College of Nurses of Ontario v. Florence Agyekum, 2012 CanLII 100086

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: John Bald, Chairperson Agnese Bianchi, RN Member Miranda Huang, RN Member Kim Jinkerson, RPN Public Member Gino Cucchi, Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO (EMILY LAWRENCE for College of Nurses of Ontario)

• and -

FLORENCE AGYEKUM Registration No. 0289231 (ROBERT STEPENSON for Florence Agyekum)

Heard: September 19, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on September 19, 2012, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Florence Agyekum (the “Member”) as stated in the Notice of Hearing [ ] dated July 24, 2012, are as follows:

IT IS ALLEGED THAT:

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(20) of Ontario Regulation 799/93, in that, while registered as a member of the College of Nurses of Ontario, you failed to appear before a panel of the Inquiries, Complaints and Reports Committee to be orally cautioned on or about March 9, 2011, pursuant to a decision of the Inquiries, Complaints and Reports Committee, dated April 14, 2010; 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(37) of Ontario Regulation 799/93, in that, while registered as a member of the College of Nurses of Ontario, 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 of the profession as disgraceful, dishonourable or unprofessional, in particular, you:

(a) failed to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned on or about March 9, 2011, pursuant to a decision of the Inquiries, Complaints and Reports Committee, dated April 14, 2010;

(b) between December 2010 and March 2011, failed to respond in a timely way to the attempts of the College of Nurses of Ontario to schedule your attendance before the Inquiries, Complaints and Reports Committee to receive an oral caution pursuant to a decision of the Inquiries, Complaints and Reports Committee, dated April 14, 2010; and/or

(c) failed to advise the College of Nurses of Ontario in a timely manner that your telephone number had changed and/or was disconnected in March or April 2011.

Member’s Plea

The Member admitted the allegations 1, 2(a), (b) and (c) as set out 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. A signed Plea Inquiry was submitted [ ].

Agreed Statement of Fact

Counsel for the College advised the panel that an agreement had been reached on the facts and introduced an Agreed Statement of Facts [ ], which provides as follows:

THE MEMBER

1. Florence D. Agyekum (the “Member”) received a diploma [ ] in 2002.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on March 7, 2003.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The 2008 Complaint

3. In 2008, the College received a complaint regarding the Member’s treatment of an elderly client while working in the intensive care unit at [the Facility].

4. The College appointed an investigator and a panel of the Inquiries, Complaints and Reports Committee (“ICRC”) at the College reviewed the investigator’s report.

5. The College sent several letters advising the Member of the complaint and the investigation, some of which were returned to the College unopened and marked “return to sender.”

6. On January 18, 2010, the investigator spoke with the Member. She explained the complaints process to her and advised the Member of her right to retain legal counsel. The Member advised that she had not received the investigator’s notice of investigation or a copy of the 2008 complaint. The investigator advised that she would resend both letters.

7. On January 27, 2010, the investigator spoke with the Member again. The Member confirmed that she received the College’s letters notifying her of the complaint as well as the letter of complaint itself. The investigator again advised the Member of her right to retain legal counsel and confirmed that she had the option of providing a written response to the ICRC. The Member stated that she would consider this.

8. In March 2010, the investigator left the Member a voicemail message but received no call back.

9. The Member did not provide a written response to the ICRC with respect to the 2008 complaint.

10. On April 14, 2010, a panel of the ICRC released a decision regarding the Member’s conduct. The panel had concerns about the Member’s practice. The panel issued a letter of caution and ordered the Member to appear before the panel for an oral caution.

The College’s Attempts to Enforce the Order of the ICRC

11. The ICRC’s decision and reasons were sent to the Member on August 6, 2010 by regular mail.

12. The College did not receive any response from the Member about scheduling her oral caution. On December 21, 2010, a Monitoring Administrator (“M.A.”) attempted to call the Member but was unable to leave a message because her voicemail was full.

13. On December 30, 2010, the M.A. spoke with the Member. The Member advised that she had been out of the country and had not received a copy of the ICRC’s decision. The Member asked the M.A. if she could tell her the outcome. Rather than providing the outcome over the phone, the M.A. confirmed the Member’s mailing address and resent the decision.

14. On February 9, 2011, the College sent the Member a letter by regular mail advising her to attend before the panel on March 9, 2011, to be cautioned. The College requested that the Member return a copy of the notice in a self-addressed stamped envelope. The Member did not return the notice to the College.

15. On February 23, 2011, the College attempted to contact the Member. The ICRC Administrator left a message with the person who answered the Member’s phone, asking that the Member respond. On March 3, 2011, the ICRC Administrator left a second voicemail message for the Member, asking the Member to return her call. The Member did not respond to either message.

16. On March 9, 2011, the Member failed to appear before the ICRC to be cautioned.

17. In May 2011, the College appointed an investigator with respect to the Member’s failure to attend before the ICRC to be cautioned. The investigator sent letters to the Member in June and July 2011 regarding the investigation.

18. On August 3, 2011, the investigator called the telephone number on file with the College for the Member, but the number was out of service. The investigator eventually made contact with the Member through her employer.

19. On September 12, 2011, the Member advised the College that her telephone had been disconnected in March or April 2011 due to cost issues.

The Member’s Response

20. If the Member were to testify, she would say that she has had repeated problems with mail delivery at her home since moving to her current location, which is serviced by outdoor mail delivery, and she made the College aware of these problems. The Member would also say that neither she nor her [adult] daughter, who lives at home with her, received any voicemail messages or phone calls from the College.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

21. The Member admits that she committed the act of professional misconduct as alleged in paragraph 1 as described in paragraphs 3 to 20 above.

22. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2 (a), (b) and (c) of the Notice of Hearing, in that she engaged in conduct or performed an act, relevant to the practice of nursing, that would reasonably be regarded by members of the profession as unprofessional, as described in paragraphs 3 to 20 above.

Counsel Submission

College counsel submitted that the Member’s actions supported professional misconduct and were unprofessional. An ICRC caution serves as an educational advisory and is not penal in nature. It is a means of expressing concerns about a Member’s practice without being made public.

The Member’s counsel supported a finding of unprofessional conduct.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, based on the balance of probabilities using clear, cogent and convincing evidence.

The panel considered the Agreed Statement of Facts and finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2(a), (b) and (c) of the Notice of Hearing in that the Member:

1. Failed to appear before the ICRC to be orally cautioned on or about March 9, 2011, pursuant to a decision of the ICRC, dated April 14, 2010.

2. 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 of the profession as unprofessional in that she:

   a. Failed to appear before ICRC to be cautioned.

   b. Failed to respond in a timely way to the College to schedule an attendance before the ICRC.

   c. Failed to advise the College, in a timely manner, of changes in her contact information.

Reasons for Decision

The panel determined that the Member’s actions were not those that represented the professionalism of a nurse as expected by the public or that of others of the profession. There was a significant disregard and disrespect by the Member’s actions towards the College’s regulatory mandate and [they] have the potential to bring shame to the profession. The Member’s repeated failure to respond to communications from the College represents a significant failing on her part. Therefore, the panel decided that the Member’s actions would reasonably be regarded by the profession as unprofessional.

Penalty

Joint Submission on Order

The College of Nurses of Ontario (the “College”) and Florence D. Agyekum (the “Member”) jointly submit that, in view of the facts and admissions set out in the Agreed Statement of Facts and the findings of professional misconduct, the Panel of the Discipline Committee (the “Panel”) should make an Order:

1. Requiring the Member to appear before the Panel to be reprimanded within three (3) months [of the date] that this Order becomes final.

2. Requiring the Member to attend her oral caution in front of a panel of the Inquiries, Complaints and Reports Committee of the College, within six (6) months [of the date] that this Order becomes final.

3. Directing the Executive Director to suspend the Member’s certificate of registration for one (1) month. This suspension shall take effect from the date of this Order and shall continue to run without interruption.

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

   1. The Member will attend two sessions with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

      i. The Expert has expertise in nursing regulation, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed that he/she will provide a report following the sessions;

      ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:

      1. the Panel’s Order,
      2. the Notice of Hearing,
      3. the Agreed Statement of Facts,
      4. this Joint Submission on Order, and
      5. if available, a copy of the Panel’s Decision and Reasons;

      iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

      1. Professional Standards (Revised 2002)

      iv. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

      v. The subject of the sessions with the Expert will include:

      1. the acts or omissions for which the Member was found to have committed professional misconduct,
      2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
      3. strategies for preventing the misconduct from recurring, and
      4. the publications, questionnaires and modules set out above;

      vi. Within 30 days after the Member has completed the last session, the Expert forwards his/her report to the Director, in which the Expert will confirm:

      1. the dates the Member attended the sessions,
      2. that the Expert received the required documents from the Member,
      3. that the Expert reviewed the required documents and subjects with the Member, and
      4. the Expert’s assessment of the Member’s insight into her behaviour;

      vii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her Certificate of Registration;

   2. All documents delivered by the Member to the College, the Expert or the employer(s) will be [delivered] by verifiable method of delivery, the proof of which the Member will retain.

Penalty Submissions

College Counsel submitted that the penalty was appropriate because it provided both a general deterrence for the members and a specific deterrence for the Member. It also provides rehabilitation for the Member, protection of the public and denunciation of the Member’s actions. The penalty addresses the ability of the College to govern and regulate its members.

There is specific deterrence in the oral reprimand and in the suspension, and general deterrence to the profession in the necessity to communicate with the College in a timely manner.

The rehabilitation is provided in the terms, conditions and limitations as proposed in the submission on order and the ICRC caution.

College counsel suggested a mitigating factor may have been that the Member had issues with her mail delivery and may not have been contacted on time.

The Member’s counsel advised the panel that the Member understands the gravity of her actions and has demonstrated a willingness to cooperate with the panel’s decision.

Penalty Decision

The panel makes the following order as to penalty:

1. The Member shall appear before the Panel to be reprimanded within three (3) months [of the date] that this Order becomes final.

2. The Member is required to attend her oral caution in front of a panel of the Inquiries, Complaints and Reports Committee of the College, within six (6) months [of the date] that this Order becomes final.

3. The Executive Director is directed to suspend the Member’s certificate of registration for one (1) month. This suspension shall take effect from the date of this Order and shall continue to run without interruption.

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

   a. The Member will attend two sessions with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

   i. The Expert has expertise in nursing regulation, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed that he/she will provide a report following the sessions;

   ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:

     1. the Panel’s Order,
     2. the Notice of Hearing,
     3. the Agreed Statement of Facts,
     4. this Joint Submission on Order, and
     5. if available, a copy of the Panel’s Decision and Reasons;
   

   iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

     1. Professional Standards (Revised 2002)
   

   iv. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

   v. The subject of the sessions with the Expert will include:

     1. the acts or omissions for which the Member was found to have committed professional misconduct,
     2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
     3. strategies for preventing the misconduct from recurring, and
     4. the publications, questionnaires and modules set out above;
   

   vi. Within 30 days after the Member has completed the last session, the Expert forwards his/her report to the Director, in which the Expert will confirm:

     1. the dates the Member attended the sessions,
     2. that the Expert received the required documents from the Member,
     3. that the Expert reviewed the required documents and subjects with the Member, and
     4. the Expert’s assessment of the Member’s insight into her behaviour;
   

   vii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her Certificate of Registration;

   5. All documents delivered by the Member to the College, the Expert or the employer(s) will be [delivered] by verifiable method of delivery, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public’s interest. The Member has cooperated with the discipline process by agreeing to the facts and proposed penalty, and has accepted responsibility for her actions.

The panel noted that the penalty has a significant number of components, all of which are necessary to act as a specific deterrence for the Member and to ensure public confidence in the College’s regulatory process. The Member’s actions were noted by the panel to be unacceptable behaviour of a professional and demonstrated a significant lack of [judgment] and total disregard for [ ] nursing regulation.

I, John Bald, 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:

Agnese Bianchi, RN Miranda Huang, RN Kim Jinkerson, RPN Gino Cucchi, Public Member