Carruthers v. College of Nurses (Ont.), (1996) 96 O.A.C. 41 (DC)

• Judge: Smith, A.C.J.O.C., Watt and Corbett, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: December 03, 1996
• Jurisdiction: Ontario
• Citations: (1996), 96 O.A.C. 41 (DC)

Carruthers v. College of Nurses (1996), 96 O.A.C. 41 (DC)

MLB headnote and full text

In The Matter Of the Health Professions Procedural Code of the Regulated Health Professions Act, S.O. 1991, c. 18, Schedule 2 and the Nursing Act, 1991 S.O. c. 32;

And In The Matter Of a Decision of a Discipline Committee of the College of Nurses, dated October 24, 1995, pursuant to the Health Professions Procedural Code of the Regulated Health Professions Act, S.O. 1991, c. 18, Schedule 2 and the Nursing Act, 1991 S.O. c. 32.

Dawn Carruthers (appellant) v. The College of Nurses of Ontario (respondent)

(File No. 757/95)

Indexed As: Carruthers v. College of Nurses (Ont.)

Ontario Court of Justice

General Division

Divisional Court

Smith, A.C.J.O.C., Watt and Corbett, JJ.

December 3, 1996.

Summary:

The majority of a Discipline Committee found a nurse guilty of three counts of professional misconduct contrary to s. 85(3)(c) of the Health Disciplines Act (now Drug and Pharmacies Regulation Act) and ss. 21(b), 21(c) and 21(n) of the Nursing Regulations. All guilt findings were based on a single incident of kissing a schizophrenic psychiatric patient during a restraining pro­cedure. The nurse was found guilty of failing to maintain the standards of practice for the profession, physical abuse of a patient and disgraceful, dishonourable and unpro­fessional conduct. The nurse was punished with a reprimand and a three month suspen­sion, which need not be served if the nurse met certain conditions. The nurse appealed, under s. 70 of the Health Professions Pro­cedural Code, the findings of guilt and the penalty, claiming that (1) the Committee misdefined "physical abuse"; (2) misevalu­ated the evidence; (3) erred in finding guilt on three counts based on the same incident (multiple disciplinary convictions precluded); and (4) the penalty imposed was too harsh.

The Ontario Divisional Court dismissed the appeal. The Committee did not err in finding that the nurse's conduct constituted "physical abuse". The Committee applied the correct standard and onus of proof and properly considered and dealt with all evidence. Assuming that the Kienapple principle against multiple convictions applied, it did not preclude findings of guilt on all three counts in this case. Finally, the Committee did not err in the penalty it imposed.

Medicine - Topic 6949

Nurse - Discipline - Hearing - Evidence - The majority of a Discipline Committee found a nurse guilty of three counts of professional misconduct contrary to s. 85(3)(c) of the Health Disciplines Act and ss. 21(b), 21(c) and 21(n) of the Nursing Regulations - All guilt findings were based on a single incident of kissing a schizophrenic psychiatric patient during a restraining procedure - The nurse was found guilty of failing to maintain the standards of practice for the profession, physical abuse of a patient and disgraceful, dishonourable and unprofessional conduct - The Ontario Divisional Court rejected an appeal based on the Committee's evalu­ation and appreciation of the evidence - The Committee considered all relevant evi­dence, properly considered the values and effect of the evidence and applied the proper standard and onus of proof (pros­ecutor to establish misconduct on a bal­ance of probabilities based on clear, cogent and convincing evidence) - See paragraphs 89 to 102.

Medicine - Topic 6952

Nurses - Discipline - Professional mis­conduct - What constitutes - A nurse was found guilty of professional misconduct, where her kissing a psychiatric patient during a restraint procedure was found to be "physical abuse" - The Ontario Divi­sional Court held that there was evidence to support the Discipline Committee's finding of physical abuse - Some factors to be considered by the Committee were (1) the circumstances in which the conduct occurred; (2) the nature of the conduct; (3) words and/or gestures used; (4) the nature and extent of force used; (5) the intent, motive or purpose behind the conduct; (6) the nature and extent of the patient's con­sent, if any; and (7) the explanation, if any, for the conduct - The court noted that the conduct need not cause bodily harm, nor need any intent to cause harm be proved - The issue was whether the con­duct constituted maltreatment of the pa­tient's bodily integrity - See paragraphs 46 to 67.

Medicine - Topic 6953

Nurses - Discipline - Duplicitous charges - A nurse was found guilty of three counts of professional misconduct based on a single incident (kissing a psychiatric pa­tient during a restraining procedure) - The counts were (1) failing to maintain the standards of practice for the profession, (2) physical abuse of a patient and (3) dis­graceful, dishonourable and unprofessional conduct - The Ontario Divisional Court ruled that the Kienapple principle against multiple convictions applied "in disciplin­ary proceedings taken against members of a self-regulated profession" - However, there was a lack of a legal nexus to pre­clude all three guilt findings in this case - Notwithstanding there existed a common act, the elements for each count were different - There were "distinct delicts, causes or matters which properly sustain separate findings of guilt" - See para­graphs 68 to 88.

Medicine - Topic 6956

Nurses - Discipline - Judicial review - Scope of - A Discipline Committee found a nurse guilty of three counts of pro­fes­sional mis­conduct contrary to s. 85(3)(c) of the Health Disci­plines Act and ss. 21(b), 21(c) and 21(n) of the Nursing Regulations - The Ontario Divisional Court discussed the scope of an appeal from the Committee - The court stated that, inter alia, the appeal was broad (questions of fact, law or both fact and law), but not limitless (no hearing or trial de novo) - Substantial deference was to be afforded to the Com­mittee on its primary fact findings, but not inferences from those fact findings - See paragraphs 40 to 45.

Medicine - Topic 6964

Nurses - Discipline - Punishments - Suspension of certificate - A nurse found guilty of three counts of pro­fessional mis­conduct resulting from a single incident (kissing a psychia­tric patient during a restraining procedure) was disciplined with a reprimand and a three month suspension - The suspension need not be served if the nurse discussed with the Discipline Com­mittee a video and curriculum guide on abuse and violence and submitted semi-annual performance appraisals for two years - The nurse claimed the penalty was too harsh - The Ontario Divisional Court set out the prin­ciples of disciplining mem­bers of one's own profession and held that the Commit­tee did not err in the penalty it imposed - See paragraphs 103 to 110.

Cases Noticed:

Reddall v. College of Nurses (Ont.) (1983), 42 O.R.(2d) 412 (C.A.), refd to. [para. 41].

Matheson v. College of Nurses (Ont.) (1979), 27 O.R.(2d) 632 (Div. Ct.), refd to. [para. 41].

Feingold v. College of Optometrists (Ont.) (1981), 33 O.R.(2d) 169 (Div. Ct.), refd to. [para. 41].

Singh v. College of Nurses (Ont.) (1981), 123 D.L.R.(3d) 713 (Ont. Div. Ct.), refd to. [para. 42].

Percheson v. College of Physicians and Surgeons (Ont.) (1985), 10 O.A.C. 76; 20 D.L.R.(4th) 295 (Div. Ct.), refd to. [para. 42].

College of Nurses (Ont.) v. Quiogue (1993), 63 O.A.C. 241; 13 O.R.(3d) 325 (Div. Ct.), refd to. [para. 43].

Milstein v. College of Pharmacy (Ont.) (No. 2) (1976), 72 D.L.R.(3d) 201 (Ont. Div. Ct.), refd to. [para. 44].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346, refd to. [para. 44].

Del Core v. College of Pharmacists (Ont.) (1985), 10 O.A.C. 57; 51 O.R.(2d) 1 (C.A.), refd to. [para. 44].

Trotter v. College of Nurses (Ont.) (1991), 44 O.A.C. 302 (Div. Ct.), refd to. [para. 44].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 45 D.L.R.(4th) 98; 37 C.C.C.(3d) 97; 59 C.R.(3d) 193, refd to. [para. 54].

R. v. Nurse (D.W.) et al. (1993), 61 O.A.C. 128; 83 C.C.C.(3d) 546 (C.A.), refd to. [para. 57].

R. v. Swenson (R.D.) (1994), 123 Sask.R. 106; 74 W.A.C. 106; 91 C.C.C.(3d) 541 (C.A.), refd to. [para. 57].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, dist. [para. 58].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 45 D.L.R.(4th) 235; [1988] 1 W.W.R. 193; 60 C.R.(3d) 193; 28 Admin. L.R. 294; 32 C.R.R. 219; 37 C.C.C.(3d) 385, refd to. [para. 62].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93; 30 C.C.C.(3d) 35, refd to. [para. 73].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 26 C.R.N.S. 1; 15 C.C.C.(2d) 524; 44 D.L.R.(3d) 351, refd to. [para. 73].

Richmond v. College of Optometrists (Ont.) (1995), 85 O.A.C. 379; 25 O.R.(3d) 448 (Div. Ct.), refd to. [para. 78].

R. v. McKinney, [1980] 1 S.C.R. 401; 31 N.R. 564; 2 Man.R.(2d) 400; 50 C.C.C.(2d) 576, refd to. [para. 82].

R. v. Shubley (1990), 104 N.R. 81; 37 O.A.C. 63; 52 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 82].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 58 C.R.(3d) 1; 28 C.R.R. 280; 39 D.L.R.(4th) 18; 33 C.C.C.(3d) 193, refd to. [para. 82].

Bernstein v. College of Physicians and Surgeons (Ont.) (1977), 15 O.R.(2d) 447 (Div. Ct.), refd to. [para. 97].

College of Nurses (Ont.) v. Eng et al. (1995), 84 O.A.C. 314 (Div. Ct.), refd to. [para. 99].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(h) [para. 81].

Drug and Pharmacies Regulation Act, R.S.O. 1990, c. H-4, sect. 85(2)(c) [para. 99].

Drug and Pharmacies Regulation Act Reg­ulations (Ont.), Nursing Regulations, R.R.O. 1990, Reg. 549, sect. 21(c) [para. 52].

Health Disciplines Act - see Drug and Pharmacies Regulation Act.

Health Professions Procedural Code - see Regulated Health Professions Act, S.O. 1991, c. 18, Schedule 2.

Nursing Regulations - see Drug and Phar­macies Regulation Act Regulations (Ont.).

Regulated Health Professions Act, S.O. 1991, c. 18, Schedule 2, sect. 70 [para. 40].

Counsel:

Elizabeth J. McIntyre and Sheilagh Turk­ington, for the appellant;

Chris G. Paliare and Odette S. Soriano, for the respondent.

This appeal was heard on September 5, 1996, before Smith, A.C.J.O.C., Watt and Corbett, JJ., of the Ontario Divisional Court.

The judgment of the court was delivered by Watt, J., and released on December 3, 1996.