Rules of procedural fairness in misconduct investigations

By Kathy Rumleski, Contributor

A professional regulatory body should not suspend a member’s licence before a hearing, even if the allegations against that person are extremely serious, says Toronto health lawyer Brooke Shekter.

Shekter, an associate with TTL Health Law, comments on a case involving a New Brunswick nurse who is under investigation by the RCMP for allegedly administering Oxytocin to pregnant women without their knowledge or consent, according to an article by the CBC.

The Nurses Association of New Brunswick “immediately suspended the licence of the nurse in question because of the seriousness of the allegations and because she was working at a second undisclosed facility,” the CBC article states.

Shekter says that the jurisdiction to suspend a licence of a health care professional before a hearing comes from the legislation, but that she does not agree with it.

“To allow a College to suspend a professional’s licence before a fair hearing is, in my opinion, completely contrary to the rules of natural justice and procedural fairness,” she says.

The CBC report says court documents suggest the alleged use of the Oxytocin caused adverse reactions including uncontrolled contractions, dangerous drops in fetal heart rates and emergency C-sections, among other claims.

Shekter, who frequently represents health professionals before their regulatory bodies, tells that in this case, the regulator appears to have information about the registered nurse that caused them to act promptly.

“Bear in mind that in this nurse’s case, the College may also be acting on additional information against her, so there is probably more going on than what’s stated in the article,” Shekter says.

However, she says what’s concerning is that the article suggests there was an immediate suspension in part due to the seriousness of the allegations.

“Even in an emotionally charged case like this, the regulator must still treat a member fairly,” ” says Shekter, who is not involved in the matter and comments generally.

“This is not to say what these women went through was not horrible," she says. "If these allegations are true, this is horrendous. But at this stage they are only allegations,” Shekter adds. “In my opinion, it is unfair and improper to suspend a licence, which sends the message that someone is guilty before the allegations have been proven. There has to be an unbiased hearing.”

The article says the Nurses Association of New Brunswick declined to comment, so it’s unclear how much weight they gave to the accusations when they suspended the nurse’s licence, she says.

If a hospital decides to suspend an employee that is one thing, but a regulator has an obligation to treat its members fairly, Shekter says.

The power of regulatory colleges to be able to suspend a licence immediately is a concern no matter how ugly the allegations are, she says.

To Read More Brooke Shekter Posts Click Here