College of Nurses of Ontario v. Duncan McWaters, 2012 ONCNO 99758

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Carl Balcom, RN Chairperson April Plumton, RPN Member Spencer Dickson, RN Member Cathy Egerton Public Member Linda Bracken Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO Mathew Sammon for College of Nurses of Ontario

• and -

DUNCAN MCWATERS Registration No. 06292460 No Representation for Duncan McWaters

Chris Wirth Independent Legal Counsel

Heard: October 22-23, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 22 and 23, 2012 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Duncan McWaters (the “Member”) as stated in the Notice of Hearing dated July 05, 2012, are as follows.

IT IS ALLEGED THAT

1. 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, in or about December 2010 and/or January 2011, while working at [the Hospital], you engaged in conduct or performed acts, 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 failed to provide a true copy of recognizance of bail document(s) to your employer; and/or

b) You modified or altered recognizance of bail document(s) and provided them to your employer; and/or

c) You falsified recognizance of bail document(s) and provided them to your employer; and/or

d) You sought to deceive your employer regarding the bail conditions imposed upon you; and/or

e) You failed to comply with a Court direction requiring you to provide to your employer with a true copy of the recognizance of bail document(s).

Member’s Plea

Duncan McWaters denied the allegations set out in the Notice of Hearing.

Overview

The Member has been registered with the College as a Registered Nurse (“RN”) since 2006. At the time of the incident at question, the Member was employed at [the Hospital], and worked primarily night shifts.

The Member had been off work on sick leave from November 17, 2010 and was due to return to work on December 20, 2010. The return to work date was communicated to the Member’s manager by the Hospital’s Occupational Health Nurse on December 16, 2010. The Hospital was aware that the Member had prior dealings with the police and as such, a meeting was scheduled between the Member, the Member’s nurse manager, and the program director on December 17, 2010 at 09:00 hours.

At the 09:00 meeting, the Member presented the employer with a copy of his Recognizance of Bail document as directed by the nurse manager. The program director recognized that the document was incomplete and advised the Member to return with a complete, unaltered copy of the document. The Member returned to the Hospital at 11:45 hours that same day with another copy of the Recognizance of Bail document. The program director recognized that the second copy provided was still incomplete and/or appeared altered. The Member was advised that he was not to return to work on December 20, 2010 and that he was on administrative leave with pay pending further review.

The Member eventually provided the Employer with complete, unaltered copies of his Recognizance of Bail documents but his employment was ultimately terminated because of his failure to submit complete, unaltered documents when they were first sought by his employer. As a result, his employer sent a report to the College in regards to this incident.

The issues at hand in this case are as follows:

• Did the Member fail to provide his employer with a true, unmodified and unaltered copy of his recognizance of bail documents which was a condition of the Member’s bail?
• Did the Member intentionally falsify the recognizance of bail documents in an attempt to deceive his employer?
• Did the Member fail to comply with a Court direction requiring him to provide his employer with a true copy of the recognizance of bail documents?

The Member was not represented by legal counsel. The Member participated in the hearing, led his own defence and conducted cross-examination of the College’s witnesses.

Publication Ban

College Counsel submitted a court-certified copy of the Recognizance of Bail documents and requested that a publication ban be ordered by the panel protecting the name of the complainant. This publication ban was requested pursuant to section 45 of the Health Professions Procedural Code and was in keeping with the existing publication ban ordered by the criminal court pursuant to sections 517 and 486 of the Criminal Code of Canada.

The Member did not oppose the College’s request for a publication ban. The panel ordered the publication ban accordingly.

The Member then made a motion to have the entire hearing closed and a publication ban put on the entire hearing. College Counsel objected to the Member’s motion. The panel sought the advice of Independent Legal Counsel, who reviewed the four instances under the Health Professions Procedural Code where a panel can close an entire hearing to the public, that the hearings are presumptively open to the public, and that a mere inconvenience or discomfort does not meet the required threshold to close a hearing. College Counsel agreed with the opinion of Independent Legal Counsel and the Member did not have any further submissions. The panel accordingly denied the Member’s motion.

The Evidence

College Counsel entered a court-certified copy of the Member’s Recognizance of Bail documents, which was entered as Exhibit #4.

Witness #1 [ ]

[Witness #1] was called by College Counsel. The witness testified that she has worked for the College of Nurses of Ontario as an administrator for the Prosecutions Department for the past 10 years. She confirmed that the Member is in current standing and that he is the only member with the name of Duncan McWaters on the register.

The panel found the witness’s testimony to be clear and consistent with the documentary record provided.

Witness #2 [ ]

Examination in Chief

[Witness #2] is the current Program Director of Psychosocial Rehabilitation Program at the Hospital. He provided the panel with a brief overview of his area of responsibility, which included the unit in which the Member was employed at the time of the incident. [Witness #2] further testified that he was in this position at the time of the allegation, and had held this position for over 10 years. The program under his direction has both inpatient and outpatient services providing care to [clients] over the age of 18. [Witness #2] confirmed that the Member worked the night shift primarily, and that the Member’s primary duties as a Registered Nurse included acting as charge nurse and being assigned to other areas of the hospital when needed.

[Witness #2] testified that the Member called in sick for his scheduled night shift on November 17, 2010 and was on sick leave after that date. [Witness #2] testified that the Occupational Health Nurse sent an e-mail message stating that a medical certificate had been received on December 16, 2010 stating that the Member could return to regular duties on December 20, 2010 [ ].

[Witness #2] testified that on December 17, 2010, at 0900 the Member met with him and the Member’s nurse manager, [ ]. [Witness #2] testified that the Member submitted a copy of his Recognizance of Bail document, specifically the page titled “Appendix A” [ ]. [Witness #2] testified that he was able to identify that information was missing from this document due to his having seen these types of documents in the past in relation to his work, and instructed the Member to return with a complete version of the document.

[Witness #2] testified that following this meeting, he read a forwarded e-mail that [the nurse manager] had received from a Detective Constable [ ], which she had received on December 16, 2010, which included a copy of the Member’s Recognizance of Bail document. [Witness #2] testified that he reviewed the forwarded e-mail message as well as the attached documentation, which included the Recognizance of Bail documents, following the meeting with the Member.

[Witness #2] further testified that the Member returned to his office at approximately 1145 hours and submitted a second copy of the Recognizance of Bail documents [ ]. [Witness #2] testified that he again noted that the document submitted was missing information and that the charges against the Member were obliterated. [Witness #2] testified that he was familiar with Recognizance of Bail documents and was aware that information was still missing from the second copy submitted by the Member [ ]. [Witness #2] testified that he informed the Member that the case would need to be reviewed with the Hospital’s executive team and that the Member was not to return to work until further notice.

[Witness #2] testified that he contacted the Member on December 20th, 2010, to schedule a meeting at 1500. He also stated that at this meeting he advised the Member that he was to remain on paid leave until further notice, and that this was confirmed to the Member in writing []. [Witness #2] also testified that the Member submitted a third copy of his Recognizance of Bail documents, and that [Witness #2] made a copy in the Member’s presence [ ].

[Witness #2] went on to testify that on December 29th, 2010, he contacted the Member and advised him that there would be a pre-disciplinary meeting on January 5th, 2011, and that this meeting would include the Vice President of Regional Programs, a union representative, the Member’s nurse manager, the Member, and himself. [Witness #2] stated that at this meeting, the Member said that he did not intentionally alter the documents offered to the Hospital. [Witness #2] testified that the Member’s employment was subsequently terminated as a result of his repeated submission of altered Recognizance of Bail documents.

Cross Examination

On cross examination, the Member asked [Witness #2] several questions about their working relationship and as [Witness #2]’s role as the program director.

The Member asked the witness about the events on November 26th, 2010, whereby the police attended the Hospital and spoke to the nursing team leader, as the nurse manager was absent. The Member asked [Witness #2] about this conversation. [Witness #2] explained that he was unable to respond to questions about that conversation, as he was not present for it. [Witness #2] testified that he had instructed the team leader to refer the police officers to the nurse manager, who was due to return to work the following day. The Member attempted on several occasions to elicit information regarding conversations that the police officers would have had with other employees, including the nurse manager, however [Witness #2] replied on each occasion that he was unable to testify as to the content of these discussions as he was not present.

[Witness #2] testified that this type of situation would not be recorded in the Hospital’s Incident Management System because it was not related to the core operations of the Hospital and that [ ] he assumed that the Member did not have a criminal record at time of hire by virtue of the fact that the Member was hired and that a criminal record check was an employment pre-requisite. [Witness #2] testified that his major concern was that the Member failed to inform the employer of restrictions that he knew or ought to have known that would put him in the presence of females under the age of 18. [Witness #2] testified that on occasion there would be females under 18 years of age at the Hospital, including students, volunteers, and visitors, for example.

The Member submitted an email message between [Witness #2] and a human resources representative [ ] whereby [Witness #2] stated that the Hospital did not need to know the specifics of the charges against the Member. [Witness #2] confirmed that the Hospital’s position had been that details of the charges against the Member did not need to be known by the Hospital, but that complete copies of the Recognizance of Bail documents were required in order to ensure an appropriate return to work plan.

[Witness #2] testified that on numerous occasions, the Member stated that he agreed to help in whatever way that he could.

[Witness #2] testified that the Vice President of Regional Programs decided to terminate the Member’s employment. The termination was confirmed in writing, which the Member submitted into the record [ ].

[Witness #2] testified that the Member had never shown any interest and had never broached the topic of changing positions or departments (in relation to his bail conditions) until the termination meeting on January 05, 2011.

[Witness #2] testified that he was not in a position to judge the Member’s clinical strength because he was not the Member’s immediate supervisor, but that he was not aware of any performance assets or deficits on the Member’s part.

Redirect Examination

On redirect examination, [Witness #2] testified that the Member had made references to his charges being related to a “family matter”.

The panel found the witness’s testimony to be honest, clear, cogent, and convincing. The witness testified in an extremely factual manner, often referring to notes that were made contemporaneously throughout the employer’s investigation of the matter, to ensure accuracy. Although a significant period of time had elapsed since the events in question, the witness had a very good recall of the events and due to the exemplary documentation made during the employer investigation, the panel was confident that the witness’s testimony was accurate. The witness only testified to matters [of] which he had direct knowledge [ ] and made a point to avoid speculation. There were no inconsistencies noted in the witness’s testimony, and there was no apparent vested interest in the outcome of the hearing for the witness.

Witness #3 - [the Member]

Examination in Chief

As the Member was self-represented, he provided the panel with testimony as the examination in chief.

The Member testified that the conflict here is whether there was a deliberate act of hiding things and that the Hospital believed that he [the Member] tried to mislead them. The Member testified that he met with [Witness #2] at 0900 hours and that [Witness #2] said that information was missing, so “I zipped home to get more pages”. The Member then drew the panel to [ ] the second copy of the Recognizance of Bail document submitted to the employer, and stated “this is where people think I tried to hide things” in reference to paragraphs M and N of the document, and that “there are so many variables in the paradigm of causality”.

The Member testified that the original Recognizance of Bail document was legal sized (8.5”x 14”) and did not fit in his home printer so he made a copy of the top section and the bottom section of the page, stuck the two copies together, and then made another copy. The Member testified that he then took this page out of his home printer and rushed back to [Witness #2]’s office.

The Member brought his home printer and proposed to demonstrate to the panel how the “photocopying error” occurred; College Counsel had no objections to this demonstration. To begin the demonstration, the Member took the original copy of the Recognizance of Bail document titled “Appendix A”. This document was entered in 8.5”x14” size for reference purposes. The Member made two copies of this letter: one of the top section of the page and one of the bottom section of the page; the copies produced were on 8.5”x11” paper. The Member showed the panel, as well as College Counsel the copies that he had made: the top and bottom sections of the document titled “Appendix A” [ ]. The two copies were entered as Exhibits [ ] for referencing purposes. The Member also showed the panel as well as College Counsel the copies of [these two] Exhibits [ ] that he had made, which were [also] entered as Exhibits [ ] for referencing purposes, and did not contain paragraphs M and N. The panel noted that on [the first two] Exhibits [ ], paragraphs M and N were present on both copies. The Member testified that the purpose of this demonstration was to show the panel how “copying mistakes happen”. The Member testified that after making the two copies of the legal sized Recognizance of Bail document and making a copy of the two pages merged together, he promptly returned to the Hospital to provide [Witness #2] with the page, who in turn advised the Member that he was on paid administrative leave until further notice.

The Member testified that in his opinion, the most relevant section of the bail conditions was the section restricting his access to pharmaceutical agents [paragraph I]. The Member testified that he “should have grabbed everything” but that his omission was not intentional by any means. The Member testified that when he brought in the documents to the Hospital the third time, he took them to a photocopy store to ensure that there were no problems and stated that he tried to give the Hospital all of the information that was requested, and that had [Witness #2] told him that specific documents were missing, he would have submitted them.

The Member testified that in his mind, the Hospital would only be concerned about the Member’s access to medications and not the possibility of being in the presence of females under the age of 18 years. The Member opined that medications would have been hard to divert, and that there was no proof of him ever diverting medications for purposes other than for what they were intended. With respect to the restriction on being around females under the age of 18 years, the Member testified that the criminal court judge asked him if this would be a problem with his [the Member’s] work and the Member replied that it would not be since all [clients] at the Hospital were over the age of 18 years. The Member also testified that there were other areas of the Hospital that he could have been assigned to in order to perform the duties of charge nurse.

The Member testified that management deliberated and terminated his employment despite the fact that the Hospital’s lawyer had recommended a 5-day suspension without pay. The Member began citing “Standards of Just Cause in section 240 of the Labour Code” and stated that “there was never any evidence of me causing problems”. The Member asked that the panel enter the excerpt from the “Labour Code” as an exhibit. The panel sought the advice of Independent Legal Counsel who advised that current legislation need not be entered as an exhibit. Both College Counsel and the Member agreed with the advice of Independent Legal Counsel; consequently the panel denied the Member’s request. The Member concluded his direct examination by stating “this was an accident”.

Cross Examination

College Counsel opened the cross-examination of the Member by asking about the Member’s sick leave. The Member confirmed that he had begun sick leave on November 17, 2010, because the police had come to arrest him as he was leaving to go to work. The Member then went on to testify that he had been in a car accident and that the car accident was the primary reason for his sick leave. The Member testified that he could not remember the date of the car accident, after having stated it occurred in December and then in November, but that the accident had occurred before his arrest. The Member testified that he did not take sick leave initially but that the injury from the car accident, plus the extreme stress he was under led to his being placed on sick leave.

Upon questioning, the Member testified that he did not disclose the criminal charges to his employer and did not advise his employer that he was in court on November 17, 2010. The Member testified that when his nurse manager [ ] called him on December 16, 2010, she advised the Member to bring the Recognizance of Bail documents; the Member said that he advised [the nurse manager] that the charges against him were related to a family affair [ ].

College Counsel directed the Member to the legal documents that he had received upon his release from custody on November 18, 2010 [ ]. The Member testified, through questioning by College Counsel, that [this] was a complete set of documents received by the Member, that he understood the importance of complying with the terms and conditions of his release on bail, and that the document titled “Appendix A” was the most important piece of documentation to provide to the Hospital. The Member further testified that he thought at the time that paragraph I was the most important condition related to his work due to the fact that administering medications was part of his duties. Upon further questioning by College Counsel, the Member acknowledged that it was not his decision to “pick and choose” what information to provide to the Hospital. The Member further testified that he thought that he was giving the Hospital all of the information that he had to, and admitted to modifying the documents. Upon being asked by College Counsel, the Member further admitted to being in violation of s. 1(i) of the Recognizance of Bail, that the restrictions in s. 1(n) of the Recognizance of Bail were hidden from the employer, and that the Member understood the restrictions in s. 1(n) were directly related to the charges to which the Member was subject. The Member went on to say that he did not feel the restrictions on s. 1(n) were necessary for the employer to know and that he would not have been in violation of the bail conditions in carrying out his duties at the Hospital.

The Member acknowledged that he did not indicate that he could not be in the presence of females under the age of 18 years and did not ask about any accommodation related to this bail condition during the December 17, 2010, meeting with [the nurse manager] and [Witness #2]. Upon prompting by College Counsel, the Member acknowledged that the Hospital would need to be aware of this bail condition in order to appropriately accommodate the Member.

College Counsel directed the Member to [certain documents]. The Member acknowledged through questioning that [the copy of Appendix A], which was provided to [Witness #2] on December 17, 2010, at 0900 hours, was deliberately incomplete and copied in such a fashion as to obscure the text after paragraph L and that in effect the Member removed paragraph N which was a bail condition directly related to the charges against the Member. The Member admitted that he did not tell [the nurse manager] or [Witness #2] about the charges against him and that the Member intentionally removed paragraph N because he did not want the Hospital to know the charges against him. The Member then went on to say, “I gave them what I thought they needed” but [added] through prompting that the effect of what was done was to provide the Hospital with inaccurate information. The Member testified that he understood the importance of being open and honest with his employer.

College Counsel brought the Member to the meeting of December 17, 2010, at 0900 hours between himself, [the nurse manager], and [Witness #2]. The Member testified that at this meeting, [Witness #2] stated that the Recognizance of Bail document was incomplete and instructed the Member to provide a complete version. The Member testified that “[Witness #2] asked me for papers and I said that I’ll give you what I have” so the Member “zipped home”.

The Member testified that he went home and retrieved the Recognizance of Bail documents, including the legal-sized form stipulating all bail conditions. The Member testified that this document was in a pile of other pages and that it took him “five, seven, twenty minutes” to locate it. College Counsel asked the Member if the quickest course of action would have been simply to bring the original copy in the Member’s possession directly to [Witness #2], and the Member replied that he did not do that but rather made copies.

The Member testified that he made two copies of the document because the legal-sized document did not fit in his printer and that he could not capture all of the information in one copy. The Member acknowledged, through questioning by College Counsel, that it was not a “ quick exercise” and that it would have been faster to simply bring in the original legal-sized copy of the document that was in the Member’s possession or to take the two pages copied on the Member’s personal printer, staple them together, and submit them to [Witness #2]. The Member testified that he thought that he had brought everything when he left his home to return to the Hospital, and that his only two motivators were “haste and full disclosure”. The Member repeated this three times and testified that his demonstration was intended to show the panel exactly what he had done [on December 17, 2010].

The Member testified that he just “grabbed everything” and returned to the Hospital to submit the required documents to [Witness #2], and that he had left the two copies of the legal-sized bail conditions in his printer [ ]. The Member admitted that this document did not contain all of the information contained in the original legal-sized copy, specifically paragraphs M and N and the specific condition that the Member not be in the presence of females under the age of 18 years old, which was directly related to the criminal charges. The Member acknowledged, through cross examination, that he effectively obscured the information that he provided to his employer and admitted that at no time did he disclose the criminal charges before him to his employer.

The Member testified that these two pages remained in his printer and that he did not think of them until a few months later when he used his printer again. Through cross-examination, the Member testified that at the time that the College of Nurses of Ontario began its investigation the two pages [ ] were still in his possession but that he “threw them out” because he didn’t think that he needed them.

When questioned by College Counsel as to why he would undertake the laborious exercise of making two copies and folding pages to fit on one page, the Member testified that he thought he would need the original and that is why he left the original legal-sized page at home. The Member further acknowledged that it would have in fact been faster to at least bring in the two letter-sized copies that he had made rather than undertake the exercise of folding the pages to make a third copy. Through further questioning by College Counsel, the Member admitted that his printer did not have a shrinking function and that it was impossible to include all information from a legal-sized page onto a letter-sized page without omitting information, and that the second document that he submitted to the employer [ ] was bound to be inaccurate and missing information although the Member denied attempting to intentionally mislead the employer.

The Member testified that it was only following the telephone call from [Witness #2] that he submitted the complete, unaltered legal-sized copy of his bail conditions to the employer. The Member admitted, through repeated questioning by College Counsel, that the first two documents submitted to the employer [ ] were misleading and incomplete.

The Member testified that the submission of incomplete documents on two separate occasions was the result of a photocopying error, and that in his haste to submit the requested documents to [Witness #2,] he did not check the documents he had photocopied before leaving his home to return to the Hospital. The Member admitted in his testimony that he did not suggest that the submission of incomplete documentation was the result of a photocopying error, nor provided a demonstration or brought the multiple copies left on his personal photocopier to the pre-disciplinary meeting of January 5, 2011. When questioned by College Counsel as to why he did not suggest that missing information was the result of a photocopying error or why he did not bring his personal printer to the hospital to provide a demonstration, the Member testified that he was “floored” and “could not believe that this process was happening”.

The Member, through cross-examination by College Counsel, acknowledged that he was expected to disclose a full, un-redacted and unmodified copy of the Recognizance of Bail documents to the Hospital, in terms of both his obligations as an employee as well as his professional obligations as a Registered Nurse.

Redirect Examination

On redirect examination, the Member testified that when he submitted the first copy of his bail conditions, [ ] he deliberately obscured parts of the document but that he only did this because he felt that the restriction on access to drugs was the important element in relation to his employment as a registered nurse. The Member further acknowledged that he should have simply stapled everything together but that he was in a hurry; the Member testified that he should have taken the time and effort and testified that the submission of incomplete documents was the result of “haste, stress, and situational dilemma”.

The Member testified that on multiple occasions, he asked [Witness #2,] “Is there anything else that you need?” and that [Witness #2] never once indicated to the Member that there was information missing from the documents submitted. The Member further testified that a logical person would have done certain steps but that he was not in a logical mind. The Member closed his testimony by stating that he needed to buy a new printer.

The panel found that while the Member genuinely seemed to believe what he was testifying to, his testimony was at times evasive and circular, particularly when testifying about the documents that he left at home and his motivations for making multiple copies of the bail release conditions. This gave the panel the impression that the Member was trying to hide information. The panel [found] that the Member [did not provide] accurate and complete observations, that the Member brought up many irrelevant and non-salient points, and that his testimony was difficult to follow. The panel found that the Member’s memory was not consistent and that he seemed to have “memory lapses” depending on the questions being asked of him. The Member made several inconsistent statements and the panel did not find that the Member’s behaviour and actions were reasonable given the circumstances. The panel was given the impression that the Member was deliberately trying to hide information and confuse matters, both in terms of the allegations at hand and throughout his testimony. Although the panel acknowledges that the Member was extremely nervous, the Member’s testimony did not convince the panel that the submission of altered Recognizance of Bail documents was accidental, as opposed to an intentional commission as alleged by the College.

Final Submissions

The College

College Counsel began closing submissions by advising the panel that he would review each of the factual allegations and review the evidence as it relates to each allegation.

College Counsel submitted that the Member admitted to failing to provide a true copy of his bail conditions to his employer on two separate occasions on December 17, 2010. The Member also admitted that the documents provided to the employer were misleading by virtue of the fact that they omitted a material condition of the Member’s bail. College Counsel further submitted that that Member admitted to modifying and altering the documents submitted to the employer on two separate occasions December 17, 2010. With respect to the first document submitted [ ], the Member deliberately obscured the conditions below section 1(L) and in particular the prohibition [on] being in the presence of females under the age of 18 years without the presence of a surety. With respect to the second document submitted [ ], the Member admitted that the copy he submitted to the employer had effectively been modified/altered to remove section 1(N). College Counsel submitted that there is no question that the documents were modified/altered and that this factual allegation was proven on the Member’s own admissions.

College Counsel submitted that the second factual allegation[ ] speak[s] to the Member’s motivations and state of mind, and [gives] rise to the issue of credibility. College Counsel submitted that both documents submitted by the Member to the employer [ ] were obscured and that the Member’s intention was to deceive the employer and to conceal the prohibition [on] being in the presence of females under the age of 18 years old as this restriction was directly related to the criminal charges against the Member. College Counsel further submitted that the Member’s rationalization for concealing the entirety of his bail restrictions was in direct violation of one of the Member’s bail requirements, which was to fully disclose the Recognizance of Bail documents. In support of the College’s position that the Member intentionally attempted to present falsified documents to the employer, College Counsel submitted that even after being asked by the employer to submit a complete, un-redacted copy of the bail conditions, the Member undertook the laborious copying exercise whereby he attempted to put the contents of a legal-sized paper on letter-sized paper.

College Counsel submitted that the Member’s explanation, which was that the submission of altered documents was the result of a photocopying error, was nonsensical because if the Member’s motivation was to provide the employer with the required documents post-haste, he would have simply brought the original copies of the documents from home and allowed the employer to make copies, rather than undertaking a laborious copying exercise using his own home printer and that the only logical reason to undertake this exercise was to remove information. College Counsel directed the panel to the Member’s testimony, where the Member stated that his printer did not have a shrinking function, and therefore it would have been impossible for the Member to use his home printer to copy the entire contents of a legal-sized page onto one letter-sized page. Counsel also referred the panel back to the Member’s demonstration with his home printer, which confirmed the testimony in this regard. College Counsel also directed the panel to recall the Member’s testimony, wherein he admitted that his copying exercise had the natural and inevitable effect of removing information. College Counsel further reminded the panel that the Member acknowledged that the first time a copying error was presented as a reason for the submission of false/incomplete documents was during this hearing, that the Member effectively did not provide any explanation as to why he had never raised a copying error as the reason for the submission of incomplete information to the employer, and submitted as such that the Member’s explanation of copying error being the cause of submitting false information was a fabrication.

College Counsel submitted that it can only be concluded that the Member’s explanation as to why he submitted an altered copy of his bail conditions [ ] was untrue. College Counsel submitted that while the copy of the document was created in the manner in which the Member testified, the only reason for this was to withhold specific bail conditions and that the submission of incomplete documentation was done out of the Member’s desire to keep secret the nature and avoid discussion of the criminal charges against him. College Counsel returned the panel to the testimony of [Witness #2,] who explained that he had been advised by the Member that the criminal charges he was facing related to a family affair involving the Member’s son. College Counsel further submitted that even if the Member’s explanation of the copying error was to be accepted, the Member’s actions in producing the second copy of his bail conditions [ ] [were] on the Member’s own account reckless, as the Member confirmed that he did not verify the completeness of the document before submitting it to the employer.

College Counsel submitted that with respect to the third factual allegation, namely that the Member failed to comply with a Court direction requiring him to provide his employer with a true copy of the recognizance of bail documents, [it] was established through the Member’s own admissions. College Counsel reminded the panel that the Member testified that it was his opinion that the only salient point was the prohibition [on] being in the possession of controlled substances and that this had a direct impact on his work as a Registered Nurse. College Counsel submitted that it was not the Member’s decision as to what was salient or not, and that the Member admitted that he did not comply with the bail condition of providing his employer with a copy of his bail conditions. College Counsel submitted that this factual allegation was clearly established and was on record through the Member’s own admissions.

With respect to the nature of the Member’s conduct, College Counsel submitted that there was no question that the Member provided false information and altered documentation to the employer, and that this act was directly relevant to the Member’s practice as a Registered Nurse. College Counsel submitted that the Member’s conduct had the effect of undermining public confidence and had an element of moral failing on the part of the Member. College Counsel submitted that on the spectrum of conduct being unprofessional, dishonourable, or disgraceful, the Member’s conduct was at the most serious end of the spectrum due to the fact that the Member deliberately attempted to deceive the employer through the modification of court documents, and that this relates to the issue of public safety and the employer’s responsibility to regulate its workforce. College Counsel reminded the panel that the Member finally disclosed all bail conditions on December 20, 2010, and that whether the prior submissions of altered documents [were] deliberate or reckless, the Member’s conduct was fundamentally dishonest and, as such, would be regarded by the members of this profession as unprofessional, dishonourable, and disgraceful.

The Member

The Member began his closing statement by opining that the key issue at hand was whether or not there was the intent to deceive the employer. The Member stated that he holds advanced university degrees and was the recipient of the highest awards that the Hospital had to offer. The Member submitted that according to a special investigative officer, the important bail restriction was the Member’s access to medications, and that [Witness #2] advised the Member that the employer did not need to be advised of the charges against him.

The Member reminded the panel that it had seen a demonstration of how a copying error can occur and submitted that he repeatedly stated to [Witness #2,] “Is there anything else I can do to help[?]” The Member stated that he had shown the panel how amenable he was to providing information, and that he did in fact provide further information to the employer. The Member rhetorically asked the panel if it would seem more possible that he tried to act in good faith or if he tried to deceive a forensic expert (in reference to [Witness #2]). The Member submitted that the bail conditions could have easily been respected not only through the architecture of the unit in which he worked at the time of the incident, but also through a transfer to another division of the Hospital. As well, the Member noted that the Hospital only served a [client] population over 18 years of age.

The Member submitted that he had over twenty years of healthcare experience, and that in that time his integrity had never been questioned and he had never been found guilty of any crime. The Member submitted that given this, it should be clear that he did not deliberately try to deceive his employer, because accommodations could have clearly been made to satisfy his bail conditions.

The Member completed his submissions by remind[ing] the panel that the incident relating to the criminal charges involved [a domestic matter]; that he has shown the panel everything he presented; and that he demonstrated throughout that he was more than helpful and willing to give anything.

Decision

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

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed an act of professional misconduct as alleged in paragraph 1(a), 1(b), 1(c), 1(d), and 1(e) of the Notice of Hearing. The Member engaged in conduct and performed acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, and unprofessional.

Reasons for Decision

The panel finds that the Member failed to provide his employer with a true, unmodified and unaltered copy of his recognizance of bail documents, which was a condition of bail; that the Member intentionally falsified the recognizance of bail documents in an attempt to deceive his employer; and that the Member failed to comply with a Court direction requiring him to provide his employer with a true copy of the recognizance of bail documents.

With respect to the factual allegation that the Member failed to provide his employer with a true, unmodified and unaltered copy of his Recognizance of Bail documents which was a condition of bail, the Member admitted to providing the employer first with a copy of his bail conditions with the information contained after section 1(L) missing [ ] and then with a copy of his bail conditions with specific sections missing, notably sections 1(M) and 1(N) [ ]. The Member admitted that he failed to provide the employer with a true copy of his bail conditions, and the evidence submitted into the record by the College clearly shows that the documentation provided by the Member to his employer was incomplete. While the Member testified that he did not feel the missing bail conditions were relevant to his employment, the bail conditions were to be provided to his employer, in full, regardless of whether the Member believed them to be relevant to his employment.

The Member admitted to undertaking a laborious copying exercise whereby he folded parts of the Recognizance of Bail documents with the net effect of obscuring information. The Member testified that he provided the conditions that he felt were related to his employment and admitted that in making the second copy of his bail conditions for the employer [,] he modified the contents of the document. The Member further admitted that the net effect of this copying exercise was that key elements relating to his bail conditions were removed. This was further confirmed in the Member’s own demonstration to the panel, where it was plainly shown that the full contents of a legal-sized document could not be completely copied onto a letter-sized paper without reducing the scale of the document, something the Member’s printer could not do. While the Member testified that his submission of incomplete and altered copies of his bail conditions to his employer were the result of an honest mistake that arose out of challenges with his personal printer, the panel found that this explanation is not plausible or reasonable given all of the circumstances. While the panel could have given the Member the benefit of the doubt in regard to the removal of bail conditions on the first copy that was submitted to the employer, [ ] in that he thought that he was only providing relevant information, the employer specifically refused this document and explicitly instructed the Member to provide a complete copy of the bail conditions, which he did not do. The Member’s demonstration with his personal printer further confirmed that the omission of certain bail conditions was intentional on the Member’s part.

With respect to the factual allegation that [ ] the Member intentionally falsified the recognizance of bail documents in an attempt to deceive his employer, the panel finds that the Member sought to deceive the employer because the employer repeatedly asked for a full unabridged copy of the document and the Member simply did not provide it on the first two occasions. The Member’s photocopying demonstration did not support the Member’s claim that this was a simple error; but instead confirmed that the Member intentionally withheld information, and that the Member’s assertion of a photocopying error was not reasonable given the circumstances. The Member had a vested interest in hiding the information relating to the criminal charges and bail restrictions from his employer.

With respect to the factual allegation that the Member failed to comply with a Court direction requiring him to provide his employer with a true copy of the Recognizance of Bail documents, the Member clearly failed to respect this condition by providing his employer with incomplete, redacted copies of the documents on two occasions [ ]. The Member testified that he did not think that the missing conditions were relevant to his employment. There was, however, not a provision in the bail conditions that allowed the Member to select which conditions were provided to the employer - section 1(I) of the Recognizance of Bail documents clearly state that Member was to provide his employer with a copy of these documents. The panel found these instructions to be very clear, and the Member failed to provide a convincing argument as to why these conditions were not respected.

The panel found that the Member’s conduct was unprofessional because he demonstrated a serious and persistent disregard for his professional obligations, failed to exercise good [judgment] and responsibility, and posed a risk to public safety. The Member had a professional obligation to provide his employer with all information relevant to his bail conditions, and demonstrated poor [judgment] by trying to make copies of important documents on his own printer rather than simply submitting the original copies in his possession to the employer. The Member placed the public at risk by attempting to withhold the bail condition prohibiting him from being in the presence of females under the age of eighteen years.

The panel found that the Member’s conduct was dishonourable because it involved dishonesty and deceit: the panel could accept that the first time the Member omitted information on the copy of his bail conditions provided to the employer was accidental; however, the same information was omitted a second time despite the employer clearly instructing the Member to submit a complete version of his bail conditions. The Member ought to have known that withholding bail conditions was in direct violation of the court order as well as having the effect of misleading his employer.

The panel found that the Member’s conduct was disgraceful because the Member – up to the start of this hearing – refused to acknowledge that he purposely withheld bail conditions from his employer and [ ] intentionally submit[ed] altered/modified copies of his bail conditions to the employer. The panel finds that this continued lack of accountability and responsibility, as well as the fact that the Member on numerous occasions submitted incomplete documents despite direct orders both from the court and his employer to the contrary, has the effect of shaming the Member.

Penalty Submissions

The College

College Counsel submitted that in view of 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 months [of the date] that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for five months. This suspension shall take effect from the date of this Order and shall continue to run without interruption.

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

a) The Member will attend two meetings with a Nursing Expert (the “Expert”), at his 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, [and] has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

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

1. the Panel’s Order,

2. the Notice of Hearing, and

3. 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 module:

1. Professional Standards (Revised 2002),

iv. At least seven 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,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that 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 his 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 his certificate of registration;

b) For a period of 24 months from the date of this Order, the Member will notify his employers of the decision. To comply, the Member is required to:

(i) Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

(ii) Provide his employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. a copy of the Panel’s Decision and Reasons, once available;

(iii) Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

c) The Member shall fully comply with the terms of his recognizance of bail conditions, as long as they are in effect.

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

College Counsel outlined the proposed penalty which consists of an oral reprimand, a five-month suspension and terms, conditions and limitations, including remediation and monitoring. College Counsel submitted that the oral reprimand and suspension provide for both specific and general deterrence as [they] demonstrate[ ] that the College does not tolerate dishonest and deceitful conduct and serve[ ] to maintain public trust in the profession. Moreover, the period of suspension provides for public protection by removing the Member from practice for a direct period of time, during which the Member will undergo remedial activities.

College Counsel submitted that the remediation and monitoring element of the proposed penalty brings home the seriousness of the Member’s conduct by requiring the Member to meet with an expert in nursing standards in order to understand the seriousness of his conduct, and that the monitoring and employer notification clause provides for public protection. College Counsel further submitted that the proposed penalty stipulates that a breach of the bail conditions would also constitute a breach of the penalty order that could give rise to further allegations of professional misconduct, which again provides for public protection.

College Counsel submitted that while the period of suspension is significant, it is in line with previous decisions of the Discipline Committee. College Counsel directed the panel to the penalty order in CNO v. Nicol (heard January 3, 2008) that involved a nurse practi[s]ing with an elapsed certificate of registration and the submission of a forged Annual Payment Card to an employer. In that case, the nurse received a three-month suspension that resulted from a joint submission on order between both parties.

College Counsel also directed the panel to the penalty order in CNO v. Codhina (heard February 25, 2008) that involved a nurse falsifying a police record check in order to meet the policy requirements of his employer. College Counsel submitted that in the Codhina case there were also multiple breaches of nursing standards, but that the most serious finding of professional misconduct was around the forgery of a police clearance letter, and that the six-month suspension imposed there was reflective of the seriousness of that nurse’s overall misconduct.

College Counsel submitted that the mitigating factors in the case at hand include the fact that the Member’s conduct occurred over a 1-day period and that the Member ultimately provided his employer with the full information required. As well, the College Counsel reminded the panel that the Member had no prior dealings with the Discipline Committee.

College Counsel submitted that the aggravating factors in the case at hand include the fact that the Member attempted to deceive his employer with respect to a serious issue involving criminal charges; that the Member falsified an official court document; and that the Member failed to admit to the misconduct and has not shown any insight into the seriousness of his actions. College Counsel submitted that the Member breached his professional obligations to both his employer and [ ] the College, as well as attempted to undermine the protections that the bail conditions provided for. College Counsel reminded the panel that the Member’s decision to exercise his right to contest the allegations against him is not an aggravating factor.

College Counsel concluded his penalty submissions by underlining the seriousness of the Member’s misconduct and the potential of this conduct to undermine the public’s confidence in the nursing profession. College Counsel argued that the panel needs to demonstrate an appropriate response to the Member’s conduct and its expectation that nothing less than full, forthright disclosure will be tolerated through its penalty order.

The Member

In his penalty submissions, the Member admitted to falsifying the bail documents and went on to state that he removed himself from practice settings such as emergency and intensive care where he could not control the age of the population served.

The Member submitted that he has never been found guilty of anything and has still not been found guilty of the charges before him, and that unfortunately following the termination of his employment he suffered a deep depression.

The Member submitted that he tried to give the required information to his employer and that he did remove himself from other [nursing] positions where he would not have control over the age of the persons [with whom] he interacted [ ]. The Member submitted that he tried to act professionally and understands that he needs some discipline because he falsified documents.

Following the Member’s penalty submission, College Counsel submitted that in addressing penalty, the panel must only consider the issue at hand, which is the falsification of documents and the discreet misconduct alleged in the Notice of Hearing.

Penalty Order

The Panel of the Discipline Committee makes the following Order:

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

2. Directing the Executive Director to suspend the Member’s certificate of registration for five months. This suspension shall take effect from the date of this Order and shall continue to run without interruption.

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

a) The Member will attend two meetings with a Nursing Expert (the “Expert”), at his 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, [and] has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

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

1. the Panel’s Order,

2. the Notice of Hearing, and

3. 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 module:

1. Professional Standards (Revised 2002),

iv. At least seven 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,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that 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 his 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 his certificate of registration;

b) For a period of 24 months from the date of this Order, the Member will notify his employers of the decision. To comply, the Member is required to:

(i) Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

(ii) Provide his employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. a copy of the Panel’s Decision and Reasons, once available;

(iii) Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

c) The Member shall fully comply with the terms of his recognizance of bail conditions, as long as they are in effect.

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

Reasons for Penalty Decision

In considering the appropriate penalty, the panel took into account the seriousness of the offence: namely that the Member intentionally withheld information from his employer, contrary to a criminal court order, and falsified court documents on more than one occasion.

The panel concluded that the penalty proposed by the College was reasonable and achieves the objective of public protection. The five-month suspension addresses both specific and general deterrence, and reflects the seriousness of the Member’s actions. The suspension sends a clear message to both the Member and the profession that such behaviour will not be tolerated. The penalty includes both educational and remedial components, and addresses the need for public protection by ensuring the Member’s employers will be aware of his conduct for a period following his suspension.

While the panel found that the period of suspension was significant and on the higher end of the spectrum for similar conduct, it did underline and reinforce the seriousness of the Member’s conduct and specifically the element of repetitive deceit. While the panel acknowledges the Member’s right to contest the allegations before him, the Member ultimately albeit circuitously admitted to the factual allegations against him, but continued to demonstrate a lack of insight as well as accountability for his actions.

I, Carl Balcom, 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:

April Plumton, RPN

Spencer Dickson, RN

Cathy Egerton

Linda Bracken