The Applicant Nurse (MacNeil) unsuccessfully applied for judicial review in respect of the Respondent College’s decision not to refer his matter to the Fitness to Practice Committee

Administrative law – Decisions of administrative tribunals – College of Nurses – Policies – Nurses – Disciplinary proceedings – Competence – Public interest – Judicial review – Compliance with legislation

MacNeil v. College of Registered Nurses of Nova Scotia, [2010] N.S.J. No. 136, 2010 NSSC 83, Nova Scotia Supreme Court, March 4, 2010, S.M. Hood J.

The Respondent College (the “College”) received a complaint about the Applicant Nurse (“MacNeil”). The matter was to be reviewed through the College’s professional conduct process. Soon after, a psychological assessment was performed on MacNeil. The psychologist’s report documented that MacNeil had issues with alcohol but was not inclined to abstain from drinking.

The College had two processes for handling complaints. One process was the traditional disciplinary process and the other was the “Fitness to Practice” process. The latter was a way for nurses to receive treatment for issues of incapacity without being subjected to the traditional disciplinary process. The Fitness to Practice process was provided for under the Registered Nurses Act (the “Act”) and the Regulations enacted thereunder. The criteria for admission was outlined in Policy 19 of the Policy Manual.

After the assessment, MacNeil requested entry into the Fitness to Practice process. The Executive Director’s delegate, Leona Telfer, denied this request. MacNeil brought the within application arguing the criteria for the Fitness to Practice process was inconsistent with the Act and the Regulations. He also argued Telfer’s decision was unreasonable in the circumstances.

In respect of the first issue, MacNeil argued the criteria in Policy 19 gave the Executive Director, or her delegate, unfettered discretion to determine eligibility. MacNeil argued this was inconsistent with the Act and the Regulations.

The Court reviewed the Act and found it stated the Executive Director “may” refer the matter to the Fitness to Practice Committee in certain circumstances. The court found the primary purpose of the Act was to protect the public and not to rehabilitate nurses. It is within this context that the discretion was granted to the Executive Director to decide whether to refer a matter to the Fitness to Practice Committee. Complaints referred to that committee do not follow the traditional disciplinary process. Discretion is necessary to determine whether it is in the public interest to refer each matter to the Fitness to Practice Committee rather than the disciplinary process. The criteria are not inconsistent with the Act and Regulations and are therefore not invalid.

The Court then considered whether Telfer’s decision was unreasonable. In her decision, she outlined two reasons for not referring MacNeil to the Fitness to Practice Committee. First, the psychologist’s report indicated he was not prepared to participate in rehabilitation. Second, the conduct at issue did not involve his issues with alcohol. The Court concluded that the decision was based upon evidence available to her. The decision was reasonable.

MacNeil’s application was dismissed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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