College of Nurses of Ontario v. Moodie, 2013 ONCNO 93846

PANEL: Nancy Sears, RN Chairperson Debra Mattina Public Member Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO SHANE SMITH for College of Nurses of Ontario

and -

LORRAINE ANNE MOODIE Registration No. 9813916 NO REPRESENTATION for Lorraine Anne Moodie

LUISA RITTACA Independent Legal Counsel

Heard: June 20, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 20, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Lorraine Anne Moodie (the “Member”) as stated in the Notice of Hearing [ ] dated March 7, 2013, are as follows.

IT IS ALLEGED THAT:

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 section 11 of the Nursing Act, 1991, when you used the title “RN” and/or “nurse” and/or held yourself out as a person who is qualified to practise in Ontario as a nurse while applying for employment, accepting employment and/or working as a nurse at [the Facility] between approximately November 7, 2007, and June 1, 2011, when your certificate of registration was suspended.
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 section 27 of the Regulated Health Professions Act, S.O. 1991, c. 18, as amended, in that you performed the controlled act of administering a substance by injection that you were not authorized to perform while employed as a nurse at [the Facility] when you:

(a) administered a tetanus injection to [Client A] on or about February 4, 2008;

(b) administered a series of allergy injections to [Client B] between August 27, 2009, and January 20, 2010; and

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, while employed as a nurse at [the Facility], you engaged in conduct or performed acts relevant to the practice of nursing that having regard to all of the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and in particular:

(a) you used the title “RN” and/or “nurse” when your certificate of registration was suspended, between approximately November 7, 2007, and March 25, 2011;

(b) you held yourself out as a person who is qualified to practise in Ontario as a registered nurse when your certificate of registration was suspended, between approximately November 7, 2007, and March 25, 2011;

(c) you practised as a registered nurse in Ontario when your certificate of registration was suspended, between approximately December 2007 and March 25, 2011; and/or

(d) you performed the controlled act of administering a substance by injection that you were not authorized to perform while employed as a nurse at [the Facility] when you:

i. administered a tetanus injection to [Client A] on or about February 4, 2008 while working as an RN at [the Facility];

ii. administered a series of allergy injections to [Client B] between August 27, 2009 and January 20, 2010; and

iii. administered a flu shot to co-worker/[Client C].

Member’s Plea

Lorraine Anne Moodie admitted the allegations set out in paragraphs numbered 1, 2a, 2b, 2c, 3a, 3b, 3c, 3d(i), 3(d)(ii) and 3(d)(iii) above. The panel received a written plea inquiry [ ] dated March 18^th, 2013, 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 [ ] which provided as follows.

THE MEMBER

Lorraine Anne Moodie (the “Member”) obtained a diploma [ ] in 1996.
The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on May 28, 1998. The Member was suspended for non-payment of fees from May 14, 2004, to February 1, 2013, when she was revoked for non-payment of fees.
The Member was employed at [the Facility] from December 7, 2007, to June 1, 2011.

THE FACILITY

The Facility is located in [ ] Ontario.
The Facility is a family medical practice that provides clients with access to physicians, nurses, nurse practitioners and other healthcare workers.
The Member worked as a full-time staff nurse on the day shift.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

A. Holding Herself Out as and Use of the Title Nurse, Registered Nurse, RN

On March 5, 2004, the College sent the Member a letter advising her that her certificate of registration would be suspended on May 14, 2004, if she did not pay her annual renewal fees. The Member did not pay and her certificate of registration was suspended on May 14, 2004. The Member was notified of her suspension in a letter from the College, dated May 14, 2004.
The Member was terminated from her employment as an RN at [another facility] in 2005 after it had became known that she had been practising while her certificate of registration was suspended.
On January 16, 2006, the Member was issued a Letter of Caution by the Executive Committee of the College, warning the Member that only registered members are entitled to hold themselves out as RNs or RPNs or use those titles. The Caution also confirmed that only registered members are entitled to perform the controlled acts authorized to nurses.
In addition to the Letter of Caution, the Executive Committee also directed the Member to meet with the Director of Investigations & Hearings, which the Member did by telephone on November 27, 2006.
Despite being suspended, on November 7, 2007, the Member applied for a position as an RN at the Facility by submitting an electronic copy of her curriculum vitae (“CV”) to [ ], the Clinic Manager. The subject line of the Member’s email that accompanied her CV said “Office Nurse.”
On November 15, 2007, the Member interviewed with [the manager] for the RN position. She was subsequently offered and accepted the job.
On December 7, 2007, the Member signed an initial employment contract with the Facility for the RN position. The contract position was to run from December 2007 to February 2008. On September 16, 2008, the Member signed a subsequent contract for the RN position, after which her employment became full-time. The Facility never obtained a copy of the Member’s Annual Payment Card.
On March 25, 2011, [the manager] went on the College’s website to verify the Member’s registration information. He noted that her certificate of registration was suspended. He believed the suspension related to 2011 only. When [the manager] spoke with the Member about her suspension, she indicated that it was an “administrative error on the College’s part and she would sort it out.” She continued practising at the Facility.
Approximately one week later, the Member was in a car accident and was off work for several days. During her absence, [the manager] discovered that the Member had in fact been suspended since 2004. The Member was asked not to return to work without proof of an active certificate of registration. She was terminated on June 1, 2011.
Between November 7, 2007, and June 1, 2011, while the Member’s certificate of registration was suspended for non-payment of fees, the Member held herself out as an RN while working as a nurse at the Facility and used the title ‘nurse’ and ‘Registered Nurse.’
If the Member were to testify, the Member would say she returned to work after her car accident and worked her last day at the Facility on April 7, 2011. She would further say that she attempted to reinstate her membership in 2007, several months before accepting the position at the Facility. However, as a result of a dated fraud conviction on her police record check, the Member would say the College informed her that she was ineligible for reinstatement. The Member would say she panicked and kept on working without an active certificate of registration.

B. Controlled Acts

Between November 7, 2007 and June 1, 2011, while suspended for non-payment of fees, the Member signed her electronic signature in client records after performing controlled acts. In the Facility’s computer database, the Member was listed as a “Nurse” and her username was “LM.”
[Client A] attended an appointment at the Facility on February 4, 2008, for a Tetanus shot. The Member provided a Tetanus injection to [Client A] and made the following entry in [Client A]’s Medical Record: “Tetanus inj. 0.5 ml IM L deltoid.” The Member’s initials, LM, appear after the entry.
Between September 19, 2009 and October 14, 2009, the Member provided a series of allergy injections to [Client B] and made a series of corresponding entries in the electronic health record of [Client B] documenting these allergy injections. In each instance, the Member’s initials appear beside the entry alongside another set of initials – “[ ]/LM.”
The Member provided [Client B] with a series of eighteen immunotherapy injections between August 27, 2009, and January 20, 2010, and made a record of these injections on [Client B]’s Maintenance Immunotherapy schedule. The Member handwrote her initials on the schedule in respect of these injections in most, if not all instances.
The Member also administered a flu shot to her co-worker, [Client C], on at least one occasion.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 to 3 of the Notice of Hearing, as described in paragraphs 7 to 22 above and in particular that her conduct was disgraceful, dishonourable and unprofessional.

The Member submitted that the Agreed Statement of Facts was accurate, and advised the panel of her remorse for her actions.

Decision

The panel considered the Agreed Statement of Facts and the Member’s admission of the allegations set out in the Notice of Hearing, and finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2a, 2b, and 2c in that the Member was notified of the suspension of her certificate of registration [ ] in a letter from the College dated May 14, 2004, but continued to hold herself out as a person who was qualified to practise in Ontario as a nurse, used the title “RN”, and performed the controlled act of administering substances by injection to three individuals. The panel also finds that having regard to all of the circumstances, the Member’s conduct, as set out in paragraphs 3a, 3b, 3c, 3d(i), 3(d)(ii) and 3(d)(iii) of the Notice of Hearing, would reasonably be regarded by members of the profession as unprofessional and dishonourable. The Panel makes no findings with respect to the allegations of disgraceful conduct which were also set out in paragraphs 3a, 3b, 3c, 3d(i), 3(d)(ii) and 3(d)(iii) of the Notice of Hearing.

Reasons for Decision

The panel conducted serious and detailed deliberations on the evidence as set out in the Agreed Statement of Facts. With respect to allegations 1, 2(a), 2(b) and 2(c), the evidence was found to be clear and consistent to support the findings of professional misconduct as alleged.

When considering the facts set out in the Agreed Statement of Facts, the panel found that the facts clearly identified that the Member’s conduct seriously and persistently breached that which is expected of a nurse, in that during a period in excess of eight years in which her certificate of registration was suspended, the Member held herself out as a nurse, used the title RN and practi[s]ed as a nurse with at least two employers and three clients. By knowingly misleading two employers and at least three clients, one of whom was a co-worker, regarding her professional status, her conduct included elements of deceit and dishonesty. As such, the panel finds that the threshold for unprofessional and dishonourable conduct had been met. However, the allegations went further to include claims of disgraceful conduct. Disgraceful conduct is more severe than dishonourable conduct. Both involve dishonesty, deceit and moral failing, however disgraceful conduct has the effect of shaming the profession and places serious doubt on a Member’s moral fitness and inherent ability to discharge the higher obligations the public expects nurses to meet. The panel was concerned that the facts in evidence did not support the element of shaming the profession and/or place the Member’s moral fitness and inherent ability to discharge the obligations expected of a nurse into question. However, the panel was mindful of the Member’s admission of professional misconduct set out in paragraph 23 of the Agreed Statement of Fact. The panel was also mindful of the seriousness of setting aside, even in part, agreements reached between the parties. As such, the panel suspended deliberations, returned to the hearing room, informed the parties that they had not yet made a decision regarding a finding of disgraceful conduct, and requested further evidence and/or submissions on this matter from both parties.

Counsel for the College responded that no additional evidence was available and submitted that the distinction between what constitutes dishonourable versus disgraceful conduct is one of degree, with disgraceful conduct being more serious, and that the College was content to have the panel determine if the Member’s conduct had progressed beyond that which would be considered dishonourable to that which would be considered disgraceful. The Member made no additional submission. The panel resumed deliberations but concerns remained and the panel consulted Independent Legal Counsel (ILC) for advice. Once more the panel returned to the hearing room and ILC was brought into the hearing via teleconference. ILC advised the parties that the panel had consulted her and reiterated her advice to the panel, that being that the panel must make its findings on the evidence provided, that unprofessional, dishonourable and disgraceful conduct lies upon a continuum, with disgraceful conduct being at the far end of the most seriously wrong conduct, and that the agreement between the parties ought only be set aside if, after due consideration of all of the evidence, the panel concluded that the evidence was not sufficient to support a conclusion that the Member’s conduct met that which, given all of the circumstances, would be considered disgraceful.

Following ILC’s submission, both parties were invited to give submissions on the advice ILC had provided to the panel. Both parties agreed with the advice given by ILC. College Counsel submitted that the extended length of time over which the behaviour occurred and the Member’s submission to one of her employer[s] that the suspension posted on the College’s website was an “administrative error on the College’s part” (Paragraph 14 of the Agreed Statement of Fact) was dishonest and supported a finding of disgraceful conduct. However, College Counsel stated that he was content to have the panel decide the issue.

The panel understands the seriousness of deviating from agreements made between the parties which is why the panel both requested further evidence and submissions from the parties and initiated the consultation with ILC. The additional submissions by the parties did not convince the panel that the Member’s conduct reached the threshold of disgraceful conduct in that disgraceful conduct is more severe than dishonourable conduct. The panel determined that there were elements of dishonesty, deceit and moral failing in the Member’s conduct. However, there was no evidence that the Member’s conduct shamed the profession. Nor was there sufficient evidence that placed serious doubt on the her moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet. It was the decision of the panel that the facts do not support that the Member’s conduct had moved into the range of disgraceful conduct.

After careful consideration, the panel accepts the Agreed Statement of Facts save and except that portion of paragraph 23 of the Agreed Statement of Facts which sets out the Member’s conduct as disgraceful.

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 provides as follows:

WHEREAS the Member’s certificate of registration is currently revoked pursuant to section 10.4(1) of Ontario Regulation 275/94,

NOW THEREFORE,

THE COLLEGE OF NURSES OF ONTARIO (THE “COLLEGE”) AND LORRAINE ANNE MOODIE (THE “MEMBER”) JOINTLY SUBMIT THAT, in view of the facts and admissions set out in the Agreed Statement of Facts and the findings of professional misconduct, the Panel of the Discipline Committee (the “Panel”) should make an Order:

Requiring the Member to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for three months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption.
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 from the date the Member obtains an active certificate of registration. 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,

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

v. 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;

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:

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;

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 18 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
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 Submissions

College Counsel submitted that the penalty is in the public interest and within the range of accepted penalties. The terms address protection of the public, general and specific deterrence, and provide for remediation. The terms are sufficient to dissuade the Member from similar behaviour in the future and will serve to deter other members from similar conduct. The penalty provides for components of remediation which permit the Member to return to the profession once her suspension is complete and she has satisfied the terms, conditions and limitations imposed.

College Counsel submitted that mitigating factors include the Member’s consistent cooperation with the College. He stated that the Member took responsibility for her actions, cooperated with the development of the Agreed Statement of Facts and the Joint Submission on Order and has demonstrated remorse. With respect to aggravating factors, College Counsel stated that the repetitive nature and seriousness of her offen[c]e as well as the fact that she received a letter of caution from the College and still persisted in the conduct should be considered.

College counsel provided two similar cases to demonstrate the appropriateness of the penalty. Both cases had elements that differed from the current case in that one included falsification of a document and in the other the member knowingly produced documents that were inaccurate and/or misleading. In both cases, an oral reprimand and a suspension of 3 months [were] ordered. Remedial terms, conditions and limitations were imposed in both cases, however in one case the period of employer notification was 12 months and in the other, 24 months.

The Member declined to make a submission beyond the Joint Submission on Order.

Penalty Decision

The panel accepts the Joint Submission on Order and accordingly orders:

Requiring the Member to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for three months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

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,

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

v. 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;

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:

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 18 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
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 panel concluded that the proposed penalty is reasonable and in the public interest. The oral reprimand addresses the issue of specific deterrence, as does the suspension. General deterrence is addressed through the component of the suspension. Public protection is addressed through the suspension and the component of employer notification set out in the terms, condition[s] and limitations; and rehabilitation is addressed through the educational and consultative components of the penalty. Aggravating factors considered in the determination of the penalty include the extended duration during which the Member’s conduct persisted and the degree of severity that the conduct exhibited. Mitigating factors considered in the determination of the penalty included the Member’s cooperation with the College, as well as her expression of remorse and apology to the College, and through the College, to the public; by agreeing to the facts and a proposed penalty, the Member demonstrated that she has accepted responsibility for her actions.

The panel is satisfied that the Joint Submission is within range of penalties applied under similar circumstances.

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:

Debra Mattina, Public Member

Abdul Patel, Public Member