The Alberta Court of Appeal held that there is no human rights defence to a professional who steals narcotics and forges related records, notwithstanding that the professional has a narcotic dependency

23. October 2012 0

Administrative law – Decisions of administrative tribunals – College of Nurses – Nurses – Disciplinary proceedings – Professional misconduct / conduct unbecoming –  Addiction –  Penalties and suspensions – Human rights complaints – Discrimination – Judicial review –  Evidence

Wright v. College and Assn. of Registered Nurses of Alberta (Appeals Committee), [2012] A.J. No. 943, 2012 ABCA 267, Alberta Court of Appeal, September 18, 2012, R.L. Berger, K.G. Ritter and FF. Slatter JJ.A.

Two registered nurses stole narcotics, and in an attempt to cover up their thefts, they falsified related records/prescriptions. The College and Association of Registered Nurses of Alberta (the “College”) laid charges of unprofessional conduct against the nurses. As part of the discipline proceeding, two separate Hearing Tribunals were convened to deal with the allegations. Although the allegations were not disputed in each instance, the issue before the Hearing Tribunals was whether the nurses’ addiction raised a human rights defence. Both of the nurses argued that there was a nexus or connection between their behaviour and their illness of narcotic dependency. They argued that since the conduct in issue was caused by a medical condition, a finding of professional misconduct was precluded by the Alberta Human Rights Act. Phrased differently, they argued that in light of their addictions, their conduct was not unprofessional and the College should have followed an Alternative Complaint Resolution process or an incapacity assessment process instead laying disciplinary charges. The College took the position that the nurses were not being disciplined because of their addiction/disability but because of their criminal behaviour of stealing narcotics and forging related documents.

The Hearing Tribunal held, in both hearings, that the members were not being disciplined as a consequence of their drug dependence, but rather on the basis of their fraudulent and thieving behavior. Although the tribunal accepted the conclusion that there was a plausible connection between the opioid dependence and the behaviour of the members, it found that the linkage or nexus between the behaviour was not sufficiently close. The Hearing Tribunal reprimanded both nurses, suspended their registration, permitted the nurses to practice with conditions and awarded costs to the College (in one of the instances).

The nurses appealed the decision of the Hearing Tribunal to the Appeals Committee of the College. In both instances, the Appeals Committee agreed with the Hearing Tribunal that there was not a sufficient link between the disability and the conduct that was being sanctioned and that the nurses were not discriminated against because of their addiction. The Appeals Committee agreed that the nurses’ conduct also reflected an element of choice. In both cases, it affirmed the finding of professional misconduct, the sanctions and the cost awards. In the one nurse’s case where costs were not awarded in the first instance, the Appeals Committee awarded the College costs.

The nurses appealed the findings of the Appeals Committee to the Court of Appeal pursuant to s.90 of the Health Professions Act.

The appeals were dismissed. The Court found that the College’s decision to invoke its disciplinary process was not unreasonable, nor did it amount to an abuse of process. The Court noted that there are many addicts who suffer from a disability but do not engage in criminal conduct. The College was not discriminatory in laying professional misconduct charges as the nurses’ criminal conduct, and not their personal characteristics, was the reason for the charge. Further, the Court found that while there may be a connection between the nurses’ actions (theft/forgery) and their disability (addiction), there was no sufficient connection.

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