College of Nurses of Ontario v. McWaters, 2014 CanLII 87163

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Margaret Tuomi Chairperson

Jim Attwood, RN Member Tammy Hedge, RPN Member Shiraz Irani, RN Member

Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MATTHEW SAMMON for

) College of Nurses of Ontario

• and - )

DUNCAN McWATERS ) NO REPRESENTATION for

Registration No. 06292460 ) Duncan McWaters

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: June 12, 2014

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 12, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Duncan McWaters, (the “Member”) as stated in the Notice of Hearing dated February 24, 2014, are as follows.

IT IS ALLEGED THAT:

1. You have committed an act or acts 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 or about December 10, 2012, you were found guilty of an offence that is relevant to your suitability to practi[s]e, in particular assault contrary to section 266 of the Criminal Code R.S.C. ,1985, c. C-46.

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(15) of Ontario Regulation 799/93, in that, in or about January 2013, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, by providing to the College a Self-Reporting Form that falsely described the nature of the offence for which you had been found guilty.

Member’s Plea

The Member admitted the allegations set out in paragraphs #1 and #2 in the Notice of Hearing. The panel 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 and the Member advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Duncan McWaters (the “Member”) obtained a degree [ ] in 2006.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on August 28, 2006.

PRIOR HISTORY

3. On October 23, 2012, the College’s Discipline Committee found that the Member committed acts of professional misconduct and that his conduct was disgraceful, dishonourable and unprofessional.

4. The panel found that the Member falsified bail documents related to a charge of sexual assault in an attempt to deceive his employer. Specifically, the Member attempted to conceal a bail condition that prohibited him from being in the company of female minors. At the time of the discipline hearing, the criminal proceedings were ongoing.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Criminal Conviction

5. On December 10, 2012, the Member pled guilty to a reduced charge of assault, contrary to section 266 of the Criminal Code of Canada.

6. By way of an Agreed Statement of Facts, the Member admitted that he assaulted [an individual] on November 7, 2010. The Member admitted that [the individual] was at his house with her friend, ([the Member’s stepson]) and another friend. The three friends were drinking and the Member eventually joined in. They were playing drinking games. At some point, [the individual] retired to a guestroom to sleep. The other two friends left the residence. When they came back, they found the Member in bed with [the individual]. [The individual] got up and realized there was touching going on that she did not consent to. She left the residence and reported the incident to her parents, friends and [ ] the police.

7. The Member was given a suspended sentence with three years’ probation. During the period of probation, the Member was required to: keep peace and good behaviour; report to his probation officer as directed; reside at a premises approved by the probation officer; have no contact or communication with [the individual]; attend for assessment and counselling as directed by the probation officer; and not possess any weapons.

8. The Member admits that this offence is relevant to his suitability to practise.

Self-Report to the College

9. The Member completed a Self-Reporting Form on January 4, 2013, which was received by the College on January 8, 2013. In the form, the Member confirmed that he had been found guilty of assault. However, he described the offence as follows: “I was found guilty of assault – my lawyer described it as a bar fight.” [ ]

10. The Member admits that his characterization of the assault as a bar fight mischaracterizes the nature of the offence and was intended to mislead the College.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

11. The Member admits that he committed the acts of professional misconduct as described in paragraphs 3 to 10 above and as set out in the Notice of Hearing in paragraphs 1 and 2.

Decision

The panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing.

Reasons for Decision

The panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation # 1 in the Notice of Hearing is supported by paragraphs 5, 6, 7 and 8 in the Agreed Statement of Facts.

Allegation # 2 in the Notice of Hearing is supported by paragraphs 9, 10, and 11 in the Agreed Statement of Facts.

Penalty

Counsel for the College and the Member advised the panel that a Joint Submission on Order had been agreed upon. The Joint Submission requests that this panel make an order as follows.

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 nine months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

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 his 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;

iv. 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;

v. 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;

vi. 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 his behaviour;

vii. 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 his certificate of registration;

b) For a period of 24 months from the date the Member’s suspension ends, the Member will notify his 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 his 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

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

Penalty Submissions

Submissions were made by College Counsel. The Member indicated that he agreed with those submissions.

The parties agreed that the mitigating factors in this case were:

• the Member admitted the misconduct; and

• the Member disclosed the conviction to the College, although it was mischaracterised.

The aggravating factors in this case were:

• The Member has previous findings in the recent past;

• The misconduct has an element of dishonesty; and

• The previous penalty did not bring home the message to [the] Member to be forthright.

The proposed penalty provides for general deterrence through a lengthy suspension, which sends the message to the membership that not being forthright with the College will not be tolerated.

The proposed penalty provides for specific deterrence through the nine-month suspension, which is significant in length and drives home the message that this kind of conduct will not be tolerated. Further, the meetings with the expert provide the Member the opportunity to reflect on his choices.

The proposed penalty provides for remediation and rehabilitation through the terms, conditions and limitations.

Overall, the public is protected because the meetings with the expert provide the opportunity to rehabilitate and re-educate the Member. The 24-month reporting component ensures that the Member adheres to the standards in the future.

Counsel did not submit cases to the panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee. However, the previous decision involving this Member was included: CNO vs McWaters (Discipline Committee, 2012).

Penalty Decision

The panel accepts the Joint Submission as to Order and accordingly orders:

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

2. Directs the Executive Director to suspend the Member’s certificate of registration for nine months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

3. Directs 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 his 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. [the] 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;

iv. 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;

v. 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;

vi. 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 his behaviour;

vii. 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 his certificate of registration;

b) For a period of 24 months from the date the Member’s suspension ends, the Member will notify his 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 his 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

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

Reasons for Penalty Decision

The panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection.

I, Margaret Tuomi, Public Member, 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:

Jim Attwood, RN

Tammy Hedge, RPN

Shiraz Irani, RN

Abdul Patel, Public Member