College of Nurses of Ontario v. De Luna, 2006 ONCNO 81745

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: David Bishop, Chairperson Marcia Taylor, RN, Member Glenda Hayward, RN, Member Cheryl McMaster, RPN, Member Catherine Genereux, Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO NICK COLEMAN for College of Nurses of Ontario

• and -

MARIA ESTELA DE LUNA Registration No. 0088344 SHEILA TURKINGTON for Maria Estela De Luna

Heard: March 3, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on March 3, 2006 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Maria Estela De Luna (the “Member”) as stated in the Notice of Hearing dated January 16, 2006, were as follows:

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 Nurses at [the Home], you failed to maintain the standard of practice of the profession with respect to claiming sick leave from [the Home] while continuing to work at [the Hospital] during the period, August 19, 2002 - September 5, 2002.

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(26) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Home], you practiced the profession while in a conflict of interest with respect to promoting the services of [the Agency] to patients and staff at [the Home] in or about July - August, 2002.

The College sought leave of the Discipline Committee to withdraw a third allegation of professional misconduct in which it was alleged that the Member engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all the circumstances, would be regarded as disgraceful, dishonourable or unprofessional, by claiming sick leave at [the Home] while continuing to work at [the Hospital] during the period, August 19, 2002 - September 5, 2002, and/or by promoting [the Agency] to patients and staff at [the Home] in or about July - August, 2002, and subsequently denying any involvement with the agency when questioned by management of [the Home].

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. A signed plea inquiry was submitted as Exhibit 2.

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

1Maria De Luna (“the Member”) has been a Registered Practical Nurse with the College of Nurses of Ontario (“the College”) since 1995 and a Registered Nurse since 2000. [ ] the Member initially became qualified as a midwife in 1975. [ ] the Member attended [ ] College, where she obtained her diploma as a practical nurse. From 1996 to 2000, the Member attended [ ] College, where she obtained her nursing diploma.

THE FACILITIES

2At the time of the incidents, the Member was employed as a full-time RN at [the Hospital] on evening shifts and as a part-time RN at [the Home] on day shifts.

3At [the Hospital], the Member was employed as a full-time RN in the [ ] Department. Her position involved advocating and collaborating with multi-disciplinary teams to develop a more dynamic respite network for oncology and palliative care patients.

4At [the Home], the Member was in charge of a 56-bed unit with cognitively impaired residents on the second floor of the facility. The Member’s responsibilities included assigning staff, attending rounds with the physician, performing some treatments and medication administration, conducting care conferences and liaising with the families. She had at least one RPN and several heath care aides working with her on the floor at all times.

[HOME] POLICIES

5[The Home] permitted families to hire private sitters to provide company and other assistance to family members residing at [the Home]. According to [the Home’s] Private Duty Sitter/Companion policy, when a client is interested in hiring a private sitter, the RN must confirm with the family their desire to privately hire a sitter and provide informal advice regarding desired attributes of the sitter and possible agencies, if requested by the family. The RN must also discuss any non-compliance and substandard care, service, or assistance provided by sitters with the Head Nurse, Director of Nursing, or Administrator.

6[The Home’s] Conflict of Interest policy defines a conflict of interest as a situation in which private interests or personal considerations may affect an employee’s judgement in acting in the best interest of [ ]. A conflict may occur when an interest actually or potentially benefits the employee, volunteer, family members, friends, agency, or business associates.

7The relevant provisions of [the Home’s] Standards of Employee Conduct are as follows:

4.0: Honesty

[The Home] requires that its employees will be honest in their dealing [ ].

4.2: Honesty Regarding Sick Time

Sick pay may be claimed only in cases of legitimate illness. It has been stressed that employees are expected to attend work regularly as per their hiring agreement. Any reported sick absence from work for reasons other than legitimate illness may be considered to be a dishonest act. Such action may result in discipline up to and including termination.

4.4: Conflict of Interest

Employees shall not place themselves in a position to derive any direct or indirect benefit or interest from residents, families or others.

THE INCIDENTS

8On June 11, 2002, the Member and a friend of hers, [ ], registered a business in the form of a general partnership by the name of [the Agency]. The Business Names Report from the Ministry of Consumer and Commercial Relations lists the Member’s address as the principal place of business for [the Agency]. The business card for [the Agency] also lists the Member’s address and telephone number. The business of [the Agency] was to find and place personal care aides.

9[The friend] was renting space in the Member’s basement at the time. The Member’s daughter suffers from [a health condition] and, as such, requires full time caregiver assistance. The Member met [the friend] when [she] provided such care to the Member’s daughter on a temporary basis. If she testified, the Member would state that she hoped that one of the benefits of her involvement with [the Agency] would be to access caregivers or resources for her daughter.

10On July 15, 2002, the Member had communications with Sitter 1, a private sitter not employed by [the Home], about work as a sitter through [the Agency]. Sitter 1 called her friend, Sitter 2, who was available and came to the facility right away. The Member provided Sitter 2 with an assignment to work for two clients at [the Home] as a private sitter on her floor. The Member confirmed for Sitter 2 the clients’ names and the time for care to be provided. The Member also gave Sitter 2 a business card for [the Agency] and asked if she knew anyone else who wanted to work as a private sitter.

11[ ], the Nurse Manager at [the Home], heard rumours that the Member was distributing business cards for her business and was involved in hiring a sitter for clients at [the Home] through her business. On July 16, 2002, [the Nurse Manager] met with the Member and told her to stop distributing the cards for her business at [the Home] immediately. The Member claimed that she only worked as a resource person for [the Agency] and she also claimed that she had no interest in the business.

12On August 14, 2002, [the Nurse Manager] found the Member and Sitter 2 arguing. Sitter 2 refused to leave the facility, asserting the Member had to pay her some money. Sitter 2 advised [the Nurse Manager]. that the Member had hired her to sit for a resident at [the Home]. The Member again claimed [to the Nurse Manager] that she had no involvement with the Agency] and that the business was owned by a friend of hers. She told [the Nurse Manager] that she had not been recruiting [Home] staff. Sitter 2 told [the Nurse Manager] that she had previously received a cheque from [the Agency] for $336.00. The cheque was dated July 29, 2002 and signed by the Member. However, Sitter 2 was of the opinion that wages were still owed to her, which led to the confrontation with the Member.

13On August 18, 2002, [the Nurse Manager] met with the Member and presented her with a copy of [the Agency’s] business card which had the Member’s home address, telephone number and cell phone number on it. The Member acknowledged the business card but again claimed that her friend, [ ], ran the business and that the Member was only acting as a resource person.

14Later on August 18, 2002, the Member provided a note to [the Nurse Manager] asking for immediate and indefinite [ ] leave from work. The Member claimed she was experiencing [a health issue] as a result of being called away from her duties and questioned by management. In her note, the Member suggested that she was concerned that poor concentration from [the health issue] might affect her work. [The Nurse Manager] did not believe that the Member had a legitimate illness and advised the Member of this.

15In a meeting with [ ], the Director of Nursing, and others on August 22, 2002, the Member acknowledged that she was working at [the Hospital] while she was claiming sick leave from [the Home]. She asked about a personal leave of absence without pay but was told no such leave had been authorized. The Member indicated she would obtain a medical certificate to support her sick leave.

16On August 26, 2002, the Member produced a doctor’s certificate stating that she was advised to stop work due to [health issues] during the period from August 12, 2002 to September 2, 2002. However, the Member did work at [the Home] after August 12, 2002, on August 14, 16, 17 and 18, 2002. She was booked to work, but did not work at [the Agency] on August 21, 22, 23, or 28, 2002, ostensibly because of her claim of sick leave.

17During the period of August 19, 2002 – September 2, 2002, when the Member claimed sick leave from work at [the Home], she continued to work her regular full-time evening shifts at [the Hospital]. The Member worked shifts at [the Hospital] on the following dates: August 19, 20, 21 and 22, 26, 27, 28, 29, 30 and 31, 2002 and September 1 and 2, 2002.

18On September 6, 2002, the Member returned to work at [the Home].

19On September 10, 2002, [the Nurse Manager] met with the Member to discuss the doctor’s note. [The Nurse Manager] pointed out to the Member that she had worked at [the Home] after August 12, 2002, on days that she was allegedly sick according to the doctor’s note. According to the Member, the doctor dated the note incorrectly. [The Nurse Manager] again raised the issue that the Member had continued to work at [the Hospital] during the period that she claimed sick leave from [the Home]. The Member again acknowledged having continued to work at [the Hospital]. She claimed that her job there was not stressful. [The Nurse Manager] informed the Member that she would not be paid sick benefits for her sick leave at [the Home]. The Member did not pursue her claim for sick benefits.

20The Member’s employment at [the Home] was terminated on October 7, 2002 for violations of the Conflict of Interest policy and the Standards of Employee Conduct regarding Honesty (4.0), Honesty Regarding Sick Time (4.2), and Conflict of Interest (4.4). The termination was the subject of a grievance that was subsequently settled. The Member has returned to work [ ] at another nursing home where she works part-time hours. The Member continued with her full-time position [the Hospital] until in or about November 2002.

21The Member executed a Declaration of Trust on December 11, 2002 in favour of [the friend], stating that she holds her interest in [the Agency] in trust for [the friend]. If she testified, the Member would state that she no longer has any involvement with the business, either as a resource person or otherwise.

ADMISSIONS

22The Member acknowledges that she committed acts of professional misconduct as set out in allegation 1 of the Notice of Hearing, in that, while employed as a Registered Nurse at [the Home], she failed to maintain the standard of practice of the profession regarding ethical conduct with respect to claiming sick leave from [the Home] while continuing to work at [the Hospital] during the period, August 19, 2002 - September 5, 2002.

23The Member acknowledges that she committed acts of professional misconduct as set out in allegation 2 of the Notice of Hearing, in that, while employed as a Registered Nurse at [the Home], she practised the profession while in a conflict of interest with respect to promoting the services of [the Agency] to patients and staff at [the Home] in or about July - August 2002.

24The College seeks leave of the Discipline Committee to withdraw allegation 3 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 and 2 of the Notice of Hearing in that the Member

• failed to maintain the standard of practice of the profession with respect to claiming sick leave from [the Home] while continuing to work at [the Hospital] during the period, August 19, 2002 - September 5, 2002; and

• practiced the profession while in a conflict of interest with respect to promoting the services of [the Agency] to patients and staff at [the Home] in or about July August, 2002.

The panel granted leave to withdraw allegation 3 of the Notice of Hearing, the substance of which has been summarized earlier in our decision and reasons.

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 provided as follows:

Maria De Luna (“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 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 30 days, with the suspension to commence on 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 meet with a Practice Consultant to discuss professional ethics, including conflicts of interest, on the basis of the circumstances described in the Agreed Statement of Facts, at a date to be arranged but in any event within three months from the date this Order becomes final. In preparation for this meeting, the Member shall review the following College publications: Professional Standards (2002) and Ethical Framework for Nurses in Ontario (1999).

Counsel for the College submitted that there were two types of misconduct: breach of standards regarding ethical conduct and conflict of interest. With respect to the breach of standards, the Member claimed sick leave while working at another facility. Regarding conflict of interest, the Member used her RN status to promote her private business in circumstances where patients and family were vulnerable. The exacerbating factors were that her employer had policy guidelines related to conflict of interest and she had been warned by her supervisor about this behaviour.

The mitigating factors included the fact that she admitted her misconduct to both management and the College.

The proposed suspension and reprimand provide a deterrent to both the Member and the profession.

The rehabilitative element is addressed through meeting with the practice consultant and reviewing the practice standards. The penalty provides a clear message that the Member’s behaviour is not acceptable to the College of Nurses or the Discipline Committee. The suspension is not excessive and is in keeping with other cases that have come before Discipline panels.

Counsel for the Member agreed with Counsel for the College that the proposed penalty was reasonable and appropriate. The Member acknowledged the misconduct. Counsel made the distinction between this case and the case of someone receiving money from one employer while working with another. The Member sought stress leave at one facility, which the employer denied and the Member did not pursue her claim for sick benefits.

Penalty Decision

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

1. 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. The Executive Director to suspend the Member’s certificate of registration for 30 days, with the suspension to commence on the date this Order becomes final; and
3. The Executive Director to impose terms, conditions and limitations on the Member’s Certificate of Registration requiring the Member to meet with a Practice Consultant to discuss professional ethics, including conflicts of interest, on the basis of the circumstances described in the Agreed Statement of Facts, at a date to be arranged but in any event within three months from the date this Order becomes final. In preparation for this meeting, the Member shall review the following College publications: Professional Standards (2002) and Ethical Framework for Nurses in Ontario (1999).

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, David Bishop, 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:

David Bishop, Chairperson Date

Panel Members:

Marcia Taylor, RN Glenda Hayward, RN Cheryl McMaster, RPN Catherine Genereux, Public Member