College of Nurses of Ontario v. Greenshields, 2014 CanLII 97441

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Susan Roger, RN Chairperson

Sarah Corkey, RN Member Jim Attwood, RN Member Mary MacMillan-Gilkinson Public Member

Cathy Ward Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for

) College of Nurses of Ontario

• and - )

LOURDES GREENSHIELDS ) NO REPRESENTATION for

Registration No. JA00370 ) Lourdes Greenshields

) LUISA RITACCA

) Independent Legal Counsel

) Heard: December 10, 2014

DECISION AND REASONS

This matter came for hearing before a panel of the Discipline Committee on December 10, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.

As Lourdes Greenshields (the “Member”) was not present, the hearing recessed for 20 minutes to allow time for the Member to appear. Upon reconvening, the panel noted that the Member was not in attendance nor was she represented.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on October 29, 2014. The panel was satisfied that the Member had received adequate notice of the time, date, place and purpose 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 October 27, 2014, are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for practice assessment in or about March-November 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 subsection 1(1) of Ontario Regulation 799/93, in that you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession by failing to participate after being selected by the Quality Assurance Committee for practice assessment in or about March-November 2011.

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(19) of Ontario Regulation 799/93, in that, while engaged in the practice of nursing as a Registered Practical Nurse, you contravened a provision of the Nursing Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts, and in particular, section 82 of the Health Professions Procedural Code and/or section 26 of Ontario Regulation 275/94 of the Nursing Act, 1991, by failing to participate after being selected by the Quality Assurance Committee for practice assessment in or about March-November 2011.

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 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, by failing to participate after being selected by the Quality Assurance Committee for practice assessment in or about March-November 2011.

Counsel for the College advised the panel that the College was not calling any evidence with respect to the allegations set out in paragraph 2 of the Notice of Hearing.

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 a registered practical nurse who was randomly chosen to participate in a practice assessment as part of the College’s 2011 Quality Assurance program. In March 2011, the Member was notified of the random selection and provided with the particulars of the assessment. At the time of this hearing the Member had not completed any components of the practice assessment despite subsequent reminders and notifications from the College. The panel heard evidence from one witness and received five exhibits to consider.

The panel found the Member committed professional misconduct by failing to participate in a practice assessment after being selected by the Quality Assurance Committee, the Member contravened section 82 of the Health Professions Procedural Code (the “Code”) and section 26 of Ontario Regulation 275/94 of the Nursing Act, 1991 by failing to participate after being selected by the Quality Assurance Committee for practice assessment, and the Member engaged in conduct that would be regarded by members of the profession to be dishonourable and unprofessional.

The Evidence

The sole witness for the College was a Quality Assurance Administrator at the College since 2000. The witness described the Quality Assurance (QA) process as it existed in 2011. The witness stated that the purpose of the QA program is to ensure competency and that engagement in the process is a professional obligation. In 2011, the QA process consisted of two main components: online confirmation of participation and, following that, the submission of a learning plan and the completion of specified online tests. The witness testified that randomly selected participants could send a request for deferral if they were not in a position to participate, but that no such request had been received from the Member.

The Member was sent, to her address on file, a letter on March 25, 2011. The letter described her random selection, the required elements of the process, and the deadline for completion. On July 22, 2011, the Member was sent a further letter acknowledging that the required elements of the Practice Assessment had not yet been completed and providing again the instructions for completion. In this letter the Member was informed that if the identified activities were not completed by September 2, 2011, a report would be filed with the Inquiries, Complaints and Reports Committee (ICRC). On November 4, 2011, a letter was sent to the Member notifying her that a report had been made to the ICRC as a result of her failure to reply to repeated requests to complete a Practice Assessment. This letter dated November 4, 2011, was returned to the College as it was not signed for nor picked up. At no point did the Member contact the College in response to any of the above correspondence.

Final Submissions

The College submitted that the witness’ evidence and exhibits clearly demonstrate that the Member was selected to participate in the practice assessment as part of the College’s 2011 QA program and that the Member failed to participate in or complete any portion of the process. The College also submitted that the Member was provided with an opportunity to rectify her non-compliance in the letter dated July 22, 2011, but the Member provided no response to any correspondence. The College stated that the Member’s repeated failure to cooperate with the QA Committee contravenes section 82(1)(e) of the Code and constitutes professional misconduct. The College also submitted that the persistent failure of the Member to meet her professional obligations despite repeated opportunities to do so displays an utter lack of professionalism and an unwillingness to be governed. The Member’s lack of response or participation falls well below the professional standard and is both unprofessional and dishonourable.

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, 3 and 4 of the Notice of Hearing. As to allegation 4, the panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional.

As to allegation 2, College Counsel advised that she was not calling any evidence in respect of it. Accordingly, the panel makes no finding for allegation 2 in the Notice of Hearing.

Reasons for Decision

The Member was randomly selected for participation in the 2011 QA program and despite multiple opportunities, she chose not to participate. The Member contravened subsections 51(1)(b.0.1) and 82(1)(e) of the Code and as a result committed professional misconduct. In addition, this choice displayed a serious and persistent disregard for the Member’s professional obligations and a core component of self-regulation, and as a result her behaviour is both unprofessional and dishonourable.

Penalty

Penalty Evidence

The College called an additional witness on the issue of penalty. Witness #2 was a Prosecutions Administrator with the College, who provided evidence that a section 75 investigation commenced as a result of a total absence of participation from the Member in the QA process. On September 16, 2014, a voicemail was left on file at the Member’s place of employment to which the Member did respond. The Member, in her response to the voicemail, confirmed she was still at the address on file with the College and that she had received the correspondence related to the QA program. The Member stated that the reason she had not responded was that she had been “having a moment”. The Member was advised to contact the Prosecutions Administrator at the College on the following day. On September 22, 2014, the Member connected with the Prosecutions Administrator and was advised that a hearing was scheduled and that a pre-hearing conference would also be scheduled. The Member did not respond to the College or participate in the pre-hearing process.

Penalty Submissions

Counsel for the College requested that the 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 one meeting with a Nursing Expert (the “Expert”), at her own expense and within three months from the date the Member’s suspension ends. 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, 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, online learning modules and online participation forms:

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) The Member shall participate in the College’s 2015 Quality Assurance program (or the next available cycle) within 24 months from the date the Member’s suspension ends.

4. All documents delivered by the Member to the College or the Expert will be delivered by verifiable method, the proof of which the Member will retain.

5. Requiring the Member to pay the College its legal costs, expenses incurred in investigating the matter and expenses incurred in conducting the hearing in the amount of $500 within six months of the date of this Order.

The College submitted that the Member’s disregard for the QA process displayed a lack of governability and she failed to meet core professional regulatory requirements without any explanation. The College submitted that the proposed penalty is significant enough to provide general and specific deterrence by making it clear that continuing competence and cooperation with the College is extremely important and that failure to cooperate will not be tolerated. The College submitted that the Member’s intentional behaviour is unacceptable and that the panel should provide a significant regulatory response.

The College provided two cases to illustrate that the proposed penalty is in line with previous decisions.

• Kaastra v. CNO (Discipline Committee, 2011): In this case, the Member failed to successfully complete a medication administration course ordered by the QA Committee as a result of a complaint. In this case there was a targeted order from the QA committee rather than a random selection.

• McLaughlin v. CNO (Discipline Committee, 2009): In this case, the Member was randomly selected to complete the Practice Assessment and, after completion of the first phase, was ordered to complete an additional focused component but failed to do so.

The College submitted that the proposed four-month suspension was appropriate, in line with previous orders, and provided for specific and general deterrence. The College submitted that the terms, conditions and limitations proposed provided for remediation. Finally, the College submitted that under section 53(1) of the Code, a panel of the discipline committee has the ability to order all or part of the costs related to an investigation or proceeding. The College stated that the amount requested does not represent the total sum of the College’s costs but submits that the Member had opportunities to avoid both the investigation and the hearing by entering into an undertaking. The College acknowledged that while the Member was within her right not to agree to an undertaking, in the circumstances it is only fair that the Member bear a small portion of the College’s costs. The College submitted that the proposed penalty is appropriate, measured, and responsive to the Member’s conduct.

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 three 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 one meeting with a Nursing Expert (the “Expert”), at her own expense and within three months from the date the Member’s suspension ends. 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, 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, online learning modules and online participation forms:

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 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) The Member shall participate in the College’s 2015 Quality Assurance program (or the next available cycle) within 24 months from the date the Member’s suspension ends.

4. All documents delivered by the Member to the College or the Expert will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel finds that repeated disregard for the QA process is of serious concern and demonstrates a degree of ungovernability. The panel believes the three-month suspension is in line with previous similar cases and provides for specific and general deterrence. The terms, conditions, and limitations allow for remediation and require the Member to engage in the process of Quality Assurance that to date has been ignored. Requiring the Member to engage in an in-depth assessment of continuing competence, most importantly, provides for public protection.

The panel rejected the College’s submission for cost recovery in the amount of $500. Costs were not ordered in the two precedent cases presented to the panel for consideration. The panel considered that the proposed sum was not significant enough to be meaningful with respect to specific or general deterrence.

I, Susan Roger, 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

Jim Attwood, RN

Mary MacMillan-Gilkinson, Public Member

Cathy Ward, Public Member