College of Nurses of Ontario v. Cox, 2013 ONCNO 93854

PANEL: Tammy Hedge, RPN Chairperson Lorenza Barron, RN Member Jim Attwood, RN Member Margaret Tuomi Public Member Mary MacMillan-Gilkinson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MEGAN SHORTREED for College of Nurses of Ontario

and -

HEATHER COX Registration No. HE03047 NO ONE PRESENT for Heather Cox

LUISA RITACCA Independent Legal Counsel

Heard: September 30 & October 1, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on September 30, 2013, to October 1, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

As Heather Cox (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was not in attendance and was not represented.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on May 22, 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 May 10, 2013, 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 August 29, 2007, you were found guilty of offences that are relevant to your suitability to practise nursing, as follows:

a. on or between the 7th day of October in the year 2005, and the 21st day of January in the year 2006, [ ], you did steal various items of a value not exceeding $5,000.00, [ ], contrary to s. 334(b) of the Criminal Code of Canada; and/or

b. on or between the 17th day of October in the year 2005, and the 12th day of January in the year 2006, [ ], you did by deceit, falsehood, or other fraudulent means defraud [a pawn shop], a sum of money of a value not exceeding $5,000.00, contrary to s. 380(1)(b) of the Criminal Code of Canada; and/or

c. on or between the 6th day of April in the year 2006, and the 8th day of June in the year 2006, [ ], you did, having entered into an undertaking given to a peace officer or an officer-in-charge pursuant to ss. 499(2) or ss. 503(2.1) of the Criminal Code and being bound to comply with a condition thereof, namely, to notify [ ] Regional Police Service, [ ], in writing, within 24 hours of any change in your address, employment, or occupation, fail without lawful excuse to comply with that condition, contrary to s. 145(5.1) of the Criminal Code of Canada; 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(15) of Ontario Regulation 799/93, when, having voluntarily surrendered your certificate of registration and undertaken not to engage in the practice of nursing until such time as your certificate is returned to you under the terms of a Memorandum of Agreement with the College dated May 18, 2001, you signed or issued in your professional capacity a document or documents that you knew or ought to have known contained a false or misleading statement by:

a. signing Annual Payment Cards for the years 2007 and 2009 which you knew or ought to have known were altered or fabricated; 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(17) of Ontario Regulation 799/93, in the course of providing or offering to provide services within the scope of the practice of nursing, you used a name other than the name set out in the register, as follows:

a. between approximately July 2007 and August 2009 while working as a Registered Practical Nurse at [Facility A] in [ ] Ontario, you used the name “Heather Garvin” when the name set out in the register with the College of Nurses was “Heather Cox”; and/or

b. between approximately February 2010 and November 2011 while working as a Registered Practical Nurse at [Facility B] in [ ], Ontario, you used the name “Heather Garvin” when the name set out in the register with the College of Nurses was “Heather Cox”; 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(24) of Ontario Regulation 799/93, when, having voluntarily surrendered your certificate of registration and undertaken not to engage in the practice of nursing until such time as your certificate is returned to you under the terms of a Memorandum of Agreement with the College dated May 18, 2001, you failed to abide by a written undertaking given to the College or to carry out an agreement entered into with the College, as follows:

a. between approximately July 2007 and August 2009, you engaged in the practice of nursing at [Facility A] in [ ], Ontario; and/or

b. between February 2010 and November 2011, you engaged in the practice of nursing at [Facility B] in [ ], Ontario; 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, when, having voluntarily surrendered your certificate of registration and undertaken not to engage in the practice of nursing until such time as your certificate is returned to you under the terms of a Memorandum of Agreement with the College dated May 18, 2001, 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 as disgraceful, dishonourable or unprofessional, as follows:

a. between approximately July 2007 and August 2009 while working as a Registered Practical Nurse at [Facility A] in [ ], Ontario, you used the name “Heather Garvin” when the name set out in the register with the College of Nurses was “Heather Cox”; and/or

c. between approximately July 2007 and August 2009, you engaged in the practice of nursing at [Facility A] in [ ], Ontario, when you had undertaken not to do so; and/or

d. between February 2010 and November 2011, you engaged in the practice of nursing at [Facility B] in [ ], Ontario, when you had undertaken not to do so; and/or

e. you signed Annual Payment Cards for the years 2007 and 2009 which you knew or ought to have known were altered or fabricated; and/or

f. in or about August 2009, when you were confronted by [Facility A] about discrepancies in your Annual Payment Cards and your registration status with the College of Nurses of Ontario, you misled the employer about the reasons for the discrepancies and about your registration status.

Member’s Plea

Given that the Member was neither 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 was registered with the College in 1985 as a Registered Practical Nurse. On May 18, 2001, the Member entered into a Memorandum of Agreement with the College and voluntarily surrendered her certificate of registration.

The Member was suspected to be practi[s]ing without a valid certificate of registration in August 2009, when her then-employer discovered that the Member’s Annual Payment Cards appeared to be forged from 2007 until 2009. The Member’s employment was terminated. In January 2010, the Member secured new employment with a family practitioners’ office as an RPN.

The Member was also convicted criminally in August 2007 of theft under $5000, fraud under $5000 and failure to abide by an undertaking.

The issues are as follows:

a) Are the Member’s criminal convictions relevant to the Member’s suitability to practi[s]e nursing?

b) Did the Member sign or issue documents that she knew or ought to have known to have contained false or misleading statements?

c) Did the Member use a name other than the name set out in the register on the course of providing or offering to provide nursing services?

d) Did the Member engage in the practice of nursing when she had voluntarily surrendered her certificate of registration?

e) Would the actions of the Member be considered to be disgraceful, dishonourable and/or unprofessional?

The panel heard evidence from five witnesses and considered 40 exhibits. In light of all the evidence, the panel found that the Member committed acts of professional misconduct as set out in all allegations in the Notice of Hearing. Her conduct would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

The Evidence

The panel heard from five witnesses and found their testimony to be forthright, convincing and given without bias. Three of those witnesses were from the facility where the Member is currently employed. They testified that the Member was practi[s]ing as an RPN until the fall of 2011, when she was terminated from [Facility B] in [ ], Ontario as an RPN and rehired as a Physician’s assistant (PA).

The panel also heard from the Current Director of Care of [Facility A], who, at the time of the incident, was the Assistant Director of Care.

The panel was given 40 exhibits to consider as evidence. The two certified copies of conviction and a certified transcript of the proceedings at the Member’s plea in the Ontario Court of Justice on August 29, 2007, were admitted as exhibits [ ]. They proved that the Member was convicted of stealing items from a woman from whom the Member was renting a room. These items included alcohol, CDs and DVDs, tools and family heirlooms. Some of these items were recovered from a local pawn shop [ ]. This led to the conviction on the count of fraud, as she sold items to the pawn shop without the authority to do so. The last count on which the Member was found guilty involved a breach of undertaking, given to a peace officer, to comply with the condition of being bound to notify [ ] Regional police services of her change of address.

[Witness #1] was the office manager for the [Facility B] in [ ] Ontario (the “Clinic”). She identified for the panel the cover letter and resume of Heather Garvin, RPN, dated January 22, 2010, [ ] as well as interview notes from “Heather Garvin’s” employment interview [ ], a certificate of achievement for an intramuscular injection workshop attended by Heather Garvin [], and medical records of the Clinic [ ]. These clearly showed the Member representing herself as an RPN of the name Heather Garvin.

[Witness #2] practi[s]es at the Clinic. He testified that the Member, Heather Garvin, was hired to work as a nurse in early 2010 at the Clinic. The Member p[er]formed all of the required nursing duties within the Clinic for a period of about 2 years. When questioned about [ ] (medical records from the Clinic), [Witness #2] confirmed that the Member did give various injections including intramuscular, subcutaneous and intra-dermal injections to various [clients] including infants. The witness also acknowledged several errors in administration of immunizations to infants. [Witness #2] testified that in March 2010 it was brought to his attention that there was an issue with the Member’s Annual Payment Card, provided to the Clinic by the Member as proof of good standing with the College. [Witness #2] testified that he spoke with the Member and the Member advised that the error was a misunderstanding with the College related to her annual fees.

[Witness #3] also works at the Clinic as the Registered Nurse/Charge Nurse. She testified that the Member worked at the Clinic. [Witness #3] confirmed that she saw the Member interact with [clients] and in fact she introduced the Member to [clients] as “the new nurse” during her orientation period, and the Member did not disagree with the use of her name or title. When the Member was questioned about the report from the College, the Member simply stated that the College had made a mistake and that the issues were about her fees. [Witness #3] also testified about several mistakes that the Member had made with children’s immunizations and stated that the Member did not take any ownership of these mistakes. The witness noted that the Member was subsequently given a job as a physician’s assistant. In [Witness #3]’s view, this is only a matter of semantics and while PAs don’t do injections, the Member continues to administer immunizations.

[Witness #4] was [ ] a Customer Service Coordinator at the College. [Witness #4] gave the panel evidence as to how the certificate numbering system works, and provided the panel with information on the annual payment cards. The witness confirmed the annual payment cards that the Member had provided to her employers were fraudulent in that they had various issues such as the same certificate number two years in a row, which was highly unlikely, and pointed out outdated logos and signatures. There were also some date discrepancies. The witness then testified about the Member’s voluntary surrender status, and explained that it meant she was still a member of the College, but had given an undertaking not to practice.

[Witness #5] is the current Director of Care at [Facility A] in [ ], a position she has held since 2013. [Witness #5] testified that she received the resume of the Member in response to an ad the facility had put out seeking an RPN. The witness interviewed and hired the Member in July 2007, and at the time of hire the Member raised no issue or concern as to the status of her registration and eligibility to practi[s]e. The Member provided the facility with a Police record check and her certificate of registration to put in the Member’s personnel file. The witness stated that at the time of hire, she understood the Member to be in good standing with the College. This witness identified documents [ ] that showed the Member worked as a RPN the next year, until she was removed from the schedule in August/September 2009 as she was unable to provide a current certificate of competence acceptable to the facility. [Witness #5] then testified that the Member provided the facility with her certificate of competence but it was a poor copy, so a better copy was requested. The next copy that was brought to the facility had some discrepancies that the witness noted, including the fact that the dates did not line up, in terms of the effective date and the expiry date. This led the witness to ask for the accurate current certificate and prompted the witness to search for the Member on the College website. The witness noted that there was no listing for Heather Garvin, however when she looked for Heather Cox, she discovered that the Member was listed on the College Register as not entitled to practi[s]e.

Final Submissions

College Counsel submitted that the standard of proof in this forum is the balance of probabilities, meaning is it more likely than not that the Member committed the acts alleged. The evidence must be clear and convincing.

On allegation 1, College Counsel submitted that the Member was found guilty of offences in a criminal hearing, in which there is a higher standard of proof. The Member was found guilty of three offences in criminal court, theft under $5000, fraud and failure to abide by an undertaking without lawful excuse, [].

As to the relevance of these findings of guilt to the Member’s suitability to practi[s]e, College Counsel submitted that the behaviour occurred over a two-year period. The panel was urged to find relevance in the fact that the offences speak to honesty and integrity. The panel was referred to the published College Reference Document entitled “Professional Conduct and Professional Misconduct” [ ], which states on page 16 that “Criminal conduct that is relevant to the nurse’s suitability to practice is behaviour considered harmful to the public, places the public’s safety into jeopardy or threatens the trust the public needs to have in a nurse.” That Reference Document notes that convictions for theft have been found relevant to a nurse’s suitability to practi[s]e. In addition, the Member failed to notify the police of her address change, which was an undertaking given by the Member to the police. College Counsel pointed out that the Member also failed to abide by the undertaking that she gave the College when she surrendered her licence voluntarily, but then continued to practi[s]e.

The Member repeatedly falsified annual payment cards and lied about the inconsistencies in the cards she did hand in. The Member was given [an] opportunity by the College to address her addiction issues, which was the subject of the undertaking she entered into with the College. As to whether or not the Member engaged in the practice of nursing after surrendering her certificate of registration, College Counsel submitted that the Member documented performing controlled acts in the form of injections.

With respect to the allegation of disgraceful, dishonourable and unprofessional conduct, College Counsel submitted that all aspects of the allegation apply. The Member’s conduct was shameful, [and] had elements of moral failing, fraud, theft and deviousness. The Member’s moral fitness was put in question. The Member had a blatant disregard for her professional obligations.

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 paragraphs 1, 2, 3, 4, and 5 of the Notice of Hearing. As to paragraph 5, the panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional by deliberately failing to abide by an undertaking entered into with the Fitness to Practice committee and engaging in the practice of nursing after surrendering her certificate of registration.

Reasons for Decision

For allegations 2 through 5, the panel considered evidence from all five witnesses who testified that the Member did and continued to practi[s]e as an RPN following the surrender of her certificate of registration. The panel found the witnesses to be forthright and honest and the evidence to be clear, convincing and cogent.

As to allegation 1, the findings of guilt were established by the documentary evidence. The findings of guilt are relevant to the Member’s suitability to practise. For one charge, the Member failed to abide by an undertaking entered into with a peace officer or officer-in-charge, helping the panel come to the conclusion that the Member is ungovernable.

Penalty

Penalty Submissions

College Counsel requested that this panel order an oral reprimand and a revocation of the Member’s certificate of registration.

Counsel submitted that until this point in time, the Member had the opportunity to have her certificate reinstated by completing the conditions on her certificate but had not made any attempt to do so. This fact, combined with her misconduct, means she should no longer be afforded the opportunity.

Counsel further submitted that the Member’s conduct shows she is ungovernable and patently unwilling to meet the minimum standards required by this College. The Member was practising without a valid [certificate of registration]. The overriding concern is the public interest, and it is in the public interest to no longer allow this Member to practi[s]e. The factors to be considered include the seriousness of the conduct, which should be considered in this case to be in the upper range as the Member misused a privileged title and engaged in unauthorized practice. This conduct jeopardizes public confidence. The Member did herself much discredit by not upholding her promise to not practi[s]e while having her licence under voluntary surrender. This shows the Member to be untrustworthy. The Member engaged in four years of unauthorized practice, coming into contact with hundreds of [clients] in that time period. Once the Member was caught with no valid registration, she applied to another organization within months for employment. The Member was fortunate in timing in that she started at the new facility in July of 2007, and thus was able to get her criminal record check completed prior to the criminal court proceedings in August 2007. However, the Member was not honest and forthcoming with either the College or her employer in regards to the findings made against her. The Member acted to intentionally subvert the College process by using another name not on the Register and falsifying her annual payment cards. In light of all this, when caught, the Member blamed the College and said it was the College’s mistake. The Member has been practising almost exclusively with a vulnerable population, the elderly in a nursing home and children in her family practice setting.

The panel was provided with three previous decisions of this Discipline Committee: CNO v. Conway (Discipline Committee, 2008), CNO v. Nahwegahbow (Discipline Committee, 2005) and CNO v. Samson (Discipline Committee, 2010). In all three cases, findings were made against the member although in two of those cases the member was not present and not represented. In both Conway and Nahwegahbow, the members were found to have been practi[s]ing nursing without the authorization to do so, and in Samson the member was found guilty of offen[c]es relevant to the suitability to practise. In all three cases, the members’ certificates of registration were revoked. The panel found these cases to be helpful in reaching their decision on penalty.

Penalty Decision

The panel orders that:

the Member shall appear before a panel of the Discipline Committee to be reprimanded within three months of the date of this order;
the Executive Director is directed to revoke the Member’s certificate of registration; and
Pursuant to 23(4) of the Health Professions Procedural Code, the public register of the College shall include both last names used by the Member, Heather Cox and Heather Garvin.

Reasons for Penalty Decision

The Panel concluded that the penalty is reasonable and in the best interest of the public.

The repetitive nature of the Member’s misconduct and the egregious nature in which she tried to cover it up by falsifying records demonstrate that the Member lacks honesty and trustworthiness, and is ungovernable. The revocation of the Member’s certificate of registration sends a clear message to the membership at large that such behaviour will not be tolerated. Rehabilitation of the Member is a non-issue at this proceeding. The Fitness to Practi[s]e Committee had previously given this Member a roadmap to return to good standing and the Member didn’t take it. All evidence presented was an aggravating factor. The panel was unable to think of a single mitigating factor.

The panel ordered that the Register reflect the Member’s married and maiden names in order to ensure public safety.

I, Tammy Hedge, 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:

Lorenza Barron, RN

Jim Attwood, RN

Margaret Tuomi, Public Member

Mary MacMillan-Gilkinson, Public Member