College of Nurses of Ontario v. [The member], 2003 ONCNO 90020

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

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

PANEL:

Deanne Barber, RPN Chairperson Kim Pittaway, RN Member Monica Seawright, RPN Member Brenda Noble Public Member Catherine Charlton Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO

Anil Kapoor for College of Nurses of Ontario

• and -

NO REPRESENTATION for [The member]

Heard: December 15, 2003

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on Dec 15, 2003 at the College of Nurses of Ontario (the "College") at Toronto.

The Allegations

The allegations against [the member] as stated in the Notice of Hearing (Exhibit #1), dated October 9th 2003, 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(8) of the Ontario Regulations 799/93. in that while employed at [the Residence], you misappropriated property from a client and the workplace:
   1. with respect to your reporting ill for work at [the Residence] for your April 1, 2002 for the 15:00 to 23:00 shift and thereafter collecting Sick Pay while you were in fact working at [the Long Term Care Centre] on April 1, 2002 from 09:00 to 17:00 for which you also received payment;
   2. with respect to your reporting ill for work at [the Residence] for your April 5, 2002 for the 07:00 to 15:00 shift and thereafter collecting Sick Pay while you were in fact working at [the Long Term Care Centre] on April 5, 2002 from 09:00 to 17:00 for which you also received payment.
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 the Ontario Regulations 799/93. in that while employed at [the Residence], you engaged in conduct or performed an act or acts relevant to the practise of nursing that, having regard to all of the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional:

   1. with respect to your reporting ill for work at [the Residence] for your April 1, 2002 for the 15:00 to 23:00 shift and thereafter collecting Sick Pay while you were in fact working at [the Long Term Care Centre] on April 1, 2002 from 09:00 to 17:00 for which you also received payment;

   2. with respect to your reporting ill for work at [the Residence] for your April 5, 2002 for the 07:00 to 15:00 shift and thereafter collecting Sick Pay while you were in fact working at [the Long Term Care Centre] on April 5, 2002 from 09:00 to 17:00 for which you also received payment.

      Counsel for the College advised that the College was withdrawing allegations set out in paragraph 1 a) and 1 b).

Member's Plea

[The member] admitted the allegations set out in paragraphs numbered 2(a) and 2(b) 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:

BACKGROUND

1. ("the Member") [ ] has been registered with the College of Nurses of Ontario [ ] since 1998.
2. The Member was employed [ ] at [the Residence] from December 1998 to April 2002, when her employment was terminated in connection with the events described below.
3. ("the Residence") is a 7-floor retirement residence for approximately 100 residents that is owned and operated by [ ]. Approximately 80 percent of the residents live independently and twenty percent are physically and/or cognitively impaired. The Residence employs Guest Attendants to provide housekeeping services for residents, and nurses to provide health care for residents with physical and/or cognitive impairments.

EVENTS OF APRIL 1 AND 5, 2002

4. The Member was scheduled to work from 1500h to 2300h on April 1, 2002, and from 0700h to 1500h on April 5, 2002.
5. On March 29, 2002, the Member telephoned the Residence and advised her employer that she was sick and would be unable to work her scheduled shifts on March 30, 31 and April 1, 2002. The Member later provided her employer with a note from a physician dated March 30, 2002, indicating that she should be off work for 2 to 3 days.
6. On April 2, 2002, the Member asked the Residence's Director of Care for a vacation day on April 5, 2002. The Director of Care refused to grant the request because of staff shortages.
7. On April 4, 2002, the Director of Care learned that the Member had arranged for another nurse to cover her shift on April 5, 2002, and called the Member and told her that the other nurse was required to work that shift in any case, and that the Member would still need to work on April 5.
8. At 0817h on April 5, 2002, the Member left a voice message for the Director of Care indicating that she would not be coming to work that day because she needed to have some medical tests. The Member did not work at the Residence on April 5, 2002, and subsequently provided a note from a physician indicating that he had advised her to stay home on that day.
9. Nurses at the Residence were represented by the [the Union]. Pursuant to the collective agreement reached between the Residence and [the Union] nurses are entitled to receive sick pay when they are unable to work as a result of illness.
10. The Member received approximately $220.00 in sick benefits from the Residence as a result of claiming she was sick on April 1 and 5, 2002.
11. The Director of Care of the Residence subsequently learned that on April 1, 2002, the Member had worked a 7.5-hour training shift at [the Long Term Care Centre], a facility also owned and operated by [ ], although she had claimed to be ill that day and had provided a physician's note to that effect. The Director of Care also learned that the Member had worked a regular 7.5 hour shift at [the Long Term Care Centre] on April 5, 2002, although she claimed to be ill that day and provided a physician's note to that effect.
12. The Member admits that she was able to work on April 1 or 5, 2002. She called in sick because she wanted to leave her position at the Residence and to train and begin working at [the Long Term Care Centre].

ADMISSION

13. The Member admits that by claiming to be ill and unable to work on April 1 and 5, 2002, when she was able to work at [the Long Term Care Centre], and by accepting sick pay benefits from [the Residence], she engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

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 2(a) and 2(b) of the Notice of Hearing in that:

The Member 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 the Ontario Regulations 799/93. in that while employed at [the Residence], the Member engaged in conduct or performed an act or acts relevant to the practise of nursing that, having regard to all of the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional:

1. with respect to the Member's reporting ill for work at [the Residence] for your April 1, 2002 for the 15:00 to 23:00 shift and thereafter collecting Sick Pay while she was in fact working at [the Long Term Care Centre] on April 1, 2002 from 09:00 to 17:00 for which she also received payment;
2. with respect to the Member's reporting ill for work at [the Residence] for your April 5, 2002 for the 07:00 to 15:00 shift and thereafter collecting Sick Pay while she was in fact working at [the Long Term Care Centre] on April 5, 2002 from 09:00 to 17:00 for which she also received payment.

Reasons for Decision

The panel deliberated and after due consideration of all the facts and the Member's admission to the allegations, unanimously decided to accept the Agreed Statement of Facts as presented which substantiated the findings of professional misconduct by the panel.

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 ("JSP") ( Exhibit # 3) provides as follows:

[ ] ("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:

1. Requiring the Member to appear before the panel to be reprimanded.
2. Requiring the Member to pay a fine of $100.00 to Minister of Finance for Ontario by delivering a certified cheque, or money order, payable to the Minister of Finance for Ontario to the Director of Investigations and Hearings by February 28, 2004 by courier, registered mail, or another verifiable form of delivery, proof of which the Member shall retain.

Counsel for the College submitted that the College was satisfied that the Member's error was not intended to abuse sick benefits but rather that the Member was in a position where she wanted to leave her present employer and was unable to get time off by other means. Counsel stated that to her credit, the Member was prepared to make restitution and had a money order to that effect. Counsel also presented the 2001 Communique that addresses the issue of nurses inappropriately submitting for sick benefits when not entitled.

The Member in response acknowledged her actions in billing for sick leave when she was not sick. The Member indicated that she was seeking a new position with another employer and felt she was unable to access time off any other way.

Penalty Decision

The panel deliberated and accepts the JSP and accordingly orders:

1. The Member to appear before the panel to be reprimanded.
2. The Member is to pay a fine of $100.00 to the Minister of Finance of Ontario by delivering a certified cheque, or money order, payable to the Minister of Finance for Ontario to the Director of Investigations and Hearings by February 28, 2004 by courier, registered mail, or another verifiable form of delivery, proof of which the Member shall retain.

Reasons for Penalty

The panel considered all the evidence and the submissions made by both the Member and College counsel and 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. The panel recognized that the Member attempted to have her shifts covered but when these were denied resorted to taking sick leave. The panel wishes to send a strong message to the members and public, that this type of behaviour by the member will not be tolerated and the penalty addresses both specific and general deterrence.

I, Deanne Barber, RPN, sign this Decision and Reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel [ ]