A health professional steals narcotics from her employer, falsifies narcotic records to cover-up the thefts and then consumes the narcotics when she is off-shift. This conduct continues for an extended period of time until the professional is caught by her employer. Does this conduct constitute unprofessional conduct such that the professional can be sanctioned by the discipline tribunal of her professional regulatory organization?
At first blush this seems pretty straight forward. By any reasonable definition, theft of narcotics from an employer and falsification of records would be considered unprofessional conduct. But what if the health professional says the following after being caught?
I have developed an addiction to narcotics. I stole the narcotics because of the compulsion caused by my addiction. Under human rights law, addictions are considered to be both an illness and a disability. Given that I have a disability, my regulatory body has a duty to accommodate me up to the point of "undue hardship". My expectation is that the accommodation will include an informal resolution process in which my addiction and the necessary medical treatment will be addressed but I should not be expected to go through a formal discipline hearing. While I do not deny the thefts or the falsification of records, I am not prepared to admit that these actions constitute unprofessional conduct since the misconduct was caused by my addiction and disability.
Most of us would agree that this additional information makes this issue anything but “straight forward.” Misconduct caused in whole or in part by an addiction raises important public policy issues since some of the most egregious forms of misconduct where the public is most at risk are caused at least in part by addictions. Regulatory bodies take a variety of approaches to misconduct caused by addictions. Some favour an informal resolution without invoking the formal discipline process. These regulators consider that an informal process will satisfactorily protect the public if there is a commitment by the professional to seek and continue treatment. These regulators worry that a formal discipline process will be viewed as “punitive” by addicted professionals perhaps causing professionals to be less likely to seek treatment.
Other regulators consider informal resolution processes to be unsatisfactory in cases where the professional has engaged in serious misconduct. These regulators are concerned about a lack of transparency in the process with the informal resolution being completed “behind closed doors”. These regulators note that no professional can ever be disciplined for an addiction in and of itself. Rather, addicted professionals are only disciplined if they engage in misconduct in the work place such as theft and falsification of records. These regulators also note that addictions have elements of both compulsion and control and that not all addicts steal. If there was no element of control, an addiction would not be a treatable disease and we know that many addicted professionals successfully treat their addiction and return to the workplace. These regulators worry that an informal resolution process results in a lack of accountability by the professional for the misconduct. And of course, only those informal processes authorized by the legislation can be utilized and sometimes these processes may not provide sufficient safeguards to protect the public in serious cases of misconduct. In this “traditional approach”, a discipline tribunal will make a finding of unprofessional conduct based on the thefts and falsification of records and then take the addiction into account in determining the type of sanctions to impose. Properly crafted orders can strike an appropriate balance by protecting the public while also recognizing that addictions are a treatable disease that may justify a remedial approach in the sanctions phase of the hearing. For example, a discipline tribunal might order that a professional be suspended until medically cleared to return to work; undergo ongoing treatment for the addiction; submit to random drug and alcohol testing; and submit regular medical assessments to the regulator.
While there are advantages and disadvantages to each of the approaches, from my perspective this is a classic policy choice that is best left to individual regulators as part of their oversight of the profession. However, in Wright v. College and Association of Registered Nurses of Alberta (Appeals Committee) 2012 ABCA 267 an argument was advanced that regulators do not have the ability to make this policy choice since using the formal professional discipline process contravenes human rights legislation by failing to properly accommodate the “disability” of addiction.
This is a critically important issue for regulators. If the argument was to be accepted by the Courts it would “tie the hands” of regulators with respect to the policy choice of regulatory approaches to professionals with addictions; it would prohibit the use of the “traditional approach” with respect to addicted professionals and imperil the ability of regulators to properly regulate addicted professionals engaging in misconduct especially those who are in denial and uncooperative.
In Wright two nurses had stolen narcotics from their employers and falsified narcotic records. The nurses did not deny the thefts and forgeries but argued that they could not be found guilty of unprofessional conduct. They argued that the misconduct was caused by their addictions and that CARNA was obligated to accommodate their disability by using either the Alternative Complaints Resolution or incapacity process in the Health Professions Act instead of the formal discipline process. The Hearing Tribunals found the nurses guilty of unprofessional conduct and then proceeded to impose reprimands and a carefully constructed series of orders designed to ensure that the both nurses received ongoing treatment for their addiction. Eventually both nurses were able to successfully return to work. An appeal to CARNA’s Appeal Committee was dismissed with the nurses appealing further to the Alberta Court of Appeal.
The majority of the Court of Appeal dismissed the appeals upholding the findings of unprofessional conduct. The Court found the conclusions of the Hearing Tribunal and the Appeals Committee that there was no discrimination against the nurses to be reasonable. There was no reviewable error with respect to the conclusions that the nurses’ disability did not play any role in the decision to proceed with the discipline prosecutions and that the nurses were disciplined only for the thefts and forgeries and not for their addiction. The Court concluded that: “Discipline for criminal conduct is based on objectively justifiable social criteria, not stereotypical thinking or arbitrary judgment of personal characteristics. While the law recognizes that an addict cannot always control their addiction, the law does require that the addict control her conduct sufficiently to comply with the criminal law.” The Court rejected the argument that the use of the disciplinary process constituted discrimination. The Court recognized that it is the finding of unprofessional conduct that triggers the power in the Hearing Tribunal to make rehabilitative orders which can provide meaningful accommodation of an addiction. The dissenting Justice of the Court of Appeal would have remitted the case back to the Appeals Committee for a further consideration of the accommodation issue.
I was honoured to represent CARNA in the Wright case at the Hearing Tribunal, the Appeal Committee, and the Court of Appeal level. Wright represents a very important precedent for professional regulators and is one of the few decisions that directly address the impact of addictions on findings of unprofessional conduct. We have been advised by legal counsel for the nurses that they intend to seek leave to appeal to the Supreme Court of Canada so it may be that the last chapter of this story has not yet been told. We will keep our readers posted of further developments in this case.