College of Nurses of Ontario v. Khalill, 2006 ONCNO 81727

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Kendra O’Bryan, RPN Chairperson

Cheryl McMaster, RPN Member

Grace Isgro-Topping Public Member

Bill Dowson Public Member

BETWEEN:

) NICK COLEMAN for

) the College of Nurses of Ontario

COLLEGE OF NURSES OF ONTARIO )

-AND- )

MOHAMED KHALILL )

Registration No. 0008656 ) NO REPRESENTATION for

) Mohamed Khalill

) Heard: September 13, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on September 13, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

The panel commenced the hearing at 9:00 am. The Member was not present. The panel called a 30 minute recess to allow the Member an opportunity to arrive.

At 9:30 am the panel reconvened, with the Member present. At that time, the panel Chair, Jim Attwood recused himself from the panel, after advising the parties that he was the Chair at the pre-hearing conference involving the Member. The hearing was recessed once again and subsequently reconvened with a four member panel. Kendra O’Bryan acted as the Chair.

The Allegations

The allegations against Mohamed Khalill (the “Member”) as stated in the Notice of Hearing dated July 31, 2006, (Exhibit # 1) are as follows:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that, on October 9, 2001, you were found guilty of an offence that is relevant to your suitability to practice with respect to the charge of fraud over $5,000.00, contrary to subsection 380(1)(a) of the Criminal Code of Canada.

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(15) of Ontario Regulation 799/93, in that, while engaged in the practice of nursing, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement with respect to failing to report the finding of guilt on October 9, 2001 of the charge of fraud over $5,000 contrary to s. 380(1) of the Criminal Code of Canada when you renewed your registration with the College of Nurses of Ontario in December 2001, December 2002, December 2003, and/or December 2004.

3. 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(18) of Ontario Regulation 799/93, in that you contravened a term, condition or limitation on your certificate of registration when you failed to provide the College of Nurses of Ontario with details relating to the finding of guilt with respect to the charge of fraud over $5,000 contrary to subsection 380(1)(a) of the Criminal Code of Canada on October 9, 2001 when you renewed your membership with the College in December 2001, December 2002, December 2003, and/or December 2004.

4. 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(23) of Ontario Regulation 799/93, in that, while engaged in the practice of nursing, you failed to take reasonable steps to ensure that the requested information was provided in a complete and accurate manner where you were required to provide information to the College pursuant to the regulations under the Act, and in particular, s. 5(3) of Ontario Regulation 275/94, as amended, with respect to failing to report the finding of guilt on October 9, 2001 when you renewed your membership with the College in December 2001, December 2002, December 2003, and/or December 2004.

5. 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 engaged in the practice of nursing, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to the all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to failing to report the finding of guilt on October 9, 2001 of the charge of fraud over $5,000 contrary to s. 380(1) of the Criminal Code of Canada when you renewed your registration with the College of Nurses of Ontario in December 2001, December 2002, December 2003, and/or December 2004.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered # 1 through # 5 in the Notice of Hearing. The panel conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal. A written plea inquiry was also received (Exhibit # 3).

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. Mohamed Khalill ("Member") has been a Registered Nurse with the College of Nurses of Ontario ("College") since 2000. He attended [a college] for his nursing education and graduated from the program in 1996. Currently, the Member works as a Registered Nurse at [the Hospital] where he has been employed for approximately five years.

THE UNDERLYING CONDUCT

2. Between January 1994 and July 1996, the Member received social assistance from [Social Services]. He provided false information to Social Services regarding his status as a full-time college student and his other assets in order to receive benefits to which he was not entitled during this period. As a result, the Member fraudulently obtained $37,697.61 from Social Services between- January 1994 and June 1998.

CRIMINAL CONVICTIONS

3. In September 2000, the Member was charged criminally with respect to his conduct in relation to the benefits he received from Social Services in 1994-1998. On October 9, 2001, the Member pleaded guilty and was convicted in the Ontario Court of Justice of unlawfully defrauding Social Services of money of a value exceeding $5,000.00 contrary to s. 380(1) of the Criminal Code of Canada.

4. The Member was sentenced by the Court on October 9, 2001 to an eight month conditional sentence, including house arrest, and he was ordered to complete payment of restitution to Social Services in the full amount of $37,697.61 by October 2003. In addition, the Court ordered that the Member be placed on probation for a period of 25 months following his conditional sentence. The Member completed his restitution payments to Social Services by February 2003 and his probation was terminated early as a result.

ANNUAL PAYMENT FORMS

5. The Member failed to disclose the criminal conviction to the College on his 2002, 2003, 2004 and 2005 Annual Payment Forms. The Member either answered "no" to the question regarding findings of guilt or criminal offences (December 2001) or provided no response to the self-reporting obligation (December 2002, December 2003, and December 2004) with respect to his Annual Payment Forms for 2002, 2003, 2004 and 2005 respectively. All of these forms were signed by the Member in his capacity as Registered Nurse and submitted by him to the College.

ADMISSIONS

6. The Member admits that he was found guilty of a criminal offence relevant to his suitability to practice, as alleged in paragraph 1 of the Notice of Hearing.

7. The Member admits that he signed or issued, in his professional capacity, a document that he knew contained a false or misleading statement when he- signed his 2002, 2003, 2004 and 2005 Annual Payment Forms, without disclosing his criminal conviction, and that he failed to take reasonable steps to ensure that information about the conviction was provided to the College in a complete and accurate manner, as alleged at paragraphs 2 and 4 of the Notice of Hearing. The Member admits that, in so doing, he contravened a condition deemed to be a condition on his certificate of registration requiring him to report findings of guilt for criminal offences pursuant to 0.Reg. 275/94 to the Nursing Act, 1991, as alleged in paragraph 3 of the Notice of Hearing.

8. Finally, the Member admits that this conduct would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional conduct, as alleged at paragraph 5 of the Notice of Hearing.

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 through 5 of the Notice of Hearing.

Specifically, on October 9, 2001, the Member was found guilty and convicted of fraud over $5,000.00, an offence that is relevant to his suitability to practise. In addition, upon renewing his registration with the College in December 2001, 2002, 2003 and 2004, the Member knowingly failed to report his criminal conviction. He, therefore, made a false or misleading statement in his professional capacity and contravened a term, condition or limitation on his certificate of registration when he failed to provide the College with details relating to the finding of guilt with respect to the charge of fraud. Further, the Member failed to take reasonable steps to ensure that the requested information was provided in a complete and accurate manner where required to provide information to the College pursuant to the regulations. These actions would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty (“JSP”) had been agreed upon. The JSP (Exhibit # 4) provides as follows:

Mohamed Khalill ("Member") and the College of Nurses of Ontario ("College") respectfully submit that, in view of the circumstances set out in the Agreed Statement of Facts and the Member's admissions of professional misconduct, the Panel of the Discipline Committee ("Panel") should make an Order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded, at a date to be arranged by the Member and the College but in any event within three months from the date this Order becomes final.

2. Directing the Executive Director to suspend the Member's certificate of registration for 45 days, with the suspension to commence the date this Order becomes final.

3. Directing the Executive Director to impose terms, conditions and limitations on the Member's certificate of registration requiring the Member to complete successfully, at his own expense, a course in ethics, or a counselling session regarding ethics with an expert in nursing practice, that is acceptable to the Director, Investigations & Hearings at the College, within 12 months of the date this Order becomes final.

College counsel requested that the panel consider an amendment in relation to item #2 of the JSP. Specifically, the request was to have the suspension commence on September 21, 2006 instead of date the order becomes final. The request was made to accommodate staffing at the Member’s place of employment.

The panel consulted with Brian Gover, its independent legal counsel (“ILC”) to determine if the extension was appropriate. ILC advised that the panel has discretionary power on this matter. He also advised that the panel should consider the following factors in making a decision:

• The length of time requested (8 days) was, in his opinion a reasonable request:

• The panel should give significant weight to the agreement between the College and the Member – both the public interest and Member’s interest been addressed in the JSP, as the parties wished it revised;

• The JSP as revised should be taken very seriously and should only be rejected by the panel if there were serious concerns that it would bring the Discipline process into disrepute or that it would otherwise be contrary to the public interest; and

• If there had been discussion between College counsel and the Member to the effect that the penalty would only become effective at the conclusion of the 30 day appeal period and the Member relied on that assurance, then the panel should allow the amendment to the JSP concerning the date on which the suspension of the Member’s certificate of registration was to become effective.

The panel considered ILC’s advice and the parties’ submissions on this point, and allowed the amendment.

Penalty Decision

The panel accepts the JSP and accordingly makes a penalty order:

1. Requiring the Member to appear before the Panel to be reprimanded, at a date to be arranged by the Member and the College but in any event within three months from the date this Order becomes final.

2. Directing the Executive Director to suspend the Member's certificate of registration for 45 days, with the suspension to commence on September 21, 2006.

3. Directing the Executive Director to impose terms, conditions and limitations on the Member's certificate of registration requiring the Member to complete successfully, at his own expense, a course in ethics, or a counselling session regarding ethics with an expert in nursing practice, that is acceptable to the Director, Investigations & Hearings at the College, within 12 months of the date this Order becomes final.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The penalty is also consistent with decisions of other Discipline panels in similar cases in the past.

The panel took into account the following mitigating factors:

• The Member ultimately accepted responsibility for his actions.

• The Member made full restitution to Social Services, ahead of schedule.

• The Member admitted to the allegations and apologized to the panel for his conduct.

• The Member has co-operated with the College.

The JSP provides a specific deterrent to the Member not to repeat his actions in the future. It also serves as a general deterrent to the membership as a whole, by sending a message not to participate in such conduct, as such conduct will not be tolerated. It also sends a clear message to the public that Members are held to a high professional standard and this kind of behaviour will neither be accepted nor tolerated.

I, Kendra O’Bryan, 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 as listed below:

Chairperson Date

Panel Members:

Cheryl McMaster, RPN

Grace Isgro-Topping, Public Member

Bill Dowson, Public Member