Focus on the Allegations!

It is trite to say that a discipline panel can only make findings in respect of the allegations contained in the notice of hearing document. However, applying that principle can sometimes be challenging. In Whieldon v British Columbia College of Nurses and Midwives, 2021 BCSC 1648 (CanLII), https://canlii.ca/t/jhnjg, a registered nurse working in a perinatal unit was alleged to have engaged in professional misconduct and to demonstrate incompetence. The main allegation under review was worded as follows:

(c) on or about May 6, 2016, during the bath of Patient #3, an infant (B.G.M.), you observed and documented signs and symptoms that may have indicated seizure activity by stating, “strange movements with hands, clenching, splaying fingers, gripping & internally rotating wrists – will need to observe”. B.G.M. was 1 day old and you were involved in her delivery, which was vacuum-assisted due to fetal tachycardia greater than 170 beats per minute. B.G.M.’s one minute Apgar score was 1 and her 5 minute Apgar score was 9. Despite your knowledge regarding B.G.M.’s birth events and Apgar scores, your observation regarding the “strange movements” and your documentation regarding same, you did not appropriately advise Patient #3’s parents of your observations or escalate the infant’s care by notifying the charge nurse, patient care coordinator, or physician; further, you did not perform any additional assessments of infant Patient #3.

The Court found that the core of this allegation was that the practitioner had failed to escalate the concerns by notifying her colleagues. The Court found that the reasons of the panel focused too much on whether the baby’s symptoms observed by the practitioner indicated possible seizures. The Court was also concerned that the panel did not acknowledge the evidence that the practitioner had, in fact, notified a number of her colleagues of the observations she had made. As a result, the Court determined that the hearing was procedurally unfair in that findings made (about understanding what the baby’s symptoms might indicate) did not match the wording of the allegations, which focused on the lack of escalation of the concerns.

The Court also had concerns of a similar nature with other aspects of the discipline panel’s reasons for decision. This case emphasizes that the reasons of the panel should directly address the allegations as worded.

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