by Written on behalf of Wise Health Law April 24, 2018 4 min read

A registered nurse (RN) appealed a decision of the Health Professions Appeal and Review Board (HPARB or the Board) which had refused to annul the nurse’s first unsuccessful writing of the Canadian Registered Nurse Examination (CRNE). Since the RN had failed the CRNE three times, she was unable to register as an RN. The Superior Court dismissed her appeal.

What Happened?

The RN in question wrote the CRNE in June 2013, October 2013, and June 2014 and was unsuccessful all three times. At the time, s. 9(2) of Regulation 275/94 of the Nursing Act provided that an applicant seeking registration as an RN in the General class could not write the CRNE if that person has previously failed it on three occasions (that regulation has since been amended). The requirement that an applicant successfully complete the CRNE is a non-exemptible requirement of registration. However, in exceptional circumstances, the Registration Committee has the discretion to annul an examination attempt so that an applicant can write the examination again. The RN asked the Registration Committee to annul her first examination attempt on the grounds that she did not feel that she had been prepared for that attempt. The Registration Committee rejected her request, noting that there were no exceptional circumstances, and explaining the determination of exceptional circumstances is a discretionary decision “primarily based on circumstances that the applicant could not have predicted would occur or was unable to fully comprehend at the time he or she wrote the examination”.

Appeal to HPARB

The RN sought a review of the Registration Committee’s decision by HPARB. She outlined her personal circumstances in the period leading to the first exam, explaining that her mother had died the previous year, and that she had subsequently suffered from anxiety and depression, taking medications with side effects that included drowsiness, fatigue, and headaches. In support of her position, she submitted a report from a registered psychologist whom she had seen in November 2015.

HPARB’s Decision

HPARB confirmed the Registration Committee’s order, finding no grounds to annul any of the RN’s examination attempts. The Board specifically commented on the RN’s argument that she had been unable to fully comprehend her inability to pass the CRNE the first time she wrote it due to her mental and emotional state, noting:
… The Board is sympathetic to the situation. However, the should have known of any side-effects of her medications well before she attempted the examination and she had the opportunity to assess the impact of her mental and emotional state before the attempt. It is the responsibility of candidates to assess their own personal circumstances in determining when to take the examination.
The RN appealed the Board’s findings to the Superior Court, arguing that her evidence and that of the registered psychologist had not been contradicted and had established that she had been suffering from a number of factors including grief, anxiety, and depression which had prevented her from fully appreciating her inability to write the CRNE successfully on her first attempt.

The Superior Court Decision

The Superior Court dismissed the RN's appeal, noting that while HPARB’s reasons for their decisions were brief, they were sufficient to explain the Board's findings. HPARB had found that the RN had the onus (i.e. responsibility) to establish her mental and emotional state at the time of the examination, and to connect the direct impact of this on her inability to comprehend it’s potential negative effect on her exam performance. The Board had further found that all evidence about the RN’s state of mind around the time of the first CRNE came directly from the RN herself- the registered psychologist had not assessed the RN at the time of this first exam. When the registered psychologist did assess the RN (around two years after the first CRNE), the registered psychologist relied on the RN’s own account of the history of her condition in finalizing her report. In addition, HPARB found that the registered psychologist had not provided an opinion that the RN had been confused at the time of the first CRNE or that she was unable to comprehend her inability to pass it. In light of all of this, HPARB concluded that, while they had sympathy for the RN’s situation:
the could and should have assessed the side effects of her medications and the impact of her mother’s death well before the examination. That is a reasonable conclusion, given that the appellant’s mother died a year earlier, and the appellant had been taking the medications for some time before the examination.
The Court of Appeal found that HPARB’s ultimate conclusion that the RN had not demonstrated exceptional circumstances that would warrant the annulment of her first examination was reasonable, and there was no basis on which to interfere with that conclusion. What Does This Mean for Other Regulated Health Professions? The successful completion of the CRNE is a non-exemptible requirement for registration under the regulations to the Nursing Act. Many other health professions have similar non-exemptible requirements, as well as limitations that may constrain the number of times an examination can be attempted. It can be very challenging to appeal such requirements, even when there are circumstances that suggest that exemptions should be made, as in this case. If you are a regulated health professional and have questions about registration requirements, or would like to appeal a registration or other decision contact Wise Health Law.We focus exclusively on health and administrative law. Our lawyers have significant trial and appellate experience and are passionate about helping regulated health professionals and others in the medical world across the province understand and protect their legal rights. Contact us online, or at 416-915-4234 for a consultation.

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