College of Nurses of Ontario v. Roberta Caron, 2013 ONCNO 93852

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson

Susan Roger, RN Member

Kim Jinkerson, RPN Member

Margaret Tuomi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for

) College of Nurses of Ontario

• and - )

ROBERTA CARON ) NO REPRESENTATION for

Registration No. JF663309 ) Roberta Caron

) LUISA RITACCA.

) Independent Legal Counsel

) Heard: August 12-15, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on August 12-15, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

As Roberta Caron (the “Member”) was not present, the hearing recessed for twenty minutes to allow time for the Member to appear. Upon reconvening, the panel noted that the Member was not in attendance and was not represented.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on April 4, 2013. The panel was satisfied that the Member had received adequate notice of the time, date, place and nature of the hearing, and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated April 4, 2013, are as follows:

IT IS ALLEGED THAT:

1. 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, in the Ontario Court of Justice in [ ] Ontario, you were found guilty of offences relevant to your suitability to practise, and in particular,

(a) on March 23, 2011, you were found guilty of the criminal offence of, between September 1, 2009, and December 1, 2009, stealing a credit card valued under $5,000, contrary to section 334(b) of the Criminal Code of Canada;

(b) on March 23, 2011, you were found guilty of knowingly using a forged document, a cheque, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada; and/or

(c) on April 5, 2012, you were operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in your blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to section 253(1)(b) of the Criminal Code of Canada; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in 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) told a colleague that you pretended to give [Client A] a dose of medication in order to keep the client’s daughter happy, in or about December 2009;

(b) breached the boundaries of the therapeutic nurse-client relationship by disclosing personal information to [Client B] when such disclosure did not meet an articulated therapeutic need of the client;

(c) resided in the vacant home of [Client C] without the permission of [Client C] or her family, from on or about May to August 2009;

(d) misappropriated property from [Client C] by removing household items and furniture from [Client C]’s home without permission, in or about August 2009; and/or

(e) breached the boundaries of the therapeutic nurse-client relationship by engaging in a financial or other transaction with [Client D] in respect of transfer or ownership of a motor vehicle, unrelated to the provision of care and services with the client, on or about June or July 2009; and/or

3. 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 practising as a Registered Practical Nurse, you misappropriated property from a client, in particular, by removing household items and furniture from [Client C]’s home without permission, in or about August 2009; and/or

4. 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 while practising as a Registered Practical Nurse in [ ] Ontario, 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) told a colleague that you pretended to give [Client A] a dose of medication in order to keep the client’s daughter happy, in or about December 2009;

(b) disclosed personal information to [Client B] when such disclosure did not meet an articulated therapeutic need of the client;

(c) resided in the vacant home of [Client C] without the permission of [Client C] or her family, from on or about May to August 2009;

(d) misappropriated property from a client, [Client C], by removing household items and furniture from [Client C]’s home without permission, in or about August 2009; and/or

(e) engaged in a financial or other transaction with [Client D] in respect of transfer or ownership of a motor vehicle, unrelated to the provision of care and services with the client, on or about June or July 2009.

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member is a Registered Practical Nurse and was employed in the capacity of Director of Care at [the Facility], a retirement home in [ ] Ontario. During her period of employment at [the Facility], and specifically from May to December 2009, it was alleged that the Member demonstrated a pattern of exploiting elderly and cognitively impaired residents in her care to obtain property and money from these residents. Additionally, the Member has been found guilty of criminal offences related to her suitability to practi[s]e, including stealing a credit card (March 23, 2011), knowingly using a forged document (March 2011) and operating a motor vehicle having consumed alcohol in excess of the legal limit (April 2012).

The Panel heard from ten witnesses and received 38 exhibits, including video testimony from two residents. The Panel found all allegations in the Notice of Hearing had been proven. As to the fourth allegation, the Panel found that the Member had engaged in conduct that would [ ] reasonably be regarded by the members of the profession to be disgraceful, dishonourable and unprofessional.

The Evidence

With respect to allegation #1, the Panel received certified copies of transcripts of the proceedings at trial before the Ontario Court of Justice relating to the Member (dated March 23, 2011, and April 5, 2012). The panel also received a copy of the two Certified Informations relating to the Member, with findings of guilt documented for the charges enumerated in the Notice of Hearing. These proved that the Member had been found guilty of the following offences:

• Contrary to Section 334(1)(b) of the Criminal Code of Canada, the Member had been found guilty of stealing a credit card from a resident at [the Facility];

• Contrary to Section 368(1) (a) of the Criminal Code of Canada, the Member had been found guilty of using a forged cheque from that same resident’s cheque book to pay the credit card bill, without the resident’s knowledge.

• Contrary to Section 253(1) (b) of the Criminal Code of Canada, the Member was found guilty of consuming alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood and having operated a motor vehicle.

The factual underpinnings of allegation #2 and allegation #4 were inexorably linked and therefore the evidence in support of them is summarized jointly. The following summarizes the evidence for both of these allegations:

Allegations #2(a) and #4 (a)

The Panel heard from two witnesses: the current Director of Care and the Office Manager from [the Facility]. The Director of Care was employed in an RPN capacity at the time of the Member’s employment with [the Facility]. The evidence of both witnesses was consistent, credible, logical and supported by their actions and exhibits contemporaneous with the allegations. Copies of medication administration records, physicians’ orders and pharmacy requisitions were entered into evidence. Orders for palliative care medications were identified. The Member’s initials were identified.

The Office Manager testified that the Member had told the Office Manager that she had “pretended” to give the client a medication prescribed for palliative care measures. The Office Manager reported this behaviour to her immediate supervisor. The Office Manager described the Member’s demeanor at the time of the reported incident as “mocking” towards the resident and her daughter.

Allegations #2(b) and #4(b)

These two allegations relate to [Client B]. At the time of the hearing, [Client B] was deceased. However, there was a video interview (accompanied with a written transcript) of [Client B] that had been conducted by (then) Police Constable from the [ ] Police Services on 16^th December 2009. The College called evidence to show that [Client B] had requested to speak with police. Previous witnesses had described [Client B] as cognitively intact at the time of the interview – so much so that [Client B] was able to provide self-dialysis at [the Facility]. The Panel admitted the video interview and accompanying transcript into evidence.

During the interview, [Client B] described occasions when the Member had requested money and described her marriage situation. [Client B] expressed her discomfort with this line of conversation.

Allegations #2(c) and #4(c)

These allegations related to [Client C], who was deceased at the time of the hearing.

Exhibits related to Power of Attorney and Continued Power of Attorney for Personal Care and Property for [Client C] were entered into evidence. Two sisters, a nephew and the neighbour of [Client C] testified. Their testimony related to the originating circumstances that brought the resident to [the Facility] and the efforts of [Client C]’s family to secure [Client C]’s property over time. The witnesses clearly described their interactions with the Member while [Client C] was in the Member’s care and extending after [Client C]’s death through to August 2009.

A “Determination of Capacity/ Incapacity – Personal Care” dated April 6, 2009, regarding [Client C] was entered into evidence. A copy of this had been provided to the Member in her capacity as Director of Care at the relevant time. This assessment described [Client C]’s physical and cognitive limitations, the modifications of a significant nature that would be required for [Client C] to return home and recommends long-term care as a “more practical solution”.

Notwithstanding this document, the Member initiated conversations with [Client C]’s sister, on or about April 2009. The Member spoke with [Client C]’s sister regarding [Client C]’s desire to return home and the Member offered to clean [Client C]’s house and discussed how the Member could “move in to care for her”. On or about April 2009, the Member obtained [Client C]’s house key from a neighbour and entered [Client C]’s home. The Member subsequently moved into [Client C]’s home with her [family and pets].

[Client C] died in May 2009. Despite attempts from the family (including emails from [Client C]’s former Power of Attorney, which were entered as exhibits) to have the Member either pay rent and/ or vacate the property, the Member remained in [Client C]’s home and did not pay this requested rent nor vacate the premises. An exhibit dated August 14, 2009, was a document to the Member demanding “vacant possession of the property forthwith” or “Application to Evict will proceed”. The Member and her family left the property soon after.

Allegations #2(d) and #4(d)

Related to #2(c) and #4(c), the Panel heard testimony from those same witnesses to the effect that kitchen furnishings and implements were missing from [Client C]’s home after the Member had vacated the property, including custom-built kitchen cabinetry. In addition, items were removed from the garage that had been specifically purchased for [Client C]’s children (such as a toboggan), and some outdoor gardening items (such as shovels). To date, these items have not been recovered. [Client C]’s family members described a time of significant bereavement and their obligations to [Client C]’s young daughters and did not involve the police.

Allegations #2(e) and #4(e)

These relate to [Client D]. Two witnesses and three resident incident reports described [Client D]’s declining mental capacity related to [Client D]’s motor vehicle ownership. [Client D] was documented as having called the police when he believed that “someone was tampering with his car”. On an incident report dated June 8, 2009, the Member documents “should be resolved” and on an incident report dated June 24, 2009, the Member documents “[Client D] sold car”.

Witnesses at the hearing testified that the Member was seen driving [Client D]’s vehicle soon thereafter, including to [the Facility], her place of work and the resident’s home. One witness described an occasion when the vehicle was removed by tow truck [ ] and her conversation with the Member. The Member told the witness that the Member’s husband was arranging for a safety check of the vehicle so that it might be sold.

Certified Affidavits from the Ministry of Transportation showed the VIN (Vehicle Identification Number) history and ownership transfer documents relating to the car. They are evidence that there was a direct transfer of ownership of the car from [Client D] to the Member on June 9, 2009. The resident and his spouse moved from [the Facility] later that year.

With respect to allegation #3, (that the Member committed an act of professional misconduct, in that, while practising as a Registered Practical Nurse, the Member misappropriated property from a client), the College relied on the same evidence adduced for allegations #2 (c) and (d) and #4 (c) and (d).

To support the allegation that the Member’s conduct breached the standards of practice of the profession, the College tendered an expert witness. The Panel accepted this witness as an expert qualified to give opinion evidence relating to the College standards [and] how the College standards apply to maintaining boundaries with clients.

The Panel received the expert witness’ opinion that, if the factual underpinning to the allegations was proven, the Member had breached the standards of practice as referenced in certain published College Standards, namely the Therapeutic Nurse/ Client Relationship, Professional Standards, Ethics and Documentation. The Member breached boundaries and reinforced that violation by keeping these matters “secret”. The expert witness specifically opined as follows.

• Allegation #2(a) and #4 (a): The Member “pretended” to administer palliative pain medication to a resident and her conduct was described by the expert witness as “disrespectful”. The expert witness stated that in her opinion the Member “did not act in the best interests of the client”.

• Allegation #2 (b) and #4 (b): The Member disclosed personal information to a resident that made the resident uncomfortable. This boundary issue was described as an “imbalance” that did not meet the needs of the client. The expert witness referenced the Therapeutic Nurse/ Client Relationship standard and that a nurse’s relationship must be “purposeful” and not create a “burden” for the client.

• Allegation #2 (c)(d), #3 and #4(c)(d): The expert witness described the Member’s actions as “dishonest” “exploitive” and an “abuse of power” related to receiving privileged information about the client.

• Allegation #2 (e) and #4(e): The expert witness described the transfer of ownership of the motor vehicle to be in the Member’s “self-interest”. This transaction was described as “exploiting the client” and the lack of documentation in the client’s notes “reinforces the deception” in that the Member was “trying to hide a serious boundary issue”. The expert witness stated that “whether the car was paid for or gifted to the Member”, the matter is the same boundary issue.

Final Submissions

[The Facility] was described as a care environment for elderly residents with varying degrees of physical and cognitive impairment. With only one registered nurse on each shift, it is especially important in a care setting like [the Facility] to ensure that practice standards are achieved and to demonstrate to residents and families, as members of the public, that the appropriate standards and values of the College are upheld.

With respect to Allegation #1 (a) (b) and (c), certified court transcriptions of proceedings and the findings of guilt were in evidence. Video evidence from one witness [ ] provided context and background to the credit card and forgery charges. [This witness] presented her evidence in 2009 via videotape due to failing health. [She] has since deceased. College Counsel submitted that this criminal conduct is wholly relevant to the Member’s suitability to practi[s]e as the first two findings of guilt result from her knowledge and access to resident affairs, in her position as Director of Care. The finding of guilt for the third offence of driving while found to be intoxicated, while not directly related to client care, meets the broader test of lack of regard for the wellbeing of others and putting others in peril, contrary to the values of the nursing profession. Counsel submitted that the burden of proving professional misconduct as alleged had been met.

Regarding Allegations #2 (a) and #4 (a), a witness recounted a conversation she had with the Member following a palliative care resident’s death. This witness was straightforward, credible and clear in her recollections of the conversation with the Member, and testified that the Member said she had “pretended” to give the resident morphine to placate the resident’s daughter. The Panel heard from an expert witness that this behaviour would be considered to be a breach of the Therapeutic Nurse/ Client Relationship standards. College Counsel further submitted that this comment was made to disparage the client and daughter, was dismissive of circumstances related to client needs at the end of the client’s life, and fails to demonstrate empathy to family members of clients at the end of life.

College Counsel requested that the Panel accept video evidence related to allegations #2 (b) and #4 (b), in lieu of oral testimony. While this video evidence was not taken under oath, the resident was aware that the Member was under criminal investigation and had requested the police interview.

The case related to allegations #2(c) (d), #3 and #4(c) (d) included testimony from four witnesses who spoke in a frank and straightforward manner. Counsel submitted that these witnesses were consistent, individually and together, upon examination. Their testimony supported the allegations that the Member had abused her position of trust and authority and used information she learned of the resident [Client C]’s condition for her personal gain. The expert witness called these behaviours “startling” and “appalling”. The Member’s dishonest and unprofessional proposed arrangement of caregiver to the client was inappropriate considering knowledge of the client’s physical and cognitive limitations. Moving into the client’s home without permission was deceitful and dishonest and contrary to the values of the College.

With regards to allegations #2 (e) and #4 (e), Counsel for the College directed the Panel to the Ministry of Transportation certified transcripts of proof of motor vehicle transfer. [Client D]’s declining mental status is duly noted in the resident’s progress notes, however the documentation on [client] incident reports made by the Member fail to describe the Member’s direct involvement in the transfer of this property. The expert witness gave her opinion that this failure to maintain boundaries by the Member, specifically related to accepting gifts, changed the balance of the nurse/client relationship. College Counsel asked the Panel to accept that, as this process was not transparent, it is in itself a breach of boundaries. The Member’s intention was to deceive the resident and further hide the transaction.

Counsel for the College described a persistent pattern of the Member acting in a self-interested manner, using her position as Director of Care, to gain her residents property by such actions as manipulation, pressure and theft.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing. In particular, the Member was found guilty of criminal offen[c]es relevant to her suitability to practi[s]e, particularly (a) stealing a credit card from a resident (b) knowingly using a forged document, a cheque, as if it were genuine and (c) operating a motor vehicle having consumed alcohol.

Having considered the evidence and the onus of proof, the Panel finds that the Member committed acts of professional misconduct in that, while practi[s]ing as a Registered Practical Nurse, she contravened a standard of practice of the profession as alleged in paragraph 2 of the Notice of Hearing. She misappropriated property from [Client C] as alleged in paragraph 3 of the Notice of Hearing. Finally, the Panel finds that the Member engaged in conduct relevant to the practice of nursing that would [ ] reasonably be considered by members of the profession as disgraceful, dishonourable and unprofessional as alleged in paragraph 4. Specifically, the Panel finds that the Member:

a) told a colleague that she pretended to give a client a dose of medication in order to keep the client’s daughter happy,

b) disclosed personal information to [Client B] when such disclosure did not meet an articulated therapeutic need of the client,

c) resided in the vacant home of a client without permission of the client or her family,

d) misappropriated property from a client by removing household items and furniture from their home without permission, and

e) transferred ownership of a motor vehicle unrelated to the provision of care and services with a client.

Reasons for Decision

College Counsel presented ten witnesses, two video interviews, expert evidence and 38 exhibits to support the allegations. The Panel noted that while a number of the residents involved in the allegations have passed away or are no longer capable or competent to give evidence, the remaining witnesses were very consistent in their evidence and knowledge of events. The Panel assessed the credibility of the witnesses by taking into account the appearance and demeanour of the witnesses, their capacity to remember the events from 2009, the probability and reasonableness of their evidence and their individual or collective interest in the outcome of this hearing.

For allegation #1, the evidence established that the Member was found guilty of criminal offences, namely stealing a credit card and knowingly using a forged document (a cheque), obtained from a client in her care. These offences are relevant to the Member’s suitability to practi[s]e. The deceitful and dishonest behaviour violates the trust relationship required of the therapeutic nurse/client relationship. In addition, the charge of operating a motor vehicle having consumed alcohol in excess of the legal limit demonstrated the Member’s disregard for the public at large.

For allegation #2, the Panel accepted the opinion of the expert witness tendered by the College. The expert’s opinion was reasonable and grounded in the published standards of the College. The facts on which the expert’s opinion was based were proven by the evidence.

For allegations #2 (b) and #4 (b), the Panel accepted the videotaped interview of [Client B] in lieu of oral testimony. While this video evidence was not taken under oath, [Client B] had been aware that the Member was under criminal investigation and [Client B] requested the police interview. The video was necessary (since [Client B] was deceased) and reliable. Observations of [Client B]’s demeanour on the video reveal that [Client B] seemed sincere and had no personal gain from being interviewed. She appeared accurate and truthful. The Panel accepted the video into evidence and found that it satisfied the College’s burden of proof. The Panel found that it was more likely than not that the Member disclosed personal information to a client, when such disclosure did not meet an articulated need of the client. The Panel finds this behaviour unprofessional, dishonourable and disgraceful as this disclosure created an emotional burden for the client and included aspects related to the Member’s financial and marital troubles.

On allegation #4 as a whole, the Panel finds the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

• Unprofessional Conduct – The Member demonstrated a serious disregard for her professional obligations, showed a lack of integrity and lack of judgment. She took advantage of vulnerable clients, in her position of trust and authority, in the clients’ place of residence.

• Dishonourable Conduct – This usually refers to conduct that involves dishonesty and/or deceit. In her position as Director of Care, the Member obtained information regarding clients that she used for selfish and personal gain. She abused this position in various ways to obtain money and property from clients, specifically by:

• accessing credit cards and forging a cheque of a client’s,

• “pestering” a client’s family to approve moving into the home with a client despite having received documents entrusted to her in her position as Director of Care that outlined that the client would be unable to do so,

• moving into the client’s home while it was vacant and subsequently refusing to pay rent or remove herself and family from the residence,

• persuading a vulnerable client to transfer ownership of his vehicle to her and subsequently documenting this transfer as transfer to an unnamed “mechanic”.

The Member’s dishonourable conduct is further displayed by evidence of her selfishness and dishonesty by “pretending” to give a client a palliative dose of medication “to keep the client’s daughter happy”.

The Member’s conversations with a client and disclosures of personal information were not solicited by the client and the client did not know how to stop the conversations, creating discomfort and burden for the client.

• Disgraceful Conduct – The Member’s conduct casts a serious doubt on her ability to discharge the moral obligation that is expected of a nurse. Over a period of some months, the Member displayed behaviours that were planned, deliberate and opportunistic. She committed acts that victimized vulnerable clients and their families. These deceitful behaviours shame the Member and, by extension, the profession.

With no evidence presented on behalf of the Member, the Panel was unable to find any justification for the Member’s actions and behaviours as proven by the evidence led by the College.

Penalty

Penalty Submissions

College Counsel made submissions based on the goals of sanctioning members of the profession who have been found guilty of professional misconduct. These goals include:

• protection of the public,

• providing specific deterrence to the Member and general deterrence to the profession, and

• rehabilitation of the Member.

The mitigating factor, for penalty consideration, is that the Member had not been before a Discipline Panel prior to this occasion.

Aggravating factors included that the Member has shown no deference to the College’s discipline process and has not attended this hearing. The Member, therefore, has not provided accountability, explanation or remorse for her actions.

Counsel submitted that a penalty order stressing rehabilitation and remediation was not appropriate in this case, considering the breadth of the misconduct and that the Member has shown to be ungovernable. The Panel was asked to consider the totality of professional misconduct without reference to any precedents.

College Counsel requested the Panel order revocation of the Member’s certificate of registration.

Penalty Decision

The panel deliberated and unanimously accepted the College’s submission that revocation of the Member’s certificate of registration should be ordered. Consequently, the panel directed the College’s Executive Director to revoke the Member’s certificate of registration, pursuant to subsection 51(2) of the Health Professions Procedural Code.

Reasons for Penalty Decision

The Panel recognizes the seriousness of the Member’s actions and that this behaviour is not in keeping with the values of the College. The Member’s disregard for her professional obligations and lack of respect for clients and their families demonstrates a persistent course of manipulative and predatory behaviour.

This penalty provides a specific deterrent to the Member and a general deterrent to the membership, indicating that the profession will not tolerate this type of behaviour. The Member’s total lack of respect for the College and these proceedings demonstrated to the Panel that remedial measures would be ineffective. There has been no indication of remorse by the Member. The number and magnitude of our findings of professional misconduct by the Member constitute grounds for revocation. The Member betrayed the trust of the nurse/client relationship, which is seen to be a cornerstone of the profession.

The Panel found that the only appropriate order to protect the public and honour the profession was revocation, given the seriousness of the Member’s offences.

I, Michael Hogard, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members

Susan Roger, RN

Kim Jinkerson, RPN

Margaret Tuomi, Public Member