Appeal Court sides with nurse acquitted of sex assault on patient, overturns suspension

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This article was published 13/12/2017 (2325 days ago), so information in it may no longer be current.

The Manitoba Court of Appeal has overturned the suspension of a nurse acquitted of sexually assaulting a patient.

The College of Registered Nurses of Manitoba found Tousif Ahmed guilty of professional misconduct last year, deeming it “more probable than not” that he sexually assaulted a patient despite his prior criminal acquittal.

However, his lawyer argued the college’s discipline committee erred in deciding the inconsistencies in the victim’s testimony were immaterial.

In a unanimous written decision released this week, the province’s highest court agreed.

“The record discloses significant concerns with the reliability of the complainant’s testimony,” the decision reads. The college committee “should have explained why it found the complainant’s evidence to be reliable in light of the evidence as a whole,” the court’s decision notes before concluding: “Simply put, the conduct decision was unreasonable.”

The decision comes 13 months into Ahmed’s 18-month suspension.

“We’ve very pleased,” his lawyer Mark Toews told the Free Press.

“We feel the Court of Appeal identified the concerns that we put forward,” he said, adding the college’s decision “could not stand because we viewed it as being unreasonable in light of a lot of the challenging testimony that there was.”

Ahmed was working in the emergency department at Victoria General Hospital in January 2014 when a woman whose name is being withheld arrived for care following a domestic assault. She alleged that during her examination, he groped her breasts and touched her genitalia.

In finding Ahmed guilty, the college’s discipline committee not only suspended him but also imposed permanent restrictions on his practice following his suspension. But its decision rested on balance of probabilities: was nurse or patient more credible?

On this question, the Court of Appeal found the committee’s findings to be “fundamentally flawed.”

“It is, of course, one thing to find one or two inconsistencies on peripheral matters to be immaterial,” the decision says, “it is quite another to find a dozen or more inconsistencies to be immaterial without considering whether all of them taken together, demonstrate an absence of reliability.”

By setting aside the ruling, the Court of Appeal has opened the door for the college to conduct a new hearing or drop the case against Ahmed.

But as for what the college will do, executive director Katherine Stansfield said it’s “too early to say.”

In September, she told the Free Press the college’s regulatory framework is different from the justice system.

“In a court of law, the onus is on the prosecution to prove the case beyond a shadow of a doubt,” she said. “Our role as a regulator is to protect the public.”

That’s still the case, Stansfield said Thursday, and the college is “very confident” in its regulatory processes.

“The mandate is very clear for us and we now have to review this decision and see how it fits with our mandate.”

jane.gerster@freepress.mb.ca