College of Nurses of Ontario v. Barnswell, 2006 ONCNO 81742

Panel: Deanne Barber, RPN Chairperson Anne McKenzie, RPN Member Claudette Drapeau, RN Member Grace Isgro-Topping, Public Member Art Osborne, Public Member

Between:

Megan Shortreed for College of Nurses of Ontario

and - Loraine Barnswell, RPN (Registration No. ID07412) (No Representation)

Heard: October 26, 2006

Decision and Reasons

This matter came on for hearing before a panel of the Discipline Committee on October 26, 2006 at the College of Nurses of Ontario (the "College") at Toronto.

The allegations against Loraine Barnswell (the "Member") as stated in the Notice of Hearing dated September 8, 2006 (Exhibit 1) 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 (the "Act"), as amended, and defined in subsection 1(19) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the facility], you contravened a provision of the Act, the Regulated Health Professions Act, 1991 (the "RHPA") or the regulations under either of the Act or RHPA, including section 11 of the Act and section 27 of the RHPA, in that you used the title of registered practical nurse and performed one or more controlled acts while your certificate of registration was suspended during the period from April 24, 2003 to September 13, 2004; 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 Act, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the facility], 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, in that you worked as a registered practical nurse while your certificate of registration was suspended during the period from April 24, 2003 to September 13, 2004.

Member's Plea

The Member admitted the allegations set out in paragraphs numbered 1 and 2 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

Loraine Barnswell (the "Member") has been registered as a Registered Practical Nurse with the College of Nurses of Ontario (the "College") since 1994. Her Certificate of Registration was suspended on April 24, 2003 for non-payment of fees and reinstated on September 13, 2004.
The Member has been employed at [the facility] since December 18, 2001 as a full time RPN on the night shift.

THE FACILITY

[The facility] has a population of geriatric patients as well as patients who require assistance with daily living. An RPN working the night shift at the facility oversees an eighty bed unit and supervises several Personal Service Workers. An RPN's duties include general nursing care and controlled acts under the Regulated Health Professions Act ("RHPA"); for example, administering oral medications, taking blood pressure readings, injecting insulin, and inserting catheters.

SUSPENSION AND UNREGISTERED PRACTICE

The Member's Annual Renewal payment for 2003 was due on December 31, 2002. The College did not receive payment from her.
The College advised the Member in a letter dated February 14, 2003 (attached) that her license would be suspended on April 24, 2003 if she did not pay her annual fee by then. The letter also informed the Member that if her license was suspended due to non-payment of fees, she would be subject to a $500 penalty fee, in addition to the $175 renewal fee, if she continued to practice nursing while under suspension.
The Member did not pay her 2003 registration fee or file the Annual Payment Form. Therefore, she did not receive an Annual Registration Card for 2003.
The Member's registration was suspended for non-payment of fees on April 24, 2003, which was confirmed in correspondence from the College (attached). The notice of suspension reiterated that the Member was prohibited from using the title "RPN" or undertaking any controlled acts.
The Member knew she was not properly registered during 2003, but she did not inform her employer. She continued to work full time as an RPN at [the facility] on the night shift (75 hours biweekly) until September 1, 2004, when she went off on a leave of absence. During this time, she used the title "RPN" and performed controlled acts, despite the suspension of her Certificate of Registration.

THE MEMBER'S ATTEMPTS TO PAY REGISTRATION FEE

On December 9, 2003, the Member contacted the College in order to bring her registration up to date. She admitted that she had practised nursing while unregistered. The College mailed her a Reinstatement Form on December 10th.
The Member made attempts in 2004 to pay the required fees to the College.
At some point, she sent a money order dated December 2003 in the amount of $725 to the College. The College recorded this as received on February 18, 2004. The College rejected and returned the money order to the Member with a note indicating that she needed to check the amount, as it was incorrect.
She provided a copy of the money order to her employer when asked about her registration status in 2004.
The Member made a further payment of $175 to the College on March 8, 2004 and submitted a 2004 Annual Payment Form dated February 28, 2004. She did not submit the $500 penalty amount, as required.
The Member contacted the College on May 13, 2004 to ask for proof of registration for her employer. She was advised that she was not registered and that she could not have anything for the employer until her registration was reinstated. She again confirmed that she worked as a nurse while suspended. She requested another reinstatement form, which the College sent out to her that day.
The Member did not advise her employer in May, 2004 that she had learned she was still not registered for 2004. She continued to work as an RPN at [the facility].
The Member filled out one of two pages of the Reinstatement Form on or about May 21, 2004. In it, she truthfully declared that she had worked as an RPN while suspended.
The Member contacted the College on May 27, 2004 to inquire why she was the subject of a penalty fee. She advised that she would attend the College in person to clarify this issue.
The Member attended the College in person on September 2, 2004 to pay the $500 penalty fee outstanding. Her registration was reinstated effective September 13, 2004.
The member provided her 2004 Registration Card to her employer shortly thereafter.

ADMISSIONS

The Member acknowledges that she committed acts of professional misconduct as set out in allegations 1 and 2 of the Notice of Hearing, in that she contravened the Nursing Act and RHPA, and engaged in unprofessional conduct, by using the title "RPN" and performing controlled acts while her registration was suspended.

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 acts of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing in that during the period April 24, 2003 to September 13, 2004, while employed as a Registered Practical Nurse at [the facility], the Member:

Used the title of registered practical nurse and performed one or more controlled acts while her certificate of registration was suspended; and
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, in that she worked as a registered practical nurse while her certificate of registration was suspended.

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 5) provides as follows:

Loraine Barnswell (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 Facts and the Member's admissions of professional misconduct, the Panel of the Discipline Committee (the "Panel") should make the following penalty order:

Requiring the Member to appear before the Panel to be reprimanded, at a date to be arranged, but in any event within three months of the date this Order becomes final.
Directing the Executive Director to suspend the Member's certificate of registration for a period of ninety (90) days commencing on the date this Order become final. The suspension shall run continuously so long as the Member maintains a current registration. In the event that the Member fails to maintain a current registration, any portion of the suspension which has not yet been served, shall be served commencing on the day that the registration is renewed.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration:

(i) The Member shall meet with the Director of Investigations and Hearings ("the Director"), or the Director's designate at a date to be arranged, but, in any event, within three months of the date of this Order becomes final, to discuss:

(a) the conduct for which she was found to have committed professional misconduct;

(b) the potential consequences of that conduct to her clients, her colleagues, her profession, and herself; and

(ii) Prior the Member's attendance at the meeting referred to in paragraph 3(i) above, the Member shall review:

(a) the College fact sheets entitled What is CNO? and Registration,

(b) the College's Professional Standards, focusing on the Ethics and Accountability sections,

(c) and shall reflect upon, and be prepared to discuss, the application of these documents to the conduct for which she was found to have committed professional misconduct.

(iii) For twenty-four (24) months following the Member's return to practice, the Member shall only work as an RPN for an employer who:

(a) agrees to receive from the Member a copy of the decision and reasons of this Panel; and

(b) agrees to confirm, in writing, to the Director, within fourteen (14) days of the Member commencing or resuming employment in nursing, receipt of a copy of the Panel's decisions and reasons.

College Counsel submitted that the penalty addresses the seriousness of the Member's professional misconduct and provides both specific and general deterrence. Counsel also submitted that this penalty is within the appropriate range for misconduct of this nature and provided the panel with a decision from a similar case.

Mitigating factors included the Member's actions in:

admitting the allegations and expressed remorse;
making efforts to rectify registration status; and
agreeing to pay and paying all of the fees associated with reinstatement

Aggravating factors included the Member's actions in:

practising as an RPN over an 18 month period while she was suspended;
failing to act upon the notices that she received (Exhibits 3 and 4)
failing to advise her employer that she was under suspension and continuing to accept shifts.

When asked for submissions, the Member declined and apologized for her actions.

Penalty Decision

The panel requested submissions with regards to Rule 6 (late notification of case settlement) of the Discipline Committee Rules. Until the morning of the hearing, it was understood that this was to be a two day contested hearing. Only then was the panel informed that both an Agreed Statement of Facts and a Joint Submission as to Penalty would be submitted.

College Counsel submitted that an order for costs should not be made in this case for the following reasons:

The Member did not appear at a pre-hearing as she felt that she required legal counsel, hence, a pre- hearing was not scheduled;
The Member on her own volition contacted the College to discuss the case; and
The Member is not represented by counsel and may not be aware of Rule 6.

The panel deliberated and decided that it was not appropriate to apply Rule 6 in this case, and consequently, the panel did not order the Member to pay costs on account of the late notification of case settlement.

The panel accepts the Joint Submission as to Penalty and accordingly orders that:

The Member appear before the Panel to be reprimanded, at a date to be arranged, but in any event within three months of the date this Order becomes final.
The Executive Director suspend the Member's certificate of registration for a period of ninety (90) days commencing on the date this Order become final. The suspension shall run continuously so long as the Member maintains a current registration. In the event that the Member fails to maintain a current registration, any portion of the suspension which has not yet been served, shall be served commencing on the day that the registration is renewed.
The Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration:

(a) the conduct for which she was found to have committed professional misconduct;

(b) the potential consequences of that conduct to her clients, her colleagues, her profession, and herself; and

(ii) Prior to the Member's attendance at the meeting referred to in paragraph 3(i) above, the Member shall review:

(a) the College fact sheets entitled What is CNO? and Registration,

(b) the College's Professional Standards, focusing on the Ethics and Accountability sections,

(c) and shall reflect upon, and be prepared to discuss, the application of these documents to the conduct for which she was found to have committed professional misconduct.

(iii) For twenty-four (24) months following the Member's return to practice, the Member shall only work as an RPN for an employer who:

(a) agrees to receive from the Member a copy of the decision and reasons of this Panel; and

(b) agrees to confirm, in writing, to the Director, within fourteen (14) days of the Member commencing or resuming employment in nursing, receipt of a copy of the Panel's decisions and reasons.

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.

I, Deanne Barber 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:

Anne McKenzie, RPN Claudette Drapeau, RPN Grace Isgro-Topping, Public Member Art Osborne, Public Member