JESSICA J.V. MCCULLOCH APPELLANT - v. -, 2023 SKKB 203

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 203 Date: 2023 09 25 Docket: QBG-RG-01034-2022 Judicial Centre : Regina BETWEEN: JESSICA J.V. MCCULLOCH APPELLANT - and - INVESTIGATION COMMITTEE OF THE SASKATCHEWAN REGISTERED NURSES ASSOCIATION RESPONDENT Counsel: Brandi M. Rintoul for the appellant Roger J.F. Lepage and Titli Datta for the respondent JUDGMENT LAYH J.

SEPTEMBER 25, 2023 THE APPEAL [ 1 ] Jessica McCulloch appeals the decision of the Discipline Committee of the Saskatchewan Registered Nurses Association [SRNA] that found her guilty of professional misconduct respecting 8 of a total of 20 charges (including sub-charges) brought against her. THE CHARGES AND FINDINGS OF THE DISCIPLINE COMMITTEE [ 2 ] The formal charges against Ms.

McCulloch, as found in the “Notice of Hearing of Complaints” served upon her on January 29, 2020, include allegations of misconduct from March 2015 to April 2016 while she was employed at the Regional Psychiatric Centre [RPC] in Saskatoon, Saskatchewan (Charges 1 to 6) and from April 2016 to April 2019 while she was employed at the Saskatchewan Hospital at North Battleford, Saskatchewan [Sask Hospital] (Charges 7 to 10).

The charges and the ultimate findings of the Discipline Committee are as follows (Decision of the Discipline Committee of October 25, 2021 [Decision] at pages 2-6): Charge Number 1 …[O]n or about March 13, 2015 …[y]ou completed a medication return form on which there were two entries for acetaminophen with Codeine 30 mg tablets (Tylenol #3). One entry listed five tabs while the other listed 49 tabs for a total of 54 tabs. The 54 tabs of Tylenol

#3 were not received by the pharmacy. You could not provide an explanation as to the disappearance of the Tylenol #3. The missing narcotics were never recovered. You failed in your obligation to properly secure and return the narcotics as required by the standards of the SRNA. NOT GUILTY Charge Number 2 …[O]n October 4 and 5, 2015…[y]ou were the RN on shift when 40 acetaminophen with codeine 30 mg tabs belonging to a Churchill Unit patient went missing.

On October 4, 2015 at 2210 hours, you documented on the Narcotic Administration Record “wasted rack fell, meds stepped on” and you proceeded to change the documented count from 40 to 0. You did not sign the Narcotic Administration Record nor did you have another RN co-sign that the narcotics had been wasted. You failed to follow the proper procedure to account for drug wastage. You changed your explanation during the investigation. You failed to honestly account for the missing drugs.

There was no evidence that the drugs had been wasted as you stated. you failed in your obligation to properly secure and account for the drugs under your control. You failed to properly account for the drugs and the missing medication card. GUILTY Charge Number 3 …[O]n or about January 20, 2016…[y]ou received a card from an inmate stating, “Sorry I pissed you off this morning.

I was only joking and didn’t realize that you were stressed out. “My bad!” If you aren’t getting anything good, just steal a few days worth of mine. (It should make you fell better!) I think you’re an awesome nurse and don’t want to add to any stressors.” You failed to establish and maintain appropriate professional boundaries with patients, including the distinction between social interaction and therapeutic relationship. You shared private and personal details about yourself with inmates. Your conduct put you and your coworkers and patients at risk of harm.

NOT GUILTY Charge Number 4 …[O]n or about January 21, 2016 … [a]n Autopak roll consisting of nine 150 mg tablets of Wellbutrin prescribed to a patient recently admitted were found in the front foyer of the Bow Unit. You were asked how this medication ended up in the front foyer and you stated, “I have no idea, but those are the medications I just put in the return bin this morning.” Later that day, you told your nursing supervisor that “I realize what happened. They must have been stuck to my butt. You know the Velcro on the back of the CPR masks.

It must have stuck to that on my belt and fallen off in the foyer when I went for my break.” A witness viewed video footage that confirmed that you had been in the foyer where the medications were located, four minutes before the medication had been found. You failed to properly secure and account for drugs as required by the SRNA standards. NOT GUILTY Charge Number 5 …[O]n February 26, 2016…[y]ou falsely documented the administration and wastage of narcotics and then wrote the name of a correctional officer as a witness to the wastage.

You failed to follow the appropriate standards in relations to the administration of narcotics as well as to account for narcotics and/or wastage. You falsely documented on the Narcotic Administration Record the name of a person who did not witness the alleged wastage of a narcotic. You administered double the dose that had been prescribed. Your actions have potentially contributed to the underground economy of the drug trade among the inmate population at RPG. This can increase the propensity for violence and unrest by creating and sustaining the black market currency in the institution.

GUILTY Charge Number 6 …[B]etween the dates of March 13, 2015 and April 4, 2016…[y]ou failed to recognize that you were unfit to practice nursing, to remove yourself from working as an RN and, contrary to the Code of Ethics, to advise your employer that you were unfit to practice nursing. NOT GUILTY Charge number 7 ..[O]n April 29, 2016…[y]ou failed to advise your potential employer that you were suffering from a longstanding mental health diagnosis that may impact your fitness to practice as an RN. NOT GUILTY Charge Number 8 …[B]etween the dates of January 1, 2019 and April 25, 2019…: (

a) You carried on your person and consumed personal medication in front of patients; NOT GUILTY

(

b) You brought contraband items such as Q-tips® and newspapers for specific patients onto the corrections unit; GUILTY (

c) You brought inappropriate movies rated 18A/R for patients without approval of the health care team and employer; NOT GUILTY (

d) You consumed patient canteen products contrary to the training provided by our employer; NOT GUILTY (

e) You completed a patient’s puzzle in his absence knowing that it would be upsetting to the patient and stated that you were doing it just to “piss him off; GUILTY (

f) You would make and leave sticky notes with confidential patient information in an area shared with non-medical staff who did not have the right to know about this confidential patient information; NOT GUILTY (

g) You failed to maintain a proper therapeutic patient relationship with patients by making inappropriate jokes with patients regarding conducting cavity searches. NOT GUILTY Your behavior put you, the patients and other staff at risk by compromising the safety of the unit. Charge Number 9 [B]etween the dates of April 9 and 10, 2019…[y]ou failed to meet the SRNA Standards and Foundation Competencies and the Standards and Policies and Procedures of your employer, the Saskatchewan Health Authority as follows: (

a) You provided canteen privileges to patients who had lost their privileges; GUILTY (

b) You provided a patient with his canteen privileges in a cup hidden by a rubber glove and allowed the patient to proceed to his room; GUILTY (

c) You failed to be truthful with your work colleagues about providing the canteen privileges to two patients; GUILTY (

d) You untruthfully charted the events surrounding the provision of canteen privileges to these two patients by altering the time stamp on the chart and falsifying the chart; and NOT GUILTY (

e) Your interaction with these two patients violated your obligation to maintain a therapeutic relationship with patients. GUILTY Charge Number 10 [B]etween the dates of January 1, 2019 and April 29, 2019…[y]ou failed to recognize that you were unfit to practice nursing, to remove yourself from working as an RN and, contrary to the Code of Ethics, to advise your employer that you were unfit to practice nursing.

NOT GUILTY [ 3 ] Given the findings of professional misconduct, the College of Registered Nurses of Saskatchewan imposed the following penalty at pages 17 to 19 of its Penalty Decision of March 25, 2022: 35. The Discipline Committee makes the following Order: 1. Pursuant to section 31(1)(

b) of the Act, Jessica McCulloch shall be suspended and remain suspended until the following conditions are met: (

a) Ms. McCulloch shall provide a report or reports to the Registrar from her treating psychiatrist (and her treating psychologist) if any which reports shall address the following: (

i) Confirmation that Ms. McCulloch’s mental health has been stable for at least twelve consecutive months prior to the date of the report;

(ii) Confirmation that Ms. McCulloch has complied with the treatment recommendations regarding her mental health disorder including regularly attending office visits, participating in recommended programing and taking medication as prescribed for at least twelve months prior to writing the report. (iii) Whether Ms. McCulloch’s mental health is such that she is capable or returning to the practice of nursing safely, competently and without risk of harm to patients. (

b) In addition to a report or reports from her treating psychiatrist and/or treating psychologist if any, Ms. McCulloch shall undergo a neuro-psychological assessment by a qualified psychologist who will conduct a comprehensive evaluation of her cognitive abilities and cognitive functioning. Arising out of the assessment, the psychologist shall produce a report addressing whether Ms. McCulloch has the cognitive abilities and cognitive functioning to safely and competently practice as a nurse. Ms. McCulloch shall bear any and all costs of the assessment and report. 2. Pursuant to section 31(1)(

c) of the Act and upon reinstatement and commencement of registered nursing employment: (

a) For the first 480 hours of practice, Ms. McCulloch shall not practice nursing unless she is under the direct supervision of a registered nurse or registered psychiatric nurse. (

b) For the next 500 hours of practice, Ms. McCulloch shall be under the indirect supervision of a registered nurse or registered psychiatric nurse. (

c) For a period of one year, Ms. McCulloch shall be restricted from practicing nursing in the corrections system. (

d) For so long as Ms. McCulloch holds a practicing license, she shall not, at any time have access to nor administer substances listed in the Controlled Drugs and Substances Act, the Regulations under that Act and those listed in the Prescription Review Program of the College of Physicians and Surgeons unless she is under the direct supervision of another registered nurse or registered psychiatric nurse. (

e) For a period of one year, Ms. McCulloch shall not assume any overtime hours or serve in a supervisory role in any nursing environment. 3. Ms. McCulloch’s nursing employer shall file with the Registrar written performance reviews confirming Ms. McCulloch’s professional competence and professional conduct. Any unfavorable reviews shall be reported by the Registrar to the Investigation Committee. Performance reviews shall be provided at the following increments: (

a) After 240 hours of RN practice (

b) After 480 hours of RN practice (

c) After 960 hours of RN practice (

d) After 1500 hours of RN practice (

e) After 2000 hours of practice 4. Pursuant to section 31(1)(c)(ii) of the Act and within 60 days of commencing nursing employment, Ms. McCulloch shall complete the Code of Ethics online learning modules and provide proof of completion to the Registrar. Ms. McCulloch shall bear the costs if any of these online courses. 5. Ms. McCulloch shall provide a copy of this decision to all prospective nursing employers prior to the commencement of her employment and provide written verification to the Registrar that she has done so. 6. Pursuant to section 31(2)(a)(ii) of the Act, Ms.

McCulloch shall pay the costs of the investigation and hearing fixed in the amount of $50,000.00. Such costs shall be paid on or before April 1, 2026. Failing payment on April 1, 2026, Ms. McCulloch’s license, if any, shall be suspended until payment is made pursuant to section 31(2)(

b) of the Act. THE PROCEDURAL HISTORY [ 4 ] The discipline proceedings relate to allegations of misconduct beginning in 2015 and include an extensive (and expensive at $537,000.00) procedural history, summarized as follows: (

a) a hearing over 14 days, including one in-person session from September 21, 2020 to September 25, 2020 and two video conference sessions, the first from October 19, 2020 to October 23, 2020, and the second from February 8, 2021 to February 11, 2021; (b) 42 witnesses, 27 called by the Investigation Committee and 15 called by Ms. McCulloch; (

c) extensive documentary evidence filling five three-ringed binders; (

d) lengthy briefs of law filed in support of arguments on April 14, 2021; (

e) a decision of the Discipline Committee on October 25, 2021, with findings of “guilty” and “not guilty” respecting the charges; (

f) a penalty hearing on December 15, 2021; (

g) a Penalty Decision of the Discipline Committee of the College of Registered Nurses of Saskatchewan on March 25, 2022;

(

h) a notice of appeal filed April 22, 2022; and (

i) a hearing before me on June 28, 2023, when I ordered counsel for Ms. McCulloch to file pinpointed references to the transcript. A FACTUAL BACKGROUND Ms. McCulloch [ 5 ] Ms. McCulloch was born September 5, 1979, making her between the age of 35 and 39 at the time of the allegations against her. She has been a member of the SRNA since July 24, 2009. Her employment began at the RPC on September 9, 2009. On June 19, 2011, she was involved in a serious hostage taking at the RPC, after which she was on leave from June 20, 2011 to September 8, 2011. After a period of leave and accommodations, Ms.

McCulloch was placed on indefinite leave on April 4, 2016. Her employment was terminated effective January 20, 2017. [ 6 ] The Discipline Committee received medical reports from registered doctoral psychologists, Dr. Hicks and Dr. Vandergoot, authored in 2011, 2013 and 2017, which confirmed a diagnosis that Ms. McCulloch had experienced post traumatic stress disorder [PTSD] arising from the hostage taking in 2011. The Discipline Committee also received testimony from psychologists, Dr. Arnold and Dr. Rai. The Discipline Committee accepted that Ms.

McCulloch experienced PTSD and described it as a “mental health disorder and a disability.” [ 7 ] Charges 1 to 6 relate to Ms. McCulloch’s period of employment at the RPC. Charges 7 to 10 relate to her period of employment at the Sask Hospital, which began on April 26, 2016 and continued into a newly opened facility in November 2018. On April 25, 2019, Sask Hospital suspended Ms. McCulloch pending an investigation regarding allegations set out in charge 9, which concluded with a four-day unpaid suspension. The nursing unit manager at Sask Hospital, Diana Duncan, laid a complaint with the SRNA on May 3, 2019.

On March 18, 2020, Ms. McCulloch signed a Voluntary Non-Practice Agreement with the Investigation Committee, agreeing to surrender her nursing license. The Regional Psychiatric Centre [ 8 ] The RPC is a forensic mental health facility, opened in 1978 to accommodate 178 offenders with three levels of security. The population mainly includes patients serving more than a two-year sentence, some serving indeterminate sentences. Staff includes psychiatrists, nurses, social workers and correctional officers. At the time of the discipline hearing, RPC employed 58.5 registered nurses. [ 9 ] The RPC is highly secured.

Staff carry a GPS panic button. Patients are accommodated in five units, the largest being the Bow Unit, a facility with 100 male offenders, described as tough and hectic with demanding and difficult offenders. Nurses work a 12-hour shift. They administer narcotics and controlled drugs. Each unit has a “control post” or “bubble,” a locked room surrounded by plexiglass. This room contains a locked safe or vault, accessible by a password or a dial and a return tote used to keep medications that are to be returned to the regional pharmacy in Saskatoon.

Sask Hospital [ 10 ] Sask Hospital has 293 beds, including an integrated corrections unit accommodating patients who are serving sentences of two years less a day, or are on remand and have been sent for psychiatric assessment. Charges 7 to 10 relate to Ms. McCulloch’s employment in the East Prairie View unit which accommodated 11 male patients. Ms. McCulloch’s training included instruction about contraband items, recognition of manipulation by patients, and patients’ canteen privileges. GROUNDS OF APPEAL AND RESULTANT ISSUES [ 11 ] Ms.

McCulloch’s notice of appeal includes 22 wide-ranging and often repetitive grounds, which her counsel later consolidated in her factum, and respecting which (as I instructed) she later provided pinpoint references to the transcript. Counsel for the SRNA was permitted to respond to these pinpoint references. After receiving Ms. McCulloch’s 22 grounds of appeal, the SRNA further simplified what it understood to be the broad basis of Ms.

McCulloch’s appeal, namely whether the Discipline Committee had erred in law, or in mixed findings of law and fact, or in findings of facts (as well as whether the penalty was reasonable). [ 12 ] Given these differing approaches, I have attempted to identify the issues I must resolve under the headings of each offence. Then, concerning each offence (2, 5, 8(b), 8(e), 9(a), 9(b), 9(

c) and 9(e)), I have distilled what Ms. McCulloch has alleged is subject to appellate review. JURISDICTION AND STANDARD OF REVIEW [ 13 ] This statutory appeal gains jurisdiction before this Court from s. 34 of The Registered Nurses Act, 1988, SS 1988-89, c R-12.2 [ RN Act ]. It states: 34(1) A nurse who has been found guilty by the discipline committee or who has been expelled pursuant to

section 33 may appeal the decision or any order of the discipline committee within 30 days of the decision or order to: (

a) the council by serving the executive director with a copy of the notice of appeal; or (

b) a judge of the court by serving the executive director with a copy of the notice of appeal and filing it with a local registrar of the court. [ 14 ] The standards of review on a statutory appeal from an administrative tribunal are the same as those on other appeals: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 49 , [2019] 4 SCR 653 [ Vavilov ]. The Alberta

Court of Appeal in Al-Ghamdi v College of Physicians and Surgeons of Alberta, 2020 ABCA 71, 6 Alta LR (7th) 42 [Al-Ghamdi]provided a statement that explains standards of review, covering all appellate circumstances. It wrote as follows: [9] …Those standards of review can be summarized as follows: (

a) conclusions on issues of law are reviewed for correctness: Housen v Nikolaisen, 2002 SCC 33 at para. 8, [2002] 2 SCR 235. Thatincludes questions of statutory

interpretation, including

interpretation of the tribunal’s “home statute”. (

b) findings of fact, including inferences drawn from the facts, are reviewed for palpable and overriding error: Housen at paras. 10,23; H.L. v Canada (Attorney General), 2005 SCC 25 at para. 74, [2005] 1 SCR 401. (

c) findings on questions of mixed fact and law call for a “higher standard” of review, because “matters of mixed law and fact fallalong a spectrum of particularity”: Housen at paras. 28, 36. A deferential standard is appropriate where the decision results more from aconsideration of the evidence as a whole, but a correctness standard can be applied when the error arises from the statement of the legaltest: Housen at paras. 33, 36. (

d) issues of fairness and natural justice are reviewed, having regard to the context, to see whether the appropriate level of “dueprocess” or “fairness” required by the statute or the common law has been granted: Vavilov at para. 77. (

e) the test on review for bias is whether a reasonable person, viewing the matter realistically and practically, and after having obtainedthe necessary information and thinking things through, would have a reasonable apprehension of bias. [15] The Supreme Court of Canada, at para. 29 in Law Society of Saskatchewan v Abrametz, 2022 SCC 29, 470 DLR (4th) 328 recently stated the appropriate appellate standard of review from decisions by administrative tribunals: [29] This case is a statutory appeal pursuant to The Legal Profession Act, 1990 [SS 1990, c L-10.1].

Therefore, the standard of reviewis correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law. … DISCUSSION Charge 8(b): Strict Liability or Mens Rea Offences? General Principles [16] Whether someone’s alleged wrongdoing will trigger a finding of professional misconduct may depend on thecharacterization of the wrongdoing, whether an absolute liability offence; a strict liability offence; or an offence requiring a mentalintention, a mens rea offence. All three offences minimally require proof of

an act or omission. Respecting an absolute liability offence,that is all that is required. Respecting a strict liability offence, once the wrongful or unprofessional act or omission has been proved, thealleged wrongdoer may establish a reasonable excuse for the act or omission, for example by having exercised due diligence or havinghad a reasonable belief in a mistaken set of facts.

A mens rea offence requires proof of the act as well as the mental element of intention. [17] Canadian jurisprudence has consistently stated that disciplinary proceedings are regulatory and, accordingly,generally are strict liability offences: Riccioni v Law Society of Alberta, 2015 ABCA 62, 599 AR 335.

The basic reason for this principlelies in the difficulty professional discipline committees would have if, in their mandate to protect the public, they had to face theevidentiary burden of proving the wrongdoer’s intention. [18] The SRNA accepts that in certain circumstances an allegation of professional misconduct may require proof ofintention. The SRNA suggests that in determining whether a charge of professional misconduct attracts a mens rea standard or the usualstrict liability standard can be taken not only from the nature of the charge, but also from the governing legislation.

Respecting theimportance of the governing legislation, the SRNA, quoting from para. 61 of R v Sault Ste.

Marie, (SCC), [1978] 2 SCR1299, states that a mens rea offence is found “only if such words as “wilfully”, “with intent”, “knowingly” or “intentionally” arecontained in the statutory provision creating the offence.” The SRNA points out that the RN Act, which creates the offence ofprofessional misconduct and describes what constitutes such conduct, does not contain words such as “wilfully,” “intentionally” or“knowingly.” [19] Respecting the importance of the wording of the charge (as opposed to the governing legislation), the SRNA candidly cites Phillips v Law Society of Saskatchewan, 2021 SKCA 16, 456 DLR (4th) 469.

There the court stated that if a charge (notnecessarily the statute) is worded in a manner that hinges on a finding of intention, then the intention must be proven before guilt isestablished. The court wrote at para. 59: [59] …The touchstone of such analysis is whether there is inserted into the charge any words that would indicate the conductunbecoming hinged on a finding of intention.

In Merchant 2014 [2014 SKCA 56, [2014] 6 WWR 643], the Court clarified that “theabsence of such words [denoting intention] is not determinative if the nature of the charge and the circumstances as a whole neverthelesslead to the conclusion mens rea is required” (at para 70). [Emphasis in original] [20] The Discipline Committee ruled that charges 2, 5 and 9 were mens rea offences. All others were strict liability,including charges 8(

b) and 8(e). Ms. McCulloch disagrees and states that charges 8(

b) and 8(

e) are mens rea offences because charge8(

b) states that she gave Q-tips to “specific patients” and charge 8(

e) states that she completed the patient’s puzzle “knowing that itwould be upsetting to the patient.” The Discipline Committee’s Finding Respecting Charge 8(b)

[ 21 ] The seven sub-charges under charge 8 alleged that Ms. McCulloch’s behaviour “put [her], the patients and other staff at risk by compromising the safety of the unit.” Ultimately the Discipline Committee found Ms. McCulloch guilty of sub-charge 8(

b) and 8(e). The Discipline Committee addressed sub-charge 8(

b) as follows in their Decision: 123. Standing alone, some of these allegations might, at face value, appear trivial. However, the charges have to be assessed in context. Sask Hospital is a psychiatric hospital which includes an integrated correctional unit with a forensic unit that houses individuals involved with the criminal justice system. There is a reason that nursing staff at Sask Hospital receive unique training about contraband items which, viewed from the outside, may involve simple and innocuous items.

Given the environment, there is also a reason that nursing and correction staff received training regarding manipulative behavior by patients at Sask Hospital. … 127. The Investigation Committee has to prove, on a balance of probabilities that the factual allegations have been made out. The Investigation Committee then needs to satisfy the Discipline Committee that the proven facts amount to professional misconduct and/or professional incompetence. 128. Ms. McCulloch has seven years experience at RPC before taking her job at the Sask Hospital.

She was an experienced nurse working in a unique and specialized environment given the nature of the patients. She would know the purpose of a broad prohibition against contraband whether such a prohibition was set out in writing or not. She admitted that she brought Q-tips on to the unit and that she used them to clean the medication cart and she made them available to patients. Her rationale appeared to be that the unit was short of supplies. If that was the case, it appeared management at the Sask Hospital welcomed ideas and suggestions for supplies. Ms.

McCulloch simply could have made a suggestion instead of bringing in her own supplies and particularly, something that has security connotations. The Discipline Committee finds that charge 8(

b) and its reference to contraband Q-tips has been substantiated. … Is Charge 8(

b) a Mens Rea Offence? [ 22 ] Ms. McCulloch states that using the phrase “specific patients” in charge 8(

b) necessarily requires proof that she preferred or provided items to certain patients to the exclusion of others, and the exclusion was intentional. She states that absent this proof, the charge has not been made out as a mens rea offence. [ 23 ] I do not accept that using the phrase “specific patients” in charge 8(

b) requires proof that Ms. McCulloch preferred certain patients over others when she provided Q-tips. Seemingly, Ms. McCulloch suggests that only if she provided Q-tips to every patient would the charge be a strict liability offence. If a Strict Liability Offence, Did Ms. McCulloch Exercise Due Diligence? [ 24 ] Even if the offence alleged under charge 8(

b) is not a mens rea offence and is a strict liability offence, Ms. McCulloch states she should be excused of any wrongful act because she exercised an appropriate amount of due diligence, that she believed in a set of facts that would make supplying Q-tips an innocent act. She cites the Discipline Committee’s finding that the unit was operating on limited rules and structure at the time and that nurses were constantly providing feedback and seeking adjustments and changes in the rules. [ 25 ] Following is the testimony that Ms.

McCulloch provided to the Discipline Committee respecting the Q-tips, first in direct examination (Transcript, Vol. 10, pages 154-155): Q. Okay. There were some allegations also with respect to Q-tips and newspapers. Can you speak to that? A. Yeah. The bringing contraband items? Q. Yes. A. The Q-tips, I did bring to the unit. I didn’t bring a ton. I brought a few of them with me to clean out a med cart because we crush our medications, and the night cart has this filmy thing that goes over top, and we had crumbs kind of stuck underneath, and it was to clean it.

On the old unit, we did have Q-tips in the treatment room. We didn’t really have anything in the treatment room at that time, so I did bring Q-tips onto the unit for that purpose. And a patient did see me with them and asked if they could use one, and I did allow them to use it under supervision. And it came back into my hands when they were done, and I put it in the sharps. [ 26 ] In cross-examination Ms. McCulloch provided the following testimony (Transcript, Vol. 11, pages 143-144): Q. …do you admit that you did bring in some Q-tips? A. Yes, I did. Q. And - - and that you’re not supposed to? A.

There was no direction on what was coming into the units or not at that time. Q-tips were something commonly in the treatment room, and our treatment room wasn’t set up. Q. So you’re saying you were never told not to bring Q-tips in? A. Correct. [ 27 ] Given this testimony, the Discipline Committee had to consider the evidence of Ms. Duncan, the nursing unit manager, who at Vol. 1, page 109 of the Transcript, provided the following testimony respecting Q-tips:

Q. So Q-tips and newspapers, what is that to you? A. So Q-tips, again you think its relatively a safe item. We don’t provide it at the hospital or on that unit, but again, it --it can gethard and it could be used as some sort of a weapon. I mean, it doesn’t take much to - - to stab someone in the jugular if that’s really what- - what you want to do with them.

And they’ve also been used to plug locks so that the secure doors that you think once they close theyautomatically lock until they’re opened again by the control panel, actually have something in it, but it - - a little Q-tip, end of a Q-tip issmall, so it’s not detected, and it could cause a security breach. [28] Brooke Rumpf, a nursing co-worker with Ms. McCulloch, testified that she worked approximately eight shiftswith Ms. McCulloch. Her relevant testimony, found at Vol. 2, pages 22, 28 and 29 of the Transcript, is as follows: A. …. And she also brought in Q-tips for him once.

I didn’t see her bring it in, but she told me that she did. Q. And she told you it was for this particular inmate AF? A. Yes. And we didn’t get Q-tips on the unit. … Q. MR. LEPAGE: Now, you indicated here that she also brought in Q-tips for a patient. You don’t mention the patient [in an emailreport that Ms. Rumpf gave to a correctional officer]. Which patient is it that she was bringing Q-tips for? A. A.F. Q. Thank you. Now, why do you say those two items, the newspapers and the Q-tips are contraband? What makes you say that? A. Contraband was because we would never bring it onto the unit for any patients.

We don’t have -- if -- like, on some units, ifnewspapers were brought in, that would be, like, from the managers or the nursing, like, head people, who had maybe scanned it already.You can’t be bringing in stuff from home onto the unit for patients. And we can’t be bringing in Q-tips. We don’t have any Q-tips on theunit for a reason. Q. Okay, so who - - did someone instruct you about contraband and that Q-tips and papers - - newspapers are contraband? A. We got - - like, we got taught about contraband. But seeing how it’s simply we can’t just bring stuff onto the unit.

Maybe ifJessica asked Diana if she could bring it on, that would be a different story, but there was no talk. Like, we can’t bring anything onto theunit. [29] Tara Campbell, a nursing co-worker with Ms. McCulloch, testified at Vol. 2, pages 164 and 165 of theTranscript as follows, after being asked in direct examination about contraband: Q. But as a result of what was…said, what did you do? A.

As a result of what was said, I was more diligent and observant, and I did make known that - - I said it out loud, not directly, thatwe shouldn’t be bringing stuff on the unit, especially things like Q-tips because we don’t know if the patient has an ear infection orsomething that needs to be further investigated. Also, we can’t just be bringing stuff on the unit willy-nilly because we don’t know whatthe patients are going to plan to do with it. … [30] In cross-examination, Ms. Campbell, like Ms. Rumpf in direct examination, agreed that she did not see Ms.McCulloch bring Q-tips onto the unit. [31] Although Ms.

Rumpf testified that Ms. McCulloch told her that she gave A.F. Q-tips, when A.F. was asked incross-examination whether Ms. McCulloch ever brought Q-tips for him or for any other patient, he answered, “No.” (Transcript, Vol. 12,page 152). [32] To be successful in proving that she took all reasonable steps before providing Q-tips to patients, Ms.McCulloch would have to satisfy the direction offered by the Saskatchewan Court of Appeal in Anthony Merchant v Law Society ofSaskatchewan, 2009 SKCA 33, 324 Sask R 108 [Merchant], leave to appeal refused (SCC).

There, at para. 53, thecourt stated that what is required “is evidence that establishes on a balance of probabilities that all reasonable steps were taken by thedefendant to prevent the commission of the prohibited act.” [33] Ms. McCulloch leans heavily on the hospital’s limited rules and structure when it opened. The nurses wereconstantly providing feedback and seeking adjustments and changes in the rules.

Unquestionably, the Discipline Committeeacknowledged and accepted that “there were growing pains with the opening of the new Sask Hospital” and that “there were challengesas nursing staff did not receive any kind of handbook when the new unit was opened…” (Decision at para. 124). [34] Whether the Discipline Committee failed to identify the principle of due diligence and apply the relevant facts tosuch principle raises a question of mixed law and fact, the least clear of the standards of review of an appellate court.

As earlier quotedfrom Al-Ghamdi, while findings of fact are reviewed for palpable and overriding error, findings of mixed fact and law call for a higherstandard of review because they fall along a spectrum of particularity.

A deferential standard should be applied where the decisionresults more from a consideration of the evidence, while a correctness standard should be applied when the tribunal has stated a legaltest. [35] Justice Schwann stated the principle of appellate review of a discretionary-leaning finding of mixed law and fact at para. 27 in Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76, 428 DLR (4th) 122, as attracting review “only…if

a chambers judge erred in principle, misapprehended or overlooked material evidence, took irrelevant factors into consideration, failed to act judicially or reached a decision that was so clearly wrong that the decision will result in an injustice.” [ 36 ] I find that the Discipline Committee overlooked and misapprehended critical evidence that would have gone to the question of whether Ms. McCulloch exercised due diligence under the circumstances. While the Discipline Committee found (Decision at para. 128) that Ms. McCulloch “made them [Q-tips] available to patients,” Ms.

McCulloch testified that she brought Q-tips to the unit to clean the med cart and that she gave “one” Q-tip to “a patient” and that he or she used it “under supervision” and that the patient gave the Q-tip back to her when he or she was done using it, and she put the Q-tip in the sharps. The Discipline Committee’s findings suggest that Ms. McCulloch handled several Q-tips, that she made them available seemingly upon patients’ request, and that several patients could have had access to them. I find no evidence to support this conclusion. [ 37 ] Although Ms. Duncan and Ms.

Campbell testified that Q-tips could be dangerous, neither saw Ms. McCulloch with Q-tips on the unit or what she may have done with them. Ms. Rumpf only testified that Ms. McCulloch told her that she gave a Q-tip to A.F. Ms. McCulloch did not state the name of the patient to whom she gave a Q-tip and, even more oddly, A.F. denied that Ms. McCulloch gave him any Q-tips. The Discipline Committee did not address these discrepancies in the testimony. [ 38 ] I find that Ms.

McCulloch did exercise due diligence, particularly in light of the vagueness of the rules at the Sask Hospital and, specifically, what items might constitute contraband. Although Ms. Campbell apparently told staff that Q-tips were inappropriate to bring to the unit, one must suspect that her direction, which specifically identified the Q-tips, arose after she learned that Ms. McCulloch had brought Q-tips. In my view, Ms.

McCulloch’s uncontroverted evidence that she gave one Q-tip to one patient, supervised its use, and saw to its return and disposal constitutes “due diligence.” In the Discipline Committee’s Decision, I find no application of this evidence to the principle of due diligence. Accordingly, the Discipline Committee’s finding of guilt respecting charge 8(

b) is quashed. Charge 8(e): Strict Liability or Mens Rea Offences? The Discipline Committee’s Findings Respecting Charge 8(e) [ 39 ] After finding that charge 8(

e) was a strict liability offence, the Discipline Committee stated its decision respecting Ms. McCulloch’s completion of a patient’s puzzle, at para. 129 of the Decision: 129. Regarding charge 8(e), the Discipline Committee heard testimony from Tara Campbell, a registered nurse. She testified that the patients were encouraged to work on puzzles and that many of them took pride in completing something like a puzzle independently. Ms. Campbell recalled seeing Ms. McCulloch completing a puzzle that patient A.F. had been doing and Ms. Campbell asked her why she was completing A.F.’s puzzle. According to Ms.

Campbell, Jessica McCulloch responded “I am doing it just to piss him off.” Ms. Campbell stated that she was concerned enough about what she saw and what she heard Ms. McCulloch say that she brought it up in report at shift change. Ms. McCulloch was not asked about this incident in her direct examination. The Discipline Committee accepts the evidence of Ms. Campbell. Is Charge 8(

e) a Mens Rea Offence? [ 40 ] Respecting charge 8(e), the charge’s use of the phrase “knowing that it would be upsetting to the patient” necessarily imports a mens rea element. I agree with Ms. McCulloch that charge 8(

e) requires proof of her intention – that she knew that completing the puzzle would be upsetting to the patient. That is precisely what the charge states. Indeed, one must wonder how completing a puzzle (clarified during the hearing as a jigsaw puzzle as opposed to a crossword puzzle) could possibly constitute professional misconduct without knowing that such conduct would have attendant and serious consequences. I find that the Discipline Committee erred when it found that charge 8(

e) engaged a strict liability offence. Does the Discipline Committee’s Decision Withstand Appellate Review? [ 41 ] Since I have found that charge 8(

e) is a mens rea offence, the Discipline Committee must have found facts and provided adequate reasons to support the requisite mental intention: that Ms. McCulloch knew that completing the puzzle would upset the patient. The transcript provides three sources of evidence on this issue, the first from Ms. Peters, the second from Ms. Campbell and the third from Ms. McCulloch’s cross-examination. [ 42 ] Ms. Peters testified as follows (Transcript, Vol. 2, pages 130-132): Q. MR. LEPAGE: Okay. Go on. Talk about the puzzle then and Jessica McCulloch. A.

So when shift exchange happened, they informed us not to be building the puzzle, and the patient was to stop it. And I talked with the patient during my shift that day, and he had said that they only get so many puzzles, and it was very frustrating that someone just kept building his puzzle and getting lots done during the night. And that the patients were kind of respecting each other, and each of them was building a separate puzzle, and they weren’t helping each other, unless they asked. And then several shifts later, during - - that was during a day shift.

During a night shift, I saw Jessica building the puzzle. And then when I mentioned that the patents aren’t enjoying having their puzzle built, she said it was basically a puzzle for the whole unit, and they don’t need to be such big babies. It’s not a big deal. Q. Okay. Now did you make any observations about this patient’s reaction to the - - to Jessica building his puzzle? A.

I was working night shift, so I didn’t get to see his direct reaction the next day, but she - - we were told at shift exchange not to be messing with the puzzles and that the patients had asked specifically for the puzzles to be left alone, and I was told as a staff member directly not to be building the puzzle. And then during the next night shift that I worked, I saw Jessica still building the puzzle and said they’re just unit puzzles, and it doesn’t matter, and they can just stop being babies about it.

[ 43 ] Ms. Campbell also testified about Ms. McCulloch’s building of a patient’s puzzle as follows (Transcript, Vol. 2 at pages 168-169): Q. Are there puzzles on the East Prairie View A unit: A. Yes, there are. Q. Did that ever become an issue with respect to Jessica McCulloch? A. Yes. I was working a night shift with her, and I usually stay kind of in the main nursing area there. I don’t go to the back. And I kept noting her walking over to those puzzles. And originally I thought, well, that’s nice.

She’s completing a puzzle for the patient, but she said that she was -- oh, I won’t have enough time to get this done. So when I asked her why she was completing the puzzle, she smirked and said, I’m trying to finish it just to piss him off. So I did warn the oncoming staff coming on that this potentially could be an issue, just a warning, so that they had some background knowledge and warning of that. Q. Do you remember the initials of the patient? A. AF. Q. So what warning did you give to the oncoming staff? A.

I said, just FYI, guys, I did - - I noticed her doing this puzzle on the night shift, and I -- I didn’t know it was for (indiscernible), and so they said, what? And I said they -- she just told me that she was trying to finish this puzzle just to piss him off. And so just so you guys are warned that this could be a trigger for -- for them and that he may be a little bit agitated over it. Q. Did this concern you with respect to the types of patients that you have on this ward? A. Mmhmm. Q. Why? A. A lot of them have experience -- you know, teasing, they - - they’re quick to trigger.

They don’t have a lot of coping skills. That’s what we’re trying to develop through that therapeutic relationship, and so if they’re -- they’re proud and they’re working on that puzzle, this can be seen as a threat to them. They’re trying to finish it. They’re working hard at something. They have maybe something to be proud of. And someone is doing something just to finish it. So they like to try to do it themselves. And that’s why I felt it was - - you know, I have helped patients do puzzles. I have helped patients do things, but they have asked, and so then it’s more of a doing it together.

Completing an activity together. This - - with that comment, it was just an inappropriate gesture. [ 44 ] During cross-examination, Ms. Campbell (Transcript, Vol. 2, at page 203) stated that she did not observe any discussion between Ms. McCulloch and the patient respecting the puzzle. Instead, she based her testimony on what Ms. McCulloch had told her. When asked, “I’m going to suggest to you that the patient with the connection to the puzzle had an initial M. Does that sound correct?” Ms. Campbell replied: A. Yes, that -- that might, yes.

But, yeah, it was a long time ago, I remember the saying and the situation, but not the initial. That could be. [ 45 ] During her examination in chief, Ms. McCulloch did not provide any evidence respecting the completion of the puzzle. However, in cross-examination she testified as follows (Transcript, Vol. 10, at page 157): Q. Okay. Another allegation is with respect to completing a patient’s puzzle. Can you speak to that? A. Yes.

Another form of us of spending time with our patients and, you know, gaining that trust and building relationships, without the programming or anything going on, it was, you know, select board games could come in. It was very - - because it’s a secure unit, it - - it was to the point that you had to count every piece of everything. So the board games got a little - - little hard, and it kind of went more to card games and then to puzzles. People would bring in puzzles for them to keep occupied. So the one day I was working on a puzzle with a patient.

And by the evening I did say - - when he went to bed, I said, “I’m - - I’m probably going to finish this on you.” And he - - he knew that. And - - and I did finish it. And in the morning, he - - I told him. I said, “Sorry. I know; I - - I finished it.” And so he said, “Okay.” And he took it apart and did it again. [ 46 ] The next day the cross-examination continued, and the topic of puzzles reappeared as follows (Transcript, Vol. 11 at pages 146-147): Q. Charge 8E, completing an inmate’s puzzle.

Again, Dawn Peters said that Jessica did his puzzle, and the next day, Fast Marcus (phonetic) was angry and that Jessica thought this was funny. Do you recall that testimony? A. Could you repeat that, I’m sorry, it was kind of fuzzy? Q. Dawn Peters testified that you did the puzzle and the next day, Fast Marcus, the inmate, was angry, and you thought that that was funny. Do you recall that? A. I recall working on a puzzle with Marcus in an evening, and I told him I was going to finish this puzzle overnight, and told him in the morning, yes, but to make him angry or anything, no. Q.

Tara Campbell testified about that, saying she saw you do this puzzle, and that you told her that you were doing it to, “piss him

off.” Do you remember that? A. No. [47] Given that I have found that charge 8(

e) alleges a mens rea offence, the Discipline Committee had to havefound, as a fact, that Ms. McCulloch knew that completing the patient’s puzzle would be upsetting to the patient. I find shortcomings inthe Discipline Committee’s review of the relevant testimony from Ms. Peters, Ms. Campbell and Ms. McCulloch. [48] First, the entirety of the Discipline Committee’s decision respecting charge 8(

e) is found in para. 129 and refersonly to Ms. Campbell’s testimony, but not to Ms. Peters’ testimony or Ms. McCulloch’s cross-examination. The Discipline Committeedoes not mention the obvious conflict between Ms. Campbell’s testimony that Ms. McCulloch told Ms. Peters that she had completed thepuzzle just to “piss off” A.F. and Ms. McCulloch’s testimony that she could not remember making that statement. [49] Nor does the Discipline Committee address another significant issue: which patient did Ms. McCulloch upset bycompleting the puzzle? When asked, Ms. Campbell testified that she saw Ms.

McCulloch completing A.F.’s puzzle, testimony that wouldbe later contradicted but not resolved by the Discipline Committee. [50] As well, although Ms. Peters did not identify the patient whose puzzle was completed, when counsel for theSRNA cross-examined Ms. McCulloch, he prefaced his question to her saying, “Dawn Peters testified that you did the puzzle and thenext day, Fast Marcus, the inmate, was angry, and you thought that that was funny. Do you recall that?” That question is the first timethat the name “Fast Marcus” appears in the transcript. Ms. Peters did not name any patient and Ms. Campbell named A.F.

In answeringthe question, Ms. McCulloch confirmed that the name of the patient whose puzzle she completed was “Marcus.” The point is this:although the charge states that Ms. McCulloch intended to upset a specific patient, Ms. Peters did not identify the patient and Ms.Campbell misidentified the patient. Although the offence might be established only by proving Ms.

McCulloch’s intention to upset “apatient” (regardless of the patient’s identity and arguably whether or not the patient, in fact, was upset), the Discipline Committee did notconsider the inability of SRNA’s witnesses to establish the identity of the upset patient. [51] In considering whether this paucity of analysis creates a reviewable error, I look to the statement offered byJustice Richards (as he then was) in Casavant v Professional Ethics Committee of the Saskatchewan Teacher's Federation, 2005 SKCA52, 262 Sask R 195 [Casavant] where, stating that both common law principles and an

interpretation of the governing legislation wererelevant considerations, he summarized at para. 47 what a discipline committee’s decision should include: 1. A

summary of the evidence which bears on the issues, not necessarily in elaborate detail, but sufficient to capture the key featuresof what was presented to the committee. 2. A statement of the findings of fact necessary to resolve the complaint. 3. In cases of contradictory evidence, the committee’s explanation why it chose one version of the events over another. 4. If credibility is a factor, a statement why the evidence of a particular witness was preferred. 5.

The committee’s reasoning presented in a manner to allow the parties and the court to understand its assessment of the evidenceand the facts on which its findings are based. [52] For reasons previously explained, I find that the Discipline Committee has fallen short of Justice Richards’direction in Casavant. Relevant testimony was not mentioned, inaccurate testimony was not identified, and contradictory testimony wasnot resolved.

Justice Estey offered similar direction in Harper v The Queen, (SCC), [1982] 1 SCR 2 (WL), as quoted inR v Sheppard, 2002 SCC 26 at para 31, [2002] 1 SCR 869: 31 … Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly thecomplete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. [Emphasis added] [53] Following Justice Estey’s direction, I find the Discipline Committee’s reasoning leaves this Court, as stated inCasavant at para 51, “unable to ascertain the findings of fact which underpinned the Committee’s decision and …to understand therationale for that decision.” The Discipline Committee’s decision respecting charge 8(

e) must be set aside. Triviality of the Conduct “Professional misconduct is a question of fact”– Clarifying the Standard of Review [54] Although I have found the Discipline Committee’s findings respecting charges 8(

b) and 8(

e) must be set asidefor reasons stated above, Ms. McCulloch also alleges that most of her conduct underlying the offences for which she was found guilty,including charges 8(

b) and 8(e), was trivial in nature and did not reach the seriousness of anything that could be considered professionalmisconduct. Specifically, respecting charges 8(

b) and 8(e), she states the Discipline Committee erred in finding that the use of Q-tips andcompletion of a patient’s puzzle, even if they were rule breaches, did not rise to the threshold of professional misconduct. [55] I will first address Ms. McCulloch’s position broadly since she raises a similar argument respecting otheroffences. I will then apply this discussion to the other instances when she has argued that the Discipline Committee’s finding did notreach the measure of professional misconduct. [56] First, one must understand whether the Discipline Committee’s determination of the threshold of professional

misconduct engages a finding of law, mixed fact and law, or fact. Necessarily, one must start with the governing statute.

Section 26 of the RN Act states: 26(1) For the purpose of this Act, professional misconduct is a question of fact but any matter, conduct or thing, whether or not disgraceful or dishonourable, that is contrary to the best interests of the public or nurses or tends to harm the standing of the profession or nursing is professional misconduct within the meaning of this Act.

(2) Without restricting the generality of subsection (1), the disciple committee may find a nurse guilty of professional misconduct if the nurse has:

a) abused a client verbally or physically; (

b) misappropriated a client’s personal property; (

c) inappropriately used the nurse’s professional status for personal gain; (

d) influenced a client to change the client’s last will and testament; (

e) wrongfully abandoned a client; (

f) misappropriated drugs; (

g) misappropriated property belonging to a nurse’s employer; (

h) failed to exercise discretion with respect to the disclosure of confidential information about a client; (

i) falsified a record with respect to the observation, rehabilitation or treatment of a client; (

j) failed to inform an employer of the nurse of the nurse’s inability to accept specific responsibility in areas where special training is required or where the nurse does not feel competent to function without supervision; (

k) failed to report the incompetence of colleagues whose actions endanger the safety of a client; (

l) failed to comply with the code of ethics of the association; (

m) failed without reasonable cause to respond to inquiries from the association regarding alleged professional misconduct or professional incompetence; (

n) an addiction to the excessive or habitual use of intoxicating liquor, opiates, narcotics or other habit forming substances; (

o) conspired to do any professional misconduct or counselled a person to do any professional misconduct; (

p) obtained registration by misrepresentation or fraud; (

q) contravened any provision of this Act or the bylaws. [Emphasis added] [ 57 ] Note the emphasized portion of s. 26(1): “professional misconduct is a question of fact.” Accordingly, one would expect that, since a finding of professional misconduct is a question of fact, the standard of review must be a palpable and overriding error, a highly differential standard.

Justice Barrington-Foote, in Strom v Saskatchewan Registered Nurses’ Association , 2020 SKCA 112 at para 66 , 453 DLR (4 th ) 472 explained that the “curious language” of s. 26(1) had never been judicially considered even though it had been used as early as 1934 in An Act Respecting The Institute of Chartered Accountants of Saskatchewan , SS 1934, c 41 (rep) and continues to be used in The Agrologists Act, 1994 , SS 1994, c A-16.1 , s 28; The Registered Psychiatric Nurses Act , SS 1993, c R-13.1 , s 28; and The Accounting Profession Act , SS 2014, c A-3.1 , s 26. [ 58 ] If taken at its face value, s. 26(1) would largely insulate most findings of professional discipline from appellate review.

That, though, has not been the courts’ approach, whether under the review standards set out in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 or under the new review standards set out in Vavilov , which removed the correctness and reasonableness standards respecting statutory appeals of administrative tribunals. [ 59 ] I will not repeat Justice Barrington-Foote’s historical analysis of the courts’ reading down of the phrase that “professional misconduct is a question of fact”. His conclusion, which, on its face may seem startling, is consistent with prior

interpretations, just more bluntly stated: [73] In the result, a discipline committee deciding whether a registered nurse is guilty of professional misconduct is not deciding a question of fact for standard of review purposes. … [ 60 ] If the appropriate standard of review to determine what constitutes professional misconduct is not a simple factual finding, what is the appropriate standard of review? Justice Schwann sorted out this question in a post- Vavilov context in MacKay v Law Society of Saskatchewan , 2021 SKCA 99 [ MacKay ] when she wrote: [97] To the extent Mr.

MacKay is understood to argue that the Committee interpreted the concept of conduct unbecoming incorrectly, he raises a question of mixed fact and law that involves an extricable question of law . As such, this ground of appeal is subject to review on the correctness standard.

[61] Justice Schwann’s statement is consistent with the statement in Al-Ghamdi where the court stated: [9] …Those standards of review can be summarized as follows: … (

c) findings on questions of mixed fact and law call for a “higher standard” of review, because “matters of mixed law and fact fallalong a spectrum of particularity”: Housen at paras. 28, 36. A deferential standard is appropriate where the decision results more from aconsideration of the evidence as a whole, but a correctness standard can be applied when the error arises from the statement of the legaltest: Housen at paras. 33, 36.

Did the Discipline Committee Err in Determining Professional Misconduct? [62] A correct measure of conduct that will trigger a finding of professional misconduct is, at once, elusive, but at thesame time, with hugely significant consequences. A finding of professional misconduct in one’s profession is a formal and permanentmark of disgrace. Consequences can be serious, particularly when a profession, such as nursing, is generally dependent uponemployment by a third party.

What are the norms of professionalism and what degree of departure from those norms will movecommonplace error into the realm of professional misconduct? The Saskatchewan Court of Appeal grappled with this question in severaldecisions, including MacKay, Merchant, and Hesje v Law Society of Saskatchewan, 2015 SKCA 2, [2015] 3 WWR 104 [Hesje]. [63] In Merchant the court considered conduct unbecoming and found the term was fact-dependent and sensitive to acontext. Most significantly, Merchant established that moral turpitude is not a required element.

The court wrote: [62] The definition in the Act [The Legal Profession Act, 1990, SS 1990-91, c L-10.1] is expansive, and conduct unbecoming may beestablished through intentional conduct, negligent conduct or total insensibility to the requirements of acceptable practice (as inprofessional incompetence). In the last two instances, where practitioners have been careless or merely incapable in some aspect, moralturpitude is not, typically speaking, a feature of the unacceptable behaviour. The

section provides that the conduct in question need not bedisgraceful or dishonourable to constitute conduct unbecoming. It is abundantly clear that moral turpitude is no longer an activerequirement. [64] In Hesje the court rejected the argument that gross or habitual negligence is necessary to establish professionalmisconduct. Justice Schwann’s

summary in MacKay, after considering the statements in both Merchant and Hesje, is succinct andhelpful: [100] In short, what constitutes conduct unbecoming in any given case will vary depending on the specifics of the allegations and thecontext. Generally speaking, proof of moral turpitude is no longer required. [65] How, then, did the Discipline Committee define a line to separate professional misconduct from less egregiousconduct? At para. 129 of the Decision, the Discipline Committee admits that some of the allegations in the seven sub-charges of 8(

a) to8(g) “might, at face value, appear trivial.” However, consistent with the instruction in MacKay, the Discipline Committee next stated that“the charges must be assessed in context.” The Committee identified that, “viewed from outside,” contraband items might “involvesimple and innocuous items.” A nurse employed at a forensic psychiatric hospital had to be aware of the “manipulative behavior” ofpatients.

The Discipline Committee was also cognizant that the opening of the forensic unit in the new Sask Hospital was undergoing“growing pains” and rules were being formulated and adjusted on the fly. [66] The Discipline Committee was keenly aware of the task that lay before it, to draw an appropriate line betweenunderstandable error and professional misconduct. At para. 126 of its Decision, it quoted from the Law Society of British Columbia inLyons (Re), 2008 LSBC 9 [Lyons]: [34] It is no longer a requirement that the conduct proven be disgraceful in itself or dishonorable.

The overall test for professionalmisconduct is set in Marin (supra) [2005 LSBC 16] at para. [171] where the Panel reviewed the law and concluded that the test formisconduct is “whether the facts, as made out, disclose a marked departure from the conduct the Law Society expects of its members; ifso, it is professional misconduct.” [35] In determining whether a particular set of facts constitutes professional misconduct or, alternatively a breach of the Act [LegalProfession Act, SBC 1998, c 9] or the Rules [Law Society Rules], panels must give weight to a number of factors, including the gravityof the misconduct, its duration, the number of breaches, the presence or absence of mala fides, and the harm caused by the respondent’sconduct. [67] The Discipline Committee, at para. 127, then correctly stated where its attention had to be directed: “TheInvestigation Committee…needs to satisfy the Discipline Committee that the proven facts amount to professional misconduct and/orprofessional incompetence.” The Discipline Committee accepted the direction in Lyons, that it would consider, among other facts, “thegravity of the misconduct, its duration, the number of breaches, the presence or absence of mala fides, and the harm caused by therespondent’s conduct.” The identification of these non-exhaustive hallmarks of professional misconduct invites an application of theSupreme Court’s statement in Housen v Nikolaisen, 2002 SCC 33 at para 27, [2002] 2 SCR 235: 27 …In Southam, supra, [ (SCC), [1997] 1 SCR 748] at para. 39, this Court illustrated how an error on a questionof mixed fact and law can amount to a pure error of law subject to the correctness standard: ... if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considersonly A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C.

If the correct testrequires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.

[ 68 ] The Discipline Committee, just like the conditions in the above quotation, accepted that it had to consider several factors to determine whether Ms. McCulloch’s conduct fell into the realm of professional misconduct. However, in its analysis of both the Q-tip and puzzle incident, it failed to consider the factors it seemingly accepted as determinative. For example, the Discipline Committee did not consider that both incidents happened only once; that the duration of each incident was brief; that no consequence arose from the Q-tip incident; and that, according to Ms.

McCulloch’s testimony, Fast Marcus was not upset that she completed his puzzle. Respecting the gravity of the conduct, even the Discipline Committee stated that some of the allegations under charge 8, “might, at face value, appear trivial.” [ 69 ] As always, the governing legislation must be considered.

Section 26(2) of the RN Act begins very generally: “Without restricting the generality of subsection (1), the discipline committee may find a nurse guilty of professional misconduct if the nurse has….” Then follow 18 examples of professional misconduct, including verbally or physically abusing a client, misappropriating personal property, using one’s status for personal gain, influencing a client to change a last will and testament, abandoning a client, misappropriating drugs or an employer’s property and releasing of confidential information, falsifying records. [ 70 ] A well-known principle of statutory

interpretation holds that general words that are followed by specific examples in a list must be construed as referring to the types of things identified by the specific examples, the ejusdem generis rule . Placing the conduct alleged in charges 8(

b) and 8(

e) into the enumerated list of s. 26(2) of the RN Act would be glaringly suspect. To permanently mar a nurse’s professional reputation for allowing one patient to use one Q-tip (even if it could be considered “contraband”) or for potentially upsetting a patient when completing a jigsaw puzzle is not the type of misconduct contemplated by s. 26 of the RN Act. [ 71 ] The Discipline Committee has applied the wrong law, and so has made an error of law. Consequently, aside from other reasons previously explained, the Discipline Committee’s finding of “Guilty” for charges 8(

b) and (

e) must be quashed. Charge 2 The Discipline Committee’s Findings Respecting Charge 2 [ 72 ] Charge 2 alleges, in brief, that when Ms. McCulloch worked at the RPC, 40 acetaminophen with codeine tablets went missing and she documented “wasted rack fell, meds stepped on” but she did not sign the necessary record nor have another nurse co-sign that the drugs had been wasted. The Discipline Committee ruled as follows (Decision at pages 22-23): Charge 2: 72. On October 4, 2015, Ms. McCulloch was working the B shift on the Churchill Unit.

She and her colleague Sara Bayani were in the medication room conducting the narcotic count. The protocol or routine is that one nurse counts the medication, the other nurse documents the count and then both nurses are to co-sign the Narcotic Administration Record. 73. Sara Bayani testified as one of Ms. McCulloch’s witnesses. She testified that this routine occurred on the morning of October 4, 2015 and Ms. Bayani documented 40 T3’s on hand. 74. Ms. McCulloch testified that Sara Bayani left before the count was completed. During her absence, Ms.

McCulloch claimed that she knocked down a medication card containing T3’s, it fell to the floor and she stepped on the card. She got on her hands and knees to “scoop up” the crushed pills, putting the contents in the sink. She documented what had happened by writing the word “waste” on the Narcotic Administration Record and she drew a line through the number 40 and over top of that, she wrote a zero. She maintained she tried to reach Sara Bayani but she could not reach her. She admitted she did not sign the Narcotic Administration Record nor was this alleged wastage witnessed by anyone. 75.

In an interview with Carson Gaudet a few days later, Ms. McCulloch stated that she put the wastage in the sharps container when she earlier explained that she had put the contents in the sink. 76. In cross examination, Ms. McCulloch admitted that she knew the policies and procedures for drug wastage and drug wastage documentation. She admitted that she did not follow those policies and procedures. In an interview with Carson Gaudet and another supervisor named Cory Simon within a day or two after the incident, Ms.

McCulloch admitted that she made “a lot of errors in judgment” in dealing with the medication (P5-Tab 5). 77. Failure to follow appropriate procedure regarding wastage of narcotics and the documentation of wastage is a serious matter. However, there is more to the charge than that as the charge also states “You failed to honestly account for the missing drugs. There was no evidence that the drugs had been wasted as you stated.” Ms. McCulloch’s version of events is suspect on a number of fronts. When Ms.

McCulloch met with Carson Gaudet a few days after the incident, she gave inconsistent explanations for what had occurred and what she had done. Sara Bayani testified that narcotics would be in the vault and not hanging on a rack as Ms. McCulloch claimed. Further, Ms. McCulloch testified that she stepped on the medication card once and that crushed the bubble card with the result that a number of the narcotics fell out. Many witnesses including the RPC pharmacist (Adam Fenwick) testified that this was quite unlikely. Ms.

McCulloch’s explanation and version of events simply does not ring true. Further and even if the Discipline Committee accepts Ms. McCulloch’s testimony that she was unable to reach Sara Bayani, there were other nurses available on other units to attend and witness the wastage and ensure proper documentation was completed. 78. The Discipline Committee finds that this charge has been substantiated and that the proven facts amount to professional misconduct and professional incompetence. Ms. McCulloch is found guilty. Did the Discipline Committee Fail to Consider Ms.

McCulloch’s Testimony? [ 73 ] As her first ground of appeal, Ms. McCulloch states that the Discipline Committee “failed to consider [her] evidence” when finding guilt under charge 2. In her factum at para. 23, Ms. McCulloch states that at para. 72 of the Decision, the Discipline Committee simply decides that Ms. McCulloch’s version of the events does not “ring true.” Ms. McCulloch objects to the Discipline Committee’s decision of what should have been the ordinary operation of the medication on the unit, despite conflicting evidence from witnesses that safes and locks were not always used on the unit. Ms.

McCulloch states that the Discipline Committee’s failure to explain why it rejected her evidence and why she was not credible, is a reversible error. [ 74 ] Ms. McCulloch must prove that the Discipline Committee made a palpable and overriding error because it did not consider her testimony or make appropriate credibility assessments. I find that the Discipline Committee specifically and repeatedly addressed Ms. McCulloch’s testimony. A few examples taken from the Discipline Committee’s analysis show the close attention it paid to Ms.

McCulloch’s evidence: For example, one finds in the Decision, at para. 74, statements such as: “Ms. McCulloch testified…,” “Ms. McCulloch claimed…,” “She documented what had happened…,” “She maintained she tried to reach Sara Bayani…,” “She admitted she did not sign…” Further, at paras. 75 – 77 the Discipline Committee continues its

summary of Ms. McCulloch’s testimony. To suggest that the Discipline Committee did not assess Ms. McCulloch’s credibility does not accord with statements like: “Ms. McCulloch’s version of events is suspect on a number of fronts” or “Ms. McCulloch’s explanation and version of events simply does not ring true.” [ 75 ] Ms. McCulloch’s challenge is dismissed. She has not shown that the Discipline Committee’s assessment of the evidence was incomplete or that the Discipline Committee failed to assess her credibility . Did the Discipline Committee Err in Determining Professional Misconduct? [ 76 ] Ms.

McCulloch states that the allegation under charge 2 was a mistake that did not rise to the level of misconduct. [ 77 ] At paras. 54 to 61 of this decision I explained the legal framework of appellate review of a professional discipline committee’s determination of conduct that constitutes professional misconduct. The Discipline Committee found that Ms. McCulloch had not properly accounted for 40 tablets of a narcotic drug in a psychiatric hospital, that no evidence showed that the drugs had been wasted as Ms. McCulloch stated, and that Ms. McCulloch gave inconsistent explanations for what she had done.

One must ask if this type of conduct falls within the range of professional misconduct contemplated by the RN Act . [ 78 ] Notably, s. 26(2)(

f) of the RN Act includes a misappropriation of drugs as an example of professional misconduct. The Discipline Committee’s findings do not suggest that Ms. McCulloch misappropriated drugs. However, the Discipline Committee emphasized that Ms. McCulloch worked in a highly secure forensic psychiatric centre, housing 178 offenders, some in maximum security, with patients “too fragile to be in a regular jail, patients who are in the acute stages of psychosis, others who are stable and some with substance abuse disorders.” (Decision at para. 13). The RPC is not an ordinary hospital.

The Discipline Committee went to considerable lengths in paras. 11-26 to describe some of the protocols at the RPC. At para. 23 of the Decision, the Discipline Committee stated: 23. Given the nature of the patients, there is a considerable amount of narcotics and controlled drugs dispensed. Medication is administered from each unit, as each unit has a “control post” or “bubble” which consists of a room with plexiglass all around. The bubble is monitored and the doors are controlled. Patients line up for their medication.

A correctional officer remains in this bubble when the nurse dispenses the medication. [ 79 ] As Justice Schwann stated in MacKay , what constitutes professional misconduct in any given situation will vary depending on the specifics of the allegation and the context. Proof of moral turpitude is not a necessary element. In this instance, Ms. McCulloch admitted she made “a lot of errors in judgment” and that she did not follow appropriate policies and procedures.

In the context of a secure facility with crime-prone patients, some with addictions to narcotics and other substances, the strict control and monitoring of narcotics understandably takes on marked significance. Of all drugs that a nurse might handle, narcotics are particularly prone to misuse. [ 80 ] I find no fault with the Discipline Committee’s finding that Ms. McCulloch’s handling of the narcotics and her suspect explanation correctly constitutes professional misconduct. Other Nurses’ Allegedly Similar Conduct

[ 81 ] Ms. McCulloch states at para. 43 of her factum that evidence demonstrated that medication errors were a “regular occurrence at RPC,” and states at para. 45 that a nurse testified that “he could not recall a nurse that had been disciplined internally as a result of making a medication error.” [ 82 ] When Ms. McCulloch advances this line of argument she fails to appreciate an important distinction between an “error” and the conduct with which she has been charged and found guilty. She admitted that she knew the policies and procedures for drug wastage and documentation and did not follow them.

The Discipline Committee found that she then failed to consistently account for the missing drugs. These are not “errors.” Understandably, the circumstances would be different if a drug has been mishandled by accident or mistake and where the nurse has been honest and forthright in explaining the situation. [ 83 ] This ground of appeal has no merit and is dismissed. Did the Discipline Committee Err by Inappropriate Speculation? [ 84 ] The Discipline Committee found that even if Ms.

McCulloch had been unable to have Sara Bayani sign the drug wastage documentation, “there were other nurses available on other units to attend and witness the wastage and ensure proper documentation was completed.” (Decision at para. 77). Ms. McCulloch takes exception to this conclusion, stating that the Discipline Committee engaged in speculation when it indicated that other staff would have been available so that she could have found another nurse to witness the wastage. To the contrary, Ms.

McCulloch states that evidence showed that there were few staff members on the night shift and that RPC was chronically under-staffed in the difficult units. [ 85 ] Brad Larsen, a nurse at RPC, testified that at times the RPC was short of staff and sometimes nobody would be on a unit, much less a nurse (Transcript, Vol. 8, page 38). Although Ms. McCulloch cites other testimony of staffing issues at RPC, nothing suggests that on October 4, 2015 Ms. McCulloch could not have found a person to sign the documentation.

The Discipline Committee’s conclusion that other nurses could have observed the wastage and signed documentation on that particular shift is a reasonable conclusion based on the testimony of Ms. Bayani who was working with Ms. McCulloch that shift as found in the Transcript, Vol. 11, pages 22 - 23: Q. Okay. Now, were you available that night, on October 4 th , to co-sign with Jessica, if you had been asked to do it? A. You know, I can’t tell you for sure that I was not dealing, for example, with a Code Blue. I don’t know what was happening exact moment a few years ago, but I was working, yes.

I’m assuming that I was available, yes. Q. Now, Sara, if you’re having difficulty, for example, if you had to waste a medication, and you couldn’t find another nurse, is there some other person available to you at all times at RPC? A. We have officers on the unit all the time. Q. Okay. But how about the nurse supervisors? Are nurse supervisors available to you 24/7 to call? A. Not 24/7, but - - actually I forgot about them, yes, we had the nursing shift supervisors, because now we don’t have this position anymore. But up to a few years ago, we had nursing shift supervisors.

I think they were working from 5 AM to 10 PM, something like that. Q. Okay, Now, if you had been called by Jessica, would you have come over to see what had happened? A. Sure, yeah. [ 86 ] I do not accept that the Discipline Committee speculated that Ms. McCulloch was able to find another person to ensure that she properly followed the procedures to deal with wasted drugs. Significantly, too, Ms. Bayani also testified that no patient was scheduled to have a T3 that night, that the bubble card should have been in the safe and that crushing T3s was “not easy” even in a pill crusher.

Charge 5 The Discipline Committee’s Findings Respecting Charge 5 [ 87 ] Charge 5 describes an incident on February 26, 2016, similar to the incident five months previously under charge 2. The Discipline Committee parsed the charge at para. 100 of the Decision as follows and concluded that each element had been proved: 100. Charge 5 contains four key elements: a. Ms. McCulloch falsely documented the administration and wastage of narcotics and then wrote the name of a correctional officer as a witness to the wastage; b. Ms.

McCulloch failed to follow the appropriate standards in relation to the administration of narcotics as well as to account for narcotics and/or wastage;

c. Ms. McCulloch falsely documented the Narcotic Administration Record the name of a person who did not witness the alleged wastage of a narcotic; d. Ms. McCulloch administered double the dose that was prescribed. [ 88 ] On February 26, 2016, Ms. McCulloch and a corrections officer, Dustin Randall, were working on the Mackenzie Unit at RPC. The Decision respecting charge 5, at paras. 96 – 99 reads as follows: 96. Ms. McCulloch prepared to administer medications from the bubble as the patients lined up at the medication window. Mr. Randall was also in the medication bubble and according to Ms.

McCulloch, he was at the computer terminal looking at pictures of snowmobiles. Ms. McCulloch could see that one patient appeared to be getting frustrated and she recognized this as the patient who had “heavy needs”. She was watching this patient and at the same time, another patient R.W. came to the window. Narcotics had to be administered to R.W. in apple sauce. According to Ms. McCulloch, R.W. reached in to get the narcotic cup and when he did so, he spilled the apple sauce contents at the window counter. The contents contained Dilaudid. Ms.

McCulloch described taking a paper towel and “swooshing up” the contents in a paper towel and discarding the paper towel in the secure shredding bin. 97. Dustin Randall testified he never saw any spillage of R.W.’s Dilaudid. He further testified Ms. McCulloch never advised him about

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