FULL-TEXT DECISION

Note: This is the full text of the decision of the Discipline panel in this matter. Any information identifying clients, witnesses or facilities has been removed [ ]. The member’s name is omitted if allegations have been dismissed or if the results are not placed on the public portion of the Register.

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Panel:

Sandra Millar, Public Chairperson Christine Barber, RPN Member Janise Johnson, RN Member

Lois Vanson, RPN Member

Tom Clifford Public Representative

BETWEEN

COLLEGE OF NURSES OF ONTARIO Counsel for College of Nurses of Ontario

• and -

MARGARET MULLETT #GF-0383-0

REASONS FOR DECISION

MEMBER NOT REPRESENTED

Heard: DECEMBER 7, 2000

This matter came before a panel of the Discipline Committee on December 7, 2000, at the College of Nurses of Ontario at Toronto.

The hearing convened at 10:25 am. The Member was neither present nor represented by counsel. The panel heard opening comments from the College Counsel, asking the panel to take testimony from the Manager of Hearings for the College.

The Hearings Manager testified that the Member had attended a pre-hearing conference at the College on February 9, 2000, advising the College that she would be seeking legal counsel.

Following the pre-hearing conference, the Hearings Manager left messages on March 6, 21, 28, 2000 for the Member, inquiring if she had obtained legal counsel. The Member advised the Hearings Manager by voice mail on March 21, 2000, that she still intended to seek legal counsel. After numerous attempts, the College Staff Discipline Co-ordinator reached the Member on April 25, 2000, and informed the Member that two days of hearings had been set for June 27, 28, 2000. The Member was served with a Notice of Hearing on May 5, 2000. The Hearings Manager spoke with the Member June 12, 2000, regarding the June 27, 28, 2000 hearings and once again encouraged the Member to retain legal counsel. On June 13, 2000, the Member left a message for the Hearings Manager that her counsel was

unavailable until June 22, 2000. The hearing for June 27, 28, 2000 was adjourned to accommodate the Member.

On August 9, 2000, the College Staff Discipline Co-ordinator spoke with the Member and the Member indicated that she had obtained legal services and provided the name of her counsel. By August 16, 2000, the College had received no contact from the Member’s identified legal counsel. The College Staff Discipline Co-ordinator then contacted the legal counsel to see if the Member indeed had retained him. The lawyer responded that he had not been retained but would be willing to advise the Member of available counsel.

On September 12, 2000, the College Staff Discipline Co-ordinator left a message for the Member, informing her that there would be a Notice of Hearing forthcoming. On September 18, 2000, the Member was advised that a new hearing date was set for December 6, 7, & 8, 2000. The Member was personally served an Amended Notice of Hearing, (service sworn October 26, 2000). Due to difficulty with scheduling with the College’s legal counsel the December 6, 2000 date was cancelled. The Hearings Manager left a voice mail message advising the Member of the Hearing date change and sent a package to the process server on November 30, 2000. The process server attempted to reach the Member on December 1, 2, and 4, 2000, at the only known address which had been provided by the Member on her annual payment form for 2000.

The process server provided a report, dated December 6, 2000, to the College. The process server stated that he was unable to reach the Member at that address, and that he had left his business card for the Member.

The Hearings Manager tried to reach the Member by telephone on December 6, 2000, and was advised by voice mail message that the Member’s telephone number had been changed to an area code #519.

The Hearings Manager telephoned the number; there was no answer and no answering machine on which to leave a message.

The Hearings Manager received voice mail messages from the Member advising her that she understood that the Hearing dates were now December 7 & 8, 2000. The Member left a cell phone number for return calls, but the Hearings Manager was unable to reach her after numerous attempts. A message was left at the 519 area code number with an unidentified woman, leaving both the Hearings Manager’s office and home number.

On December 6, 2000, at 2150 hours the Member called the Hearings Manager at her residence acknowledging that she knew that the Hearing dates had been changed to December 7 &8, 2000. The Member advised that she didn’t think she would be able to attend due to weather and traffic difficulties. The Hearings Manager advised the Member of the process and that the panel would want to hear from her and encouraged her to attend. The Hearings Manager testified that the Member understood the process.

On December 7, 2000 at 9:07 am, a voice mail message from the Member was left for the Hearings Manager advising that she would not be attending and would be prepared to accept the Discipline Committee’s finding.

The panel adjourned to consider the testimony and re-convened to continue the hearing.

The Allegations

The allegations against Ms. Margaret J. Mullett as stated in the Amended Notice of Hearing, dated, November 30, 2000, are as follows:

Amended Notice of Hearing

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(8) of Ontario Regulation 799/93, in that in August and September, 1998, while working as a Registered Practical Nurse in the private care of the Client in [the city], Ontario, you misappropriated property from a client or workplace with respect to the following incidents:

a. Your conduct in using the Client’s credit card without the authorization of his financial Power of Attorney on or about eight occasions between August 14 and September 28, 1998; and

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that in August or September, 1998, while working as a Registered Practical Nurse in private care for the Client in [the city], Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all of the circumstances would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:

a. Your conduct in using the Client’s credit card without the authorization of his financial Power of Attorney on or about eight occasions between August 14 and September 28, 1998.

Member’s Plea

The Member did not formally enter a plea, and was not represented by Counsel.

The Evidence

College Counsel provided the panel with a binder of documents entitled Exhibit A, and referred the panel to Tab 1, which was an Amended Notice of Hearing (Exhibit 1).

College Counsel reviewed the allegations in the Amended Notice of Hearing, which stated that the Member misappropriated the use of her client’s credit card, without authorization of the client’s Power of Attorney on 8 occasions.

The Client is now deceased and the College Counsel stated that she would be presenting two witnesses to provide testimony regarding the allegations.

Witness # 1

The Client’s niece testified that she held a Power of Attorney (property) for the Client, and was responsible for all his financial transactions. The witness stated that her Uncle was an elderly, infirm gentleman, who had suffered from two strokes, leaving him with short term memory loss, confusion, aphasia and physical limitations. The Client resided in a retirement facility in [the city]. The Family, on a part time basis, retained the Member’s services. Her duties included driving the Client in her car to his former residence in [another city] and to take him on outings. The Client had two children (son and daughter), who were responsible for his Power of Attorney (physical).

A copy of a letter the Client’s niece wrote to the College on November 29, 1998 with her concerns about the Member’s involvement with the Client’s credit cards was entered as Exhibit #2.

A copy of a Power of Attorney was given to the Client’s niece, December 1997 was filed as Exhibit #3.

A copy of a letter from the Client’s son, to the Member, advising her of her reduced hours of employment with the Client was filed as Exhibit #4. The Client’s son faxed a copy of this letter to the Client’s niece on February 23, 1998. The son requested in the letter that the Member document each day’s activities with the Client, the actual hours worked and the guaranteed hours worked and submit these to the Client’s niece as the liaison person.

Exhibit #5 in these proceedings was a copy of an acknowledgement of two payments to the Member on bank receipts, paid by the Client’s son dated February 19 & 27, 1998 with a hand written notation that he was reimbursed for these expenses on March 21, 1998. The witness stated that she reimbursed the Client’s son for the above payments, and that she would be responsible for the Member’s invoices, after March 14, 1998.

The witness testified that she spoke to the Member in person on February 9, 1998, and on or about March 10 1998, by telephone, discussing employment terms, the Client’s niece’s Power of Attorney and payment of the Member’s invoices for wages and expenses. The Member was to take the Client out for field trips, using her car. Mileage use was included in her hourly rate of $17.00 per hour. If any other expenses were incurred on these outings, an envelope with a small amount of cash was available at the Client’s [city name removed] residence to reimburse for these out of pocket expenses.

A copy of an invoice for the Member’s services for the invoice period of February 23, 1998 to February 28, 1998, with the written notation, “paid March 10, 1998” was entered as Exhibit #5. The witness testified that she had paid the Member the amount owing on this invoice.

As Exhibit #7, the panel received a copy of an invoice for the Member’s services for the invoice period of April 1, 1998 to April 30, 1998, with the written notation, “paid May 3,1998”. The witness testified that she had paid the Member the amount owing on this invoice.

A copy of an invoice for the Member’s services for the invoice period of April 27, 1998 to May 29, 1998, with the written notation, “paid June 9, 1998” was received as Exhibit #8. The witness testified that she had paid the Member the amount owing on this invoice.

A copy of an invoice for the Member’s services for the invoice period of June 1, 1998 to July 1, 1998, with the written notation, “paid July 3,1998” became Exhibit #9. The witness testified that she had paid the Member the amount owing on this invoice.

Exhibit #10 was a copy of an invoice for the Member’s services for the invoice period of July 2, 1998 to July 27, 1998. There was no written notation on this copy regarding payment. The witness confirmed that she had in fact paid this invoice.

As Exhibit #11 the panel received a copy of an invoice for the Member’s services for the invoice period of July 31, 1998 to September 1, 1998. There was no written notation on this copy regarding payment. The witness confirmed that she in fact paid this invoice.

A copy of an invoice for the Member’s services for the period of September 2,1998 to October 1, 1998, with a written notation, “paid October 4, 1998” was filed as Exhibit #12. The witness testified that she had paid the Member the amount owing on this invoice.

Exhibit #13 on the hearing was a copy of an invoice for the Member’s services for the period of October 2, 1998 to November 1, 1998. The witness testified that this invoice was not entirely paid, as the October 29, 1998 invoice for services had no activity description. All remaining hours were paid.

Counsel for the College asked the witness when she first had concerns with the Member’s services. The witness testified that the Member had asked for and received an advance of $200.00 for clothing for the Client in late July 1998. The witness asked the Member for receipts but none were provided.

Exhibit #14 was a copy of a letter from the Member to the Client’s niece, dated October 2, 1998 requesting permission to purchase prescription shoes for the Client and pay for dry cleaning and alterations of seven pairs of pants. The witness testified that the shoe company was directly reimbursed.

Exhibit #15 was a copy of a letter from the Client’s niece to the Member, dated October 3,1998 responding to the Member’s letter of October 2, 1998. In this letter the Client’s niece stated that she was enclosing a cheque for $98.21, payable to Network Cleaners for the Client’s dry cleaning and alterations, and a cheque for $952.00 for the Member’s invoiced services, for September 1998. The witness again requested from the Member receipts for purchased clothing and cautioned her hours of employment were not to exceed 8 hours a week. The witness further testified that the Client had not received any new clothing.

Counsel for the College asked the witness if she had received any response from the Member regarding Exhibit 15. The witness responded: “I don’t recall”.

A copy of a letter from the Client’s niece to the Member, dated October 10, 1998 asking the Member to identify her activities with the Client on October 29, 1998, and to supply invoices for the $200.00 advance for clothing was filed as Exhibit #16. The Client’s niece advised the Member that she had been contacted by [the company] that unauthorized charges had been made on the Client’s credit account.

Exhibit #17 of the hearing was a copy of a statement from [the company], dated September 10, 1998 and October 5, 1998 to the Client for gasoline purchases in the amount of $79.34 and $78.60 respectively.

A copy of a letter from [the company] to the Client’s niece, dated October 5, 1998 requesting cancellation of the Client’s credit card was received as Exhibit #18. [The company] advised the Client’s niece not to make payment until further investigation has been undertaken.

Exhibit #19 was a copy of the letter from [the Card Centre of the company] dated October 19, 1998, addressed to the Client, in care of the Client’s niece, and providing copies of the account charges in question.

A copy of [the company] Credit Card invoice dated August 14, 1998, in the amount of $29.09, and the invoice was allegedly signed by the Client was Exhibit #20 on the hearing. The Client’s niece did not recognize the signature on the receipt as the Client’s.

A copy of [the company’s] Credit Card invoice dated August 31,1998, in the amount of $29.11, and the invoice allegedly signed by the Client was received as Exhibit #21. The Client’s niece did not recognise the signature on the receipt as the Client’s.

Exhibit #22 was a copy of [the company’s] Credit Card invoice dated September 6, 1998, in the amount of $24.54. The witness had been advised that the Member had personally signed this invoice, after her day shift with the Client.

A copy of [the company’s] statement dated October 12, 1998 sent to the Client with a balance owing of

$188.87 was filed as Exhibit #23. The witness questioned [the company] about the purchases on the statement, requested receipts.

A copy of a letter from [the company’s] Card Centre, dated November 9, 1998, addressed to the Client, in care of the Client’s niece enclosing copies of the charges in question was received as Exhibit #24.

Exhibit #25 was a copy of a receipt from [the company], dated September 11, 1998, in the amount of

$23.12. The Client’s niece testified that she did not recognize the signature, but was advised by the Member that the signature was hers.

A copy of a receipt from [the company], dated September 15, 1998, in the amount of $25.02 was filed as Exhibit #26. The Client’s niece testified that she did not recognize the signature, but was advised by the Member that the signature was hers.

Exhibit #27 was a copy of a receipt from [the company], dated September 21, 1998, in the amount of

$22.02. The Client’s niece testified that she did not recognize the signature, but was advised by the Member that the signature was hers.

A copy of a receipt from [the company], dated September 22, 1998, in the amount of $14.50 was filed as Exhibit #28. The Member advised the Client’s niece that she used the card and signed her name to the receipt.

A copy of a receipt from [the company], dated September 28, 1998, in the amount of $30.63 was received as Exhibit #29. The Member advised the Client’s niece that she used the card and signed her name to the receipt.

Exhibit #30 was a copy of a letter, dated November 19,1998, addressed to the Member from the Client’s niece, referring to a letter to the Member, dated November 10, 1998 confirming a telephone conversation dated November 18, 1998. The letter stated that the Client’s niece was enclosing a cheque in the amount of $276.00, representing the Member’s billing of $544.00, less 4 hours billing for October 29, 1998 of $68.00 and less $200. 00 covering funds sent to the Member on July 3, 1998 to purchase clothing for the Client. The Client’s niece advised the Member that receipts and statements for purchases of clothing must be submitted before any payment is made. The Client’s niece further advised the Member that irregularities associated with her account with the Client had been reviewed and that she was confirming the immediate termination of the Member’s services. The Client’s niece further advised that the Client’s daughter would confirm in writing her agreement with her. The Client’s niece addressed the credit card charges on the Client’s account and advised that the Client was not responsible or accountable for himself and that in her opinion, by signing the card, the Member was in violation of her regulatory guidelines. The Member would therefore be responsible to Imperial Oil for these charged amounts owing. The Client’s niece advised the Member she was bringing the matter to the attention of the authorities governing the Member’s licence.

A copy of a statement from [the company], dated November 11, 1998, in the amount of $195.98 was filed as Exhibit #31. The Client’s niece phoned [the company] to confirm the amount of this [company] statement.

Exhibit #32 was a copy of a statement from [the company], dated December 10, 1998, in the amount of

$199.73. The Client’s niece was advised by [the company] that the fraud department was handling this account in a phone call dated December 16, 1998.

A copy of a statement from [the company], dated January 11, 1999, addressed to the Client and showing a balance of $203.92 was received as Exhibit #33.

A copy of a letter to [the company], dated November 25,1998, re: the Client’s account was filed as Exhibit #34. The Client’s niece advised Imperial Oil that the Member was involved in unauthorized use of the Client’s credit card, and that the Member was fully aware that the Client was not financially accountable or responsible for his affairs. The Client’s niece further advised that the Member’s services had been terminated, and that the Member was informed in writing that she should discuss her actions with respect to [the company] Credit card account directly with [the company]. The Member’s address was provided. The Client’s niece notified [the company] that the College of Nurses of Ontario had been made aware of her concerns regarding the Member.

Exhibit #35 was a copy of a letter from [the company’s] Card Centre dated February 5, 1999, advising that a credit of $203.92 had been applied to the Client’s account.

Witness # 2

Witness #2, R.N., Executive Director for the retirement facility, had worked at the facility since 1966. The facility is for “ageing in place”, a 62 resident facility. As the Executive Director, she was aware of all residents’ conditions, based on intake diagnosis and facility staff’s daily reports. The witness testified she had knowledge of the Member as a nurse in charge at the facility, from the fall of 1995 to the fall of 1996 and until she accepted casual employment, terminating March 1997. The witness acknowledged that the Member was taking special nursing assignments at the facility, including the Client.

The witness acknowledged that the Client’s physical condition was known to her and that he required total nursing care. The Client needed care with dressing, transferring and had difficulty speaking and exhibited confusion. The witness further testified that on a cognitive scale of 0 – 4, he was a 2, and suffered from short-term memory loss. The witness stated that the staff and nurses were aware of the Client’s mental status. The witness stated she was aware that there was a Power of Attorney for dealing with all the Client’s financial matters. In November 1998, the witness became aware of the problems with the Member and the Client. The witness subsequently wrote a registered letter to the Member advising that for ethical reasons she was no longer welcome on the premises.

Decision

Having considered the evidence and the onus and the standard of proof, the panel finds that the Member has committed an act of Professional Misconduct as outlined in paragraphs one and two in the amended Notice of Hearing. In particular the panel further finds that the Member misappropriated property from a client by using the Client’s credit card without the authorization of his financial Power of Attorney on or about eight occasions, between August 14, 1998 and September 28, 1998.

The panel further finds that the Member engaged in conduct or performed an act, relevant to the practice of nursing that having regard to all of the circumstances would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to her use of the Client’s credit card without the authorization of his financial power of attorney on those occasions.

Reasons for Decision

Based on the evidence, the panel finds that the Member understood that the Client was not financially responsible and that his financial affairs were attended to by a Power of Attorney, the Client’s niece.

The Member acknowledged signing [the company’s] credit card receipts without authorization and did so even on days on she did not work for the Client. The Member asked for a financial advance to purchase clothing for the Client, and did not submit receipts for the advance when requested by the Client’s niece. The Member misrepresented her hours for service on her invoices submitted to the Client’s niece.

The onus of proof is on the College to prove its case based on clear, cogent and convincing evidence. The panel was satisfied that the allegations had been proven. The Member was aware of the physical and mental incapacity of the Client and knew of the Client’s niece’s role as Power of Attorney. She admitted to the Client’s niece that she signed her name on the Client’s credit card. The Member admitted using the Client’s credit card when she was not working with the Client.

Penalty Submission

The College submits that the appropriate penalty in this case is for the panel of the Discipline

Committee to make the following order:

1. Requiring the Member to attend before the panel of the Discipline Committee for an oral reprimand prior to her return to nursing;

2. Directing the Executive Director to suspend the Member’s certificate of registration for a period of five months from the date of the panel’s order;

3. Directing the Executive Director to impose the following specified terms, conditions and limitations (“conditions”) on the Member’s certificate of registration:

a. The Member shall complete the “One is One Too Many” Workbook and meet with a Practice Consultant to review the principles of the therapeutic nurse client relationship and the financial abuse of clients prior to her return to nursing practice; and

b. The Member shall provide the College with quarterly performance appraisals completed by her employer(s) for a period of one-year following her return to nursing practice.

Penalty Decision and Reasons

The panel concluded that the penalty is appropriate and in the public interest. The panel could not assess the Member’s feeling of remorse, as the Member was not present or represented by council. The penalty provides the following:

A general deterrent to members of the profession, particularly for those who care for the elderly. A severe penalty to the Member, recognising that the standards of trust and fidelity will not be compromised in working with people with physical and mental incapacity.

A strong message to the public that this type of behaviour will not be tolerated. Remediation for the Member, and her professional practice.

I, [name], Public representative, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below

, Chairperson Date SANDRA MILLAR, Chairperson,

Discipline Panel

CHRISTINE BARBER, RPN

Member, Discipline Panel JANISE JOHNSON

Member, Discipline Panel LOIS VANSON, RPN

Member, Discipline Panel TOM CLIFFORD

Member, Discipline Panel