Legal Support for BC Nurses and Midwives Facing BCCNM Regulatory Challenges

For a BC nurse or midwife, facing a complaint filed with the British Columbia College of Nurses & Midwives (the “BCCNM” or the “College”) can be an intimidating experience. When facing regulatory challenges, it is essential to respond in a legally informed way to protect your career and reputation.

This article provides some baseline information on the potential risks, procedures, and your administrative law rights when undergoing BCCNM disciplinary action. However, it is for informational purposes only, and you should seek legal guidance promptly when undergoing or anticipating a BCCNM disciplinary process.

Taylor Janis Workplace Law offers legal services to all professionals facing regulatory actions across British Columbia. You can contact us at our Vancouver or Kamloops office today to schedule a consultation.

The Regulatory Powers of the BCCNM

The BCCNM Is a Statutory Regulator

Under the BC Health Professions Act (the “HPA”), the British Columbia College of Nurses and Midwives is the regulatory college for all BC licensed practical nurses, nurse practitioners, registered nurses, registered psychiatric nurses and midwives, who will be collectively referred to as its “registrants” throughout this article for brevity.

Under the HPA, one of the BCCNM’s primary objectives is to serve and protect the public. To advance this goal, the College is responsible for establishing, maintaining and enforcing standards of qualification, ethics, professionalism, practice and competence for nursing and midwifery.

The BCCNM’s Disciplinary Powers

Under the current Health Professions Act, the BCCNM has broad statutory disciplinary powers and discretion over its registrants.

The Health Professions and Occupations Act (the “HPOA”), which is expected to come into full force on April 1, 2026, was introduced to reform some aspects of the regulatory schemes governing health professions in BC. The HPOA, even when it is in full force, will not take away the BCCNM’s standing as a regulatory college.

Both the HPA and the HPOA confer broad bylaw-making powers to the BCCNM to govern its internal procedures as well as the professions of nursing and midwifery. Under the HPOA, the College will retain and continue to exercise much of its current regulatory powers over licensing, complaint processing and investigating disciplinary matters.

The takeaway here is that the BCCNM is the statutory regulatory body for the self-regulated professions of nursing and midwifery, and its decisions have legally binding effects on its registrants.

*The information provided in the article is descriptive and applicable to the current regulatory scheme under the HPA and the parts of HPOA already in force, except where it is otherwise specified.

What Are the Consequences of Being Disciplined?

Under the current regulatory scheme, if the BCCNM makes an adverse disciplinary decision, it might do one or a few of the following to the disciplined registrant:

• Reprimand the disciplined registrant;
• Impose limits or conditions on the registrant’s practice;
• Suspend the registrant’s registration;
  • The College may impose limits or conditions on their eligibility to apply for reinstatement or on the management of their practice during a suspension.
• Cancel the registrant’s registration;
• Issue a fine of up to $50,000; and
• Recover certain costs associated with the disciplinary process from the disciplined registrant.

Hence, being disciplined by the BCCNM can have severe financial and career consequences. A suspension or cancellation of your registration can be career-threatening, and even a seemingly “lesser” discipline measure, such as a condition placed on your nursing or midwifery practice, can be highly disruptive to your career and even personal life.

Furthermore, being disciplined can result in widespread and irrecoverable reputational damage. Under the HPA, final and adverse disciplinary orders by the Discipline Committee must be put on public notice. Moreover, under the BCCNM Bylaws, such orders must also be notified to all BCCNM registrants and regulatory bodies for the disciplined registrant’s profession in all other provinces of Canada.

Do Not Overlook the Risks

The regulatory scheme governing nursing and midwifery is intricate, and perspectives often diverge when it comes to a disciplinary matter. Even a seemingly trivial or unfounded allegation can result in severe and irrecoverable financial, career and reputational damage.

It is highly recommended that you obtain legal advice when facing the BCCNM’s regulatory scrutiny, so that you can assess and mitigate potential risks in a legally informed way.

Taylor Janis Workplace Law is committed to providing transparent legal advice. If there is a substantial risk, we offer full representation; if the risk is minimal, a consultation with us can provide you with peace of mind.

Skilled legal advice and representation are not only instrumental to risk assessment but also for navigating the procedural complexity of BCCNM regulatory actions. Please read on to know more.

The Disciplinary Procedures of the BCCNM

Complaint Process

Under the HPA, any person can file a complaint with the BCCNM against its registrants. The registrants also have a positive duty to report their peers for sexual misconduct or conduct endangering the public. Moreover, the Inquiry Committee of the College can initiate an investigation on its own motion for a variety of concerns regarding a registrant’s conduct.

Hence, a complaint is not the only way to trigger a BCCNM disciplinary process, and it does not necessarily arise out of a patient-nurse or client-midwife relationship.

Once the College’s Registrar receives a complaint, they must refer it to the Inquiry Committee of the College, unless they have determined that the complaint is trivial, frivolous, vexatious or made in bad faith, or the matter lacks the gravity to trigger an investigation.

The Investigation by Inquiry Committee

Under the HPA, The Inquiry Committee must investigate a matter referred to it as soon as possible. When under investigation, you have a duty to cooperate, but you also need to avoid legal pitfalls.

An investigation can be highly disruptive to your professional and personal life. The Inquiry Committee has broad investigatory powers and can direct an inspector to:

• Require and retain information, records and/or certain physical evidence from the investigated registrant;
• Require the investigated registrant to answer questions and/or to be interviewed; and
• Inspect the investigated registrant’s premises for practice.

Under certain circumstances, the Inquiry Committee may also:

• Authorize a person to apply for a court order, thus to expand the investigatory power to search other premises and/or to seize other evidence; and/or
• Place restrictions on /suspend the investigated registrant’s practice during an investigation for the protection of the public.
  • A restriction, condition or suspension imposed on a registrant’s practice will be put on public notice, thus resulting in severe reputational damage even before a final disciplinary decision is reached.

Legal advice and representation are strongly recommended if you are expecting or undergoing a BCCNM investigation, as it is essential to respond in a legally informed manner. Moreover, a prompt and robust response may also lead to an expedited resolution.

Discipline Committee Hearings

After an investigation, an unresolved complaint will be referred to the BCCNM Discipline Committee for a hearing. A hearing is a quasi-judicial process that can be highly challenging and intimidating to navigate. This is for a few reasons:

• A hearing is quasi-judicial and adversarial procedure:
  • The parties (the College vs. the respondent registrant) both have a statutory right to legal representation, and a complainant may be represented by counsel if they are also presenting evidence.
  • A hearing is an adversarial procedure, meaning that decisions are made on the relative strength of the parties’ legal and factual submissions. Given that both the facts and legal issues are often intensely contentious, successfully defending against an allegation often requires extensive preparation and strategic planning.
• The timeline for preparation is limited:
  • Under the HPA, a hearing citation may be delivered to you as late as 30 days before the date of the hearing, and the date, time and place of the hearing may be provided with as little as 14 days’ notice.
• At the hearing, you may be compelled to testify under oath or disclose records:
  • A respondent may be compelled (ordered) to testify and be subjected to examination (being scrutinized with questions). Failure to cooperate may result in severe legal consequences.
  • Preparedness and awareness of common pitfalls are essential to avoid prejudicing yourself.
• The procedures have profound reputational implications:
  • Hearing citations are put on public notice, typically including identifiable information regarding the respondent registrant.
  • Hearings are presumptively open to the public. Therefore, severe reputational harm may occur even before a decision is made, especially if you are underprepared for the hearing or act in ways that prejudice yourself.

A hearing is not only highly challenging but also consequential. A hearing decision by the Discipline Committee cannot be internally appealed within the BCCNM, and the only way to overturn it is to appeal it to the BC Supreme Court.

If a disciplinary matter escalates to a hearing, the importance of exercising your statutory right to counsel becomes eminently clear.

Alternative Resolution Processes

There are alternative ways to resolve a disciplinary matter without going through an entire hearing process. After an investigation has commenced:

• The Inquiry Committee may assist the complainant and the investigated registrant in resolving a complaint voluntarily.
• The Inquiry Committee may also request the registrant to consent to a reprimand or undertaking (known as a reprimand or remedial action by consent).
• An investigated registrant can also propose a consent order to the Inquiry Committee by admitting to certain alleged facts and proposing discipline orders against them. Such proposals may or may not be accepted.

However, these alternatives should be approached carefully and strategically under legal advice. This is because:

• A settlement or resolution by consent is normally legally binding. Hence, you should only agree to what is fair and reasonable, considering all the relevant legal and factual factors.
• A consent order requires admission to at least some of alleged facts, which will substantially foreclose an appeal on grounds of erroneous fact-finding.
• An alternative resolution can result in severe reputational damage:
  • A consent order must be published, as it is considered equivalent to a discipline order.
  • A remedial action by consent related to a serious matter will be published. (A serious matter includes any matter that would normally attract sanctions more than just a reprimand or fine. )

Although alternative resolutions can be advantageous in the right circumstances, you should not make a hasty decision. Instead, you should retain a lawyer to comprehensively review your case and then make legally informed and strategically sound decisions.

Seek Legal Advice Promptly

When undergoing a BCCNM disciplinary process, you should act promptly in obtaining legal advice, which can be essential for navigating the procedural complexities and challenges, and streamlining the procedures where possible and reasonable, thus minimizing the disruptive effects.

Please do not hesitate to contact Taylor Janis today to schedule a consultation if you have any questions or concerns about an impending or ongoing BCCNM disciplinary procedure.

Legal advice can be crucial not only when navigating the procedural complexity but also when preparing an effective defence. Please read on to know more.

An Effective Defence

When facing a BCCNM disciplinary action, an effective defence at the hearing can shape its outcome, and a robust response early on may prevent a meritless allegation from being processed further. However, it can be a challenging task to formulate an effective defence, which often requires legal expertise, strong evidence and skillful advocacy.

The Legal Expertise

The legislative and regulatory framework for nursing and midwifery is complex. The rules applicable to a BCCNM registrant are multi-sourced, complex and often nuanced. When preparing a legal argument, it is necessary to bear in mind that:

• There is a broad range of disciplinable conduct, and there are multiple sources of rules specifically applicable to BCCNM registrants.
  • Under the HPA, disciplinable conduct includes non-compliance with the HPA, its accompanying regulations, the BCCNM Bylaws and the standards established by the College, including the Code of Ethics of your respective profession.
  • Thus, legal expertise in interpreting and applying rules from all the above-mentioned sources is often essential for an effective legal defence.
  • Disciplinable conduct also includes incompetent practice, professional misconduct and unprofessional conduct. Moreover, significant impairments to a registrant’s ability to practice can also affect their professional standing. Issues related to these can be highly nuanced, and correctly interpreting the applicable standards often requires broad legal knowledge.
    • For example, competence does not equate to perfection. Whether a nurse or midwife has acted competently may be assessed with references to not only the published standards but also other legal authorities, such as common law precedents.
• A pharmacist or pharmacy technician has to observe all the laws at all times, just like everyone else.
  • When making a disciplinary decision, the College may consider legal authorities such as common law cases and prior regulatory decisions, in addition to the legal rules specifically applicable to pharmacists and pharmacy technicians.
  • Correspondingly, persuasive legal and regulatory action precedents can be the basis of a strong legal defence. However, to appropriately cite and apply such legal authorities may require a high degree of legal acumen.

A lawyer can leverage their legal expertise to identify and apply a wealth of appropriate legal authorities and conduct in-depth analysis, and these abilities can sometimes be indispensable for formulating strong legal defences.

The Evidence

A disciplinary decision can only be based on facts substantiated with evidence. During a disciplinary procedure, the perspectives of the parties involved often diverge, and facts are often intensely disputed. When preparing a factual argument, it is important to know that:

• The strength of your evidence is assessed relative to the competing evidence, especially at a hearing.
  • This means that evidence needs to be well-organized and presented so that its factual relevance and legal materiality are properly highlighted.
• Evidence has to conform to certain requirements to be admissible, and pieces of evidence are not equal in their strength and relevance.
  • Having your lawyer emphasize the strength of your evidence and the weaknesses of problematic competing evidence can be instrumental in advancing your factual positions and achieving a favourable outcome.

We Advocate for You

The experienced lawyers at Taylor Janis can not only assist you in preparing strong legal and factual arguments but also advocate for you and assist the adjudicator in their effort to make fair decisions. This can be crucial for safeguarding your legal rights when facing a regulatory challenge.

Contact us today for an initial consultation, which is the first step in securing a tailored legal plan and defence strategy.

Your Rights when Facing Regulatory Action

When undergoing a BCCNM regulatory action, it is crucial that you are informed about your common law and administrative law rights, and protecting such rights is integral to upholding fairness.

Your Rights Are About Fairness

Your rights are ultimately about fairness, and they can be put into three broad but distinct categories, as summarized below:

• The right to substantive fairness:
  • This means the decision must meet certain standards in its legal and factual reasoning.
  • Under the HPA, a registrant can appeal a decision by the BCCNM Discipline Committee to the BC Supreme Court, where an impugned decision is assessed by the appellate standards as if it were made by a lower court.
  • Hence, the standards of substantive fairness are that a decision must not contain “palpable and overriding error” in fact-finding, and its legal reasoning must be correct. These stringent legal thresholds are iterated in the Supreme Court of Canada decision Housen.
• The right to procedural fairness:
  • Broadly speaking, you have a right to “know the case against you and make full answer and defence”.
  • This right is infringed if there is a lack of due process or when due process is conducted unfairly. Thus, procedural fairness issues must be assessed through a detailed analysis of how a procedure was conducted, together with an understanding of the due process requirements under the HPA and the BCCNM Bylaws.
• The right to an unbiased decision maker:
  • This right is infringed if a decision or decision-making process raises a reasonable apprehension of bias to an informed third person observing the entire circumstance.
  • Alleged bias must be substantiated with evidence to meet the high legal and factual thresholds: remember, reasonable apprehension of bias is not “any apprehension of bias”.

It is highly challenging to have an unfair decision overturned because a valid claim of infringement is subject to stringent legal thresholds. Hence, the recommended approach to safeguarding your rights is to have legal counsel engaged with the entire disciplinary process, so that they can spot, flag and object to potential infringements as they arise.

Appealing an Unfair Decision

If a registrant has concerns about the fairness of a decision by the Discipline Committee, they can appeal that decision to the Supreme Court of British Columbia within 30 days of receiving it. However, an appeal is a formidable challenge because:

• An appeal procedure is complex and likely lengthy, and the appellate standards for an appeal to be successful are very high (as discussed above).
  • Adding to the difficulty, courts are, at common law, required to pay deference to regulatory decision makers out of respect for legislators’ intent following the Supreme Court of Canada decision Vavilov.
• The damaging effects of a disciplinary order by the Discipline Committee may continue to take place during the likely lengthy appeal procedure.
  • This is because an appeal does not automatically pause the enforcement of a discipline order. Moreover, even if an appeal is successful, the matter may be sent back to the College to be re-determined, rather than being quashed outright.
• An appeal can be highly technical and are ideally approached under legal guidance
  • An appeal is normally not a “rehearing” of the alleged conduct. This means normally only rights-related issues will be considered, and you cannot submit additional evidence regarding the alleged conduct.

Hence, although you have a statutory right to appeal a BCCNM disciplinary decision, an appeal should be seen as a last resort attempt to seek judicial remedies after the damage of an adverse decision has started to take place.

The Value of Early and Ongoing Legal Representation

Our strong recommendation is that you engage legal representation early and throughout the entire disciplinary process, upholding your rights every step of the way.

However, if an appeal becomes necessary, you can rely on Taylor Janis for legal assistance in navigating the complexities and challenges of an appellate action.

Independent Legal Advice and Representation

The majority of nurses in BC work in publicly funded health care facilities and are members of unions. Even if you are a unionized nurse, obtaining independent legal advice or representation can be highly beneficial when facing regulatory challenges.

Your union is the exclusive bargaining agent with your employer and has the exclusive right to settle most workplace grievances with them. Your union counsel’s main duty is to represent the union in matters related to the collective agreement. Whereas your own lawyer has a duty to give undivided loyalty to you.

Independent legal advice or representation can be essential when:

• The legal matter concerns the regulators, but not your employer.
  • Such matters are typically not captured by a collective agreement and are outside of your union counsel’s main duty. This means your union will not necessarily provide the thorough legal advice or full representation required to handle a disciplinary action.
• A complaint results in your employer inappropriately disciplining or dismissing you, but your union is slow to start a grievance procedure.
  • This can happen when your union does not fully understand your perspectives. Your union has a duty to fairly represent you, but it also has some discretion not to start a grievance procedure. In these circumstances, you should obtain independent legal counsel to highlight the factual and legal background of your grievance. Support from your legal counsel may persuade your union to put more resources and attention into resolving the matter.

Taylor Janis appreciates that your union and union counsel often play critical roles in representing you through workplace legal challenges, but at times, the value of independent legal advice is simply indispensable.

Contact Taylor Janis Workplace Law at our Vancouver or Kamloops office if you are unsure if your union provide you with the adequate legal assistance when facing a regulatory challenge.

Frequently Asked Questions

What Is the Average Timeline for BCCNM to Process a Disciplinary Matter?

The time frame will vary greatly depending on many factors, including the factual and legal strength of the allegation, the gravity and complexity of the matter, as well as how you respond to the situation. A vexatious or frivolous allegation is likely to be dismissed fairly quickly. But if a matter escalates into an investigation or hearing, it can take a few months or even over a year to resolve. If you have concerns about the disruptive effects of a disciplinary action, you should obtain legal advice promptly. A lawyer at Taylor Janis can advise you on streamlining the process and achieving expedited resolution where reasonable and possible.

Does My Professional Liability Protection Plan Provide Me with Legal Support in Regulatory Actions?

In BC, all nurses are required to have Professional Liability Protection from the Canadian Nurses Protective Society (the “CNPS”). Nurses may also apply for the CNPS Supplementary Protection Program for an additional fee. This supplementary program provides legal assistance in certain types of disciplinary proceedings. However, it does not cover all regulatory matters, nor does it cover appeals to the courts. If you are unsure whether the CNPS will provide you with adequate legal assistance in your situation, you should have your own lawyer review the coverage and your case.

Can a BCCNM Disciplinary Action Impact My Employment Opportunities Outside of BC?

A disciplinary record can severely affect your career prospects. It is common for professional regulators to require their applicants to disclose disciplinary records and consider disciplinary records when processing applications for membership. Moreover, under the BCCNM Bylaws, the College is required to notify relevant out-of-province Canadian regulators about its disciplinary orders made by its Discipline Committee. Hence, being disciplined by the College can severely affect your long-term career prospects, even if you plan to work outside of BC in the future.

I Am no Longer Registered with The BCCNM. Should I Still Be Concerned about an Impending Disciplinary Action?

For disciplinary purposes, the HPA‘s definition of registrants includes former registrants. Hence, you can be disciplined by the BCCNM long after the cessation of your registration. Even if you are no longer a BCCNM registrant, you should consult a lawyer if you are under its disciplinary scrutiny.

Conclusion

When facing a BCCNM regulatory action, a nurse or midwife should be proactive and seek legal advice promptly. There are several important reasons for this. The College has statutory authority to make legally binding disciplinary decisions against its registrants, and its disciplinary measures can result in severe financial, career and reputational consequences. The procedures involved in disciplinary actions are complex, disruptive and highly consequential. Throughout a disciplinary process, a registrant’s administrative rights are continually engaged, and upholding these rights is essential to achieving a fair outcome. When under disciplinary scrutiny, a robust and effective defence is crucial, and this often requires legal guidance. Furthermore, union counsels may not always provide adequate legal assistance for all types of regulatory actions. These all highlight the importance of obtaining independent legal advice early when facing a BCCNM regulatory action.

References:

• Health Professions Act [RSBC 1996] CHAPTER 183
• Health Professions and Occupations Act [SBC 2022] CHAPTER 43
• Bylaws of the British Columbia College of Nurses and Midwives
• Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653

Resources for Readers:

• Past discipline decisions by the BCCNM
• BCCNM complaints process
• CNPS Supplementary Protection program

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