Peterson’s Saga Latest Instance of Regulatory Bodies’ Increasing Clashes With Professionals Over Public Discourse

The Toronto clinical psychologist is one of many professionals at risk of losing their licences

Jordan Peterson speaks at the 2018 Young Women's Leadership Summit hosted by Turning Point USA in Dallas, Texas, on June 15, 2018. Gage Skidmore/CC BY-SA 2.0

Jordan Peterson’s clash with the College of Psychologists of Ontario (CPO) is just the latest in a long list of professionals engaged in internal struggles with their regulatory colleges.

Peterson’s international fame has shone the spotlight on the province, where many doctors and nurses are facing similar disciplinary action or investigation, such as at the College of Physicians and Surgeons of Ontario, the College of Nurses of Ontario, and the Law Society of Ontario.

The territory in dispute is the nebulous world of social media commentary, particularly on politically charged topics. The boundary line between “free speech” and “professional misconduct” is unclear, leading to skirmishes and flare-ups.

Peterson, a clinical psychologist, media personality, and public intellectual, sounded a battle cry in early January when he refused to comply with the CPO’s demand that he take social media training to “address issues regarding professionalism in public statements.”

Peterson’s refusal was on principle—not because he still needs or wants to practise psychology. “My critics have weaponized the College of Psychologists’ disciplinary process for political reasons. The college wants to send me to a re-education camp—and it should concern everyone,” he wrote in a National Post op-ed published Jan. 4.

For many physicians, taking the wrong step and landing in a disciplinary hearing can be ruinous, said Toronto attorney Michael Alexander, who represents multiple doctors who are being investigated for “professional misconduct,” in part for their statements on social media.

“Professionals will often compromise, sign undertakings, and agree to do things that turn their stomachs so they can avoid these lengthy, costly proceedings,” Alexander told The Epoch Times.

He sees the move to limit doctors’ public discourse on COVID and other health matters as part of “moral, political, and ‘scientific’ agendas that have nothing to do with [the regulators’] core mission.”

In the case of the College of Physicians and Surgeons of Ontario (CPSO), Alexander says the regulatory body “has been overstepping the boundaries of its authority.”

CPSO spokesperson Shae Greenfield told The Epoch Times previously that the college “has an obligation under the law to protect the public and we will continue to act with care and reason in carrying out that mandate.”

When contacted for comment for this article, Greenfield cited a couple of cases in which Ontario’s Divisional Court upheld the CPSO’s limits on doctors’ free speech as being within its mandate to protect the public.

Alexander, however, says appealing to the Divisional Court “is an exercise in futility,” as it often upholds the regulators’ decisions.

“It will now be up to the Ontario Court of Appeal to decide whether Divisional Court’s rulings will stand,” he said. “We may have to go to the Supreme Court of Canada to resolve these problems.”

A Tricky Balance

Courts have been asked to review some disciplinary decisions—Peterson has also asked for a judicial review—and a growing body of case law is determining the boundary line between free speech and professional misconduct.

In many reviews of the case law, the context of the individual’s social media activity is important. Factors that are considered include the extent to which the public comments were made as a member of the profession, the truth or fairness of the expression, the extent to which the comments can harm the profession, and the potential for a negative impact on the public.

Professional regulators have told The Epoch Times that they must balance the individual’s right to free speech against their own mandates to protect the public. They have also cited a precedent from the Supreme Court of Canada, Doré v. Barreau du Quebec, which shows that professional regulators legally have some discretion to do that balancing.

For example, Kristi Green, spokesperson for the College of Nurses of Ontario (CNO), told The Epoch Times that CNO “protects the public by promoting safe nursing practice. … Nurses are expected to demonstrate the standards of the profession when posting on social media.”

The CNO has developed social media guidance for its licensees. Some nurses have been officially told to watch a video called “Social Media: Reflect Before You Post,” much as Peterson has been told to undergo social media training.

The video directs nurses to ask some questions of themselves before posting. Some examples are, will this post “undermine my colleagues or portray my workplace in a negative light?” and “What are the consequences for the client, myself, and other nurses?”

These struggles between professionals and their regulators go beyond Ontario, however. They have become a national and international phenomenon.

In California, a group of doctors is fighting a new state law that allows medical boards to punish physicians for offering what the boards deem “misinformation and disinformation” related to COVID-19. A similar law, Bill 36, has been proposed in British Columbia.

Norway-based Prof. Frode Jacobsen co-authored a study on the use of social media by nurses amid the pandemic. Jacobsen told The Epoch Times that many of the nurses in the country have also been chastised by regulators for questioning COVID-related public health measures online.

Room for Debate

James Turk, director at the Toronto Metropolitan University’s Centre for Free Expression, says that although the behaviour of medical professionals is restricted by the norms of their profession, there’s still room for debate.

“Those norms themselves are not fixed things—they can be the subject of debate, and we want to have the kind of public discourse where those discussions can take place,” he said in an interview.

“The problem is, what are the boundary lines?”

Turk said if professionals don’t agree with the “consensus” the regulators are upholding, they should first try calling for further investigation through scientific journals, medical meetings, and government discussions.

He gave the hypothetical example of a doctor who questions COVID vaccine safety and how that doctor might handle questions from patients as to whether the vaccine is safe. A doctor might say, “The public health authorities feel the answer to that question is yes. I have some misgivings about it, so I’m not going to urge you to do that.”

A doctor in that case might be safe from discipline, Turk said, as opposed to a doctor who says definitively that the vaccines are bad and “under no conditions should you be vaccinated. … That would probably result in discipline by the professional body.”

A Judge’s Decision

Alexander said he takes hope from a much-cited case, Strom v. Saskatchewan Registered Nurses’ Association.

In 2015, Saskatchewan nurse Carolyn Strom posted on social media criticisms of the health care her grandfather had received before his death, and she was subsequently censured by the Registered Nurses’ Association.

Justice Brian Barrington-Foote upheld Strom’s right to freedom of expression in the case.

“Such criticism, even by those delivering those services, does not necessarily undermine public confidence in health-care workers or the health-care system,” he wrote.

“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 effect change, are both prepared and permitted to speak and pursue positive change.”

Barrington-Foote did say, however, that the regulators have the right to limit free speech in other instances.

“It is entirely legitimate for a professional regulator to impose requirements relating to civility, respectful communication, confidentiality, advertising, and other matters that impact freedom of expression,” he wrote. “Failing to abide by such rules can be found to constitute professional misconduct.”

Lawyers and Free Speech

The Law Society of Ontario (LSO) has also experienced an unprecedented schism in recent years, and it is on the brink of a contentious leadership election over restrictions on licensees’ free speech.

After Peterson announced he was facing censure for his posts, lawyer Howard Levitt published an op-ed in the Financial Post titled “What’s happening to Jordan Peterson could happen to anyone now.”

Levitt and other lawyers have linked the Peterson case to the controversy in the LSO, their own regulatory body.

In 2016, the society implemented a requirement that obligated all licensees “to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public.”

When the next election of benchers, leaders of the LSO, came around, a slate calling itself StopSOP (Stop Statement of Principles) ran as candidates. For the first time, bencher elections formed into something akin to two parties running against each other, each on a different side of the SOP issue.

The StopSOP benchers won and did away with the requirement, which they characterized as “compelled speech” and an “ideological litmus test for the practice of law.” Pro-SOP candidates are gathering to contest the slate in the elections this April.

Levitt wrote in his op-ed: “Ontario lawyers were worried that the LSO, empowered by this statement of principles, would conduct itself precisely in the fashion which the College of Psychologists just has and order witch hunts against the politically incorrect.”