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Family members should evaluate all options before proceeding with legal action (or HPARB upholds CNO refusal to take further action)

A woman upset by a nurse’s decision about her father’s mental capacity brought legal challenges in two different forums. One of those forums ultimately refused to hear her case due to the parallel proceeding, reminding family members about the importance of assessing their goals before taking legal action.

The Facts

A man executed a power of attorney (“POA”) and appointed his daughter as his decision-maker should he become incapable in the future. In 2009 he created a new POA and replaced his daughter with the woman who would soon become his wife.

Later that year his daughter brought a guardianship application to court to regain her position as decision-maker. She argued that her father’s new POA was invalid because he was not mentally capable of making it at the time.

Two months later a nurse assessed her father’s capacity. The nurse spoke with her father, his doctor, and some of his friends; and conducted cognitive tests. The nurse reached the conclusion that her father “had the capacity to instruct legal counsel, capacity to sign a power of attorney for property and capacity to sign a will”. The daughter disagreed with that finding.

The father died a year and a half later.

The Legal Actions

In 2012 the daughter brought a lawsuit against the nurse, her father’s widow, her father’s doctor and her brother-in-law.

She also made a separate formal complaintagainst the nurse to the College of Nurses of Ontario (the “College”) – the nurse’s regulatory body. She complained that the nurse did not uphold the standards required of nurses, and that the nurse failed to consider psychiatric treatment received by her father in the 1970s (among other complaints).

The Inquiries, Complaints and Reports Committee of the College (the “Committee”) appointed an investigator and reviewed thousands of pages of documents from the daughter and the nurse. The Committee also met twice and invited submissions from the daughter and the nurse. Ultimately the Committee decided no further action was warranted in the circumstances because there was an ongoing legal proceeding elsewhere. The daughter was dissatisfied and took her complaint to the next level – the Health Professions Appeal and Review Board (“HPARB”).

The job of HPARB is to decide whether the investigation was adequate and/or whether the decision of the Committee was reasonable. The Board recently decided that the Committee did in fact conduct an adequate investigation of the complaint and reached a reasonable decision in deciding to take no further action on the basis that the complaint constituted an abuse of process. This means that the daughter’s complaint with the College of Nurses of Ontario will not go any further and the nurse will not face any consequences from the College. However, the separate lawsuit can continue through the Ontario court system.

Lessons for Families about the Law

It can be tempting to bring forth legal actions in every possible venue, and hope someone will agree with you. However, it can also backfire should the other side raise an abuse of process argument that the forum should refuse to hear your matter altogether.

There are rules that prevent people from bringing the same legal dispute to multiple venues (in this case, court and the College of Nurses of Ontario). After all, it is redundant and a waste of public resources to argue about the same case more than once. In this case, the Committee found that “the issues raised in the complaint had already been brought forward or decided in another venue, and were properly addressed in a venue other than the College’s complaints process”. Therefore, it would be an improper use of the College’s process to require a further investigation into the complaint.

Families considering legal action in complex situations involving health care should take a step back and consider all of their options, and not necessarily employ all strategies at one time.

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