On September 18, 2012 the Alberta Court of Appeal released a decision in the companion cases of Wright v. CARNA and Helmer v. CARNA. This decision will be of interest to regulators. It is one of the first Canadian court decisions to squarely address disability and capacity as defences to professional discipline charges.
Two Registered Nurses were caught falsifying medical records to conceal their thefts of narcotics. Both were charged with unprofessional conduct and went through discipline proceedings under the Alberta Health Professions Act. Both admitted to falsifying records and stealing narcotics, but they argued they were addicted to the narcotics and their conduct was caused by the addictions. The RNs argued that punishing them would mean punishing them for being addicted, which is a type of disability. They argued this would be discrimination contrary to the Alberta Human Rights Act.
The RNs argued that their regulator CARNA was required to accommodate them to the point of undue hardship and this meant that CARNA should not have proceeded with discipline charges. The RNs argued that CARNA had to follow an alternate complaint resolution process or an incapacity assessment process under the Health Professions Act.
The Court of Appeal upheld CARNA’s approach confirming that professional regulators generally have the discretion to invoke and manage their discipline processes. There was no discrimination here because there was no differential treatment based on a disability. The addictions may have motivated the RNs to steal narcotics and cover it up, but the discipline charges were based on the RNs’ underlying misconduct of theft and falsification of records, not on the fact that they were suffering from addictions. The Court stated “While the law recognizes that an addict cannot always control her addiction, the law does require that the addict control her conduct sufficiently to comply with the criminal law.”
To the extent professional discipline tribunals are required to accommodate individuals suffering from disabilities, the majority concluded those accommodations can be achieved through carefully crafted remedial sanctions. The dissenting Judge would have remitted the matter to the Appeals Committee to further consider the accommodation issue.
James T. Casey, Q.C. and Anne Côté of Field Law’s Professional Regulatory group were counsel for CARNA. Watch for a feature article about the impacts of this case for regulators in the upcoming edition of our Perspectives for the Professions newsletter.
A full copy of the decision is available here.