Regulatory body continues prosecution of nurse over free expression

REGINA, SK: The Justice Centre announces that the disciplinary hearings against Saskatchewan nurse Leah McInnes continue today in what could become a landmark decision about freedom of expression for nurses and other professionals, and the power of regulatory bodies to control and censor the speech of professionals who are required to belong to a professional association in order to earn a living.

Exercising her Charter freedoms of expression, association and peaceful assembly, Saskatchewan Nurse Leah McInnes attended a national rally against mandatory Covid vaccination policies in early September 2021. Ms. McInnes also expressed her opposition to the government’s mandatory vaccination policies on social media between August and October 2021, even while stating that vaccines should be promoted by her profession, that vaccines can decrease severe disease, reduce the burden on the healthcare system and save lives, and that vaccines play a vital role in the fight against the Covid pandemic and should be promoted.

On September 26, 2021, a nurse filed a complaint against Ms. McInnes to the College of Registered Nurses of Saskatchewan (CRNS). The Discipline Committee of the CRNS investigated the social media activities of Ms. McInnes and then charged her with professional misconduct under the Registered Nurses Act for her posts and for her participation in the rally. The CRNS accused Ms. McInnes of spreading misinformation, disinformation and/or misleading information surrounding vaccine mandates and vaccine passports. Further, the Disciplinary Committee of the CRNS alleged that Ms. McInnes had been operating from a position of power as a nurse when participating in the rally and when posting about vaccines, that she had misused this power, and that she had acted outside the proper scope of this power.

Lawyers acting for Ms. McInnes point to the Code of Ethics for Registered Nurses of the CRNS, which says, “Nurses support a climate of trust that sponsors openness, encourages the act of questioning the status quo and supports those who speak out in good faith to address concerns.” Lawyers argue that Ms. McInnes had questioned the merits of mandatory vaccine policies in good faith. Further, counsel for Ms. McInnes argue that her expression, however disagreeable it may have been to the CRNS, is protected by section 2 of the Canadian Charter of Rights and Freedoms and by relevant case law.

In particular, counsel for Ms. McInnes point to the Saskatchewan Court of Appeal ruling in Strom v. Saskatchewan Registered Nurses’ Association, which states that “…criticism, even by those delivering those services, does not necessarily undermine confidence in healthcare workers or the healthcare system. Indeed, it can enhance confidence by demonstrating that those with the greatest knowledge of this massive and opaque system, and who have the ability to affect change, are both prepared and permitted to speak and pursue positive change. 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.”

Lawyers for Ms. McInnes argue that, rather than bringing the nursing profession under disrepute, the good-faith objections to mandatory vaccination policies promote public confidence in the transparency of the healthcare system and in the dedication of healthcare professionals to pursue positive change.

Andre Memauri, one of the lawyers representing Ms. McInnes, stated, “The Discipline Committee today will hear how Ms. McInnes advocated against vaccine mandates and vaccine passports in support of patient autonomy, dignity and privacy in compliance with her ethical obligations. The Investigation Committee alleges Ms. McInnes disseminated misinformation, disinformation and misleading information, all while the record established that Ms. McInnes was not only remarkably accurate but also that the social media activity of CRNS itself disseminated false information.”

“It is very unfortunate that a registered nurse in the Province of Saskatchewan again faces regulatory reprisal for fair criticism of the healthcare system, after the Court of Appeal’s decision in Strom,” continued Mr. Memauri.

John Carpay, President of the Justice Centre, stated, “This case is about the freedom of nurses and other professionals to participate, as citizens in a democracy, in public discussions and debate. This case raises important questions about whether government agencies like the College of Registered Nurses of Saskatchewan should have the power to determine what is true or false, and to impose that determination on professionals who are required to join the regulatory body in order to practice their profession and earn a living.”

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