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Lessons Learned from Litigation: Legal and Ethical Consequences of Social Media

Brous, Edie JD, MPH, MS, RN; Olsen, Douglas P. PhD, RN

AJN, American Journal of Nursing: September 2017 - Volume 117 - Issue 9 - p 50–54
doi: 10.1097/01.NAJ.0000524546.50943.9e
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Editor's note: To the surprise of many, a Canadian nurse's Facebook post complaining about the medical care a family member had received resulted in disciplinary action by the licensing board. We asked our legal and ethical contributing editors to provide some insight on the issues of this case.

AJN's legal and ethical contributing editors offer insight on the issues raised by a case in which a Canadian nurse's Facebook post complaining about a family member's medical care resulted in disciplinary action by the licensing board.

Edie Brous is a nurse and attorney in New York City and the coordinator of Legal Clinic. Douglas P. Olsen is an associate professor at the Michigan State University College of Nursing in East Lansing. Brous and Olsen are also contributing editors of AJN. Contact author: Edie Brous, ediebrous@ediebrous.com. The authors have disclosed no potential conflicts of interest, financial or otherwise.

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LEGALLY SPEAKING

Misunderstandings regarding the constitutional protection of free speech can lead to legal problems. The First Amendment of the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (emphasis added).1

Note that the amendment prevents government interference in freedom of expression. The First Amendment does not allow the government to punish people for expressing their views. That protection does not extend to the public or to private businesses.

Because the amendment does not apply to private actors, it does not prevent employers from taking disciplinary action against employees. It does not prevent schools from expelling students. It does not prevent private citizens from alleging defamation. It does not prevent untoward consequences for taking to social media to address grievances. For nurses, it is important to understand that the First Amendment does not prevent a board of nursing from disciplining one's license to practice. Posts on Facebook or publications on other social media platforms can violate standards of professionalism and ethical conduct codes. A recent Canadian case illustrates the peril nurses face when using social media improperly.

On February 25, 2015, Canadian nurse Carolyn Strom posted complaints on Facebook about the care her grandfather had received at St. Joseph's Health Facility. She posted such comments as “Not everyone is up to speed” regarding end-of-life care and referenced “subpar care.” She also identified herself as an RN. The staff at St. Joseph's did not respond to the post but did write a letter to the Saskatchewan Registered Nurses’ Association (SRNA), the regulatory body for RNs in Saskatchewan. The SRNA met in February and March of 2016 to “hear and determine a complaint of professional misconduct” against Strom.2

Six RNs from St. Joseph's testified at the hearing that they found Strom's posts to be humiliating and embarrassing and that their reputations had been tarnished.3, 4 One of the nurses complained, “I think it's common sense that you don't cut your fellow professional.”5 The American Nurses Association (ANA) agrees: “Social media is also a place where nurses need to remember their ethical duties to respect patient–nurse boundaries and their duties to co-workers.”6

The attorney for the SRNA suggested penalties that include a formal reprimand, course work, a review of professional standards and the Canadian Nurses Association's Code of Ethics for Registered Nurses, a $5,000 fine, and a $25,000 fee to cover costs of the investigation and hearing. The total costs, including Strom's legal fees, would amount to almost $143,000.4, 7 The decision is being appealed, but the case provides an example of licensure problems as a consequence of impulsive social media posts.

Nursing boards take professional misconduct seriously and will impose discipline when a nurse engages in social media activity that violates nursing law or professional standards. There are many charges a board could bring, including

* patient abuse.

* a violation of patient privacy and confidentiality.

* revelation of a privileged communication.

* lateral violence.

* a violation of professional boundaries.

* a violation of employer policies.

* unprofessional conduct.

* unethical conduct.

* moral turpitude.

* mismanagement of patient records.

Many nursing boards have issued practice alerts, advisory opinions, newsletters, public statements, or other communications regarding a nurse's use of social media. Ohio's, for example, posted an administrative code update that “specifically prohibits nurses from using social media, texting, e-mailing, or other forms of communication with or about a patient, for non–health care purposes or for purposes other than fulfilling the nurse's assigned job responsibilities” and warns nurses that violation of these rules can result in disciplinary action.8

The Virginia Board of Nursing has published social media guidelines for nurses that discuss common myths and misunderstandings, such as mistaken confidence in privacy or the belief that removing patient identifiers is adequate.9 Similarly, the Minnesota Board of Nursing has found that “most instances of nurses disclosing private information about patients on social media outlets are unintentional. That is, the nurse failed to recognize that their post or message disclosed protected health information or other data that might identify or embarrass a patient.”10

Many nurses misunderstand their First Amendment rights and assume their employer or the nursing board has no authority over them when they're off the job, at home, or using personal devices. The truth is, however, that there is no clear dividing line between personal and professional lives for the licensed professional. As C. Lee Ventola notes, “By making public posts, a person has willingly made information available for anyone to view for any purpose. For some, it logically follows that candidates who don't use discretion in deciding what content to post online may also be incapable of exercising sound professional judgment.”11

Posting as a private citizen still has the potential to damage both one's livelihood and the image of nursing. More important, inappropriate posts can cause emotional distress and harm patients. As the Texas Board of Nursing notes, “Online postings may harm patients if protected health information is disclosed. In addition, social media postings may reflect negatively on individual nurses, the nursing profession, the public's trust of our profession, or the employer and may jeopardize careers.”12

The ANA, the National Council of State Boards of Nursing (NCSBN), many professional organizations, and individual nursing boards have published guidelines for social media use. An ANA poster offers six tips for avoiding difficulties13:

1. Remember that standards of professionalism are the same online as in any other circumstance.

2. Do not share or post information or photos gained through the nurse–patient relationship.

3. Maintain professional boundaries in the use of electronic media. Online contact with patients blurs this boundary.

4. Do not make disparaging remarks about patients, employers or coworkers, even if they are not identified.

5. Do not take photos or videos of patients on personal devices, including cell phones.

6. Promptly report a breach of confidentiality or privacy.

The NCSBN offers the following guidelines on how to avoid disclosing confidential information14:

* Nurses must recognize that they have an ethical and legal obligation to maintain patient privacy and confidentiality at all times.

* Nurses are strictly prohibited from transmitting by way of any electronic media any patient-related image. In addition, nurses are restricted from transmitting any information that may be reasonably anticipated to violate patient rights to confidentiality or privacy, or otherwise degrade or embarrass the patient.

* Nurses must not share, post, or otherwise disseminate any information or images about a patient or information gained in the nurse–patient relationship with anyone unless there is a patient-care–related need to disclose the information or other legal obligations to do so.

* Nurses must not identify patients by name, or post or publish information that may lead to the identification of a patient. Limiting access to postings through privacy settings is not sufficient to ensure privacy.

* Nurses must not refer to patients in a disparaging manner, even if the patient is not identified.

* Nurses must not take photos or videos of patients on personal devices, including cell phones. Nurses should follow employer policies for taking photographs or videos of patients for treatment or other legitimate purposes using employer-provided devices.

* Nurses must maintain professional boundaries in the use of electronic media. Like in-person relationships, the nurse has an obligation to establish, communicate and enforce professional boundaries with patients in the online environment. Use caution when having online social contact with patients or former patients. Online contact with patients or former patients blurs the distinction between a professional and personal relationship. The fact that a patient may initiate contact with the nurse does not permit the nurse to engage in a personal relationship with the patient. Nurses must consult employer policies or an appropriate leader within the organization for guidance regarding work-related postings.

* Nurses must promptly report any identified breach of confidentiality or privacy.

* Nurses must be aware of and comply with employer policies regarding use of employer-owned computers, cameras, and other electronic devices, and use of personal devices in the workplace.

* Nurses must not make disparaging remarks about employers or coworkers. Do not make threatening, harassing, profane, obscene, sexually explicit, racially derogatory, homophobic or other offensive comments.

* Nurses must not post content or otherwise speak on behalf of the employer unless authorized to do so and must follow all applicable policies of the employer.

It is imperative that nurses know their state board of nursing's definition of inappropriate use of social media and adhere to professional standards. This is true even when posting from personal devices unrelated to employment. The Constitution, particularly the First Amendment, does not offer protection from the consequences of inappropriate social media posts.

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ETHICALLY SPEAKING

Central to the SRNA's decision to sanction and recommend financial penalties for Carolyn Strom was that she prefaced her derogatory remarks about the care given by the long-term care facility's nursing staff with the phrase, “As a nurse.” In making that declaration, she invoked professional standards by intentionally creating a reasonable expectation that her statements were informed by knowledge and experience beyond that of the lay public. It was this lack of professional due diligence before publicly criticizing care provided by others that led to the SRNA's finding of misconduct and not the breach of privacy that may be more familiar in discussions of social media ethics.

The credibility added by identifying oneself as the holder of a nursing credential is deserved and therefore carries serious responsibility. Nursing licensure is intended, in part, to assure the public that the bearer is skilled in assessing clinical nursing care in relation to accepted standards; evaluating the accuracy and relevance of clinical information; and communicating those assessments professionally, for constructive purposes. Nurses who identify themselves as such must take care that all communication is accurate; is respectful of person; follows accepted ethical practice in communicating information; and is intended to further patient health, either directly or through policy.

The voice of nursing—because of the knowledge learned in the classroom and through intimate contact with healthy, sick, or dying patients—is essential to keeping public discourse on health care rational and moving toward better quality of life for all. Both the International Council of Nurses’ and the ANA's codes of ethics clearly state that nurses have an obligation to be advocates for population health and social justice. Therefore, public communication by nurses needs to meet the highest professional standards to maintain credibility.

The public legitimizes nursing and empowers nurses through licensure and in return expects value in the form of high-quality nursing care, which includes thoughtful, knowledgeable contribution to public health care discourse and policy formation. In a process that is similar to shared decision making with patients, this involves an exchange: the public expresses its needs and aspirations for health care and nursing responds by informing the public what good nursing care is and how it can contribute to social health care goals, and by communicating the resources required to accomplish agreed-upon goals. Public communication that fails to meet professional standards is much like giving poor nursing care. It violates nurses’ obligation to the public; damages their standing with public trust; and harms the “patient”—in this case, society.

The blurring of the distinction between public and private communication on the Internet and in social media threatens a person's ability to maintain professional standards in public communication. Many social media platforms have the appearance of personal communication. A nurse's Facebook page might include baby pictures and holiday cookie recipes or health and lifestyle tips offered “as a nurse.” Such tips are entirely appropriate and add to the good reputation of nursing, provided that they conform to ethical and legal standards for public communication by professionals in relation to their expertise.

Social media has a veneer of intimacy, an aura that seems personal. It is easy to post quickly and without the same deliberation that one would typically give a more clearly public presentation, such as giving lifestyle advice at a health fair. Social media also has the potential to expose one's views to a far larger audience than was possible before the Internet. Statements are instantly and permanently available to millions.

The following suggestions are offered to keep all communications ethical—whether on social media or not—when one is speaking “as a nurse.”

* Statements about the clinical effectiveness or efficacy of an intervention or recommendation should be grounded in evidence sufficient to support clinical action. Where the evidence is equivocal or less certain, that should be stated. Technical details in discussions of evidence should be appropriate to the audience: not too complex when targeting a lay audience, but sufficiently detailed when aimed at professional peers to help them in applying the information. For example, general health tips on a Facebook page should be easily understood by a lay audience, whereas a posting about empirical matters in a professional forum such as AJN’s blog, Off the Charts, should demonstrate consideration of the available evidence that a nurse could evaluate. Still, even statements intended for other professionals made in a publicly available forum must be consistent with ethical standards for public communication.

* Statements regarding service delivery should be based on evidence. Where evidence is lacking, the rationale for the statement should be provided—for example, “In my experience as a patient, wait times are…” or “In my practice, patients report…”

* When posting or otherwise discussing care witnessed as a patient, friend, or family member, mentioning one's status as a nurse—in other words, attaching one's credentials or degree to one's name—makes any statement a professional communication. Such communication would also be considered professional if posted or discussed in a venue that merely implies one's status as a nurse, such as allnurses.com.

* Before publicly discussing problematic care of an individual, one should report the problem through the proper channels—speaking, for example, with the nurse providing the care that may be problematic. The nurse reporting the problem should listen carefully, consider all pertinent issues, and if still not satisfied, speak to the charge nurse or nurse manager and on up the chain of authority if necessary.

* If the problem involves abuse, the nurse should look to her or his mandated reporter obligations before considering public revelation.

* If the problem involves criminal or dangerous behavior, the nurse should look to the proper authorities before considering public revelation.

* Before discussing problematic care of an individual, the nurse should ensure that all relevant information is in hand and that she or he has reviewed it thoughtfully before reaching conclusions about the care.

* A nurse should never identify a patient with whom she or he has a clinical relationship or use identifying information—which includes the patient's name or address or any Health Insurance Portability and Accountability Act (HIPAA) identifiers or other information by which the patient could be identified—without clear, informed authorization from that person. It is important to remember that removing patient identifiers is not enough. Discussing a patient even when identifiers have been removed still violates nurse practice acts and can subject a nurse to licensure discipline; this is particularly true with photographs. State privacy laws can be more stringent than HIPAA, so nurses must know the laws in their states. (For detailed guidance on deidentifying patients in accordance with HIPAA, go to http://bit.ly/2qkS9lA. For a quick reference, see http://bit.ly/2pPYgud.)

* If a nurse is seeking a person's authorization to disclose information publicly, the patient should be informed of likely consequences. For example, if the person's information was being used in politically controversial testimony, she or he should be informed of possible negative publicity or that reporters might seek her or him out for further information.

* Nurses are not protected by authorizing documents alone; they also must be compliant with employer policies and get approval from their organization's HIPAA compliance officer.

* Although one is not bound by HIPAA in relation to information obtained outside a clinical relationship or other role as a nurse—say, when told by a friend about an illness—common morality and respect require that any public revelation be explicitly approved by the person with the illness. Further, the nurse should be aware that there are many ways to communicate one's professional status inadvertently on social media that would make a posting a public communication.

* Events occurring in the context of nursing care should not be revealed for the sake of humor, such as the periodic postings of odd items shown in X-rays or extracted from patient's bodies, even when the patient's identity is protected.

* Narrative accounts of the nursing experience should reflect well on the profession and bring problems to light in the spirit of working to improve matters.

* Before discussing systemic or institutional problems or abuses, the nurse should follow proper reporting procedures. If those responsible do not respond in a satisfactory way, the nurse should consider whistle-blowing. However, when considering whistle-blowing, the nurse should consider how to do so in a way that confers the most credibility regarding the accusations and maximizes whatever protections are available. Facebook and similar social media are not the appropriate venues for serious whistle-blowing communications. (For information on whistle-blowing, see http://bit.ly/2qoZQVL from the ANA and http://bit.ly/2ra8Bpx from American Nurse Today.)

* Nurses should know the legal consequences of their actions. The use of social media is an area that carries the potential for severe legal consequences. The inspiration for this writing was a disciplinary hearing about Facebook postings, yet several colleagues have expressed surprise over the finding that the nurse violated the Canadian Nurses Association's Code of Ethics for Registered Nurses.

Common sense is the starting place for assessing the appropriateness of postings and public discussion. Nurses should consider the effects of any potential public communication or posting from the nonnurse perspective. They should never post out of spite or anger. They should try to ensure that messages are accurate and, whenever possible, reflect well on nursing. When criticizing the profession, nurses should ensure that any message they post is accurate and balanced, while offering reasonable solutions as often as possible. Even if the nurse has no specific solution, a message can be framed so that it invites others to be creative and leads to a constructive dialogue about improving the situation.

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REFERENCES

1. U.S. Congress. U.S. ConstitutionAmendment 1: Freedom of religion, speech, press, assembly, and petition. 1791.
2. Saskatchewan Registered Nurses’ Association. Investigation committee of the Saskatchewan Registered Nurses’ Association and Carolyn M. Strom, Saskatchewan RN # 0037024. Decision of the discipline committee of the Saskatchewan Registered Nurses’ Association. Regina, Saskatchewan 2016.
3. CBC News Nurse who ‘vented’ online found guilty of professional misconduct. 2016 Dec 3. http://www.cbc.ca/news/canada/saskatchewan/srna-discipline-social-media-nurse-saskatchewan-1.3880351.
4. Martin A Complaining about granddad's care on Facebook could cost nurse $30Gs. Toronto Sun 2017 Feb 18. http://www.torontosun.com/2017/02/18/complaining-about-granddads-care-on-facebook-could-cost-nurse-30gs.
5. Martin A Nurses lay into RN at hearing about ‘inappropriate’ post complaining about care for her dying grandpa. National Post 2016 Feb 11. http://news.nationalpost.com/news/canada/shes-attacking-me-as-a-colleague-registered-nurse-facing-discipline-over-critical-facebook-post.
6. American Nurses Association. Social media and your nursing career. 2014. http://nursingworld.org/Content/Resources/Social-Media-and-Your-Nursing-Career.html.
7. Menz K Lawyer asks for $30K fine against Sask. nurse for Facebook post. CTV News-Saskatoon 2016 Feb 17. http://saskatoon.ctvnews.ca/lawyer-asks-for-30k-fine-against-sask-nurse-for-facebook-post-1.3290926.
8. Ohio Nursing Board Defense Counsel. Ohio nurses and social media. Ohio Board of Nursing; 2017 Jan 30. https://legalcounseltoprofessionals.wordpress.com/2017/01/30/ohio-nurses-and-social-media.
9. Virginia Board of Nursing. Virginia Board of Nursing: guidance on the use of social media. Henrico, VA; 2012 May 15. Guidance document 90-48. Guidance documents: discipline and compliance; https://www.dhp.virginia.gov/nursing/nursing_guidelines.htm.
10. Minnesota Board of Nursing. Professional boundaries and social media guidelines for nurses. For Your Information 2014 Fall 21(3):5. https://mn.gov/boards/assets/Newsltr_Fall_2014.pdf_tcm21-37163.pdf.
11. Ventola CL Social media and health care professionals: benefits, risks, and best practices P T 2014 39 7 491–520
12. Texas Board of Nursing. Postion statement 15.29. Professional boundaries including use of social media by nurses. Austin, TX; n.d. PracticeTexas Board of Nursing position statements; https://www.bon.texas.gov/practice_bon_position_statements_content.asp#15.29.
13. American Nurses Association. 6 tips for nurses using social media. Silver Spring, MD 2011.
14. National Council of State Boards of Nursing. A nurse's guide to the use of social media. Chicago; 2011 Nov. https://www.ncsbn.org/NCSBN_SocialMedia.pdf.
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