College of Nurses of Ontario v. Kimberley Mostrey, 2013 ONCNO 96468

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Nancy Sears, RN Chairperson | Andrea Vidovic, RN Member | Renate Davidson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

• and - )

KIMBERLEY MOSTREY ) YOLA VENTRESCA for Registration No. HE02569 ) Kimberley Mostrey

) Heard: November 21, 2013

DECISION AND REASONS

This matter came for hearing before a panel of the Discipline Committee on November 21, 2013 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Kimberley Mostrey (the “Member”) as stated in the Notice of Hearing dated November 11, 2013, [ ] are as follows.

1. 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 standards of practice of the profession with respect to the following incidents:

a) you accepted a loan from [Client A] on or about October 2, 2009; and/or

b) you accepted a loan from [Client B] on or about May 3, 2010.

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(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) you accepted a loan from [Client A] on or about October 2, 2009; and/or

b) you accepted a loan from [Client B] on or about May 3, 2010.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1(a), 1(b), 2(a) and 2(b) in the Notice of Hearing. The panel received a written plea inquiry [ ] dated November 21, 2013 which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts [ ] which provided as follows.

THE MEMBER

1. Kimberley Joy Mostrey (the “Member”) obtained a nursing certificate [ ] in 1985.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on January 1, 1985.

3. The Member was employed at [the Facility] from September 16, 2006, to July 16, 2010.

4. The Member has also been employed at [a second facility] since November 2004 on a part-time basis and is currently working in a temporary full-time position.

PRIOR HISTORY

5. The Member has no prior disciplinary findings with the College.

THE FACILITY

6. The Facility is located in [ ] Ontario.

7. The Facility, a retirement residence, provides independent living to residents in apartments and full service retirement suites.

8. The Member started work on a part-time basis for the first six to nine months of her employment with the Facility and eventually worked as a full-time staff nurse on the night shift.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

9. As part of her orientation, the Member reviewed the Facility’s “Confidentiality Policy and Employee and Volunteer Confidentiality and Conflict of Interest Agreement.” She signed a confirmation that she read the agreement on September 14, 2006.

10. The agreement stated:

In regards to conflict of interest, which is used in the broad sense to describe situations where an employees’ actions, choices or personal circumstances, actually or potentially, place their private and personal interests in competition with or in opposition to those of the Organization, I will not take action that;

• Creates a situation where the employee’s outside interest could conflict with the best interest of the Organization.

• Takes away from services that the Organization would normally provide.

• Solicits private business while at the Organization.

• Receive any compensation, fee, money or other benefits from a resident, supplier or other person or company which has or may have dealings with the Organization (excluding Christmas Gratuity Fund) [emphasis added].

[Client A]

11. [Client A], a resident at the Facility, was 86 years old at the time of the incident. She was mentally fit and was able to sign off on decisions related to her care. The Member provided care to [Client A].

12. On October 2, 2009, [Client A] wrote a cheque made out to K. Mostrey (the Member) in the amount of $2,000.00, with the re: line reading “merchandise.” This was in fact intended to be a loan from [Client A] to the Member. The back of the cheque was stamped the same day and was signed by the Member.

13. The Member wrote three cheques made out to [Client A] in the amount of $400.00 to partially repay the loan. The cheques were dated: November 1, 2009; December 1, 2009; and January 1, 2010

14. The cheques dated November 1, 2009 and January 1, 2010 were returned as NSF (non-sufficient funds). Accordingly, the outstanding amount owed was $1,600.00 at that time.

[Client B]

15. [Client B], a resident at the Facility, was 96 years old at the time of the incident. The Member provided care to [Client B].

16. On May 13, 2010, [Client B] loaned the Member $1,500.00.

17. The Member signed a promissory note, handwritten on a notepad that was pre-printed with [Client B]’s name at the top, that read: “I owe you $1,500 – 3 months – on May 13, 2010.”

18. The Member’s employment at the Facility was subsequently terminated, on July 19, 2010, as a result of the loan she had accepted from [Client A].

19. After the Member’s employment was terminated, the Senior Trust Administrator [the STA] for [Client B]’s finances [ ] wrote to the Facility on August 17, 2010, asking the Facility to forward a letter on to the Member, because [the STA] had no other way to contact the Member. [The STA] asked for repayment of the loan on behalf of [Client B] as it had not been repaid to date.

20. In a response dated August 27, 2010, the Member acknowledged the loan and that the agreement for repayment was three months. [The STA] granted the Member’s request for an extension for repayment. The Member subsequently provided three post-dated cheques payable to [Client B] for $500.000 each. The cheques were dated: December 9, 2010; January 6, 2011; and February 3, 2011.

21. The December 9, 2010, cheque cleared. On January 4, 2011, the Member informed [the STA] that she had filed for bankruptcy, that the account on which she had written the two remaining cheques was now closed and that in her bankruptcy filings, the Member identified [Client B] as a creditor.

22. If the Member were to testify, she would say that she is a single mother [ ] and has raised her daughter without the benefit of child support from her former partner. Around the time of the incidents raised in this matter, the Member was working at the two facilities named in paragraphs 3 and 4 above in order to alleviate financial concerns due to the breakdown of her marriage and an unexpected and significant re-payment request from Revenue Canada.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

23. The Member admits that she committed the acts of professional misconduct as described in paragraphs 7 to 22 above and as set out in the Notice of Hearing in paragraphs:

• 1(a), (b);

• 2(a), (b) in that her conduct was disgraceful, dishonourable and unprofessional.

Counsel for the Member concurred with the Agreed Statement of Fact as submitted.

Decision

The panel considered the Agreed Statement of Facts and the Member’s plea and finds that the evidence supports findings of professional misconduct. In particular, the panel finds that the Member committed acts of professional misconduct as alleged in allegations 1(a) and 1(b) of the Notice of Hearing in that by accepting a loan from two clients, she contravened a standard of practice of the profession. With respect to allegations 2(a) and 2(b) in the Notice of Hearing, the panel finds that the Member committed acts of professional misconduct in that she engaged in conduct or performed acts, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as unprofessional and dishonourable.

Reasons for Decision

The panel noted that in allegations 1(a) and 2(a) in the Notice of Hearing a client is identified as [Client A]. There are no references related to [Client A] in the Agreed Statement of Fact, however paragraphs 11, 12, 13 and 18 of the Agreed Statement of Fact relate to a client identified as [Client A1]. The panel asked the parties to provide clarification regarding these similar yet different client identifications. Counsel for the College submitted that he was unsure of which client identification, [Client A] or [Client A1], was correct, and requested that the references [Client A] and [Client A1] both be accepted by the panel as identifying one client of the Member. Counsel for the Member concurred with this request.

Prior to beginning deliberations, the panel asked the parties to provide clarification regarding what standard or standards of practice of the profession the Member contravened or failed to meet. Counsel for the College submitted that the Member had contravened the Therapeutic Nurse-Client Relationship Standard in that this Standard prohibits nurses from engaging in personal financial transactions with clients. He submitted that accepting funds in the form of a personal loan or loans from a client or clients is the type of financial transaction targeted by this Standard. College Counsel further submitted that partial repayment of such loans is not relevant to the fact of whether or not the Standard was contravened. Counsel for the Member concurred with these submissions by College Counsel.

With respect to Allegations 2(a) and 2(b), and paragraph 23 of the Agreed Statement of Fact, the panel asked the parties to provide clarification as to the characterization of the Member’s conduct as unprofessional, dishonourable and disgraceful. Counsel for the College submitted that a breach of the standards of the profession is, by definition, unprofessional. College Counsel submitted that by acting deliberately to accept loans from clients whilst knowing that the accepting of loans from clients breached the standards of the profession, the Member [engaged in] conduct [that] was dishonourable. College Counsel further submitted that the Member’s conduct brought disgrace to the profession and hence was disgraceful. Counsel for the Member concurred with these submissions.

The panel finds that paragraphs 11, 12, 15, 16 and 17 of the Agreed Statement of Facts and the Member’s plea clearly establish that the Member accepted loans from two clients. Unprofessional conduct includes actions that fail[ ] to meet the standards of the profession. Accepting loans from clients breaches the Therapeutic Nurse-Client Relationship Standard.

When the Member accepted loans from her clients, she knew or ought to have known that her conduct was unacceptable. Knowingly and deliberately engaging in unacceptable behaviour demonstrate the element of moral failing that is characteristic of dishonourable conduct.

Disgraceful conduct is more severe than dishonourable conduct in that it has the effect of shaming the Member and, by extension, the profession. Disgraceful conduct casts serious doubt on a member’s moral fitness and inherent ability to discharge the higher obligations that professionals are expected to meet. Despite the Member’s admissions in paragraph 23 of the Agreed Statement of Fact, the panel had concerns that the evidence was insufficient to support a finding of disgraceful conduct. However, the panel was also mindful of the seriousness with which agreements between the parties are negotiated and reached and the gravity of setting aside, in part or in whole, any such agreements. Accordingly, the panel suspended deliberations and returned to the hearing room to ask the parties to provide clarification as to how the Member’s conduct was disgraceful. Counsel for the Member asked the panel for an opportunity to consult with the Counsel for the College on this matter. Counsel for the College acknowledged his willingness to undertake consultation with the Member’s Counsel. The request was granted by the panel. After a short recess, the parties returned to the hearing and Counsel for the College submitted that the parties had conferred and it was the submission of both parties that the Member’s conduct as set out in Allegation 2(a) and 2(b) of the Notice of Hearing could be appropriately characterized as unprofessional and dishonourable, but not disgraceful. Counsel for the College submitted that unprofessional and dishonourable conduct is professional misconduct as set out in the Health Professions Procedural Code. Counsel for the Member agreed with this characterization of the Member’s conduct and that the Member had committed professional misconduct.

The panel then resumed deliberations and decided that the Member’s conduct as set out in Allegations 2(a) and 2(b) of the Notice of Hearing was both unprofessional and dishonourable.

Penalty

Counsel for the College advised the panel that a Joint Submission on Order [ ] had been agreed upon and provides as follows:

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

1. Requiring the Member to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for three months. This suspension shall take effect from the date of this Order and shall continue to run without interruption.

3. 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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:

1. Professional Standards

2. 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:

1. the acts or omissions for which the Member was found to have committed professional misconduct

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self

3. strategies for preventing the misconduct from recurring

4. the publications, questionnaires and modules set out above and

5. 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:

1. the dates the Member attended the sessions

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any [one or more] 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 of this Order, 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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:

1. that they received a copy of the required documents, and

2. 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.

4. 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

Counsel for the College made submissions regarding what constitutes a reasonable penalty. He submitted that:

• A penalty should address the interests of the public, the profession and the Member;

• Protecting the interest of the public is the College’s primary goal;

• Preservation of the public’s confidence in the College’s ability to self-regulate includes ensuring transparency regarding decisions of discipline panels;

• A penalty should support the integrity of the profession;

• Penalty decisions of disciplinary panels send signals to the public and to the profession’s membership regarding how the profession considers misconduct, and such signals support general deterrence;

• It is in everyone’s interest to take advantage of a member’s amenability to rehabilitation;

• A punitive aspect is appropriate to penalty orders as this may support specific deterrence; and

• Penalty decisions should consider aggravating and mitigating circumstances specific to the case under examination.

College Counsel submitted that the Joint Submission on Order is consistent with meeting the interests of the public, the profession, and the Member in the following ways:

• The proposed reprimand is a punitive component of the penalty submission and supports the goal of specific deterrence;

• A three-month suspension is a significant amount of time during which the Member would not be able to practi[s]e nursing. It reflects the seriousness of the Member’s conduct which was a breach of the Therapeutic Nurse-Client Relationship Standard and was done for personal gain. The suspension is a punitive component of the penalty submission and supports the goal of specific deterrence and public protection;

• The reprimand and suspension support general deterrence as they send signals to the membership of the profession that the College views misconduct very seriously;

• The components of the proposed penalty related to consultation of the Member with a nursing expert provide for re-education, personal reflection and guided reflection on topics tailored to the type of misconduct under consideration in this case; and

• Public protection is supported through the proposed requirements of a 24-month period of employer notification and a 12-month period of restriction from practi[s]ing independently in the community. These proposed terms, conditions and limitations reduce the opportunity for the Member to engage in similar misconduct and provide for supervision of her practice for a limited period of time.

College Counsel submitted that as the Member has no prior disciplinary history with the College and as she has demonstrated her acceptance of responsibility and amenability to rehabilitation, the proposed penalty is an appropriate one.

College Counsel submitted that the proposed penalty falls within the appropriate range of penalties ordered in similar cases. He provided two prior disciplinary panel decisions that dealt with similar conduct.

• CNO v. Yvonne Mae Campbell (Discipline Committee, 2007) considered a situation in which a nurse agreed that she had engaged in professional misconduct by soliciting and accepting loans from clients. In the penalty for this case, the panel ordered an oral reprimand, a three-month suspension, consultation with a practice consultant and an employer notification period of 24 months.

• CNO v. Deborah Labute (Discipline Committee, 2008) considered a situation in which a nurse agreed that she had engaged in professional misconduct by soliciting and accepting loans from a client’s family member. In the penalty for this case, the panel ordered an oral reprimand, a two-month suspension, consultation with a practice consultant and an employer notification period of 18 months.

College Counsel also relied on the [ ] Court of Appeal for Ontario’s decision in the case R. v. Thompson, 2013 ONCA 202, which sets out the special considerations that apply when a joint submission on penalty is considered. Specifically, College Counsel relied on paragraph 14 of the decision, which reads in part:

While a sentencing judge is not bound by a joint submission, the jurisprudence is clear that he or she should not depart from such a submission unless satisfied that the recommended disposition would be contrary to the public interest and would bring the administration of justice into disrepute: see R. v. Cerasuolo (2001), 11 C.C.C. (3d) 445 (Ont. C.A.); R. v. Tsicos, [2006] O.A.C. 104 (C.A.); and R. v. R.W.E. 2007 ONCA 461, 207 ONCA 461, 221 C.C.C. (3d) 244. This is because the justice system depends upon judges rarely departing from sentences jointly recommended by counsel in order to operate effectively.

Counsel for the Member submitted that she supports the Joint Submission on Order and the submissions by Counsel for the College. She submitted that as mitigating factors, the panel should consider that the Member has been cooperative with the College throughout the process of developing the Agreed Statement of Fact and the Joint Submission on Order. She submitted that the Member has accepted responsibility for her actions. Further, Counsel for the Member submitted that the Member has no prior disciplinary history with the College and her actions were an anomaly in a 28-year career. She described the Member as a single mother, not receiving child support and employed in two jobs to support herself and her child as well as to meet Canada Revenue Agency repayment obligations. She submitted that the Member is extremely remorseful and embarrassed by her actions.

Penalty Decision

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

1. The Member shall appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for three months. This suspension shall take effect from the date of this Order and shall continue to run without interruption.

3. The Executive Director is directed 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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:

1. Professional Standards

2. 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 [and] online participation forms [ ];

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

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. 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:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. 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 of this Order, 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. [the] Joint Submission on Order, and

5. 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:

1. that they received a copy of the required documents, and

2. 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.

4. All documents delivered by the Member to the College, the Expert or the employer(s) will be [delivered] by verifiable method of delivery, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is in the public interest. It meets the purposes of public protection, general and specific deterrence, and rehabilitation. Further, the proposed penalty falls within the range of penalties that have been ordered for findings of professional misconduct in similar cases. The penalty factors in the mitigating factors of the Member’s cooperation with the College and her acceptance of responsibility for her actions, as demonstrated through agreeing to the facts and a proposed penalty.

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:

Andrea Vidovic, RN Renate Davidson, Public Member