College of Nurses of Ontario v. Potts, 2007 ONCNO 82755

PANEL: Anne Mckenzie, RPN Chairperson Kris Guty, RN Member Rosalie Woods, RPN Member Grace Isgro-Topping Public Member Bill Dowson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) CAROLINE ZAYID for ) for College of Nurses of Ontario

and - ) AYESHA POTTS ) CAROL STEPHENSON for Registration No. 0193391 ) Ayesha Potts ) Heard: June 4, 2007

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 4, 2007 at the College of Nurses of Ontario (the “College”) at Toronto. The Member participated in the hearing via teleconference.

The Allegations

College counsel informed the panel that the College would not be leading any evidence in relation to allegations #3 (a) and (b) against Ayesha Potts, RN (the “Member”) as stated in the Notice of Hearing dated April 17, 2007 (Exhibit #1), and they should therefore be dismissed. The remaining allegations against the Member as stated in the Notice of Hearing are as follows:

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 paragraph 1.01 of Ontario Regulation 799/93, in that while employed as a Registered Nurse by [the Hospital], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

(a) on August 12, 2003, you obtained Hospital property (including 6 vials of Rocephin, Normal Saline IV bags, IV tubing and heplocks) for your own personal use;

(b) on August 12, 2003, you received an intravenous infusion of Rocephin on Hospital property, despite the fact that you were not a patient in the Hospital;

(c) on August 13, 2003, you contacted a colleague on duty at the Hospital and requested that she provide Rocephin for you from the Hospital’s supply for your own personal use, and received same from her.

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 paragraph 1.08 of Ontario Regulation 799/93, in that while employed as a Registered Nurse by [the Hospital], you misappropriated hospital property from your workplace in that:

(a) on August 12, 2003, you obtained 6 vials of Rocephin from the night cupboard at the Hospital for your own personal use;

(b) on August 13, 2003, you contacted a colleague on duty at the Hospital and requested that she provide Rocephin for you from the Hospital’s supply for your own personal use, and received same from her.

[dismissed]
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 paragraph 1.37 of Ontario Regulation 799/93, in that, while employed as a Registered Nurse by [the Hospital], you engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all of the circumstances, would reasonably be regarded by Members as disgraceful, dishonourable or unprofessional, in that:

(a) on August 12, 2003, you obtained hospital property (including 6 vials of Rocephin, Normal Saline IV bags, IV tubing and heplocks) for your own personal use;

(b) on August 12, 2003, you received an intravenous infusion of Rocephin on hospital property, despite the fact that you were not a patient in the Hospital;

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered #1 (a), (b) and (c), #2 (a) and (b), and #4 (a), (b) and (c) in the Notice of Hearing and denied allegations #3 (a) and (b) . A written plea inquiry was received and entered as Exhibit #2. 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 #3), which provided as follows:

THE MEMBER

The Member has been registered with the College since 2001. She graduated from [ ] with a diploma in nursing that same year and soon after commenced employment with [the Hospital] as a part time nurse on a medical floor.
The Member continued to work at [the Hospital] from 2001 to mid 2002.
In 2002 the Member also worked as a full time RN in the Emergency Room at [Hospital B].
In February 2003 the Member returned to the Hospital where she was employed until August 2003 on [ ] an acute care/medical floor.
The Member has no history of discipline at the College, and has had no previous complaints made against her.

THE FACILITY

The [ ] Hospital [focuses] on providing medical/surgical care and specialized services in the areas of [ ] and [ ] to persons residing in [ ].

INCIDENT #1

On August 12, 2003, the Member worked the day shift at the Hospital. At the time she was [ ] pregnant. She had [an] infection as a result of an accident several weeks earlier and was taking oral antibiotics prescribed by her [doctor]. While working that day her [infection] worsened.
The Member went to see her obstetrician after her shift finished. The obstetrician gave her a prescription for Rocephin, an antibiotic, to treat cellulitis [ ]. Rocephin is an IV medication.
The Member attempted unsuccessfully to fill the prescription at two community pharmacies and at the Hospital pharmacy.
The Member reported to work to advise the nurse in charge, that she was diagnosed with [ ] and that she would not be able to complete her next scheduled shift. She also reported that she had tried to fill her prescription at community pharmacies and at the Hospital pharmacy but had been informed that the latter could only dispense medication to hospital in-patients.
Several co-workers were present during their conversation. One of them, an RN, pointed out that the medication was available in the night cupboard.
The Member and another co-worker, RN, went downstairs to the night cupboard. The Member removed 6 vials of Rocephin from the Hospital’s night cupboard.
Two or more of the Member’s co-workers assisted her by inserting an IV lock and administering Rocephin to the Member in the conference room on the unit.

INCIDENT #2

The next night, August 13, 2003, the Member telephoned one of her co-workers and asked her to remove 6 more vials of Rocephin from the Hospital so that the Member could finish her treatment.
If the co-worker were to testify, she would state that the Member telephoned her a second time that evening to arrange pick-up of the requested vials. The co-worker advised the Member that she had been unable to obtain the medication because someone else was in the vicinity of the night cupboard. The Member reiterated her request and the co-worker agreed to do as asked by the Member.
The Member does not recall making the second telephone call referred to in paragraph 15, but does not contest the facts in that paragraph.
The Member met her co-worker at an entrance to the Hospital and took 6 vials of Rocephin.

HOSPITAL RESPONSE

Later that same night, the charge nurse reported the matter to the Program Manager who initiated an investigation.
When questioned by the Hospital on August 14, 2003, the Member gave her employer a written statement admitting and apologizing for her actions.
The Member returned 10 unused vials of Rocephin to the Hospital.
As a result of the incidents the Member’s employment was terminated with the Hospital and a report was made to the College by the facility.
If the Member were to testify she would explain that she was motivated by her anxiety and fear for the safety of her unborn child.
The Member admitted her actions to the College in its investigation and has expressed remorse.

ADMISSIONS

The Member acknowledges that she committed acts of professional misconduct as set out in allegation 1 of the Notice of Hearing, in that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession.
The Member acknowledges that she committed acts of professional misconduct as set out in allegation 2 of the Notice of Hearing, in that she misappropriated Hospital property from the workplace.
The Member acknowledges that she committed the acts of professional misconduct as set out in allegation 4 of the Notice of Hearing, in that she engaged in conduct or performed an act or acts relevant to the practice of nursing which having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
The College and the Member jointly request that the Discipline Committee dismiss allegation #3 as set out in 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 (a), (b) and (c), #2 (a) and (b), and #4 (a), (b) and (c) of the Notice of Hearing in that:

a) on August 12, 2003, the Member obtained Hospital property (including 6 vials of Rocephin, Normal Saline IV bags, IV tubing and heplocks) for her own personal use;

b) on August 12, 2003, the Member received an intravenous infusion of Rocephin on Hospital property, despite the fact that the Member was not a patient in the Hospital;

c) on August 13, 2003, the Member contacted a colleague on duty at the Hospital and requested that she provide Rocephin for the Member from the Hospital’s supply for the Member’s own personal use, and received same from her.

d) on August 12, 2003, the Member obtained 6 vials of Rocephin from the night cupboard at the Hospital for her own personal use;

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:

THE MEMBER AND THE COLLEGE JOINTLY 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 of the Discipline Committee to be reprimanded, on the day of the hearing or on a date to be arranged between the panel and the Member, 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 thirty days. The suspension shall commence on the date that this Order becomes final, or the date the Member renews her certificate of registration, whichever date is later. The suspension shall run without interruption;

(3) Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s Certificate of Registration, namely:

(a) The Member must participate in a meeting with a Practice Consultant from the College no later than 90 days after the date the Member renews her certificate of registration to discuss the professional standards expected of her in Ontario in regard to the issues described in the Agreed Statement of Facts. In preparation for this meeting, the Member shall review the current standards relevant to the issues contained in the Agreed Statement of Facts. The Member shall complete any assignments and reading requested of her by the Practice Consultant; and

(b) The Member shall successfully complete the Allegra Learning Solutions online Certificate in Legal and Ethical Issues in Nursing, or in the event the foregoing course is not available, a course in ethics approved by the Director, at her own expense within six months of the date of this Order and provide the Director with proof of her successful completion of the course; such proof must be in writing and sent by verifiable form of delivery (such as courier), and the Member must retain proof of delivery.

Counsel for the College and the Member made submissions regarding the mitigating factors that ought to be considered by the panel in considering the Joint Submission as to Penalty. In particular:

a) The Member was ill, had a medical condition and was [ ] pregnant;

b) The Member had tried to have her prescription for antibiotics filled at the community pharmacy but was unsuccessful;

c) The Member promptly admitted her misconduct to the Hospital;

d) The Member cooperated fully with the College and accepted responsibility for her actions; and

e) The Member returned the balance of the medication to the hospital (10 of the 12 vials taken).

Counsel for the Member submitted that the panel should also take into account the following additional mitigating factors in considering the Joint Submission as to Penalty:

a) The Member has no previous history of discipline or complaints with the College;

b) The Member was an inexperienced nurse;

c) The momentum of events on August 12 and 13, 2003 were such that her colleagues were attempting to assist her;

d) The medication misappropriated was non-narcotic;

e) The Member presented a written apology to her employer and expressed remorse for her actions; and

f) The Member has suffered repercussions in that her employment was terminated as a result of the events at issue.

Counsel for the College made submission that there were also aggravating factors relevant to the panel’s consideration of the Joint Submission as to Penalty. In particular, the evidence was that there were two incidents, August 12 and 13, 2003, therefore this was not an impulsive act by the Member. Furthermore, the Member elicited the assistance of her colleagues in obtaining the medication.

Penalty Decision

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

(1) that the Member appear before the Panel of the Discipline Committee to be reprimanded, on the day of the hearing or on a date to be arranged between the panel and the Member, within three months of the date that this Order becomes final;

(2) that the Executive Director suspend the Member’s Certificate of Registration for a period of thirty days. The suspension shall commence on the date that this Order becomes final, or the date the Member renews her certificate of registration, whichever date is later. The suspension shall run without interruption;

(3) that the Executive Director impose the following terms, conditions and limitations on the Member’s Certificate of Registration, namely:

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The imposed terms, limitations and conditions serve to protect public safety by ensuring the Member participates in appropriate practice consultation and meets specific educational components. The proposed penalty further meets the principles of penalty in that it sends a specific deterrent to the Member and a general deterrent to the membership as a whole that professional misconduct involving the misappropriation of property will not be tolerated. The proposed penalty serves to provide rehabilitation and to denunciate the Member’s conduct. 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 unnecessary expense to the College.

Counsel for the Member requested that the penalty order include reference to the dismissed allegation #3. The panel ruled that the penalty order will contain only the findings of professional misconduct of allegations #1 (a), (b), (c), #2 (a), (b), and #4 (a), (b), (c). The reference to the dismissed allegations was clearly reflected in the Agreed Statement of Fact (paragraph 27) and also in the panel’s oral decision.

I, Anne McKenzie, 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:

Kris Guty, RN

Rosalie Woods, RPN

Grace Isgro-Topping, Public Member

Bill Dowson, Public Member