College of Nurses of Ontario v. McManus, 2006 ONCNO 81759

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Jim Attwood, RN Chairperson Claudette Drapeau, RPN Member Cheryl McMaster, RPN Member Grace Isgro-Topping Public Member Linda Bracken Public Member

BETWEEN:

MARIE HENEIN for College of Nurses of Ontario

• and - NO REPRESENTATION for Gerard Martin McManus Registration No. 7839749

Heard: August 17, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on August 17, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Gerard Martin McManus (the “Member”) as stated in the Notice of Hearing (Exhibit #1) dated June 27, 2006, are as follows:

1. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(18) of the Ontario Regulation 799/93, in that you contravened a term, condition or limitation on your certificate of registration in that you were required to comply with the terms of your parole order which prohibited the use of alcohol or drugs and that between May 10, 2004 and June 2, 2004, you used alcohol substances and/or drug substances.

2. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(21) of the Ontario Regulation 799/93, in that you failed to comply with an order of a panel of the Discipline Committee in that on May 10, 2004, the Discipline Panel ordered that you were required to comply with the terms of your parole order which prohibited the use of alcohol or drugs and between May 10, 2004 and June 2, 2004, you used alcohol substances and/or drug substances.

3. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(37) of the Ontario Regulation 799/93, in that you engaged in conduct or performed an act or acts 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 between February 3, 2004 and April 27, 2004, you adduced untrue evidence and/or made false representations during a Discipline hearing into allegations of professional misconduct against you.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1, 2 and 3 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.

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

1. Mr. Gerard McManus (the “Member”) graduated with his RN degree from [ ] University in 1978.

2. As a result of failing to disclose the fact of a criminal conviction for second degree murder both to the College and lying in a resume to his employer about his employment history, the Member was found guilty of professional misconduct on May 10, 2004. During the course of the discipline hearing, the Member adduced evidence from various character witnesses who testified under oath that the Member had not used any drugs or alcohol since the commission of the crime. The Member also testified that he had not abused any substances since his conviction. The evidence that the Member adduced at the discipline hearing regarding abstinence proved to be untrue.

BACKGROUND RELATING TO CRIMINAL CONVICTIONS

(i) Dangerous Driving

3. On May 6, 1982, the Member entered a plea of guilty to one count of dangerous driving, and received a $450 fine.

(ii) Second Degree Murder

4. On February 29, 1984, the Member, his brother, and a family friend attempted to get into a bar. The bouncer refused to allow them entry into the tavern because the Member and his brother were intoxicated.

5. A fight broke out between the Member and the bouncer. When it ended, the Member left the premises.

6. The Member obtained a 357 Magnum Revolver and returned to the bar one hour later with his brother and the family friend. The two other accused got into an altercation with three patrons. The bouncer came out of the tavern carrying a baseball bat and approached the Member.

7. The Member displayed his gun and shot the bouncer, who fell to the ground. While on the ground, the Member stood over the victim and fired three more shots into his body. At the time of the incident, the Member was under the influence of alcohol.

8. The Member pleaded guilty to second degree murder and his brother pleaded guilty to manslaughter.

9. The Member was sentenced to life imprisonment without eligibility for parole for 10 years. He remained in custody from February 21, 1984 to April 24, 1994.

FAILURE TO DISCLOSURE CRIMINAL CONVICTIONS

10. On March 7, 1999, the Member was hired as a registered nurse by [the Agency]. He did not disclose his criminal record to his employer and provided a false resume which indicated that he had been working when in fact he had been incarcerated and serving his 10 year sentence. His employment with [the Agency] was terminated on May 3, 2002, when it was discovered that his resume was false.

11. [The Agency] offers a range of home health care services, including nursing, home support, occupational therapy, physiotherapy, and others.

12. In January, 1999, the Member had forwarded his resume to [the Agency] seeking employment. His resume included the following information regarding his prior employment:

1989-1993, Federal Government of Canada – Forestry

• Clearing and maintaining transportation routes.

1984-1989, Self Employed

• Construction; property maintenance and administration.

13. The Member began working for [the Agency] in March, 1999 as a Registered Nurse. There were no known complaints regarding the Member’s practice during this time period. In April of 2002, the Member was being considered for another position at [the Agency], and was asked to submit a Criminal Reference Check.

14. After his employer had made several requests, the Member informed his employer that he had not submitted a Criminal Reference Check because he had spent time in jail for second degree murder. He also informed his employer that he had included employment information on his resume during the time that he was incarcerated.

15. [The Agency] terminated his employment on May 3, 2002.

16. The Member did not report his criminal convictions to the College of Nurses (the “College”) on his 2002 Annual Payment Form. Specifically, section “L” of the Annual Payment Form, 2002, states, “Since your initial registration with CNO have you been found guilty of a criminal offence?” The Member responded “No” to this question. The member signed his 2002 Annual Payment Form, dated November 20, 2001.

DISCIPLINE HEARING IN 2004

17. As a result of the above conduct, on November 6, 2003, the College issued a Notice of Hearing alleging that the Member had committed acts of professional misconduct in that he engaged in conduct or performed an act or acts, 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 in that (1) he was found guilty of the offence of dangerous driving; (2) he was found guilty of the criminal offence of second degree murder; (3) he failed to disclose his previous criminal convictions to the College; and (4) he provided false and misleading representations regarding his previous employment to his employer.

18. On February 3, 2004, the Member made admissions of professional misconduct in respect of the Notice of Hearing dated November 6, 2003. The discipline hearing was adjourned to allow the Member an opportunity to adduce evidence in respect of the issue of penalty.

19. On April 27, 2004, the hearing proceeded before the Discipline Panel. Attached at Tab A is a copy of the transcript of the Discipline Hearing.

20. In the course of the hearing, the Member called [ ] as a character witness. [The character witness] testified that he had met the Member at the [ ] Penitentiary when [The character witness] was the Program Facilitator for Substance Abuse. He testified that he had known the Member for 20 years and that the Member had been very involved in substance abuse programs and Alcoholics Anonymous. He testified that the Member had completely reformed. He further testified that to his knowledge the Member had abstained from both alcohol and drugs since the day of the crime. He testified that between 1992 and 2004, he had absolutely no concerns about the Member abusing alcohol.

21. The Member also called the evidence of [ ], his parole officer since 1997. [The parole officer] testified that the Member was rehabilitated and fully sober. She testified that she had no concerns about the Member abusing alcohol.

22. The Member then testified before the Discipline Panel in support of his submission that he had rehabilitated himself. In particular, the Member testified that the night of the crime was “an aberration as to my, my actions. What’s different is I don’t drink. That’s one thing, and I also get, I ask for help in terms of my emotional stability”.

23. The College sought a penalty of revocation having regard to the seriousness of the prior offence. The Member submitted that he had been rehabilitated and that a lesser penalty was appropriate.

24. On May 10, 2004, the Discipline Committee made findings of professional misconduct and on May 25, 2004, the Discipline Committee issued its penalty order. A copy of the penalty decision dated May 10, 2005 and correspondence to the Member enclosing the decision is Tab B. On July 12, 2004, the Discipline Panel issued its reasons in respect of penalty. Attached at Tab C is a copy of the decision of the Discipline Panel.

25. The Panel concluded that the Member “continues to maintain his sobriety through AA, and to ensure no further misconduct are in place”. As a result of the Member’s rehabilitation, The Discipline Panel imposed a three month suspension and terms, conditions and limitations including that the Member continue to comply with the terms of his parole order.

26. The Member’s Parole Certificate includes a term that the Member abstain from the use of drugs and alcohol. Attached at Tab D is the Full Parole Certificate.

27. On June 4, 2004, the College received information from [the parole officer] advising that contrary to her evidence at the discipline hearing, the Member had not been maintaining sobriety and had been using both alcohol and marijuana. In particular, [the parole officer] advised that on May 27, 2004, she had received information that the Member had been using alcohol and marijuana on a regular basis for a long period of time.

28. As a result of the information received from the Member’s family regarding the Member’s very frequent alcohol and marijuana abuse, the Member’s parole was revoked. The Member was released back into the community on June 2, 2004 with the additional conditions that he be subjected to regular and random drug and alcohol testing, reside in a halfway house and continue counselling for drug abuse. Attached at Tab E is a copy of the parole officer’s Progress report dated December 1, 2004.

ADMISSIONS

29. The Member admits that he committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(18) of the Ontario Regulation 799/93, in that he contravened a term, condition or limitation on his certificate of registration in that he was required to comply with the terms of his parole order which prohibited the use of alcohol or drugs and that between May 10, 2004 and June 2, 2004, he used alcoholic substances and/or drug substances.

30. The Member admits that he committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(21) of the Ontario Regulation 799/93, in that he failed to comply with an order of a panel of the Discipline Committee in that on May 10, 2004, the Discipline Panel ordered that he was required to comply with the terms of his parole order which prohibited the use of alcohol or drugs and between May 10, 2004 and June 2, 2004, he used alcoholic substances and/or drug substances.

31. The Member further admits that he committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(37) of the Ontario Regulation 799/93 in that he engaged in conduct or performed an act or acts 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 between February 3, 2004 and April 2, 2004, he adduced untrue evidence and/or made false representations during a Discipline Hearing into allegations of professional misconduct against him.

Decision

The panel accepted the Agreed Statement of Facts (Exhibit # 2) as presented. 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, 2 and 3 of the Notice of Hearing in that:

1. The Member contravened a term, condition or limitation on his certificate of registration in that he was required to comply with the terms of his parole order which prohibited the use of alcohol drugs and that between May 10, 2004 and June 2, 2004, the Member used alcohol substances and/or drug substances.

2. The Member failed to comply with an order of a panel of the Discipline Committee in that on May 10, 2004, the Discipline panel ordered the Member to comply with the terms of his parole order, which prohibited the use of alcohol or drugs, and between May 10, 2004 and June 2, 2004, he used alcohol substances and/or drug substances.

3. The Member engaged in conduct or performed an act or acts 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 between February 3, 2004 and April 27, 2004, the Member adduced untrue evidence and/or made false representations during a Discipline hearing into allegations of professional misconduct against him.

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 # 3) provides as follows:

Gerard McManus (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 Fact, and the Member’s admissions of professional misconduct, the panel of the Discipline Committee should make an Order as follows:

1. Requiring the Member to appear before the panel to be reprimanded;

2. Directing the Executive Director to suspend the Member’s certificate of registration for 90 days, to commence on the date that this Order becomes final;

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

(a) The Member must notify the Director of the names, addresses, and phone numbers of all facilities or agencies at which he is directly employed to practice nursing, within 14 days of resuming practice, until the Member has completed 12 months of nursing practice following the date of this Order. Such notification must be in writing and sent by verifiable form of delivery (such as courier), and the Member must retain proof of delivery.

(b) Until the Member has completed 12 months of nursing practice following the date of this Order, the Member shall only practice nursing for an employer(s) who has acknowledged to the Director in writing that it has received a copy of the Discipline Committee’s penalty order with its appendices, including the Notice of Hearing, Agreed Statement of Facts and Joint Submission on Penalty or, if available, the Discipline Committee’s Decision and Reasons. The employer(s) must acknowledge receipt of the above within 14 days of the commencement of practice.

The Member was not represented by counsel. However, the Member had signed the Joint Submission on Penalty and also indicated orally to the panel that he was in agreement with that submission.

Penalty Decision

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

1. The Member to appear before the panel to be reprimanded;

2. The Executive Director to suspend the Member’s certificate of registration for 90 days, to commence on the date that this Order becomes final;

3. The Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

(a) The Member must notify the Director of the names, addresses, and phone numbers of all facilities or agencies at which he is directly employed to practice nursing, within 14 days of resuming practice, until the Member has completed 12 months of nursing practice following the date of this Order. Such notification must be in writing and sent by verifiable form of delivery (such as courier), and the Member must retain proof of delivery.

(b) Until the Member has completed 12 months of nursing practice following the date of this Order, the Member shall only practice nursing for an employer(s) who has acknowledged to the Director in writing that it has received a copy of the Discipline Committee’s penalty order with its appendices, including the Notice of Hearing, Agreed Statement of Facts and Joint Submission on Penalty or, if available, the Discipline Committee’s Decision and Reasons. The employer(s) must acknowledge receipt of the above within 14 days of the commencement of practice.

The Panel ordered that conditions 2 and 3 are to take effect immediately following the Member’s reinstatement by the Fitness to Practice Committee.

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 his actions.

The panel strongly believes that integrity is a hallmark of the nursing profession. By misrepresenting himself to the previous panel and by breaching his parole and the previous panel’s order, the Member showed a distinct lack of integrity.

The panel recognizes, however, that mitigating circumstances do exist in this case. Counsel for the College advised the panel that the Member immediately acknowledged his responsibility. Counsel for the College expressed the opinion that the Member’s behaviour was an aberration and that the Member remains proactive in dealing with his substance abuse issues. The panel was also informed by Counsel that the penalty as presented protects the public and recognizes the efforts made by the Member.

The Panel was unanimous in their opinion that the Joint Submission on Penalty provides both general deterrence to the College’s membership and specific deterrence to the Member. Generally, it sends a message to all members of the College and the public that such behaviour will not be tolerated. Specifically, it ensures that the Member will not repeat the behaviour.

I, Jim Attwood, 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:

Chairperson Date

Panel Members:

Claudette Drapeau, RPN Cheryl McMaster, RPN Grace Isgro-Topping, Public Member Linda Bracken, Public Member