College of Nurses of Ontario v. The Member, 2000 ONCNO 50764

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 -

The Member

COUNSEL for the Member

Heard: August 28, 2000

DECISION AND REASONS

This matter came on for a hearing before a panel of the Discipline Committee on August 28, 2000 at the College of Nurses of Ontario at Toronto, Ontario. The Member was present and represented by counsel.

NOTICE OF HEARING

The allegations against the Member as stated in the Amended Notice of Hearing dated July 5, 2000, are as follows:

IT IS ALLEGED THAT:

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(14) of Ontario Regulation 799/93, in that during the year 1996, while working as a Registered Nurse at the [hospital], in the Province of Ontario, you falsified a record relating to your practice in that you claimed for wages to which you were not entitled; and/or
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(14) of Ontario Regulation 799/93, in that during the year 1996, while working as a Registered Nurse at the [hospital], in the Province of Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonorable or unprofessional in that you claimed for and/or accepted wages to which you were not entitled.

PLEA

The Member admits that her conduct amounts to professional misconduct as set out in allegation #2 in the notice of hearing in that she engaged in conduct or performed an act relevant to the practice of nursing that having regarding to all the circumstances would reasonably be regarded by members as unprofessional in that she inappropriately banked shifts which she did not work and unbanked other shifts resulting in her receiving wages to which she was not entitled.

PLEA INQUIRY

The chairperson conducted a plea inquiry. The Member acknowledged that she had reviewed and understands the allegations made against her, that she voluntarily admitted to Allegation # 2 and recognized that this was unprofessional conduct. She also acknowledged understanding that any prior agreement made between herself and the College was not binding on the panel and that she had not been offered any inducement or promised any reward to admit to the allegation.

EVIDENCE

An Agreed Statement of Facts was presented by Counsel for the College and tendered as Exhibit #2 as follows:

The Member

1. The Member received her diploma in nursing in 1985, at which time she became a member of the College of Nurses of Ontario ("the College"). In 1995, the Member obtained her Bachelor of Science in Nursing.
2. The Member began employment with Hospital A in 1985. She initially worked in the emergency department. From 1986 to 1987, the Member worked at Hospital B, returning to a position in the Intensive Care Unit (the Unit) at Hospital A in April 1987.
3. In order to accommodate her studies for her BScN, the Member worked in a casual part-time position averaging two to three shifts per week in the Unit from September 1987 to October 1996 when she was terminated from her position as a result of the incidents described below. During this period, the Member also worked in a full time position as an Educator in Critical Care at Hospital C from April 1991 to April 1993. In December 1995, she obtained a full time position at Hospital D as a nurse educator in Staff Development, a position that she continues to hold.
4. In addition, the Member has been a Sessional Instructor at a College since 1995.

The Facility and the Unit

5. Hospital A merged with another hospital in 1996. The acute care facility has approximately 602 beds.
6. The ICU (the Unit) is a 14 bed unit providing care for critically ill and/or injured adult and paediatric clients. Staff work 12 hour shifts beginning and ending at 0730 and 1930 hours. Staffing levels in the Unit vary from day to day based upon client population and needs.

Time Banking System

7. The Unit had a time banking system for staff RNs during 1996 which had two applications. The first application was that staff who were involved in extracurricular activities such as committee work, annual certification or workshops were allowed to bank the time spent in participating in these events. When the client census was low and staffing needs were reduced, staff were allowed to unbank the time and receive pay in the form of paid leaves of absence.
8. The second application involved payroll levelling. Staff were scheduled on a master rotational basis which provided for staff to work two twelve-hour day shifts, two twelve-hour night shifts and then five days off.
9. The master rotation resulted in uneven pay periods with eight 12-hour shifts in one pay period and four 12-hour shifts in another pay period. In order to alleviate this situation, staff were permitted to work a shift, "bank" the shift, and then "unbank" the shift during a future short pay period. Through this arrangement, the nurse could work a shift but not be paid for it during the relevant pay period. The nurse could then be paid for the shift during a subsequent pay period even though she had not worked the shift during the later pay period.
10. Normally, when a nurse worked a shift, she was required to record the fact on the employee Sign-in Sheets by marking either a "D" for a day shift or an "N" for a night shift beside their name. The sign-in was generally co-signed by the charge nurse on that shift. The Sign-in Sheets were reviewed by the charge nurse on a weekly basis by comparing the Sign-in Sheets with the schedule. The Sign-in Sheets were then forwarded to payroll where they are used to determine the wages owed to nurses. The nurse's name would also be recorded on the Patient Assignment Sheet to reflect the work assignment for the shift.
11. In order to bank a shift, the nurse would work a shift but not record it on the Sign-in Sheets. On the schedule, the nurse would write in which shift was worked and would write "bank" beside it. Banked shifts were recorded in a separate Bank Record by recording the type and date of the shift. Since she worked the shift, the nurse's name would be recorded on the Patient Assignment Sheet.
12. In order to unbank a shift, the nurse would not be scheduled to work. The nurse would write on the schedule the shift which she wished to unbank and write "unbank" beside it. As well, the nurse would be signed in on the Sign-In Sheet as having "worked" that shift. The Bank Record would also indicate the date and type of shift that was being unbanked. Since she did not work the shift, the nurse's name would not be recorded on the Patient Assignment Sheet.
13. Although part-time and casual staff did not follow the master rotation, they were also allowed to participate in the banking system.
14. At the time of these incidents, no formal policy or guidelines regarding the banking system were in existence.
15. Although the practice was discouraged, staff were allowed to have their shift bank go into the negative such that staff might be in the position of having unbanked a shift that they had not yet worked, thus having been paid for a shift that they had not yet worked. Typically, if staff had a negative balance in their bank of shifts, it would consist of only one or two shifts.

Allegation 2 - Unprofessional Conduct

16. During the year 1996, the Member banked shifts that she did not work on the following dates: March 3, May 4, and August 31, 1996.
17. During the year 1996, the Member unbanked shifts on the following dates, leaving her in a negative balance of shifts for which she was paid but had not yet worked: January 6, March 9, April 19, April 30, May 19, June 18, June 21, July 13, July 19, July 27, July 28, August 2, August 10, August 17, August 23, September 7 and September 14, 1996.
18. The amount of money which the Member was overpaid for the shifts, described in paragraph 17, totalled $2617.86.
19. The Member admits that her conduct amounts to professional misconduct as set out in allegation 2 of the Notice of Hearing in that she engaged in conduct or performed an act, relevant to the practice of nursing that having regard to all the circumstances would reasonably be regarded by members as unprofessional in that she inappropriately banked shifts which she did not work and unbanked other shifts resulting in her receiving wages to which she was not yet entitled.

Allegation 1

20. The College tenders no evidence with respect to this allegation.

Restitution

21. The Member has acknowledged to the Hospital that she was not entitled to the pay she received for the shifts that she had not yet worked and has undertaken to make full restitution to the Hospital in the amount of $2617.86.

Counsel for the College also tendered an "Undertaking" by the Member, Exhibit # 3, as follows:

TO: Director, Investigations & Hearings College of Nurses of Ontario I, [the Member], hereby undertake the following:

1. To make full repayment in the amount of $2,617.86 to [Hospital] within six months of the date of this undertaking;
2. To provide the Director, Investigations & Hearings with proof of such repayment as described in paragraph one within six months of the date of this undertakings;
3. That I understand that any breach of this undertaking may be made the subject of a disciplinary proceeding before the Discipline Committee of the College; and
4. That I obtained independent legal advice regarding this matter before I entered into this undertaking.

"Signed and dated by the Member", [date], 2000."

On questions from the panel, Counsel and the Member agreed to amend the undertaking to replace "[Hospital A] " with the words "[name of newly almagamated hospital] ".

FINDING OF PROFESSIONAL MISCONDUCT

The panel did not find that the conduct of the Member was disgraceful and/or dishonorable as stated in Allegation # 2. The panel accepted the Agreed Statement of Fact as presented and the Undertaking as amended and found the Member guilty of Professional Misconduct as admitted in her Plea.

PENALTY

The Joint Submission on Penalty was presented and entered as Exhibit #4 as follows:

WHEREAS the Member has undertaken to provide restitution to the hospital in the amount of $2,617.86;

The Member and the College jointly submit that the appropriate penalty in this case is for the Discipline Committee 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.

The Panel considering all the circumstances found it would not be in the interests of the public or the profession to publish the Member's name in the Communique and sought clarification from both counsel on this issue.

Counsel for the College directed the Panel to Section 56 of the Health Professions Procedural Code which states as follows:

56. (1) The College shall publish a panel's decision and its reasons, or a summary of its reasons, in its annual report and may publish the decision and reasons or summary in any other publication of the College.

(2) In publishing a decision and reasons or summary under subsection (1), the College shall publish the name of the member who was the subject of the proceeding if,

(a) the results of the proceeding may be obtained by a person from the register; or (b) the member requests the publication of his or her name.

(3) The College shall not publish the member's name unless it is required to do so under subsection (2), 1991, c. 18, Sched. 2, s. 56.

Counsel for the College further clarified that in order to establish what is obtainable to the public as part of the register relating to discipline proceedings one had to refer to Section 23 (3) 3 which states as follows:

23 (3) 3. The result of every disciplinary and incapacity proceeding completed within six years before the time the register was prepared or last updated. (i) in which a member's certificate of registration was revoked or suspended or had terms, conditions or limitations imposed on it, or (ii) in which a member was required to pay a fine or attend to be reprimanded or in which an order was suspended if the results of the proceeding were directed to be included in the register by a panel of the Discipline or Fitness to Practice Committee.

Counsel for the College stated that in view of these legislative provisions, the panel did not have the jurisdiction to direct that the Member's name not be published in cases where only an oral reprimand or fine were the imposed penalty but rather that the panel had the authority to order that the decision and reasons be a part of the public register and therefore would be subject to publication.

Counsel for the College clarified that the intention was not to request that the panel direct that the decision be entered on the register.

Counsel for the Member agreed with the interpretation of the Health Professions Procedural Code provisions provided by Counsel for the College. The position of Counsel for the Member was that the panel not exercise its authority to direct that this proceeding be a part of the public register.

The Panel in considering this evidence accepted that the legislation was clear that the Panel did not have the jurisdiction to order that the Member's name not be published and were satisfied that under the circumstances where only an oral reprimand or fine were imposed that the Member's name would not be published as subject to Section 23 (3) 3 it would not be a part of the public register.

PENALTY DECISION

After deliberation, the panel accepted the Joint Submission on Penalty.

REASONS FOR DECISION

The Panel found that the penalty suggested was appropriate for the circumstances involved and that it provided for a sufficient deterrent to both the Member and other members of the profession that this type of behavior will not be tolerated.

The panel found that it would not be in the interest of the public nor the profession to publish the Member's name and accepted that, according to the evidence regarding Section 23(3) and Section 56(1) of the Health Professions Procedural Code, the Member's name, in these circumstances, not be published.

The Panel expressed its concern over the practice of shift banking as described in the Agreed Statement of Facts and, while recognising that the employer in this case was neither represented nor subject to the jurisdiction of the College or the Panel, makes recommendation that the College initiate public discussion on such practice as it impacts potentially on the welfare and interests of its members and the public at large.

At the conclusion of the hearing an oral reprimand was administered.

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 [ ]