College of Nurses of Ontario v. Nolan, 2006 CanLII 84483

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL Deanne Barber, RPN Chairperson Denise Dietrich, RPN Member Catherine Genereux Public Member Grace Isgro-Topping Public Member

BETWEEN:

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

• and -

EDWENA NOLAN, RN Registration No. 9506940 SHARAN BASRAN for Edwina Nolan

Heard: May 3, 2006

DECISION AND REASON

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

The Allegations

The hearing proceeded in relation to the following allegations of professional misconduct against Edwena Catherine Nolan, (the “Member”), as stated in the Notice of Hearing (Exhibit # 1) dated March 22, 2006:

4. 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(14) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse by [the Agency] you falsified a record relating to your practice with respect to charting visits and/or submitting time sheets for pay purposes in relation to the incidents listed in Appendix “A”;

5. 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(15) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse by [the Agency] you signed or issued, in your professional capacity, a document that you knew contained a false or misleading statement with respect to charting visits and/or submitting time sheets for pay purposes in relation to the incidents listed in Appendix “A”;

6. 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(28) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse by [the Agency] you submitted an account or charge for services that you knew was false or misleading, with respect to charting visits and/or submitting time sheets for pay purposes in relation to the incidents listed in Appendix “A”; and/or

7. 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 by [the Agency] 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 of the profession as disgraceful, dishonourable or unprofessional, with respect to charting visits and/or submitting time sheets for pay purposes in relation to the incidents listed in Appendix “A”.

Three other allegations of professional misconduct relating to failing to maintain the standards of practice of the profession, misappropriating property from a client or workplace and failing to keep records as required, were withdrawn at the request of College Counsel.

Member’s Plea

Edwena Catherine Nolan admitted the allegations set out in paragraphs numbered 4, 5, 6, and 7 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 form was entered as Exhibit #3.

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 (ASF) which provided as follows:

1. Edwina Catherine Nolan (the “Member”) obtained her bachelor of nursing in 1994 from [ ]. In 1994, she [ ] became a member of the College of Nurses of Ontario (the “College”).

2. Between 1995 and 1998, the Member worked for various agencies in the areas of home care and community nursing, including providing home care to paediatric patients. In 1998 the Member was employed by [the Agency], where she worked full-time until March 31, 2003, at which time she was terminated as a result of the incidents described below.

3. The Member is presently employed in a leadership capacity as the charge nurse at [ ]. Her position involves both managerial responsibilities and geriatric nursing.

[THE AGENCY]

4. [The Agency] is a for-profit community nursing agency in south-western Ontario. The agency employs approximately 500 nurses, both RNs and RPNs. It operates primarily on contract from the regional [ ]. The Member was employed by [the Agency] in [ ] Region where the agency employed mainly RNs.

5. The nursing staff employed by [the Agency] was organized into teams of four members. Each team consisted of two primary nurses and two back-up nurses. Each team was responsible for the clients in a set geographic area. Each team essentially managed its own case load and scheduling within the parameters of client needs and agency policies. It was expected that the work would be divided equitably amongst the team members. Continuity of care providers for the clients was considered important to the agency.

6. One of the primary nurses on each of the [Agency] teams acted as “team leader”. The team leader was responsible for training new staff and assigning team members to patients on a daily basis. On average, the two primary nurses worked three days per week, and the two back-up nurses worked two days per week. [Agency] nurses were required to work one evening per week in addition to their normal day shifts. The nurses employed by [the Agency] were also required to be on call one evening per week between Monday and Thursday, and to work one weekend every four weeks. It was the team’s responsibility to work out the days of the week that each nurse worked.

7. The patient chart for each [Agency] client was kept in the client’s home. Most of the charting was done on flow sheets which were individualized for each client. The nurse initialled the flow sheet after filling in the predetermined categories. The entries on the flow sheet were numbered sequentially down the left side of the flow sheet, and were signed at every visit. Nurses entered notes in the Nursing Notes document every three months for long term clients. As well, chart entries were made in the Nursing Notes when there was an update or any other relevant communication that could not be communicated on the flow sheet. With respect to time sheets, [Agency] nurses were required to fax them each evening to the [Agency] office. The nurses were paid for each visit to a client.

8. The teams were assisted by back up or casual nurses who took on client assignments when the workload demands exceeded the capacity of the primary nurses on the team to provide care to the clients. The Member was one of the primary nurses on Team 10. Team 10 provided general medical/ surgical care, IVs, dressings and palliative care to its assigned clients.

DECEMBER 18 & 30, 2001

9. [Client A] became a client of [the Agency] on October 10, 2001. He was out of the country [ ] from December 17, 2001 until January 6, 2002.

10. The Member billed [the Agency] for visits she claimed she made to [Client A] on December 18 and 30th, 2001. [Client A] was out of the country [ ] on those dates.

11. When confronted by her supervisors at [the Agency] about the time sheets submitted for visits on the two dates in December 2001, the Member admitted that she had submitted time sheets and billed [the Agency] for visits she had not made.

JANUARY 7 to AUGUST 2, 2002

12. [Client B] was a client who, prior to January 11, 2002, was to be seen by [an Agency] nurse on the Member’s team three times a week: Mondays, Wednesdays and Fridays. The client’s visits decreased in January, 2002 so that visits only once per week were required. The Member and her team members made weekly visits to the client only between January 7, 2002 and August 2, 2002. The weekly visits were recorded in the patient’s chart. Despite the decreased service, the Member continued to submit the time sheets to bill [the Agency] for three visits a week.

13. The Member submitted time sheets and billed [the Agency] for 32 home care visits to [client B] that were not made between January 7, 2002 and August 2, 2002. She was paid by [the Agency] for these visits.

14. During the period between January and August 2002, visits actually made to this client were charted, sequentially, once a week on the flowsheets kept in the client’s home. The Member falsified documentation to cover up the visits that she billed for, but did not make, by charting for these visits on separate sheets of Nursing Notes.

ADDITIONAL INFORMATION

15. The Member has continued to update her skills by taking courses in areas relevant to her practice, and has conducted some in services for personal support workers at her current place of employment.

16. [15a.]The Member has informed her current employer of the allegations she is facing and the proposed penalty, and her employer has remained supportive.

ADMISSIONS

16. The Member acknowledges that she committed acts of professional misconduct as described in allegation #4 in the Notice of Hearing. In particular, the Member acknowledges that she falsified a record relating to her practice with respect to charting visits and/or submitting time sheets for pay purposes in relation to the incidents listed in Appendix “A”.

17. The Member also acknowledges that she committed acts of professional misconduct as described in allegation #5 of the Notice of Hearing. In particular, she acknowledges that she signed or issued, in her professional capacity, a document that she knew contained a false or misleading statement with respect to charting visits and/or submitting time sheets for pay purposes in relation to the incidents listed in Appendix “A”.

18. The Member also acknowledges that she committed acts of professional misconduct as described in allegation #6 of the Notice of Hearing. In particular, she acknowledges that she submitted an account or charge for services that she knew was false or misleading, with respect to charting visits and/or submitting time sheets for pay purposes in relation to the incidents listed in Appendix “A”.

19. The Member also acknowledges that she committed acts of professional misconduct as described in allegation #7 of the Notice of Hearing. In particular, the Member acknowledges that she engaged in conduct reasonably regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to charting visits and/or submitting time sheets for pay purposes in relation to the incidents listed in Appendix “A”.

20. The College seeks leave of the Discipline Committee to withdraw allegations #1, 2 and 3 in the Notice of Hearing.

Decision

The panel considered the ASF 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 allegations 4, 5, 6 and 7 of the Notice of Hearing in that the Member:

• falsified a record relating to her practice with respect to charting visits and/or submitting time sheets for pay purposes

• signed or issued, in her professional capacity, a document that she knew contained a false or misleading statement with respect to charting visits and/or submitting time sheets for pay purposes

• submitted an account or charge for services that she knew was false or misleading, with respect to charting visits and/or submitting time sheets for pay purposes

• 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 charting visits and/or submitting time sheets for pay purposes

Reasons for Decision

The panel deliberated and after due consideration of all the facts and the Member’s admission of professional misconduct as alleged in paragraphs 4, 5, 6, and 7, unanimously decided to accept the ASF as presented, which substantiates the finding of professional misconduct.

Penalty

College counsel advised the panel that a Joint Submission as to Penalty had been entered into by the parties. In the Joint Submission as to Penalty, the College and the Member invited the panel to make a penalty order:

1. Requiring the Member to appear before the panel to be reprimanded on a date to be arranged between the Member and the panel, 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 a period of 60 days, to commence on May 04, 2006.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration, namely, that until the Member has completed 12 months of practice following the date of this Order, the Member shall only practice nursing where, before commencing or resuming practice,

(a) she has provided her employer’s chief nursing officer (or equivalent) with a copy of the Discipline Committee’s Penalty Order with its appendices, including the Agreed Statement of Facts and Joint Submission on Penalty or, if available, the Discipline Committee’s Decision and Reasons, and

(b) the employer has agreed to confirm in writing to the Director of Investigations and Hearings at the College (“Director”) within 14 days of the commencement or resumption of practice that the chief nursing officer (or equivalent) has received the Penalty Order with appendices, or Decision and Reasons.

4. Requiring the Member to pay a fine of $1,000.00 to the Minister of Finance, the payment of which the Member will submit to the College, in the form of a certified cheque or money order made out to the Minister of Finance, within 60 days of the date of this Order unless, within the 60 day period, the Member provides proof in writing acceptable to the Director that she has made restitution in full to [the Agency] for the client visits for which she was paid but did not make during the period December, 2001 to September, 2002.

Counsel for the College reviewed the following aggravating factors:

• this was serious misconduct committed over a period of months;

• the misconduct was compounded by falsification of nursing notes; and

• the Member’s dishonesty involved a breach of trust.

College counsel also pointed out the following mitigating factors:

• the Member has no prior record of misconduct;

• the Member admitted to misconduct and accepted responsibility; and

• client care was not compromised

College counsel further stated that this penalty meets the principle of individual and general deterrence.

In addition, College counsel reviewed the Discipline panel’s decision in CNO v. Robert Campbell. That case was virtually identical to the one before us, and the proposed penalty is identical.

Counsel for the Member agreed with the submissions made and provided a letter of reference from the Member’s current employer (Exhibit #5).

Counsel for the College requested that the 60 day suspension begin on May 4, 2006. The Member’s counsel stated that the Member had already executed her waiver of appeal. Accordingly, there was no impediment to the suspension taking effect immediately.

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 on a date to be arranged between the Member and the panel, within three months of the date that this Order becomes final.
2. the Executive Director to suspend the Member’s certificate of registration for a period of 60 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, namely, that until the Member has completed 12 months of practice following the date of this Order, the Member shall only practice nursing where, before commencing or resuming practice,

(a) she has provided her employer’s chief nursing officer (or equivalent) with a copy of the Discipline Committee’s Penalty Order with its appendices, including the Agreed Statement of Facts and Joint Submission on Penalty or, if available, the Discipline Committee’s Decision and Reasons, and

(b) the employer has agreed to confirm in writing to the Director of Investigations and Hearings at the College (“Director”) within 14 days of the commencement or resumption of practice that the chief nursing officer (or equivalent) has received the Penalty Order with appendices, or Decision and Reasons.

4. the Member to pay a fine of $1,000.00 to the Minister of Finance, the payment of which the Member will submit to the College, in the form of a certified cheque or money order made out to the Minister of Finance, within 60 days of the date of this Order unless, within the 60 day period, the Member provides proof in writing acceptable to the Director that she has made restitution in full to [the Agency] for the client visits for which she was paid but did not make during the period December, 2001 to September, 2002.

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. The panel is of the opinion that the penalty sends a strong message to the profession that nurses are expected to act with integrity and honesty and that these actions are not acceptable. The panel acknowledges that the Member has been forthright with her current employer in that she informed them that these allegations had been made. The panel found that the letter of reference from the Member’s current employer (Exhibit #5) indicated that there were no current problems with her practice and in fact she is reported to be a valued employee, in a position of increased responsibility.

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:

Denise Dietrich, RPN

Catherine Genereux, Public Member

Grace Isgro-Topping, Public Member