Prince Edward Island Court of Appeal Establishes Guidelines for Consideration of Remorse as a Factor in Professional Disciplinary Proceedings

• Maddison
  Croden

  Maddison
  Croden

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To what extent can professional regulators consider the level of remorse (or lack thereof) shown by a member found guilty of unprofessional conduct when determining a just and appropriate sanction? The Prince Edward Island Court of Appeal recently provided some guidance on this issue in Llewellyn v College of Registered Nurses of PEI, 2024 PECA 15.

Background

In Llewellyn, a nurse was found guilty of unprofessional conduct following a contested hearing with the College of Registered Nurses of Prince Edward Island. The Hearing Committee of the College imposed a number of sanctions alongside the finding of guilt, including the suspension of the nurse’s registration, a requirement to complete ethics training, and payment of a fine.

In the context of disciplinary proceedings, it is not unusual for a disciplinary hearing to proceed in two phases: a merits phase and a sanction phase. During the merits phase, the Hearing Committee’s focus is to determine whether the conduct alleged constitutes unprofessional conduct. If the conduct in question does in fact constitute unprofessional conduct, the hearing may proceed to a sanction phase, where the Hearing Committee is focused on what the appropriate penalty is for the unprofessional conduct found at the merits stage.

In Llewellyn, the Hearing Committee heard submissions on penalty prior to rendering and communicating a decision on whether the conduct alleged constituted unprofessional conduct. When the Hearing Committee issued a decision, dealing with both merits and sanction, the Hearing Committee identified the nurse’s “lack of remorse” as being of “significant concern” to the Committee. The Hearing Committee noted that the nurse did not take responsibility or accountability for her conduct and relied upon this fact as a relevant factor in determining an appropriate penalty for the nurse.

Decision and Takeaways

The Court found that, in these circumstances, reliance by the Hearing Committee on a lack of remorse by the nurse was an error. The Court reiterated that regulated members are entitled to deny allegations made against them and require the College to establish such allegations. If the member chooses to admit the allegations, that may be properly taken into account in appropriate circumstances when setting a penalty. However, denial should not serve to increase what would otherwise be an appropriate penalty.

The Court found that members should not be subject to risk of a greater penalty for not taking responsibility or for not demonstrating remorse prior to a decision being made by the College confirming that the conduct at issue did in fact constitute unprofessional conduct. The Court clearly stated that “denial of allegations up to the time a determination of professional misconduct or incompetence is made should not result in a consideration by a professional disciplinary body when attempting to arrive at an appropriate penalty”.

The Court noted that lack of remorse may properly be considered when determining sanction. However, lack of remorse at sentencing is not an appropriate factor to consider where a member is asked to express remorse prior to a finding of responsibility being made.

_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}