DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Nancy Sears, RN Chairperson Kim Jinkerson, RPN Member Samantha Diceman, RPN Member Linda Bracken Public Member Abdul Patel Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO NICK COLEMAN for College of Nurses of Ontario
- and -
MONIQUE KAULING Registration No. HG11533 ANGELA BROWNE Paralegal for Monique Kauling
LUISA RITACCA Independent Legal Counsel (by phone)
Heard: July 25, 2013
DECISION AND REASONS
This matter came on for a hearing before a panel of the Discipline Committee on July 25, 2013 at the College of Nurses of Ontario (“the College”) at Toronto.
The Allegations
The allegations against Monique Kauling (the “Member”) as stated in the Notice of Hearing dated May 28, 2013, [ ] are as follows.
IT IS ALLEGED THAT:
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to the following incidents:
(a) while employed as a Registered Practical Nurse (RPN) at [Facility A] in [ ] Ontario, you:
(i) attempted to borrow approximately $875-$900 from [Client A] on or about June 7, 2009, and described to the client your personal circumstances of financial hardship to justify your request;
(ii) attempted to borrow funds from [Client B] and/or attempted to solicit funds for your church, on or about June 2009, and described to the client your personal circumstances of financial hardship to justify your request;
(iii) borrowed $2,000 from [Client C] on or about October 15, 2008, and described your personal circumstances of financial hardship to justify your request;
(iv) attempted to borrow approximately $850 from [Client C] on or about June 7, 2009, and described to the client your personal circumstances of financial hardship to justify your request;
(v) failed to administer the medications ordered for 2100 hours for [Client D] on or about February 22, 2009, and/or charted in the MAR that the medications had been administered when they had not;
(vi) failed to administer medications, including a narcotic, ordered for bedtime for [Client E] on or about May 31, 2009, and charted in the MAR as though the medications had been administered when they had not;
(b) with respect to your employment as an RPN at [Facility B] in [ ] Ontario, you:
(i) worked as an RPN, held yourself out as an RPN and/or used the title RPN on or about March 11, 13, 20 and/or 21, 2010, after your certificate of registration had been suspended on March 11, 2010;
(ii) performed controlled acts that are reserved for members of the College, including administration of medications, nutrition and maintenance procedures with respect to the G-tube for [Client F] on or about March 11, 13, 20 and/or 21, 2010, after your certificate of registration was suspended on March 11, 2010;
(c) while employed as an RPN and/or a UCP at [Facility C] in [ ] Ontario, you:
(i) worked as an RPN, held yourself out as an RPN and/or used the title RPN in or about June-September 2010, after your certificate of registration had been suspended on March 11, 2010;
(ii) performed controlled acts that are reserved for members of the College, including intramuscular injections of Vitamin B12 to [Client G] on or about December 8, 2010, and [Client H] on or about December 10, 2010, after your certificate of registration was suspended on March 11, 2010.
- 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(15) of Ontario Regulation 799/93, in that, you signed or issued, in your professional capacity, a document that you knew, or ought to have known contained a false or misleading statement with respect to identifying yourself as an RPN while documenting care provided to clients in relation to the following incidents:
(a) with respect to your employment as an RPN at [Facility B] in [ ] Ontario, you:
(i) worked as an RPN, held yourself out as an RPN and/or used the title RPN on or about March 11, 13, 20 and/or 21, 2010, after your certificate of registration had been suspended on March 11, 2010;
(ii) performed controlled acts that are reserved for members of the College, including administration of medications, nutrition and maintenance procedures with respect to the G-tube for [Client F] on or about March 11, 13, 20 and/or 21, 2010, after your certificate of registration was suspended on March 11, 2010;
(b) while employed as an RPN and/or a UCP at [Facility C] in [ ] Ontario, you:
(i) worked as an RPN, held yourself out as an RPN and/or used the title RPN in or about June-September 2010, after your certificate of registration had been suspended on March 11, 2010;
(ii) performed controlled acts that are reserved for members of the College, including intramuscular injections of Vitamin B12 to [Client G] on or about December 8, 2010, and [Client H] on or about December 10, 2010, after your certificate of registration was suspended on March 11, 2010.
- 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(19) of Ontario Regulation 799/93, in that you contravened a provision of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts, and in particular, s. 11 of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and/or s. 27 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended, with respect to the following incidents:
(a) with respect to your employment as an RPN at [Facility B] in [ ] Ontario, you:
(i) worked as an RPN, held yourself out as an RPN and/or used the title RPN on or about March 11, 13, 20 and/or 21, 2010, after your certificate of registration had been suspended on March 11, 2010;
(ii) performed controlled acts that are reserved for members of the College, including administration of medications, nutrition and maintenance procedures with respect to the G-tube for [Client F] on or about March 11, 13, 20 and/or 21, 2010, after your certificate of registration was suspended on March 11, 2010;
(b) while employed as an RPN and/or a UCP at [Facility C] in [ ] Ontario, you:
(i) worked as an RPN, held yourself out as an RPN and/or used the title RPN in or about June-September 2010, after your certificate of registration had been suspended on March 11, 2010;
(ii) performed controlled acts that are reserved for members of the College, including intramuscular injections of Vitamin B12 to [Client G] on or about December 8, 2010, and [Client H] on or about December 10, 2010, after your certificate of registration was suspended on March 11, 2010.
- 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 with respect to the following incidents:
(a) while employed as a Registered Practical Nurse (RPN) at [Facility A] in [ ] Ontario, you:
(i) attempted to borrow approximately $875-$900 from [Client A] on or about June 7, 2009, and described to the client your personal circumstances of financial hardship to justify your request;
(ii) attempted to borrow funds from [Client B] and/or attempted to solicit funds for your church, on or about June 2009, and described to the client your personal circumstances of financial hardship to justify your request;
(iii) borrowed $2,000 from [Client C] on or about October 15, 2008, and described your personal circumstances of financial hardship to justify your request;
(iv) attempted to borrow approximately $850 from [Client C] on or about June 7, 2009, and described to the client your personal circumstances of financial hardship to justify your request;
(v) failed to administer the medications ordered for 2100 hours for [Client D] on or about February 22, 2009, and/or charted in the MAR that the medications had been administered when they had not;
(vi) failed to administer medications, including a narcotic, ordered for bedtime for [Client E] on or about May 31, 2009, and charted in the MAR as though the medications had been administered when they had not;
(b) with respect to your employment as an RPN at [Facility B] in [ ] Ontario, you:
(i) worked as an RPN, held yourself out as an RPN and/or used the title RPN on or about March 11, 13, 20 and/or 21, 2010, after your certificate of registration had been suspended on March 11, 2010;
(ii) performed controlled acts that are reserved for members of the College, including administration of medications, nutrition and maintenance procedures with respect to the G-tube for [Client F] on or about March 11, 13, 20 and/or 21, 2010, after your certificate of registration was suspended on March 11, 2010;
(c) while employed as an RPN and/or a UCP at [Facility C] in [ ] Ontario, you:
(i) worked as an RPN, held yourself out as an RPN and/or used the title RPN in or about June-September 2010, after your certificate of registration had been suspended on March 11, 2010;
(ii) performed controlled acts that are reserved for members of the College, including intramuscular injections of Vitamin B12 to [Client G] on or about December 8, 2010, and [Client H] on or about December 10, 2010, after your certificate of registration was suspended on March 11, 2010.
Member’s Plea
The Member admitted allegations 1, 2, 3, and 4 1 as set out in the Notice of Hearing. The panel received a written plea inquiry 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 [ ] which provided as follows.
THE MEMBER
Monique Kauling (the “Member”) obtained a diploma in nursing [ ] in 1987.
The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on June 26, 1987. The Member was suspended for non-payment of fees from March 11, 2010 to February 1, 2013. The Member was administratively revoked on February 1, 2013.
PRIOR HISTORY
- The Member has no prior disciplinary findings with the College.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
[Facility A]
[Facility A] was a long-term care facility that housed 40 residents on one floor.
The Member worked at Facility A from April 22, 2008 to June 10, 2009, when she was terminated.
The Member worked as both a full-time staff nurse and a charge nurse on day, evening and weekend shifts.
As part of her orientation, the Member reviewed a number of Facility A’s policies.
The “Conflict of Interest – Employees” policy stated:
Gifts
a) An employee shall not request/demand gifts or services from any resident’s family, or business having dealings with [Facility A]. [Facility A] shall discourage all employees from accepting goods or cash from a resident, a resident’s family, or a business having dealings with [Facility A].
The Member also reviewed the “Abuse-Free Environment” policy. She signed a confirmation that she read the policy on April 22, 2008.
Section 6.1 stated:
Financial Abuse
Financial abuse is any act that results in the financial or personal gain of one (1) person at the expense of another, or that results in financial loss for one (1) person due to deliberate inappropriate action or non-action by another. Financial abuse may occur by fraud, force, theft, or through misrepresentation, ignorance, or withholding. It may include, but is not limited to the following:
c) Staff soliciting gifts from a resident.
i. Borrowing Money from [Client C]
In October 2008, the Member provided care to [Client C] who was 88 years old.
The Member disclosed to [Client C] that she needed money to move to a new home.
On October 15, 2008, [Client C] wrote a cheque made out to Monique Kauling (the Member) in the amount of $2,000.00. The back of the cheque was date-stamped by the bank on October 16, 2008 and was signed by the Member.
If the Member were to testify, she would say that she believed the $2,000.00 she received from [Client C] was an unsolicited gift. However, the Member would say that she now understands that taking a monetary gift from a client is a breach of Facility A’s policies as well as a breach of College standards.
ii. Asking to Borrow Money from [Clients A, B and C]
[Client A]
The Member provided care to [Client A], who was 75 years old.
On June 7, 2009, the Member asked [Client A] if she could borrow between $875.00 and $900.00. The Member explained that she was experiencing personal financial hardships and needed a loan.
[Client A] refused the Member’s request for a loan, but the Member provided him with her name and telephone number in case he changed his mind.
When [Client A]’s daughter heard that the Member had asked her father for money, she notified management and other similar incidents subsequently came to light.
[Client B]
The Member also provided care to [Client B], who was 86 years old.
In June 2009, the Member approached [Client B] with a pamphlet from her church and asked [Client B] to make a donation. The Member also discussed her financial problems with [Client B], including telling [Client B] that her roommate was not working and therefore she could not pay her rent.
[Client B] did not give the Member any money for her church or give her a loan.
[Client C]
On June 7, 2009, the Member approached [Client C] again and asked for a loan of $850.00. [Client C] declined the Member’s request and she notified her Power of Attorney about the request and about the previous cheque for $2,000.00 she had issued to the Member.
If the Member were to testify, she would say that she approached [Clients A, B and C] for a loan to pay overdue rent and that she was going through a period of financial hardship. The Member now understands that asking clients for money was an abuse of her position of trust.
iii. Medication Administration Errors
[Client D]
On February 22, 2009, the Member worked 15:00 to 23:00.
On her shift, the Member provided care to [Client D], who was 88 years old.
According to [Client D]’s Medication Administration Record (“MAR”), [Client D] was ordered to receive the following medication at 21:00:
Morphine Sulfate SR – 30mg
Oxycocet 5/325mg tab
Risperidone – 0.5mg tab
Metoprolol – 50mg (1/4 tab)
Etical 400/500mg.
The Member was responsible for administering the 21:00 drugs to [Client D] on that evening shift.
The Member initialled in [Client D]’s MAR that she administered the medications at 21:00, as required.
However, the nurse who provided care to [Client D] on the shift after the Member discovered the 21:00 hour medications still in the strip in [Client D]’s medication bin. The medication strip identified the date and time the medications were supposed to be administered (21:00 hours).
The Member signed an incident report on February 23, 2009 with respect to failing to administer the drugs to [Client D] as required at 21:00 on February 22, 2009.
[Client E]
On May 31, 2009, the Member worked 15:00 to 23:00. During that shift, the Member provided care to [Client E], who was 94 years old.
[Client E]’s MAR indicated that she was to receive acetaminophen 500mg and Tylenol 2 at 21:00. The Member was responsible for administering the 21:00 drugs to [Client E] on that evening shift.
The Member initialled in [Client E]’s MAR as though the drugs had been administered, as required.
However, according to the medication incident report, the medication was found in [Client E]’s medication bin on the next shift. An incident report was prepared on June 1, 2009, which the Member signed, regarding the Member’s failure to give the drugs to [Client E] as required on May 31, 2009.
[Facility B]
- The Member worked at [Facility B] from June 6, 2008, to October 15, 2010, when she was terminated.
i. Holding Out and Use of the Title Nurse, Registered Practical Nurse and RPN
- The Member received four emails from Customer Service at the College, reminding her that the deadline for renewing her membership for 2010 was approaching. Emails were sent on the following dates: October 20, 2009; December 1, 2009; December 23, 2009; and January 26, 2010. The email reminder sent on January 26, 2010, stated:
The deadline to renew your membership with the College is Wednesday March 10, 2010.
If you do not renew or resign your membership by this date, you will be suspended for nonpayment of fees. Once suspended, you are no longer entitled to practise nursing in Ontario.
The Member attempted to renew her certificate of registration for 2010 on December 31, 2009, but her application was rejected because the Annual Renewal Form was incomplete. She was notified about the incomplete application in a letter to her from the College dated January 8, 2010.
On January 22, 2010, the College received the Member’s Annual Renewal Form a second time, but it was also incomplete so it was returned to the Member for completion.
On February 1, 2010, the Member was notified by the College that her certificate of registration would be suspended on March 10, 2010, if she failed to pay the 2010 renewal fees, including an administrative fee of $24.53.
On March 11, 2010, the Member was notified by mail that her certificate of registration had been suspended effective that date.
The Member attempted to renew her certificate of registration after March 11, 2010, but she was required to reinstate rather than renew since she had already been suspended. By the time the Member attempted to reinstate later in March 2010, her conduct was under investigation with respect to the incidents described above so her application for reinstatement was denied.
Despite being suspended, the Member held herself out and worked as an RPN at Facility B on the following dates: March 11, 13, 20 and 21, 2010.
ii. Performing Controlled Acts
Between March 11, 2010, and March 21, 2010, while suspended for non-payment of fees, the Member signed as having completed several controlled acts.
For instance, the Member administered medications and performed nutrition and maintenance procedures with respect to [Client F]’s gastrostomy tube (G-tube). The Member documented her care in [Client F]’s Nursing Progress Notes.
[Facility C]
i. Holding Out and Use of the Title Nurse, Registered Practical Nurse and RPN
The Member was offered and accepted a position as an RPN at [Facility C] on June 8, 2010, although she was aware that her certificate of registration had been suspended on March 11, 2010.
In June and July 2010, the Member charted in medical records by signing her name and her designation as RPN while her certificate of registration was suspended for non-payment of fees.
If the Member were to testify, she would say that she was going through an unusual period of personal and financial hardship at the time, but she understands that she should not have practised while her certificate of registration was suspended.
ii. Performing Acts Reserved for Registered Members while Working as an UCP
After September 13, 2010, the Member was employed as an unregulated care provider (“UCP”) after Facility C learned that her certificate of registration had been suspended.
Despite working as a UCP, on December 8, 2010, the Member administered Vitamin B-12 to [Client G] by intramuscular injection. She did the same for [Client H] on December 10, 2010. The Member signed for both injections in the clients’ charts. These injections were controlled acts reserved for members of the College.
If the Member were to testify, she would say that Facility C authorized her to administer intramuscular injections as an UCP. However, she acknowledges that her conduct was improper, regardless of the facility’s ostensible authorization.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
- The Member admits that she committed the acts of professional misconduct, described above in paragraphs 4 to 50, and as alleged in the Notice of Hearing in paragraphs:
1(a), (b) and (c);
2(a) and (b)
3(a) and (b);
4(a) (i), (ii), (iii) and (iv), in that her conduct was disgraceful, dishonourable and unprofessional.
4(a)(v) and (vi) in that her conduct was unprofessional.
4 (b) and (c), in that her conduct was disgraceful, dishonourable and unprofessional.
Decision
The panel considered the Agreed Statement of Facts and the Member’s plea and finds that the facts support findings of professional misconduct; and in particular, finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2, and 3 in the Notice of Hearing. The panel finds that the Member committed professional misconduct as set out in paragraphs 4(a)(v) and (vi) in that her conduct, relevant to the practice of nursing, would reasonably be regarded by members as unprofessional. Further, the panel finds that the Member committed acts of professional misconduct as set out in paragraphs 4(a)(i),(ii),(iii) and (iv); 4(b) and 4(c) in that her conduct, relevant to the practice of nursing, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.
Reasons for Decision
The Agreed Statement of Facts was clear and it was the unanimous decision of the panel to accept it and the Member’s plea. The panel finds that the evidence contained in the Agreed Statement of Facts supports the allegations of professional misconduct.
Unprofessional conduct is a serious or persistent disregard for one’s professional obligations, and/or a lack of good [judgment] and responsibility, that are required of those privileged to practi[s]e nursing. Such unprofessional conduct was demonstrated by the conduct described in allegations 4(a),(b) and (c) and acknowledged by the Member.
Dishonourable conduct includes elements of moral failing and conduct that casts doubt on the nurse’s ability to discharge the higher obligations that the public expects nurses to meet. Disgraceful conduct is more serious than dishonourable conduct in that while it also contains elements of moral failing, it goes further and shames the nurse and the profession. The panel finds that the Member’s conduct set out in allegations 4(a)(i),(ii),(iii),(iv); 4(b)(i),(ii); and 4(c)(i),(ii), in addition to being unprofessional, is also dishonourable and disgraceful. The Member showed a moral failing by attempting to solicit funds from vulnerable clients for her own benefit or that of a personal interest (her church); used the title nurse and performed controlled acts when she knew that her certificate of registration was suspended; and by using the title nurse when she was not entitled to do so, lied to her employers as well as her clients; and failed to provide required client care and documented that the omitted care had been done.
Penalty
Counsel for the College advised the panel that a Joint Submission as to Order (“JSO”) had been agreed upon. The JSO provides 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 six 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 of the date of this Order. To comply, the Member is required to ensure that:
i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;
ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:
Professional Standards,
Therapeutic Nurse-Client Relationship,
iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;
v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;
viii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;
b) For a period of 24 months from the date the Member returns to clinical nursing practice, the Member will notify her employers of the decision. To comply, the Member is required to:
i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
ii. Provide her employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and
c) The Member shall not practise independently in the community for a period of 12 months from the date the Member returns to clinical nursing practice.
The Member shall, within 24 months from the date of this Order, provide to the Director acceptable proof that full restitution has been made to the client or the client’s authorized representative. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which the Member shall retain;
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 advised the panel that the JSO was the result of discussion and negotiation between the parties. They had considered the factors of the seriousness of the misconduct, including aggravating and mitigating factors, deterrence, rehabilitation and consistency with prior decisions of discipline panels in cases of similar conduct. The Member’s misconduct could be categorized into three types:
(1) soliciting and accepting gifts and or loans from clients hence taking advantage of and/or disrupting the therapeutic nurse/client relationship and breaching trust with the client and the employer;
(2) practi[s]ing, using the title ‘nurse’, and performing controlled acts while her certificate of registration was suspended; and
(3) failing to give medications to two clients yet documenting in the clients’ charts that these medications were given.
Aggravating factors included the variety of the types of failure by the Member to maintain her professional responsibilities which was described by College Counsel as a complete collapse of her professional responsibility over a two year period.
Mitigating factors that were considered were the Member’s acceptance of responsibility for her conduct, her cooperation with the College, and the fact that this was the first time the Member’s conduct has been under review by the College.
College Counsel submitted that the proposed penalty was in the interest of the public in that the terms addressed deterrence, rehabilitation, employer notification and reporting and placed restrictions on the Member’s practice. The proposed penalty was in the interest of the profession as it demonstrated that such conduct was not tolerated by the profession and that the profession is capable of monitoring itself. Further, the proposed penalty was in the interest of the Member in that it allowed her the opportunity to remedy her conduct and return to the profession. Over all, the proposed penalty was appropriate and proportional to the conduct.
College Counsel provided eight cases involving similar conduct, albeit some more serious and some less serious, [CNO v. Comeau (2003); CNO v. Cousins (2012), CNO v. Marshall (1999); CNO v. Clouse (2002), CNO v. Boczylo (1999); CNO v. Campbell (2007); CNO v. Divina (1999); CNO v. Leuszler (1998); CNO v. Walton (2004)]. The penalties in these cases ranged from suspensions of [ ] one to twelve months, coupled with reprimands, and terms, conditions and limitations that were not dissimilar from those being proposed in this case. College Counsel characterized the Member’s conduct as falling in the middle of the spectrum of conduct underlying the findings in these precedent cases.
The paralegal representative for the Member submitted that she agreed with the terms set out in the JSO and noted that the Member had cooperated with the College. She submitted that the Member had a 20-year nursing practice and was horrified at her own behaviour. The conduct occurred during a period of substantial financial, family, and personal stress. She stated that the Member was remorseful and wanted to apologize to the College. She was currently receiving helpful counselling from the pastor at a church. The proposed penalty would serve as an effective deterrent for future conduct of the Member. She also submitted that the Member had sought financial assistance and had developed knowledge of the supports she could turn to when in difficult circumstances.
Following submissions from the parties, the panel noted that the proposed penalty included a requirement that the Member provide to the Director proof that she had made financial restitution to the client or the client’s authorized representative. The panel noted that this type of requirement was not present in any of the penalties set out in the past cases listed above and asked the parties if they could make additional submissions regarding this part of the proposed penalty.
College Counsel agreed that this type of factor was not included in the past cases but it had been agreed to by the Member and was taken into account in the development of the appropriateness of the proposed penalty as a whole.
The Member’s paralegal submitted that the proposed restitution factor was a proposal that originated from the Member.
Penalty Decision
The panel orders:
The Member to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.
The Executive Director to suspend the Member’s certificate of registration for six months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption.
The Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend two meetings with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:
i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;
ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:
Professional Standards,
Therapeutic Nurse-Client Relationship,
iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;
v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;
viii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;
b) For a period of 24 months from the date the Member returns to clinical nursing practice, the Member will notify her employers of the decision. To comply, the Member is required to:
i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
ii. Provide her employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and
c) The Member shall not practise independently in the community for a period of 12 months from the date the Member returns to clinical nursing practice.
- All documents delivered by the Member to the College, the Expert or the employer(s) will be [delivered] by verifiable method of delivery, the proof of which the Member will retain.
Reasons for Penalty Decision
The panel conducted serious and detailed deliberations on the terms set out in the JSO and found that the proposed factors set out in paragraphs 1, 2, 3, and 5 of the JSO are reasonable and in the public interest. They address the goals of penalty, those being protection of the public, general and specific deterrence, and rehabilitation. The panel found that paragraph 4 of the JSO supported an outcome that was laudable, that being financial restitution to the client from whom the Member had obtained funds. However, the panel was concerned that it lacked jurisdiction to make the order requested, as it did not fall into any of the categories set out in section 51(2) of the Regulated Health Protection Act, 1991, S.O. 1991, c. 18 (RHPA). The panel was mindful of the fact that this portion of the penalty was part of a joint submission and that as such it ought not to be set aside lightly. Therefore, the panel suspended deliberations, returned to the hearing room and informed the parties that they would be including the proposed penalty factors set out in the Joint Submission at paragraphs 1, 2, 3 and 5 in its order. However, the panel was concerned that the RHPA did not provide it with the authority to make an order consistent with paragraph 4 of the Joint Submission, and once again asked the parties for submissions on this issue.
Counsel for the College agreed that the proposed factor dealing with restitution was not one of the enumerated orders listed in the RHPA that a panel could make. However, he submitted that the JSO could be amended, such that this particular term could be inserted as subsection ‘d’ under Paragraph 3 of the JSO. This, he submitted would make the proof of restitution factor part of the terms, conditions and limitations imposed on the Member’s certificate of registration. College Counsel stated that this factor was part of the penalty balance that was agreed to between the parties and that the College wanted it incorporated into the formal features of the panel’s order.
The Member’s paralegal introduced the question of what the consequence would be of the potential circumstance in which the Member was unable to locate the client or the client’s authorized representative for the purpose of making restitution. Both the Member’s representative and College Counsel ultimately agreed that this was a tangential issue and did not need to be addressed at that time.
Following these submissions, 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 that she had received and reviewed the JSO ILC advised that in her view the panel did not have the jurisdiction to order restitution either directly or through an order that required proof of restitution, the latter being a ‘backdoor’ manner of ordering restitution. There are financial penalties clearly enumerated in Section 51(2) of the RHPA. However, those dealt with matters such as fines and reimbursement to the College for certain costs. ILC advised that the panel should not include restitution as a condition on the Member’s certificate of registration; nor could it do so as a term of having her certificate of registration reinstated.
Following ILC’s submission, both parties were invited to make submissions on her advice to the panel. Counsel for the College indicated that an amendment to the JSO re-numbered the restitution paragraph to be paragraph 3(d) of the JSO. He submitted that the panel had ILC and ought to follow the advice given. He further submitted that the proposed penalty was to demonstrate that restitution had been made and that it could be a term, condition or limitation on the certificate of registration, not as a condition of getting the certificate of registration back, but as a condition on the certificate itself such that when the Member got her certificate of registration back, she would have to comply with the restitution demonstration condition. This spoke to the Member’s rehabilitation, as restitution to a client was beneficial and the proposed factor was a condition that helped balance the fuller penalty. The paralegal representative for the Member submitted that it was the position of the Member that she repay the client but that the panel should “just try to do what is possible” and if this action was impossible then it could not be enforced.
In response to the submission of the Member’s paralegal representative, College Counsel submitted that the issue was not the possibility of payment but whether it could be incorporated as a term, condition or limitation. He proposed that if the panel was inclined to follow the advice of ILC, then the College would expect the Member to enter into an undertaking with College to pay restitution. This undertaking would then be considered as a mitigating factor when balancing the components of the penalty. College Counsel conceded that the panel did not have the authority to order restitution, or demonstration of restitution, as a freestanding term of its order. However, in his opinion, it was still outstanding whether this could be a term, condition or limitation placed on the Member’s certificate of registration. If the panel decided not to incorporate this factor into its order, then he proposed that the parties would delete it from the JSO and enter into an undertaking that would reach the same outcome.
The panel concluded that it did not have the jurisdiction under the RHPA to make an order for restitution, either directly as a stand-alone term of its order or indirectly as a term, condition or limitation on the Member’s certificate of registration. Accordingly, the panel did not include this factor in its order.
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:
Kim Jinkerson, RPN
Samantha Diceman, RPN
Linda Bracken, Public Member
Abdul Patel, Public Member