College of Nurses of Ontario v. Jacqueline D. Tofflemire, 2003 ONCNO 89993

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 the allegations have been dismissed or if the results are not placed on the public portion of the Register.

PANEL:

Rob Rupert, RN Chairperson Jim Attwood, RN Member Anne McKenzie, RPN Member

Catherine Charlton Public Member Fay Cole Public Member

BETWEEN:

JACQUELINE D. TOFFLEMIRE # 64-1911-3

Heard: September 26, 2003

Nick Coleman for College of Nurses of Ontario

Victoria Reaume for Jacqueline D. Tofflemire

This matter came on for hearing before a panel of the Discipline Committee on September 26, 2003 at the College of Nurses of Ontario at Toronto.

The Allegations

The allegations against Jacqueline D. Tofflemire (the Member) as stated in the Notice of Hearing dated September 26, 2003 (Exhibit # 1), are as follows:

IT IS ALLEGED THAT:

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(1) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Hospital], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to the following conduct during the period 2000 - 2002:

a. Accepting remuneration from manufacturers of equipment, including [manufacturers A and B], used by your patients; and/or

b. Utilizing facilities and other resources of the Hospital, including your time, to conduct your own nursing practice with patients who were not patients of the Hospital; and/or

c. Recommending and/or prescribing changes to insulin dosages for patients; and/or

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(26) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Hospital ], you practiced the profession while in a conflict of interest with respect to the following conduct during the period 2000 - 2002:

a. Accepting remuneration from manufacturers of equipment, including [manufacturers A and B], used by your patients; and/or

b. Utilizing facilities and other resources of the Hospital, including your time, to conduct your own nursing practice with patients who were not patients of the Hospital; and/or

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, while employed as a Registered Nurse at [the Hospital], 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, dishonourable or unprofessional with respect to the following conduct during the period 2000 - 2002:

a. Accepting remuneration from manufacturers of equipment, including [manufacturers A and B], used by your patients; and/or

b. Utilizing facilities and other resources of the Hospital, including your time, to conduct your own nursing practice with patients who were not patients of the Hospital; and/or

c. Recommending and/or prescribing changes to insulin dosages for patients.

Member's Plea

The Member admitted the allegations set out in paragraphs numbered 1, 2 and 3 in the Notice of Hearing. The panel conducted a plea inquiry and was satisfied that the Member's admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts (Exhibit # 2) which provided as follows:

The Member

Ms. Tofflemire was initially registered with the College of Nurses ("the College") as a Registered Nurse in 1964.
Ms. Tofflemire graduated from [ ] in 1963. She also holds a Bachelor of Applied Science in Nursing from [ ] and a Bachelor of Education in Adult Education from [ ].
Ms. Tofflemire worked in a variety of health care settings from 1963 until 1975, at which time she took time from nursing in order to raise her family.
In 1978, Ms. Tofflemire returned to work at the then [ ] Hospital. She worked in various settings, including Critical Care and the Pacemaker Clinic. In 1995, [the Hospital] was created with the merger of the [ ].
Ms. Tofflemire became the Nurse Educator in the Education Program at the combined Diabetes/Cardiac Clinic at the [ ] site of the hospital in 1995.

Background

In 1997, the Diabetic Clinic ("the Clinic") and the Diabetes Education Program were moved to the [ ] campus of the hospital. Ms. Tofflemire continued her position as Nurse Educator at the [ ] Campus. Until 1999, Ms. Tofflemire was the only nurse working in the Clinic. In 1999, a second part-time nursing position was created in the Clinic.
The role of the Clinic's Nurse Educators was to provide education regarding diabetes to Hospital patients and to the outpatients attending the Clinic. Ms. Tofflemire's hours of work for the Clinic consisted of 8 hours/week for 3 weeks of the month and 12 hours/week for the fourth week of the month.
In May of 2002, Ms. Tofflemire's employment with the hospital was terminated due to the incidents described in paragraphs 9 through 31.

Incidents Relevant to Allegations of Professional Misconduct Conflict of Interest

In or about the spring of 2000, Ms. Tofflemire entered into a relationship with [manufacturer B], a corporation in the business of selling insulin pumps. Ms. Tofflemire met with patients of the Clinic and the Diabetes Education Program to inform them of the benefits and drawbacks of insulin pumps in general. If the patient chose the [manufacturer B] pump, Ms. Tofflemire completed warranty cards. [Manufacturer B] paid Ms. Tofflemire $150.00 for each warranty card received. In exchange, Ms. Tofflemire provided each patient with approximately three hours of training on the use of the [manufacturer B] pump, and provided an on-call service 24 hours per day, seven days per week. Ms. Tofflemire neither sought nor received approval from the Hospital to enter into this arrangement with [manufacturer B]. Ms. Tofflemire's relationship with [manufacturer B] continued until 2001.
In or about the spring of 2001, Ms. Tofflemire entered into a relationship with [manufacturer A], a corporation in the business of selling diabetic meters. [Manufacturer A] provided diabetic meters to Ms. Tofflemire free of charge. Ms. Tofflemire then distributed the meters along with meters from other companies to patients at the Clinic. If and when a patient selected a [manufacturer A] meter, Mr. Tofflemire would complete a warranty card. [Manufacturer A] paid Ms. Tofflemire $15.00 for each warranty card received. Ms. Tofflemire neither sought nor received approval from the Hospital to enter into this arrangement with [manufacturer A].
Ms. Tofflemire opened an account, entitled the Diabetes Education Fund, at [the Credit Union] into which cheques received from [manufacturers A and B]were deposited. Ms. Tofflemire neither sought nor received approval from the Hospital to open this account.
On October 3, 2001, following an internal investigation, the Hospital directed Ms. Tofflemire to cease accepting remuneration from both [manufacturers B and A], to close the account with the Credit Union, and to return any funds from the account to [manufacturers B and A].
On October 3, 2001, by way of letter to the Hospital's legal counsel, attached as Appendix A, Ms. Tofflemire acknowledged that an ethical dilemma had occurred, notwithstanding her claim that the monies received from [manufacturers B and A] were used strictly for educational purposes. Ms. Tofflemire also stated that she would notify her manager for direction should any monies be offered to the Clinic or herself.
Ms. Tofflemire repaid [manufacturer A] $700.00 by way of a cheque in the amount of $400.00, dated October 18, 2001 and by way of a second cheque in the amount of $300.00, to be collected by the [manufacturer A] representative, [ ], on November 12, 2001. Ms. Tofflemire repaid [manufacturer B] by way of cheque in the amount of $2,600.00, received by [manufacturer B's] General Manager, [ ] on November 7, 2001. Ms. Tofflemire closed the account with the Credit Union by withdrawing the remaining funds in October 2001 and reimbursing herself for the payments to [manufacturers A and B].
On March 6, 2002, Ms. Tofflemire accepted a cheque from [manufacturer A] in the amount of

$630.00 as remuneration for 42 warranty cards it had received from the Clinic. The cheque was payable to [the Hospital]. When questioned about the cheque by her Director, Ms. Tofflemire

stated that the [manufacturer A] representative was insistent that she take the cheque. Ms. Tofflemire acknowledged that accepting the cheque could be a conflict of interest.

Accepting Patients into the Diabetes Education Program

In or about the spring of 2000, Ms. Tofflemire began seeing patients at the Diabetes Education Program who were not formally referred to and/or admitted to the Hospital's outpatient department. These patients were assessed only by Ms. Tofflemire and not under the care any of the three endocrinologists attached to the Clinic.
Ms. Tofflemire maintained a separate documentation scheme for these patients, and did not keep health records typical of a Clinic outpatient. Instead, she kept her own notes and stored them in her office rather than with the other patients' health records.
Some of the patients who were not formally referred to and/or admitted to the Clinic were "self- referrals" from diabetic education classes that Ms. Tofflemire taught in the community. These patients were under the care of family physicians or endocrinologists but not the three endocrinologists attached to the Clinic. Other patients attended at the Clinic to see Ms. Tofflemire as part of the arrangement Ms. Tofflemire had with [manufacturer B] to provide insulin pump training. A small number of the patients were referred to the Diabetes Education Program from the [ ] Community Health Centre.
If she testified, Ms. Tofflemire would state that she had engaged in the practice of providing services to patients who had not been formally referred to or accepted into the Clinic as patients for many years. She worked without much supervision and assumed that the practice was acceptable to the Hospital.
Ms. Tofflemire saw these patients during both Hospital hours and on her own time. With respect to the patients through the Diabetes Education Program using the [manufacturer B] pumps, Ms. Tofflemire was on-call to provide assistance to clients 24 hours per day, seven days per week, as part of her arrangement with [manufacturer B]. This time was not paid by the Hospital.
Ms. Tofflemire's Manager, [ ] and Director, [ ] would testify that in October, 2001 they conducted an audit of the files located in Ms. Tofflemire's office. The Chart audit results indicated that 34 patients were seen at the Diabetes Education Program without a referral.
Ms. Tofflemire acknowledged to the Hospital's legal counsel in her letter of October 3, 2001 that, in future, she would only see patients who were referred to the Clinic and the Diabetes Education Program by a physician.

Recommending and/or Prescribing Changes to Insulin Dosages

Ms. Toffemire's Director, [ ], would testify that on April 12, 2002 she conducted a chart audit in the Clinic. The audit indicated that, during 2000, 2001 and 2002, many of the charts did not contain Physician's Orders Sheets, and the majority of charts indicated that some type of insulin adjustment had occurred, and that Ms. Tofflemire was the person who made the adjustments.
The patients were sent to the Diabetes Education Program by family physicians and were assessed only by Ms. Tofflemire and not under the care of any of the three endocrinologists attached to the Clinic.
Ms. Tofflemire's practice was to assess the patient and provide advice to family physicians regarding insulin dosages. Ms. Tofflemire did not receive direct orders from these physicians. Instead, Ms. Tofflemire completed memoranda, on Hospital letterhead, regarding her recommendations for changes to the insulin dosages. The memoranda were then faxed to the physicians for approval.
[The Director] would testify that on May 3, 2002 in discussion with Ms. Tofflemire regarding paragraphs 23 through 25, Ms. Tofflemire stated that she did not initiate any changes to the insulin until the approval was obtained by the family physician.
The documentation on the files makes no reference to a waiting period pending physician approval.
An excerpt from a memoranda from Ms. Tofflemire to a family physician, dated September 6, 2000, attached as Appendix B, states"…her supper insulin has been increased to 16 units starting tonight…her insulin will continue to be adjusted in order to achieve optimal control…hoping this meets with your approval." There is no reference in the documentation to a waiting period pending approval of the changes to the insulin dosage. If she testified, Ms. Tofflemire would state that she obtained prior approval from the physician for any adjustment within a 10% range which she failed to document in the patient's file.
An excerpt from a memoranda from Ms. Tofflemire to a family physician, dated March 12, 2001, attached as Appendix C, states "Patient's wife did call with questions on the weekend regarding the needle reuse and cartridges and the wake up blood sugar was still running at 13.4, so the patient was instructed to increase the supper 30/70 insulin to 10 units." There is no reference to a waiting period pending approval of the changes to the insulin dosage in the documentation. If she testified, Ms. Tofflemire would state that she obtained prior approval from the physician for any adjustment within the 10% range which she failed to document in the patient's file.
An excerpt from a patient's progress notes, written by Ms. Tofflemire and dated January 21, 2002, attached as Appendix D, states "Insulin will be increased to 21-18-21-25. Pt. will start increase insulin at suppertime tonight." There is no reference to a waiting period pending approval of the changes to the insulin dosage in the documentation. An earlier memorandum to the patient's family physicians dated January 10, 2002 regarding a number of possible adjustments to the patient's insulin regime, attached as Appendix E, was signed as approved by the family physician on January 11, 2002 and sent back to Ms. Tofflemire.
If she testified, Ms. Tofflemire would state that she felt at the time that she was providing much needed services to diabetics in the region.

Admissions

Ms. Tofflemire admits that she has committed professional misconduct by contravening the standards of the profession, as set out in paragraph 1 of the Notice of Hearing, with respect to the following conduct during the period 2000-2002, while employed as a Registered Nurse at [the Hospital]:

a. Accepting remuneration from manufacturers of equipment, including [manufacturers A and B], used by her patients;

b. Accepting into the Diabetes Education Program patients who were not patients of or otherwise connected to the Hospital or the Clinic; and

c. Recommending and/or prescribing changes to insulin dosages for patients and/or failing to document physicians' approvals for such changes.

Ms. Tofflemire admits that she has committed professional misconduct by practising the profession while in a conflict of interest, as set out in paragraph 2 of the Notice of Hearing, with respect to the following conduct during the period 2000-2002, while employed as a Registered Nurse at [the Hospital]:

a. Accepting remuneration from manufacturers of equipment, including [manufacturers A and B], used by her patients; and

b. Accepting into the Diabetes Education Program patients who were not patients of or otherwise connected to the Hospital or the Clinic; and

Ms. Tofflemire admits that she has committed professional misconduct by engaging in conduct or performing an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, as set out in paragraph 3 of the Notice of Hearing, with respect to the following conduct during the period 2000-2002, while employed as a Registered Nurse at [the Hospital]:

a. Accepting remuneration from manufacturers of equipment, including [manufacturers A and B], used by her patients;

b. Accepting into the Diabetes Education Program patients who were not patients of or otherwise connected to the Hospital or the Clinic; and

c. Recommending and/or prescribing changes to insulin dosages for patients and/or failing to document physicians' approvals for such changes.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs 1, 2 and 3 of the Notice of Hearing in that the member :

a. accepted remuneration from manufacturers of equipment, including [manufacturers A and B], used by her patients; and/or

b. Utilized facilities and other resources of the Hospital, including her time, to conduct her own nursing practice with patients who were not patients of the Hospital; and/or

c. Recommended and/or prescribed changes to insulin dosages for patients.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty had been agreed upon. The Joint Submission as to Penalty (Exhibit # 3) provides as follows:

Jacqueline D. Tofflemire ("the Member") and the College of Nurses of Ontario ("the College") respectfully submit that, in view of the circumstances set out in the Agreed Statement of Fact, and the Member's admissions of professional misconduct, the panel of the Discipline Committee should make an order as follows:

Requiring the Member to appear before the panel to be reprimanded.
Directing the Executive Director to suspend the Member's certificate of registration for 60 days, commencing on November 1, 2003.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration, that by December 31, 2003, or such later date as the College's Director of Investigations and Hearings Department ("the Director") may agree to in advance, the Member must provide proof to the Director that she has met with an expert in the practice of nursing acceptable to the Director and discussed issues relating to scope of practice and conflict of interest on the basis of the circumstances described in the Agreed Statement of Facts, a copy of which will be provided to the expert at least one week in advance of the meeting.

Counsel for the member agreed with the College counsel that the penalty reflected the needs of the College and the Member. Counsel for the Member also presented to the panel letters of reference (Exhibit # 4).

Penalty Decision

The panel accepts the Joint Submission as to Penalty and accordingly makes an order:

Requiring the Member to appear before the panel to be reprimanded.
Directing the Executive Director to suspend the Member's certificate of registration for 60 days, commencing on November 1, 2003.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration, that by December 31, 2003, or such later date as the College's Director of Investigations and Hearings Department ("the Director") may agree to in advance, the Member must provide proof to the Director that she has met with an expert in the practice of nursing acceptable to the Director and discussed issues relating to scope of practice and conflict

of interest on the basis of the circumstances described in the Agreed Statement of Facts, a copy of which will be provided to the expert at least one week in advance of the meeting.

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and the proposed penalty, has accepted responsibility for her actions.

I Rob Rupert, 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:

Discipline Chairperson Date

Discipline Panel:

Jim Attwood, RN Anne McKenzie, RPN

Catherine Charlton, Public Member Fay Cole, Public Member