the Code of Ethics of her College, and Standards of Practice, in her off hours, and that she had failed to do so. This was a discretionary finding by the College, the type of decision normally shown the greatest deference by courts.
The Court of Appeal found that the College had misapplied several criteria in the multi-part test for off-duty misconduct. In particular, the College had not adequately considered (1) the nurse's right to personal autonomy and freedom of expression; and (2) the limited impact of the posts on the profession, in light of the balanced and reasonable nature of the comments.
Following the Court's ruling, the test for off-duty professional misconduct emphasizes the "nexus" between the conduct and the profession. The more closely off-duty conduct is connected to the activities of the profession, the more likely the off-duty conduct is to constitute professional misconduct. In this regard, it is important whether or not the person has identified themselves as a member of the profession in the course of the misconduct.
b) Professional Misconduct and Freedom of Expression
With respect to whether the College's decision violated the Charter, since this was a statutory appeal, the standard of review was the appellate standard. The Court concluded that the College's decision was an unjustifiable infringement of the nurse's right to freedom of expression.
It was not in dispute that the decision infringed the nurse's right to freedom of expression. The issue was whether that infringement was justifiable pursuant to section 1 of the Charter. The Court noted that the purpose of the right to freedom of expression is to promote the inherent benefits of the truth seeking process, participation in social and political decision-making, and forms of self-expression that contribute to individual self-fulfillment. The more closely connected the speech is to these purposes, the greater the constitutional protection that will be afforded that speech.
First, the Court concluded that the relevant provisions of the Act and the decision had a pressing and substantial objective: protecting the public interest and the standing of nurses by establishing standards for public comments related to healthcare by nurses.
Second, the Court concluded that the decision was not a proportional infringement. The College had failed to account for contextual factors in assessing the value of Strom's expression, including:
- whether the speech was made in the course of carrying out professional duties;
- whether the individual identified themselves as a professional in the speech;
- the extent of the professional connection between the individual, and the institution or practice that is criticized;
- whether the speech related to the healthcare treatment of family or friends;
- whether the speech was the result of emotional distress;
- the truth or fairness of the criticisms in the speech;
- the extent of the communication and the size of the audience;
- where the communication was intended to contribute to social or political discourse; and
- the nature and scope of any damage to the profession or the public interest.
The Court emphasized that Strom's posts were directed at political representatives, were not untrue or unfair, addressed the treatment of a family member, were made predominantly in a personal rather than a professional capacity and addressed a facility with which the nurse had no professional relationship. The Court also rejected the Tribunal's conclusion that Strom had failed to use the "proper channels" to raise the complaint, as she did not work the facility her comments related to, and the comments sought to engage in a larger public discourse not specific to the facility. In the apt words of the Court:
"In Canada, public healthcare is both a source of pride and a political preoccupation. It is a frequent subject of public discourse, engaging the political class, journalists, medical professionals, academics, and the general public. Criticism of the healthcare system is manifestly in the public interest… In any event, the fact that public confidence in aspects of the healthcare system may suffer as a result of fair criticism can itself result in positive change. Such is the messy business of democracy."
Difficult Cases: Freedom of Expression and COVID
During the pandemic, Colleges have censured several physicians for comments criticizing public health measures relating to COVID. As yet, no Canadian court has determined whether such censure unjustifiably infringes freedom of expression.
In one instance, a physician in British Columbia criticized the public health response to COVID in an open letter to the British Columbia Provincial Health Officer, posted online in October of 2020. He wrote, "There appears to be no scientific or medical evidence for" self-isolation of asymptomatic people, facemasks and the discontinuance of access to education and medical services, among other things. He also expressed concern for the consequences of lockdowns, which he argued include an increase in suicides, overdoses and domestic violence.
CBC reports that other B.C. physicians disputed these claims, and filed a complaint against the physician with the College of Physicians and Surgeons of British Columbia (CPSBC).
The physician is seeking Judicial Review of the CPSBC's decision to reprimand him and require him to undertake not to speak on COVID-related topics, on constitutional and other grounds.
Another pending judicial decision in Ontario promises to shed light on the extent of physicians' freedom of expression. A physician has sought judicial review and an administrative appeal of a decision cautioning her for several tweets critical of COVID regulatory responses, including:
“There is absolutely no medical or scientific reason for this prolonged, harmful and illogical lockdown.”
The physician had argued before her College that the tweets were taken out of context and were unconnected to her medical practice. The College rejected these arguments, saying that by their nature, all tweets are intended to function with minimal context; and that the tweets were connected to the physician's practice because her professional affiliations were identified in her Twitter profile. The College's reasoning on the issue of professional affiliation does not seem to align with the analysis in Strom; however, the physician's tweets also lack the personal connection of Strom's posts.
Colleges have also released statements directly addressing appropriate communications related to COVID. For example, The College of Physicians and Surgeons of Ontario released a Statement on Public Health Information that provides some guidance as to what sorts of COVID related comments by its members are acceptable, and what might attract disciplinary sanctions.
Courts have held that while medical professionals are entitled to freedom of expression, professional regulatory bodies may limit those rights in appropriate circumstances. Whether a particular instance of expression may be sanctioned depends on the nature and context of the communication. When making public comments that may be controversial, medical professionals should ensure their comments are fair and balanced, include context, and are made in good faith in furtherance of the public interest. Medical professionals should also consider whether such comments might be interpreted as being made in their professional capacity, and should avoid directly criticizing individuals or institutions they are affiliated with, without first using appropriate channels for such criticism.