October 29, 2012

How human rights affect discipline for misconduct “caused” by addictions: the Wright case

Administrative Law
Human Rights
Professional Regulation

The ability of a professional regulatory body to discipline registrants for wrongs flowing from drug addictions, with attendant human rights requirements, came before the Alberta Court of Appeal in Wright v. College and Association of Registered Nurses of Alberta, 2012 ABCA 267 (September 18, 2012). The case raises important issues about how registrants can prove an addiction has caused misconduct, and when that will trigger human rights constraints. A majority of the court upheld discipline decisions where two nurses stole drugs from their hospitals, due to their addictions, and hid the thefts through falsified records. The majority found that the college’s decision to go through a discipline process, rather than an alternate process, was not prima facie discriminatory. A minority found, in a dissenting judgment, that the disciplinary panels erred by failing to find that discipline was prima facie discriminatory, and continuing a human rights analysis of the steps they imposed.

The majority and minority decisions in Wright illustrate two diverging approaches to proof of a causal link between addictions and misconduct, and resulting human rights implications.

Human rights – some background: Human rights legislation may require that professional regulatory bodies not unjustifiably discriminate against registrants. To decide if conduct unjustifiably discriminates, a two-step analysis applies. In a discipline context, those two steps might be described as consisting of two questions. Is a burden imposed prima facie discriminatory? If yes, is the burden justifiable?

If a college imposes a burden (e.g., discipline), it may be prima facie discriminatory if a person with a protected personal characteristic (e.g., persons with a “physical or mental disability”) faces a burden, obligation or disadvantage not imposed on others. Although prima facie discrimination can arise through direct discrimination (e.g., imposing a burden based on a protected characteristic), it can also arise through a “neutral” rule that results in an adverse impact on people with protected characteristics. In an addictions context, discipline that occurs “equally” without regard to whether misconduct arises from a physical or mental disability may be prima facie discriminatory if, as a result, a college acts to discipline addicts for involuntary misconduct, as well as to discipline addicts and non-addicts for voluntary misconduct.

A registrant who alleges discrimination must show that a protected characteristic (e.g., an addiction) was a cause of the misconduct. If it was not, the registrant is not, in essence, being disciplined for her disability. But if a registrant is disciplined for misconduct caused in part or in whole by a physical or mental disability, the discipline is prima facie discriminatory – and the second step is to ask if the discipline is justifiable (e.g., if the discipline is reasonably necessary to accomplish a good faith purpose or goal that is rationally connected to the body’s function, such as protecting the public).

Deciding if a person’s misconduct is culpable or non-culpable often arises in a labour relations context. For example, see the B.C. Labour Relations Board decision in Fraser Lake Sawmills Ltd. (Re), BCLRB B390/2002, [2002] B.C.L.R.B.D. No. 390 (Mullin, Fleming, Hansen, Brown, Junker):

[38] … At one end of the spectrum, the addiction compels or drives the grievor’s behaviour to the extent of the grievor in effect having no control (at least control which should attract discipline) over his or her actions.  At the other end of the spectrum there is addiction, but it is found to not have a causal link to the workplace misconduct.

[39] In between these two ends of the spectrum are what could be termed hybrid facts and cases.  In the hybrid context, there is addiction which is directly related to or has a causal connection to workplace misconduct by the employee, but the addiction is not of such a nature so as to remove the grievor’s control or exercise of choice in respect to the misconduct.  In this hybrid context, there is thus a mix of causes, a mix of addiction driven conduct (i.e., non-culpable conduct) and voluntary conduct (i.e., culpable conduct). (emphasis added)

As the LRB noted in Fraser Lake Sawmills, “[42] …that there is little real debate that, at some point, an employee should not be held responsible (in a culpable sense) for work related misconduct resulting from an addiction. The issue is how that should be determined….”

In this context, the Alberta court decided Wright.

The facts: The Wright decision involved two different nurses, Ms. Helmer and Ms. Wright.

Helmer was a charge nurse with an opioid dependency. The college determined that she stole narcotics and covered the thefts through false records and false entries. A psychiatrist specializing in addictions testified that Helmer’s addiction was “the most likely explanation for her behaviour in stealing narcotics.” [9] The tribunal accepted a connection between Helmer’s addiction and her behaviour, [11] yet concluded that, “There was volition, planning and choices made by Ms. Helmer. While there is some connection no doubt, it is not the mental or physical disability that is the issue in Ms. Helmer’s case, it is the theft and fraud.” [12] The tribunal reprimanded Helmer, directed treatment for her addiction and suspended her registration, but allowed her to apply immediately for supervised practice, give that she had already complied with the rehabilitative parts of the order. An Appeals Committee agreed that Helmer’s conduct was “not entirely caused by addiction, but also reflected an element of choice.” [18]

Similarly, Wright was a “clinical leader” responsible for narcotic inventory. The college determined that she stole Percocet approximately 200 times. An Agreed Statement of Facts in her case attached an opinion letter from a doctor stating Wright suffered from opioid dependence, and her behavior was “entirely due to her untreated Opioid Dependence”. The Appeals Committee concluded that the tribunal had implicitly rejected the evidence of the addiction being the sole cause of her conduct. [25] The Court of Appeal noted “there was other evidence to show that Wright knew what she was doing, and acted at least partly with volition.” [25] The tribunal reprimanded Wright, suspended her ability to practice until she provided satisfactory medical proof of her addiction being sufficiently controlled, and placed conditions on her further employment.

In both cases, the Appeals Committees found against the thefts being solely caused by addiction. [59-60; 62] In both cases, the Appeal Committee decided that to be discriminatory, treatment must be “arbitrary,” which disciplining for criminal conduct was not. [18 and 26]

The decision of the majority [Justice Slatter]: After dealing with two issues concerning the admissibility of evidence concerning the College’s policies on dealing with nurses with addictions, and concerning how other regulatory bodies deal with members suffering from addictions, [36-40] the majority concluded the college did not improperly decide to seek discipline, and this result was not changed by the human rights dimension to the charges. [46] The power of the college to invoke its disciplinary regime was analogous to “prosecutorial discretion” [47] and any error had to approach an abuse of process to invite judicial intervention. [47] The human rights analysis of the majority did not address the disciplinary decision of the tribunal; it addressed the college’s decision to proceed with discipline at all: “The question, however, is whether the College’s conduct (in laying professional misconduct charges) is legally connected to the appellant’s disability, so as to raise the College’s conduct to the level of discrimination at law.“[57] (emphasis added) After noting findings below that the registrants’ disability ‘did not play any role in the decision to proceed with the prosecution,” [62] the majority restated its conclusion that “[t]he decision to lay professional disciplinary charges, and the subsequent finding of misconduct, were not motivated by the appellants’ addiction, but rather by their conduct.” [67] The court did not find any prima facie discrimination, [68] although it went on to decide that a discriminatory decision to invoke disciplinary procedures [70] could be justifiable through sufficient accommodation in the sanctions imposed. [74]

The majority notably concluded that the Agreed Statement of Facts did not establish Wright’s addiction as being the sole cause of her misconduct, despite an Agreed Statement of Facts, on the basis the expert report was merely “attached” to the Agreed Statement of Facts. [59] The majority treated the report as mere testimony, which the tribunal could reject in order to find an element of volition by Wright. [59-60] The majority went so far as to take respondent’s counsel as “conceding” a volitional element to the misconduct. [60] [Editorial note: Respectfully, this characterization seems questionable, since any concession that Wright had the mental capacity to make certain decisions at certain steps was presumably not intended to detract from the main submission that Wright’s addiction was, nonetheless, the cause of her misconduct.]

The decision of the minority [Justice Berger]: The minority pointed out, with respect to Wright, that the tribunal accepting the agreed statement of facts [81], and despite having accepted the medical evidence, [82] it went on to characterize Wright’s behaviour as “systematic,” “deliberate,” “intentional” and “motivated” by her addiction rather than caused by it. [82] Wright’s tribunal then went on to decide against prima facie discrimination because she was treated no differently than nurses who do not have disabilities, but who also violated professional standards [84]. Similarly, Helmer’s tribunal decided against prima facie discrimination because Helmer was treated the same as nurses not suffering from a disability who steal. [87] The minority later noted that the key question for prima facie discrimination is “whether neutral performance standards have a disproportionately adverse impact on a nurse suffering from a disability, namely an addiction, which causes her to steal narcotics.” [116] The equal application of the standard discriminated “because it affects Ms. Wright and Ms. Helmer, persons with a disability of addiction ‘differently from others to whom it may apply’….” [123]

The minority also found that the Appeals Committee held, in addressing Wright’s matter, that a human rights analysis only applies if the prohibited ground is the sole reason for a nurse’s misconduct and there is no other contributing factor. [84] Under established human rights principles, a prohibited ground need only be a factor in the adverse treatment. [121]

As a result, the minority concluded that both tribunals “erred in not conducting a human rights analysis. They failed to appreciate the nature of adverse effect discrimination, failed to appreciate that the prohibited ground does not have to be the sole ground for the adverse treatment before a human rights analysis is engaged and failed to treat the Appellants’ addiction as a disability.” [125] The minority would have ordered the matters remitted to the Appeals Committee to address the duty to accommodate.

It is important to note that the minority’s approach would not necessarily lead to a different result from what the tribunals ordered (e.g., a reprimand and a suspension subject to proof of rehabilitation, and practice with conditions).  The issue was the tribunals failing to properly recognize prima facie discrimination, and to assess if they were properly accommodating the registrants’ disabilities by only pursuing measures reasonably necessary to achieving the college’s goals.

Wright v. College and Association of Registered Nurses of Alberta, 2012 ABCA 267 (September 18, 2012).