College of Nurses of Ontario v. Erynn MacLeod, 2013 ONCNO 101444

PANEL: Nancy Sears, RN Chairperson Jim Attwood, RN Member Susannah Handley, RN Member Renate Davidson Public Member Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO (JEAN-CLAUDE KILLEY for College of Nurses of Ontario)

and -

ERYNN MACLEOD Registration No. 9625419 (NO REPRESENTATION for Erynn MacLeod)

Heard: October 2, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 2, 2013 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Erynn MacLeod (the “Member”) as stated in the Notice of Hearing (Exhibit 1) dated September 10, 2013, are as follows.

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as follows:

a) on or about March 22, 2012, you failed to maintain appropriate systems for the control, storage, access, security and/or monitoring of narcotics of which you took custody on behalf of [the Client], with the result that some of those narcotics went missing and/or were stolen;

b) in about February 2012 to March 2012, you permitted a person who was not the client’s authorized representative to accompany you on one or more home visits to [the Client], thereby disclosing personal information about the client to that person, without the client’s consent or other authorization;

c) in about February or March 2012, you inappropriately disclosed personal information about yourself to [the Client] and/or his wife; and/or

d) in about February or March 2012, you accepted money from [the Client] and/or his wife as a gift and/or a loan.

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(10) of Ontario Regulation 799/93, in that you gave information about a client to a person other than the client or his or her authorized representative without the consent of the client or his or her authorized representative and without being required or allowed by law, and in particular, in about February 2012 to March 2012, you permitted a person who was not the client’s authorized representative to accompany you on one or more home visits to [the Client], thereby disclosing personal information about the client to that person, without the client’s consent or other authorization;
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while engaged in the practice of nursing as a Registered Nurse at the Facility, you engaged in conduct relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows:

c) in about February or March 2012, you inappropriately disclosed personal information about yourself to [the Client] and/or his wife; and/or

d) in about February or March 2012, you accepted money from [the Client] and/or his wife as a gift and/or a loan.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1, 2 and 3 in the Notice of Hearing. The panel received a written plea inquiry (Exhibit 2) which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts (Exhibit 3) which provided as follows.

THE MEMBER

Erynn Macleod (the “Member”) obtained a diploma in nursing [ ] in 1996.
The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on July 19, 1996. The Member was suspended for non-payment of fees from February 15, 2011 to March 22, 2011 and from February 15, 2012 to March 14, 2012. The Member was interim suspended by the Inquiries, Complaints and Reports Committee on February 14, 2013.
The Member was employed at [the Agency] from February 6, 1997 to April 16, 2012.

THE AGENCY

The Agency is located in [ ] Ontario. It provides a variety of home care services to clients, including nursing services.
The Member worked for the Agency providing nursing care to clients in their homes. She worked on a casual basis on the day shift.

THE CLIENT

[The Client] was 66 years old at the time of the incidents.
The Client was diagnosed with terminal, chronic obstructive lung disease. In October 2011, he began receiving palliative nursing care in his home through the Agency.
The Member was assigned to provide care to the Client on a daily basis, beginning in November 2011.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Agency outlined Job Performance Expectations for all employees, including an expectation that employees “review, be knowledgeable of and comply with all current standards, rules, policies, procedures and work routines.”
The Agency’s “Employee Code of Behaviour/Accountability” contained a section on “Confidentiality of Client Records and Information.”
The policy stated:

Confidentiality of client information must be maintained in order to safeguard the human rights and legal interests of [Agency] clients.

All information, written or verbal, regarding the condition of the client, and/or their physical, financial, private and family affairs must be kept in the most strict confidence at all times and in all situations.

The Agency’s Job Performance Expectations also included the following requirements:

Confidentiality

Employees will maintain the confidentiality of verbal, written, electronic and observed information which comes to their attention during employment. Confidential information will only be released with proper authorization.

Confidential information includes all information relating to current and former [Agency] employees, clients, their families, health records...

Money and Gifts

Employees will not seek or accept money or gifts from current or former clients or their families without the prior authorization of the Branch Manager.

Conflict of Interest

Employees will avoid conflict of interest situations which are situations where an employee’s personal interests are in conflict with their employment or results in the public perception of a conflict...Examples of conflicts of interest include:

Borrowing or accepting money, property or possessions from a client or their family,
Taking relatives, associates or pets to a client’s home or taking a client to an employee’s home.

A. Breach of confidentiality

The Member made numerous visits to the Client’s home while her [partner] waited in the car.
On one occasion, [the Member’s partner] was invited into the Client’s house to help the Client and his wife with manual labour, such as moving things out of the Client’s basement.
On another occasion, [the Member’s partner] entered the Client’s home to help the Member remove books the Client was giving to the Member’s [child].
On a third occasion, [the Member’s partner] entered the Client’s home to provide the Client and his wife with a quote to renovate their bathroom.
The Member admits that she allowed [her partner] to wait in the car while she made nursing visits to the Client’s home, and that he entered the Client’s home on several occasions. The Member understands that by allowing [her partner] to accompany her on these visits she breached the Client’s privacy and confidentiality. She divulged to [her partner] the Client’s identity, address, and other personal information about the Client, which she only had access to because of her nursing relationship with the Client. [The Member’s partner] is not a nurse, had no reason or authority to have access to the Client’s personal information, and the disclosure was unrelated to any healthcare purpose.

B. Disclosing personal information about herself to the Client

The Member disclosed personal information, including information about her financial difficulties, to the Client and his wife.
In particular, the Member told the Client and his wife that she was unable to pay her annual renewal fees to the College and that she had to pay a $700.00 fine in order to maintain her membership.
If the Member were to testify, she would say that she made this disclosure in response to a question from the Client’s wife about why she was no longer making nursing visits to the Client. The Member explained that her certificate of registration had been suspended because she did not pay the fees on time, and could not afford to pay the late-payment fee.
The Member admits that she told the Client’s wife about her inability to pay her fees, and expected that the Client’s wife would inform the Client about her situation. She admits that this was not done for a healthcare purpose.

C. Accepting money from the Client

In response to the Member’s disclosure of personal information, the Client’s wife wrote a cheque in the amount of $700.00 to the Member, which the Member deposited. The cheque was dated February 28, 2012. The re: line of the cheque indicated that it was a “Gift.” The Member accepted the cheque from the Client and his wife to help her with her financial difficulties.
According to the Client, the Member repaid $250.00 of the $700.00.
If the Member were to testify, she would say that she did accept a cheque in the amount of $700.00 from the Client. However, the Member would say that she repaid the amount in full.
The Member admits and understands that borrowing money from a client or accepting a monetary gift from a client is inappropriate, regardless of whether it was paid back or not.

D. Missing narcotics

On January 16, 2012, the Member suggested to the Client and his wife that the Client’s pain might be better managed through the administration of hydromorphone hydrochloride (“Dilaudid”), which can be administered in a nebulised form, rather than the morphine sulfate syrup (Statex) that he had previously been taking. The Member called the Client’s doctor to discuss this, and the doctor prescribed Dilaudid to the Client. The Member told the Client’s wife that she would pick up the medication from [the Pharmacy], as needed, so the Client’s wife would not have to go herself. The Member signed for the Client’s medication at the Pharmacy on each pick up.
The pharmacist became concerned that an inordinately large quantity of Dilaudid was being prescribed to the Client and dispensed to the Member. He wanted to make sure that narcotics were not being diverted and that the Member was delivering the full quantity of narcotics to the Client.
In order to verify this, on March 22, 2012, the pharmacist had a clerk at the Pharmacy call the Client’s wife, under the pretense of advising her that they were not able to fill the full prescription and would have to fill the rest later. The clerk asked the Client’s wife to verify the quantity of narcotics actually delivered by the Member and to call them back to let them know.
The Client’s prescription was for 96 1ml vials of Dilaudid HP 10 mg/ml. The Pharmacy dispensed 52 vials on March 22, 2012, leaving 44 vials to be dispensed on the prescription.
When the Client’s wife verified the quantity in the box delivered by the Member that day, only 10 of the 52 vials that had been dispensed were there.
The following day, the Member came to the Client’s house with what was supposed to be the remaining 44 vials. When the Client’s wife checked the vials, she noted that there were again only 10 in the box. Of the 92 vials dispensed to the Member, only 20 were actually delivered by the Member to the Client.
The Client’s wife confronted the Member about the missing vials. The Member explained that her [partner], must have stolen the narcotics. Because he accompanied the Member on her nursing visits, [her partner] had the opportunity to steal the narcotics when the Member made a nursing visit after she picked up the Client’s medication at the Pharmacy, but before she made her visit to the Client.
[The Member’s partner] admits that he stole the medication, and says that he did so without the Member’s knowledge. He admits that he stole the medication while the Member was making a nursing visit to another client, in between picking up the Client’s medication and making the visit to the Client. He further admits that the incident on March 22, 2012 was not the first time he had stolen narcotics in that same way, and that he had done so on several occasions.
The Member admits that it was only possible for [her partner] to steal the Client’s narcotics because she failed to maintain appropriate systems for controlling, storing, accessing and monitoring the narcotics, and failed to ensure their security. She admits that, having volunteered to pick up the Client’s medications, and having in fact picked them up, it was her responsibility to take appropriate steps to ensure their security until she delivered them to the Client, and that she failed to do so.
On July 3, 2013, the Member pled guilty to stealing vials of Dilaudid Hydromorphone of a value not exceeding $5,000.00 from the Client, contrary to section 34(b) of the Criminal Code of Canada.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as described in paragraphs 9 to 35 above and as set out in the Notice of Hearing in paragraphs:

1(a), (b), (c) and (d);
2
3(a), (b), (c) and (d) in that her conduct was disgraceful, dishonourable and unprofessional.

Decision

The panel considered the Agreed Statement of Facts and the Member’s plea and finds that these support findings of professional misconduct and, in particular, finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2 and 3 of the Notice of Hearing. With respect to allegation 3, the panel finds that when considered in totality, the Member engaged in conduct relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, dishonourable and disgraceful.

Reasons for Decision

The panel conducted detailed deliberations with respect to the evidence set out in the Agreed Statement of Facts and the Member’s admission of the allegation and found that the evidence, as set out, was clear and was accepted by the panel.

As to allegation 3, disgraceful conduct has the effect of shaming the Member, and by extension, the profession. It casts serious doubt on the Member’s inherent ability to discharge the high obligations the public expects nurses to meet. Dishonourable conduct carries an element of dishonesty and deceit. Unprofessional behaviour includes behaviour that breaches the standards of practice. The panel finds that in totality, the conduct of the Member was relevant to the practice of nursing and includes elements of disgraceful, dishonourable and unprofessional conduct. As such, having regard to all the circumstances, the panel finds that the Member’s conduct would reasonably be regarded by members of the profession as unprofessional, dishonourable and disgraceful.

Penalty

Counsel for the College advised the panel that a Joint Submission on Order [ ] had been agreed upon, reflecting the fact that the Member’s certificate of registration is currently suspended. The Joint Submission on Order requests that this panel make an order as follows:

Requiring the Member to appear before the Panel to be reprimanded within three months that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for four months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption as long as the Member remains in the practising class.
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 her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:

Professional Standards,
Therapeutic Nurse-Client Relationship,

iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

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

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

vii. 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:

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

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

b) For a period of 12 months from the date the Member returns to clinical nursing practice, the Member will notify her 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 her employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:

that they received a copy of the required documents, and
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 not practise independently in the community for a period of 12 months from the date the Member returns to clinical nursing practice.

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.

Penalty Submissions

Counsel for the College reviewed the proposed penalty. He submitted that the proposed order meets the objectives of the College in that it considers the interests of the public, the profession and the Member. Specifically, public protection and public confidence in self-regulation, as well as the goals of general deterrence and specific deterrence, are met through the proposed four-month suspension on the Member’s Certificate of Registration. Through the educational and expert meetings aspects of the proposed order, public protection is provided through learning and rehabilitation opportunities that the Member would undertake. The proposal for a period of employer notification provides specific deterrence as it is an added reminder to the Member that the employer is aware of her past conduct. Oversight by an employer provides for public protection. Further, disclosure of these disciplinary proceedings to the Member’s employers provides for an added measure of public confidence in the profession’s ability to be self-regulating.

To assist the panel in determining whether the proposed penalty fell within a reasonable range, counsel for the College provided the panel with two previous cases of the Discipline Committee, each having some facts similar to those of this case. The first case (CNO v. Campbell, November 14, 2007) was an uncontested case in which a member solicited and/or accepted money from two clients. In the CNO v. Campbell case, the panel made an order that included an oral reprimand, a 3-month suspension, practice consultant meetings, and a 24-month period of employer notification. In the second case (CNO v. Halawani, April 7, 2009), the panel made findings of professional misconduct in that the Member disclosed personal details of the Member’s life to a client, requested and accepted funds from a client and stole credit cards from clients. In this latter case, the Member was ordered to receive a reprimand, a 6-month suspension of her certificate of registration, have meetings with a nursing practice expert, have restrictions placed on her practice, and undergo a 24-month period of employer notification.

In response to a question from the panel, Counsel for the College stated that neither of the cases provided considered conduct related to failure to maintain appropriate systems for the control, storage, access, security and/or monitoring of narcotics of which the nurse had custody; however the penalty proposed did take such conduct into consideration and was, in the College’s view, balanced with the seriousness of the Member’s conduct.

The Member did not provide additional submissions for the panel to consider.

Penalty Decision

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

The Member is required to appear before the Panel to be reprimanded within three months that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for four months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption as long as the Member remains in the practising class.
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 meetings with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:

Professional Standards,
Therapeutic Nurse-Client Relationship,

iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

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

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

vii. 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:

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

b. For a period of 12 months from the date the Member returns to clinical nursing practice, the Member will notify her 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 her employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:

that they received a copy of the required documents, and
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 not practise independently in the community for a period of 12 months from the date the Member returns to clinical nursing practice.

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

The panel concluded that the proposed penalty is reasonable and in the public interest as well as in the interest of the profession and the Member. 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 concluded that the proposed penalty met the goals of protection of the public interest, general and specific deterrence, as well as remediation/rehabilitation opportunities for the Member.

I, Nancy Sears, 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:

Jim Attwood, RN

Susannah Handley, RN

Renate Davidson, Public Member

Abdul Patel, Public Member