In the November 6, 2012 edition of Perspectives for the Professions we reported on the decision of the Court of Appeal referenced above. In this case two registered nurses, on numerous occasions, stole narcotics from their employer and falsified narcotic records to cover-up the thefts. When they were caught, the nurses indicated that they had become addicted to narcotics and said they were prepared to undergo rehabilitation. For one of the nurses, this was the second time that she had been caught stealing narcotics. The matter was referred to CARNA which conducted an investigation and referred the matter to a hearing before a Hearing Tribunal. The nurses admitted the thefts and falsification of records but argued that they could not be found to have engaged in unprofessional conduct since their misconduct was caused in whole or in part by their addiction which is a disability under human rights law. The nurses took the position that in order to accommodate them under human rights law, CARNA had to utilize an informal resolution process or an incapacity assessment rather than proceeding to a formal hearing. The Hearing Tribunals rejected this argument and found that the thefts and falsification of records constituted unprofessional conduct. The Hearing Tribunals took the addictions into account in the sanctions part of the hearing imposing an extensive remedial order designed to ensure ongoing rehabilitation and protection of the public while also providing full opportunities for the nurses to return to work once safe to do so. Both the nurses ultimately completed their rehabilitation and returned to work in accordance with the orders of the Hearing Tribunals. The nurses appealed the decision to CARNA’s Appeals Committee which dismissed the appeal. The nurses appealed that decision to the Court of Appeal which upheld the decision of the Appeals Committee. The majority of the Court of Appeal did not find any discrimination against the nurses and concluded that any accommodation that might be necessary could occur in the sanction phase of the hearing. The nurses sought leave to appeal to the Supreme Court of Canada. We indicated that we would keep our readers posted on further developments in the case.
We are pleased to advise that on March 28, 2013 the Supreme Court of Canada denied leave to appeal with costs awarded against the nurses. This means that the Court of Appeal decision in Wright is the law in Alberta and will be an influential precedent across Canada. The issues addressed in Wright are of critical importance to regulators. Professional regulatory organizations take a variety of approaches to professionals who engage in misconduct caused in whole or in part by their addictions. Some organizations address the issues through informal processes while other organizations use the formal discipline process. In this “traditional approach”, there is a finding that the thefts or other misconduct is unprofessional conduct. Then in the sanction phase of the hearing, the addiction is taken into account in crafting remedial sanctions designed to protect the public while also recognizing that addiction is a treatable illness. While there are advantages and disadvantages to both informal resolution and the traditional approach, in our view this is a policy choice best left to individual regulators. If the nurses’ challenge in Wright had succeeded, then professional regulatory organizations would not have been able to make this policy choice. In addition, some of the most serious acts of unprofessional misconduct are caused in whole or in part by addictions. While some professionals are cooperative in seeking rehabilitation, others refuse to recognize their problem and are not prepared to engage in rehabilitation. If regulators were prohibited from using the formal discipline process for these professionals, how would regulators be able to fulfill their public protection mandate?
We are very pleased that this matter is now finalized with the important precedent of Wright v. CARNA. This case is the first Court decision in Canada that squarely addresses whether human rights principles provide a defence, as opposed to a mitigating factor, where misconduct is caused in whole or in part by an addiction.
Field Law’s Professional Regulatory Group represented CARNA in the case with James T. Casey, QC and Anne Côté acting as legal counsel.