The court held that the Council for Licensed Practical Nurses (the “Council”) was unreasonable in its approach to the assessment of the Respondent’s credibility and in its application of the standard of proof, holding that the evidence was not sufficiently cogent to safely sustain two of the complaints against the Appellant Nurse. However, the Council’s decision that the Nurse failed to maintain the ethical standards of practice of the profession was rationally supported by the evidence and it was not shown to be unreasonable.

Administrative law – Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Administrative decisions – Failure to provide adequate reasons – Evidence – Standard of review – Reasonableness simpliciter

Gillis v. Council for Licensed Practical Nurses, [2004] N.J. No. 187, Newfoundland and Labrador Supreme Court – Trial Division, May 20, 2004, Barry J.

The Council for Licensed Practical Nurses (the “Council”) suspended a Nurse’s licence after a Disciplinary Committee of the Council sustained complaints of physical abuse (complaint A), use of excessive force (complaint B) and of failing to maintain the profession’s ethical standards of practice (complaint C) with respect to the allegation that the Nurse had physically abused a 96-year old resident in a nursing home.

The court held that the standard of review on a judicial review from the Council’s decision was that of reasonableness simpliciter.

The court noted that disciplinary proceedings before the Council were subject to the civil standard of proof. However, within the civil standard, the cogency or persuasive force of evidence required to establish a preponderance of probability will vary depending on the seriousness of the allegations. A case such as this which alleges moral blameworthiness and threatens the Nurse’s ability to earn a living, required a degree of cogency commensurate with the allegations.

The court found that the Nurse provided a plausible explanation for the accusations of abuse which was not referred to in the Council’s reasons. This led to the inference that the Council did not consider it. Furthermore, the reasons of the Council were inadequate and did not demonstrate that it considered all relevant evidence. The Council failed to provide any finding or analysis on the doctors’ evidence regarding the lack of bruising on the patient and the evidence regarding the patient’s denial of abuse. The Council failed to address the plausible explanation of a misunderstanding as provided by the Nurse. The Council also failed to provide adequate reasons for finding that the Nurse was not credible. These critical omissions from the analysis led to the conclusion that the Council failed to consider relevant evidence. The Council did not show that the evidence met the clear and cogent test discussed in the authorities. Complaints A and B were therefore dismissed.

With respect to complaint C, the court held that in deciding whether the standards of practice and the Code of Ethics of the profession had been met was an area where the specialized expertise and experience of the Discipline Committee members should be respected. The evidence was uncontradicted that the Respondent restrained the patient by holding his arms while he was agitated and aggressive. This provided a tenable explanation for and supported the Council’s conclusions on complaint C. The court was therefore not satisfied that the conclusion with respect to complaint C was unreasonable.

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