Canada: Unprofessional Conduct And Addictions

Last Updated: November 12 2012
Article by James T. Casey QC

A health professional steals narcotics from her employer, falsifies narcotic records to cover-up the thefts and then consumes the narcotics when she is off-shift. This conduct continues for an extended period of time until the professional is caught by her employer. Does this conduct constitute unprofessional conduct such that the professional can be sanctioned by the discipline tribunal of her professional regulatory organization?

At first blush this seems pretty straight forward. By any reasonable definition, theft of narcotics from an employer and falsification of records would be considered unprofessional conduct. But what if the health professional says the following after being caught?

I have developed an addiction to narcotics. I stole the narcotics because of the compulsion caused by my addiction. Under human rights law, addictions are considered to be both an illness and a disability. Given that I have a disability, my regulatory body has a duty to accommodate me up to the point of "undue hardship". My expectation is that the accommodation will include an informal resolution process in which my addiction and the necessary medical treatment will be addressed but I should not be expected to go through a formal discipline hearing. While I do not deny the thefts or the falsification of  records, I am not prepared to admit that these actions constitute unprofessional conduct since the misconduct was caused by my addiction and disability.

Most of us would agree that this additional information makes this issue anything but "straight forward." Misconduct caused in whole or in part by an addiction raises important public policy issues since some of the most egregious forms of misconduct where the public is most at risk are caused at least in part by addictions. Regulatory bodies take a variety of approaches to misconduct caused by addictions. Some favour an informal resolution without invoking the formal discipline process. These regulators consider that an informal process will satisfactorily protect the public if there is a commitment by the professional to seek and continue treatment. These regulators worry that a formal discipline process will be viewed as "punitive" by addicted professionals perhaps causing professionals to be less likely to seek treatment.

Other regulators consider informal resolution processes to be unsatisfactory in cases where the professional has engaged in serious misconduct. These regulators are concerned about a lack of transparency in the process with the informal resolution being completed "behind closed doors". These regulators note that no professional can ever be disciplined for an addiction in and of itself. Rather, addicted professionals are only disciplined if they engage in misconduct in the work place such as theft and falsification of records. These regulators also note that addictions have elements of both compulsion and control and that not all addicts steal. If there was no element of control, an addiction would not be a treatable disease and we know that many addicted professionals successfully treat their addiction and return to the workplace. These regulators worry that an informal resolution process results in a lack of accountability by the professional for the misconduct. And of course, only those informal processes authorized by the legislation can be utilized and sometimes these processes may not provide sufficient safeguards to protect the public in serious cases of misconduct. In this "traditional approach", a discipline tribunal will make a finding of unprofessional conduct based on the thefts and falsification of records and then take the addiction into account in determining the type of sanctions to impose. Properly crafted orders can strike an appropriate balance by protecting the public while also recognizing that addictions are a treatable disease that may justify a remedial approach in the sanctions phase of the hearing. For example, a discipline tribunal might order that a professional be suspended until medically cleared to return to work; undergo ongoing treatment for the addiction; submit to random drug and alcohol testing; and submit regular medical assessments to the regulator.

While there are advantages and disadvantages to each of the approaches, from my perspective this is a classic policy choice that is best left to individual regulators as part of their oversight of the profession. However, in Wright v. College and Association of Registered Nurses of Alberta (Appeals Committee) 2012 ABCA 267 an argument was advanced that regulators do not have the ability to make this policy choice since using the formal professional discipline process contravenes human rights legislation by failing to properly accommodate the "disability" of addiction.

This is a critically important issue for regulators. If the argument was to be accepted by the Courts it would "tie the hands" of regulators with respect to the policy choice of regulatory approaches to professionals with addictions; it would prohibit the use of the "traditional approach" with respect to addicted professionals and imperil the ability of regulators to properly regulate addicted professionals engaging in misconduct especially those who are in denial and uncooperative.

In Wright two nurses had stolen narcotics from their employers and falsified narcotic records. The nurses did not deny the thefts and forgeries but argued that they could not be found guilty of unprofessional conduct. They argued that the misconduct was caused by their addictions and that CARNA was obligated to accommodate their disability by using either the Alternative Complaints Resolution or incapacity process in the Health Professions Act instead of the formal discipline process. The Hearing Tribunals found the nurses guilty of unprofessional conduct and then proceeded to impose reprimands and a carefully constructed series of orders designed to ensure that the both nurses received ongoing treatment for their addiction. Eventually both nurses were able to successfully return to work. An appeal to CARNA's Appeal Committee was dismissed with the nurses appealing further to the Alberta Court of Appeal.

The majority of the Court of Appeal dismissed the appeals upholding the findings of unprofessional conduct. The Court found the conclusions of the Hearing Tribunal and the Appeals Committee that there was no discrimination against the nurses to be reasonable. There was no reviewable error with respect to the conclusions that the nurses' disability did not play any role in the decision to proceed with the discipline prosecutions and that the nurses were disciplined only for the thefts and forgeries and not for their addiction. The Court concluded that: "Discipline for criminal conduct is based on objectively justifiable social criteria, not stereotypical thinking or arbitrary judgment of personal characteristics. While the law recognizes that an addict cannot always control their addiction, the law does require that the addict control her conduct sufficiently to comply with the criminal law." The Court rejected the argument that the use of the disciplinary process constituted discrimination. The Court recognized that it is the finding of unprofessional conduct that triggers the power in the Hearing Tribunal to make rehabilitative orders which can provide meaningful accommodation of an addiction. The dissenting Justice of the Court of Appeal would have remitted the case back to the Appeals Committee for a further consideration of the accommodation issue.

I was honoured to represent CARNA in the Wright case at the Hearing Tribunal, the Appeal Committee, and the Court of Appeal level. Wright represents a very important precedent for professional regulators and is one of the few decisions that directly address the impact of addictions on findings of unprofessional conduct. We have been advised by legal counsel for the nurses that they intend to seek leave to appeal to the Supreme Court of Canada so it may be that the last chapter of this story has not yet been told. We will keep our readers posted of further developments in this case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions