Decision to suspend ER nurse acquitted of sex assault flawed, lawyer tells Appeal Court

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This article was published 25/09/2017 (2945 days ago), so information in it may no longer be current.

The lawyer for a Winnipeg nurse found guilty of professional misconduct as a result of a sexual assault allegation is asking the Manitoba Court of Appeal to quash the finding.

Nurse Tousif Ahmed listened intently in court Monday while his lawyer, Mark Toews, argued that the College of Registered Nurses of Manitoba erred in finding him guilty.

Any decisions or orders of the panel of the College discipline committee may be appealed by the registered nurse to the Manitoba Court of Appeal.

Ahmed was a nurse working in the emergency department at Victoria General Hospital in January 2014 when a woman whose name is being withheld arrived, seeking treatment following a domestic assault.

She alleges that during what should have been a routine examination, he groped her breasts and touched her genitalia. While a criminal court acquitted Ahmed of sexual assault charges, the college committee deemed it “more probable than not” that the assault occurred and suspended his licence for 18 months in addition to imposing permanent restrictions on his practice.

That decision is flawed, Toews argued, because it deemed the numerous inconsistencies in the victim’s testimony to be inconsequential. Indeed, in a he-said, she-said case that saw discrepancies on the part of both victim and accused, the college committee determined the woman’s evidence to be the more reliable of the two.

Toews’ rejects that analysis.

“This is a credibility issue,” he told the court before noting the “litany of issues” with the woman’s testimony. Toews specifically highlighted a point at which the woman spoke first about her very good memory, but then struggled to remember details about the room in which the exam took place and whether the nurse’s hands went up or down while he was allegedly groping her breasts.

Toews was then asked by the Appeal Court judges to acknowledge the difference between quantity and quality of discrepancies. After all, the committee wrote that it believed Ahmed had “intentionally misled the police” about whether the woman suffered post-traumatic stress, a discrepancy it deemed much more severe than the woman’s own. Toews argued that Ahmed was simply answering questions from memory and actually pointed the police toward the hospital records that would have the correct answer. That’s hardly, he argued, the action of a man making a deliberate attempt to deceive.

Ultimately, while Toews did acknowledge that there is a difference between quantity and quality of discrepancies, he said, “you can’t ignore the quantity.”

“Each one alone might have been minor and immaterial,” he said, “but cumulatively it starts to paint a picture of unreliability.”

The college’s lawyer, William Haight, rejected that idea, saying the college committee considered all the evidence and was ultimately satisfied with the complainant’s explanations. He went on to reiterate the committee’s own decision, saying it considered the small inconsistencies or omissions of detail but still deemed her credible.

“They went through a very thorough analysis,” he said, “they do say overall that they believed her.”

The court reserved its decision to a later date.

— with files from Katie May

jane.gerster@freepress.mb.ca