At the beginning of Franz Kafka’s The Trial, bank clerk Joseph K is arrested on his thirtieth birthday for a crime that is never disclosed. The novel unfolds as a disorienting parable of the consequences of arbitrary power, the distortion of reason, and the dark arts of psychological assault. At the end, K is supposed to kill himself, but he refuses. The agents finish the job.

I would expect to find dog-eared copies of The Trial in circulation at the Saskatchewan Registered Nurses Association. RN Carolyn Strom was in the midst of a spotless 13-year career in Prince Albert when she posted a Facebook critique of the care her dying grandfather had received in the Macklin nursing home 350 kilometers away. Management at the facility circulated Strom's comments among staff, prompting several nurses to complain to the SRNA. After unsuccessful attempts to negotiate a mutually acceptable agreement, the SRNA convened a 3-day disciplinary hearing, found Strom guilty of professional misconduct, and levied a fine and costs totaling $26,000. The decision also requires her to write two “self-reflective” essays demonstrating that she has seen the light.

What rage-fueled, bilious, menacing rant led the trembling nurses to complain, and the SRNA to condemn? Here is the precipitating post:

My grandfather spent a week in palliative care before he died and after hearing about his and my family's experience there, 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. I challenge the people involved in decision making with that facility to please get all your staff a refresher on this topic and more. Don't get me wrong, 'some' people have provided excellent care so I thank you so very much for your efforts, but to those who made Grandpa's last years less than desirable, please do better next time.

That, ladies and gentlemen, is the smoking gun that got her an inquisition, a professional reprimand, and a $26,000 debt, reinforced by a double dose of Maoist re-education to round out the humiliation.  

If this is the standard for professional misconduct, can there be even half a dozen healthcare workers in the province who can claim never to have uttered a critique more immoderate than Strom’s? Canadian healthcare is an expensive morass of mediocrity, especially in the care of the elderly. It is the right and, some would argue, the duty of healthcare workers to call out substandard care. Should the validity of their assertions be contestable, the remedy is to contest them. That’s what free societies encourage. It is the instinct of autocrats and thugs to muzzle dissent.

The SRNA’s Kafkaesque sense of justice is exceeded only by its hypocrisy. I was on an open-line CBC radio show where an RN called in to declare that licensed practical nurses are incapable of critical thinking. The SRNA held no hearing on the professionalism of publicly insulting a few thousand fellow nurses (though not being RNs, constitutionally inferior, it would appear). No mandatory sensitivity training, no summons to write “I shall respect all professions” a hundred times on the SRNA whiteboard. Some years ago, to press their case for higher staffing levels in hospitals, the Saskatchewan Union of Nurses put up billboards advising Saskatchewan people to go to Alberta if they wanted safe healthcare. In response to this indictment of an entire system, not a peep from the guardians of professional conduct.

The SRNA was right to stand down in those instances. There is no free speech and no vigorously democratic politics unless law and custom protect opinions we don’t like, beliefs based on nonsense, and judgments we deem unfair. The right is not absolute: there are laws against hate speech, slander, and libel. Otherwise we are, and should be free to be as foolish and intemperate as we like in public, short of directly and deliberately inciting violence or other serious assault on the peace.

And now the SRNA is grievously wrong. What accounts for the glaring asymmetries in its administration of justice?

The Achilles heel of self-regulation is structural conflict of interest. Regulators derive their mandates and authority exclusively from government, which derives its mandate exclusively from the citizenry. Regulators’ primary duty is to safeguard the public interest. But the regulators are elected by the regulated, and not all electors understand that the regulatory body exists to protect the public, not the profession. A further conflict arises when, like the SRNA, the regulatory body is also the professional association, whose purpose is to advance the interests of the profession, not the public. When the public interest and professional interests collide, the former must trump the latter.

The question for the SRNA and every other regulator is whether the public interest is best served by muting healthcare workers’ participation in open and vigorous debates about the state of healthcare. Providers see and know things that members of the public do not. If it is professional misconduct to air them outside the cloister, the public is deprived of potentially relevant information to inform judgments about a vital public service. Strom was not commenting as an employee or about her organization. But even if she were, branding all public criticism as unprofessional is a severe abridgment of the right to free expression. It is not as if employees have carte blanche to unleash torrents of mischief. They must conform to organizational norms, fulfill contractual obligations, and act lawfully. Employers can take disciplinary measures on numerous grounds. There are libel and slander laws to protect individuals from unwarranted reputational damage (truth is a defence). Regulators should defer to these processes, and if they are going to weigh in at all when speech rather than patient harm is in play, they must place citizens’ interests ahead of those of employers or peers. And if they are to err in one direction or the other, it is better to let an intemperate remark going unpunished than to convict an innocent one.

Unfounded or exaggerated claims may indeed irk organizational masters and offend colleagues; valid ones are probably even more troublesome. Though unpleasant, wounded sensibilities are hardly in the same league as harmed patients. If publicly aired views are knowingly and irresponsibly inaccurate – yelling fire in the theatre with no hint of smoke – reasonable people may agree on the need for discipline. No doubt there are gray areas and tough cases.

Carolyn Strom’s is not one of them. First, it is arguable that Strom’s comments were none of the SRNA’s business to begin with. Though she identified herself as an RN, she was in this instance principally a granddaughter making a plea for the Macklin facility – not her own workplace – to do better by its future residents. But having decided that it was regulatory business, the SRNA unmoored itself from any reasonable sense of proportionality. Strom expressed an opinion in moderate language – compare it to the commentaries on the supposedly civilized CBC and Globe and Mail websites – and proposed a solution. She thanked those who performed well. She named no names, and fingered no profession. I suspect that were there a full public account of the indignities suffered by her grandfather and the family, Strom’s critique would be noteworthy only for its understatement.

The usual – and often unfair – rap on regulators is that they are too lenient on members who harm patients. Strom harmed no one; her motive and intent was to protect strangers from the fate that befell her grandfather. (It is possible that Strom and her family unfairly judged the care he received; neither the Macklin nursing home nor the SRNA have publicly shown any interest in finding out.) The response was, never mind your grandfather’s experience; you hurt our feelings! The SRNA threw the book at Strom because some nurses in the Macklin nursing home chose to be offended by her exhortation to improve end-of-life care. Perhaps they are also offended by the annual health region CEO tour of nursing homes, launched in response to widespread complaints of substandard care. Regardless, how the censure of Carolyn Strom serves the interests of the citizenry will be a mystery to the citizenry to which it is accountable.

The SRNA seems hell bent on breaking dangerous new disciplinary ground. Recently it issued a communiqué suggesting that an RN who agrees to supervise a safe grad party where underage people consume alcohol could be guilty of professional misconduct. You see, underage drinking is illegal, and RNs ought not to appear to endorse illegal activities. (I know, I know.) If you are a parent of a graduating high schooler in Saskatchewan, know that the SRNA appears prepared to discipline RNs who volunteer to ensure the safety of your child. On this logic, your child would be less inclined to drink had the RN not volunteered to supervise, demonstrating the SRNA’s keen insight into the decision-making habits of teenagers and the mechanics of causation. Florence Nightingale would be proud, as would the nurses who work in safe injection sites or hand out condoms to sex workers.

The saga is not over. Strom and her lawyer have appealed to the courts (wisely bypassing the option of appealing to the SRNA Council). And out of the ashes of a travesty has risen a Phoenix of inspired mobilization. Nurses outside Saskatchewan, led by Nathalie Stake-Doucet and her colleagues at the McGill Nurses for Healthy Policy group, launched a GoFundMe campaign that within two weeks raised the $26,000 to pay Strom’s tribute. One hopes the funds can be donated elsewhere on successful appeal, but the outcome is by no means certain, and in the meantime the strong show of solidarity will give her strength through these endless travails.

The persecution of Carolyn Strom could and should have been stopped at various stages of the process. If there are cooler heads at the SRNA, they did not prevail. The regulator doubled down at every stage. If allowed to stand, the decision will set a chilling precedent. Let us hope the courts will strike it down.

In convicting Carolyn Strom, the SRNA has put the concept of self-regulation on trial. There have always been reasons to question it in principle. It survives because governments are habitually deferential to professions, and an obviously superior alternative is not available off the shelf. But the latitude granted to regulators is neither infinite nor irrevocable. Nous sommes Carolyn. 

Comments

Mike Conroy wrote:

Posted 2017/09/05 at 03:31 PM EDT

Lynn Curry wrote:

Posted 2017/10/05 at 01:52 PM EDT