Nursing Act – Bill 121 at Law Amendments

Good Afternoon,

Bill 121, The Nursing Act (https://nslegislature.ca/legislative-business/bills-statutes/bills/assembly-63-session-2/bill-121) was introduced on March 15, 2019 and will be going to the Law Amendments Committee this Monday, April 8.

To be added to the speaking list contact the Office of the Legislative Counsel at 902-424-8941 or by email at legc.office@novascotia.ca to request a time to speak.

As back ground, the NSGEU as part of the Nova Scotia Council of Nursing Unions reviewed the proposed legislations with the CRNNS/CLPNNS late last year. Following the review we sent the following list of concerns to Minister Delorey:

1. Regulation of Non-Nursing Health Care Providers

The Colleges agreed to remove the language in the draft legislation that would allow the new College to represent or register non-nurses. That change would resolve the issue from our point of view.

2. New Nursing Designations

We remain opposed to including the authority in the Act to create new nursing designations through regulation, for the reasons outlined in our September 26, 2018 letter.

3. Power to Impose Fines

In our meeting, the Colleges told us that they want the Professional Conduct Committee to have the power to impose fines in cases where a nurse has practiced without a license.

We are not satisfied with this response.

The Professional Conduct Committee already has the authority under the current RN and LPN Regulations to issue fines where a nurse has practiced without a license. The CEO/Registrar of either College can also issue a fine where a nurse has practiced without a license. Such a fine is not considered a licensing sanction under the Act. We do not object to the same provisions being included in the new legislation.

The draft legislation, however, removes the restriction on when the Professional Conduct Committee can issue a fine. The Committee would have the authority to issue a fine in any case, not just in cases where a nurse is found to have practiced without a license. The draft legislation also expands the definition of “licensing sanction” to include a fine issued by the Committee.

This expanded authority to issue fines against nurses in any case and to treat such fines as licensing sanctions would be a fundamental change to the professional conduct system. The Colleges have not provided us with a rationale for this change and we cannot support it.

4. LPN Representation on the Board

The Colleges agreed to change the draft legislation to ensure there is at least one RN and one LPN on the Board. If this change is made, that would satisfy our concern.

5. Duty to Co-operate

The draft legislation includes a duty for nurses “to co-operate with the College, the CEO, and any committees of the College with respect to any regulatory process or requirements under the Act, the regulations and the by-laws.” We are concerned that this is stated too broadly.

The legislation for some self-governing professions includes a general duty to co-operate or participate in the professional conduct process. We are not aware of any such legislation that includes a broad, freestanding duty to co-operate with the College, the CEO and the College’s committees in all matters, as the Colleges are seeking to include here.

6. Complaints Committee – Nurse’s Right to Appear

Under the current RN and LPN Regulations, a Nurse who is the subject of a complaint has the right to appear before the Complaints Committee prior to the Committee deciding the outcome of the Complaint or taking certain other steps.

The draft Legislation removes this right to appear. Instead, a nurse would only be entitled to, “a reasonable opportunity to present a response and make submissions in such form as determined by the committee.”

We ask that the draft legislation be revised to restore the right of a nurse to appear before the Complaints Committee.

7. Duty to Maintain Confidentiality – Exceptions too Narrow

The draft legislation includes a duty to keep College material confidential, with an exception to allow someone to disclose information “to one’s own legal counsel.”

This exception is too narrow. When a nurse is the subject of a College complaint, the nurse is entitled to “be represented by legal counsel, a union representative or another representative.” A nurse must be free to share College material with their choice of representative.

The exception also fails to take witnesses into account. A nurse who is a witness in a College complaint proceeding may need to discuss College materials with the respondent nurse’s legal counsel, for example. That would not be covered by this exception since it is not the witness’s own legal counsel.

8. Costs Award Following a Hearing – Nurse’s Right to Claim Costs

Under the current legislation, if a complaint goes to a hearing, the Professional Conduct Committee can either 1.) order a nurse to pay all or a portion of the College’s costs or 2.) order the College to pay the nurse’s costs, depending on the outcome.

The draft legislation removes the authority of the Professional Conduct Committee to award costs against the College. The result is that the Committee can order the nurse to pay the College’s costs if the College is successful, but cannot order the College to pay the nurse’s costs if the nurse is successful.

This is not just or reasonable and we request that the draft legislation be revised to restore the authority of the Committee to order costs against the College.

9. Expanded Authority to Order Costs

The draft legislation also expands the circumstances in which a nurse can be ordered to pay the College’s costs.

Under the current regulations, only the Professional Conduct Committee can order a nurse to pay costs. The draft legislation would expand this to include, the Registration Appeal Committee, the Complaints Committee and the Reinstatement Committee.

The draft legislation would also allow the CEO or the Fitness to Practice Committee to order a nurse to pay the College’s costs if the nurse is subject to the Fitness to Practice process. The Fitness to Practice process is a non-disciplinary route for nurses who are experiencing an incapacity due to a “medical, physical, mental or emotional condition, disorder or addiction” that has affected their ability to practice safely. There is no rational basis for ordering such nurses to pay the College’s expenses. We are also concerned that the prospect of an adverse cost award will create a deterrent for nurses who are considering a voluntary referral for themselves to the Fitness to Practice process.

We object to these attempts to expand the authority of the College and its committees to issue costs awards against nurses.

Analysis of Bill as tabled:

Following the Bill’s introduction we conducted a review of the changes that were made as a result of our concerns. The numbers below correspond to the numbering used above.

1. Regulation of Non-Nursing Health Care Providers

No change.

2. New Nursing Designations

Changed.

The unions objected to allowing new nursing designations (e.g. psychiatric nurse) to be created through regulation. The concern was that this could be done without consultation, as is required when there is an amendment to the Act. In response, Bill 121 includes a new provision (s.10(3)) that requires the College to give at least 30 days notice of any proposed regulation changes and to solicit feedback.

3. Power to Impose Fines

Changed.

The draft legislation included a new power for the Professional Conduct Committee to issue a fine in any case where it finds against a nurse. In Bill 121, that power is now restricted so that the PCC cannot issue a fine where the outcome is a finding of incompetence or incapacity, and a fine cannot exceed an aggregate of $50,000 regardless of the number of proven allegations (s.103(1)(m)).

4. LPN Representation on the Board

Changed.

As a result of the unions’ letter, Bill 121 includes a requirement that the College’s Board have at least one LPN and one RN (s.5(1)(a)).

5. Duty to Cooperate

No change.

Bill 121 says a nurse has a duty to cooperate with the College (s.45(1)(b)). Although this is new in the Act, the actual duty already exists in the Colleges’ policies and is a well-accepted principle within professional regulation.

6. Complaints Committee – Nurse’s Right to Appear

No change.

Bill 121 gives a nurse the right to make reasonable submissions and respond to a complaint in the form determined by the Complaints Committee (s.75(c)). Under the current legislation, a nurse always has the right to appear before the Complaints Committee if the nurse chooses. Nurses will no longer have that right in every case. It seems unlikely that this change will negatively impact anyone.

7. Duty to Maintain Confidentiality – Exceptions too Narrow

Changed.

The draft legislation said that a nurse would have to keep information from the College’s regulatory processes confidential and could only disclose the information to the nurse’s own legal counsel. In response to the unions’ letter, Bill 121 now includes an expanded list of exceptions to the confidentiality requirement. A respondent nurse can share information with legal counsel, their union representative or any other representative, and a nurse who is not a respondent can share information with legal counsel for the College or to legal counsel, a union representative or other representative for the respondent (s.130(d) and (e)).

8. Costs Award Following a Hearing – Nurse’s Right to Claim Costs

The draft legislation removed the power of a discipline panel to order the College to pay a nurse’s costs if the nurse is successful. That power was restored in Bill 121 (s.164).

9. Expanded Authority to Order Costs

Under the draft legislation, the Fitness to Practice Committee would be able to order costs against a nurse. Costs could include a long list of expenses including the College’s legal fees, per diems for the Committee members, etc. In response to the unions’ letter, Bill 121 restricts that authority so a nurse can only be required to pay for expenses related to their own remediation or return to practice (e.g. drug testing, medical reports, etc.) (s.123(5)). That is the same as the current authority of the College.

NSGEU President Jason MacLean will be presenting to the Law Amendments Committee on Monday, April 8 and we encourage everyone who can to do the same