College of Nurses of Ontario v. Morris, 2011 ONCNO 99842

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Tammy Hedge, RPN Member Barbara Titley, RPN Member Joan King Public Member Margaret Tuomi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO

• and - ANTHONY IAN MORRIS Registration No. IB12606

COUNSEL: MATTHEW SAMMON for College of Nurses of Ontario NO REPRESENTATION for Anthony Morris CHRISTOPHER WIRTH Independent Legal Counsel

Heard: October 26-27, 2011

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 26 and 27, 2011 at the College of Nurses of Ontario (“the College”) at Toronto.

As Anthony Ian Morris (the “Member”) was not present, the hearing recessed for 30 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was still not in attendance.

Counsel for the College provided the panel with evidence that the Member had been properly served with the Notice of Hearing dated May 24, 2011. The panel was satisfied that the Member had received adequate notice of the date, time, place and nature of the hearing, and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated May 24, 2011 are as follows.

1. You have committed an act of professional misconduct, as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.C. 1991, c.32, as amended, in that, in April 2009 you were found guilty of offences that are relevant to your suitability to practise, namely:

a) Break and enter contrary to section 348(1)(b) of the Criminal Code of Canada; and

b) Assault contrary to section 266 of the Criminal Code of Canada.

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(19) of Ontario Regulation 799/93, in that, in 2008 and/or 2009, while employed at [Facility A] and/or [Facility B], you contravened a provision of the Nursing Act, the Regulated Health Professions Act or the regulations under either of those Acts, and in particular, section 11 of the Nursing Act, 1991, S.O. 1991, c.32, as amended, when you:

a) Held yourself out as a registered practical nurse and used the title of nurse after your certificate of registration was suspended; and/or

b) Engaged in the practice of nursing while your certificate of registration was suspended.

3. 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, in or about July 2008, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, by:

a) Falsely declaring to the College of Nurses of Ontario, in your 2008 Reinstatement Form, that you had not presented yourself as a Registered Nurse or Registered Practical Nurse in Ontario since your registration at the College of Nurses was no longer current; and/or

b) Failing to disclose to the College of Nurses of Ontario, in your 2008 Reinstatement Form, that you had worked at [ ] [Facility B] in 2008; and/or

c) Falsely declaring to the College of Nurses of Ontario, in your 2008 Reinstatement Form, that you had worked at [Facility B] from January 2000 to December 2003.

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(37) of Ontario Regulation 799/93, in that 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 with respect to the following incidents:

a) You held yourself out as a registered practical nurse and used the title of nurse after your certificate of registration was suspended; and/or

b) You engaged in the practice of nursing when your certificate of registration was suspended; and/or

c) You provided false and/or misleading information to the College of Nurses of Ontario in your 2008 Reinstatement Form.

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(1) of Ontario Regulation 799/93, in that, while employed at [Facility A], you contravened a standard or standards of practice of the profession or failed to meet the standard or standards of practice of the profession with respect to your handling and/or administration of medications. In particular:

a) On or around May 30, 2009, you administered medication to the wrong resident, [Client A]; and/or

b) On or around June 2, 2009, you administered medication to the wrong resident, [Client B]; and/or

c) On or around June 7, 2009, you failed to administer medications as required to [Client C] and [Client D]; and/or

d) On or around July 14, 2009, you failed to administer medications as required to [Client E]; and/or

e) On or around July 23, 2009, you failed to administer medication as required to [Client F]; and/or

f) On or around July 23, 2009, you failed to administer medication at the correct time and failed to obtain a physician’s order prior to administering medication to [Client G]; and/or

g) On or around July 29, 2009, you administered an incorrect dose of medication to [Client H]; and/or

h) On or around August 8, 2009, you failed to administer and/or document the administration of medication as required to [Client I] and [Client J]; and/or

i) On or around August 8, 2009, you failed to administer medication as required to [Client K].

Member’s Plea

Given that the Member was neither present nor represented, he was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member registered with the College of Nurses as an RPN in June of 1992. His registration has been suspended for non-payment of fees on four separate occasions as follows:

From May 20, 1995 – October 19, 1999

From April 24, 2003 – June 16, 2003

From May 14, 2004 – September 11, 2008

From April 14, 2009 – Present

In November 1993, the Member received recommendations from the Complaints Committee of the College concerning his practices and administration of medications.

In May 2004, the Member received a letter of caution from the President of the College regarding concerns about his administration of medications to clients. At the same time, the Member received a letter from the Executive Director of the College regarding 11 incidents occurring in 2002 regarding rude, unprofessional communication, and failure to administer medications.

In November 2010, a panel of this Discipline Committee found the Member had committed professional misconduct in that he had been found guilty of offences relevant to his suitability to practise (assault causing bodily harm and theft) and he had failed to disclose those findings of guilt on his annual renewal forms for the College. His conduct was found to be disgraceful, dishonourable and unprofessional.

In April 2009, the Member pled guilty before the Ontario Court of Justice regarding criminal code charges of break and entry and assault.

The College received a report from [Facility A] stating that the Member’s employment had been terminated in August 2009, due to concerns about the Member’s medication administration practice.

Issues

1. Were the criminal convictions relevant to the Member’s suitability to practise?

2. Did the Member commit an act of professional misconduct by holding himself out as a Registered Practical Nurse while his certificate of registration was under suspension?

3. Did the Member commit an act of professional misconduct by signing documents that he knew or ought to have known contained false statements?

4. Would the Member’s conduct be regarded by members of the profession to be disgraceful, dishonourable and unprofessional?

5. Did the Member fail to meet the standards of practise with respect to his medication administration at [Facility A]?

The Panel heard evidence from ten witnesses and considered 24 exhibits.

The Evidence

Issue #1. Were the criminal convictions relevant to the Member’s suitability to practise?

A certified copy of a court information and probation order were entered into evidence, showing that on April 3, 2009, the Member was found guilty of breaking and entering an apartment and of committing an assault, contrary to the Criminal Code of Canada. Evidence of the severity of the Member’s actions was found in the certified transcript of the court proceedings before the honourable Justice Campbell on April 3, 2009. The Member and his accomplice pled guilty to charges of assault and theft, which included forcing their way into an apartment and punching, kneeing and choking their victim. They also admitted to stealing a cell phone. This assault perhaps was a result of the Member being kicked out of a party and coming back because he was angry, according to the court transcripts.

Issue #2. Did the Member commit an act of professional misconduct by holding himself out as a Registered Practical Nurse while his Certificate of Registration was under suspension?

[Witness #1]

[Witness #1] has been the Customer Service Coordinator at the College since 2007. He testified that the Member’s registration has been suspended for non-payment of fees on a number of occasions. [Witness #1] confirmed [ ] Exhibits [ ] from the Member’s record file at the College, [including] a print out of the Member’s registration history showing that he has been suspended for non-payment of fees on a number of occasions, namely May 20, 1995 to October 19, 1999; April 24, 2003 to June 16, 2003; May 14, 2004 to September 11, 2008, and April 14, 2009 to Present; [ ] notices of default in fee payments; and suspension letters sent to the Member from the College.

Evidence that the Member did practise during these periods of suspension was found in the court transcript and testimony from witnesses.

[The] Member’s counsel at the criminal proceeding, [ ], indicated that the Member had worked for approximately 5 years at [Facility B] before being laid off in 2008.

[Witness #2]

[Witness #2] has been the owner/administrator of [Facility B] since April 1, 2008. She testified that when she purchased [Facility B], the Member was the Director of Care. As a part of the purchase agreement, she was obliged to pay the Member four years of severance pay for his past years of service, should he be terminated. [Witness #2] confirmed [ ] Records of Employment, and pay stubs from [Facility B] from April 1, 2008 to April 18, 2008.

[Witness #3]

[Witness #3] was the Director of Care at [Facility A] from June 2008 to June 2011. She testified that she hired the Member as an RPN in May 2009. He was employed until August 2009. [A] confirmation letter outlined the terms of his employment.

Issue #3. Did the Member commit an act of professional misconduct by signing documents that he knew contained false statements?

[The] reinstatement form that the Member had signed in July 2008 stating that he had not used the title of RN or RPN during the time his certificate was suspended. The dates indicated in the “Summary of Nursing Employment” section of the form were false. He indicated that his employment at [Facility B] was from January 2000 to December 2003, when in fact he was employed until April 18, 2008, as indicated on the Record of Employment from [Facility B].

[The] Member’s 2008 annual renewal form [ ] was signed by the Member on July 7, 2008, without filling out Section N, which requires the Member to report any findings of guilt. [A] record from the [ ] Police Service indicated criminal convictions of the Member that were not listed on his annual membership renewal.

Issue #4. Would the Member’s conduct be regarded by Members of the profession to be disgraceful, dishonourable and/or unprofessional?

The Member’s long persistent pattern of working while suspended, lying to the College and being found guilty of violent criminal offences indicate that the Member is ungovernable and brings the practice of nursing into disrepute. Disgrace questions suitability. He continued to make medication errors, even after many warnings and suggestions to alter his practice. He showed no respect for the self-regulating body to which he is subject. This conduct would be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Issue #5. Did the Member fail to meet the standards of practice with respect to his medication administration at [Facility A]?

[An exhibit] consisted of medication incident reports, physician’s orders, medication administration records, drug record sheets, master signature sheets, and various notes concerning the clients and staff schedules.

[Witness #3] gave evidence that the Member participated in orientation to familiarize new staff with medication procedures and practices. She spoke to the Member concerning the numerous medication errors and reports and the Member did not dispute the errors.

[Witness #4] testified to one [documented] medication incident. The Member had not given the prescribed medication on the shift prior to hers, as the med was still in the cart when her shift began.

[Witness #5] testified to two [documented] incidents of medication errors. She testified that the Member was not checking medications against packs or pictures and was not concentrating on what he was doing, so was giving wrong medications to wrong clients. On June 2, 2009, there was a medication error and on June 14, 2009, the medication was not given and was still in [the] blister pack.

[Witness #6] testified to four [documented] incidents of medications not being given and still in blister packs on the next shift after the Member’s. [ ]

[Witness #7] (Expert Witness)

[Witness #7] is currently [a] Manager of Professional Practice [ ]. Based on [her] curriculum vitae, the panel accepted [Witness #7] as an expert witness qualified to give opinion evidence on Medication Administration Standards in Long Term Care.

[The expert] referred to the College Publication “Practice Standard” – Medication Revised 2008. She specifically referred to Page 4, indicator (j), Page 5, indicator (n) and (o), and Page 6, indicator (f) (h) and (i).

She was given hypothetical scenarios regarding each medication incident report [ ]. She indicated that in each case, the professional standards were not met by either an error of omission or error of commission. The only exception was [ ] where the Member noticed the error and decided to give the medication and consulted with the physician. She also stated that the documentation was inadequate and in poor practice, in that the medication administration records were “pre-signed” prior to actually administering the medication. College Counsel asked if this Member’s practices are a danger to the public, and [the expert] testified that they were. She stated that the Member’s repeated conduct and pattern was concerning. It is the Member’s responsibility to reflect on knowledge and education.

Final Submissions

College Counsel submitted that the evidence proved that the Member was convicted of criminal offences that were relevant to his suitability to practise due to the dishonest and violent nature of the underlying actions. The Member committed a violent, premeditated assault, which is highly relevant to his suitability to practise.

The Member held himself out as an RPN while suspended, which was proven by the court documents and witness testimony. The Member continually failed to tell the College when he was working as an RPN, and also reported false dates on his membership and reinstatement forms. The Member showed no insight and his criminal activity alone brings the profession of nursing into disrepute. The evidence is clear, cogent and convincing.

College Counsel stated that the evidence before us concerning medication errors proved that the Member was in breach of the standards, some of which were of a less serious nature. Record keeping practices of the facility were not the best. The Member demonstrated a pattern of errors and carelessness.

Decision

The panel recognized that the burden of proof was on the College to prove the allegations made against the Member on the balance of probabilities using clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b); 2(a), (b); 3 (a), (b), (c); 4 (a), (b), (c); and 5 (a) (b) (c) (d) (g) (h) and (i) of the Notice of Hearing. The panel made no findings against the Member on allegations 5 (e) and (f).

On allegation 4, the panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Reasons for Decision

The panel considered the submissions by College Counsel and the evidence presented and is satisfied that the Member had pleaded guilty to and was convicted of various charges under the Criminal Code of Canada that were relevant to the Member’s suitability to practise.

Furthermore, the evidence established that the Member held himself out as a registered practical nurse and engaged in the practice of nursing while suspended. He also signed documents that he knew or ought to have known contained false and misleading statements and continually made medication errors over his entire career. The medication errors included that the Member missed administering medications when required, administered medications to the wrong clients, and signed that he had administered medications when he had in fact not administered them. The panel accepted the expert opinion evidence [ ] that these medication errors were breaches of the standards of practice of the profession.

On allegations 5(e) and 5(f), there was not sufficient evidence to convince the panel that these two incidents were the Member’s errors. However, the remaining allegations in allegation 5 were proven on the balance of probabilities.

Therefore, on careful consideration of the evidence, the panel finds the Member committed the acts of professional misconduct as alleged in the Notice of Hearing, with the exception of 5(e) and 5(f).

The panel finds that the conduct was disgraceful, dishonourable and unprofessional in that the Member’s actions call into question his willingness to discharge the moral obligation that is expected of a nurse. The public relies on a nurse to document honestly and the Member’s repeated instances of falsifying documents and records, and of failing to disclose criminal convictions, cast doubt on his willingness to follow his moral obligation.

Penalty Submissions

Counsel for the College submitted that the Member’s certificate of registration should be revoked immediately.

Penalty Decision

Having considered the facts and the submissions of counsel, the panel directs the Executive Director of the College to revoke the Member’s certificate of registration, effective immediately.

Reasons for Penalty Decision

The panel found that the Member by his actions was ungovernable. The Member’s actions violate the cornerstones of the nursing profession, those being honesty, integrity and trustworthiness. The panel noted that the Member did not appear at the hearing, and there is no evidence that the Member has accounted for his actions. The Member’s absence at this hearing and his numerous unreported criminal convictions show the Member’s disrespect for both the law and the processes of this College.

The penalty of revocation is fair and appropriate in the circumstances. It protects the public and sends a strong message to the membership that this type of behaviour will not be tolerated.

I, Michael Hogard, 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:

Tammy Hedge, RPN

Barbara Titley, RPN

Joan King, Public Member

Margaret Tuomi, Public Member