Drawing the Line

Not every imprudent action by a registrant constitutes professional misconduct. At some point the conduct is “an understandable error” or “too trivial” to reach that state of opprobrium. By providing practical examples, Mcculloch v Investigation Committee Of The Saskatchewan Registered Nurses Association, 2023 SKKB 203 (CanLII), gives some sense of how that line might be drawn.

Jessica McCulloch was a nurse who worked in two facilities housing prisoners or inmates, many of whom had mental illnesses. McCulloch was found to have engaged several forms of professional misconduct. Two were set aside by the Court. The first involved giving to a patient a Q-tip that had been brought in from outside, allegedly contrary to the facility’s contraband policy. The evidence indicated that a Q-tip could constitute a weapon or could be used to jam a lock, jeopardizing security.

The Court held that most definitions of professional misconduct take a strict liability approach to intent. That means that a registrant can defend against an allegation if they demonstrate that, in all the circumstances, they exercised due diligence. In this case, the rules of the facility were vague as to what constituted “contraband”. In addition, the evidence was that McCulloch only gave the Q-tip to one patient, supervised its use, and retrieved it afterwards. The Court held that this demonstrated due diligence and the finding of professional misconduct was set aside.

The second finding related to an allegation of completing a patient’s jigsaw puzzle while they slept “knowing” that it would upset the patient. This language of the allegation required a degree of deliberateness and thus, was not a “strict liability” allegation. There was conflicting evidence as to whether McCulloch completed the puzzle to irritate the patient or completed it with the patient’s prior knowledge. There was also inconsistent evidence as to which patient had been working on the puzzle. The discipline panel did not address the inconsistencies and did not explicitly find that McCulloch acted to irritate a patient. That finding was also set aside.

The Court also examined whether the above actions were too trivial to constitute professional misconduct. The Court found that the discipline panel did not apply the test it espoused, namely looking at “the gravity of the misconduct, its duration, the number of breaches, the presence or absence of mala fides, and the harm caused by the respondent’s conduct.” The Court said:

For example, the Discipline Committee did not consider that both incidents happened only once; that the duration of each incident was brief; that no consequence arose from the Q-tip incident; and that, according to Ms. McCulloch’s testimony, [the patient] was not upset that she completed his puzzle. Respecting the gravity of the conduct, even the Discipline Committee stated that some of the allegations under charge 8, “might, at face value, appear trivial.”

The Court also looked at the specific examples of concerns expressed in the legislative definition of professional misconduct, which referred to much more serious examples of inappropriate behaviour.

To permanently mar a nurse’s professional reputation for allowing one patient to use one Q-tip (even if it could be considered “contraband”) or for potentially upsetting a patient when completing a jigsaw puzzle is not the type of misconduct contemplated by s. 26 of the RN Act.

A third finding related to McCulloch circumventing the suspension of canteen privileges of two patients by providing them with items “such as soft drinks, chips and candy” on one occasion. The Court upheld this finding. It said:

I accept that in the context of a forensic psychiatric institution there exists a need for consistency in providing and denying privileges to patients. I accept the Discipline Committee’s finding that patients with criminal backgrounds or facing criminal proceedings, all having a real or suspected measure of mental health issues, require consistent treatment by all staff. Ms. McCulloch should have been keenly aware that unexpected, sometimes violent behavior can erupt….

Breaching rules that involve the distribution of soft drinks, chips and candy would be trivial in many circumstances. But, in the context of the Sask Hospital, and the evidence that Ms. McCulloch was deliberately defying those rules, I find that the Discipline Committee’s decision that Ms. McCulloch’s conduct moved over the line and into professional misconduct cannot be disturbed on appeal.

Other findings, related to the inappropriate management of wasted narcotic or controlled drugs, were also upheld.

The Court also upheld the discipline panel’s approach to the evidence that McCulloch had a mental disability flowing from a terrifying hostage taking incident she experienced some years previously:

…the Discipline Committee accepted Dr. Arnold’s statement that Ms. McCulloch’s PTSD diagnosis could affect her general performance as a nurse. But, as to the question of whether Ms. McCulloch had established a nexus or connection between her acts and omissions and her mental health, the Discipline Committee declined to find such a nexus.

It was reasonable for the discipline panel to view that evidence as being relevant to sanction rather than as a complete defence to the findings in this case. Since two findings were set aside and because a global sanction had been imposed, the matter was referred back to the discipline panel to reconsider sanction.

It is important for discipline tribunals to explain why conduct at the low end of the spectrum of seriousness does or does not constitute professional misconduct.


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