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HEALTH CARE PROFESSIONALS - Disciplinary proceedings - Findings - Professional misconduct - Appeal or judicial review - Particular professions - Nurses - Registered nurses

Thursday, December 28, 2017 @ 8:45 AM  

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Appeal by a registered nurse, Ahmed, from a finding of professional misconduct by a Discipline Committee of the College of Registered Nurses of Manitoba. In 2014, the complainant attended a hospital emergency unit following a domestic assault. She was examined by the appellant, obtained x-rays, consulted with a physician, and was released. Later that day, the complainant advised the hospital that the appellant had inappropriately touched her. Unhappy with the hospital's response, the complainant reported the matter to police and the College. At a disciplinary hearing conducted in 2016, the complainant testified that the appellant cupped her breasts and touched her labia. The appellant flatly denied any misconduct. The Discipline Committee concluded that the complainant was credible. Her account was accepted over the appellant's denial due to concerns with the appellant's testimony. The Discipline Committee found that the allegation of professional misconduct was established and suspended the appellant's registration for 18 months. The appellant appealed.

HELD: Appeal allowed. The Discipline Committee’s credibility findings were fundamentally flawed in two respects. The Committee failed to consider the reliability of the complainant's evidence when it assessed her credibility. The conclusion that the complainant was credible failed to consider numerous inconsistencies and memory issues which, taken together, demonstrated an absence of reliability. The Discipline Committee's assertion of credibility failed to meet the justification, transparency and intelligibility standard. In addition, the Discipline Committee used the complainant’s evidence of her prior consistent statements reporting her allegations to others for the improper purpose as evidence of truth of those reports. The inappropriate use of the complainant’s prior consistent statements rendered the Committee's decision, based on that evidence, unreasonable and unsafe. The finding of professional misconduct was unreasonable and was, with the penalty decision, set aside.

Ahmed v. College of Registered Nurses of Manitoba, [2017] M.J. No. 340, Manitoba Court of Appeal, W.J. Burnett, C.J. Mainella and J.A. Pfuetzner JJ.A., December 13, 2017. Digest No. TLD-December252017006