College of Nurses of Ontario v. Balog, 2006 ONCNO 81782

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Denise Dietrich, RPN Chairperson Cheryl McMaster, RPN Member Marilyn Lambert, RN Member Linda Bracken Public Member

Grace Isgro-Topping Public Member

BETWEEN:

) GLYNNIS BURT for

COLLEGE OF NURSES OF ONTARIO ) College of Nurses of Ontario

• and - ) KATE HUGHES for

) Diane B. Balog

DIANE B. BALOG )

Registration No. 7313364 )

) Heard: June 26, 2006

DECISION AND REASONS

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

THE ALLEGATIONS

College Counsel informed the panel that allegation(s) #1 (c), #2 and #3 (a), (b), (d), (e), (f) and (g) have been withdrawn.

The remaining allegations against Diane Balog (“the Member”) as stated in the Notice of Hearing [ ] dated May 4, 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 and defined in paragraph 1.1 of Ontario Regulation 799/93, in that while you were working as a Case Manager with [the agency], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, in that you:

(a) falsely claimed that you had attended [the facility] on or about March 26, 2002, to observe and assess three clients – [ ] – when no such attendance or assessment took place on that date; and/or

(b) on or about March 26, 2002, completed the following [agency] documentation to make it appear that you had met with the clients as indicated when no attendance at [the facility] or assessment of any of [the three clients] took place on that date:

(i) “Health Functional Information” form for each of [the three clients]; and/or

(ii) Assessment report on the Case Management Information System for [Client A]; and/or

(d) falsely claimed that you attended [the facility] on or about April 17, 2002, to observe a client – namely [Client B] – when no such attendance at [the facility] or assessment of [Client B] took place on that date; and/or

(e) on or about April 17, 2002, completed the following [agency] documentation to make it appear that you had met with [Client B] when no attendance at [the facility] or assessment of [Client B] took place on that date:

(i) “Health Functional Information” form; and/or

(ii) Assessment Report on the Case Management Information System; and/or

(f) falsely claimed that you had attended [the facility] on or about February 10, 2003, to observe and assess two clients - [Client B and Client C] – when no such attendance at [the facility] or assessment of [Client B or Client C] took place on that date; and/or

(g) on or about February 10, 2003, completed the following [agency] documentation to make it appear that you had met with [Client C] when no attendance at [the facility] or assessment of [Client C] took place on that date:

(i) “Health Functional Information” form; and/or

(ii) “Client Consent Form”; and/or

(iii) Assessment report on the Case Management Information System.

2. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.37 of Ontario Regulation 799/93, in that while you were working as a Case Manager for [the agency] 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 you:

(c) submitted a mileage expense reimbursement form and received payment for a trip to [the facility] on March 26, 2002, when no trip to [the facility] was made by you on that date.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1 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. A signed plea inquiry was submitted [ ].

Agreed Statement of Fact

THE MEMBER

1. Diane B. Balog (“Ms. Balog”) has been registered with the College since 1973. Ms. Balog graduated [ ] in 1972.

2. Ms Balog has no history before the Discipline Committee of the College of Nurses of Ontario.

3. Initially Ms. Balog worked at [ ] Hospital in [ ] on the orthopaedic and neurosurgical ward from 1972 to 1974. In 1974 she joined the [ ]. In 1977 to 1978 Ms. Balog attended the [ ] and obtained her Public Health Certification. She worked at the [ ] full-time until December 1982 and then part-time until February 1985 [ ]. She resigned in 1985 to stay at home [ ].

4. Ms. Balog returned to work as a nurse on October 30, 1986, to work for the [agency]. She worked in the main office and was also oriented to all five [ ] area hospitals. Ms. Balog worked temporarily as a relief nurse, and then held permanent job-sharing positions until March 1989, following which she worked in a full-time locum position in the main office for approximately 14 months until approximately April 1990. The agency became known as [ ] in 1992/93 and Ms Balog’s position changed to Case Manager. Ms. Balog was employed at [the agency] as a Case Manager until March 6, 2003, at which time her employment was terminated.

5. In October of 2000 the staff at [the agency] went on a strike that lasted ten weeks. When the staff returned on a gradual basis at the end of December, 2000, the [agency] was reorganized and the staff teams were broken up. Prior to the strike, Ms. Balog was working part-time in a job-share position doing case management in a hospital setting. She was able to handle the workload and stress of the position without difficulty. After the strike she was advised in February 2001 that the job share would be dissolved and her choice was either to go full-time or take a relief position. Thereafter, Ms. Balog was employed in a full-time capacity.

6. In February 2001 Ms. Balog was also assigned to a new position; she was no longer working out of the hospital on hospital placements, but became part of the visiting team [ ] in palliative care.

7. In her position as Case Manager at [the agency], Ms. Balog was responsible for a variety of duties which included, among other things, conducting assessments of the health-related needs of clients in the community, and authorizing, coordinating and monitoring the provision of such services that were provided by other contracted health care agencies (e.g. the hands-on nursing care provided by agencies). In her capacity as Case Manager, Ms. Balog regularly visited with clients, many of whom were frail and elderly and/or cognitively impaired, to conduct face-to-face assessments from which modifications to their treatment plans could be made, if necessary. As part of this process, Ms. Balog was required to obtain, from the clients, signed consent forms for the sharing of client information with authorized parties in the event that such consents had not been previously obtained by the [ ]. [ ]

8. During the period of the incidents at issue in this proceeding, Ms. Balog was having difficulty dealing with her new caseload. She was working full-time after working a part-time job share position in the hospital on hospital placements which changed both the type and volume of work. New documentation, new systems (including the [ ] system), and the use of laptop computers were introduced. These presented difficulties for Ms. Balog as an older nurse who was not used to working with laptops or the new computerized forms. Ms. Balog found the documentation difficult to use.

9. In October of 2002, Ms. Balog [ ] was off on medical leave from October 29, 2002 until January 13, 2003. Ms Balog returned to work gradually, upon the recommendation of her physician. At the time of her termination in March 2003, Ms Balog had not yet returned to full-time hours.

10. Ms Balog is presently employed on a part-time basis as a nurse manager providing traditional nursing care at [ ], a Long Term Care Facility in [ ]. She has been employed there since March 4, 2004.

THE FACILITY

11. [The agency] is a community-based institution located in [ ], Ontario which provides case management care to clients within the community.

12. [The facility] is a private home for six people requiring assisted care. It is not a facility where visitors can come and go freely, nor is it a facility with public access. Anyone entering [the facility] must enter by knocking or ringing the doorbell. At the time of the incidents described below, two staff members as well as the Manager of [the facility] were present in the home during the day. Ms. Balog would not be able to enter the home and visit clients without the staff being aware of her presence.

FACTS RELEVANT TO ALLEGATIONS

March 26, 2002

13. As set out below, Ms. Balog falsely claimed that she attended at [the facility] on or about March 26, 2002, to observe and assess three clients [ ] when no such attendance or assessment took place on that date.

14. Ms. Balog completed Health Functional Information Forms for each of [the three clients] dated March 26, 2002, which make it appear as though she met with and assessed the clients on March 26, 2002, when no such attendance or assessment of [the three clients] took place on that date. [ ]

15. Ms. Balog also completed a Home Reassessment Visit report for [Client A] in the Computer Case Management Data System dated March 26, 2002 which makes it appear as though a reassessment of [Client A] had occurred on March 26, 2002, when it had not. [ ]

16. The documentation in the client record of [Client B] dated March 26, 2002 indicates that the client was admitted to hospital on March 26, 2002, and so was not even present in the building when Ms Balog claimed to have visited [Client B].

17. Ms. Balog submitted a “Monthly Travel Expense Report for March 2002” which claimed, among other things, mileage reimbursement for 9 km of travel for attendance at [the facility] on March 26, 2002. Although Ms Balog has no specific recollection of not having traveled to [the facility] on March 26, 2002, the records at [the facility] show that Ms Balog did not in fact travel to [the facility] on that date. Ms Balog received approximately $4.05 for this claim.

18. If the Member were to testify, she would admit that she did not attend [the facility] on March 26, 2002, but nonetheless completed documentation on that date which makes it appear as though the above visits had occurred. The Member would say that she did not attend at [the facility] because she was having difficulty completing all of her visits in the available time. She would say that she spoke to the RNs who were providing the care to the clients to ensure appropriate care was being given. These were not new clients to the [agency].

April 17, 2002

19. As set out below, Ms. Balog falsely claimed that she attended at [the facility] on or about April 17, 2002, to observe and assess [Client B] when no such attendance or assessment took place on that date.

20. Ms. Balog completed the following [agency] documentation pertaining to [Client B] dated April 17, 2002, which makes it appear as though she met with and assessed [Client B] on April 17, 2002, when no such attendance or assessment of [Client B] took place on that date:

a) Health Functional Information Form; and

b) Assessment Report on the Case Management Information System. [ ]

21. The documentation from [Client B]’s log book shows that [Client B] was out of the home in the morning on this date for an appointment. There is no entry in [Client B]’s log book indicating that Ms. Balog attended [the facility] on April 17, 2002.

22. If the Member were to testify she would admit that she did not attend [the facility] on April 17, 2002, but nonetheless completed documentation on that date which makes it appear as though this visit had occurred. The Member would say that she did not attend at [the facility] because she was having difficulty completing all of her visits in the available time.

February 10, 2003

23. Ms Balog falsely claimed that she attended at [the facility] on or about February 10, 2003, to observe and assess [Client B and Client C] when no such attendance or assessment took place on that date.

24. Ms. Balog completed the following [agency] documentation pertaining to [Client C] dated February 10, 2003, to make it appear as though she had met with and assessed [Client C] on February 10, 2003, when no such attendance or assessment of [Client C] took place on that date:

a) The “Health Functional Information” form;

b) The Client Consent for In-Home Services form, utilized to obtain the client’s consent for treatment which must be signed and dated during the visit (the form indicates that verbal consent was obtained); and

c) Assessment report on the Case Management Information System. [ ]

25. If she were to testify, Ms Balog’s manager [at the agency] would say that she asked Ms Balog on or about February 11, 2003, whether she actually visited [Client B and Client C] on February 10, 2003, and that Ms Balog led her to believe that she had. It was only later that Ms Balog admitted that she had not visited [Client B and Client C] on February 10, 2003.

26. [The agency manager] would also testify that Ms Balog admitted to her and others that the verbal consent which Ms Balog indicated on the documentation had been obtained from [Client C] on February 10, 2003, had not in fact been obtained from [Client C].

27. If the Member were to testify she would admit that she did not attend at [the facility] on February 10, 2003, but that she completed the above documentation in such a way that it appears as though this visit had occurred. The Member would say that she did not attend at [the facility] because she was having difficulty completing all of her visits in the available time.

Miscellaneous

28. At all relevant times the Manager of [the facility] was [ ]. If [the facility manager] were [to] testify, he would say that, although in the two years prior to February 12, 2003 he was not aware of the Member assessing either of [Client B or Client C] at [the facility], the Member had been helpful in contacting and arranging for therapists for these two clients.

ADMISSIONS OF MISCONDUCT

29. Ms Balog admits that she committed acts of professional misconduct, as provided by subsection 51(1)(c) of the Health Profession Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.1 of Ontario Regulation 799/93, in that while she was working as a Case Manager for [the agency], she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession in that she:

a) falsely claimed that she had attended [the facility] on or about March 26, 2002, to observe and assess three clients – [ ] – when no such attendance or assessment took place on that date; and/or

b) on or about March 26, 2002, she completed the following [agency] documentation dated March 26, 2002, to make it appear that she had met with the clients as indicated when no attendance at [the facility] or assessment of any of [the three clients] took place on that date:

i. “Health Functional Information” forms for each of [the three clients]; and/or

ii. Home Reassessment Visit report on the Case Management Information System for [Client A]; and/or

c) falsely claimed that she attended [the facility] on or about April 17, 2002, to observe a client – namely [Client B] - when no such attendance at [the facility] or assessment of [Client B] took place on that date; and/or

d) on or about April 17, 2002, completed the following [agency] documentation dated April 17, 2002, to make it appear that she had met with [Client B] when no attendance at [the facility] or assessment of [Client B] took place on that date;

i. “Health Functional Information” form; and/or

ii. Assessment report on the Case Management Information System; and/or

e) falsely claimed that she had attended [the facility] on or about February 10, 2003, to observe and assess two clients – [Client B and Client C] – when no such attendance at [the facility] or assessment of [Client B or Client C] took place on that date; and/or

f) on or about February 10, 2003, completed the following [agency] documentation dated February 10, 2003, to make it appear that she had met with [Client C] when no attendance at [the facility] or assessment of [Client C] took place on that date:

i. “Health Functional Information” form; and/or

ii. “Client Consent Form”; and/or

iii. Assessment report on the Case Management Information System.

30. Ms. Balog admits that she committed acts of professional misconduct, as provided by subsection 51(1)(c) of the Health Profession Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.37 of Ontario Regulation 799/93 in that while she was working as a Case Manager for [the agency], she 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 unprofessional, in that she submitted a mileage expense reimbursement form and received payment for a trip to [the facility] on March 26, 2002, when no trip to [the facility] was made by her on that date.

31. The College seeks leave of the Discipline Committee to withdraw allegation #1(c), 2 and 3 (a), (b) and (d) to (g), inclusive in the Notice of Hearing.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support findings of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs numbered 1 and 3 of the Notice of Hearing. The Member contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to care of and documentation concerning [Clients A, B and C]. In addition, the Member committed an act of professional misconduct that having regard for all the circumstances would reasonably be regarded by members as unprofessional. Specifically, the Member submitted a mileage expense reimbursement form and received payment for a trip to [the facility] on March 26, 2002 when no trip to [the facility] was made on that date.

Reasons for Decision

The panel deliberated and after due consideration of all the facts and the Member’s admission to the allegations unanimously decided to accept the Agreed Statement of Facts as presented which substantiated the findings of professional misconduct. The panel deliberated on whether the conduct related to allegation #3 would be considered disgraceful, dishonourable and/or unprofessional and concluded that the actions of the Member in regard to falsely claiming mileage on one occasion for a 9-kilometre trip could only be described as unprofessional in the opinion of this panel.

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 provides as follows:

Diane B. Balog (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 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 a period of six weeks from 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) for a period of two years of practice from the date that this Order becomes final the Member will:

(i) provide to all employers a copy of the Decision and Reasons of the Discipline Committee pertaining to this matter;

(ii) only work for an employer who agrees to:

A. acknowledge receipt of a copy of the Decision and Reasons of the Discipline Committee; and

B. report to the Director any suspected professional misconduct;

(b) the Member shall be required to:

(i) review the following College of Nurses of Ontario publications: Professional Standards (2002) and Ethical Framework for Nurses in Ontario (1999); and

(ii) within ninety days of the date that this Order becomes final, meet with a Practice Consultant to discuss and review:

A. the materials referred to in (b) (i) above and their application to the conduct for which the Member was found to have committed professional misconduct as described in the Agreed Statement of Facts; and

B. the potential consequences of that conduct to the Member, her colleagues, the client and the profession.

Counsel for the College submitted that the proposed penalty was reasonable and that it was within the range [of] what is appropriate. Aggravating factors included that the Member was in a position of authority and that she exercised poor judgment. The Member put her own self interest ahead of the needs of the client and did not seek any assistance to help with the burden of her caseload. It was noted that this was not an isolated event but involved several clients over a period of time.

Mitigating factors as stated by Counsel for the College included that the Member does not have a prior discipline history in 30 years of practice, that she has admitted the facts of wrongdoing. She is prepared to accept remediation. Counsel for the College advised the panel that the Member had consulted with the care providers for the clients in question. Therefore, even though the Member did not personally meet with the clients, the “documents were not complete fiction”. Counsel for the College stated that the issue of mileage reimbursement was not significant and there was no evidence of a pattern of this behaviour and [it] was not done for financial gain.

Counsel for the College submitted that the proposed penalty provides both specific and general deterrence, includes remediation and [ ] is reasonable and protects the public.

Counsel for the Member advised that she agreed with the submissions made. The Member has cooperated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions. Ms. Hughes reminded the panel that the Member has returned to part time practice in a different environment. She advised that the Member identified that at the time of the incidents, she was in a position and working an amount of hours that she was not prepared for.

Penalty Decision

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

1. The Member to appear before the Panel to be reprimanded.

2. The [Executive Director] is directed to suspend the Member’s certificate of registration for a period of six weeks from the date that this Order becomes final.

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

(a) for a period of two years of practice from the date that this Order becomes final the Member will:

(i) provide to all employers a copy of the Decision and Reasons of the Discipline Committee pertaining to this matter;

(ii) only work for an employer who agrees to:

A. acknowledge receipt of a copy of the Decision and Reasons of the Discipline Committee; and

B. report to the Director any suspected professional misconduct;

(b) the Member shall be required to:

(i) review the following College of Nurses of Ontario publications: Professional Standards (2002) and Ethical Framework for Nurses in Ontario (1999); and

(ii) within ninety days of the date that this Order becomes final, meet with a Practice Consultant to discuss and review:

A. the materials referred to in (b) (i) above and their application to the conduct for which the Member was found to have committed professional misconduct as described in the Agreed Statement of Facts; and

B. the potential consequences of that conduct to the Member, her colleagues, the client and the profession.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has cooperated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions and has avoided unnecessary expense to the College.

The panel felt that the penalty sends a message to the general membership that when nurses cannot manage their workload, [ ] they have a responsibility to address this issue by consulting with others who may be in a position to assist or support. As an example, nurses in such a position could consult their colleagues, their supervisor(s) and/or the College. Falsification of documents is never acceptable.

I, Denise Dietrich, RPN, 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:

Cheryl McMaster, RPN

Grace Isgro-Topping, Public Member

Marilyn Lambert, RN

Linda Bracken, Public Member