The Wright case: a panel discussion continued

Last month, we asked two human rights lawyers to provide their perspective on the Alberta Court of Appeal’s decision about addictions and professional discipline in Wright v. College and Association of Registered Nurses of Alberta, 2012 ABCA 267. For their perspective, click here. For our case summary, click here.

This month week we wanted to provide you with a counter-position. But there is no better person to set out such a position than the lawyers who argued on behalf of the regulator in the Wright case, James Casey, Q.C. Mr. Casey recently posted a commentary about the Wright decision on MONDAQ. To read his commentary, click here.

When you read his commentary, consider this question: Is it sufficient to justify disciplining addicted professionals for their misbehaviours caused at least in part by their disabilities by saying that you are not disciplining them for their disabilities, but for their misbehaviours? Or does this fail to give meaning to what it means to have an addiction?

We also recognize that while the legal approach a regulatory panel takes to address human rights issues is important, how regulators address human rights issues from the start of their investigatory processes is equally important. For that reason, here is some advice from another professional regulatory lawyer, George Bryce, who kindly provided the following for us to post:

In their October 29th commentary on the Wright case from Alberta, Lindsay Waddell and Aleem Bharmal commented on the posed question: Was it discriminatory for the regulatory body to discipline two addicted nurses who stole narcotics from their work places and falsified documents to cover up their thefts? They argued that the majority in the Alberta Court of Appeal had incorrectly applied a legal test used in human rights cases to decide such questions.

Whether or not Waddell and Bharmal will be proven correct will be determined if the Wright case ends up before the Supreme Court of Canada. But I would suggest that for most regulators the primary lesson to take from Wright case is how to avoid ending up in court (or before a human rights tribunal) in the first place. Regulatory bodies should take steps to try to resolve these often complex cases before they issue a citation.

If during the course of investigating a complaint the respondent registrant claims an addiction to drugs or alcohol as a reason to explain his or her otherwise unprofessional if not criminal conduct, or if the regulatory body’s investigation committee has some reason to believe that a registrant is addicted and that addiction may be the primary cause or a contributing factor to the resulting unacceptable behaviour, then proceeding blindly to a disciplinary hearing without first proposing some form of consent resolution to address the registrant’s underlying problem is not a wise path to take.

Time has not permitted me to ascertain if in fact the College and Association of Registered Nurses of Alberta had first tried to resolve the complaints against their two registrants through some informal, problem-solving process before issuing the two citations. But, if any investigation committee has reason to believe a respondent registrant suffers from a true addiction that has at least contributed to their improper conduct, then if they take that information into consideration and propose a remedial or corrective alternative to a formal hearing, that single step should help to defend the body from a later human rights complaint or court challenge that it was discriminatory to have disciplined the addicted registrant.

While there can be many reasons why a registrant may refuse to accept a consent resolution to a bona fide, serious complaint, if the investigation committee had first proposed a non-disciplinary way to deal with that registrant’s underlying addiction and address the resulting negative effects, such a rejected proposal can be used to demonstrate that the regulatory body did not discriminate against that registrant by then moving on to a disciplinary hearing.

Whether or not the correct formulation of the legal human rights test is eventually articulated by Canada’s highest court, the major take-away from the Wright case for regulatory bodies across Canada should be that they can take positive steps to avoid ever having to argue these legal issues themselves in Ottawa.

* George Bryce (www.BryceLaw.ca) is a Vancouver-based lawyer with experience in professional regulation, both as a legal advisor, mediator and administrator.

Our upcoming webinar on January 16, 2013 on regulators, human rights and the Charter, will give further discussion on this issue, as well as options on how to avoid these sorts of human rights challenges. For the agenda and registration form for our webinar, click here.