College of Nurses of Ontario v. Landry, 2013 ONCNO 93848

PANEL: Nancy Sears, RN Chairperson Megan Sloan, RPN Member Linda Bracken Public Member Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

and )

JESSY-LEE LANDRY ) NO REPRESENTATION for Registration No. JE80282 ) Jessy-Lee Landry

) Heard: July 15, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on July 15, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Jessy-Lee Landry (the “Member”) were set out in the Notice of Hearing [ ] dated May 28, 2013. Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 2(e), 3(b) and 5(e) of the Notice of Hearing. The panel granted this request. The remaining allegations as set out in the Notice of Hearing are as follows.

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that on April 27, 2011, in the Ontario Court of Justice in [ ] Ontario, you were found guilty of offences relevant to your suitability to practise, and in particular,

(a) you were found guilty of the criminal offence of possession of property from [Facility A], being a medical prescription [pad], valued under $5,000, contrary to section 354(1)(a) of the Criminal Code of Canada; and/or

(b) you were found guilty of knowingly using a forged document, a medical prescription, purportedly signed by [Dr. A] as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada;

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, while practising as a Registered Practical Nurse, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that you:

(a) in April 2011, provided false or misleading information to your employer, [Facility B], in respect of the status of your criminal charges;

(b) in April 2011, provided false or misleading information to your employer, [Facility B], in respect of the status of any investigation undertaken by the College;

a) [Client A] on or about July 22, 2011 and/or July 24, 2011; and/or

b) [Client B] on or about July 29, 2011;

(d) misappropriated property from your workplace in that you billed, and were paid for client visits not made by you to

a) [Client A] on or about July 22, 2011 and/or July 24, 2011;

b) [Client B] on or about July 29, 2011; and/or

c) [Client C] on or about September 12, 2011;

(e) [withdrawn]

(f) in June to September 2011, provided false and/or misleading information to your employer, [the Agency], in respect of the status of your criminal charges and/or findings of guilt;

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, while employed by [the Agency] as a Registered Practical Nurse, you misappropriated property, in particular, you

(a) misappropriated property from your workplace in that you billed, and were paid for client visits not made by you to

a) [Client A] on or about July 22, 2011 and/or July 24, 2011;

b) [Client B] on or about July 29, 2011; and/or

c) [Client C] on or about September 12, 2011; and/or

(b) [withdrawn]

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(13) of Ontario Regulation 799/93, in that, while employed by [the Agency] as a Registered Practical Nurse, you failed to keep records as required, and in particular, you:

(a) failed to document your attendance and/or care of [Client A] on or about July 22, 2011 and/or July 24, 2011; and/or

(b) failed to document your attendance and/or care of [Client B] on or about July 29, 2011; and/or

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 you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional in that you:

(a) in April 2011, provided false or misleading information to your employer, [Facility B], in respect of the status of your criminal charges;

(b) in April 2011, provided false or misleading information to your employer, [Facility B], in respect of the status of any investigation undertaken by the College;

a) [Client A] on or about July 22, 2011 and/or July 24, 2011; and/or

b) [Client B] on or about July 29, 2011;

(d) misappropriated property from your workplace in that you billed, and were paid for client visits not made by you to

a) [Client A] on or about July 22, 2011 and/or July 24, 2011;

b) [Client B] on or about July 29, 2011; and/or

c) [Client C] on or about September 12, 2011;

(e) [withdrawn]

(f) in June to September 2011, provided false and/or misleading information to your employer, [the Agency], in respect of the status of your criminal charges and/or findings of guilt.

Member’s Plea

The Member admitted to the allegations set out in paragraphs numbered 1(a), 1(b), 2(a), 2(b), 2(c)(a), 2(c)(b), 2(d)(a), 2(d)(b), 2(d)(c) 2(f), 3(a)(a), 3(a)(b), 3(a)(c), 4(a), 4(b) and 5(a), 5(b), 5(c)(a), 5(c)(b) 5(d)(a), 5(d)(b), 5(d)(c) and 5(f) in the Notice of Hearing. The panel received a written plea inquiry [ ] dated May 16, 2013, 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 [ ] dated May 16 & 21, 2013, which provided as follows.

The Member

Jessy-Lee Landry (the “Member”) obtained a diploma [ ] in 2004.
The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on January 25, 2005.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

A. Criminal Conviction

The Member worked at [Facility A] from September 8, 2008, to December 1, 2010, when he was terminated.
The Member worked as a part-time staff nurse in acute care.
In 2009, the Member stole prescription pads from [Dr. A], a locum doctor with [Facility A], who provided treatment to the Member.
The Member used the prescription pads to write five prescriptions in his name for Oxycodone on the following dates: August 9, September 10, September 15, November 4 and November 5, 2010. The Member forged [Dr. A]’s signature on the prescriptions and he filled them at a local pharmacy.
The pharmacy became suspicious of the prescriptions because the signatures on all five were different and [Dr. A]’s licence number was written on the bottom, which was not common practice. [Dr. A] was consulted and it was determined that the prescriptions were forged.
In November 2010, the Member was charged with five counts each of: 1) making a false document by writing a prescription; 2) using a forged document as if it were genuine, by filling the forged document at a local pharmacy, and; 3) having in his possession stolen property valued under $5,000.00. The charges related to the five dates on which the Member wrote and filled the forged prescriptions.
On April 27, 2011, the Member pled guilty and was found guilty of two charges, knowingly using the forged prescription as if it were genuine on August 9, 2010 and having the prescription in his possession on the same date. The rest of the charges were withdrawn. The Member was given a conditional sentence with 24 months probation and counselling.
The police contacted [Facility A] about the charges and the Member was terminated on December 1, 2010. In addition to working at [Facility A], the Member also worked as a part-time staff nurse at [Facility C]. On February 10, 2011, the Member was terminated for cause as a result of his charges.

B. Dishonesty about Criminal Convictions

On March 19, 2011, the Member was offered a part-time, staff nurse position at [Facility B].
As a term of his employment, the Member was required to provide [Facility B] with a current criminal record check. The Member’s offer letter, dated March 19, 2011, stated: “This offer is conditional upon you providing [Facility B] with a satisfactory current criminal record check and proof of TB screening.” The Member did not disclose his criminal charges.
The Member began employment at [Facility B] on March 21, 2011.
[The Director of Care (DOC)], learned about the Member’s legal problems from another staff member. [The DOC] and [the Director of Human Resources] met with the Member on April 4, 2011, to discuss the issue. The Member told [them] that the criminal charges against him had been dropped. He also told them that the College’s investigation had been dropped. The Facility requested an updated criminal record check by April 6, 2011, which he failed to provide.
In a meeting on April 11, 2011, the Member clarified that the College was keeping the matter going “until the case is completed.” The Member was terminated on April 11, 2011.
The Member admits that he was not honest and forthright in his dealings with the Facility and that he provided false and misleading information to [Facility B] in respect of his criminal charges.

C. Incidents at [the Agency]

The Member began working at [the Agency] on June 21, 2011, as a casual staff nurse providing homecare to clients.

i. Billing for Client Visits Not Made

[Client A]

The Member was scheduled to provide wound care to [Client A] on July 22, 2011, and July 24, 2011. He was not [Client A]’s regular homecare nurse. [Client A] was receiving one hour of wound care daily on his feet at the time.
The Member did not provide care to [Client A] on either date. The Member did not document any nursing notes in [Client A]’s progress notes, wound care flow sheet or in the general nursing notes.
On July 25, 2011, [Client A]’s regular nurse noted that [Client A] did not receive wound care between July 21, 2011, and July 24, 2011, and that his wound required treatment at the hospital.
The Member recorded and verified his attendance at [Client A]’s home on both dates on the Agency’s [ ] computer system at the end of each day. He received payment and mileage for both visits, despite not providing care to [Client A] on either date.

[Client B]

The Member was scheduled to provide wound care to [Client B] on July 29, 2011. The Member did not provide care to [Client B] on this date. The Member did not document any nursing notes in the client’s progress notes, wound care flow sheet or in the general nursing notes.
The Member recorded and verified his attendance at [Client B]’s home on the Agency’s [ ] computer system. He received payment and mileage for the visit.

[Client C]

[Client C]’s daughter contacted the Agency to arrange an appointment for her mother. Although she spoke to the Member, she did not book an appointment and the Member did not provide care to [Client C] at any time. Despite this, the Member recorded on the Agency’s [ ] computer system that he attended [Client C]’s home on September 12, 2011. He was paid for the visit.
If the Member were to testify, he would say that he followed the Community Care Access Centre’s (“CCAC”) protocol for dealing with clients who are not home during a scheduled visit. The Member says the clients were “not seen not found,” meaning they were not home for the visits, and that he was permitted to bill for the visits in accordance with CCAC. If a representative for the CCAC were to testify, she would state that the Member did not follow procedure in confirming that the clients were “not seen not found.”

ii. Failing to Disclose Criminal Conviction

The Member started working at the Agency in June 2011. As a term of his employment, the Member provided the Agency with a criminal record check that was conducted in January 2011, which indicated that he had no outstanding criminal convictions, charges, discharges or court orders.
On June 21, 2011, he signed a document titled “Conditions of Employment Agreement.” The agreement included a provision that stated that the Member agreed to:

Notify [the Agency] of any reasons that might affect the status of my Criminal Record Check. Criminal Record Checks applied for at time of hire must be returned to [the Agency] office by the end of the Probationary Period. I agree to notify [the Agency] of any reasons that might affect the status of my Criminal Record Check, and acknowledge that any changes [sic] will be reviewed with consideration to suitability to practice and service vulnerable clients.

The Member did not notify the Agency that his criminal record check was not accurate or updated nor did he notify them that on April 27, 2011, he was found guilty of knowingly using the forged prescription as if it were genuine and having forged prescriptions in his possession.
The Member admits that he was not honest and forthright in his dealings with the Agency and that he provided false and misleading information to the Agency in respect of his criminal charges.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that he committed the acts of professional misconduct as alleged in the Notice of Hearing, as set out in paragraphs:

1(a) and (b);
2(a), (b), (c)(a) (in respect of both July 22, 2011, and July 24, 2011), (c)(b), (d)(a) (in respect of both July 22, 2011, and July 24, 2011), (d)(b), (d)(c) and (f) (in respect of both false and misleading information);
3(a)(a) (in respect of both July 22, 2011, and July 24, 2011), (a)(b), and (a)(c);
4(a) and (b);
5(a), (b), (c)(a) (in respect of both July 22, 2011, and July 24, 2011), (c)(b), (d)(a) (in respect of both July 22, 2011, and July 24, 2011), (d)(b), (d)(c) and (f), in that his conduct was disgraceful, dishonourable and unprofessional.

With leave of the Discipline Committee, the College withdraws the allegations of professional misconduct alleged in the Notice of Hearing, as set out in paragraphs:

2(e);
3(b); and
5(e).

Decision

The panel allowed the withdrawal of allegations 2(e), 3(b) and 5(e).

The panel considered the Agreed Statement of Facts and the Member’s admissions and finds that the facts and the Member’s plea support findings of professional misconduct. In particular, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 2(a), 2(b), 2(c)(a), 2(c)(b), 2(d)(a), 2(d)(b), 2(d)(c) 2(f), 3(a)(a), 3(a)(b), 3(a)(c), 4(a), 4(b) and 5(a), 5(b), 5(c)(a), 5(c)(b) 5(d)(a), 5(d)(b), 5(d)(c) and 5(f) in the Notice of Hearing. The Member was found guilty of offences relevant to his suitability to practi[s]e, including possession of stolen property valued under $5000.00 and knowingly using a forged medical prescription. He contravened standards of practice or failed to meet the standards of practice of the profession by providing false or misleading information to employers about his criminal charges and to an employer about the College’s investigation of his conduct, failing to attend scheduled home care appointments and provide care to clients, and misappropriating property from his workplace by billing for client visits not made. He contravened 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 paragraphs 1(8) and 1(13) of Ontario Regulation 799/93 by misappropriating property by billing for client visits not made and failing to keep records as required. Finally, the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Reasons for Decision

The Member admits his conduct. The facts as set out in the Agreed Statement of Facts provide sufficient proof of the conduct set out in the allegations.

As to allegation #5, the panel found each isolated incident enumerated in that allegation has elements consistent with unprofessional and dishonourable conduct. When the breadth and scope of the misconduct is considered in its totality, the Member’s conduct casts doubt on his moral fitness and inherent ability to discharge the higher obligation the public expects members of the profession to meet. Accordingly, the panel finds the Member’s conduct to be disgraceful, dishonourable and unprofessional.

Penalty

The parties jointly requested that this panel should make an Order as follows.

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 eight months. This suspension shall take effect from the date of this Order 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 his own expense and within six months from 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
Medication
Documentation

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

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

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 his 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 his certificate of registration;

b. For a period of 24 months from the date the Member returns to nursing practice, the Member will notify his 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 his 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 24 months

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 Joint Submission on Order contained five essential elements: an oral reprimand, an eight-month suspension, two meetings with a nursing expert, a twenty-four month period of employer notification, and a prohibition on practi[s]ing independently in the community for twenty-four months. College Counsel submitted that the penalty was negotiated by both parties. She acknowledged that it contains a lengthy period of suspension which is on the higher end of what a panel may typically see. College Counsel submitted that the eight-month suspension in this case is warranted and appropriate when the aggravating and mitigating factors are balanced.

The aggravating factors outlined in the College Counsel’s submissions included the seriousness of the admitted misconduct, which showed a pattern of dishonesty including stealing, lying, and accepting payment for scheduled appointments that weren’t attended. This type of conduct shows disregard for the expectations and responsibilities expected from members of the nursing profession.

The mitigating factors included the Member’s cooperation during the investigation and hearing preparation process and acceptance of responsibility for his conduct, thereby avoiding the need for a lengthy contested hearing. It is also the Member’s first time before the Discipline Committee.

College Counsel identified that the goals of penalty considered in the Joint Submission on Order include general deterrence, specific deterrence, rehabilitation and protection of the public. In its totality, the proposed penalty sends the message to members of the nursing profession that conduct of this nature is very serious and will not be tolerated. The proposed penalty, which includes an oral reprimand, a suspension, and terms conditions and limitations on his certificate of registration, specifically deters the Member from similar conduct in the future. The two meetings with a nursing expert would provide the rehabilitative aspect. The public would be protected by the specific deterrence factor, the rehabilitation of the Member’s practice, the engagement of the Member’s future employers in monitoring his practice, and the twenty-four month prohibition on practi[s]ing independently without supervision in the community.

In order to demonstrate an appropriate and reasonable range of penalty, College Counsel provided two previous cases decided by panels of this Discipline Committee (CNO v. A. Pace, November 8, 2012; CNO v. A. Codinha, February 25, 2008). Both cases involved similar criminal convictions and dishonesty regarding prescriptions. The penalties in both cases included an oral reprimand, suspension (albeit of 5 and 6 months respectively), and similar terms, conditions and limitations to address rehabilitation and employer monitoring. Neither case included a prohibition limiting practice. College Counsel submitted that neither of those two cases dealt with home care nursing practice, as was the case with this Member. College Counsel submitted that due to the inherent nature of home care practice, where nurses practi[s]e without direct on-site supervision or collaboration, the proposed prohibition on independent practice in the community was a reasonable component of an order for this Member.

The Member made no submissions beyond the Joint Submission on Order.

When questioned by the panel as to whether the parties were prepared to provide past cases that set out similar prohibitions on practice, College Counsel declined to do so. The Member made no submission.

Penalty Decision

The Member is required to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for eight months. This suspension shall take effect from the date of this Order and shall continue to run without interruption.
The Executive Director is directed 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
Medication
Documentation

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 his behaviour;

b. For a period of 24 months from the date the Member returns to nursing practice, the Member will notify his 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 his 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 24 months

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 considered the Joint Submission on Order, the facts of this case and the previous cases provided to support the proposed penalty and concluded that the proposed penalty as outlined in paragraphs 1 through 3(b) and paragraph 4 of the Joint Submission on Order is reasonable and in the public interest.

The panel specifically turned its attention to paragraph 3(c) of the Joint Submission as to Order. The panel finds that given the Member’s misconduct within the context of home care, a period of prohibition on independent practice in the community is reasonable and in the public interest. In the absence of prior cases that could help the panel deliberate as to what, in this case, is a reasonable duration for prohibition of independent practice in the community, the panel was concerned that twenty-four months may or may not be reasonable. However, the panel is well aware of the principles that support and encourage resolution of cases through agreement and understands that the College and Member would not enter lightly into a joint resolution they did not believe was reasonable in the circumstances. As such, the panel also ordered a prohibition of independent practice in the community for a period of twenty-four months, as requested by both parties.

The panel finds that the penalty addresses the elements of general and specific deterrence through the reprimand and suspension. The preparation for and the attendance at two meetings with a nursing expert place a strong emphasis on rehabilitation. This rehabilitation component, the condition of employer notification and monitoring, and the period of prohibition for independent community practice provide for public protection.

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:

Megan Sloan, RPN

Linda Bracken, Public Member

Abdul Patel, Public Member