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Medical Professionals (RHPA) - Nurses - RHPA. Young v. College of Nurses of Ontario
In Young v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court set out some basics of the Health Professions Procedural Code (HPPC) regime, here respecting the College of Nurses:The Statutory Scheme Under the Health Professions Procedural Code
[12] The College regulates the practice of nursing in Ontario. The College’s primary duty is to serve and protect the public interest: Health Professions Procedural Code, s. 3(2), Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sched. 2 (the “Code”). The Registrar of the College may appoint an investigator to determine whether a member has committed an act of professional misconduct or is incompetent: Code, s. 85. Before appointing an investigator, the Registrar must have reasonable and probable grounds and must obtain the approval of the ICRC, a statutory committee of the College: Code, s. 75(1).
[13] Once an investigation is complete, the Registrar reports the results to a panel of the ICRC for consideration: Code, ss. 25 and 79. The member who is the subject of a report has an opportunity to make written submissions to the ICRC: Code, s. 25.2(1). Under s. 26(1) of the Code, the ICRC is required to consider and take prescribed actions regarding reports and complaints into members’ professional conduct and/or competence. Subsection 26(1) states as follows:What a panel may do
26 (1) A panel, after investigating a complaint or considering a report, considering the submissions of the member and making reasonable efforts to consider all records and documents it considers relevant to the complaint or the report, may do any one or more of the following:1. Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint or the report.
2. Refer the member to a panel of the Inquiries, Complaints and Reports Committee under section 58 for incapacity proceedings.
3. Require the member to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned.
4. Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws. [14] The panel of the ICRC must give the member a copy of its decision and, where the ICRC issues a caution or a SCERP, a copy of its reasons. The College must place a notation of the caution or SCERP on the Public Register: Code, s. 23(2)7. The Register is accessible on the College’s website. The notations remain on the Register indefinitely. . Young v. College of Nurses of Ontario
In Young v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court characterizes the nature of the 'Inquiries, Complaints and Reports Committee' (ICRC) under the RHPA (here respecting the 'College of Nurses'):[42] The Respondent submits that the ICRC is not an adjudicative body and has no legal expertise. A panel of the ICRC consists of two nurses and a public member. Their expertise is not in the law or issues of procedural fairness, but in nursing standards and the protection of patients and the public. The Respondent further submits that where, as here, a screening committee requires a remedial and educative response to a member’s conduct, a reasonableness review permits less detailed reasons.
[43] While the ICRC is a screening body, its role and function are robust. The majority of investigations (58.2 percent) are disposed of by way of ICRC orders. The ICRC not only screens complaints and reports but has authority to make determinations as to the appropriate disposition. The ICRC is authorized to order cautions, remediation and interim suspensions. Although such orders are seen as remedial, because they remain indefinitely on the Public Register, which is readily accessible on the College’s website, such actions have a significant impact on a nurse’s reputation and livelihood. Moreover, a caution can be considered if the member faces discipline at some point in the future: Code, s. 26(2).
[44] In addition, where the ICRC orders a caution or remediation, the order is final: Code, s. 27(2). As such, the Applicants’ only opportunity to raise the procedural fairness issues of delay and abuse of process was before the ICRC. Therefore, it was incumbent on the ICRC to demonstrate in its reasons that it considered those issues in making the determination to order a caution and, in Ms. Ghafur’s case, remediation.
[45] For the reasons given above, I reject the College’s submission that while the issues of delay, abuse of process and disability might be issues before the Discipline Committee, they were not central issues before the ICRC. As explained above, the reasons do not provide the Applicants with any assurance that their central submissions were heard or considered by the ICRC. The reasons do not address how or why, given the passage of time, the remedial measures remained appropriate. As a result, I find that the reasons, read holistically, are inadequate because they fail to reveal a rational chain of analysis and are not sufficiently justified in relation to the record before the ICRC.
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