DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Panel:

• Chairperson, RN

• Member, RN

• Member, RPN

• Public Representative

• Public Representative

BETWEEN

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

• and -

Sandra Pellecchia-Clarke, RN Counsel for the Member, RN

DECISION AND REASONS

Heard: September 5, 2000

A panel of the Discipline Committee of the College of Nurses of Ontario was convened to hear allegations against the Member. The hearing was conducted on September 5, 2000 at the premises of the College of Nurses of Ontario, 101 Davenport Road, Toronto, Ontario.

The Member was present and was represented by counsel.

NOTICE OF HEARING

The Allegations against the Member, as contained in the Notice of Hearing (Exhibit #1) are as follows:

1. You have committed an act of professional misconduct as provided by clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(8) of Ontario Regulation 799/93, in that during the period August 22, 1997 to August 26, 1999, while employed as a Registered Nurse at the Hospital for Sick Children in Toronto “the facility”, you misappropriated property from a workplace, the particulars of which are set out in Appendix A;

2. You have committed an act of professional misconduct as provided by clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(37) of Ontario Regulation 799/93, in that during the period August 22, 1997 to August 26, 1999, while employed as a Registered Nurse at the Hospital for Sick Children in Toronto “the facility”, you engaged in conduct or performed an act or acts relevant to the practice of nursing, that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, the particulars of which are set out in Appendix A.

Appendix A is set out below:

Particulars to Specified Allegations

1. During the period from August 22, 1997 to August 30, 1999, you made false entries on the Weekly Schedule Shift Forms at the Hospital for Sick Children in Toronto “the facility”, for the purpose of receiving payment from the facility for hours that you had not worked on one or more of the following dates:

August 22, 1997;

September 16, 1997;

November 10, 1998;

November 24, 1998;

January 19, 1999;

March 16, 1999;

June 22, 1999;

July 6, 1999;

July 20, 1999;

July 24, 1999;

August 17, 1999; and

August 26, 1999.

2. During the period from August 22, 1997 to July 26, 1999, you accepted payment from the Hospital for Sick Children in Toronto “the facility”, for shifts on one or more of the dates below when you knew or ought to have known that you were not entitled to receive the payment:

August 22, 1997;

September 16, 1997;

November 10, 1998;

November 24, 1998;

January 19, 1999;

March 16, 1999;

June 22, 1999;

July 6, 1999;

July 20, 1999; and

July 24, 1999.

3. On or about August 27 to September 3, 1999, you left a telephone message for [name of unit clerk] falsely stating that you had worked on August 17 and 26, 1999 when you had not in fact done so, and requesting payment for these dates.

MEMBER'S PLEA

The Member admitted Allegation #1 and #2 as contained in the Notice of Hearing dated August 9, 2000.

PLEA INQUIRY

The Chairperson conducted a Plea Inquiry in which the Member affirmed that she understood and voluntarily admitted the allegations as contained in the Notice of Hearing. The Member's responses to the Plea Inquiry indicated that she had not been pressured or offered any inducements to admit the allegations. The Member understood that the agreement reached between her and the College of Nurses was not binding on this panel.

AGREED STATEMENT OF FACTS

An Agreed Statement of Facts, dated September 5, 2000 was filed as Exhibit #2. This document provides as follows:

The Member

1. The Member graduated from the RN program at Humber College and became a member of the College of Nurses in 1990.

2. The Member was employed at the Hospital for Sick Children in Toronto “the facility”, from June 1990 to September 1999, when she was terminated from her position as a result of the incidents described below. From 1990-94, the Member worked solely on an intensive care unit (ICU). From 1994-1998, she held part-time positions on both the ICU and at the facility’s medical information centre. From 1998-1999, the Member held a parttime position in the centre.

3. The Member is currently enrolled in a certificate program as well as in the part-time BScN program.

The Facility, the Unit and the Payroll System

4. The centre provides information to clients and their families, and to other health care providers.

5. Nurses working at the centre were responsible for accurately recording the hours they worked on the Weekly Schedule Shift Form (the WINS form), including any changes resulting from illness or changed shifts. The WINS form was used by payroll to determine the amount of pay each nurse was owed.

6. In addition to recording hours worked on the WINS form, nurses were also required to electronically "badge in" for their shifts at the Centre.

Allegation 1: Misappropriation of Property from Workplace Allegation 2: Disgraceful, Dishonourable and Unprofessional Conduct

7. During the period from August 22, 1997 to August 30, 1999, the Member made false entries on the WINS form of the Centre for the purpose of receiving payment from the facility for hours that she had not worked on the following dates:

August 22, 1997;

September 16, 1997;

November 10, 1998;

November 24, 1998;

January 19, 1999;

March 16, 1999;

June 22, 1999;

July 6, 1999;

July 20, 1999;

July 24, 1999;

August 17, 1999; and

August 26, 1999.

8. During the period from August 22, 1997 to July 26, 1999, the Member received and accepted payment for shifts in the amount of $2619.25 on the following dates when she knew that she had not worked the shifts and therefore was not entitled to receive the payment:

August 22, 1997;

September 16, 1997;

November 10, 1998

November 24, 1998;

January 19, 1999;

March 16, 1999;

June 22, 1999;

July 6, 1999;

July 20, 1999; and

July 24, 1999.

9. On or about August 27 to September 3, 1999, the Member left a telephone message for the unit clerk, indicating that she had worked shifts on August 17 and August 26, 1999. The Member stated that she had failed to electronically badge in for these shifts and requested that the unit clerk manually fill in these shifts on the WINS form. In fact, the Member had not worked at all on August 17 or August 26.

10. The Member admits that her conduct, as described in paragraphs 8, 9 and 10 amounts to professional misconduct as set out in allegations 1 and 2 of the Notice of Hearing. In particular, the Member admits that she misappropriated property from a workplace and engaged in conduct or performed an act or acts relevant to the practice of nursing, that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional by:

Making false entries on the WINS form of the Centre for the purpose of receiving payment from the Hospital for hours that she had not worked for the dates listed in Paragraph 8; Accepting payment for shifts when she knew or should have known that she was not entitled to receive the payment for the dates listed in Paragraph 9; and

Leaving a telephone message on or about August 27 to September 3, 1999, falsely stating that she had worked on August 17 and 26, 1999 when she had not in fact done so, and requesting payment for these dates.

Restitution

11. Since her termination, the Member made arrangements for and has provided restitution to the Hospital in the amount of $1309.62, which was acceptable to the Hospital.

FINDING OF PROFESSIONAL MISCONDUCT

The panel unanimously accepted the Agreed Statement of Facts and found the Member guilty of professional misconduct in relation to Allegations #1 and #2 as stated in the Notice of Hearing. In doing so, the panel applied the standard of proof on a balance of probabilities, based on clear, cogent and convincing evidence.

The panel, in making this decision, considered the evidence that the Member had admitted to having misappropriated property from a workplace, in that, for the purpose of receiving payment from an employer she falsely identified herself as having worked hours that she had not worked and accepted payment for these hours.

The panel found that this conduct by the Member was an act of dishonesty that was deliberate in nature and occurred over a lengthy period of time. The panel held that a nurse in upholding the integrity of the profession has an obligation to conduct oneself in a manner that does not undermine the trust relationship that the client and the employer have with the nurse. The Member failed to maintain her commitment to the nursing profession in that, for personal gain, she conducted herself in a manner that reflects poorly on the profession and that other members of the profession would reasonably regard her lack of truthfulness as disgraceful, dishonourable and unprofessional.

JOINT SUBMISSION ON PENALTY

Counsel for the College and counsel for the Member jointly submitted that the appropriate penalty in this matter was for the panel to make the following order:

1. Requiring the Member to attend before the Discipline Committee for an oral reprimand within three months of the date of this order;

2. Directing the Executive Director to suspend the Member's certificate of registration for a period of three months;

3. Directing that the suspension referred to in paragraph 2 shall not be imposed until twelve months after the date of the Order and shall be suspended if the Member has complied with the requirements imposed in paragraphs 4 and 5;

4. 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 enroll in and successfully complete a course in ethics acceptable to the Director, Investigations & Hearings (the Director) within twelve months of the date of the Order and shall provide proof of enrollment and completion of such course to the Director; and

5. Requiring the Member to pay a fine of $750 to the Minister of Finance within twelve months of the date of the Order.

Counsel for the College submitted that the suggested penalty would provide a specific deterrence to the Member in that the consequences are serious enough to ensure the Member will not repeat such conduct. In addition the proposed penalty would also provide a general deterrence to other members of the profession that such conduct will not be tolerated.

Counsel for the College submitted that having the Member complete a course in ethics would meet the need to protect the public by providing a means of rehabilitation.

Taking all of these factors into consideration the Counsel for the College stated that the proposed penalty would fulfill the College’s obligation of protecting the public.

Counsel for the College stated that other factors taken into consideration in proposing this penalty were that the Member admitted the allegations, had lost her previous employment and made restitution satisfactorily to this previous employer.

Counsel for the Member requested that the panel accept the joint submission on penalty, that the Member had accepted her responsibility for her actions and had deep remorse and regret in relation to her conduct.

The panel deliberated and advised both counsel that the following changes to the joint submission were being considered by the panel:

1. that the Member meet with a Nurse Practice Consultant of the College after completing the course in ethics to review what she has learned;

2. that the fine payable to the Minister of Finance be instead made payable to the Hospital for Sick Children.

The panel sought submissions from both counsel on these proposed changes and also requested that the Counsel for the Member present any mitigating circumstances that led the Member to commit this offense.

Counsel for the College submitted that the proposed Joint Submission on Penalty was still considered appropriate while recognizing that the panel had the authority to make changes to it. Counsel for the College suggested that requiring the Member to meet with a Nurse Practice Consultant of the College might not be the best use of the College's resources and suggested that if the panel was concerned, the

oral reprimand could be postponed for 12 months to allow the Member to complete the course in ethics, after which the panel could satisfy themselves that the Member appreciated the seriousness of her past conduct.

Counsel for the College advised the panel that in relation to changing the designate of the fine payment, that the panel's jurisdiction found in Section 51(2) of the Health Professions Procedural Code only allowed the panel to make an order for payment of fines to be made to the Minister of Finance. It was suggested that if the panel so wished make the payment payable to another party, that the panel could make this a term, condition or limitation of the Member's Certificate of Registration, but further submitted that the panel might not want to make this in the form of a donation as this would confer a tax benefit to the Member.

Counsel for the Member indicated that the Member was prepared to meet with a Nurse Practice Consultant or to meet with the panel for the oral reprimand following the completion of the course in ethics.

Counsel for the Member agreed with Counsel for the College as to the jurisdictional issue raised in relation to panels imposing fines and stated that the Member would be prepared to make the payment of

$750 to where ever the panel felt it would be best.

The Member's Counsel suggested that one mitigating factor was personal health care issues of the Member that occurred during the time of the allegations which caused her great emotional strain and financial stress thus clouding her judgement and contributing to her conduct. Counsel for the Member stated that the Member did not however offer these circumstances as an excuse for her actions and that she fully recognized her responsibility in regards to her actions.

Counsel for the Member stated that another mitigating factor was that the Member has had no previous record of professional misconduct.

DECISION

The panel deliberated and a majority of the panel accepted the proposed Joint Submission on Penalty subject to certain changes and makes the following order:

1. Requiring the Member to attend before the Discipline Committee for an oral reprimand within three months of the date of this order;

2. Directing the Executive Director to suspend the Member's certificate of registration for a period of three months;

3. Directing that the suspension referred to in paragraph 2 shall not be imposed until twelve months after the date of the Order and shall be suspended if the Member has complied with the requirements imposed in paragraphs 4 (a) and (b);

4. 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 enroll in and successfully complete a course in ethics acceptable to the Director, Investigations & Hearings (the Director) within twelve months of the date of the Order and shall provide proof of enrollment and completion of such course to the Director; and

b. the Member shall pay $750 to the Hospital for Sick Children, within twelve months of the date of the Order, in a manner that does not provide the Member with a tax benefit.

REASONS

The panel in making this decision held that the penalty imposed would provide a sufficient deterrent

both to the Member individually and to other members of the profession that this type of behaviour will not be tolerated, therefore meeting the public protection obligation of the College by ensuring this conduct will not be repeated. The panel concluded that the course in ethics would assist in the rehabilitation of the Member and make it less likely that the Member would repeat this type of an offence.

In deciding to have a payment made to the facility, the panel felt that this was more appropriate than a fine to the Minister of Finance, in that the employer was the party which had suffered financial loss as a result of the Member’s misconduct.

I, [chairperson], RN, 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 Member, RN

Member, RPN

Public Representative Public Representative