College of Nurses of Ontario v. Emily M. MacGregor, 2014 CanLII 90724

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Spencer Dickson, RN Chairperson Michael Hogard, RPN Member Margaret Tuomi Public Member Chuck Williams Public Member

BETWEEN:

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

• and - )

EMILY M. MACGREGOR ) LINDSAY DAVIAU for Registration No. JH722527 ) Emily MacGregor

) Heard: October 27, 2014

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 27, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 2 (d) and 4 (d) of the Notice of Hearing dated October 27, 2014. The panel granted this request. The remaining allegations against Emily MacGregor, (the “Member”) are as follows.

IT IS ALLEGED THAT:

1. 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 February 15, 2013, you were found guilty of an offence relevant to your suitability to practise nursing, as follows:

a) between the 30th day of November in the year 2011 and the 7th day of December in the year 2011 [ ], you did steal property to wit: one 7.5mg of Imovane (zopiclone), the property of [the Facility] of a value not exceeding five thousand dollars contrary to the Criminal Code;

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(1) of Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:

a) between November 30 and December 7, 2011, you misappropriated Imovane (zopiclone) from [the Facility]; and/or

b) between November 30 and December 7, 2011, you provided Imovane (zopiclone), a prescription drug, to [your partner] without a physician’s order and in breach of the standards of practice for medication administration; and/or

c) between November 30 and December 7, 2011, you misappropriated Ativan (lorazepam) from [the Facility]; and/or

d) withdrawn;

3. 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(8) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the Facility], you misappropriated property from a client or workplace, as follows:

a) between November 30 and December 7, 2011, you misappropriated Imovane (zopiclone) from [the Facility]; and/or

b) between November 30 and December 7, 2011, you misappropriated Ativan (lorazepam) from [the Facility]; and/or

4. 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 while employed as a Registered Practical Nurse at [the Facility], 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 November 30 and December 7, 2011, you misappropriated Imovane (zopiclone) from [the Facility]; and/or

b) between November 30 and December 7, 2011, you provided Imovane (zopiclone), a prescription drug, to [your partner] without a physician’s order and in breach of the standards of practice for medication administration; and/or

c) between November 30 and December 7, 2011, you misappropriated Ativan (lorazepam) from [the Facility];

d) withdrawn.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, (a), 2 (a), (b), (c), 3 (a), (b),and 4 (a), (b), (c) in the Notice of Hearing. The panel received a written plea inquiry 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 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. Emily M. MacGregor (the “Member”) obtained a diploma in nursing [ ] in June 2008.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) in December 2008.

3. The Member was employed at [the Facility] from August 2009 until June 2012, when she was terminated as a result of the incidents described below.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Theft and Provision of Zopiclone (Imovane)

4. On February 15, 2014, the Member was found guilty of theft under $5,000, contrary to the Criminal Code.

5. The Member pled guilty to stealing 7.5mg of Zopiclone from [the Facility] between November 30, 2011 and December 7, 2011. The Member admits that this offence is relevant to her suitability to practise nursing.

6. The Member admitted that she provided the Zopiclone to her [partner], who was sick with pneumonia at the time.

7. The Member told [the Police] that she had taken the Zopiclone from a “bulk basket” where unused medication was placed when clients were discharged or transferred. She stated that she had taken the Zopiclone during the week when [her partner] was ill.

8. [Her partner] did not have a prescription for Zopiclone. Zopiclone is typically prescribed to treat insomnia.

9. The Member was working the day shift on December 1, 2011, from 7:30 a.m. to 2:30 p.m. Several text messages were exchanged between the Member and [her partner] that morning:

6:45:03 a.m. (from [her partner] to the Member): “Sleeping pill tonight please so I can go to work tomorrow!! Yay!!! This weekend will be fun because I’ll feel better and REALLY enjoy it. Thank you for everything and have a good day at work my pretty wife!!

6:47:25 a.m. (from the Member to [her partner]): “And no prob ill get you sleeping pills xoxooxox”

9:15:56 a.m. (from [her partner] to the Member): “Just woke up. Still very sick and sweating. Should I take the other antibiotic and tylenol?”

9:25:22 a.m. (from the Member to [her partner]): “Yea take the anti bio and tylenol and take a teaspoon of cough syrup”

9:38:56 a.m. (from the Member to [her partner]): “Lol you took it all ? Take some serotonin pills”

10:46:08 a.m. (from the Member to [her partner]): “Awwwww lol !!!!! You’re so cute ! Ill bring you all that stuff later if you want ! Happy hormones make a big diff ! Love you !”

11:43:54 a.m. (from the Member to [her partner]): “Its [a relative’s] birthday and she’s having ppl for dinner .. [Another relative] asked me to go with her .. I don’t have to go its not even as if I feel like it but I will go if you want to have time to just get better and I can drop off sleeping pills and whatever else you need .. You lemme know my love”

11:54:28 a.m. (from [her partner] to the Member): “You are so wonderful!! Just an antibiotic and sleeping pill. I’ll pick up cough stuff. Should I get tylenol?”

10. When the [Police] asked about the “sleeping pills” referred to in the above messages, the Member stated that this was the one occasion she provided Zopiclone to [her partner].

11. On December 7, 2011, the Member had dinner with [her partner]. [Her partner] subsequently checked into [a hotel] next to the restaurant as he was short of breath and feeling unwell.

12. The Member then took [her partner] to a walk-in clinic, where he was diagnosed with bronchitis and prescribed Biaxin. They returned to [her partner]’s hotel room. The Member left at approximately 8:30 p.m. They exchanged text messages until approximately 10:30 p.m.

13. [Her partner] was found dead by the Member the morning of December 8, 2011. The Member used her key to enter [her partner]’s hotel room when she was unable to reach him.

14. An empty, labelled bag of medication with the lot number on it for one 7.5mg dose of Zopiclone was found at the scene. The Director of Pharmacy at [the Facility] confirmed that the medication package was consistent with the packaging at [the Facility]. He opined that there is a “very high likelihood” that the package originated from [the Facility]. The Member admits that she provided the Zopiclone she had misappropriated from [the Facility] to [her partner].

15. Traces of Zopiclone were also found in [her partner]’s blood. However, the Coroner determined that [her partner]’s cause of death was natural (pneumonia in a man with hypertensive and atherosclerotic heart disease).

Misappropriation of Lorazepam (Ativan)

16. On or about December 7, 2011, the Member misappropriated Lorazepam from [the Facility].

17. The Member worked the night shifts (7:30 p.m. to 7:30 a.m.) between December 5, 2011, and December 6, 2011, as well as between December 6, 2011, and December 7, 2011.

18. The Member sent a text message to [her partner] on December 7, 2011, at 7:25:26 a.m., near the end of her night shift, stating, “Okay no prob my love I was able to take an ativan and I have a sleeping pill ... Ativans are counted though so I couldn’t get more”.

19. At 7:26:01 a.m., the Member sent another text message stating, “You can break it in half its 1mg and 0.5 should do the trick for you”.

20. [The Facility]’s narcotic administration audit showed that the Member had access to Lorazepam during the two shifts she worked before she sent the text message to [her partner] the morning of December 7, 2011.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

21. The Member admits that she was found guilty of an offence relevant to her suitability to practise nursing.

22. The Member admits that she misappropriated Zopiclone and Lorazepam from [the Facility]. She admits that misappropriating a prescription drug and a controlled substance from [the Facility] breaches the standards of practice of the profession and contravenes s. 1(8) of Ontario Regulation 799/93.

23. The Member admits that she provided the Zopiclone to [her partner] without a physician’s order. She further admits that providing a prescription drug to [her partner] without a prescription breaches the standards of practice respecting administering medication.

24. The Member admits that she committed the acts of professional misconduct as alleged in the following paragraphs of the Notice of Hearing, as described in paragraphs 4 to 23 above:

• 1(a);

• 2(a), (b), (c);

• 3(a), (b); and

• 4(a), (b), (c), in that the conduct was disgraceful, dishonourable and unprofessional.

OTHER

25. With leave of the Panel of the Discipline Committee, the College withdraws the following particulars: paragraphs 2(d) and 4(d).

Decision

The panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1 (a), 2 (a), (b), (c), 3 (a), (b) and 4 (a), (b), and (c) of the Notice of Hearing. In particular, the Member was found guilty of an offence relevant to her suitability to practise nursing when she was found guilty of theft under $5,000 contrary to the Criminal Code having stolen medication from her work place. The Member misappropriated Imovane and Ativan from her workplace, which contravened the standards of practice. She further contravened the standard of practice relating to medication administration by providing Imovane without a physician’s order to D.O. As to allegation # 4 (a), (b), and (c) the panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

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

Allegation #1 (a) in the Notice of Hearing is supported by paragraphs 4 and 5 in the Agreed Statement of Facts.

Allegation #2 (a), (b) and (c) in the Notice of Hearing are supported by paragraphs 6, 7, 8, 16, and 18 in the Agreed Statement of Facts.

Allegation # 3 (a) and (b) in the Notice of Hearing are supported by paragraphs 7 and paragraph 16 in the Agreed Statement of Facts.

With respect to Allegation # 4 (a), (b) and (c), the panel finds that the Member’s conduct in misappropriating and providing Imovane to [her partner] without a physician’s order, as well as her conduct in misappropriating Ativan, is disgraceful, dishonourable and unprofessional. The Member’s conduct demonstrated a disregard for nursing standards, is unacceptable behaviour, and dishono[u]rs and shames the Member and by extension the profession. The panel finds that the Member’s conduct casts serious doubt on the Member’s moral fitness and her inherent ability to discharge the obligations the public expects of professional(s).

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 four 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 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;

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 24 months from the date the Member’s suspension ends, 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

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

College Counsel submitted that the Joint Submission on Order was a joint effort and should not be interfered with by the panel unless it is so far out of line as to bring the administration of justice into disrepute. The proposed penalty included a reprimand, a four-month suspension, and terms, conditions and limitations. It was within the range of other similar decisions of the Discipline Committee of this College. On this point, three previous decisions were given to the panel for review: CNO v. Donna Susan Brown (Discipline Committee, 2005); CNO v. Stephen Randall (Discipline Committee, 2009); and CNO v. Tammie Spiers (Discipline Committee, 2012).

College Counsel stated that the proposed penalty order had the three important components that are required for protecting the public: general deterrence, specific deterrence, and rehabilitation and remediation of the Member. Specific and general deterrence will be achieved through the four- month suspension and the reprimand, and meeting with the Nursing Expert and reviewing the professional standards, medication and documentation will accomplish rehabilitation and remediation. Protection of the public is ensured by the penalty as a whole, including the 24-month employer notification provision.

College Counsel submitted that in arriving at the Joint Submission on Order, consideration was given to the seriousness of the misconduct and the mitigating and aggravating factors, as follows.

Seriousness of the Misconduct

• There was a criminal conviction for theft;

• This is a significant form of professional misconduct, involving the misappropriation of two drugs within a short period of time; and

• Prescription drugs were given to [her partner] without a physician’s order

Mitigating Factors

• The Member has no previous discipline history;

• She was a junior nurse at the time;

• She has cooperated with the College and admitted her misconduct;

• The Member also cooperated with the police in their investigation and admitted her guilt; and

• No doubt it was a traumatic experience for the Member.

Aggravating Factors

• There were two separate acts of misappropriation, not one single act;

• The provision of prescription drug to a non-client without a physician’s order posed a risk of harm;

• All nurses must recognize the risk of providing drugs that are not prescribed;

• There are criminal findings; and

• This is a significant finding of professional misconduct.

In summary, College Counsel asked the panel to find that the proposed penalty was fair and reasonable and in line with the penalties imposed in similar matters.

Defence Counsel advised the panel that the joint submission on order was a fit penalty and adequately addressed all issues. She went on to say the Member is a young nurse and this is the first time she has ever been in trouble. She comes from a loving and supportive family, is a caring and kind nurse, and is extremely remorseful. She has cooperated with both the College and the police and has accepted her responsibility. She pled guilty to the criminal charge. Defence Counsel urged the panel to accept the Joint Submission on Order.

Penalty Decision

The panel accepts the Joint Submission as to 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 four 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. 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. [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 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 24 months from the date the Member’s suspension ends, 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

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 unless they are so far off as to bring the justice system into disrepute.

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, while protecting the public.

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:

Michael Hogard, RPN

Margaret Tuomi, Public Member

Chuck Williams, Public Member