Court case alleges bias and other mistakes in handling of complaint against nurse
Registered nurses association withdrew sanctions against nurse after case initiated
A nurse manager who went to court to overturn disciplinary action against her is arguing that the Registered Nurses Association of the Northwest Territories and Nunavut (RNANTNU) should have to pay her full legal costs because of how badly it handled a complaint against her.
The complaint was made by a nurse who was on duty during a short-staffed shift in 2018 at Stanton Territorial Hospital's obstetrics ward. The nurse alleged that manager Tracy Matesic created an unsafe work environment and a danger to the public by failing to properly staff the unit.
Because it was concerned about public safety, the association fast-tracked the complaint. It established an interim panel that, after an investigation, stripped Matesic of her managerial authority until the complaint could be fully dealt with. It notified nursing associations across Canada of the restriction.
But soon after Matesic went to court to overturn that decision, the association withdrew the restriction and retracted the report the interim panel produced to justify it.
In court on Thursday, Matesic's lawyer, Austin Marshall, argued the association should be ordered to pay Matesic's legal costs of about $160,000. The association is arguing that because it withdrew the sanction and report, saving the time and expense of holding a hearing, it should only have to pay about $6,000.
Problems with investigation
"Minds were getting made up very early on in the game that something was going to be done about Ms. Matesic," Marshall told the judge on Thursday.
He pointed to two emails the association's investigator sent to nurses who had been interviewed about the complaint. The emails were sent prior the interim panel reaching a decision. In one, Jan Inman, who is also the association's director of professional conduct, tells a nurse, "...it will be better by January 1, hang in there." In another she assures a different nurse, "there will be an outcome and there will be change."
In an affidavit, Matesic says she was not shown the letter of complaint against her or emails and other documents alleging wrongdoing by her until after the interim panel held a hearing on the complaint.
"A number of witnesses are unhappy about decisions I made about workplace matters of personal interest to them," said Matesic in the affidavit. "I have been given no opportunity to provide my account of what is being alleged against me."
Matesic says a summary Inman did of an interview with her includes "discrepancies of varying degrees of significance."
"Some of them record the opposite of what I said," she says.
According to a transcript of the interview, Inman said the short-staffed shift of July 6, 2018, that was the focus of the complaint "was a horrendous night shift based on everything that the nurses that were there said.
"I have not spoken to Dr. [Theresa] Hansen [the labour and delivery doctor working that night] but I plan to, and hear what she has to say about the way things unfolded."
There was no evidence that Inman actually interviewed Hansen, but Matesic's lawyer did as part of the appeal. In a letter about that night that was included in the appeal, Hansen wrote, "My memories of that shift is that everything went smoothly although remained very busy. I finished the shift feeling very satisfied that we had done a good job.
"The nurses I was working with were very competent and, although the circumstances were far from ideal, the patients were managed well."
Hansen continued, "I am saddened that a situation that I view as somewhat beyond any one individual's control has led to punitive action by RNANTNU."
In appeal documents, Marshall says that during the investigation, Matesic told the association that the obstetrics ward and other units at the hospital were gradually added to her responsibilities as a manager, but on the understanding she would not be responsible for scheduling or staffing. Marshall said it appears that information was never passed on to the interim panel.
Marshall also had an expert review the investigation. In his report, Scott Robertson cites numerous examples of bias in the investigation and says the association violated its own bylaws when dealing with the complaint.
Association says billing excessive
In court on Thursday the association's lawyer, Gregory Sim, said his client agrees that it is appropriate to pay a share of Matesic's legal costs but not all of them. Sim said the bill of costs submitted by Marshall is excessive.
Sim said that according to the bill Marshall submitted, he worked a total of 55 full days on the appeal. Sim said that is excessive considering the appeal never went to a hearing, because the association agreed to everything Matesic was asking for.
Sim pointed out that the law that establishes the association as the body to regulate nurses also protects it from being sued for incorrect decisions it makes, as long as they are not made maliciously or in bad faith. He said Marshall's arguments for costs amounts to "an end run" around that immunity.
If the court orders the association to pay the costs Marshall and Matesic are asking for, said Sim, it would have a chilling effect on the decision-making of other regulatory bodies. He said any decision on costs should be based on the appeal, not the association's investigation and adjudication of the complaint.
Justice Andrew Mahar said he wants to take some time to consider his decision on how much of Matesic's costs the association should pay.
Government considering expanding role of association
The criticism of the nurses association and its about-face on the complaint comes at a time when the Northwest Territories government is considering expanding the role of the association as the body responsible for regulating the nursing profession in the N.W.T.
As reported by Cabin Radio, the Department of Health and Social Services recently released a discussion paper that suggested there is broad support for expanding the association's membership to include licensed practical nurses and psychiatric nurses.
The discussion paper was a report on a combined effort of the association and the department to have all nurses governed by the same regulator. RNANTNU currently regulates registered nurses and nurse practitioners in accordance with the Nursing Profession Act.
Licensed practical nurses are currently regulated under a separate act, and psychiatric nurses are unregulated.
One of the main functions of registered nurses associations is to establish professional standards and discipline members who do not meet them to ensure the public is protected.
The public is also supposed to have a right to see that associations are performing that function. The Nursing Profession Act requires that disciplinary hearings be open to the public and decisions are posted on a public registry.
All provincial registered nurses associations have clear links on their web sites to disciplinary decisions. It is not as easy to find decisions against nurses in the N.W.T. or Nunavut.
There is no link to disciplinary decisions on the association website. Executive Director Denise Bowen said decisions are published in the association's quarterly newsletters. Though the decisions contain some details of the complaints, nurses are identified only by their registration number.
Bowen would not explain why the association does not identify nurses by name, but said the names can be found by entering the registration number in the 'Find a Nurse' search engine on the association's website. Search results show only a one-line summary of whether a nurse's registration is active, inactive or subject to any restrictions.