College of Nurses of Ontario v. Pho, 2012 ONCNO 98513

PANEL: Shiela Pendock, RN Chairperson

Agnese Bianchi, RN Member

Deanne Barber, RPN Member

Gino Cucchi Public Member

Sharanjit Singh Padda Public Member

BETWEEN:

) LINDSAY DAVIAU for

COLLEGE OF NURSES OF ONTARIO ) College of Nurses of Ontario

and - ) MARY HART for

) Brian Pho

BRIAN PHO )

Registration No. 0432252 )

) Heard: December 7, 2007

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on December 7, 2007 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Brian Pho (the “Member”) as stated in the Notice of Hearing dated November 6, 2007, are as follows.

You have committed an act of professional misconduct as provided by section 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, in that on January 7^th, 2005 in proceedings in the Ontario Court of Justice you were found guilty of the following offence that is relevant to your suitability to practise:

a) that you did sometime between and including the 1^st day of November in the year 1999 and the 25^th day of February in the year 2002 in the City of [ ], in the [ ] Region did by deceit, falsehood or other fraudulent means defraud [ ] Bank of monies of a value which exceeded five thousand dollars contrary to the Criminal Code of Canada.

Member’s Plea

Brian Pho admitted the allegations contained 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.

THE MEMBER

The Member, Brian Pho (“the Member”), is a registered nurse. The Member received his nursing degree from [ ] University [ ] in 2004. The Member has been registered with the College of Nurses of Ontario (“the College”) since 2004.
The Member has no prior history of discipline at the College.

THE INCIDENT

From 1990 to 2002, the Member worked at [the bank] as a Financial Advisor in the Mutual Funds and Securities department. In that capacity, the Member managed a number of customer affairs, including, providing financial advice to clients and managing accounts.
In approximately 1998 or 1999, when the stock market was increasing in value, [some] of the Member’s [relatives] gave him a total of $70,000 to invest on their behalf. The Member’s [relatives] left all investment decisions up to the Member.
The Member also decided to invest $80,000 of his own money in the stock market.
The Member invested his and his [relatives]’ money in stocks that traditionally went up in considerable value. Initially, their investment increased in value. Precipitously, however, the value of the stocks dropped.
At that time, the Member believed that market trends would reverse and that his investment would eventually replenish.
When market trends did not reverse, the Member began to panic about his inability to recover the money he lost.
In November 1999, in an attempt to replenish his and his [relatives]’ investment, the Member opened lines of credit in the names of existing bank customers without their knowledge or consent. Likewise, in order to cover-up his conduct, the Member opened up post office boxes for any necessary mailings related to the lines of credit. The Member also used computer terminals of fellow bank employees to avoid detection from bank personnel.
The Member began to invest the money he obtained from fraudulently opening the lines of credit.
If the Member were to testify he would say that:

a) He felt a huge weight of responsibility towards his family members who had trusted him with their savings. He felt unable to confide in anyone, even family members with whom he was closest. He felt an overwhelming sense of shame at having betrayed the trust of those closest to him. It was both shame and fear that initiated the path he took.

In February 2002, a [ ] bank customer called to make an inquiry into his line of credit. The bank customer was shocked to learn that there was over $100,000 drawn on his line of credit without his consent or knowledge.
When the bank began an investigation into the Member’s conduct, it was discovered that the loss sustained by the bank, as a result of the Member’s fraudulent transactions, was over $5,200,000.00.
The Member helped facilitate the recovery of about $1,600,000.00.
Ultimately, the actual financial loss to the bank resulting from the Member’s conduct was approximately $3,600,000.00.
The Member was arrested and charged with 20 counts of fraud over five thousand dollars contrary to the Criminal Code of Canada.
On January 7, 2005, the Member pled guilty to the offence of defrauding the [bank] of monies of a value which exceeded five thousand dollars contrary to the Criminal Code of Canada. The remaining 19 charges were withdrawn. A certified copy of the Information is attached as Appendix “A”.
In his Reasons for Sentence, Justice W.P. Bassel noted that the aggravating factors of the case included “a serious breach of trust by Mr. Pho, not only to his employer, but also to bank customers who rely and trust on their affairs being honestly handled by the bank’s representatives…[a]lso, this was not a spontaneous one-time act, but spanned a period of about twenty months”. Justice W. P. Bassel also commented that “[u]pon detection, he [the Member] cooperated fully with police and bank officials…[a]pparently, he also instructed his counsel to cooperate with the authorities investigating this matter”.
The Member was sentenced to three years in a penitentiary. The Member served 6 months of his sentence and is currently on parole. The terms of his parole include: no visiting gambling facilities, including internet gambling sites, and full financial disclosure.
If the Member were to testify he would say that:

(a) Prior to commencing his nursing training, he called the College of Nurses to explain the circumstances of his life including his pending criminal convictions. He sought advice and guidance as to the possibility of pursuing a nursing career in his circumstances. He was encouraged to understand that his history would not be an absolute bar to pursuing this course and reassured by the information he received that every case would be considered on its individual merits.

On or about January 12, 2005, following the completion of the criminal proceedings, the Member wrote to the College to advise of his conviction. This correspondence was entrusted to [a relative] who mailed the letter on his behalf. The College has no record of having received this correspondence.
On July 13, 2005, the Member contacted the College and reported his conviction.
On July 15, 2005, the College mailed to the Member a Self-Reporting Form. The Member completed the Self-Reporting Form on July 22, 2005, and submitted it to the College. The Member’s Self-Reporting Form is attached as Appendix “B”.

EXPERT OPINION

[Dr. A] is a Psychiatrist who specialized in Forensic Psychiatry. [Dr. A] is also a part time staff member with the Psychiatry and Law Program of the Centre for Addiction and Mental Health, Clarke Institute Branch, and an Assistant Professor in the Department of Medicine at the University of Toronto.
On January 31, 2007 and March 14, 2007, [Dr. A] completed an Independent Psychiatric Assessment of the Member in relation to the conduct from which the allegations arose.
[Dr. A] opined that the usual criminogenic factors, associated with criminal behaviour and risk for recidivism, are absent in the Member’s case, and there are no specific psychological syndromes or conditions that explain the Member’s behaviour. [Dr. A] also opined the Member is an overly confident and self-assured individual who lacks insight into his problem areas. Overall, [Dr. A] believes that psychotherapy and counselling would benefit the Member.

ADMISSIONS

If he were to testify, the Member would admit that:

(a) On January 7, 2005 he was found guilty of defrauding the [bank] of monies of a value which exceeded five thousand dollars contrary to the Criminal Code of Canada.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that he committed an act of professional misconduct, as provided by sub-section 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991 c. 32, as amended, in that on January 7, 2005 in proceedings in the Ontario Court of Justice he was found guilty of the following offence that is relevant to his suitability to practise:

(a) That he did sometime between and including the 1^st day of November in the year 1999 and the 25^th day of February in the year 2002 in the City of [ ], in the [ ] Region did by deceit, falsehood or other fraudulent means defraud [ ] Bank of monies of a value which exceeded five thousand dollars contrary to the Criminal Code of Canada.

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 paragraph 1a) of the Notice of Hearing in that, on January 7, 2005 in proceedings in the Ontario Court of Justice he was found guilty of the following offence that is relevant to his suitability to practise:

That he did sometime between and including the 1^st day of November in the year 1999 and the 25^th day of February in the year 2002 in the City of [], in the [ ] Region did by deceit, falsehood or other fraudulent means defraud [ ] Bank of monies of a value which exceeded five thousand dollars contrary to the Criminal Code of Canada.

Penalty

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:

BRIAN PHO (“THE MEMBER”) AND THE COLLEGE JOINTLY SUBMIT that, in view of the circumstances set out in the Agreed Statement of Facts, 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:

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;
Directing the Executive Director to suspend the Member’s Certificate of Registration for twelve (12) months. The suspension shall take effect on January 3, 2008 and shall run continuously without interruption;
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s Certificate of Registration:

a. The Member shall complete one-to-one counseling sessions with a duly qualified professional, as approved by the Director of Investigations and Hearings of the College. All costs associated with the counseling sessions shall be borne by the Member. The sessions shall commence within three (3) months of this Order becoming final and shall take place at such frequency as the Counselor believes necessary. The sessions shall continue until such time as the Counselor believes the Member has gained sufficient insight into his behaviour and is satisfied that the Member is not a risk to his clients, or a period of not less than twenty-four (24) months, whichever is earlier; and

i. The subject of the counseling sessions will be:

A. the member’s inappropriate conduct;

B. the consequences of this behaviour were it to occur in the nursing context; and

C. strategies for making the inappropriate conduct unlikely to occur in the future.

b. Before commencing any of the counseling sessions referred to in 3(a), the Member will provide the Counselor with a copy of the Discipline Panel’s Order, the Agreed Statement of Fact, the Joint Submission on Penalty, [Dr. A]’s report dated May 16, 2007, the transcripts of the Reasons for Sentence, dated January 12, 2005, and the Panel’s written Decisions and Reasons, delivered through the use of a verifiable method of delivery, the proof of which the Member shall retain. If the Panel’s Decisions and Reasons are not available prior to the Member’s first meeting with the Counselor, the Member shall deliver to the Counselor, through the use of a verifiable method of delivery, the proof of which the Member shall retain, a copy of the Panel’s Decisions and Reasons, together with any attachments, within 21 days of their release;

c. Once the Member has completed the Counseling sessions referred to a paragraph 3(a), the Member must ensure that the Director receives from the Counselor, a report, through the use of a verifiable method of delivery, the proof of which the Member shall retain, in which the Counselor confirms that:

i. the Member has attended the sessions;

ii. the subject of the sessions were the Member’s inappropriate conduct, the consequences of this behaviour were it to occur in the nursing context, and strategies for making the inappropriate conduct unlikely to occur in the future;

iii. her/his assessment of the Member’s insight into his behaviour;

iv. he/she received copies of the Discipline Panel’s Order, the Agreed Statement of Fact, the Joint Submission on Penalty, [Dr. A]’s report dated May 16, 2007, and the Decisions and Reasons, if appropriate.

d. Until such time as the conditions specified in 3 (a)-(c) have been successfully completed, and the Director receives a favourable report from the Counselor, the Member will only practice nursing for an employer where other registered nurses are employed and will not practise independently or in the community.

e. The Member shall refrain from working in any capacity where he has control and/or responsibility over the finances and/or the financial affairs of his employer(s).

f. For a period of thirty-six (36) 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 and through the use of a verifiable method of delivery, the proof of which the Member shall retain;

ii. provide all of his employer(s) with a copy of the Panel’s Penalty Order together with the Agreed Statement of Fact, Joint Submission on Penalty and any attachments to those documents or, if available, the Panel’s written Decision and Reasons, together with any attachments, and provide proof of its delivery to the employer(s) to the Director within 14 days from the date the Member commences employment, to be delivered by a verifiable method of delivery, the proof of which the Member shall retain.

iii. only practise for an employer(s) who agrees to, and does write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment providing the Director with the following:

A. confirmation that the employer(s) has received a copy of the documents referred to in paragraph 3(f)(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.

Counsel for the Member submitted that there were numerous mitigating circumstances in this case.

The Member is the youngest of [ ] children who immigrated to Canada from [ ] in [ ]. In [ ], [a relative] died and the Member assumed responsibility for [caring for a relative]. The Member self-reported to the College his criminal activity and conviction.

The Member has been working at [ ] Hospital since graduating. His employer fully supports him and is holding his position for him during his suspension.

Penalty Decision

The panel accepts the Joint Submission as to Penalty and accordingly orders as follows.

The Member shall 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.
The Executive Director shall suspend the Member’s Certificate of Registration for twelve (12) months. The suspension shall take effect on January 3, 2008 and shall run continuously without interruption.
The Executive Director shall impose the following terms, conditions and limitations on the Member’s Certificate of Registration.

i. the subject of the counseling sessions will be:

A. the member’s inappropriate conduct;

B. the consequences of this behaviour were it to occur in the nursing context; and

C. strategies for making the inappropriate conduct unlikely to occur in the future.

b. Before commencing any of the counseling sessions referred to in 3(a), the Member will provide the Counselor with a copy of the Discipline Panel’s Order, the Agreed Statement of Fact, the Joint Submission on Penalty, Dr. H. Bloom’s report dated May 16, 2007, the transcripts of the Reasons for Sentence, dated January 12, 2005, and the Panel’s written Decisions and Reasons, delivered through the use of a verifiable method of delivery, the proof of which the Member shall retain. If the Panel’s Decisions and Reasons are not available prior to the Member’s first meeting with the Counselor, the Member shall deliver to the Counselor, through the use of a verifiable method of delivery, the proof of which the Member shall retain, a copy of the Panel’s Decisions and Reasons, together with any attachments, within 21 days of their release.

i. the Member has attended the sessions;

iii. her/his assessment of the Member’s insight into his behaviour;

d. Until such time as the conditions specified in 3 (a)-(c) have been successfully completed, and the Director receives a favourable report from the Counselor, the Member will only practise nursing for an employer where other registered nurses are employed and will not practise independently or in the community.

e. The Member shall refrain from working in any capacity where he has control and/or responsibility over the finances and/or the financial affairs of his employer(s).

f. For a period of thirty-six (36) months following the date upon which the Member returns to the practice of nursing, the Member shall:

ii. provide all of his employer(s) with a copy of the Panel’s Penalty Order together with the, Agreed Statement of Fact, Joint Submission on Penalty and any attachments to those documents or, if available, the Panel’s written Decision and Reasons, together with any attachments, and provide proof of its delivery to the employer(s) to the Director within 14 days from the date the Member commences employment, to be delivered by a verifiable method of delivery, the proof of which the Member shall retain.

A. confirmation that the employer(s) has received a copy of the documents referred to in paragraph 3(f)(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.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for his actions. The penalty is sufficiently severe to effect general and specific deterrence, while supporting the Member in his efforts at rehabilitating himself and reintegrating with society.

I, Shiela Pendock, RN 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

Deanne Barber, RPN

Gino Cucchi, Public Member

Sharanjit Singh Padda, Public Member