Freedom of expression, patient advocacy and social media

May / June 2018   Comments

In an era of growing activism and corresponding calls for accountability, nurses must be vigilant and selective in their use of social media

In addition to their own ethical compulsion to speak up, nurses are mandated to advocate by their standards of practice, code of ethics and, at times, legal obligations. Nurses speak up for their patients on and off the clock, but what are the legal ramifications of doing so using social media?

Using social media platforms to advocate for change has increased in popularity, especially among the younger and more technologically proficient members of the profession. We have seen the exponential growth of hashtag activism, clicktivism and slacktivism to raise awareness of and support for social and political issues with remarkable success. One only has to recall the ALS Ice Bucket Challenge of 2014, which drew in $115 million in a single summer and heightened awareness of the devastating disease, to illustrate the influence of social media.

However, with the infusion of social media into nearly every aspect of our lives, the line between private and public is often blurred. Nurses must be mindful of how advocacy, social media, freedom of expression and professional obligations intersect. Many citizens, celebrities and politicians post and tweet with reckless abandon. As self-regulating professionals, nurses do not have the luxury of speaking out with impunity or anonymity in a public forum because they are held to a higher standard and greater accountability. Of course, nurses are entitled to exercise the right to freedom of expression under the Canadian Charter of Rights and Freedoms, but that right is subject to limits.

Imagine a scenario in which a nurse laments about a particularly challenging patient, after having worked an overtime shift. The exhausted, frustrated nurse decides to share the experience with others via social media. However, in doing so, the nurse has failed to consider that the patient, the employer, the nursing profession and the public have an interest in ensuring that genuine concerns about patient care and safety are addressed in a direct and meaningful way. Employers are responsible for safe working conditions and systems and will generally have reporting mechanisms and processes in place to inform them of issues that need to be addressed immediately.

A post of this nature also triggers issues around privacy, confidentiality and professionalism. Regardless of one’s privacy settings, a post is accessible to those outside the social media user’s immediate circle. Even if the user deletes the post, it may remain traceable and recoverable. The user does not have control over its distribution. Patient confidentiality, privacy breaches, defamation and damages awarded in respect of those matters are therefore important to consider before posting.

Furthermore, a Saskatchewan court recently determined that a nursing regulator’s finding against a nurse, in connection with a social media post about the care that a family member had received, complied with the requirements under the Charter not to unduly infringe on the nurse’s freedom of expression. It found that the objectives of protecting the public and upholding the standing of the nursing profession were sufficiently important to justify imposing a limitation on the nurse’s right to freedom of expression, particularly when the impact of the limitation was not to prevent her from advocating but to require her to do so through appropriate channels.

Restricting a nurse from posting information on social media may result in an infringement of a Charter-protected right to freedom of expression, as it curtails a nurse’s ability to raise social, political and professional issues in a public forum. However, it is important to remember that not every limitation to rights and freedoms can be challenged under the Charter and that the Charter does not protect against every limitation.

Please consult with your employer and your nursing regulator about the use of social media as it relates to the workplace and your professional practice.

For more information, CNPS beneficiaries may call 1-844-4MY-CNPS (1-844-469-2677) to speak with a CNPS legal advisor.

The Canadian Nurses Protective Society

The Canadian Nurses Protective Society (CNPS) is a not-for-profit society that offers legal advice, risk-management services, legal assistance and professional liability protection related to nursing practice in Canada to over 130,000 eligible registered nurses and nurse practitioners.

Disclaimer: This article is for information purposes only. Nothing in it should be construed as legal advice from any lawyer, contributor or the CNPS. Readers should consult legal counsel for specific advice.

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