College of Nurses of Ontario v. Caroline Fellows-Smith, 2006 ONCNO 81752

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Lori McInerney, RN Member Jim Attwood, RN Member Kendra O’Bryan, RPN Member Bill Dowson Public Member Brian Stewart Public Member

BETWEEN:

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

• and - )

CAROLINE FELLOWS-SMITH ) ROBERT STEPHENSON for Registration No. 8800542 ) Caroline Fellows-Smith

) Heard: November 28, 29 and 30, ) 2005; February 14, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on November 28,29,30 2005 and February 14, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Caroline Fellows-Smith RN (“the Member”) as stated in the Notice of Hearing dated July 19,2005, are 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(8) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [Hospital A] and at [Hospital B] you misappropriated property from a workplace with respect to your claims for sick leave and sick benefits from [Hospital A] during the period, May-September, 2002, while you continued to work at [Hospital B] during the same period; and/or

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 [Hospital A] and at [Hospital B], 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:

a) claiming sick leave from [Hospital B] during the period, January-September, 2002, while you continued to work at [Hospital A] during the period, January-May, 2002, and/or at [Hospital B] during the period, March-September, 2002;

b) claiming sick leave and/or sick benefits from [Hospital A] during the period, May-September, 2002, while continuing to work at [Hospital B] during the same period; and/or

c) submitting falsified documents to [Hospital A] regarding your claim for sick leave during the period, May-September, 2002, and in particular, the Return to Work Status Reports dated on or about May 23, July 3, and/or August 26, 2002.

Member’s Plea

The Member initially denied the allegations and the hearing commenced. On February 14, 2006 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. The panel also received a written and signed plea inquiry.

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. Fellows-Smith (“the Member”) obtained her nursing diploma from [ ] in 1987. She has been registered with the College of Nurses of Ontario (“the College”) as a Registered Nurse since 1987.

2. At the relevant times in 2002, the Member was employed concurrently as a full-time RN in the [ ] ICU at [Hospital A] and as a regular part-time RN in the ICU at [Hospital B]. She also worked on a part-time casual basis as an RN in the Diagnostic Imaging Department at [Hospital B].

3. The Member does not have a prior disciplinary record with the College.

[HOSPITAL A]

4. The Member commenced employment as a full-time RN in the ICU at [Hospital A] in 1997. She transferred to part-time status in December 1999 but returned to full-time status in January 2000. In November 2000, the Member transferred to a position of full-time RN in the Cardiac Surgery ICU at [Hospital A].

5. The Cardiac Surgery ICU provides care to patients following cardiac surgery. Most of the patients (approximately 80%) are discharged from the Cardiac Surgery ICU within 24 hours. Nurses provide direct care to patients on a 1:1 ratio. While the care required for patients may be technically challenging, the nursing work is not physically strenuous. A porter and other staff are available to assist nursing staff if, for example, it is necessary to move a patient although, from time to time, the nurse might be required to shift a patient in the bed without assistance.

[HOSPITAL B]

6. The Member commenced employment at [ ] as a casual part-time RN in the Neonatal ICU in November 1995. In September 1997, the Member transferred to a full time RN position in the ICU at [ ]. She reverted to regular part-time status in October 2001.

7. [ ]

8. The Member applied successfully for a regular part-time position at [Hospital B ICU]. She was to transfer to the position effective January 3, 2002. The [ ] ICU is a 38 bed tertiary level intensive care unit serving neurosurgical, cardiac/vascular surgical, trauma, and medical/surgical patients. In the circumstances described below, the Member did not report for active duty at the [ ] ICU in 2002.

9. In 2001, the Member also commenced casual part-time work as an RN in the Diagnostic Imaging Department at [Hospital B]. The role of the RN in the Diagnostic Imaging Department includes preparing patients for CT Scan and other diagnostic imaging procedures. The nursing staff in the Diagnostic Imaging Department are required to start IVs for the patients for the use of dyes and other imaging media. The nursing staff are also required to monitor the patients and to intervene in the event of an emergency negative reaction to the imaging dyes.

10. If she testified, the Member would state that the physical work and the shift assignments in the Diagnostic Imaging Department at [Hospital B] were less strenuous than the physical work and shift assignments in the [ICU of Hospitals A and B].

MEDICAL TREATMENT

11. The Member suffered an onset of [an illness] in January 2002. She was legitimately off work on sick leave for the period January 15 - 29, 2002.

12. The Member [underwent treatment] at [Hospital B] on May 2, 2002. [ ]. The Member suffered some [complications from treatment] while she was still in the Hospital. The Member was discharged from the Hospital in stable condition [ ] on May 9, 2002. At the time of discharge, the estimated period of absence from work for recovery from the [treatment] was 4 - 6 weeks. The Member was legitimately off work for the period she was in the Hospital in May 2002 and for a period of [ ] recovery.

13. The Member was seen by [the treating physician] on May 22, 2002. At that time, [the treating physician] noted that she had had no significant [ ] problems since her discharge from the Hospital [ ]. [The treating physician] discharged the Member to the care of her family physician effective May 22, 2002. [The treating physician] did not see the Member again for medical treatment or assessment after May 22, 2002.

WORK SHIFTS AND SICK LEAVE

14. The Member worked her scheduled and overtime shifts at [the Hospital A ICU] on January 4, 5, 6, 7, 8, 13, and 14, 2002. With the onset of [her illness], she was absent on sick leave from January 15, 2002 to the end of the month. She resumed active employment and worked her scheduled and overtime shifts on the following dates:

February 1, 2, 3, 4, 6, 7, 9, 11, 12, 13, 14, 16, 19, 21, 22, 23, 24, 25, 27, and 28, 2002;

March 1, 2, 3, 4, 5, 7, 8, 20, 21, 23, 27, 28, 29, 30, and 31, 2002;

April 5, 6, 7, 8, 10, 11, 14, 15, 16, 17, 18, 23, 24, 25, and 26, 2002.

15. The Member commenced sick leave from [Hospital A] on May 2, 2002 (the date of her [treatment]) and continued her sick leave until September 12, 2002. The Member was paid sick benefits by [Hospital A] for the period of her sick leave until August 9, 2002 by which date she had used up her sick leave benefits. She continued on an unpaid sick leave from August 9, 2002 to September 12, 2002.

16. As noted above, the Member never reported for active employment at the [Hospital B ICU]. She requested and was granted sick leave from the [Hospital B ICU] effective January 15, 2002 and she remained on sick leave until September 12, 2002. Because she was only a part-time nurse at [Hospital B], she was not paid sick benefits for her sick leave.

17. The Member worked shifts in the Diagnostic Imaging Department at [Hospital B] on March 26; April 19, April 23; July 9, July 25, July 26; August 21, August 26, August 27, August 28, August 29; September 4, September 5, September 6, and September 12, 2002. She continued to work as a casual nurse in the Diagnostic Imaging Department at [Hospital B] later in September, October, and November 2002.

18. The Member did not inform management at the [Hospital B ICU] that she continued to work at [Hospital A] in February, March, and April 2002, or that she continued to work in the Diagnostic Imaging Department at [Hospital B] in March, April, July, August, and September 2002, while she was on sick leave from the [Hospital B ICU]. The Member did not inform management at [Hospital A] that she continued to work at the Diagnostic Imaging Department at [Hospital B] in July, August, and September 2002 while she was on sick leave from [Hospital A] and being paid sick benefits.

MEDICAL REPORTS

19. The Member was asked by [Hospital A] to provide documentation in the form of a Return To Work Status Report (“RTWSR”) regarding her continuing sick leave in May 2002. The Member submitted a falsified RTWSR on or about May 26, 2002 to support her sick leave. The falsified RTWSR (dated both May 23, 2002 and May 27, 2002) was attributed to her [treating physician, whose name was misspelled].

20. The Member was asked again by [Hospital A] to provide documentation regarding her continuing sick leave in late June 2002. The Member submitted another falsified RTWSR to [Hospital A] to support her sick leave on or about July 8, 2002. Again, the falsified RTWSR was attributed to [the treating physician], and was dated both July 3, 2002 and July 5, 2002.

21. [Hospital A] again asked the Member to submit documentation regarding her continuing sick leave and prospects for return to active duty in late August 2002. The Member again submitted a falsified RTWSR to support her sick leave. The falsified RTWSR was again attributed to [the treating physician] and was dated August 26, 2002.

22. [Hospital A] made an inquiry to [the treating physician] on August 29 2002 to seek clarification about the Member’s prospects for return to active employment. [Hospital A] was advised by [the treating physician] that he had not seen the Member since May 22, 2002 and that neither he nor any other staff acting on his behalf had prepared the RTWSRs that the Member had submitted to [Hospital A] in May, July, and August 2002.

EMPLOYMENT DISCIPLINE

23. The Member was dismissed from employment at [Hospital A] on or about September 16, 2002 for submitting false medical reports and for claiming sick leave and benefits while she continued to work at [Hospital B]. [Hospital A] reported the termination to the College. The College investigated the matter with the result that allegations of professional misconduct as set out in the Notice of Hearing were referred to the Discipline Committee.

24. After the termination of her employment by [Hospital A], the Member offered to repay the sick benefits that correlated to the three shifts she worked in the Diagnostic Imaging Department at [Hospital B] in July 2002. If the Member testified, she would state that she submitted a money order in the amount of $347.73 to [Hospital A] for the three shifts and it is her assumption that the money order was cashed by [Hospital A].

25. The Member received a letter of discipline from [Hospital B] on or about January 27, 2003 for claiming sick leave from her position at [Hospital B ICU] while continuing to work on a casual basis at the Diagnostic Imaging Department [ ] in March, April, July, August, and September 2002.

26. The Member continued to work on a casual basis in the Diagnostic Imaging Department [ ] until March 2003 at which time she transferred to a full-time RN position at the [Hospital B ICU] where she continues to work to date.

ADMISSIONS

27. The Member admits that she has committed professional misconduct, as set out in paragraph 1 of the Notice of Hearing, in that, while employed as a Registered Nurse at [Hospital A] and at [Hospital B], she misappropriated property from a workplace with respect to her claims for sick-leave and sick benefits from [Hospital A] during the period July - September 2002 while she continued to work at [Hospital B] during the same period.

28. The Member admits that she has committed professional misconduct, as set out in paragraph 2 of the Notice of Hearing, in that, while employed as a Registered Nurse at [Hospital A] and at [Hospital B], 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 of the profession as disgraceful, dishonourable or unprofessional with respect to:

a) claiming sick leave from the [Hospital B ICU] during the period January - April and July - September 2002 while she continued to work at [Hospital A] during the period January - April 2002, and/or at the [Hospital B Diagnostic Imaging Department] during the period March - April and July - September 2002;

b) claiming sick leave and/or sick benefits from [Hospital A] during the period July - September 2002, while continuing to work at [the Hospital B Diagnostic Imaging Department] during the same period; and

c) submitting falsified documents to [Hospital A] regarding her claim for sick leave during the period May - September 2002, and in particular, the Return to Work Status Reports dated on or about May 23, July 2, and August 26, 2002.

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:

• misappropriated property from her workplace with respect to claims for sick leave and sick benefits; 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 by submitting falsified documents to her employer.

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 invited the panel to make 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 of the date that this Order becomes final;

2. Directing the Executive Director to suspend the Member’s certificate of registration for 60 days with the suspension to commence on the date that this Order becomes final;

3. Requiring the Member to pay a fine of $2,500.00 to the Minister of Finance for Ontario, payable by instalments of not less than $500.00 each, by way of certified cheque or money order payable to the Minister of Finance for Ontario, to be delivered to the Director of Investigations and Hearings at the College at intervals of not more than three months, calculated from the date the suspension referred to in paragraph 2 (above) ends; and

4. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration, for a period of 24 months, to commence on the date on which this Order becomes final, that the Member shall only practice nursing where, before commencing or resuming practice, she has provided her employer(s) with a copy of the Discipline Committee’s Decision and Reasons (if available) or the Agreed Statement of Facts and Joint Submission on Penalty and the Penalty Order, and the employer has agreed to write to the Director of Investigations and Hearings within 14 days of the commencement or resumption of practice confirming receipt of the Decision and Reasons or of the Penalty Order/ Agreed Statement of Facts/ Joint Submission on Penalty.

Counsel for the College submitted that the penalty:

• is fair, reasonable and appropriate;

• addresses the need for deterrence, rehabilitation and protection of the public;

• addresses the seriousness of the Member’s misconduct;

• recognizes that there were aggravating and mitigating factors present in this case;

• addresses the fundamental breach of trust underlying the Member’s misconduct;

• focuses appropriately on deterrence, specifically, the 60 day suspension, fine of $2500.00 and duty to report the decision and reasons to any employer over the next 24 months;

• provides specific deterrence to the Member not to repeat the misconduct;

• provides general deterrence to the members of the profession, reminding members that serious sanctions will be imposed for serious acts of misconduct

• is in the public interest as it sends a message that this conduct is not acceptable; and

• consequently, should be accepted as presented.

Counsel for the Member agreed with College counsel’s submissions.

Penalty Decision

The panel accepts the Joint Submission as to Penalty and accordingly makes an 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 of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 60 days with the suspension to commence on the date that this Order becomes final.

3. Requiring the Member to pay a fine of $2,500.00 to the Minister of Finance for Ontario, payable by instalments of not less than $500.00 each, by way of certified cheque or money order payable to the Minister of Finance for Ontario, to be delivered to the Director of Investigations and Hearings at the College at intervals of not more than three months, calculated from the date the suspension referred to in paragraph 2 (above) ends.

4. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration, for a period of 24 months, to commence on the date on which this Order becomes final, that the Member shall only practice nursing where, before commencing or resuming practice, she has provided her employer(s) with a copy of the Discipline Committee’s Decision and Reasons (if available) or the Agreed Statement of Facts and Joint Submission on Penalty and the Penalty Order, and the employer has agreed to write to the Director of Investigations and Hearings within 14 days of the commencement or resumption of practice confirming receipt of the Decision and Reasons or of the Penalty Order/ Agreed Statement of Facts/ Joint Submission on Penalty.

Reasons for Penalty Decision

The panel considered the submissions of counsel. These are serious acts of misconduct constituting a fundamental breach of trust and confidence regarding ethical standards of nursing. The panel concluded that the proposed penalty is reasonable and in the public interest and provides for both specific deterrence to the Member and general deterrence to the College’s membership. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions and has avoided any further unnecessary expense to the College.

I, Lori McInerney, RN, 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:

L. McInerney, Chairperson Date

Panel Members:

Jim Attwood, RN Kendra O’Bryan, RPN Bill Dowson, Public Member Brian Stewart, Public Member