College of Nurses of Ontario v. Michele Mathewson, 2011 CanLII 99839

minicounsel

PANEL: Angela Verrier, RPN Chairperson Kim Jinkerson, RPN Member Cheryl McMaster, RPN Member John Bald Public Member Margaret Tuomi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO REBECCA JONES for College of Nurses of Ontario

and -

MICHELE MATHEWSON Registration No. JE01320 NO REPRESENTATION for Michele Mathewson

Heard: February 23, 2011

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee of the College of Nurses of Ontario (“the College”) on February 23, 2011 at the JPR Meeting Rooms at Toronto. Michele Mathewson (the “Member”) participated by teleconference.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated December 30th 2010, 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 subsection 1(15) of Ontario Regulation 799/93, in that on or about November 27, 2008, while working at [the Facility], in [ ] Ontario, you issued, in your professional capacity, to [the Facility] a document that you knew or ought to have known contained a false or misleading statement, namely a Police Clearance Certificate dated November 18, 2008.
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 around November 2008, 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, in that you provided [the Facility] with a falsified Police Clearance Certificate.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1 and 2 in the Notice of Hearing. The panel received a written plea inquiry which was signed by the Member. The panel also 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.

THE MEMBER

Michele Mathewson (the “Member”) is a Registered Practical Nurse (“RPN”) who has been registered with the College of Nurses of Ontario (the “College”) since February 24, 2005. The Member’s status is active and she is currently working [ ].

THE MEMBER’S REGISTRATION HISTORY

In 1999, the Member was convicted of fraud (under $5,000) in relation to a bounced cheque. The Member obtained her registration with the College following a decision of the Registration Committee exempting her from the requirement that an “applicant must not have been found guilty of a criminal offence.”

THE FACILITY

The Member worked as an RPN at [the Facility] from September [ ] 2008 to November [] 2008, when the Member resigned in lieu of termination for breach of trust.
The Facility consists of four sites [ ] that provide a broad range of programs and services, including: emergency, inpatient medical, inpatient allied health services and diagnostic services.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

When the Facility hired the Member [in September 2008], it advised her that she was required to provide a Police Clearance Certificate (“PCC”) within 30 days of her date of hire. The Member failed to do so.
After the Facility gave the Member an additional two weeks to comply, the Member provided the Facility with a very poorly photocopied PCC from 2005. The Facility returned the 2005 PCC to the Member advising that it was not acceptable. The Facility again gave the Member additional time to comply, advising that she must provide an original PCC from 2008 within one week.
On November 24, 2008, the Facility contacted the Member to advise that the original PCC from 2008 was due to be submitted.
On November 27, 2008, the Member submitted a PCC from [an] OPP Office dated November 18, 2008 to the Facility’s HR office. It was immediately apparent to the Facility that the document had been altered.
On that same day, a meeting was held at the Facility with the Member, a union representative, the Facility’s Director of Patient Care and the Facility’s HR Consultant. The Member was shown the PCC and asked for an explanation. The Member denied altering the document and stated that she had no criminal record and nothing to hide, or words to that effect.
After consulting with her union representative, the Member then stated that her husband must have altered the PCC and she revealed a 1999 conviction for fraud under $5000.
The Member authorized the [ ] OPP Records Office to disclose a copy of the PCC directly to the Facility. The PCC confirmed the Member’s 1999 conviction for fraud under $5000.
The Facility accepted the Member’s resignation in lieu of termination for breach of trust.

ADMISSIONS

The Member acknowledges that she failed to meet her obligations as a self-regulated health care professional. Specifically, the Member admits that she has 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, on or about November 27, 2008, while working at the Facility, she issued, in her professional capacity, to the Facility a document that she knew or ought to have known contained a false or misleading statement, namely a PCC dated November 18, 2008.
The Member admits that she has 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 around November 2008, she 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, in that she provided the Facility with a falsified PCC.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing. Specifically, the panel finds that the Member while acting in a professional capacity provided a Police Clearance Certificate dated November 18, 2008 to her employer, [the Facility], which she knew or ought to have known contained a false or misleading statement. Further, the panel finds that the Member engaged in conduct and [performed] an act relevant to the practi[c]e of nursing that, having regard to all the circumstances, would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

The panel deliberated and after due consideration of all the facts and the Member’s admission to the allegations, unanimously determined that the Agreed Statement of Facts substantiated the allegations of professional misconduct.

The panel found that the Member’s conduct would reasonably be regarded as dishonourable and unprofessional as it compromised the integrity of the nursing profession and was relevant to the practice of nursing.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Order had been agreed upon. The Joint Submission as to Order requested that the panel make an order as follows:

Requiring the Member to appear before the Panel to be reprimanded on a date to be arranged but, in any event, within three (3) months of the date of the Order.
Directing the Executive Director to suspend the Member’s certificate of registration for a period of one (1) month. In the event that the Member fails to pay her annual fees and her certificate of registration becomes suspended for non-payment of fees, any portion of this suspension which has not yet been served shall be served commencing on the day that the Member reinstates her certificate of registration.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

(a) Requiring the Member to attend one (1) meeting with a Nursing Expert who has expertise in self-regulation (the “Expert”) at the [Expert]’s convenience and prior to the Member returning to practice. In any event, the Member shall meet with the Expert within three (3) months of the date this Order becomes final to discuss:

i. The conduct for which she was found to have committed professional misconduct;

ii. The potential consequences of that conduct to her clients, her colleagues, the profession, and herself; and

iii. The Member’s responsibilities as a member of a self-regulated profession.

(b) Prior to the Member’s meeting with the Expert referred to in paragraph 3(a), the Member shall:

i. Review the following College publications and complete a Reflective Questionnaire for each publication: Ethics and Professional Standards, 2002;

ii. Complete the College’s online learning modules relating to Ethics and Professional Standards, and complete the Online Participation Forms relevant to each module;

iii. Bring the completed Reflective Questionnaires and Online Participation Forms to her meeting with the Expert;

iv. Deliver to the Expert copies of the completed Reflective Questionnaires and Online Participation Forms at least seven (7) days prior to her meeting with the Expert. If these materials are not received by the Expert in accordance with this provision, the Expert can cancel the meeting, even if cancellation results in the Member breaching the terms, conditions or limitations on her certificate of registration.

(c) On [ ] completion of all meetings referred to in sub-paragraph 3(a) above, the Member shall request and make best efforts to ensure that the Expert forward a report to the Director within forty-five (45) days of the completion of the meetings. The report from the Expert shall outline the dates of the Member’s meetings with the Expert, together with the Expert’s assessment of the Member’s insight into her behaviour.

(d) For a period of twelve (12) months following the date upon which the Member returns to the practice of nursing, the Member shall:

i. Notify the Director 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;

ii. Provide her employer(s) with a copy of the Panel’s written Decision and Reasons, together with any attachments. If the Decision and Reasons are not available on the day the Member returns to practice, the Member shall provide her employer(s) with a copy of the Decision and Reasons within fourteen (14) days of it becoming available; and

iii. Only practise for an employer who agrees to and does write to the Director within fourteen (14) days of the commencement or resumption of the Member’s employment in any nursing position to provide the Director with the following:

(a) Confirmation that the employer has received a copy of the documents referred to in sub-paragraph 3(d)(ii) above; and

(b) 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.

All deliveries and notifications to be given by or on behalf of the Member to the College, the Director and her employer(s) pursuant to these terms are to be made by verifiable method of delivery, the proof of which the Member shall retain.

Penalty Submissions

Counsel for the College submitted that the penalty proposed is fair, reasonable and in the public interest. The proposed penalty provides both specific and general deterrence to the Member and the profession and ensures that public trust in the profession is maintained. Counsel submitted that the proposed order provides for rehabilitation and monitoring of the Member, through the meeting with the nursing expert, the completion of the Professional and Ethics Standards and the notification of all present and future employers for the next 12 months.

Counsel submitted that the Member’s acts went beyond the bounds of unprofessionalism and were dishonourable because of the elements of dishonesty, deceit and moral failing. The panel’s finding that the Member’s conduct was dishonourable and unprofessional shows the membership that this type of conduct is unacceptable. The actions of the Member were unprofessional and included a disregard for the nursing profession and went against the good judgment required of all members.

Mitigating factors were that the Member admitted to the allegations, cooperated with the College during the investigation and had no prior disciplinary history.

Aggravating factors were the seriousness of the criminal offen[c]e and the act of dishonesty by the Member.

Penalty Decision

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

The Member shall appear before the Panel to be reprimanded on a date to be arranged but, in any event, within three (3) months of the date of the Order.
The Executive Director is directed to suspend the Member’s certificate of registration for a period of one (1) month. In the event that the Member fails to pay her annual fees and her certificate of registration becomes suspended for non-payment of fees, any portion of this suspension which has not yet been served shall be served commencing on the day that the Member reinstates her certificate of registration.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) Requiring the Member to attend one (1) meeting with a Nursing Expert who has expertise in self-regulation (the “Expert”) at the [Expert]’s convenience and prior to the Member returning to practice. In any event, the Member shall meet with the Expert within three (3) months of the date this Order becomes final to discuss: