College of Nurses of Ontario v. Member, RN, 1997 CanLII 26257

Discipline Committee Of The College Of Nurses Of Ontario

The following is a public record of the hearing between the COLLEGE OF NURSES OF ONTARIO and Member, RN heard on September 29, 1997.

REASONS FOR DECISION

A panel of the Discipline Committee of the College of Nurses of Ontario convened a hearing to hear the following allegations brought against the Member:

1. You have committed an act of professional misconduct as provided by s. 85(3)(c) of the Health Disciplines Act, R.S.O. 1990, c. H.4 as amended, and s. 21(n) of Ontario Regulation 549, R.R.O. 1990, as amended, in that during the year 1993, while employed as a Registered Nurse at a facility, in the City of Toronto, in the Province of Ontario, you did conduct yourself or you did commit an act or acts relevant to the performance of nursing services that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular, on one or more dates, you booked off sick and received sick benefits from one employer (Facility A) when you were in attendance and working for another employer (Facility B) in the province of Ontario.
2. You have committed an act of professional misconduct as provided by Section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and Section 1(8) of Ontario Regulation 799/93, in that during the years 1994, 1995, and 1996, while employed as a Registered Nurse at Facility A, in the Province of Ontario, you did conduct yourself or you did commit an act or acts relevant to the performance of nursing services that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular, on one or more dates, you booked off sick and received sick benefits from Facility A when you were in attendance and working for another employer, Facility B, in the Province of Ontario.

Counsel for the College informed the panel that the Member had entered into an agreement with the College by way of an Agreed Statement of Fact. The following Agreed Statement of Fact was entered into the hearing, as exhibit number two.

1. The Member has been registered as an RN with the College of Nurses of Ontario (the “College”) since 1988. Prior to coming to Canada, the Member worked as a registered nurse in Poland from 1978 to 1981. The Member has had no previous complaints laid against her at the College.
2. The Member commenced employment as a graduate nurse at Facility A in 1985. Following her registration with the College in 1988, the Member was employed as a full-time registered nurse until her employment was terminated on May 31, 1996. As a full-time employee, she was entitled to sick benefits for those shifts for which she called in sick.
3. The Member commenced employment on a part-time basis as an RN Facility B in 1991 and worked in that position until her employment was terminated in June, 1996. She had no entitlement to sick benefits, but could cancel her shifts due to illness by requesting a sick leave.
4. The Member is currently 38 years old and a single mother with three children. She took on her part-time job at Facility B in 1991 because of mounting financial burdens, including the purchase of a house that year. The birth of her third child in 1993 further increased the family’s financial obligations. In 1995, the Member and her husband separated. She currently supports her three children, as well as her elderly mother who lives with her.
5. Facility A conducted an investigation to determine if the Member had called in sick for shifts that she was scheduled to work at Facility A and then worked the same or consecutive shifts at Facility B. The results of the investigation verified that the Member had cancelled her shift at Facility A on the following four dates and worked the same shift at Facility B:

May 9, 1996 October 24, 1995 April 13, 1995 February 12, 1995

The results of the investigation also verified that the Member had called in sick for shifts which she was scheduled to work at Facility A on the following 31 dates and then worked a consecutive shift at Facility B:

January 28, 1993 May 21, 1993 July 23, 24, 1993 January 6, 1994 March 19, 20, 1994 May 25, 26, 1994 August 30, 31, 1994 September 1, 1994 October 6, 15, 16, 17, 1994 November 15, 1994 January 5, 8, 1995 February 5, 7, 1995 July 23, 1995 August 19, 20, 1995 January 2, 30, 1995 February 28, 29, 1996 March 30, 31, 1996 April 2, 1996

6. Facility A required the Member to provide medical certificates when she was absent from work due to illness for three days or more. With respect to 27 of the above dates, the Member submitted notes to Facility A from her family physician which indicated that she was absent from work due to medical reasons, when such was not the case.
7. The Member admits that on the dates listed in paragraph 5, she received sick benefits from Facility A. She admits that on four of those dates she cancelled her shift at Facility A and worked the same shift at Facility B. The Member further admits that on the remaining 31 dates she called in sick for shifts she was scheduled to work at Facility A and then worked a consecutive shift at Facility B. The Member agrees that this conduct is relevant to the performance of nursing services and that members of the nursing profession would regard the conduct as disgraceful, dishonourable and unprofessional. The Member therefore admits she committed the acts of professional misconduct as set out in allegations 1 and 2 of the Notice of Hearing.

The Member pleaded guilty to allegations #1 and #2. Following the plea inquiry, the panel accepted the plea of guilty and found the Member had committed the acts of professional misconduct as set out in allegations #1 and #2 of the Notice of Hearing.

Counsel for the College then presented a Joint submission on Penalty as follows:

JOINT SUBMISSION ON PENALTY

1. The College of Nurses and the Member jointly submit the following penalty:
   1. the panel of the Discipline Committee shall make an order:
      1. requiring the Member to appear before the panel to be reprimanded; and
      2. directing the Executive Director to suspend the Member's certificate of registration for a period of six (6) months. The order shall be suspended if the Member makes full restitution to Facility A of the sum of $5,750 and in particular, commencing on October 1, 1997, and on the same day of each month thereafter (the “due date”), the Member shall make equal monthly instalments of $125 to Facility A to and including July 1, 2001. If the Member fails to make a payment on the due date, the Member’s certificate of registration shall be suspended for six (6) months;
2. The College and the Member jointly submit that the panel should not direct that the results of this proceeding be included in the public portion of the Register so that a summary of the decision and reasons of the panel will be published but without identifying the Member by name.

Counsel for the College of Nurses stated that the penalty agreed to by both parties satisfied the public interest. The penalty addressed the principles of specific deterrence and general deterrence. The specific deterrence being a six month suspension or restitution, which acknowledges the seriousness of the Member’s conduct. The general deterrence being that this type of conduct will not be tolerated by the profession and carries serious consequences. The College’s submission on penalty was agreed to by the counsel for the defence. The panel requested advice from ILC. She advised that the joint submission be amended as follows:

1. directing the Executive Director to suspend the Member's certificate of registration for a period of six (6) months. The order shall be suspended until July 1, 2001, if the Member makes full restitution to Facility A of the sum of $5,750 and in particular, commencing on October 1, 1997, and on the same day of each month thereafter (the “due date”), the Member shall make equal monthly instalments of $125 to Facility A to and including July 1, 2001. If the Member fails to make a payment on the due date, the Member’s certificate of registration shall be suspended for six (6) months; so that the suspension be for a specified period as required by Section 51(4) of the Health Professions Procedural Code (“Code”). Both counsel agreed with the suggested amendment.

The panel deliberated and accepted the joint submission as to penalty as amended. The panel agreed with counsel that the penalty was appropriate. It fulfilled the objectives of specific deterrent in the Member’s future conduct and a general deterrence to the profession, thereby serving the public interest. The panel took the following factors into consideration: the Member acknowledged that she had engaged in wrong doing; she agreed to make full restitution to her former employer; the employer was satisfied with the arrangement; there had been no other complaints against the Member; and she had been highly thought of by her employer. In addition, the panel took into consideration the personal circumstances of the Member as mitigating the offence.

At the end of the hearing, defence counsel requested a publication ban pursuant to Section 45 (2) (b) and (3) of the Code. It was her submission that financial, personal or other matters disclosed in the agreed statement of facts were of a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or in the public interest outweighed the desirability of adhering to the principle that hearings be open to the public. This request was opposed by counsel for the College. After hearing submissions of counsel and receiving advice from ILC, the panel decided that the request for a publication ban be denied. The panel was not persuaded that the financial and personal information contained in the agreed statement of facts is of such a nature that avoiding public disclosure in the interest of the Member outweighed the public interest of open hearings.