Finding of professional misconduct reversed on basis that College failed to specific elements of allegation in citation

Administrative law – Decisions reviewed – College of Nurses – Judicial review – Procedural requirements and fairness – Evidence – Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Competence

Whieldon v. British Columbia College of Nurses and Midwives, [2021] B.C.J. No. 1816, 2021 BCSC 1648, Supreme Court of British Columbia, August 20, 2021, The Honourable Mr. Justice D.M. Masuhara

The appellant, a nurse and member of the College of Nurses and Midwives, was found guilty of professional misconduct regarding her knowledge of certain obstetrical procedures and the care provided for an infant.

The appellant was found guilty in respect of an allegation in the citation that she did not appropriately escalate the infant’s care by notifying specific individuals: the charge nurse, patient care coordination, or physician. The appellant’s unchallenged evidence at the hearing was that she consulted with the charge nurse. The Discipline Panel’s decision suggested it applied a specific standard referred to by an expert witness regarding how the appellant ought to have escalated care. The appellant argued on appeal that the Discipline Panel of the College erred in determining that allegation based on adherence to a standard that was not the subject of that charge.

On appeal, the court found the Discipline Panel erred in its finding the appellant committed professional on the basis of the specific allegation in the citation.

The court found the Discipline Panel misconstrued the meaning of “escalation of care” as used in the allegation in the citation. The wording of the citation was unambiguous. In the context of the appellant’s unchallenged evidence regarding consulting with the charge nurse, the Discipline Panel need to explain why it was rejecting that evidence in support of a finding the appellant committed professional misconduct as alleged. If the Discipline Panel was considering adherence to a different standard in respect of that allegation, the duty of procedural fairness required it to give notice of the specific content of that allegation against the appellant.

The court allowed the appeal and reversed the Discipline Panel’s decision, on the basis that the College failed to meet its evidentiary burden to prove that allegation on the record.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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