[2010] N.J. No. 374

2010 NLTD(G) 182

Newfoundland and Labrador Supreme Court

R.M. Hall J.

December 1, 2010

The appeal arose from a decision of the respondent, the College of Licensed Practical Nurses of Newfoundland and Labrador ("the College"), which sustained a complaint against the appellant, George Parsons, holding that the appellant failed to maintain the standrds of practice of the profession by physically and verbally abusing a patient. The allegations were made by a nursing student, Lisa Barrett, who submitted a complaint to the College which alleged that the appellant had made derogatory comments toward an elderly patient and had handled him roughly during a shift where she worked with the appellant.

Ms. Barrett testified before the College's tribunal who found her to be a very credible witness, and noted that her reconstruction of the incident was consistent with what others had indicated she related to them and with what she had provided in her written statement. In particular, she described how the patient appeared to be in great physical discomfort after the abuse, had tears in his eyes, moaned, and curled into a fetal position. Several other witnesses also testified and described the abuse the way that it had been described to them by Ms. Barrett. These witnesses were very descriptive and believable in the way that Ms. Barrett had described the abuse to them. The tribunal concluded that the abuse as described by Ms. Barrett did occur.

On appeal, the appellant argued that the tribunal's assessment of credibility was unreasonable. The appellant noted that there was no physical evidence to support the allegation that the patient had been handled roughly, and that Ms. Barrett was inexperienced and had perhaps misinterpreted what were normal reactions from the patient as pain. There was evidence that the patient was difficult to dress, and that he often exhibited pain behaviours due to his medical condition.

The Court of Appeal overturned the tribunal's decision. It held that the tribunal was "seduced" into believing Ms. Barrett because of her demanour and her consistency on the stand. However, the tribunal failed to analyze the fact that the corroborating evidence was hearsay and the mere fact that these witnesses were credible did not improve the quality of the evidence offered by Ms. Barrett. Moreover, the Tribunal did not consider at all the evidence of the witnesses testifying to the pain behaviours regularly exhibited by the patient. The tribunal's decision was quashed.