College of Nurses of Ontario v. Burton, 2013 ONCNO 91855

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Adan Abdi, RN Member Sandra Steele, RPN Member Margaret Tuomi Public Member Gino Cucchi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) BONNI ELLIS for ) College of Nurses of Ontario

• and - )

MELANIE BURTON ) NOT REPRESENTED Registration No. JD03691 ) Melanie Burton ) LUISA RITACCA ) Independent Legal Counsel

) Heard: February 25, 2013

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on February 25, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

As Melanie Burton (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.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on December 10, 2012. The panel was satisfied that the Member had received adequate notice and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against Melanie Burton (the “Member”) as stated in the Notice of Hearing dated December 6, 2012, are as follows.

1. You have committed an act or acts 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, as amended, in that, on or about October 13, 2011 you were found guilty of an offence relevant to your suitability to practise and, in particular, you were found guilty of stealing money from [a client] at [the Facility], of a value not exceeding $5,000, contrary to s. 334(b) of the Criminal Code of Canada.

2. 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 paragraph 1.8 of Ontario Regulation 799/93 in that, you misappropriated property from a client or workplace and, in particular, between approximately August 24, 2011, to September 14, 2011, while working as a nurse at [the Facility], you stole money on seven different occasions from the purse of [a client] with short-term memory loss for a total of $215.

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, between approximately August 24, 2011 to September 14, 2011, while working as a nurse at [the Facility], you stole money on seven different occasions from the purse of [a client] with short-term memory loss for a total of $215 and/or you were subsequently found guilty under s. 334(b) of the Criminal Code of Canada for that same conduct.

Member’s Plea

Given that the Member was not 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

In 2011, the Member was employed as a Registered Practical Nurse (“RPN”) at the [the Facility] in [] Ontario. A [client]’s daughter noticed that money was missing from her mother’s incidental purchases fund on a regular basis. The daughter put a video camera in her mother’s room and the Member was caught stealing on the video. The police was called and criminal charges were laid. The Member pled guilty to having stolen a total of $215 from the [Client]’s purse between August 5, 2011, and September 14, 2011. She was ordered to pay restitution, perform 50 hours of community service and serve 18 months of probation.

The Member’s certificate of registration with the College was suspended February 15, 2013, for non-payment of fees and failure to provide information.

The issues before the panel were whether the Member’s criminal offence is relevant to her suitability to practise nursing, and whether her conduct in all the circumstances would reasonably be regarded as disgraceful, dishonourable and/or unprofessional.

The Evidence

College counsel submitted eight documents into evidence:

1. The Notice of Hearing;

2. The affidavit of [a College employee] attesting to service of the Notice of Hearing;

3. A certified copy of the Information relating to the criminal charges laid against the Member;

4. A certified transcript of the Plea and Sentencing before the Ontario Court of Justice, October 13, 2011;

5a. The College’s Public Register Report dated Nov 30, 2011;

5b. The College’s Public Register Report dated Feb 19, 2013;

6. The College’s published Therapeutic Nurse Client Relationship Practice Standards; and

7. The Report Form for Facility Operators and Employers filled out by the Member’s former employer.

The court documents provided sufficient evidence that the Member pled guilty to theft under $5,000.00 contrary to Section 334(b) of the Criminal Code of Canada. The Ontario Court of Justice found the Member guilty of theft from [the Client] in the amount of $215.00.

The Member’s registration status as shown in the College’s Public Register Report dated February 15, 2013 provided evidence that the Member’s certificate of registration was suspended for failure to pay fees and failure to provide information.

Final Submissions

Counsel for the College submitted that the evidence before the panel clearly demonstrates that the Member was guilty of theft as set out in the Notice of Hearing. Counsel for the College further submitted that these offences were relevant to the Member’s suitability to practise, as this incident involved a serious breach of trust in the profession and the public at large. The conduct appeared to have been intentional and calculated in gain.

Counsel for the College also referred to the transcript of the plea and sentencing hearing at the Ontario Court of Justice in which the Court spoke to the Member regarding her breach of her employer’s trust and her [client]’s trust by stealing from the [client] and taking advantage of a vulnerable [client].

Decision and Reasons for Decision

Having considered the evidence and the onus and 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.

The certified copy of the Information and certified court transcripts proved that the Member misappropriated a client’s property, and was convicted of a criminal offence in that regard.

As to allegation 1, the Member’s theft from an elderly, vulnerable [client] in her care is unacceptable and is clearly relevant to the Member’s suitability to practise.

As to allegation 3, the panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional by misappropriating the sum of $215.00 from a vulnerable client over a period of time on several occasions.

Penalty

Penalty Submissions

Counsel for the College submitted that the Member has no prior disciplinary history on file with the College; she has [ ] children and financial difficulties. The Member did not attend the hearing and did not make any submissions.

College counsel presented the panel with a written proposed penalty, which she submitted was appropriate as it provides general deterrence for the membership and specific deterrence for the Member. Counsel also submitted that the proposed penalty provides for remediation of the Member and public protection. A 12-month restriction on working independently will ensure that the Member is not in a position to access money. Successful completion of the proposed remediation plan will help ensure the conduct will not be repeated and offer public protection. College Counsel submitted two previous cases of this College (CNO v. Guarrasi and CNO v. Reaume) to show that the requested order is in the range of past discipline panel decisions.

The College 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] that this Order becomes final.

2. 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.

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 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:

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 modules:

1. Professional Standards,

2. 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:

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;

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:

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;

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 24 months from the date the Member obtains an active certificate of registration, and 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:

1. the Panel’s Order,

2. the Notice of Hearing,

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

4. a certified copy of the Certificate of Conviction;

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 not practise independently in the community for a period of 12 months from the date the Member obtains an active certificate of registration and returns to [the] clinical practice of nursing.

4. 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.

Penalty Decision

The panel makes the following order:

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

2. 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.

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 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:

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 modules:

1. Professional Standards,

2. 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:

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;

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:

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;

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 24 months from the date the Member obtains an active certificate of registration and 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:

1. the Panel’s Order,

2. the Notice of Hearing,

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

4. a certified copy of the Certificate of Conviction;

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 not practise independently in the community for a period of 12 months from the date the Member obtains an active certificate of registration and returns to clinical nursing practice.

4. 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

The Order protects the public and provides specific and general deterrence, while giving the Member the opportunity to rehabilitate herself and return to the practice of nursing. In the absence of the Member, the panel was able to only consider College counsel’s submissions and did not have the Member’s perspective to consider in its decision. The terms, conditions and limitations imposed will help the Member’s rehabilitation, which helps to protect the public.

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:

Adan Abdi, RN

Sandra Steele, RPN

Margaret Tuomi, Public member

Gino Cucchi, Public Member