IQALUIT
Deborah McKeown, the former Cape Dorset nurse who was at the heart of a three-month-old boy's unresolved death in that community, is facing 19 new allegations against her brought forward by the territorial nurses association's internal process.
Yellowknife lawyer Austin Marshall, representing McKeown, was at the Nunavut Court of Justice via teleconference July 12 to stop that process instigated by the executive director of the Registered Nurses Association of the Northwest Territories and Nunavut, Donna Stanley-Young. Lawyer Adrian Wright is counsel for the association. Nurses in Nunavut and the Northwest Territories are self-regulated and, as such, follow the Nursing Profession Act.
Justice Paul Bychok referenced a letter signed by Stanley-Young, dated May 3, entered as evidence.
The letter quotes a portion of the act that states if the executive director of the association has evidence that the conduct of a nurse is likely to pose a significant risk to the public, but there is not a complaint, the executive director must file a complaint with the chairperson.
"She goes on to say," said Bychok, reading from the letter, "'I have evidence to indicate the conduct of Deborah McKeown is likely to pose a significant risk to the health or safety of the public. Please see the attached for details.'"
The 19 new allegations were not disclosed in court
"With respect to the jurisdiction of this court, on the face of it, the executive director is acting pursuant to statutory authority. In light of that, where do you say the court has jurisdiction to put a stop to the executive director making a complaint which, according to the wording of the act, is mandatory," Bychok asked Marshall.
"Put another way, is Mr. Wright correct that your application is premature?"
Marshall maintained that when the separate matter of his client's application for a judicial review filed January 2015 - a court action in which McKeown is seeking to have her licence reinstated - was being addressed in court in March, he and his client were led to believe those 19 allegations stemming from 2012 were the totality of what McKeown faces.
He noted that the new allegations stem from the same time period.
Wright later denied that the subject of any further allegations ever came up in discussion in March.
Marshall continued: "What we say is the college disciplined Ms. McKeown on those allegations. Ms. McKeown agreed to a certain outcome. Ms. McKeown did what was required of her. Then they started it up all over again. That's why that action (judicial review application) is in court.
"That was in March. Then a month later, Ms. Stanley-Young, purportedly acting under statutory authority, lays a whole new raft of complaints in her own name."
Marshall then accused the association of "abuse of process and unreasonable delay."
"They've had their crack at Ms. McKeown. And now they're back for a third and fourth time over problems that have been around for a number of years," he said.
Marshall wants to see the evidence cited by Stanley-Young, which he maintains should be part of the record the association was ordered to provide him, in order to determine if McKeown "has to go through another two to three years of hearing process."
"Meanwhile her career is being ruined, her health is being ruined," he said. "That's why it's critical and important to do this (stop the association's process)."
Wright, for his part, outlined that process. The complaint, with Stanley-Young's allegations, go to the chairperson, who determines whether or not the complaint is "frivolous or vexatious" or whether it merits investigation. If there is an investigation, the chairperson must then decide if there is sufficient evidence for a hearing.
"What Mr. Marshall is really trying to do is review a complaint," said Wright, maintaining that once an investigation is complete, if there is one, that would be the time for Marshall to speak up on behalf of McKeown.
"When the evidence is out," said Wright. "Or in front of the board of inquiry."
Wright maintained that the process has to be properly brought before the association's board of inquiry.
"The process should run its course. The court should not get into deciding at this stage whether or not there is any abuse of process. The process is set up to deal with this. It's a self-governing profession. It has the expertise and experience of dealing with these things. It can make any order the court can make. And it's the proper forum for this," Wright said, adding the process is legislated.
"Bear in mind there are no findings at this time. They're just allegations," said Wright.
A special chamber session is being scheduled to discuss the matter further.
"Mr. Marshall has raised two issues which are serious that we simply cannot deal with this afternoon," said Bychok.
The two issues are the sufficiency of the record the association provided to Marshall and whether or not the executive director of the nurses association was acting in bad faith when she made her complaint.
