College of Nurses of Ontario v. The Member, 2000 ONCNO 50766

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Panel:

Chairperson, RPN

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: July 5, 2000

REASONS FOR DECISION

A Panel of the Discipline Committee of the College of Nurses of Ontario met on July 5, 2000 to hear allegations brought before it against the Member, RN as outlined in the Amended Notice of Hearing referred to below. The Member was present, as was her defence counsel.

The panel was advised that the hearing would proceed by way of an Agreed Statement of Facts and a Joint Submission on Penalty.

Following are the allegations against the Member as set out in the Amended Notice of Hearing, received as Exhibit #1:

1. You have committed an act or acts 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, during the period December 3 - 20, 1998, while employed as a registered nurse at a hospital in Toronto, Ontario, you misappropriated property from a workplace, in that you collected sick benefits while working and/or declaring yourself available to work for a Health Services company; and/or
2. You have committed an act or acts 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, during the period December 3 - 20, 1998, while employed as a registered nurse at a hospital in Toronto, Ontario, you engaged in conduct or performed acts, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that you collected sick benefits while working and/or declaring yourself available to work for a Health Services company.

Plea Inquiry and Finding of Professional Misconduct

Counsel for the College withdrew Allegation #1 of the Amended Notice of Hearing.

An Agreed Statement of Fact was filed as Exhibit #2. The text of that document is set out below:

1. The Member has been registered as a Registered Nurse with the College of Nurses of Ontario ("the College") since 1984.
2. The Member began working as a full-time Registered Nurse in the LTSE Unit at a hospital in Toronto ("the Hospital") in 1988 following a period of casual employment. As a result of the events described below, the Member's employment was terminated in March 1999. Subsequent to her termination, the Hospital and the Member reached an agreement that permitted the Member to resign her employment at the Hospital and resolved all outstanding claims by either the Hospital or the Member.
3. LTSE Unit at the Hospital is a 34-bed unit which is part of the mental-health unit and provides nursing-home level care and social support to veterans. All clients of the unit are elderly and some require assistance with certain aspects of daily living, including some lifting and turning. Nursing care on the unit was provided by four nurses on day shift, three nurses on evening shift, and two nurses on the night shift.
4. The Member began an extended sick leave on November 16, 1998 as a result of hypertension and chest pain for which she was hospitalised.
5. The Member was investigated for ischemic heart disease. The Member's physician provided the Hospital with documents indicating that the Member was unable to work her regular duties by reason of legitimate illness for the period November 16, 1998 to February 27, 1999.
6. The Member was monitored by the Hospital's Occupational Health Services Department, and was not cleared to return to work until March 1999.
7. In December of 1998, the Hospital discovered that the Member was working shifts for a health services company ("the HSC") to provide home care for clients during December, 1998 while the Member was collecting sick benefits from the Hospital.
8. The Member worked as a casual RN for the HSC on shifts for which she was not scheduled to work at the Hospital from July 1998. In response to an enquiry from the Hospital, the HSC confirmed that the Member had worked eleven (11) shifts during the period of December 3 - 13, 1998; seven (7) of those shifts were ones on which she was paid sick pay by the Hospital. During those shifts, the Member provided palliative care to individual clients in their homes.
9. During the period December 3 to 13, 1998, while working for the HSC the Member collected approximately $1,387.20 in sick benefits from the Hospital for days on which she worked for the HSC.
10. The HSC also advised the Hospital that the Member had indicated she was available to work from December 15 to 20, 1998 but that the clients had cancelled the shifts.
11. The Member continued to be paid sick benefits by the Hospital for the entire period of her sick leave from November 16, 1998 to March 1, 1999; during this period, she was paid approximately $9,372.00.
12. When the Member returned to the Hospital to resume her nursing duties on March 1, 1999, she was called to a meeting and asked to explain why she had been performing nursing duties for the HSC when she was too ill to perform her duties at the Hospital and was collecting sick leave benefits on that basis. The Member offered the explanation that she had a disabled child and was desperate for money.
13. If the Member gave evidence, she would say that at the time she committed the acts which are the subject of the allegations, she was under financial and emotional stress as a result of a) her need to move herself and her two children to Toronto from Hamilton several months prior to avoid an abusive relationship, b) debts incurred by her former partner, and c) the care needs of her eldest daughter who had been diagnosed with Attention Deficit Disorder. These stresses also contributed to the Member developing hypertension and chest pain and to the investigation of the Member for ischemic heart disease - the reasons for the Member beginning the period of sick leave on November 16, 1998, as described above.
14. THE MEMBER ADMITS that she has committed professional misconduct as set out in paragraph 2 of the Notice of Hearing by engaging in conduct relevant to the practice of nursing that would reasonably be regarded as disgraceful, dishonourable and unprofessional in that during the period December 3 to December 20, 1998, while she was collecting sick leave benefits from the Hospital, she performed eight (8) shifts of nursing duties for the HSC and indicated her availability to work for the HSC from December 15 to 20, 1998.

The Member agreed that she had committed an act of professional misconduct, as set out in Allegation #2.

In order to ensure that the Member's admission of professional misconduct was made freely and voluntarily, the chairperson conducted the plea inquiry set out in Appendix "A". The Member's responses satisfied the panel that the Member's admission was voluntary, informed and unequivocal.

The panel found that the Member committed an act of professional misconduct, as set out in Allegation #2.

Joint Submission on Penalty

The panel was presented with the Joint Submission on Penalty as outlined in Exhibit #3. Counsel for the defence filed a letter from the Member's physician (Exhibit #4), outlining mitigating factors that contributed to the Member's conduct.

The text of the Joint Submission on Penalty (Exhibit #3) is set out below:

THE MEMBER and the College of Nurses of Ontario ("the College") jointly submit that, in view of the professional misconduct admitted to by the Member in the Agreed Statement of Fact, and the circumstances set out in the Agreed Statement of Fact, the panel of the Discipline Committee should make the following penalty order:

1. Requiring the Member to appear before the panel to be reprimanded;
2. Requiring the Member to pay a fine of $1000.00 to the Minister of Finance for Ontario, proof of which payment must be provided to the Director of the Investigations and Hearings Department ("the Director") by or before July 5, 2001 by way of receipt, cancelled cheque or other method acceptable to the Director.

Both counsel made submissions that the Member's name need not be published on the public portion of the register and the Communiqué, in accordance with the Health Professions Procedural Code sections 23 and 56.

Penalty Decision

The Panel deliberated and accepted the Joint Submission on Penalty as presented.

Reasons for Penalty Decision

In deciding the penalty in this case, the panel concluded that the Member's actions were disgraceful, dishonourable or unprofessional and of a serious nature which violated the principles of honesty and integrity - the cornerstones of the nursing profession.

The panel agreed unanimously that the penalty had been fairly negotiated at the pre-hearing proceeding and was appropriate. The panel believes that the penalty will serve as a deterrent not only to the Member but also to other members of the profession.

After rendering its decision, the panel administered an oral reprimand.

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 [ ]