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Civil Litigation, Regulatory

Saskatchewan nurse fined for palliative care critique on Facebook loses appeal

Canadian Press THE CANADIAN PRESS

REGINA — A nurse who was fined $26,000 for criticizing the quality of care her grandfather received in long-term care has lost her appeal of the penalty.

The Saskatchewan Registered Nurses Association imposed the fine on a Prince Albert nurse for unprofessional conduct after she posted the comments on Facebook in 2015.

She shared her critique of the care her grandfather received with Saskatchewan's minister of health, the NDP Opposition and the public.

The association said she used her status as a nurse for personal purposes and violated confidentiality.

In the appeal, the nurse focused on her right to freedom of expression, while the association argued she should have complained through proper channels rather than on social media.

In his ruling, Justice Grant Currie of the Court of Queen's Bench says the decision by the association's discipline committee to impose the fine was reasonable and within its legal power.

``Having found professional misconduct, not because she expressed her concerns but because of how she went about it, the committee observed that [the nurse] was not left without an avenue for expressing her concerns,'' Currie wrote in a judgment released Wednesday.

``Avenues were available to [her] for asserting her criticisms of the registered nurses — so that criticisms could be addressed without causing the harm that the committee found had been caused.''

In an interview with AdvocateDaily.com, Toronto civil litigator Darryl Singer says the decision, as it stands, sets a bad precedent and creates a chilling effect on professionals to speak out when they should.

“The decision is misguided as it muzzles professionals from speaking out against what may be a legitimate injustice, but the current state of the law means that the judge had no choice,” says Singer, principal of Singer Barristers Professional Corporation, who was not involved in the case but comments generally.

“Regulatory bodies have the right to set rules for their members in the interest of both the profession and the public. And one who is regulated as a professional is always a professional — even in their private life. Anything that brings the profession into disrepute can be disciplined, even if it takes place outside of working hours.”

In her Facebook posts, the nurse was concerned about the quality of care her grandfather received before he died and called on decision-makers to make improvements.

``It is evident that not everyone is 'up to speed' on how to approach end-of-life care or how to help maintain an aging senior's dignity,'' she wrote when she was on maternity leave from her nursing job.

``Don't get me wrong. Some people have provided excellent care, so I thank you 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 members to be treated.'''

Singer, who frequently represent professionals in Ontario before their regulatory bodies, says that rather than airing her concerns on social media, the nurse could have lodged a complaint to the Ministry of Health, which governs nursing homes, the provincial ombudsman or to the Saskatchewan Registered Nurses' Association.

Legal counsel for the Saskatchewan Union of Nurses and the British Columbia Civil Liberties Association had argued for the appeal to be granted.

Singer says it’s helpful that such groups will intervene in any appeal.

“The impact of the decision essentially means that it is hard to speak out publicly against gross abuses of public trust, and I would hope an appeal court will overturn the lower court decision,” he says.

— with files from AdvocateDaily.com

© 2018 The Canadian Press

 

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