College of Nurses of Ontario v. Paul Restivo, 2008 ONCNO 89786

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Deanne Barber, RPN Chairperson Agnese Bianchi, RN Member Sandra Trubyk, RN Member Linda Bracken Public Member Joan King Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MARIE HENEIN for ) College of Nurses of Ontario

• and - )

PAUL RESTIVO ) LONNY ROSEN for Registration No.9807132 ) Paul Restivo

) Heard: April 2, 2008

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on April 2, 2008 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The panel was presented with the Notice of Hearing dated February 27, 2008 [ ]. An amendment was made to the Notice of Hearing at page 2, sub-para (iii) in that the date mentioned in the paragraph was changed from July 4, 2001 to January 27, 2005. The panel approved the amendment.

The allegations against Mr. Paul Restivo (the “Member”) as stated in the Notice of Hearing 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(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:

(i) between 1998 and 1999, you did commit the criminal offence of possession of stolen property over $5000.00 in relation to a 1998 Dodge motor vehicle contrary to the Criminal Code of Canada; and/or

(ii) between 1998 and 1999, you did commit three criminal offences of possession of stolen property over $5000.00 in relation to a 1999 PACE car carrier trailer; a 1997 Chevrolet pickup truck and a 1998 Continental trailer contrary to the Criminal Code of Canada; and/or

(iii) between 2002 and 2003, you did commit five criminal offences of possession of stolen property over $5000.00 in relation to component parts of a 2001 Dodge Ram pick-up truck; a 2002 Ford F-250 pick up truck; a 2000 Dodge Durango truck; and a 1999 Ford F-350 pick-up truck contrary to the Criminal Code of Canada.

(2) You committed an act or acts or professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32 as amended, in that:

(i) on April 19, 2001, you were found guilty of the offence of possession of stolen property over $5000.00 contrary to the Criminal Code of Canada; and/or

(ii) on May 24, 2001, you were found guilty of three offences of possession of stolen property over $5000.00 contrary to the Criminal Code of Canada; and/or

(iii) on January 27, 2005, you were found guilty of five offences of possession of stolen property over $5000.00 contrary to the Criminal Code of Canada

Member’s Plea

Mr Paul Restivo admitted the allegations 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. In addition, the panel received a written 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. The Member, Paul Restivo (“the Member”), is a Registered Nurse (“RN”). The Member has been registered with the College of Nurses of Ontario (“the College”) since January 7, 1998.

2. The Member is employed at [the facility] in [ ], Ontario as a RN. The Member commenced work on or about June 2000. The Member works on the Crisis Assessment and Stabilization Unit. This has been the Member’s only nursing related employment.

3. The Member has no prior history of discipline at the College.

INCIDENTS RELEVENT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

4. The Member graduated from the nursing program at [ ] in June 1997. He applied for registration with the College shortly after graduation.

5. In his application for registration with the College, the Member reported that he had been charged with theft under $1000.00 sometime in 1990. On September 29, 1997, the Registration Committee granted the Member an exemption from the requirement that an applicant “must not have been found guilty of a criminal offence or an offence under the Narcotic Control Act (Canada) or the Food and Drugs Act (Canada)” and provided him a certificate of registration.

6. Following the Member’s graduation from his nursing program in 1997, he did not work as a nurse. He went into business with a friend, working as a registered automobile dealer, purchasing and repairing damaged vehicles.

7. On March 1, 1999, the [ ] Police became involved in an investigation into a stolen vehicle. The police determined that a stolen 1999 Dodge motor vehicle was in the Member’s possession.

8. On April 19, 2001, the Member pleaded guilty to one count of possession of property obtained by a crime over $5000.00. The Member received a suspended sentence and 12 months’ probation. [ ]

9. On September 5, 1999, the Member was arrested for possession of stolen property including a 1999 PACE car trailer, a 1997 Chevrolet pickup truck and a 1998 Continental trailer. On May 24, 2001, the Member was convicted at trial on three counts of possession of property obtained by crime over $5000.00. On July 4, 2001, the Member received a 12 month conditional sentence and 2 years probation. [ ]

10. In 2003, the Member, while on probation for the prior possession of stolen property offences, was once again charged with five counts of possession of property obtained by crime over $5000.00. The Member was found in possession of component parts of a stolen 2001 Dodge Ram pick-up truck, a 1999 Ford F-350 pick-up truck and a 2000 Dodge Durango truck. Also, the Member was found in possession of two stolen 2002 Ford F-250 pick-up trucks. The Member pleaded guilty to these counts on January 27, 2005. He received a sentence of 7 1/2 months in custody on each count, to be served concurrently. [ ]

11. On March 16, 2005, the Member completed the College of Nurses of Ontario Self-Reporting Form, indicating that he had pled guilty to possession of stolen property (5 counts) in February 2005, and that he was sentenced on April 6, 2005. [ ] In addition in 2002, the Member self reported his conviction in 2001 on the Self-Reporting Form.

12. The College obtained additional information concerning the Member’s other convictions through the course of their investigation.

13. The Member has completed his Bachelor of Nursing degree [ ]. He lives in [ ] and continues to be employed at [the facility].

ADMISSIONS OF PROFESSIONAL MISCONDUCT

14. The Member admits that he committed an act of professional misconduct, as provided by sub-section 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:

(a) Between 1998 and 1999, he did commit the criminal offence of possession of stolen property over $5000.00 in relation to a 1998 Dodge motor vehicle contrary to the Criminal Code Criminal Code of Canada; and/or

(b) Between 1998 and 1999, he did commit three criminal offences of possession of stolen property over $5000.00 in relation to a 1999 PACE car carrier trailer; a 1997 Chevrolet pickup truck and a 1998 Continental trailer contrary to the Criminal Code Criminal Code of Canada; and/or

(c) Between 2002 and 2003, he did commit five criminal offences of possession of stolen property over $5000.00 in relation to component parts of a 2001 Dodge Ram pick-up truck; and a 2002 ford F-250 pick-up truck; a 2000 Dodge Durango truck; and a 1999 Ford F-350 pick-up truck contrary to the Criminal Code Criminal Code of Canada.

15. The Member committed an act or acts of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32 as amended, in that on April 19, 2001, May 24, 2001, and January 27, 2005, he was found guilty of multiple counts of possession of stolen property over $5000.00 contrary to Criminal Code of Canada.

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 acts of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing in that:

1. he engaged in conduct or performed 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 1998 and 2003, he did commit multiple criminal offences of possession of stolen property over $5000.00 contrary to the Criminal Code Criminal Code of Canada; and

2. the Member committed acts of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32 as amended, in that on April 19, 2001, May 24, 2001, and January 27, 2005, he was found guilty of multiple counts of possession of stolen property over $5000.00 contrary to the Criminal Code Criminal Code of Canada.

Reasons for Decision

The panel accepted the Member’s guilty plea and accepted that the Member had been found guilty of criminal charges as outlined in the Notice of Hearing [ ] and the Agreed Statement of Fact [ ].

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.

Paul Restivo (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 (“the Panel”) should make an Order as follows:

1. Requiring the Member to appear before a Panel of the Discipline Committee to be reprimanded, at a date to be arranged, but in any event, within three (3) 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 seven (7) months. The suspension shall take effect on the date this Order becomes final and shall continue to run without interruption.
3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration:

a. The Member shall successfully complete, at his own expense, a course approved by the Director of Investigations and Hearings (“the Director”) in nursing ethics from a post-secondary educational institution. Such course is to be completed within one year of the date the Order becomes final, or such further time as may be permitted by the Director.

b. Until such time as the Member provides proof of successful completion of the course in ethics to the Director, proof of which is to be delivered through the use of a verifiable method of delivery, the proof of which the Member shall retain, the Member will only practise nursing for an employer where other registered nurses are employed and will not practise independently or in the community.

c. The Member shall refrain from working in any capacity where he has control and/or responsibility over the finances and/or the financial affairs of clients.

d. The Member shall refrain from working in any capacity where he has control and/or responsibility over the finances and/or the financial affairs of his employer(s), until and unless he provides his employer(s) with a copy of the Panel’s Penalty Order together with the Agreed Statement of Fact, Joint Submission on Penalty and any attachments to those documents or, if available, the Panel’s written Decision and Reasons, together with any attachments, and provides proof of its delivery to his employer(s) to the Director, to be delivered by a verifiable method of delivery, the proof of which the Member shall retain.

i. the Member will only practise for an employer(s) who agrees to and does write to the Director, prior to the Member commencing employment where he has control and/or responsibility over the finances and/or the financial affairs of his employer(s), as described in 3 (d), above, providing the Director with confirmation that the employer(s) received a copy of the documents referred to in paragraph 3 (d), above.

e. For a period of twenty-four (24) months following the date upon which the Member returns to the practice of nursing, the Member shall:

i. notify the Director of Investigations and Hearings of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which the Member shall retain;

ii. provide all of his employer(s) with a copy of the Panel’s Penalty Order together with the Agreed Statement of Fact, Joint Submission on Penalty and any attachments to those documents or, if available, the Panel’s written Decision and Reasons, together with any attachments, and provide proof of its delivery to the employer(s) to the Director within fourteen (14) days from the date the Member commences employment, to be delivered by a verifiable method of delivery, the proof of which the Member shall retain.

iii. only practise for an employer (s) who agrees to, and does, write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment, providing the Director with the following:

1. confirmation that the employer(s) has received a copy of the documents referred to in paragraph 3(e)(ii), above, within fourteen (14) days from the date the member commences employment; and

2. confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of practice of the profession.

Counsel for the College presented the panel with two previous decisions of this College in support of the joint submission, showing that the proposed penalty was within the range of other discipline decisions. College Counsel also stated this penalty addresses the main objectives of public protection, general deterrence and specific deterrence.

Aggravating circumstances were:

• the conduct displayed a pattern of dishonesty;

• the Member had not been deterred, despite the penalties imposed by the court;

• there appeared to be a lack of remorse; and

• the Member committed his last offence while on probation

Mitigating circumstances were:

• no prior discipline with the College;

• the Member is now gainfully employed as a nurse;

• the Member did admit his conduct in this proceeding;

• the Member agreed to a significant penalty; and

• the Member’s employer is aware of the misconduct and has agreed to continue his employment after the suspension

Counsel for the Member agreed with the submissions of College Counsel and presented the panel with a Brief of Letters of Support [ ] from colleagues and supervisors at the [facility] in [ ], where the Member is presently employed. He submitted that the theme of all the letters was that the Member was compassionate, respectful, a leader and a great nurse.

Counsel for the Member also stated that the incidents happened five years ago.

Penalty Decision

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

1. the Member to appear before a Panel of the Discipline Committee to be reprimanded, at a date to be arranged, but in any event, within three (3) 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 seven (7) months. The suspension shall take effect on the date this Order becomes final and shall continue to run without interruption.

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

a. The Member shall successfully complete, at his own expense, a course approved by the Director of Investigations and Hearings (“the Director”) in nursing ethics from a post-secondary educational institution. Such course is to be completed within one year of the date the Order becomes final, or such further time as may be permitted by the Director.

b. Until such time as the Member provides proof of successful completion of the course in ethics to the Director, proof of which is to be delivered through the use of a verifiable method of delivery, the proof of which the Member shall retain, the Member will only practise nursing for an employer where other registered nurses are employed and will not practise independently or in the community.

c. The Member shall refrain from working in any capacity where he has control and/or responsibility over the finances and/or the financial affairs of clients.

d. The Member shall refrain from working in any capacity where he has control and/or responsibility over the finances and/or the financial affairs of his employer(s), until and unless he provides his employer(s) with a copy of the Panel’s Penalty Order together with the Agreed Statement of Fact, Joint Submission on Penalty and any attachments to those documents or, if available, the Panel’s written Decision and Reasons, together with any attachments, and provides proof of its delivery to his employer(s) to the Director, to be delivered by a verifiable method of delivery, the proof of which the Member shall retain.

i. the Member will only practise for an employer(s) who agrees to and does write to the Director, prior to the Member commencing employment where he has control and/or responsibility over the finances and/or the financial affairs of his employer(s), as described in 3 (d), above, providing the Director with confirmation that the employer(s) received a copy of the documents referred to in paragraph 3 (d), above.

e. For a period of twenty-four (24) months following the date upon which the Member returns to the practice of nursing, the Member shall:

i. notify the Director of Investigations and Hearings of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which the Member shall retain;

ii. provide all of his employer(s) with a copy of the Panel’s Penalty Order together with the Agreed Statement of Fact, Joint Submission on Penalty and any attachments to those documents or, if available, the Panel’s written Decision and Reasons, together with any attachments, and provide proof of its delivery to the employer(s) to the Director within fourteen (14) days from the date the Member commences employment, to be delivered by a verifiable method of delivery, the proof of which the Member shall retain.

iii. only practise for an employer (s) who agrees to, and does, write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment, providing the Director with the following:

1. confirmation that the employer(s) has received a copy of the documents referred to in paragraph 3(e)(ii), above, within fourteen (14) days from the date the member commences employment; and

2. confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of practice of the profession.

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 proposed penalty has accepted responsibility for his actions. The penalty is significant, and is a general deterrent to the nursing profession while providing remediation and education for the Member. It ensures public protection.

The panel concluded that the public trust, integrity and honesty are core values that each and every nurse must uphold in order to maintain a high esteem of the nursing profession.

I, Deanne Barber, 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:

Agnese Bianchi, RN

Sandra Trubyk, RN

Linda Bracken, Public Member

Joan King, Public Member