The Court allowed an Appeal by a licensed practical nurse from a finding of misconduct in relation to the Appellant’s failure to report an incident. The Court found that the incident was very minor and that it was not reasonable to find a requirement to report that would attract discipline and a sanction which would seriously affect the member’s ability to work.

26. December 2007 0

Administrative law – Decisions of administrative tribunals – Council for Licensed Practical Nurses – Nurses – Disciplinary proceedings – Reporting requirements – Judicial review – Evidence – Burden of proof – Standard of review – Reasonableness simpliciter – Failure to provide reasons – Natural justice

Walsh v. Council for Licensed Practical Nurses, [2007] N.J. No. 369, Newfoundland and Labrador Supreme Court, October 23, 2007, A.E. Faour J.

The Appellant, a licensed practical nurse, who, at the relevant time, had been assigned to a shift at a residential centre for the elderly with infirmities of advanced age. The Appellant’s role was to assist residents with their daily living needs, including bathing.

The Appellant had been sanctioned in relation to an incident wherein a patient complained that he was being bathed in water that was too hot, and the Appellant failed to report the complaint. There had been three complaints before the Disciplinary Committee of the respondent Council, the first two relating to actual inappropriate behaviour by the Appellant in her treatment of the patient, and the third relating to her failure to report the incident. The Committee had found sufficient evidence to sustain the third complaint, but not the first two.

There were two grounds of appeal: first, that the evidence did not reasonably support the finding that the failure to report constituted a breach of the standards of practice to be enforced by the Committee; and second, that the decision contained insufficient rationale for the finding and ought to be set aside. The Court accepted the approach, agreed on by both sides, that while the civil burden of proof applies to the Committee’s activities and deliberations, the standard is a little higher than a bare balance of probabilities because of the impact on employment status. Both parties also accepted that the standard of deference to be applied to the Council’s decision was that of reasonableness.

The Court held that it was necessary to apply the pragmatic and functional approach to determine the weight of deference within the standard of reasonableness which ought to be applied. In this case, in the absence of a statutory privative clause, the legislature implied a wide latitude on the part of an appeal judge to intervene. Because the Committee consists of several members of the profession it has a significant degree of expertise which must be acknowledged and which raises the level of deference applicable.

The Appellant argued that the insufficiency of the written reasons constituted a breach of natural justice. The Court rejected this submission, finding that there was some indication of the evidence upon which the Committee relied in reaching its conclusion. The decision does not have to be perfectly set out. However, the reasonableness of the conclusions based on the evidence must be assessed. After reviewing the record, as well as the extensive extracts from the viva voce evidence, the Court noted that there were conflicts in the evidence and that it was questionable whether any or all of the peer witnesses would have reported this particular incident. This was a minor incident which appeared to be on the margins of the kind of incident that would or should have been reported.

Given the subjective nature of the decision the Appellant was expected to make, and the lack of adequate guidelines about reporting, the complaint ought not to have been sustained. However, the Court was not to substitute its decision for that of the Committee, but to decide whether the evidence could have reasonably supported the result. The Court found that in the circumstances of what was a marginal incident, it was not reasonable to find a requirement to report that would attract discipline and a sanction which would seriously affect a member’s ability to work. In addition, the Appellant was a casual employee, and was not regularly apprised of the nuances of policy changes or the individual needs and behaviours of particular residents, and therefore it was not reasonable to hold her to a standard for which she had no clear direction.

In the result, the Court allowed the Appeal and quashed the decision of the Discipline Committee.

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