College of Nurses of Ontario v. Allison Sadowski, 2013 CanLII 101443

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Lorenza Barron, RN Member April Plumton, RPN Member Gino Cucchi Public Member Debra Mattina Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MEGAN SHORTREED for College of Nurses of Ontario

• and -

ALLISON SADOWSKI Registration No. JB08702 MARY JANE CAMPIGOTTO for Allison Sadowski

Heard: May 27, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 27, 2013 at the College of Nurses of Ontario ("the College") at Toronto.

The Allegations

The allegation against Allison Sadowski (the "Member") as stated in the Notice of Hearing dated April 10, 2013, is as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that on January 22, 2009, in the Ontario Court of Justice in [ ] Ontario, you were found guilty of an offence relevant to your suitability to practise, and in particular, you were convicted of a charge that:

On or about the 27th day of November in the year 2008 [ ] in the Southwest Region did steal from [the Victim], and at the time thereof, use violence to the [Victim], and thereby commit robbery, contrary to s. 344(1) of the Criminal Code of Canada.

Member's Plea

The Member admitted the allegation set out in paragraph 1 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

1. Allison Sadowski (the "Member") was initially registered with the College of Nurses of Ontario (the "College") as a Registered Practical Nurse in 2002.

2. The Member's Certificate of Registration was suspended on July 10, 2008 by the Executive Director of the College as directed by a Board of Inquiry for failure to submit to the health examination pursuant to s. 59(2) of the Code. Her Certificate remained suspended for that reason until August 31, 2011, at which time it was suspended for non-payment of fees. It remained suspended for non-payment until March 8, 2013.

PROCEDURAL STEPS LEADING TO HEARING OF PROFESSIONAL MISCONDUCT ALLEGATIONS

3. The Inquiries, Complaints and Reports Committee ("ICRC") initiated an investigation into the Member's conduct pursuant to s.75(1)(a) of the Code on September 16, 2009.

4. The ICRC referred the allegations of professional misconduct under s. 51(1)(a) of the Code to the Discipline Committee on May 12, 2010.

5. The College issued a Notice of Hearing setting a hearing for November 8, 2010, which hearing was adjourned at the Member's request to allow her time to retain and instruct counsel.

6. The Member attended a pre-hearing conference via telephone on February 14, 2011, without counsel, and consented to a new hearing date of April 18, 2011. A schedule was also set whereby the Member agreed to have any documents she intended to rely on delivered to the College by no later than March 18, 2011.

7. The Member retained counsel who first contacted the College on March 16, 2011. The April 18, 2011 hearing date was adjourned at the Member's request to allow her counsel more time to gather documents. A new hearing date fixed for May 20, 2011.

8. The May 20, 2011 hearing date was adjourned, at the Member's request, based on her assurances she would enter into an Undertaking to cooperate with the incapacity proceedings and attend a health examination. The Member signed the Undertaking on June 1, 2011, and complied with its terms.

9. A decision of the Fitness to Practise Committee ("FTP") was issued on consent effective December 15, 2012. [ ]

10. This hearing on professional misconduct was scheduled after the conclusion of the FTP proceeding.

INCIDENTS RELEVANT TO THE ALLEGATIONS OF PROFESSIONAL MISCONDUCT

11. On January 22, 2009, in the Ontario Court of Justice in [ ] Ontario, the Member pled guilty to, and was found guilty of a criminal offence as follows:

a) On or about the 27th day of November in the year 2008 [ ] in the Southwest Region did steal from [the Victim], and at the time thereof, use violence to the [Victim], and thereby commit robbery, contrary to s. 344(1) of the Criminal Code of Canada.

12. The Member admitted the following facts in the criminal proceeding:

a) On Thursday, November 27, 2008, at around 1:30 a.m., the [Victim], was driving a cab;

b) He picked up the Member, who sat in the front passenger seat when she got into the taxi;

c) [The Victim] pulled into the driveway at the destination and stopped the meter;

d) The Member reached into her pocket and then she started, what he thought was, punching him in the head;

e) He pushed the button to start the surveillance camera in the taxi and then jumped out of the cab;

f) He called 911 on his cell phone and then realized that his head was bleeding and he had been stabbed in the head, not punched as he had thought;

g) The Member slid over to the driver's seat of the taxi and backed it out of the driveway and onto the road;

h) She then saw [the Victim] on the phone, stopped the cab, got out and walked quickly toward him with a large kitchen knife in her right hand;

i) He yelled at her to stay away from him, but she continued toward him and held the knife out in front of her;

j) He ran and she continued after him, forcing him to keep going;

k) The police attended and [the Victim] provided a description of the Member. The officers searched the area and discovered her hiding in a shed in a back yard. She was arrested, and the knife was also recovered from inside the shed;

l) The Member made utterances to the arresting officers, saying, "I wanted to rob him, I needed cash. I just didn't know how to do it. When I was supposed to pay him, I kind of pretended I was getting money, but I got the knife and stabbed him a little. I wanted money."

13. The Member completed a 90-day treatment program [ ] prior to sentencing. [ ] She was sentenced to 5 months in jail, and one year probation. She was [ ] prohibited from possessing weapons for 10 years.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

14. The Member admits that the offence of robbery, with violence, is relevant to her suitability to practise. It involved conduct that caused psychological, physical and financial harm to the victim.

15. The Member admits that the offence of robbery, with violence, was not in keeping with the values of nursing, brings nursing into disrepute, and undermines the public confidence in the profession.

16. The Member admits that she committed the acts of professional misconduct as alleged in the Notice of Hearing, as described above.

17. If the Member were to testify, she would say that she is deeply remorseful and apologetic to the College for the incident.

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 1 of the Notice of Hearing in that she was found guilty of an offence relevant to her suitability to practise, and in particular, she was convicted of a charge that;

On or about the 27th day of November in the year 2008 [ ] in the Southwest Region did steal from [the Victim], and at the time thereof, use violence to the [Victim], and thereby commit robbery, contrary to 334(1) of the Criminal Code of Canada.

Reasons for Decision

The panel found the Agreed Statement of Facts was clear and supported the allegation made against the Member. The Member admitted the allegation. The offence was relevant to the Member's suitability to practise nursing. The Member's conduct placed the safety of others in peril and demonstrated a lack of regard for the well-being of others, which is contrary to the values of the nursing profession.

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 requested that this panel make an order as follows:

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

2. Directing the Executive Director to suspend the Member's Certificate of Registration for five months. This suspension shall take effect from the date that this Order becomes final 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 sessions with a Nursing Expert (the "Expert"), at her own expense, 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 ethics, has been approved by the Director of Professional Conduct (the "Director") in advance of the meetings, and has confirmed she or he will provide a report following the sessions;

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,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel's Decision and Reasons;

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

1. Professional Standards (Revised 2002), and

2. Professional Conduct, Professional Misconduct Reference Document.

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, and

3. the publications, questionnaires and modules set out above;

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

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert's assessment of the Member's insight into her behaviour;

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

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

Penalty Submissions

College Counsel explained that the Member already has terms, conditions and limitations on her certificate of registration as a result of her Fitness to Practise hearing, and she is currently able to practise. The proposed penalty strives to not duplicate the current terms, conditions and limitations. Counsel submitted that the parties jointly seek an order which requires the Member to appear for a reprimand, suspend her certificate of registration for a period of five months and impose conditions that require the Member to attend sessions with a nursing expert.

Counsel also submitted that the penalty is appropriate as it contains specific deterrents to the Member, general deterrents to the nursing profession and provides protection to the public. The five month penalty falls within the range of similar offences and appropriately expresses the College's renunciation of criminal conduct.

Counsel submitted this was a single offence, and the Member has no past criminal convictions or incidences of professional misconduct. The Member has cooperated with the College and has shown remorse. The Member's behaviour was motivated by an addiction which she has addressed and for which she continues to obtain treatment. Counsel submitted that while the five-month suspension is in the low end of the range of an appropriate suspension, when it is combined with the 60 months of terms, conditions and limitations on the Member's certificate of registration imposed by the Fitness to Practise Committee, it is sufficient for the purposes of deterrence and public protection.

The Member's Counsel agreed with College Counsel and submitted that the Member was remorseful and apologetic. She submitted that with continued treatment the Member has hopes of restoration of her license to practice. The proposed penalty will bring the Member back to a functional role in the nursing profession.

Both Counsel submitted that the panel should not interfere lightly with a Joint Submission on Order.

Penalty Decision

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

1. The Member is required to appear before the Panel to be reprimanded within three months of the date of this Order.

2. The Executive Director is directed to suspend the Member's Certificate of Registration for five months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member's Certificate of Registration:

a) The Member will attend two sessions with a Nursing Expert (the "Expert"), at her own expense, 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 ethics, has been approved by the Director of Professional Conduct (the "Director") in advance of the meetings, and has confirmed she or he will provide a report following the sessions;

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,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel's Decision and Reasons;

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

1. Professional Standards (Revised 2002), and

2. Professional Conduct, Professional Misconduct Reference Document.

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, and

3. the publications, questionnaires and modules set out above;

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

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert's assessment of the Member's insight into her behaviour;

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

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

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions. The panel relied on the fact that the Member has cooperated fully with the College throughout this process, thereby demonstrating accountability for her actions, and has been actively treated for her serious health condition to address the conduct that lead to the conviction.

The panel found that the term of the suspension was not outside the range of acceptable outcomes such that it would bring the administration of justice into disrepute. Both Counsel in their submissions stated that a Joint Submission on Order should not be interfered with lightly. In reviewing the Order, the panel found no grounds to reject or alter the Order and accepts the Order as submitted. The penalty is significant and sends a strong message to the Member and to the nursing profession. The panel finds that the penalty order provides for specific and general deterrence, protection of the public and remediation.

I, Michael Hogard, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Lorenza Barron, RN April Plumton, RPN Gino Cucchi, Public Member Debra Mattina, Public Member