Appeal Board Upholds Defence of Jurisdiction for Professionals in Non-Therapeutic Roles.

by Grant Ferguson | Aug 31, 2021

2021 CanLII 7968 (ON HPARB)

The Ontario Health Professions Appeal and Review Board (“HPARB”) has upheld a rare defence and approach to defending professionals in matters before their professional colleges.  In a case successfully defended by Stieber Berlach at both the College of Nurses (“CNO”) and HPARB, this 2021 decision sustained the ability of the defence to challenge complaints on the basis of jurisdiction when the professionals are serving in non-traditional roles.

The underlying facts concern a member of the CNO employed by a health unit in the role of a public health nurse.  In that role, the nurse was part of an investigation generated by the health unit into the Applicant’s practice.  After receiving a complaint from a member of the public, the nurse conducted an inspection of the Applicant’s practice in 2017.  Following that inspection and its conclusions, a section 13 Order requiring certain actions around cleaning, disinfection and sterilization was delivered by the nurse.  The Applicant took issue with the nurse’s investigation, the lack of due process and sought to challenge the nurse’s professionalism at the CNO.

The Applicant raised eleven areas of the investigation he wished to challenge.  As against the nurse as principal investigator in the investigation, the Applicant sought recompense from the nurse’s College for these issues.  The Applicant wished her to lose her license or her ability to continue in her public health role.  In arguing this, the Applicant tied his concerns back to the nurse’s professional knowledge and awareness of infection prevention protocols, specifically.

The Applicant actively participated in the College investigation, supplying information in interviews and submissions on how this investigation had impacted his practice and the publicity surrounding it.

In the underlying CNO defence, the approach taken was to focus on the unique role of the nurse outside of the traditional “nurse-patient relationship”.  The defence raised the issue that the Applicant’s concerns exclusively occurred within the nurse’s “administrative and investigative duties” as a public health nurse. This distinguished her role, which had an adversarial component inherent in it, from more traditional roles in patient care.  As there was a separate statutory regime responsible for this administrative and investigative function (in this case, the Health Protection and Promotion Act (the “HPPA”)), any concerns the Applicant raised lay outside of the jurisdiction of the College even to investigate.  This warranted a rare summary dismissal at the CNO.

The College saw merit in this argument and issued a Notice of Intention to Take No Action in regards to the complaint.  The Applicant took the position that as a public health nurse, there were nursing duties inherent in the nurse’s position.  There were necessary overlaps between nursing knowledge and skills and the administrative and investigative function of a public health nurse that could not be separated.

The submission of defence counsel was that the nurse was clearly working within an administrative role (similar to a Director of Care) under the jurisdiction of a health unit with its own statutory regime regulating.  In that, even with an overlap of knowledge or skill, the nurse’s duties and standards did not lie with the College to assess.  They more correctly lay through the employer’s regulatory regime (in this case the HPPA).  Choice of regulatory regime was important to avoid a multiplicity of decisions, the potential for conflicting standards and to ensure a consistent approach across different venues.  The only way to do that was for the employer’s regulatory regime to prevail.

The College accepted this argument and dismissed the complaint without further investigation.

On appeal to the HPARB, the Applicant argued that both the reasonableness of this approach and the adequacy of the investigation to the point of that decision should be challenged pursuant to s. 33(1) of the Health Professions Procedural Code (the “Code”).

The standards of review at the HPARB involved the adequacy of the investigation and the reasonableness of the CNO’s conclusion pursuant to s. 33(1) of the Code.

On the adequacy of the CNO’s investigation, the Applicant raised additional information about the underlying health unit investigation that he offered to the HPARB.  He raised these concerns to support the argument that if the CNO had investigated further, they would have had concerns with the nurse’s practice.  The Applicant argued that the CNO’s investigation and choice to take summary measures without a more thorough investigation was inadequate.

In successfully defending this point, we argued that all the “new” materials had been available to the Applicant at the time submissions were made before the College.  These materials, even if presented at the time, further bound the nurse to the more administrative and regulatory role that lay under the HPPA regime.  The proper standard was not whether all relevant material was available to the CNO, but whether the CNO had “adequate information” to make the conclusion it did.  On that standard, the CNO’s investigation was adequate.

The HPARB accepted defence counsel’s position.  It concluded that the CNO did obtain the necessary information “adequate” to make the abuse of process determination under the Code.  It was accepted that all the CNO needed to do was to conduct enough of a review “to conclude that the [Applicant’s] complaint fell within the abuse of process provisions under section 26(4) and (5) of the Code.” [para 30].  A full investigation was not required under this standard, so the investigation that led to the summary determination was adequate.

The Applicant then argued that the CNO’s decision to dismiss his complaint was unreasonable.  He argued that there was overlap in nursing knowledge in any administrative position and particularly with health standards were in issue.  He challenged the nurse’s knowledge and professional practice, specifically the infection prevention and control standards which were inherently nursing related.  Given that a public health nurse was still a nurse, the College’s decision to summarily dismiss was unreasonable without a full investigation and review.

Defence counsel countered that the complaints made, even if proven, tied the matter back to the adequacy of an investigation under a different statutory regime (the HPPA).  The nurse was acting within a statutory defined role under the HPPA and using powers granted to her by that statute.  The actions in issue did not relate to care.  Even if the issues were an “emergency”, the nurse’s role remained “administrative and investigative” in nature, making the College’s decision reasonable.

The HPARB again sided with the defence.  The HPARB held that the concerns articulated by the Applicant “occurred in the context of the Respondent’s administrative and investigative duties as a public health nurse.”[para 41] As such, the information before the Committee did not give rise to concerns about the Respondent’s nursing practice.

The HPARB accepted as well that the focus of concerns fit within the parallel statutory regime.  These should be resolved under that parallel process and not at the professional colleges.  The HPARB accepted the defence argument that jurisdiction can be successfully argued to protect professionals in administrative, investigative or non-traditional roles.

This decision upholds the rarely used defence of jurisdiction.  For professionals working in non-therapeutic roles, there are often conflicting duties of care that may be at odds with the interests those who are the subject of an investigation.  These professionals are particularly vulnerable to attack by complainants wishing to challenge the underlying investigation.  Such professionals can be targeted by those hoping to circumvent other regimes or wishing to punish them personally by limiting their professional licenses.

Our successful defence supports a rarely argued path forward to protect such professionals from these attacks both at their Colleges and then on subsequent appeal.  The HPARB, which oversees all regulated health professional colleges in Ontario, has sustained this jurisdictional approach as a valid defence to protect health professionals working in administrative and investigative roles.