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Disciplinary law: the victim's vulnerability as an aggravating factor

In a recent decision rendered on October 31st, 2022, the Disciplinary Council of l’Ordre des infirmières et infirmiers auxiliaires du Québec reiterated that the vulnerability of certain patients should be considered as an aggravating factor influencing the disciplinary sentence to be imposed on healthcare professionals found guilty of a infractions concerning these type of patients. This being said, the act of having made disrespectful statements or having behaved abruptly towards a vulnerable patient is a serious infraction that merits a severe sentencing, usually a striking off the roll for several months (Infirmières et infirmiers auxiliaires (Ordre professionnel des) v. Bernier, 2022 QCCDIA 15).

The disciplinary complaint filed by the syndic’s office accused the auxiliary nurse in question of having, amongst other things, spoken disrespectfully or inappropriately to an older resident, and having acted abruptly towards said resident while providing personal hygiene care to her. The auxiliary nurse chose to plead guilty to all the counts contained in the disciplinary complaint, and the parties presented joint recommendations to the Disciplinary council in regards to the sentencing.

In its analysis in order to ensure that the joint recommendations were not contrary to public interest and were not susceptible of bringing the proper administration of justice into disrepute, the Disciplinary council considers the gravity of the disciplinary charges laid out against the professional. The Council affirms that beyond the technical skills possessed by those in healthcare, these professionals must also have human moral qualities. Seeing as many beneficiaries are in a position of extreme dependence, those who are called upon to offer them medical care, notably nurses and auxiliary nurses, must behave with tact, empathy and as much sensitivity as possible. When patients are older or more vulnerable due to a particular medical condition, the nurses and auxiliary nurses who care for them, although they may often find themselves in difficult situations, must necessarily act with patience and compassion.

According to the Disciplinary Council, providing healthcare with competence, as well as sympathy, is at the very heart of the profession, and all abrupt behavior or the use of disrespectful language towards a patient must never be tolerated. The case proved that the resident in question was 72 years old and suffered from cognitive impairment and anxiety. The auxiliary nurse’s inappropriate conduct could have had severe consequences on the general health and well-being of the resident.

The Disciplinary council also takes into consideration the professional’s guilty plea, as well as his moderate risk of reconviction, seeing as the auxiliary nurse seemed to still be working on his ability to better control his emotions, and concludes that the joint recommendations presented by the parties in regards to the sentencing is not contrary to public interest and does not bring the proper administration of justice into disrepute. These recommendations, that included a temporary striking off the roll for a period of four (4) months, also fell within the range of sanctions imposed on professionals found guilty of the same type of infraction in similar circumstances Dubé Légal inc., disciplinary law lawyers.