College of Nurses of Ontario v. Hunter, 2014 ONCNO 82281

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tammy Hedge, RPN Chairperson Sarah Corkey, RN Member Miranda Huang, RN Member Renate Davidson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO BONNI ELLIS for College of Nurses of Ontario

• and -

D’ARCIE HUNTER Registration No. 9500844 NO REPRESENTATION for D’Arcie Hunter

JOHANNA BRADEN Independent Legal Counsel

Heard: April 7, 2014

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on April 7, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.

As D’Arcie Hunter (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.

Counsel for the College provided the panel with evidence that the Member’s last known legal counsel had been sent the Notice of Hearing on February 24, 2014. Further, the Member was sent the Notice of Hearing by regular mail on March 19, 2014. 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 February 20, 2014, are as follows.

1. You have committed an act or acts 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, and defined in paragraph 1.21 of Ontario Regulation 799/93 as amended, in that you failed to comply with an order of the Discipline Committee and, in particular, you:

a) failed to comply with the December 2, 2011, Order of the Discipline Committee, as set out in their Decision and Reasons dated February 10, 2012; and

b) failed to comply with the September 26, 2011 Order of the Discipline Committee, as set out in their Decision and Reasons dated November 11, 2011.

2. You have committed an act or acts 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 1.37 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 as disgraceful, dishonourable or unprofessional and, in particular, you;

a) failed to comply with the December 2, 2011, Order of the Discipline Committee, as set out in their Decision and Reasons dated February 10, 2012; and

b) failed to comply with the September 26, 2011 Order of the Discipline Committee, as set out in their Decision and Reasons dated November 11, 2011.

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 an RN who faced allegations of professional misconduct at this College in September 2011. The panel at that hearing made findings against the Member. As part of the panel’s Order, the Member was required to meet with a regulatory expert within three months of the date that the panel’s Order became final. The Order became final on October 31, 2011.

The Member faced further allegations of professional misconduct in December 2011. A second Order of this Discipline Committee was issued with respect to the Member. This Order required the Member to attend two sessions with a nursing expert, within three months of the Order becoming final. The Order became final on January 9, 2012. The first session with the nursing expert was to have begun by April 9, 2012, and the second was to be completed by July 9, 2012.

The monitoring administrator communicated with the Member about her non-compliance with the two Orders on numerous occasions between September 30, 2011, and August 13, 2012. The Member has not met with the regulatory expert or the nursing expert to date.

The panel was asked to consider the following issues:

• Did the Member commit professional misconduct by failing to comply with two previous orders of the Discipline Committee; and

• Would this conduct be reasonably regarded by members of the profession as disgraceful, dishonourable or unprofessional.

The panel made findings of professional misconduct against the Member, and found the Member’s conduct to be disgraceful, dishonourable and unprofessional.

The Evidence

College Counsel sought to introduce evidence by way of a sworn affidavit of [ ] the former Monitoring Administrator at the College. Following submissions from the College and advice from its Independent Legal Counsel, the panel admitted this affidavit into evidence. The panel recognized that this was hearsay evidence. However, the panel considered the nature of the evidence, which was mostly attesting to communications between the College and the Member. The panel was satisfied that since the Member chose not to attend and participate in the hearing, there is no adverse party requiring the attendance of [the Monitoring Administrator].

The affidavit of [the Monitoring Administrator] included copies of the two previous discipline panel decisions and reasons for decision, and the two penalty Orders made against the Member, which directly relate to this hearing. The affidavit also included copies of all correspondence made between the College and the Member between September 30, 2011, and August 13, 2012.

This evidence showed that the Member’s first appearance before the Discipline Committee was in September 2011. That panel was presented with an Agreed Statement of Facts in which the Member admitted to professional misconduct in relation to interactions with a client on one day and sleeping on duty on two occasions while working in the rehabilitation unit of a hospital. The panel in that case accepted the Agreed Statement of Facts and made findings of professional misconduct, including a finding that members of the profession would reasonably regard the Member’s conduct to be dishonourable, disgraceful and unprofessional. The Member was ordered to appear before the panel to be reprimanded within [three] months of the date of the Order. The Member did appear for her reprimand on April 26, 2012, although this was outside of the timeline ordered. The Member was also given a two-month suspension and ordered to attend one meeting with a regulatory expert within [three] months of the date of the Order, the purpose of which was to cover specific learning modules as listed in the panel’s Order.

The Member’s second hearing before the Discipline Committee started on July 20, 2011. The Member denied all allegations. No findings were made on most of the allegations, however, the panel did find that the Member had failed to meet the standards of practice of the profession in failing to intervene appropriately with a client on one occasion. The penalty included two meetings with a nursing expert to begin within [three] months of the date of the Order and be completed within a [six]-month period. The purpose of the second meeting with the expert was to evaluate the ability of the Member to apply the remedial activities from the first meeting to her current and future practice.

Following these two Orders, the evidence showed various communications between [the Monitoring Administrator] and the Member. [The Monitoring Administrator] sent several notices to the Member regarding the timeline for complying with the Orders.

The Member initially advised the College that she had scheduled an appointment with the expert for January 27, 2012. The Member also scheduled her oral reprimand for that date. On January 19, 2012, the Member inquired about getting an extension. On January 24, 2012, the Member was in a car accident and notified the College through voice mail message that she would be unable to attend both her oral reprimand and her meeting with the nursing expert. On January 25, 2012, the Member was provided instructions on how to request an extension. By February 27, 2012, the Member still had not done so. The College wrote to the Member and gave her until March 16, 2012 to respond. That day came and went. On March 21, 2012, [the Monitoring Administrator] at the College spoke to the Member, and the Member faxed in her medical certificate, accident report and request for extension that same day. The Member was granted the extension and scheduled the meeting with the expert for April 11, 2012. She did not attend. There was some further communication, mostly initiated by the College and ignored by the Member.

The evidence showed that the Member was given six chances to comply with the Order from the first hearing (July 2011) and four chances to comply with the second Order (September 2011). Despite these chances, and more than one extension of time, the Member still has not complied with either Order in that she has not attended any of the meetings with a nursing expert.

Final Submissions

College Counsel submitted that the current allegations focus on the Orders made in the two previous hearings, with which the Member failed to comply. The Member was given multiple opportunities to comply and failed to do so. The Member had been involved in an accident but subsequently did not provide an appropriate rationale for not communicating with the College or complying with the extended timelines afforded to her.

With respect to the Member’s conduct in relation to Allegation #2, College Counsel submitted that there is no need for expert evidence and the law simply requires the panel to consider what a right-minded member of the profession would consider to be disgraceful, dishonourable and unprofessional. In the College’s submission, the Member’s actions cast a serious doubt on her moral fitness and ability to discharge the higher obligations of a self-regulated profession. The Member showed disrespect for the College and the discipline process, which undermines self-regulation. The remedial components the Member was ordered to complete were disregarded. In effect, the Member “thumbed her nose” at the opportunity she was given to complete them.

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 and 2 of the Notice of Hearing. As to allegation 2, the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional by failing to comply with Orders of the Discipline Committee on two separate occasions.

Reasons for Decision

The panel finds that the Member repeatedly disregarded the College’s discipline process. Twice the Member was subject to Orders from this Discipline Committee. The Member was afforded many opportunities to comply, and the College went to great time and expense to facilitate compliance, but the Member chose not to follow through with the Orders of the Discipline Committee on either matter.

The Member ought to have known as a part of the privilege and responsibility of holding a certificate of registration, she is obliged to respect the Orders of the Discipline Committee. By repeatedly failing to do so, this casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet. This serious disregard of the regulatory process has the potential to cast serious doubt on the effectiveness of the College’s ability to protect the public.

Penalty

Penalty Submissions

College Counsel requested revocation of the Member’s certificate of registration. Members must agree to play by the rules, rules that this Member has broken twice before. The panel was asked to consider how many members of the profession appear before the Discipline Committee once, let alone twice or three times, as in this case.

Counsel submitted that there were four things to support the revocation of this Member’s certificate of registration. The first was the two cases that gave rise to the Orders. It was clear from the Decision and Reasons in the Member’s two previous cases with the Discipline Committee that the Orders were intended to remediate the Member, and thereby protect the public. Since the Member failed to comply with those Orders, this remediation did not occur.

The second was the conduct of the Member in disregarding those Orders. She failed to comply despite being provided with numerous opportunities to comply.

The third was grounded in the principles of penalty generally, being general deterrence, specific deterrence, public protection, remediation, and public confidence in the College’s ability to regulate its members.

The last supporting factor was the Member’s governability, a concept developed in relevant case law. Counsel submitted the cases of CNO v. Branton (Discipline Committee, 2013) and LSUC v. Balaram-Sivaram, 2011 L.S.D.D. No. 76 in support of this submission. If a member refuses to be governed by the College, the public cannot be protected.

Penalty Decision

The panel directs the Executive Director to revoke the Member’s certificate of registration immediately.

Reasons for Penalty Decision

The panel considered the submissions made by College Counsel and the evidence presented in the hearing. The panel finds that the Member is ungovernable.

Having had two prior attendances before the Discipline Committee which gave rise to this hearing, the Member is not new to the process. The panel finds the Member did not make a reasonable attempt to complete the terms and conditions imposed on her from her two previous discipline hearings. The Member left the meetings with the expert until the last possible moment, and beyond. The Member chose not to attend this hearing and offer a reasonable explanation for her lack of compliance. The Member cannot pick and choose what part of the penalties she wishes to comply with.

This penalty provides general deterrence in sending the message to the membership that members of the profession must be accountable for their actions, or lack of actions. Ungovernable members are not safe, and public safety is paramount in the profession.

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:

Sarah Corkey, RN

Miranda Huang, RN

Renate Davidson, Public Member