College of Nurses of Ontario v. Gayle Corey, 2006 ONCNO 81726

PANEL: Denise Dietrich, RPN Chairperson Sheila Pendock, RN Member Rosalie Woods, RPN Member Jerry Dobie Public Member Grace Isgro-Topping Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ANIL KAPOOR for College of Nurses of Ontario

and -

GAYLE COREY Registration No. II02362 NO REPRESENTATION for Gayle Corey

CHRIS WIRTH Independent Legal Counsel

Heard: August 23-24, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on August 23 and 24, 2006 at the College of Nurses of Ontario (the “College”) in Toronto.

The hearing was convened at 0910 on August 23, 2006. The Member was not present and subsequently the hearing recessed until 0930 to give the Member additional time to appear. The hearing proceeded in the Member’s absence when reconvened at 0930.

The Allegations

The allegations against Gayle Corey (the “Member”) as stated in the Notice of Hearing dated July 7, 2006 are as follows:

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 the Ontario Regulations 799/93 in that while working at [the Retirement Home] you failed to maintain the standards of the profession, in that:

a) Between October 7 and 9, 2003 you pre-poured various medications for administration on October 10, 2003;

b) You failed to check for any changes in the medications that you had pre-poured and which were to be administered by you on October 10, 2003;

c) In the month of October 2003 you administered medications which were ordered to be administered on a “prn” basis without conducting an independent assessment of whether the medication was needed;

d) Between January 1, 2003 and October 22, 2003 on numerous occasions you would discuss your personal affairs with various residents, including [residents A and B];

e) Between January 1, 2003 and October 22, 2003 you accepted a personal gift from [resident A], namely a bottle of wine;

f) Between May 3, 2002 and October 22, 2003 you failed to notify your employer that your registration with the College of Nurses was suspended and you continued to represent that your membership was in good standing.

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(19) of the Ontario Regulations 799/93 while employed at [the Retirement Home] in that:

a) Between May 3, 2002 and October 22, 2003 you contravened the provisions of the Nursing Act, 1991, S.O. c. 32 as amended, namely s. 11(5) by holding yourself out as qualified to practise in Ontario as a nurse, registered nurse or practical nurse when your registration with the College of Nurses was suspended.

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 while employed at [the Retirement Home] in that 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, in that:

a) Between October 7 and 9, 2003 you pre-poured various medications for administration on October 10, 2003;

b) You failed to check for any changes in the medications that you had pre-poured and which were to be administered by you on October 10, 2003;

d) Between January 1, 2003 and October 22, 2003 on numerous occasions you would discuss your personal affairs with various residents, including [residents A and B];

e) Between January 1, 2003 and October 22, 2003 you accepted a personal gift from [resident A], namely a bottle of wine;

Counsel for the College advised that the College would be asking the panel to dismiss the allegations set out in paragraph #1 of the Notice of Hearing. Additionally, counsel indicated that the College did not intend to call evidence in relation to allegations set out paragraph #3, subparagraphs (d) and subparagraph (e) and that the panel was also asked to dismiss these allegations.¹

Member’s Plea

Neither the Member nor a representative for the Member was present and the hearing proceeded on the basis that the Member was deemed to have denied the allegations set out in the Notice of Hearing.

The panel was satisfied that the Member had been served with the Notice of Hearing as counsel for the College provided the panel with a copy of the Member’s signature upon receipt of registered mail from Canada Post (Exhibit #1), confirming that the Member had adequate notice of the allegations and the date, time and place of the hearing.

Overview

The Member was employed as a Registered Practical Nurse at [the Retirement Home] in October 2003. As a result of a number of practice-related issues, the Member’s employment at [the Retirement Home] was terminated on October 23, 2003. The employer later learned that the Member’s certificate of registration with the College had been suspended during the time she was working at [the Retirement Home].

The issues raised by the allegations against the Member are as follows:

(a) Did the Member work as a Registered Practical Nurse while her registration was suspended between May 3, 2002 and October 2003?

(b) Did the Member pre-pour medications between October 7 and 9, 2003 to be given on October 10, 2003?

(c) Did the Member fail to check for any changes to medications that had been pre-poured for administration on October 10, 2003?

(d) In October 2003 did the Member fail to conduct an independent assessment prior to giving “prn” medications?

(e) Did the Member fail to notify her employer that her registration with the College was suspended between May 2002 and October 2003?

The Evidence

Allegation #2: Professional Misconduct – Between May 3, 2002 and October 22, 2003 the Member contravened the provisions of the Nursing Act, 1991, S.O. c. 32 as amended, namely s. 11(5) as the Member held herself out as qualified to practise in Ontario as a nurse when the Member’s registration with the College of Nurses was suspended. [Issue # 1]

[ ], the College’s Registration and Examination Co-ordinator, testified that the Member’s registration status was suspended on May 28, 2001 for non-payment of fees. A printout of the College’s registration records for this Member (Exhibit #3) was presented to the panel and reviewed by [the Co-ordinator]. The witness explained to the panel that the Member’s registration with the College had been reinstated on October 11, 2001 and then re-suspended on May 3, 2002, again for non-payment of fees.

[The Co-ordinator’s] testimony supported the conclusion that the Member would have known that her registration was suspended, as letters had been issued to the Member by the College. The panel reviewed a letter dated February 21, 2002 from the Director of Corporate Services (Exhibit #4), indicating that the Member had not paid fees and that her membership would be suspended if still unpaid by May 2, 2002. In addition, a second letter dated May 3, 2002 from the College’s Executive Director (Exhibit #5), clearly notified the Member that her registration had been suspended as of May 2, 2002.

[ ], the Director of Care at [the Retirement Home], testified that the Member was employed as a Registered Practical Nurse (RPN) at [the Retirement Home] until October 23, 2003. [The Director] identified the Member’s initials on medication administration records (Exhibit #6), providing further evidence that the Member was working and administering medications. The initials identified as the Member’s by [the Director] were entered on October 10, 2003. [The Director] testified that the Member worked day shift on October 10, 2003.

[ ] was the Executive Director of three retirement homes, including [the Retirement Home]. [The Executive Director] testified that the Member was employed at [the Retirement Home] as an RPN until October 23, 2003. [The Executive Director] testified that the Member had not advised [the Retirement Home] that her registration was suspended.

Allegation #3(a): Professional Misconduct. Between October 7 and 9, 2003 the Member pre-poured various medications for administration on October 10, 2003. [Issue # 2]

[The Director] testified that she worked the 7:00 a.m. to 3:00 p.m. shift on October 8, 2003. The Member also worked the same day from 3:00 to 11:00 p.m. On October 9, 2003, [the Director] returned and again worked the day shift, 7:00 a.m. to 3:00 p.m. [The Director] testified that during her shift on October 9, 2003, she opened a cupboard and noticed a purple tissue box with pre-poured medications in cups with residents’ names handwritten on each cup. The witness recognized the handwriting as the Member’s. [The Director] testified that these medications had not been pre-poured for her use because she does not give pre-poured medication. It is against the policy at [the Retirement Home] to give medications that have been pre-poured, as mistakes can be made.

In regard to the pre-pouring of medications, witnesses [the Senior Executive Director] of [the Retirement Home], and [the Director] testified that the Member attended a meeting on October 22, 2003 where the practise of pre-pouring medications was discussed. At this meeting the Member admitted pre-pouring medications during her shift on October 8, 2003 (those medications to be given on her next scheduled shift October 10, 2003). The Member stated to the group attending the meeting that she pre-poured the medications because she knew it was going to be a hectic day shift. In the meeting, the Member stated that she had only pre-poured medication on this one occasion.

Allegation #3(b): Professional Misconduct – The Member failed to check for any changes in the medications that she had pre-poured and which were to be administered by the Member on October 10, 2003. [Issue #3]

The practice of documenting medication administration at [the Retirement Home] was one of charting by exception. The panel heard testimony from [the Director] that the only time nurses charted medication administration was when medications were given “prn” or for a short duration. She indicated that an example of a short duration medication would be an antibiotic. If a medication was not given, the nurse would document the reason for not administering the medication on the medication administration record using a code system to explain the reason that the medication was not given.

[The Director] testified that when she worked the day shift on October 11, 2003, she noted that there were full packages of morning medication for [residents C and D]. [The Director] stated that she assumed from these observations that the Member had not given the prescribed morning medications on the previous day, October 10, 2003. It was [the Director’s] evidence that at times, nurses give residents medication brought from home prior to pharmacy delivery of medications. [The Director] noted that [residents C and D] were new admissions to the facility. Both of these residents had been admitted to [the Retirement Home] on October 9, 2003 and in the opinion of [the Director] they both would have received their first morning medications issued by the pharmacy on October 10, 2003. In observing that the blister package of medications was full for each of these residents, [the Director] concluded that the Member had not given these residents their prescribed morning medications on October 10, 2003.

[The Director] further testified in regard to a third resident, [resident E]. [Resident E] was to have started on an antibiotic on October 10, 2003. [The Director] observed that the blister pack for the 0800 antibiotic for [resident E] was full. She noted that the Member had signed the medication administration record for [resident E] indicating that the medication had been given. [The Director] advised the panel that since the blister pack was full that she concluded that the Member did not give [resident E] the antibiotic as prescribed, but had signed to indicate that this medication was given.

Allegation #3(c): Professional Misconduct – In the month of October 2003 the Member is alleged to have administered medications which were ordered to be administered on a “prn” basis without conducting an independent assessment of whether the medication was needed. [Issue #4]

Witnesses [the Director] and [the Senior Executive Officer] testified that they attended a meeting on October 22, 2003 at which time the Member’s medication administration practices were discussed. In attendance at this meeting were the two witnesses, the Member and [ ], the Executive Assistant to [the Senior Executive Officer] at [the Retirement Home]. [The Director] and [the Assistant] both testified that the Member reported that when giving “prn” medications she relied on the assessment of the Health Care Aides and did not conduct an independent assessment of the patients’ status.

[The Senior Executive Officer] testified that the Member had stated that she “never verified with residents whether they wanted it or not”. In terms of administration of “prn” medications, the Member had reported to the witnesses, during the meeting of October 22, 2003, that she knew what she was doing.

While the panel heard testimony to support that the Member did give “prn” medication without independent assessment, there was no evidence provided to the panel to confirm that the Member gave any “prn” medication in the month of October 2003.

Allegation #3(f): Professional Misconduct – Between May 3, 2002 and October 22, 2003 the Member failed to notify the employer that her registration with the College was suspended and that the Member continued to represent that the Member’s registration was in good standing. [Issue #5]

[The Senior Executive Officer] testified that the Member did not inform him of her registration status with the College. It was only after [the Retirement Home] notified the College of termination of the Member’s employment that he was informed that the Member’s registration had been suspended.

[The Executive Director] testified that the Member was working as a staff RPN and that she was led to believe that the Member was registered with the College.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof which the panel is familiar with, set out in Re Bernstein and College of Physicians and Surgeons of Ontario (1977) 15 O.R. (2d) 477. The standard of proof applied by the panel, in accordance with the Bernstein decision, was a balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel. The panel also recognized that the more serious the allegation to be proved, the more cogent must be the evidence.

The panel deliberated and agreed with College Counsel’s request to dismiss the allegations set out in paragraph #1 and paragraph #3, subparagraphs (d) and (e) of the Notice of Hearing. The panel noted that the College announced that it was calling no evidence in relation to these allegations.

Having considered the evidence concerning the remaining allegations and the onus and standard of proof, the panel finds that the Member committed the following 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(19) of the Ontario Regulation 799/93 while employed at [the Retirement Home] in that between May 3, 2002 and October 22, 2003 contravened the provisions of the Nursing Act, 1991, S.O. c. 32 as amended, namely s. 11(5) by holding herself out as qualified to practise in Ontario as a nurse while the Member’s registration with the College was suspended. [Specifically, Allegation #2]
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 Regulation 799/93 while employed at [the Retirement Home] the Member engaged in conduct or performed an act relevant to the practise of nursing that, having regard to all of the circumstances would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. In particular, between October 7 and 9, 2003 the Member pre-poured various medications for administration on October 10, 2003. Additionally, between May 3, 2002 and October 22, 2003 the Member failed to notify the employer that her registration with the College was suspended and she continued to represent that her registration was in good standing. [Specifically, Allegations #3(a) and (f)]

The panel was unable to find clear, cogent and convincing evidence to support findings in relation to Allegations #3(b) and (c). The panel did not find that the evidence presented by the College met the standard of proof in accordance with the Bernstein decision to support a finding.

Credibility

[The Co-ordinator] at the College testified in a straightforward manner. He verified the facts and reviewed the Exhibits #3 - #5. The panel found him to be credible with no vested interest in the outcome of this hearing.

[The Executive Director] testified in a clear and concise manner. She did not have difficulty responding to questions. The panel had some concern about the credibility of this witness as it was noted that during the hearing, the witness had ignored direction of the panel not to discuss her testimony outside the hearing room. Her testimony was of limited value to the panel. She confirmed that the Member had worked at [the Retirement Home] during the time in question and this was consistent with the testimony of other witnesses.

[The Director] responded to questions in a calm, factual manner. She had little difficulty recalling detail and did not hesitate to provide answers when questions were asked. She may have had an interest in the outcome of this case, but this was not evidenced in her testimony. The panel found her to be a credible witness.

[The Senior Executive Officer] testified in a clear and confident manner. He responded without hesitation to questions posed by College Counsel. His testimony was consistent with that of [the Director] in relation to the meeting held at [the Retirement Home] on October 23, 2003. The panel found him to be a credible witness.

Reasons for Decision

The facts related to Issue #1 were two-fold. First, the panel needed to confirm that the Member’s registration with the College had been suspended during the dates in question. Second, the panel needed to determine whether the Member held herself out as an RPN while her registration was under suspension.

Evidence provided by the College’s witness, [The Co-ordinator], made clear to this panel the fact that the Member’s registration with the College was suspended and that she should have been aware of this fact.

The panel heard evidence from two witnesses, [the Director] and [the Executive Director] to support the allegation that the Member was working as an RPN at [the Retirement Home] during the dates in question. Both witnesses testified that the Member was employed as a RPN at [the Retirement Home] until October 23, 2003.

Upon completion of her testimony, [the Executive Director] was directed not to discuss the case with others. The panel learned that the witness did discuss portions of her testimony with other witnesses. The panel recalled this witness and questioned her about the content of her conversation with other witnesses. She testified that she could not remember what she had said but admitted to discussing her testimony with others. She stated more than once that she could not recall the details of what she shared.

The witness’s difficulty recalling a conversation that had happened a short while previous was in contrast to her ability to recall detail from 2003. The panel was concerned about the credibility of this witness given her poor recall of a recent conversation as well as her demonstrated difficulty following directions given by this panel.

Therefore the panel relied on the evidence of [the Director] and found that the Member had worked as an RPN while her registration was under suspension.

Allegation #3(a): Professional Misconduct – Between October 7 and 9, 2003 the Member pre-poured various medications for administration on October 10, 2003. [Issue # 2]

The panel relied on the testimony of [the Director] who had observed the pre-poured medications on October 9, 2003. In addition, both [the Director] and [the Senior Executive Officer] testified that the Member had admitted to pre-pouring these medications, as she expected that her work on the day shift of October 10, 2003 to be hectic. The panel noted that the testimony of both [the Senior Executive Officer] and [the Director] was consistent in terms of content. Consequently, the panel made a finding of professional misconduct in relation to this allegation.

The panel reflected on the testimony provided by [the Director] in relation to this allegation. The testimony in relation to this allegation was not clear. In particular, the panel noted that new residents were sometimes given medication from home and that the full blister packs for [residents C and D] therefore did not clearly indicate that the Member had not checked for changes. In the case of [resident E] where the medication presumed to not have been administered was an antibiotic, the panel noted that based on the signatures on the medication administration record, the Member may have given the medication from a package intended for a different time slot.

The panel deliberated and found that the evidence to support this allegation was not clear, cogent and convincing and subsequently they were not able to make a finding. Contributing to the challenge in making a finding related to this particular issue was the policy of the facility in regard to recording the administration of medications.

While the panel heard convincing testimony that the Member did not conduct her own independent assessment in relation to the giving of “prn” medications, there was no evidence provided to indicate to the panel that this occurred during the time in question, that being October 2003. The panel noted that no exhibits or testimony substantiated the allegation that the Member gave “prn” medications during October 2003. As this allegation specified that the conduct in question occurred in October 2003, the panel found that the evidence provided did not support a finding.

The panel relied on the evidence of [the Senior Executive Officer] in relation to this allegation. It was clear that [the Senior Executive Officer], as the senior executive officer of [the Retirement Home] in October 2003 would be considered the Member’s employer. It was similarly clear to the panel that [the Senior Executive Officer] was unaware that the Member’s registration was suspended until he was notified by the College after he notified the College that the Member’s employment had been terminated. The evidence in relation to this allegation met the test of clear, cogent and convincing and subsequently the panel made a finding of professional misconduct in relation to this allegation.

Penalty

Counsel for the College submitted that the appropriate penalty would be an order directing the Executive Director to revoke the Member’s Certificate of Registration.

Counsel for the College made the following submissions to the panel in support of this proposed penalty order:

The findings represent serious misconduct. In particular, continuing to practice when one’s registration is under suspension undermines the public confidence in the profession as a whole. Holding oneself out as a Member while under suspension demonstrated a tremendous lack of understanding regarding self-regulation.
The Member has demonstrated an abject disregard for the College. Her failure to attend the hearing or to otherwise acknowledge her accountability to the College throughout these proceedings demonstrates a continued disregard for the authority of the College and that of the Discipline Committee.
There is no explanation and no expression of remorse or regret on the part of the Member. No mitigating circumstances can be identified. Because she failed to appear, the panel has no basis to assess the Member’s rehabilitation potential. In addition, there has been no acceptance of responsibility by the Member and there is no basis for concluding that the Member is governable. If a nurse is ungovernable, they should not remain part of the membership.
The Member is ungovernable. The public cannot have confidence in this institution if the institution allows for ungovernable members to practise.

Penalty Decision

The panel deliberated on College Counsel’s submissions on penalty. The panel agreed that revocation of the Member’s certificate of registration was the appropriate penalty in this case.

Accordingly the panel directs the Executive Director to revoke the Member’s Certificate of Registration, effective immediately.

Reasons for Penalty Decision

In the absence of any evidence presented by or on behalf of the Member, the panel reached its decision on penalty on the basis of evidence and argument presented by the College. The panel accepted the College’s submission on penalty as appropriate.

The penalty provides a deterrent to both the Member and the membership. The penalty protects the public by sending a clear message that members must be accountable to the College. The Member’s failure to attend this hearing or to otherwise acknowledge her accountability to the College demonstrates a lack of respect for the authority of this College and for the Discipline Committee. The panel had no basis for any level of confidence that this Member would be governable if allowed to continue to practise.

Renewal of a nurse’s annual membership is a basic responsibility, comparable to renewing one’s driver’s license. When members fail to ensure that their registration is in good standing, they place their employers, their colleagues and the public at significant risk.

The panel is of the opinion that this decision sends a strong message to the membership in relation to professional accountability in a self-regulating profession. Public trust is an honour that can only be upheld through nurses’ collective accountability to the College.

I, Denise Dietrich, 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

Panel Members:

Sheila Pendock, RN Rosalie Woods, RPN Jerry Dobie, Public Member Grace Isgro-Topping, Public Member

Footnotes

For the sake of simplicity, the panel will refer to the allegations of professional misconduct set out in the Notice of Hearing as follows. The allegations set out in paragraph 2 will be referred to as “Allegation #2”, and the allegations set out in subparagraph #3(a), for example, will be referred to as “Allegation #3(a)”.