September 30, 2021, marked the first National Day for Truth and Reconciliation in Canada and the second anniversary of the publication of the report of the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress (the "Viens Inquiry"), which issued several calls to action directed at professional orders in relation to health and social services.
In its decision rendered on September 27, the Disciplinary Council of the Ordre des infirmières et infirmiers du Québec ("OIIQ")1 sentenced one of its members to a one-year striking off the roll, as well as a six-month striking off the roll, to be served concurrently, in connection with the tragic death of Ms. Joyce Echaquan.2 This long-awaited decision, and the publication of the inquest report by coroner Mtre Géhane Kamel the following day, underscored the urgent need for the professional community to focus on implementing these calls to action as part of their mandate to protect the public.
Summary of the facts
On September 28, 2020, Ms. Joyce Echaquan, a 37-year-old Atikamekw woman, died of heart failure while hospitalized at the Lanaudière regional hospital in Joliette. A video, captured by Ms. Echaquan and posted live on a social network shortly before her death, showed some of the nursing staff making shockingly racist remarks about the patient.
Although the coroner determined that Ms. Echaquan's death was accidental, she also concluded that it was directly related to the care she received during her hospitalization and that her death could have been prevented. For example, due to prejudice, nursing staff quickly labelled the patient as dependent on narcotics, and trivialized her cries for help and the verbalization of her pain. Contrary to institutional policies, Ms. Echaquan was placed in physical restraints and sedated, and then isolated without constant monitoring.
Discrimination and disciplinary law
Following the death of Ms. Echaquan, the OIIQ filed a disciplinary complaint against nurse Paule Rocray, who could be heard making racist comments at the patient's bedside. The complaint alleges that she verbally abused Ms. Echaquan, contrary to section 37 of the Code de déontologie des infirmières et infirmiers (the "Code of ethics")3 and that she was negligent in failing to perform the required assessment following a patient's fall, contrary to section 44 of the Code of ethics. The nurse pleaded guilty to both counts, and the Disciplinary Council was asked to rule on the joint recommendation regarding the penalty to be imposed.
Despite the particular circumstances of the case, neither of the two counts of the complaint mentions discrimination. The Code of ethics is one of the few codes of ethics for the health professions that includes a provision prohibiting all forms of discriminatory treatment. Section 2 of the Code of ethics provides that a nurse may not refuse to provide professional services to a person on the basis of race, colour, sex, pregnancy, sexual orientation, civil status, age, religion, political convictions, language, ethnic or national extraction, social origin or condition, a handicap or the use of any means to palliate a handicap.
The decision is silent on the choice of the provisions on which the complaint is based. We note the absence of case law on section 2 of the Code of ethics and on former section 57 of the Professional Code, repealed in 2020,4 which also explicitly prohibited discrimination.
Instead, the Disciplinary Council treats discrimination as a contextual element and an aggravating factor when determining the penalty to impose.5 At this stage, the Disciplinary Council finds it "concerning that the respondent does not realize that her comments were discriminatory towards Indigenous persons, even though she claims that this was not her intention."6
The Disciplinary Council is touching on a fundamental principle of discrimination. In Andrews v. Law Society of British Columbia,7 the Supreme Court of Canada established that the decision-maker must consider the discriminatory effect of the actions taken or words spoken and not the person's intent. In addition to breaking with this principle, adopting in a professional law context a different framework of analysis that focuses on the subjective intent of the respondent would be difficult to reconcile with the objective of protecting the public.
Towards an inclusive vision of protection of the public
The Disciplinary Council's decision and the coroner's recommendations are indicative of the challenges faced by professional bodies in the health and social services field.
In this era of reconciliation, the goal of protecting the public must be viewed through an inclusive lens of the concept of "public," that includes Indigenous persons and persons who belong to historically marginalized groups.
Thus, the coroner's report on the circumstances of Ms. Echaquan's death highlights, as did the report of the Viens Inquiry, the presence of cultural barriers and prejudice in Ms. Echaquan's treatment. The coroner also criticizes the complaint process of the Lanaudière Integrated Center for Health and Social Services ("CISSS"), which, according to her, must be reviewed. She notes that only about ten complaints made by people of Indigenous origin have been recorded at the Lanaudière CISSS.
In her recommendations, the coroner calls on the Collège des médecins du Québec to review the quality of the medical services provided by the physician in charge of hospitalizations in family medicine and by the resident in gastroenterology, both of whom provided care to Ms. Echaquan during her hospitalization in September 2020. The coroner also recommends that the Ministry of Higher Education include in the curriculum of the colleges and universities that train physicians, nurses, and nursing assistants, training on how to care for Indigenous patients that takes into consideration the realities of Indigenous communities.
Following the lessons of this case, an inclusive vision of public protection could include the following:
- the education of current members of and candidates to the profession about the realities of Indigenous peoples and other minority or historically marginalized groups;
- the sanctioning of discrimination through ethics and discipline;
- accessible disciplinary complaint mechanisms for people from these communities (for instance, one could think of language or geographical barriers) and public education about the role of professional orders and other regulatory bodies;
- prevention work upstream, including through professional inspection mechanisms and training for members of the profession and their representatives (e.g., assistant syndics, the equivalence committee, etc.) in cultural diversity and inclusion.
1 Infirmières et infirmiers (Ordre professionnel des) c. Rocray, 2021 QCCDINF 34 [Rocray].
2 Géhane Kamel, Rapport d'enquête, Loi sur la recherche des causes et circonstances des décès, pour la protection de la vie humaine concernant le décès de Joyce Echaquan. (Our translation: Investigation report under the Act respecting the determination of the causes and circumstances of death, for the protection of human life in the matter of the death of Joyce Echaquan).
3 Code de déontologie des infirmières et infirmiers, I-8, r.9.
4 Act to amend the Professional Code and other provisions in particular in the oral health and the applied sciences sectors, S.Q. 2020, c 15.
5 Rocray, at para. 97.
6 Ibid, at para. 147 (our translation).
7  1 S.C.R. 143.
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