College of Nurses of Ontario v. Finnigan, 2013 CanLII 91852

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Carl Balcom, RN Chairperson

Michael Hogard, RN Member Karen Laforet, RN Member

Abdul Patel Public Member

Gino Cucchi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) BONNI ELLIS for

) College of Nurses of Ontario

• and - )

SHANNON FINNIGAN ) NO REPRESENTATION for

Registration No. 0087213 ) Shannon Finnigan

) LUISA RITACCA

) Independent Legal Counsel

) Heard: March 8, 2013

DECISION AND REASONS

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

As Shannon Finnigan (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the panel noted that the Member was not in attendance nor represented by counsel.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on January 10, 2013. The panel was satisfied that the Member had received adequate notice of the time, place, date and nature of the hearing. Therefore the panel proceeded with the hearing in the Member’s absence.

The Allegations

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated January 9, 2013, are as follows.

IT IS ALLEGED THAT:

1. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(b) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that:

a) you were found to have committed unprofessional conduct by the Hearing Tribunal of the College and Association of Registered Nurses of Alberta on or about January 21, 2009, which conduct would be an act of professional misconduct as defined in Ontario Regulation 799/93; and/or

b) you were found to have committed unprofessional conduct by the Hearing Tribunal of the College and Association of Registered Nurses of Alberta on or about November 4, 2010, which conduct would be an act of professional misconduct as defined in Ontario Regulation 799/93.

2. 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 1.19 of Ontario Regulation 799/93 in that, you contravened subsection 5(3) of Ontario Regulation 275/94 of the Nursing Act when you failed to advise the College,

a) that you were the subject of a proceeding for professional misconduct, which was ultimately the subject of a hearing before the Hearings Tribunal of the College and Association of Registered Nurses of Alberta on or around January 21, 2009;

b) that you were the subject of a proceeding for professional misconduct, which was ultimately the subject of a hearing before the Hearings Tribunal of the College and Association of Registered Nurses of Alberta in or around 2010;

c) that a finding of professional misconduct had been made against you by the College and Association of Registered Nurses of Alberta on or about January 21, 2009; and/or

d) that a finding of professional misconduct had been made against you by the College and Association of Registered Nurses of Alberta on or about November 4, 2010.

3. 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, you engaged in conduct, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and, in particular, you:

(a) were found to have committed unprofessional conduct by College and Association of Registered Nurses of Alberta on or about January 21, 2009, which conduct would be an act of professional misconduct as defined in the regulations;

(b) were found to have committed unprofessional conduct by College and Association of Registered Nurses of Alberta on or about November 4, 2010, which conduct would be an act of professional misconduct as defined in the regulations;

(c) failed to advise the College that you were the subject of a proceeding for professional misconduct, which was ultimately the subject of a hearing before the Hearings Tribunal of the College and Association of Registered Nurses of Alberta on or around January 21, 2009, and/or

(d) failed to advise the College that you were the subject of a proceeding for professional misconduct, which was ultimately the subject of a hearing before the Hearings Tribunal of the College and Association of Registered Nurses of Alberta in or around 2010, and/or

(e) failed to advise the College that a finding of professional misconduct had been made against you by the College and Association of Registered Nurses of Alberta on or about January 21, 2009;

(f) failed to advise the College that a finding of professional misconduct had been made against you by the College and Association of Registered Nurses of Alberta on or about November 4, 2010; and/or

(g) confirmed on your 2009 Annual Renewal that you had not been the subject of disciplinary or incapacity proceedings from other governing bodies, when that was not the case.

Member’s Plea

Member’s Plea

Given that the Member was neither present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

Overview

The Member was initially registered with the College as an RN in June 2000. The Member was also registered with the College and Association of Registered Nurses of Alberta (CARNA) as an RN. The allegations giving rise to this hearing relate to incidents occurring in the province of Alberta. The allegations against the Member are two-fold: findings of professional misconduct by a discipline panel of CARNA, and failure to report the findings of professional misconduct to the College as required.

The Evidence

The Evidence

The panel heard evidence from one witness [ ]. The witness is currently employed as the Customer Service Coordinator with the College. He has held this position since August 2007. Prior to this, the witness was employed as a customer service representative at the College from September 2001 to August 2007.

The witness’ responsibilities include coordinating call centre operations and assisting members in renewing their memberships. The witness testified that he is familiar with the annual renewal process and the filling of the forms as part of this process.

[The witness] identified a printout from the College’s on-line Public Register, generated on February 26, 2013 [ ]. The witness explained that this document provided the following information:

• the Member was first registered with the College on June 19, 2000;

• from October 31, 2000, to March 11, 2010, the Member was registered as an RN in the General Class;

• the Member’s certificate of registration was suspended for non-payment of fees on March 11, 2010; and

• on February 1, 2013, the Member’s certificate of registration was administratively revoked.

The witness testified that the revocation of the Member’s certificate of registration was administrative in nature and the result of changes to Ontario Regulation 275/94 under the Nursing Act, 1991 (the “Registration Regulation”) whereby all certificates of registration, which were suspended for non-payment of fees, were administratively revoked on February 1, 2013.

[The witness] also identified a printout of the answers that the Member submitted as part of her 2009 online annual membership renewal [ ]. The witness testified that this document shows the answers that the Member gave when completing the online renewal form. This information was date-stamped Monday, December 15, 2008, which the witness testified was when the completed form was submitted electronically to the College. [The witness] testified that the statement under the “Self Reporting” section reflects how the Member answered the question around mandatory self-reporting.

Using examples from a generic 2009 annual renewal form [ ], [the witness] explained that to fill the form out, the Member would have had to answer the mandatory self-reporting section (and could not bypass the question), would have to confirm her answers before submitting the form, and would have to enter a password to complete her annual membership renewal.

The witness testified that the customer service department of the College has never received any information from the Member regarding findings of professional misconduct made against her, and that the Member has never advised the College that she was the subject of proceedings into allegations of misconduct by another regulatory body.

In addition to the evidence of [the witness], College counsel also tendered two sealed and certified copies of decisions made by CARNA, one dated January 21, 2009 [ ] and the other dated November 4, 2010 [ ].

In CARNA Finding #1, dated January 21, 2009, the Member was found to have breached the code of ethics by stealing money from her [manager’s] and colleagues’ purses on three separate occasions. This case proceeded on the basis of an agreed statement of facts and the Member was represented by legal counsel. This decision indicates that the Member was suffering from personal stressors and that at the time of the incidents the Member ceased to take prescribed medications, unilaterally and without medical supervision, leading to confusion and poor judgment. The decision also indicates that at the time of the hearing, the Member was receiving medical care and psychological counselling, was on medications to treat her condition, and that the treating clinicians held an optimistic outlook for the Member, opining that she was unlikely to repeat these acts. The decision also indicates that the Member had gained new employment.

The CARNA discipline panel found that the Member had committed professional misconduct, and ordered a penalty consisting of a reprimand, a mandatory ethics course, a fine, and monitoring provisions. This was a lengthy and complex penalty order with the terms of the order focusing on close monitoring (i.e. letter from manager, prohibition from working elsewhere).

In CARNA Finding #2, dated November 4, 2010, the finding of professional misconduct related to the Member’s compliance with the CARNA discipline panel’s January 2009 order. Specifically, the Member was found to have forged a letter from her supervisor to CARNA and to have lied in a job interview by explicitly denying that she was involved in disciplinary matters with CARNA. The Member was found to have breached a condition of her penalty order by working for an additional employer. The Member was found to have committed professional misconduct and the CARNA discipline panel issued a robust penalty order.

Final Submissions

Final Submissions

Since the Member’s certificate of registration has been administratively revoked, College Counsel began closing submissions by directing the panel to s. 14 of the Health Professions Procedural Code (the “Code”), which provides the panel with continued jurisdiction in this matter because the Member was registered with the College at the time of the incidents giving rise to the allegations. College Counsel provided the panel with both current and historical versions of the Code and the Nursing Act, 1991 that were in effect at the time of the incidents to show that there were no differences in the provisions relating to this case.

Allegation #1

Allegation #1

With respect to the first allegation, College Counsel submitted that the Member was found to have committed professional misconduct, as evidenced by the certified copies of the two CARNA discipline panel’s decisions, and that the conduct in question would amount to professional misconduct in Ontario. Specifically, the Member’s conduct leading to both disciplinary hearings with CARNA involved:

• Theft (which amounts to conduct that would be considered dishonourable, disgraceful, and unprofessional conduct);

• Falsification of records;

• Contravening terms, conditions, and limitations applied to her certificate of registration;

• Failure to comply with an order of a discipline panel; and

• Conduct that would be considered by members as dishonourable, disgraceful, or unprofessional.

College Counsel submitted that the two written decisions from the CARNA disciplinary tribunals [ ] satisfy the onus on the College, and constitute sufficient evidence on a balance of probabilities for this panel to make findings of professional misconduct on Allegation #1.

Allegation #2

Allegation #2

The College alleges that the Member failed to report being subject to an investigation, and subsequently being found guilty of professional misconduct, by CARNA. College Counsel directed the panel’s attention to s. 5(3) of the version of the Registration Regulation that was in place at the time of these incidents. That section required all members to advise the College of, among other things, a finding of professional misconduct in Ontario or another jurisdiction, and a proceeding for professional misconduct in Ontario or another jurisdiction in relation to any health profession.

College Counsel relied on the testimony of [the witness], who confirmed that the Member had not at any time advised the College of either the investigations nor subsequent findings of professional misconduct made against her by CARNA. College Counsel also directed the panel to the Member’s responses in the 2009 annual membership renewal, where the Member attested that she had not been the subject of investigations or findings of professional misconduct.

College Counsel submitted that the Member completed her 2009 annual membership renewal form on December 15, 2008, and that the first hearing before the CARNA discipline panel was January 21, 2009. The College’s position is that the Member was aware at the time she completed her annual membership renewal that she was subject to a proceeding for professional misconduct by CARNA. College Counsel also submitted that it is the College’s position that the reporting requirement is an ongoing one, that the obligation to report being subject of a proceeding is in addition to, and separate from, the obligation to report a finding of professional misconduct, and that the Member did not report anything to the College.

Allegation #3

Allegation #3

College Counsel submitted that the evidence presented for Allegations 1 and 2 is sufficient to make findings of professional misconduct in Allegation # 3. College Counsel asked this panel to find that nurses would consider the Member’s conduct to be unprofessional, dishonourable, and disgraceful. The Member intentionally lied to the College in answering “no” to the self-reporting question. This was not just a lie of omission, but of commission. College Counsel submitted that it is exceptionally important for nurses to comply with the self-reporting requirements as it would be extremely difficult to regulate the nursing profession effectively if these self-reporting requirements were not followed.

College Counsel relied on the self-reporting section of the instructions for completing the 2009 annual membership renewal [ ] and emphasized the statement “required by law”. College Counsel submitted that this requirement protects the public interest by requiring that nurses advise the College of any issues relating to their suitability to practise nursing and that when nurses do not comply with the self-reporting requirement, it is very difficult to effectively regulate the profession.

College Counsel reiterated that in this case, the Member’s answer on the 2009 annual membership renewal was not honest or accurate, suggesting deliberate intent. The intentionality of the Member’s actions makes the conduct unprofessional, dishonourable, and disgraceful.

Conclusion

Conclusion

College Counsel concluded by submitting that the College had discharged its onus and that there was sufficient evidence to make findings of professional misconduct in Allegations 1, 2, and 3 as set out in the Notice of Hearing.

Question Regarding the Panel’s Jurisdiction

Question Regarding the Panel’s Jurisdiction

The panel asked for submissions regarding its jurisdiction to make findings of professional misconduct relating to the second CARNA decision, which was dated November 4, 2010. Specifically, the panel questioned the Member’s reporting requirements to the College when her certificate of registration was suspended on March 11, 2010, rendering her ineligible to practise nursing and not permitted to use the protected title “nurse” in Ontario at that time.

In response, College Counsel submitted that the Supreme Court of Canada has endorsed the following guideline for statutory interpretation: “there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. College Counsel advised the panel that it should interpret the various statutory requirements in this manner.

College Counsel directed the panel’s attention to the version of the Registration Regulation that was in place at the relevant time. She submitted that s. 5(3) makes self-reporting a condition of registration with the College, and that its intention is to ensure that the College is notified of situations arising after initial registration.

College Counsel also relied upon s. 14(2) of the Code, which states that a person whose certificate of registration is suspended continues to be subject to the jurisdiction of the College for professional misconduct referable to the time when the person was a member or to the period of the suspension. Even though the Member’s certificate has now been administratively revoked, this provision supports the argument that the Discipline Committee has jurisdiction over the Member’s conduct while she was under administrative suspension.

Independent Legal Counsel (“ILC”) advised the panel that she had slightly different advice for the panel. ILC stated that while she agreed with College Counsel’s explanation and position regarding the principles of statutory interpretation, there is a concern arising from the fact that the Member’s certificate of registration was suspended in March 2010, and thus [the Member] was not a nurse in Ontario at the time of the incidents giving rise to the second finding of professional misconduct by CARNA.

ILC advised that the Member would not have been in a position to resume practice in Ontario without disclosing both findings of professional misconduct and that the issues surrounding the second finding of professional misconduct would be addressed at the time that the Member sought reinstatement.

ILC opined that it is circular to allege that the Member is guilty of professional misconduct for not reporting findings of professional misconduct in another jurisdiction if the Member[ ] was not in fact a member due to the fact that her certificate of registration had been suspended. As to the need to interpret the legislation and regulations in a manner that is consistent with the College’s duty to protect the public, she advised that public protection is maintained and accounted for in the membership reinstatement process, where the need to report would have arisen.

In conclusion, ILC advised that, in her opinion, the panel did not have jurisdiction to make findings of professional misconduct with respect to the second CARNA finding because the Member had failed to report findings of professional misconduct made against her in another jurisdiction when her Ontario certificate of registration was suspended.

In her comments on ILC’s advice, College Counsel submitted that it is the College’s position that an implicit obligation to self-report remains and that a member of the College is still accountable while suspended, even if he or she is not permitted to practise nursing (i.e. while the certificate of registration [is] suspended).

Decision

Decision

The College bears the onus of proving the 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 of proving the allegations in accordance with the standard of proof, the panel 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 (paragraphs a, b, c, e, and g), the panel finds that the Member’s conduct would reasonably be regarded as unprofessional, dishonourable, and disgraceful. With respect to allegation #3 (paragraphs d and f), the panel finds that the Member’s conduct would reasonably be regarded as unprofessional.

Reasons for Decision

Reasons for Decision

With respect to Allegation #1, the certified copies of the CARNA discipline panel’s decisions [ ] proved findings of professional misconduct made by CARNA. The panel agreed with College Counsel that the Member’s conduct giving rise to both findings of professional misconduct by CARNA would be considered professional misconduct in Ontario by this College.

With respect to Allegation #2, College Counsel provided sufficient evidence for the panel to conclude that the Member failed to advise the College as required that she was the subject of proceedings and subsequently findings of professional misconduct in another jurisdiction. With respect to the self-reporting requirement continuing while a certificate of registration is under suspension, the panel accepted the statutory interpretation argument made by College Counsel.

With respect to Allegation #3 (paragraphs a, b, c, e, and g), the panel found that the Member’s conduct was unprofessional, dishonourable, and disgraceful due to the nature of the conduct giving rise to the findings of professional misconduct in Alberta as well as the fact that the Member failed through commission to meet the self-reporting requirement in Ontario.

With respect to Allegation #3 (paragraphs d and f), the panel found that the Member’s conduct was simply unprofessional. The panel accepted College Counsel’s argument that there is a continued self-reporting requirement while a certificate of registration is suspended, in the absence of any argument to the contrary by the Member. Therefore the panel finds that the Member’s failure to report the November 4, 2010, finding of professional misconduct by CARNA showed disregard for her professional obligations as a member of the College, albeit a suspended one.

Penalty

Penalty Submissions

Penalty Submissions

College Counsel requested that the panel ma[k]e an order as follows.

1. Directing the Executive Director to suspend the Member’s certificate of registration for a period of five months from the date the Director receives written confirmation from the College and Association of Registered Nurses of Alberta (“CARNA”) that the Member has completed all the terms of the CARNA Hearing Tribunals’ Orders as set out in their Decisions dated January 21, 2009, and November 4, 2010, respecting her conduct in Alberta. The suspension will commence when the College receives written confirmation from CARNA that the Member’s Orders from CARNA are complete and once the Member obtains an active certificate of registration. The Member shall be allowed to complete the supervised practice and associated conditions listed in paragraph six on page 11 of the November 4, 2010, Decision in Ontario if [the] College receives written confirmation from CARNA that CARNA is willing to allow the Member to complete this portion of the Order in Ontario.

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

a. The Member will attend one meeting with a Nursing Expert (the “Expert”), at her own expense before returning to the practice of nursing in Ontario. To comply, the Member is required to ensure that:

i. The Expert has expertise in self-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 publication and completes the associated Reflective Questionnaire 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 Questionnaire and online participation form;

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 publication, questionnaire and module 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 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 on her certificate of registration;

b. For a period of 24 months from the date the Member returns to clinical nursing practice in Ontario, 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:

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

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

College Counsel submitted that the Member’s conduct in Alberta was sanctioned by CARNA and that the objective of this panel’s penalty order must be to ensure that the Member practises in accordance with Ontario standards. College Counsel submitted that the terms, conditions, and limitations would ensure that the Member recognizes and appreciates her responsibilities to the College.

College Counsel further submitted that the monitoring requirement ensures protection of the public because an employer is in the best position to monitor a nurse’s practice and thus must be aware of past issues. College Counsel submitted that the suspension proposed largely relates to concerns around the Member’s governability.

In terms of the appropriate penalty, College Counsel directed the panel to various cases, as follows.

• The Law Society of Upper Canada v. Balaram-Sivaram, [2011] L.S.D.D. No. 76 (“Balaram”). The Balaram case was a professional discipline case involving a lawyer. Page 7 of the decision highlights factors that inform the determination of whether a member is ungovernable. College Counsel submitted that in the Balaram case, the panel of the Discipline Committee of the Law Society of Upper Canada imposed a significant suspension. While the College is not necessarily taking the position that the Member is ungovernable, this case is useful in providing the panel with a sense of where the College’s concerns lie.
• The College of Nurses of Ontario v. Andy Codinha, (2009, CNO Discipline Committee). College Counsel relied on this case as an example of where a College discipline panel has found a nurse to be ungovernable. College counsel submitted that while the Member’s failure to be present at this hearing is not an aggravating factor per se, it is not a mitigating factor either.
• The College of Nurses of Ontario v. Raymond Labrecque (2006, CNO Discipline Committee) (“Labrecque”). Labrecque is an example of a case where findings of professional misconduct were made against a nurse in another jurisdiction. In the Labrecque case, the nurse had no prior discipline findings and did voluntarily report the findings to the College as required.

In addition to the issue of what penalty should be imposed, this case raises the new issue of how to impose a penalty when a member’s certificate is administratively revoked. College Counsel directed the panel to the case of The College of Nurses of Ontario v. Mark Besharah (2008, CNO Discipline Committee) (“Besharah”). This case is an example where a discipline panel did not order encumbrances on an already revoked certificate of registration. In the Besharah case, the discipline panel wrote that “…a penalty of revocation of the Member’s certificate of registration would have been the appropriate remedy in this case, had his certificate of registration not already been revoked”.

However, College Counsel submitted that the present case was different, in that the revocation of the Member’s certificate of registration was not the result of a previous College discipline decision (as it was in Besharah) but was the result of the new Registration Regulation.

College Counsel submitted that its request to suspend the effect of any order until such time as the Member obtains active registration relates to the fact that the Member’s certificate of registration is revoked administratively rather than on order of a statutory committee, as had been explained by [the witness]. College Counsel reviewed the new Registration Regulation, and submitted that the Member could tomorrow apply for reinstatement as long as the required fees were paid and the Executive Director was satisfied that the Member had engaged in active nursing practice in the past three years.

College Counsel directed the panel to s. 51 of the Code and submitted that the panel has jurisdiction over the Member, and not over the Member’s certificate of registration.

Finally, College Counsel directed the panel to s. 72 of the Code that applies when a member applies for reinstatement following a revocation order by a statutory committee. This provision puts procedural safeguards in place. Those reinstatement procedural safeguards do not apply to reinstatements from administrative revocations. College Counsel submitted that if the panel did not make an order that was suspended until the Member obtained active registration, the Member could use the Registration Regulation to become reinstated without reference to this discipline proceeding. College Counsel submitted that it is the College’s view that an administrative revocation must be treated differently than a disciplinary revocation, as it cannot be the intention of the legislation that members not receive disciplinary orders due to the fact that their certificate of registration is revoked for administrative reasons.

Accordingly, College Counsel requested that the period of suspension be imposed after the Member has fulfilled the outstanding CARNA orders and once the Member obtains an active certificate of registration in Ontario, if she so decides. College Counsel again directed the panel to the principles of statutory interpretation that require the panel to look at the provisions of a statute, including regulations, in their context and entirety.

Penalty Decision

Penalty Decision

The panel makes the following order as to penalty:

1. The Executive Director is directed to suspend the Member’s certificate of registration for a period of five months from the date the Director receives written confirmation from the College and Association of Registered Nurses of Alberta (“CARNA”) that the Member has completed all the terms of the CARNA Hearing Tribunals’ Orders as set out in their Decisions dated January 21, 2009, and November 4, 2010, respecting her conduct in Alberta. The suspension will commence when the College receives written confirmation from CARNA that the Member’s Orders from CARNA are complete and once the Member obtains an active certificate of registration. The Member shall be allowed to complete the supervised practice and associated conditions listed in paragraph six on page 11 of the November 4, 2010, Decision in Ontario if [the] College receives written confirmation from CARNA that CARNA is willing to allow the Member to complete this portion of the Order in Ontario.

2. 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 one meeting with a Nursing Expert (the “Expert”), at her own expense before returning to the practice of nursing in Ontario. To comply, the Member is required to ensure that:

i. The Expert has expertise in self-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 publication and completes the associated Reflective Questionnaire 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 Questionnaire and online participation form;

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 publication, questionnaire and module 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 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 on her certificate of registration;

b. For a period of 24 months from the date the Member returns to clinical nursing practice in Ontario, the Member will notify her employers of the decision. To comply, the Member is required to:

iv. 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;

v. Provide her 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;

vi. 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

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

Reasons for Penalty Decision

Reasons for Penalty Decision

The panel was satisfied that, in light of the new Registration Regulation regarding the administrative revocation of certificates of registration for non-payment of fees, suspending the effect of the order as requested by the College was appropriate.

The penalty satisfies the objectives of a penalty order. The penalty provides for both specific and general deterrence by sending a clear message to not only the Member but to the membership in general that the self-reporting requirement is very important and that failure to respect this requirement will result in serious consequences. The penalty provides for public protection by ensuring that the Member’s practice is closely supervised by both the College and any employer, as well as reassures the public that the College is able to regulate the nursing profession through a self-reporting requirement. Lastly, the penalty provides for rehabilitation and remediation by ensuring that the Member fully understands her professional responsibilities and accountabilities around self-reporting and being a member of a self-regulating profession.

The panel considered ordering an oral reprimand in order to ensure that the Member heard from her peers as well as members of the public about how important it is to be respectful of the self-reporting requirement. However, College Counsel submitted that ordering an oral reprimand could have the unintended effect of prohibiting the Member from reinstating practice in Ontario, as legislation requires that an oral reprimand be issued by the panel making the order. Satisfying this requirement could be impossible depending on when the Member applies for reinstatement. Independent Legal Counsel concurred with College Counsel. Thus the panel decided to forgo ordering an oral reprimand.

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:

Michael Hogard, RN

Karen LaForet, RN

Gino Cucchi, Public Member

Abdul Patel, Public Member