Fair Procedure and Students at Risk
This university and college sector bulletin highlights an important and easily overlooked consideration in managing students at risk: protection of the procedural rights of students who are required to participate in medical assessments.
Following the Virginia Tech shootings in April 2007, universities and colleges across the province put in place formal protocols to ensure that students who exhibit certain concerning behaviours are assessed. These policies contemplate mandatory formal assessments by qualified medical professionals where there are reasonable grounds to believe a student poses a significant threat.
This approach to managing students at risk is valid, and the “reasonable grounds” substantive threshold for requiring a student to participate in a medical assessment is well-understood. A recent Divisional Court case called Cotton v. College of Nurses of Ontario is a reminder that universities and colleges also must meet their procedural duties in requiring medical assessments.
In Cotton, a CNO-appointed board of inquiry gave a nurse notice of its intention to order her to submit to a medical examination because it had reasonable and probable grounds to believe she was incapacitated. The nurse made submissions through counsel, and included two medical opinions and statements from her colleagues that supported her capacity. The board received and considered the submissions and ordered an assessment, but did not provide reasons for its order and denied the nurse’s request for a record of its proceedings.
The Divisional Court quashed the order because the CNO breached the nurse’s right to procedural fairness by failing to give reasons. It commented:
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Individuals have a legal right to bodily integrity and medical privacy. The right is protected through privacy legislation and through an extensive body of case law dealing with circumstances under which an individual can be compelled to submit to medical examinations and other intrusions on bodily integrity.
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The College submits Ms. Cotton had no reasonable legitimate expectation that the Board would give reasons for its decision. It states it has never been the practice at the College for a Board of Inquiry to provide reasons demonstrating reasonable and probable grounds to require a member to submit to a medical examination. We respectfully suggest that the College might wish to re-examine its practice where a medical examination is ordered.
The College further submits that a duty to give reasons is inconsistent with the role of the Board, which was performing a purely investigative function rather than an adjudicative one. We recognize that there may be functions of the Board that are investigative and which are not determinative of the rights of any party. However, an order requiring a person to undergo an invasive medical examination, subject to the penalty of suspension or revocation of licence for refusing to comply, is a determination of rights, even though it may be ordered for an investigative purpose. It is in this context that the duty to observe rules of procedural fairness, including the duty to provide reasons, arises.
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Universities and colleges should take note of these comments. Though the failure to provide reasons is a clear breach of fairness, the Court implies that the privacy interest at stake when an individual is compelled to participate in a medical assessment weighs in favour of significant procedural protections. University and college policies should therefore ensure assessment decisions are based on a fair procedure. Such a procedure need not be onerous, but should provide individuals with the information on which the assessment has been proposed, should allow individuals to make meaningful representations on whether there are grounds to require an assessment, and should require written decisions by an impartial decision-maker. For assistance with this and other issues related to managing students at risk, please contact any member of our Universities or Colleges Practice Groups or your regular Hicks Morley lawyer.
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