College of Nurses of Ontario v. Naomi Cornelius, 2014 ONCNO 90723

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Spencer Dickson, RN Chairperson Sarah Corkey, RN Member Laura Sanderson, RPN Member Renate Davidson Public Member Mary MacMillan-Gilkinson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MATTHEW SAMMON for the College of Nurses of Ontario

• and -

NAOMI CORNELIUS Registration No. HA02535 NO REPRESENTATION for Naomi Cornelius

JOHANNA BRADEN Independent Legal Counsel

Heard: July 23, 2014

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on July 23, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.

As Naomi Cornelius (the “Member”) was not present, the hearing start time was delayed by 15 minutes to allow time for the Member to appear. Upon convening, the panel noted that the Member was not in attendance and proceeded with the hearing.

College counsel provided the panel with evidence that the Member had been sent the Notice of Hearing on June 20, 2014. The panel was satisfied that the Member had received adequate notice and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against Naomi Cornelius (the “Member”) as stated in the Notice of Hearing dated July 11, 2014, 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 paragraph 1(19) of Ontario Regulation 799/93, in that you contravened a provision or provisions of the Regulated Health Professions Act, 1991 by failing to complete a Specified Continuing Education or Remediation program as directed by the Inquiries, Complaints and Reports Committee through a decision dated January 17, 2011.

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 paragraph 1(37) of Ontario Regulation 799/93, in that you have 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 as disgraceful, dishonourable or unprofessional, with respect to your failure to complete a Specified Continuing Education or Remediation program as directed by the Inquiries, Complaints and Reports Committee through a decision dated January 17, 2011.

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 (RPN) currently registered in the non-practi[s]ing class. The Inquiries, Complaints and Reports Committee (“the ICRC”) of the College had a meeting on November 17, 2010, at which time a decision requiring the Member to complete a Specified Continuing Education or Remediation Program (“SCERP”) was made.

The issues are as follows:

(a) Was the Member aware of the ICRC decision dated January 17, 2011 requiring her to complete a SCERP?

(b) Did the Member fail to complete the required elements of the SCERP?

(c) Should failure to complete the requirements of the SCERP as ordered by the ICRC result in a finding of professional misconduct?

The panel heard evidence from two witnesses and received thirteen exhibits to consider. As set out more fully below, the panel found the Member committed professional misconduct as alleged in the Notice of Hearing, and engaged in conduct that would be regarded by members of the profession to be dishonourable and unprofessional.

The Evidence

Issue 1: Was the Member aware of the ICRC decision dated January 17, 2011, requiring her to complete a SCERP? The College called [ ] an ICRC Administrator at the College, who testified that she sent a letter by regular mail to the Member notifying her of the Decision of the ICRC [ ] which included the written decision of the ICRC dated January 17, 2011 (the “ICRC Decision”) [ ].

[The ICRC Administrator] sent a second letter to the Member by regular mail on February 9, 2011, which notified the Member of the scheduled date of the oral caution as ordered by the ICRC, in its decision.

[The ICRC Administrator] sent a third letter to the Member by regular mail on April 29, 2011, which notified the Member that because the SCERP had not been completed, the scheduled oral caution would not proceed as scheduled on May 11, 2011. This letter notified the Member that once the SCERP had been completed, the oral caution would be rescheduled.

The College called [ ] a Monitoring Administrator at the College, who testified with respect to the normal processes of the Monitoring Department of the College. [The Monitoring Administrator] testified that any undelivered correspondence to members would be returned to the College and placed in the specific member’s file. [The Monitoring Administrator] testified that there was no undelivered correspondence in the Member’s file.

[The Monitoring Administrator] gave evidence that she had completed a search on the College’s public register and verified that there was only one Naomi Cornelius registered with the College.

[The Monitoring Administrator] testified that the normal practice was for Monitoring Administrators to send College correspondence to members by regular mail to the address on file at the College, which is to be kept up to date by members.

Further, [the Monitoring Administrator] testified that it is the ordinary practice of the College to use a summary of telephone call form to memorialize telephone calls made and received by the College. [A] standard form document [ ] summarizes a phone call between the Member and [a second] Monitoring Administrator. The summary indicates that the Member had left a voicemail message on April 21, 2011, wherein she confirmed that she had received the letter dated April 14, 2011, and that at the time of the voicemail the completion of her SCERP was past due. In the summary of this telephone conversation, the Member stated she did not receive the original package. The Member stated in this summary that she had a friend who would be staying with her over the weekend and could assist her with completing the SCERP.

Issue 2: Did the Member fail to complete the required elements of the SCERP?

The College sent a letter to the Member dated April 14, 2011, and enclosed the SCERP instruction sheet. These instructions required the Member to contact the monitoring team with the date of the scheduled meeting with the expert, and to subsequently contact the monitoring team when the meeting with the expert had been completed. On April 21, 2011, the Member left the College a voicemail message wherein she confirmed receipt of the College’s letter dated April 14, 2011.

[The Monitoring Administrator] gave evidence that the normal practice of the Monitoring Department is to record in the member’s file any correspondence identifying the scheduled meeting date and notification that the meeting with the expert had been completed. This correspondence would have either been a telephone summary or email message. [The Monitoring Administrator] testified that there is no record in the Member’s file identifying the date scheduled for the expert meeting and there is no record in the Member’s file of the meeting with the expert having been completed.

A letter was sent to the Member by regular mail on July 14, 2011, notified the Member that the College had not received a request for an extension in writing and that the completion of the SCERP was overdue. W.C. testified that there is no record in the Member’s file of the SCERP having been completed prior to or after July 14, 2011.

Issue 3: Should failure to complete the requirements of the SCERP as ordered by the ICRC result in a finding of professional misconduct?

College counsel provided the panel with an excerpt from the Nursing Act, 1991 which states that contravening a provision of the RHPA is professional misconduct. College counsel also provided excerpts from the Health Professions Procedural Code which state[] that a panel of the ICRC may require a member to complete a SCERP.

The panel sought advice from ILC in determining whether failure to complete a SCERP should result in a finding of professional misconduct. ILC acknowledged that the RHPA identifies that a failure to comply with an order of a discipline panel constitutes professional misconduct but does not specifically identify failure to comply with ICRC orders as such. ILC stated the panel should interpret the multiple pieces of legislation harmoniously with an eye toward the mandate of public protection. ILC suggested that the use of the word “require” in the Code indicates an obligation of the professional to complete an ordered SCERP and that it was reasonable to infer that a failure to complete a SCERP as ordered must have a consequence.

Final Submissions

College counsel submitted that the panel should find that the Member breached Section 26(3) of the Code by not completing the required SCERP as ordered by the ICRC. Counsel argued that the use of the word “require” in the Code suggests an obligation to fulfill the term, and that a failure to complete contravenes the Act.

College counsel submitted that the panel should make a finding that the Member’s conduct would reasonably be regarded by members of the profession as unprofessional in that the Member ignored the professional obligation to follow decisions made by her regulatory authority. In addition, the College argued that the panel ought to find that the conduct would reasonably be regarded as dishonourable, given that the Member thumbed her nose at the regulatory process by not completing the SCERP as ordered by the ICRC.

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. In particular, the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional by failing to complete the SCREP as ordered by the ICRC in its written decision dated January 17, 2011.

Reasons for Decision

Allegation 1

The panel found that the Member failed to complete the required SCERP as ordered. The panel found that it is reasonable to infer that the use of the word “require” in the Health Professions Procedural Code is directive in nature and thus indicates that SCERPs are implemented in the interest of public protection. Failure to complete a SCERP as ordered by the ICRC contravenes the Code.

Allegation 2

The panel found that members of this profession would reasonably regard the Member’s conduct in the circumstances as both unprofessional and dishonourable. Quite simply, it is unprofessional for the Member to have not complied with the ICRC’s order. Further, the Member’s persistent failure to meet her professional obligations by repeatedly choosing not to comply with the ICRC order and to thumb her nose at the process amounts to dishonourable conduct.

Penalty Submissions

The College provided [the] panel with a written submission on penalty wherein it requested the following 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 four months. This suspension shall take effect from the date that the Member obtains her General Class certificate 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 a minimum of one meeting with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. If the Expert determines that a greater number of sessions are required, the Expert will advise the Member and write to the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months of the date of the 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 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, and

3. 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, and

2. Therapeutic Nurse Client Relationship;

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 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;

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 her certificate of registration;

b) For a period of 12 months from the date the Member obtains her General Class certificate, 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, and

3. 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.

The College asked the panel to consider two previous discipline panel decisions when evaluating the appropriateness of the proposed penalty.

College of Nurses v. Fabro (2014): The member in that case failed to complete terms of a Resolution Agreement and received a 2-month suspension and terms, conditions and limitation[s] on her certificate of registration.

College counsel submitted that the difference in that case was that there were mitigating factors and no previous discipline history.

College of Nurses v. Lineses (2014): The member in that case failed to complete a SCERP and received a one-month suspension, reprimand, and terms, conditions and limitations on her certificate of registration.

College counsel submitted that the difference in that case was that there was no previous discipline history.

The College submitted that in this case there are no mitigating factors. The Member’s repeated failure to comply with the SCERP and a previous discipline history that involved dishonest behaviour, which occurred in close proximity to the ICRC order, were aggravating factors that warranted a longer suspension. The College submitted that the penalty ordered by the panel should include the remediation components of the SCERP as the Member should not be relieved of that previous obligation.

Penalty Decision

The panel makes the following order as to penalty:

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 four months. This suspension shall take effect from the date that the Member obtains her General Class certificate and shall continue to run without interruption as long as the Member remains in the practising class.

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 a minimum of one meeting with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. If the Expert determines that a greater number of sessions are required, the Expert will advise the Member and write to the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months of the date of the 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 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, and

3. 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, and

2. Therapeutic Nurse Client Relationship;

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 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;

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 her certificate of registration;

b. For a period of 12 months from the date the Member obtains her General Class certificate, 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, and

3. 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 found that the close proximity of the previous discipline order and the ICRC order, the persistent nature of the Member’s disregard for the order of the ICRC, and the prior discipline history involving dishonest behaviour were all aggravating factors in this case. The panel did not identify any mitigating factors.

The panel found that the penalty meets the principles of both general and specific deterrence, rehabilitation and remediation of the Member, as well as protection of the public. The four month suspension and oral reprimand sends a message to the Member and the profession that serious attention is given to patterns of misconduct and that failure to comply with an order is unacceptable. The terms, conditions and limitations on the Member’s certificate of registration as well as the meeting with the nursing expert require the Member to complete the original remediation and learning goals and will help the Member to understand her current conduct. The terms, conditions and limitations, and the expert meeting fulfill the remediation and rehabilitation requirement as they will allow the Member to successfully return to practice should she choose to. Finally the overall penalty meets the requirement of public protection through remediation and close monitoring upon return to practice through employer notification.

I, Spencer Dickson, 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:

Sarah Corkey, RN

Laura Sanderson, RPN

Renate Davidson, Public Member

Mary MacMillan-Gilkinson, Public Member