College of Nurses of Ontario v. Helen Bosley, 2008 CanLII 89812

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Isgro-Topping Chairperson

Lori McInerney, RN Member

George Rudanycz, RN Member

Claudette Drapeau, RPN Member

Joan King Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) KAREN JONES for

) College of Nurses of Ontario

• and - )

HELEN BOSLEY ) RICHARD SHEKTER for

Registration No. 8831398 ) Helen Bosley

) Heard: September 15, 2008

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on September 15, 2008 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Helen Bosley (the “Member”) as stated in the Notice of Hearing dated July 14, 2008, are as follows.

1. 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 in or about August, 2005, while employed as a Registered Nurse at [the facility], 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 as disgraceful, dishonourable or unprofessional, and in particular, you:

a) provided information, which you knew or ought to have known was confidential, from the 2004 Extended Class Registration Exam, to candidates of the September 2005 exam; and/or

2. 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(24) of Ontario Regulation 799/93, in that in or about August 2005, while employed as a Registered Nurse at [the facility], you failed to abide by a written undertaking given by you to the College dated September 13, 2004.

Member’s Plea

Helen Bosley admitted the allegations set out in paragraphs numbered 1 and 2 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 which provided as follows.

MEMBER’S BACKGROUND

1. The Member, Helen Bosley (the “Member”) was initially registered in the RN category at the College of Nurses of Ontario (the “College”) in 1988.

2. In 2004, the Member successfully completed the Council of Ontario University Programs in Nursing (“COUPN”) Nurse Practitioner education program [ ] and passed the Extended Class Registration Exam (“ECRE”). She has been registered in the Extended Class (“EC”) at the College since 2004.

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

INCIDENTS RELEVANT TO ALLEGATIONS 1 AND 2

4. On September 13, 2004, prior to writing her ECRE, the Member signed an Undertaking/Agreement with the College. The Undertaking/Agreement confirms that the Member:

a) acknowledges that she understands the importance of the College of Nurses of Ontario maintaining confidentiality with respect to the content of the Extended Class Registration Examination (ECRE), including all cases, questions and potential answers, so that the examination can be used in the future in respect of other applicants for registration in the Extended Class;

b) acknowledges that her entitlement to participate in the Examination is dependent upon her signing the Undertaking Agreement;

c) undertakes and agrees that she shall maintain confidentiality with respect to all aspects of the Examination and, without limiting her responsibility in this regard, she shall not communicate with any person other than an employee of the College of Nurses of Ontario in respect of any aspect of the Examination, including the cases, questions and potential answers; and

d) acknowledges and agrees that her violation of this Undertaking/ Agreement would constitute an act of professional misconduct, which could result in [her] being referred in respect of that conduct to the Discipline Committee of the College of Nurses of Ontario.

5. In January 2005, students in the Nurse Practitioner (“NP”) Program at [the educational facility] formed a study group (“Study Group”) of eleven people who were scheduled to write the ECRE on September 12, 2005.

6. In August 2005, a Study Group meeting was held at the home of one of the Study Group members. All but one Study Group member attended.

7. The Member attended the Study Group meeting to conduct an ECRE “prep session”.

8. The Member began the “prep session” by offering exam writing tips. For example, the Member recommended to the Study Group that they get a good night’s sleep prior to writing the exam, that they bring sugary snacks to the exam, and they read the fine print on specific guidelines.

9. The Member then began to read from some pieces of paper that she brought with her. She provided the students with information about many questions from the 2004 ECRE, including specific multiple choice questions and answers, short answer questions and answers, topics and case studies.

10. The Member ended the session by wishing the Study Group members good luck on their exam.

11. After the “prep session”, one of the members of the Study Group compiled a summary of the information provided by the Member and circulated it amongst the Study Group and to other NP students outside of the Study Group.

12. On September 12, 2005, all of the members of the Study Group wrote the ECRE.

13. All of the students from the Study Group passed the ECRE.

14. The Member has commenced a remediation program where she will meet with [ ] an expert in nursing ethics, and review educational materials, College standards and guidelines. The Member’s first meeting with [the expert] took place on September 8, 2008. A second meeting between the Member and [the expert] is scheduled for September 18, 2008.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

15. The Member admits that she committed an act of professional misconduct as set out in Allegation 1 of the Notice of Hearing, and 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 the Ontario Regulation 799/93, in that in or about August, 2005, while employed as a Registered Nurse at [the facility], she engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular, she:

a) provided information which she knew or ought to have known was confidential, from the 2004 Extended Class Registration Exam, to candidates of the September 2005 exam.

16. The Member admits that she committed an act of professional misconduct as set out in Allegation 2 of the Notice of Hearing and 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(24) of the Ontario Regulation 799/93, in that in or about August 2005, while employed as a Registered Nurse at [the facility], she failed to abide by a written undertaking given by her to the College dated September 13, 2004.

Decision and Reasons for 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 and 2 of the Notice of Hearing.

As to paragraph 1 of the Notice of Hearing, the panel finds that the Member engaged in dishonourable and unprofessional conduct. Although the Member pled to disgraceful, dishonourable or unprofessional conduct, the panel found the Member’s conduct was not disgraceful but would be regarded by members of the profession as dishonourable and unprofessional. The Member was dishonest in providing information to students that she had agreed in an undertaking with the College to keep confidential. The Member’s conduct would be regarded by members of the profession as unprofessional in that she breached confidentiality, behaving contrary to the expected standards of the profession. The Member’s conduct was not found to be disgraceful in that her conduct did not cast serious doubt on her moral fitness.

As to paragraph 2 of the Notice of Hearing, the panel finds that the facts support a finding of professional misconduct in that the Member failed to abide by a written undertaking given by her to the College.

Penalty Submissions

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.

HELEN BOSLEY (“THE MEMBER”) AND THE COLLEGE OF NURSES OF ONTARIO (“THE COLLEGE”) JOINTLY SUBMIT that, in view of the circumstances set out in the Agreed Statement of Fact, the Member’s admissions of professional misconduct and the Panel’s findings of professional misconduct, the Panel of the Discipline Committee (“the Panel”) should make an Order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded at a date to be arranged but, in any event, within three (3) months of the date this Order becomes final;

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

a) The Member shall attend meetings with an Expert with expertise in Nursing Ethics (“the Expert”) approved by the Director of Investigations and Hearings (“the Director”) of the College. All costs associated with these meetings shall be borne by the Member. The meetings shall involve two (2) sessions. The subject of the meetings with the Expert will include the following:

i. “Confidentiality” in its broadest scope;

ii. The conduct for which the Member was found to have committed professional misconduct;

iii. The consequences of this behaviour in the nursing context;

iv. The responsibilities the Member has as a regulated health professional;

v. Strategies for making the inappropriate conduct unlikely to occur in the future; and

vi. Any other ethical issues arising from the incident for which the Member was found to have committed professional misconduct.

b) Before commencing the second meeting with the Expert referred to in paragraph 2 a., above, the Member shall:

i. provide the Expert with a copy of the Discipline Panel’s Order, the Agreed Statement of Facts, the Joint Submission on Penalty, or the Panel’s written Decisions and Reasons together with any attachments, if available, delivered through the use of a verifiable method of delivery, the proof of which the Member shall retain;

ii. review the College Standards and Guidelines – Professional Standards, Revised 2002; Ethics; and the Practice Guideline – Supporting Learners; and

iii. Complete all preparatory work delegated by the Expert.

c) During the Member’s second meeting with the Expert, the Member will also be prepared to discuss any work assigned by the Expert, the Member’s insight into her behaviour, any ongoing learning needs, and how she has implemented the strategies recommended by the Expert at their previous meeting.

d) Once the Member has completed all meetings with the Expert referred to in paragraphs a, b and c, above, the Member must ensure that the Director receives from the Expert a report in which the Expert confirms:

i. That the Member has attended the meetings with the Expert;

ii. That the subject of the meetings were “Confidentiality” in its broadest scope; the conduct for which the Member was found to have committed professional misconduct; the consequences of this behaviour in the nursing context; the responsibilities the Member has as a regulated health professional; strategies for making the inappropriate conduct unlikely to occur in the future; any other ethical issues arising from the incident for which the Member was found to have committed professional misconduct;

iii. That the Member has completed all assignments, including any preparatory work delegated by the Expert; and

iv. His/her assessment of the Member’s insight into her behaviour.

e) The Expert’s report shall be provided to the Director by the Member through the use of a verifiable method of delivery, the proof of which the Member shall retain.

f) Once the Member has completed the above requirements, she will meet with the Executive Director of the College, or her delegate. The Member will be prepared to discuss the meetings with the Expert; the conduct for which she was found to have committed professional misconduct; the potential consequences of that conduct to her clients, her colleagues and her profession; and the Member’s responsibilities as a member of a self-regulated profession.

g) The Member shall return her current Annual Payment Card to the College within fourteen (14) days of the date that this Order becomes final so that a new Annual Payment Card, indicating that the Member’s certificate of registration is subject to terms, conditions and/or limitations, can be issued. The Member’s Annual Payment Card shall be delivered to the College by a verifiable method of delivery, the proof of which the Member shall retain.

h) The results of this proceeding, including the Member’s name, be included in the register and the results be public pursuant to section 23(5) of the Health Professions Procedural Code of the Nursing Act , 1991. The Panel order that the College, in publishing the decision and reasons or summary of the decision and reasons, shall publish the name of the member who was the subject of the proceedings, as per the Member’s request, pursuant to section 56(2)(b) of the Health Professions Procedural Code of the Nursing Act, 1991.

Both Counsel for the College and the Member submitted that the Joint Submission on Penalty meets the goals of penalty including specific and general deterrence, protection of the public and remediation.

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 at a date to be arranged but, in any event, within three (3) months of the date this Order becomes final;

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

a) The Member shall attend meetings with an Expert with expertise in Nursing Ethics (“the Expert”) approved by the Director of Investigations and Hearings (“the Director”) of the College. All costs associated with these meetings shall be borne by the Member. The meetings shall involve two (2) sessions. The subject of the meetings with the Expert will include the following:

i. “Confidentiality” in its broadest scope;

ii. The conduct for which the Member was found to have committed professional misconduct;

iii. The consequences of this behaviour in the nursing context;

iv. The responsibilities the Member has as a regulated health professional;

v. Strategies for making the inappropriate conduct unlikely to occur in the future; and

vi. Any other ethical issues arising from the incident for which the Member was found to have committed professional misconduct.

b) Before commencing the second meeting with the Expert referred to in paragraph 2 a., above, the Member shall:

i. provide the Expert with a copy of the Discipline Panel’s Order, the Agreed Statement of Facts, the Joint Submission on Penalty, or the Panel’s written Decisions and Reasons together with any attachments, if available, delivered through the use of a verifiable method of delivery, the proof of which the Member shall retain;

ii. review the College Standards and Guidelines – Professional Standards, Revised 2002; Ethics; and the Practice Guideline – Supporting Learners; and

iii. Complete all preparatory work delegated by the Expert.

c) During the Member’s second meeting with the Expert, the Member will also be prepared to discuss any work assigned by the Expert, the Member’s insight into her behaviour, any ongoing learning needs, and how she has implemented the strategies recommended by the Expert at their previous meeting.

d) Once the Member has completed all meetings with the Expert referred to in paragraphs a, b and c, above, the Member must ensure that the Director receives from the Expert a report in which the Expert confirms:

i. That the Member has attended the meetings with the Expert;

ii. That the subject of the meetings were “Confidentiality” in its broadest scope; the conduct for which the Member was found to have committed professional misconduct; the consequences of this behaviour in the nursing context; the responsibilities the Member has as a regulated health professional; strategies for making the inappropriate conduct unlikely to occur in the future; any other ethical issues arising from the incident for which the Member was found to have committed professional misconduct;

iii. That the Member has completed all assignments, including any preparatory work delegated by the Expert; and

iv. His/her assessment of the Member’s insight into her behaviour.

e) The Expert’s report shall be provided to the Director by the Member through the use of a verifiable method of delivery, the proof of which the Member shall retain.

f) Once the Member has completed the above requirements, she will meet with the Executive Director of the College, or her delegate. The Member will be prepared to discuss the meetings with the Expert; the conduct for which she was found to have committed professional misconduct; the potential consequences of that conduct to her clients, her colleagues and her profession; and the Member’s responsibilities as a member of a self-regulated profession.

g) The Member shall return her current Annual Payment Card to the College within fourteen (14) days of the date that this Order becomes final so that a new Annual Payment Card, indicating that the Member’s certificate of registration is subject to terms, conditions and/or limitations, can be issued. The Member’s Annual Payment Card shall be delivered to the College by a verifiable method of delivery, the proof of which the Member shall retain.

h) The results of this proceeding, including the Member’s name, be included in the register and the results be public pursuant to section 23(5) of the Health Professions Procedural Code of the Nursing Act, 1991. The Panel order that the College, in publishing the decision and reasons or summary of the decision and reasons, shall publish the name of the member who was the subject of the proceedings, as per the Member’s request, pursuant to section 56(2)(b) of the Health Professions Procedural Code of the Nursing Act, 1991.

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.

The Member’s conduct compromised the integrity of the nurse practitioners’ exam as well as public safety by possibly allowing an unqualified nurse to pass the examination.

The penalty’s focus on remediation will ensure that the Member clearly understands the professional and ethical standards of the profession and will not repeat this behaviour in the future.

I, Grace Isgro-Topping, Public Member 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:

Lori McInerney, RN

George Rudanycz, RN

Claudette Drapeau, RPN

Joan King, Public Member