College of Nurses of Ontario v. Bobbie-Jo Heaps, 2012 CanLII 98104

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Angela Verrier, RPN Chairperson Spencer Dickson, RN Member Gino Cucchi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO BONNI ELLIS for College of Nurses of Ontario

• and -

BOBBIE-JO HEAPS Registration No. 9326703 ELIZABETH MCINTYRE for Bobbie-Jo Heaps

Heard: May 1, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 01, 2012 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Bobbie-Jo Heaps (“the “Member”) as stated in the Amended Notice of Hearing dated April 12, 2012 [ ], are as follows.

IT IS ALLEGED THAT:

1. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.16 of Ontario Regulation 799/93 in that, between approximately January 2009 and January 2010, while working at [Facility A], you inappropriately used a term, title or designation, particularly “nurse” and/or “registered nurse” while suspended.

2. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.16 of Ontario Regulation 799/93 in that, between approximately January 25, 2010 and February 23, 2010, while working at [Facility B], you inappropriately used a term, title or designation, particularly “nurse” and/or “registered nurse” while suspended.

3. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.18 of Ontario Regulation 799/93 in that, between approximately January 2009 and January 2010, while working at [Facility A], you contravened a term, condition or limitation on your certificate of registration, particularly by practising while suspended.

4. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.18 of Ontario Regulation 799/93 in that, between approximately January 25, 2010 and February 23, 2010, while working at [Facility B], you contravened a term, condition or limitation on your certificate of registration, particularly by practising while suspended.

5. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.19 of Ontario Regulation 799/93 in that, between approximately January 2009 and January 2010, while working at [Facility A], you contravened subsection 11(1) of the Nursing Act, 1991, when you used the restricted titles “nurse”, and/or “registered nurse” in your resume and while describing yourself, while your certificate of registration was suspended.

6. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.19 of Ontario Regulation 799/93 in that, between approximately January 25, 2010 and February 23, 2010, while working at [Facility B], you contravened subsection 11(1) of the Nursing Act, 1991, when you permitted and authorized [Facility B] that the [Facility B] website could indicate that you were a Registered Nurse, and that you had been working as a nurse since 2007 while your certificate of registration was suspended.

7. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.19 of Ontario Regulation 799/93 in that, between approximately January 2009 and January 2010, while working at [Facility A], you contravened subsection 11(5) of the Nursing Act, 1991, when you held yourself out as a person who is qualified to practise in Ontario as a registered practical nurse when your certificate of registration was suspended.

8. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.19 of Ontario Regulation 799/93 in that, between approximately January 25, 2010 and February 23, 2010, while working at [Facility B], you contravened subsection 11(5) of the Nursing Act, 1991, when you held yourself out as a person who is qualified to practise in Ontario as a registered practical nurse when your certificate of registration was suspended.

9. You have 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.19 of Ontario Regulation 799/93 in that, between approximately January 2009 and January 2010, while working at [Facility A], you contravened subsection 27(1) of the Regulated Health Professions Act, 1991, when you performed the controlled act of injection without obtaining sufficient authorization via delegation.

10. 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.37 of Ontario Regulation 799/93 in that, between approximately January 2009 and February 23, 2010, you engaged in conduct, 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:

(i) Disregarding the notice of the College which advised you that you had been suspended as of May 14, 2004;

(ii) Practising nursing while suspended from the College;

(iii) While applying to work at [Facility A], advising management that you were registered with the College as a Nurse;

(iv) While applying to work at [Facility B], advising management that you were registered with the College as a Nurse;

(v) While applying to work at [Facility A], submitting a resume that indicated you were a Nurse post May 14, 2004 and that you were associated with the College;

(vi) While applying to work at [Facility B], submitting a resume that indicated you were a Nurse post May 14, 2004 and that you were associated with the College;

(vii) While applying to work at [Facility A], submitting an e-mail with the subject line “My resume and Registration Number” which provided the College registration number and not advising [Facility A] that you were suspended from practice;

(viii) While working at [Facility A], advising [Dr. A] that you were a nurse or, in the alternative, letting [Dr. A] believe that you were a nurse;

(ix) Permitting [Dr. A] to delegate the act of injection to you while [Dr. A] believed that you were a nurse;

(x) While working at [Facility B], advising [Dr. B] that you were a nurse or, in the alternative, letting [Dr. B] believe that you were a nurse;

(xi) While working at [Facility B], permitting and authorizing [Facility B] to indicate on its website that you were:

(a) A Nurse; and

(b) That you had worked as a nurse since 2007

Counsel for the College advised the panel that the College was not calling any evidence with respect to the allegations set out in paragraphs 3, 4, 6, 7, 8, 9 and 10 (ii), (viii), (ix) and (x) of the Amended Notice of Hearing.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1, 2, 5, 10 (i), (iii), (iv), (v), (vi), (vii), and (xi) (a) and (b) in the Amended 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 amended Agreed Statement of Facts [ ] which provided as follows.

THE MEMBER

1. Bobbie-Jo Heaps (the “Member”) received her nursing diploma [ ] in 1993 and was registered as a Registered Nurse ("RN") with the College of Nurses of Ontario (“the College”) in June that same year.
2. From 1994 to 2000, the Member worked as an RN in the Emergency Departments of hospitals.
3. By letter dated May 14 2004, the Member was advised that her certificate of registration was suspended for non-payment of fees.
4. The Member’s status has not changed since that time.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

A. [Facility A]

1. [Facility A] is a Cosmetic Clinic, which offers numerous cosmetic procedures including plastic surgeries, laser treatments and injections using fillers, such as onabotulinumtoxinA (Botox).
2. On February 1, 2010, the College received information from [ ] the Director of Business Development [(DBD)], at [Facility A] regarding the Member.
3. The Member had been hired at [Facility A] as a nurse in January 2009 after representing herself as a nurse to management during the application process.
4. Shortly after the Member was hired for the position, she provided [the DBD] with her certificate of registration number as well as a copy of her curriculum vitae to complete the application process.
5. The Member’s curriculum vitae indicated that she had worked as an “Independent Medical Technician/Nurse Injector” from 2008 to present.
6. The Member’s curriculum vitae also listed the “College of Nurses of Ontario” under the heading “Professional Organizations”.
7. According to [the DBD], the hiring criteria at [Facility A] are quite strict, in that they only hire nurses for the position to which the Member applied.
8. Based on the Member’s interview and the documentation she had provided during the application process, Management at [Facility A] believed that the Member had an active certificate of registration with the College at the time she was hired to work at [Facility A] as a nurse.
9. The Member was terminated from her position at [Facility A] in January 2010, at which time it was discovered that her certificate of registration with the College had been suspended since 2004.

B. [Facility B]

1. The Member was hired to work as a nurse at [Facility B], another spa offering dermatological services [ ], after representing herself as a nurse to management during the application process.
2. The curriculum vitae the Member submitted in application for the position at [Facility B] indicated that she had been employed as a “Nurse Injector/Medical Sales” from 2008 to present.
3. The Member’s curriculum vitae also listed the “College of Nurses of Ontario” under the heading “Professional Organizations”.
4. After the Member began working at [Facility B] on January 25, 2010, her biography was posted on the company’s website, identifying her as a nurse and indicating that she had “worked as a Cosmetic-Medical Nurse” for the previous three years.
5. The Member was aware that this information was posted on the company’s website.
6. The Member was terminated from her position at [Facility B] on February 23, 2010 after it was discovered that her certificate of registration with the College had been suspended since 2004.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

1. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1, 2 and 5 of the Notice of Hearing and that the conduct was disgraceful, dishonourable and unprofessional as described in subparagraphs 10 (i), (iii), (iv), (v), (vi), (vii), (xi) (a) and (b) of the Notice of Hearing, with respect to her use of the term and/or title “nurse”, as described in paragraphs 3 to 19 above.

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, 2, 5, 10 (i), (iii), (iv), (v), (vi), (vii), and (xi) (a) and (b) of the amended Notice of Hearing in that she inappropriately used a term and/or title of “nurse” while suspended.

As to allegations 3, 4, 6, 7, 8, 9 and 10 (ii), (viii), (ix) and (x), College Counsel advised that she was not calling any evidence in respect of them. Accordingly, the panel dismisse[d] allegations 3, 4, 6, 7, 8, 9 and 10 (ii), (viii), (ix) and (x) in the amended Notice of Hearing.

Reasons for Decision

The panel deliberated and found that the Member’s conduct, as it involved deception and willfully using a restricted title while suspended, would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

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 provides as follows:

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

Penalty Submissions

College counsel submitted that the Joint Submission on Order is very brief, [ ] containing an oral reprimand to be delivered within three months of the date of the decision. She explained the reason for this is that the Member has signed an irrevocable undertaking [which] included agreeing to resign her membership with the College of Nurses and not to seek reinstatement as a nurse. College Counsel acknowledged that this penalty is outside the normal range, and no cases could be found with a similar outcome. However, she submitted that the following factors were relevant to the appropriateness of the proposed penalty decision:

1. The Member has been suspended from the College since 2004 for non-payment of fees and as a consequence the Member would be required to take extensive retraining to meet practice requirements;

2. The Member has outstanding terms, conditions and limitations from a prior discipline proceeding in 2002;

3. The Member would also need to comply with any terms, conditions and limitations [imposed on] her today in penalty.

She stated that the proposed penalty order is in the public interest, and that this type of penalty should be reserved for this type of exceptional case.

Defence Counsel submitted that the panel should accept this Joint Submission on Order. She stated that the Member had admitted to the allegations and has willingly signed an undertaking for permanent resignation from the College.

Penalty Decision

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

1. The Member to appear before the Panel to be reprimanded within three (3) months of the date of this Order.

Reasons for Penalty Decision

The panel concluded that while the conduct would warrant a more severe penalty, in light of the undertaking, the panel is content 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 has willingly signed an undertaking, agreement and acknowledgement to permanently resign as a Member of the College and will not apply for membership with the College at any time in the future or practi[s]e as a nurse. She agreed to have this information as part of the public portion of her record indefinitely and has given the College authority to provide a copy of the undertaking to any governing body that regulates nursing.

I, Angela Verrier, 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:

Spencer Dickson, RN

Gino Cucchi, Public Member