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. Rowe v College of Nurses of Ontario

In Rowe v College of Nurses of Ontario (Div Court, 2023) the Divisional Court considered the RHPA/HPPC system and some procedural case facts, here in a nursing professional discipline situation:
[5] The College is the regulatory body for registered nurses, registered practical nurses, and nurse practitioners in Ontario. The Regulated Health Professions Act[2] (“RHPA”), the Health Professions Procedural Code[3] (“Code”), and the Nursing Act, 1991[4] and its regulations set out the College’s regulatory scope. In carrying out its objects, the College “has a duty to serve and protect the public interest”: Code, s. 3(2).

[6] The Code establishes the ICRC: Code, s. 10(1). Among other things, the ICRC investigates complaints and considers reports the College receives about nurses’ conduct.

[7] When the College receives a report, as it did in this case, an intake investigator conducts a preliminary review of the report. The purpose of the preliminary review is to provide a basis for the College’s Executive Director – who fulfills the duties of the “Registrar” within the meaning of the Code – to determine the appropriate regulatory response.[5] The Executive Director may appoint an investigator under s. 75(1)(a) of the Code if the Executive Director believes on reasonable and probable grounds that a member committed an act of professional misconduct and if the ICRC approves the appointment. An intake investigator does not have the powers of an investigator appointed under s. 75(1)(a) of the Code.

[8] The Executive Director reports the results of an investigation to the ICRC under s. 79(a) of the Code. After considering the results of the investigation and the nurse’s response, if any, the ICRC determines the appropriate response to protect the public interest: Code, s. 26(1). The ICRC may refer specific allegations of professional misconduct or incompetence to the College’s Discipline Committee; the ICRC may also take non-disciplinary remedial measures, including requiring a nurse to appear before a panel of the ICRC to be cautioned: Code, s. 26(1)2 and s. 26(1)3.

[9] In December 2019, the College received a mandatory report from Mr. Rowe’s former employer, the Kemptville District Hospital. The Hospital reported multiple different incidents involving Mr. Rowe’s clinical practice and conduct that led to Mr. Rowe’s employment being terminated.

[10] The College conducted an intake investigation. On May 7, 2021, the College’s Executive Director appointed an investigator under s. 75(1)(a) of the Code. Mr. Rowe was advised of the investigator’s appointment on May 12, 2021. The College was advised on May 20, 2021 that Mr. Rowe was represented by a lawyer at the Ontario Nurses’ Association (“ONA”), Mr. Fong. Mr. Fong was subsequently replaced by another ONA lawyer, Adrienne Anderson.

[11] On January 25, 2022, the College’s investigator provided Mr. Rowe and his counsel with disclosure. On being notified by counsel for Mr. Rowe that it appeared the Hospital had provided an incorrect patient chart, the investigator removed the incorrect chart and provided the corrected disclosure to Mr. Rowe and his counsel on February 3, 2022. Mr. Rowe’s submissions in response to the disclosure were provided on February 24, 2022.

[12] On April 6, 2022, a panel of the ICRC reviewed the investigation report into Mr. Rowe’s nursing practice. The ICRC had before it the Report on Investigation and Mr. Rowe’s submissions. The incorrect patient chart did not form part of the Report on Investigation and was not before the ICRC.

[13] On June 6, 2022, the ICRC decision and its reasons were finalized and emailed to Mr. Rowe and his counsel. The next day, Mr. Rowe requested a hard copy of the decision.

[14] In its decision, the ICRC directed Mr. Rowe to appear before the ICRC to be cautioned. In its reasons, the ICRC reviewed each of the seven clinical issues that formed the basis of the investigation and Mr. Rowe’s submissions on each of the incidents. The ICRC noted that its function was not to assess credibility or to determine conclusively the facts of a situation. Having considered the information obtained through the investigation, the ICRC had concerns about Mr. Rowe’s nursing practice. The ICRC formed the view that it was consistent with the College’s mandate of public protection to caution Mr. Rowe with regard to four College standards.

[15] The caution was initially scheduled for October 4, 2022. To accommodate Mr. Rowe’s work schedule, the date was changed and the caution was ultimately scheduled for November 23, 2022.

[16] Mr. Rowe sought review of the ICRC decision before the Health Professions Appeal and Review Board (“HPARB”) on October 3, 2022. On October 6, 2022, HPARB advised Mr. Rowe that the review requested was beyond both the 30-day deadline and the ultimate 60-deadline for reviews at HPARB.

[17] On November 18, 2022, Mr. Rowe requested correction of alleged factual errors in the ICRC decision. He also indicated he intended to file reports of professional misconduct against the College’s former Executive Director, the intake investigator, the s. 75 investigator, and three members of the ICRC panel who were involved in the decision. On November 22, 2022, Mr. Rowe requested that the three members of the ICRC panel against whom he had filed reports of professional misconduct recuse themselves from the caution.

[18] Mr. Rowe’s caution was carried out on November 23, 2022. The three members of the ICRC panel against whom Mr. Rowe had filed reports of professional misconduct did not participate in the caution meeting.

[19] On November 30, 2022, HPARB notified Mr. Rowe that it lacked jurisdiction to proceed with the review because the ICRC decision was the result of a mandatory report.
. Cabot v College of Nurses of Ontario

In Cabot v College of Nurses of Ontario (Div Court, 2023) the Divisional Court considered a discipline appeal regarding a nurse:
[23] On an appeal from a sanction imposed by a regulated professions tribunal, the court will interfere will a tribunal’s penalty decision only if the penalty reflects an error in law, an error in principle, or if the penalty is “clearly unfit”: Budarick, 2022 ONSC 640 at para 40.


[31] The Appellant submits that, in particular, the Panel placed inappropriate weight on two decisions involving vulnerable patients: College of Nurses of Ontario v Trzop, 2018 CanLII 75258 (ON CNO) and College of Nurses of Ontario v Hawil, 2016 CanLII 104248 (ON CNO).

[32] I disagree. The Panel summarized the cases and was clearly alive to the range of penalties for boundary violations by nurses in a variety of relationships with patients, former patients and family members of patients. The first important point, which the Panel noted, is that there are no “perfectly similar historical cases” to the case at bar. This explains the range in available penalty, which counsel for the Appellant conceded during submissions. In this case, the College sought a 12-14 month penalty noting that, but for the mitigating features, it would have sought revocation.

[33] The Appellant, who sought a lower suspension of 2-3 months, provided four prior decisions in which the Panel had imposed three-month suspensions.

[34] The Panel emphasized the seriousness of the conduct and the impact on both patients, C.R.L. and C.L. It referred to elements in common, with the decisions in Trzop and Hawil, of boundary violations involving sexual relationships which affected vulnerable patients.

[35] Trzop involved a 90-year-old client to whom the member provided in-home palliative care. The member initiated a personal and sexual relationship with the patient’s grandson while in the patient’s home. The member offered and obtained controlled substances for the patient’s daughter that were not prescribed to her. The member also moved into the patient’s home and engaged in a financial relationship with the patient’s daughter by agreeing to pay her rent. The Panel ordered a 12-month suspension which was the result of a joint submission.

[36] Hawil involved an extremely vulnerable patient who was admitted to a psychiatric unit following a suicide attempt. Six weeks after the patient was discharged, the member called the patient and took her out for lunch. The member then took the patient to a motel to have sex, driving her home after and giving her money to buy cigarettes. The patient reported the incident to the hospital a year later, fearing that if she needed hospitalization again, the member might be her nurse. The parties presented a Joint Submission for an Order revoking the member’s certificate. The member resigned prior to the hearing.

[37] The Appellant submits the Panel ought to have discussed and applied the penalty decisions such as College of Nurses of Ontario v. Seymour, 2017 CanLII 141997 (ON CNO) and College of Nurses of Ontario v. Baker, 2012 CanLII 98107 (ON CNO), which involved shorter suspensions.

[38] Seymour involved a boundary violation in which the Member initiated a personal relationship with a patient that became intimate following the patient’s discharge from care. The patient divorced his spouse because of the relationship with the Member. They eventually married. A three-month suspension was imposed because of a joint submission.

[39] In Baker the Member provided care to a client who suffered from Alzheimer’s Disease. While providing care to the client, the Member initiated a relationship with the client’s husband and concealed the relationship from her client and the facility. The Panel imposed a three-month suspension here, again based on a joint submission.

[40] The Appellant submits that both Seymour and Baker have more in common with her circumstances because they involve intimate relationships with spouses of patients, but without the exceptional mitigating factors in her case, including the abuse by the patient toward the member and the impact on the member of that abuse.

[41] Counsel for the College argued, and I accept, that there are no prior decisions that align significantly with the facts here, although the boundary issues involving two patients who were spouses is an element found in one of the cases that was put before the Panel. In College of Nurses of Ontario v Riehl, 2019 CanLII 132000, in which a Nurse Practitioner was providing primary care healthcare to a husband and wife and began a sexual relationship with the husband while continuing to provide care to both.

[42] The key distinguishing feature of Riehl is that the member’s sexual relationship with her patient took place during the nurse-patient relationship (unlike in the Appellant’s case, where C.R.L. had ceased to be a patient a few weeks after sexual contact occurred). Because this amounted to sexual abuse under the Health Professions Procedural Code, O. Reg. 262/18, this conduct attracted the mandatory penalty of revocation.

[43] The Panel demonstrated that it was aware of the range of penalties and circumstances of the cases that formed part of the submissions on penalty. While it did not discuss in great detail its approach to all of the cases put before it, the Panel summarized the cases which revealed a relatively broad spectrum of available periods of suspension for boundary violations. The Panel considered the seriousness of the conduct, which included boundary violations of both a current and former patient and took into account the unique mitigating factors. Read as a whole, the Panel’s reasons demonstrate that it was aware of the principles, the available range and implicitly found that a longer suspension was warranted, even after controlling for the mitigating features in the evidence. The reasons adequately explained why the Panel imposed the penalty that it did. If C.L. had not been a patient of the Appellant, the appropriate penalty might well have been in the range suggested by the Appellant. But C.L. was and continued to be a patient of the Appellant, and this aspect of the case justifies the Panel’s decision on sanction: but for the mitigating circumstances, revocation could have been the appropriate disposition.

[44] Imposing penalty is a highly individualized process. There is no one “correct” penalty in any given case, and while different panels might impose different penalties, on appeal, it is not the task of the court to substitute the penalty that we might prefer. Rather, returning to the standard of review, we must discern whether the penalty was fit in the circumstances, whether the Panel considered adequately the aggravating and mitigating circumstances and prior decisions and communicated its reasons for doing so sufficiently. This Panel did so. I would not interfere with the result.
. 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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