College of Nurses of Ontario v. Hooker, 2006 ONCNO 81736

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Joanne Furletti, RN Chairperson Deanne Barber, RPN Member Jim Attwood, RN Member Faira Bari Public Member Art Osborne Public Member

BETWEEN:

NICK COLEMAN for College of Nurses of Ontario

• and - ALLAN DICK for Catherine Hooker

CATHERINE HOOKER Registration No. 7908734

Heard: August 29, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on August 29, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Catherine Hooker (the “Member”) as stated in the Amended Notice of Hearing dated July 31, 2006 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(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 accessing patient records for patients to whom you were not providing any care and for no proper purpose during the period, in or about November, 2002-June, 2003.

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 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 accessing patient records for patients to whom you were not providing any care and for no proper purpose during the period, in or about November, 2002-June, 2003.

Member’s Plea

Catherine Hooker admitted the allegations set out in paragraphs numbered 1 and 2 in the Amended 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 which provided as follows:

THE MEMBER

1. Ms. Catherine Hooker, RN, ("the Member") has been registered with the College of Nurses of Ontario ("the College") since January 1, 1979. The Member's surname was "Laperriere" until 2003 when she married and assumed the surname "Hooker".

2. The Member commenced full-time employment with the [Hospital] in March 1990. At all relevant times, she was assigned to [Unit A]. The Member's employment was terminated in June 2003 as a result of the incidents described below.

THE HOSPITAL

3. The [Unit] is a 25 bed unit for patients requiring inpatient mental healthcare located on [ ] at the Hospital. The inpatient care is typically short term so there is a relatively high turnover of patients. [Unit A] typically provides care to approximately 700 patients per year. The Hospital also provides outpatient and day program care to mental health patients

4. The Hospital published Confidentiality and Security Statement and Guidelines regarding confidentiality of patient records. The following points were expressly set out in the Confidentiality and Security Statement and Guidelines:

• the Hospital had a zero-tolerance policy on any violation of the security and confidentiality of any information concerning patients, hospital personnel and confidential hospital information;

• the staff were not to share their computer passwords which could and would be used to track accessing of patient information;

• the staff were not to leave any computer screen signed-on when no longer using it since this could permit unauthorized access to hospital information;

• staff were not to use the computer system to search for any patient information that was not required for the staff member's job; and

• medical information should be provided to patients by a physician so staff were not permitted to search for their own family's patient information.

5. The Member reviewed and signed off on a copy of the Confidentiality and Security Statement and Guidelines in February 1997.

6. In or about June 2002, the Hospital completed the transition to electronic documentation for patient records. The patient's electronic record included admission history, patient demographics (including name, address, telephone number, next of kin, allergies, insurance information, and who to contact in the case of an emergency), lab results and other medical information. The only exceptions were doctors’ orders, doctors' progress notes and medication administration records. The patient's medication administration record was added to the electronic record when the patient was discharged from the Hospital.

THE FIRST AUDIT

7. The Information Technology Department ("IT”) conducted an audit of computer access to patient records in December 2002. The audit revealed that the Member had accessed the records for two physicians who were also patients at the Hospital, Dr. [A] and Dr. [B]. According to the computer audit, the Member accessed the patients' demographic data and histories of hospital utilization.

8. The Member was interviewed by management regarding these incidents in December 2002. At that time, she stated that she knew the physicians and was curious about their health status. She acknowledged that her conduct with respect to accessing the records of Dr. [A] and Dr [B] was inappropriate.

9. As a result of the incidents in December 2002, the Member was suspended by the Hospital for four shifts as a disciplinary sanction. As well, she was advised that any repeat of the misconduct could result in further disciplinary action, up to and including termination of her employment.

THE SECOND AUDIT

10. In May 2003, IT conducted a further audit for computer access to the patient records for patients who had been admitted for SARs. The audit revealed that on April 5, 2003 the Member had accessed the electronic records for four patients, [clients A to D], on [Unit B] which had been reserved for SARs patients. As well, on April 6, 2003 the Member accessed patient records for three patients, [clients E to G], in the Emergency Unit. For some of these patients, the Member reviewed only the patient demographics but for others she accessed the history of hospital utilization and clinical and lab results. All but one of these patients had oriental names. None of these patients were patients of [Unit A] or patients for whom the Member had any professional responsibilities.

11. IT expanded the audit of the Member's access to patient records. As a result, the Hospital determined that the Member had also accessed the patient records for another 12 patients at the Hospital [clients H to S] between April 12, 2003 and May 31, 2003. These patients were not patients of [Unit A] and the Member had no other responsibilities for these patients. Most of these patients were Emergency Unit patients. In most cases, the Member accessed only demographic data but for a couple of them, she also checked the history of hospital utilization. One of the patients had not been a patient of the Hospital since [] but had the same surname as the married surname of the Member.

12. The Member was interviewed by management of the Hospital in June 2003 regarding her access of the electronic records of these patients in April and May 2003. The Member's explanations to the Hospital were not satisfactory and her employment was terminated in June 2003.

13. If she testified, the Member would state that she cannot recall all of the details of the patient records she accessed in April and May 2003. However, she does admit that she accessed the electronic records for patients who were not patients of [Unit A] and for whom she had no responsibilities. The Member acknowledges that her conduct with respect to accessing the electronic records for the patients described above in November 2002 and April-May 2003 was inappropriate.

14. If she testified, the Member would also state that she and other nursing staff were concerned about patient admissions during the SARs crisis in April-May 2003. She checked the records in question to check if the patients had been diagnosed for SARs. The Member and other staff were concerned that appropriate precautions were not being taken by the Hospital to deal with the SARs crisis. The Member identifies this as an explanation for some of her conduct but not as an excuse for that conduct. The Member would also concede that she accessed some of the patient records out of curiosity only.

15. If the Member testified, the Member would state that she did not disclose any information from the patient files she accessed to anyone else.

THE ADMISSIONS

16. The Member acknowledges that she committed the acts of professional misconduct as alleged in the Notice of Hearing dated July 31, 2006. In particular, the Member admits that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to accessing patient records for 21 patients to whom she was not providing any care and for no proper purpose in November 2002 and April-May 2003. As well, the Member also acknowledges that she 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 accessing patient records for 21 patients to whom she was not providing any care and for no proper purpose in November 2002 and April-May 2003.

17. The Member has no history of prior professional discipline with the College.

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 and 2 of the Amended Notice of Hearing.

Penalty

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

Ms. Catherine Hooker, RN ("the Member") and the College of Nurses of Ontario ("the College") respectfully submit that, in view of the Agreed Statement of Facts dated August 29, 2006 and the acknowledgements of professional misconduct set out therein, the panel of the Discipline Committee should make the following penalty order:

1. Requiring the Member to appear before the panel of the Discipline Committee to be reprimanded immediately following the hearing on August 29, 2006.

2. Directing the Executive Director to suspend the Member's certificate of registration for a period of 30 days, with the suspension to commence on September 18, 2006 and to continue until October 17, 2006, inclusive.

3. Requiring the Executive Director to impose specified terms, conditions and limitations on the Member's certificate of registration, and in particular, requiring the Member to meet with a practice consultant at the College, on a date to be arranged between the Member and the College within three months from the date of the hearing on August 29, 2006, in order for the Member and the practice consultant to discuss and review issues of patient confidentiality in light of the disposition of this case, with the Member to review in advance of the meeting the College's published practice standards, Documentation, Confidentiality and Privacy – Personal Information, and Ethics.

4. Requiring the Member to pay costs to the College in the amount of [$3,500.00] within 12 months from the date of the hearing.

Submissions -- Counsel for the College

• The Member accessed patient records of which she was not assigned nor had any professional responsibility.

• The College has published standards which clearly speaks to the issue of confidentiality.

• Aggravating factor:

o repeated offence, with the first incident occurring in December 2002 and the second of subsequent incidents happening in April 2003 (exhibit # 2).

• The JSP provides opportunity for deterrence and rehabilitation. Deterrence is provided by a one month suspension and the reprimand. Rehabilitation is provided for, in that the Member must review with a practice consultant at the College the issues around patient confidentiality and ethics.

• College counsel was ready to proceed with a contested hearing as scheduled in January 2005. Counsel for the Member notified College Counsel that an agreement could be reached. This occurred only five days before the hearing was to commence. Hence the inclusion of a partial costs award.

Submissions -- Counsel for the Member

• Counsel for the Member agreed with Counsel for the College on the JSP.

• The Member has not contested her conduct, admitted allegations to her employer.

• The Member has 27 years in nursing with no previous complaints.

• The Member has suffered significant hardship as a result of her conduct; lost her nursing position of 13 years and has had and will have difficulty in obtaining alternate employment in nursing.

Penalty Decision

The panel deliberated and accepted the JSP and accordingly orders that:

1. The Member appear before the panel of the Discipline Committee to be reprimanded.

2. Executive Director suspend the Member’s certificate of registration for a period of 30 days, with the suspension to commence on September 18, 2006 and to continue until October 17, 2006, inclusive.

3. The Executive Director impose specific terms, conditions and limitations on the Member’s certificate of registration. In particular, requiring the Member to meet with a practice consultant at the College, on a date to be arranged between the Member and the College within 3 months from the date of the hearing. The Member and the practice consultant are to review issues of patient confidentiality in light of the disposition of this case. The Member is expected to review in advance of the meeting the College’s published practice standards, documentation, confidentiality and privacy – personal information, and ethics.

4. The Member pay costs to the College in the amount of $3,500.00 within 12 months from the date of the hearing (partial costs incurred as a result of late notification of agreement between the parties).

Reasons for Penalty Decision

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 a proposed penalty, has accepted responsibility for her actions.

The panel wants to acknowledge that to the best of our knowledge, this JSP is the first to include costs for late notification of settlement as set out in Rule 6 in the Discipline Committee Rules. In this rule, “late notification of case settlement” means notification to a Discipline panel’s hearings administrator that a hearing will be uncontested, where that notification is made within 10 days prior to the date scheduled for the commencement of the hearing. The panel anticipates that this will help to send a message to all counsel and clients that except in extenuating circumstances, late notification will no longer be tolerated without a costs award against the party responsible for the late notification.

I, Joanne Furletti, 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:

Deanne Barber, RPN Jim Attwood, RN Faira Bari, Public Member Art Osborne, Public Member