College of Nurses of Ontario v. Derrick Kent, 2015 CanLII 89630

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Nancy Sears, RN Chairperson

Shiraz Irani, RN Member Lina Kiskunas, RN Member Abdul Patel Public Member

Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

• and - )

DERRICK KENT ) PHILIP ABBINK for

Registration No. 0507707 ) Derrick Kent

) Heard: May 7, 2015

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 7, 2015, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Derrick Kent (the “Member”) as stated in the Notice of Hearing dated March 13, 2015, 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 you were found guilty of offences relevant to your suitability to practise, and in particular,

(a) in the Ontario Court of Justice in, Ontario, on April 29, 2008, you were found guilty of assault of [ ] contrary to section 266 of the Criminal Code of Canada; and/or

(b) in the Ontario Court of Justice in [ ] Ontario, on September 30, 2013, you were found guilty of assault [ ] contrary to section 266 of the Criminal Code of Canada;

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(18) of Ontario Regulation 799/93, in that you contravened a term, limitation or condition on your certificate of registration, as provided by section 1.5(1)1 of Ontario Regulation 275/94 of the Nursing Act, 1991, with respect to failing to provide the College with details of the finding of guilt of criminal offences, and in particular, that,

(a) in the Ontario Court of Justice in [ ] Ontario, on September 30, 2013, you were found guilty of assault [ ] contrary to section 266 of the Criminal Code of Canada;

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, 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 85.6.1 of the Health Professions Procedural Code, in particular, you failed to report that,

(a) in the Ontario Court of Justice in [ ] Ontario, on September 30, 2013, you were found guilty of assault [ ] contrary to section 266 of the Criminal Code of Canada;

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, in that:

(a) in the Ontario Court of Justice in Ontario, on April 29, 2008, you were found guilty of assault [ ] contrary to section 266 of the Criminal Code of Canada; and/or

(b) in the Ontario Court of Justice in [ ] Ontario, on September 30, 2013, you were found guilty of assault [ ] contrary to section 266 of the Criminal Code of Canada; and/or

(c) you failed to report to the College of Nurses of Ontario that on September 30, 2013, you had been found guilty of assault [ ] contrary to section 266 of the Criminal Code of Canada.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1a, b, 2a, 3a, and 4a, 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 Counsel for 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. Derrick Kent (the “Member”) obtained a diploma in nursing from [ ] in 2004.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) [in] March 2005.

3. The Member has been employed at [Facility A] since May 2005.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Finding of Guilt of Assault on April 29, 2008

4. On November 3, 2006, the Member’s [Child A] visited [Facility B] as a result of an asthma attack.

5. [PSW A] was the personal support worker assigned to care for [Child A].

6. The Member occasionally worked at [Facility B], but he did not know [PSW A].

7. [PSW A] took [Child A] into the x-ray room, where the Member subsequently found him unattended.

8. The Member confronted [PSW A] about leaving [Child A] alone. The confrontation escalated and the Member was charged with the assault of [PSW A].

9. On April 29, 2008, after a trial, the Member was found guilty of the assault of [PSW A].

10. The trial judge found that the Member grabbed [PSW A] by the throat and punched her a number of times.

11. The Member was given a conditional discharge, six months’ probation, [and] community service, and was ordered to attend anger management courses.

12. The Member reported this finding of guilt to the College.

Finding of Guilt of Assault on September 30, 2013

13. The Member’s [Child B] was visiting the Member on New Year’s Eve in 2012.

14. They got into an argument over [Child B] dating an older man. [Child B] walked upstairs, which upset the Member. He held onto [Child B] to bring her back downstairs. When she tried to get away, a shoving match at the bottom of the stairs ensued. The Member then threw [Child B] on the floor and slapped her a number of times.

15. The Member was charged with the assault of [Child B]. He pled guilty to this charge on September 30, 2013, and was found guilty of assault.

16. The Member was given a conditional discharge and 12 months’ probation.

17. Although the Member reported the charges to the College, he failed to report the finding of guilt to the College.

18. The Member attended six counselling sessions with [a social worker], which included anger management counselling, between July 2013 and December 2013.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

19. The Member admits that a conditional discharge constitutes a finding of guilt under s. 51(1)(a) of the Health Professions Procedural Code.

20. The Member further admits that he was found guilty of assault on April 29, 2008, and September 30, 2013, and that these findings of guilt are relevant to his suitability to practise.

21. The Member also admits that he failed to report to the College that he was found guilty of assault on September 30, 2013.

22. The Member admits that he committed the acts of professional misconduct as described above in paragraphs 4 to 18, and as alleged in the following paragraphs in the Notice of Hearing:

• 1(a), (b);

• 2(a);

• 3(a);

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

Decision

The panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1a, b, 2a, 3a, and 4a, b, and c of the Notice of Hearing. As to allegation 4a, b, and c, the panel finds that the Member engaged in conduct that would reasonably be considered by members to be unprofessional and dishonourable.

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 1a in the Notice of Hearing is supported by paragraphs 9 and 10 in the Agreed Statement of Facts.

Allegation 1b in the Notice of Hearing is supported by paragraphs 14 and 15 in the Agreed Statement of Facts.

Allegation 2a in the Notice of Hearing is supported by paragraph 17 in the Agreed Statement of Facts.

Allegation 3a in the Notice of Hearing is supported by paragraphs 15 and 17 in the Agreed Statement of Facts.

With respect to Allegation 4a, b, and c, the panel finds that the Member’s conduct was unprofessional as it demonstrated a serious disregard for his professional obligations.

The panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing, and the Member ought to have known that his conduct was unacceptable and did not meet his obligations as a professional.

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 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. 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, 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 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 12 months from the date the Member returns to the practice of nursing, 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 and the Member’s Counsel.

College Counsel submitted that the proposed penalty is appropriate, reasonable, and in the public interest. It is mindful of the mitigating and aggravating circumstances and of the goals of penalty routinely used by this College. College Counsel submitted that:

• The mitigating factors in this case are:

o The Member has a long tenure as a member of the College;

o The Member has no past disciplinary record with the College;

o The Member took responsibility for his conduct in the criminal court proceedings and with the College’s proceedings; and

o The Member has engaged in counselling, including anger management counselling, demonstrating his desire to avoid similar behaviour in the future.

• The aggravating factors in this case are:

o The Member’s conduct, both the assaults and the failure to report, are serious;

o The assaults represented violent and inappropriate behaviour and are unacceptable for members of the profession;

o The second incident of assault demonstrated a lack of remediation following the first incident of assault;

o Both assaults constituted actual harm to others by the Member; and

o A failure to report findings of guilt is serious misconduct for a regulated health professional and goes to the ability of the College to engage in the proper administration of professional self-regulation.

• The proposed penalty provides for general and specific deterrence through a suspension and reprimand.

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

• Overall, the public is protected through the proposed requirement for the Member to notify employers of the panel’s decision.

College Counsel submitted two cases to the panel to demonstrate that the proposed penalty falls within the range of similar cases from this Discipline Committee.

• CNO v. Sharp (Discipline Committee, 2012) is a case in which a member was found guilty of numerous offences, including assault, between 1997-2008. The member failed to disclose these findings to the College. In this case, the penalty included a reprimand, four-month suspension, terms, conditions and limitations including meetings with a nurse expert, and a 12-month period of employer notification.

• CNO v. Sondy (Discipline Committee, 2012) involved a member who was found guilty of numerous criminal offences in both Canada and another jurisdiction and failed to report all of these findings to the College. In this case, the penalty included a reprimand, terms, conditions and limitations including meetings with a nurse expert, and a 12-month period of employer notification. The member had voluntarily resigned his certificate of registration. The panel imposed a suspension of five months that would take effect from the date that the member obtains an active certificate of registration.

The Member’s Counsel indicated that he agreed with College Counsel’s submissions except he submitted that there was no evidence that the assaults by the Member constituted actual harm to others.

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 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 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, 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 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 12 months from the date the Member returns to the practice of nursing, 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 fair, reasonable and in the public interest. The Member has cooperated 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.

Although College Counsel submitted two cases to demonstrate there were precedents supporting the proposed penalty, the panel did not find these cases particularly useful in that both cases involved conduct that was more serious and continued over significantly longer periods of time.

I, Nancy Sears, 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:

Shiraz Irani, RN Lina Kiskunas, RN Abdul Patel, Public Member

Chuck Williams, Public Member