PEI Court of Appeal affirms disciplinary decision despite finding unfairness

The regulator’s hearing committee found the nurse guilty of professional misconduct and incompetence based on allegations that the nurse:

• failed to follow established infection prevention and control policies and twice attempted to insert an IV using the same catheter, which exposed her mother to unnecessary risk
• treated the hospital staff in a demeaning and unprofessional manner, made them feel threatened, undermined their authority, and created a hostile environment
• left a voicemail with the hospital’s nursing director that was deemed threatening and unprofessional

The hearing committee imposed penalties, including a two-month suspension of her nursing registration, mandatory ethics training, a $5,000 fine, and $10,000 for the regulator’s expenses. The committee also required her to provide a written copy of the decision to her current and future employers.

The nurse appealed the decision to the Prince Edward Island Supreme Court. She alleged breaches of her rights under the Canadian Charter of Rights and Freedoms and spoliation (destruction of evidence) on the part of the hospital. She also argued that the hearing committee improperly considered her lack of remorse before determining her guilt.

The Supreme Court’s judge rejected the nurse’s arguments. These arguments were raised for the first time on appeal and were unsupported by the evidentiary record, the judge said. The judge also upheld the penalty decision.

Procedural error found

In Llewellyn v College of Registered Nurses of PEI, 2024 PECA 15, the Prince Edward Island Court of Appeal issued a ruling that confirmed the penalty imposed on the nurse, as well as the findings of professional misconduct and incompetence.

The appeal court acknowledged that a finding of guilt should come before a consideration of lack of remorse. The appeal court stressed that the nurse was entitled to deny the allegations without facing harsher penalties for doing so.

However, the appeal court ultimately decided that the procedural error did not affect the underlying findings of professional misconduct and incompetence.

Regarding the alleged breaches of Charter rights, the appeal court agreed with the lower court that the nurse should have properly raised this issue during the initial hearing and not for the first time on appeal.

Lastly, on the issue of spoliation, the appeal court found no evidence that the hospital intentionally destroyed evidence as alleged by the nurse.