College of Nurses of Ontario v. Marcella Calvano, 2015 CanLII 89633

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Sarah Corkey, RN Member Laura Sanderson Member Renate Davidson Public Member Devinder Walia Public Member

BETWEEN:

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

• and -

MARCELLA CALVANO Registration No. 9613159 PHILIP ABBINK for Marcella Calvano

ANDREA GONSALVES Independent Legal Counsel

Heard: May 5, 2015

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 5, 2015, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Marcella Calvano (the “Member”) as stated in the Notice of Hearing dated February 5, 2015, are as follows.

IT IS ALLEGED THAT:

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 subsection 1(1) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at the [Facility] in Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to accessing personal health information in electronic medical records for approximately 338 clients, without consent or other authorization, in or about January 2011-December 2012.

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(37) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at the [Facility] in Ontario, 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 with respect to accessing personal health information in electronic medical records for approximately 338 clients, without consent or other authorization, in or about January 2011-December 2012.

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 (“ASF”), which reads as follows.

THE MEMBER

1. Marcella Calvano (the “Member”) obtained a diploma in nursing [ ] in 1995.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) in February 1996.

3. The Member was employed as a nurse at the [Facility] from May 27, 1997 until January 10, 2013, when she was terminated as a result of the incidents described below. The Member grieved the termination and it was converted to a resignation.

PRIOR HISTORY

4. The Member has no prior disciplinary findings with the College.

THE FACILITY

5. The [Facility] is located in [ ] Ontario.

6. The Member was initially employed as a casual nurse, but obtained a permanent, full-time position in or about 2000-2001.

7. The Member had been employed as a Critical Care Float Nurse (“CCFP”) for several years and worked in the Intensive Care Unit and Emergency Department (“ED”). In or about March 2010, the Member was transferred to the Surgical Unit/Surgical Step-Down Unit [the Unit].

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Accessing Health Records without Consent or other Authorization

8. During the time that the Member was employed as a CCFP, she had access to the ED electronic tracker.

9. The ED electronic tracker allows one to view the following information: who is in the ED; the client’s date of birth; when the client was in the ED, the client’s primary complaint; order entries; lab work; diagnostic imaging results; and all lab results.

10. When the Member transferred to [the Unit], she should have lost access to the ED electronic tracker as the Member did not require such access to perform her duties. However, she remained able to access the tracker.

11. On December 31, 2012, a nurse in the ED advised the ED Manager that she was unable to gain access to an electronic health record for a specific client because the Member was viewing the record and it was locked as a result. The Member did not have consent or other authorization to be viewing this health record. The ED Manager advised the Member’s Manager of this incident.

12. As a result of the above incident, audits were conducted to determine whether the Member accessed other electronic health records inappropriately. A final audit determined that the Member inappropriately accessed the electronic health records for 338 clients between January 2011 and December 2012.

13. The audit excluded all clients who were on [the Unit], could have been transferred to [the Unit] or potentially could have been within the Member’s circle of care.

14. Accordingly, the Member was not within the 338 clients’ circle of care and she had no consent or other authorization to access these records.

15. There is no evidence that the Member disclosed any of the personal health information she had viewed electronically.

16. Although the Member initially denied accessing electronic health records for clients outside of her circle of care, she later admitted to the [Facility] at the same meeting that she had accessed the health records for clients outside of her circle of care.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

17. If the Member were to testify, she would state that she understood the serious nature of her misconduct and has taken appropriate steps to learn from it so that it will not occur again. In particular, the Member created a Learning Plan in January 2014 to address these specific issues. The Member has also presented an in-house seminar [ ] to her peers at her current employer, [ ] regarding privacy and confidentiality. [ ]

18. Regardless, the Member admits that she accessed the personal health information for approximately 338 clients without consent or other authorization between January 2011 and December 2012, and that this was a breach of the standards of practice of the profession.

19. The Member admits that she committed the acts of professional misconduct as described above in paragraphs 8 to 17, and as alleged in the following paragraphs of the Notice of Hearing:

• 1; and

• 2 in that the conduct is unprofessional and dishonourable.

Decision

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

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 3, 7, 9, 10, 11, 12, 13, 14, 16, 18, and 19 in the Agreed Statement of Facts.

Allegation #2 in the Notice of Hearing is supported by paragraphs 3, 7, 9, 10, 11, 12, 13, 14, 15,16, 17, 18, and 19 in the Agreed Statement of Facts.

With respect to Allegation # 2, the panel finds that the Member’s conduct in accessing 338 client records without consent or authorization was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

The panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through the repeated unauthorized access to client records from January 2011 to December 2012.

Penalty

Counsel for the College and the Member advised the panel that a Joint Submission on Order (“JSO”) 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 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, online learning modules and online participation forms:

1. Professional Standards,

2. Confidentiality and Privacy - Personal Health Information;

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

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 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 18 months from the date the Member returns to the practice of nursing, 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

Submissions were made by College Counsel and the Member’s Counsel.

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

• The Member admitted the misconduct and cooperated with the College;

• The Member showed obvious remorse and engaged in professional development by way of a formal learning plan and in addition independently created and delivered an in-house seminar on the subject to her peers;

• The Member has had a long career as a nurse with no previous discipline history; and

• There was no disclosure of the personal health information that she viewed to other parties.

The aggravating factors in this case were:

• The large number of records that the Member accessed;

• That the unauthorized accessing of records occurred over nearly two years; and

• The Member’s actions in accessing 338 client records was intentional.

The proposed penalty provides for general deterrence through the three-month suspension as it conveys to the Member and the profession the serious breach of confidence and trust that unauthorized access of client records represents.

The proposed penalty provides for specific deterrence through the oral reprimand, the three-month suspension, and the 18-month period of employer notification.

The proposed penalty provides for remediation and rehabilitation through the terms, conditions and limitations, including specifically the meetings with a nursing expert.

Overall, the public is protected because the Member will attend meetings with a nursing expert to discuss and reflect on this specific act of professional misconduct, and because for a period of 18 months after return to practice the Member’s employer(s) will be aware of this panel’s findings in order to monitor appropriately.

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

CNO v. Hooker (Discipline Committee, 2006). In this case the member accessed a total of 21 client records without authorization. This case proceeded by way of ASF and JSO and the penalty included a 30-day suspension.

CNO v. Smith (Discipline Committee, 2008). In this case the member accessed a client’s record on several occasions and disclosed information about the client without consent. This case proceeded by way of ASF and JSO and the penalty included a 6-week suspension.

CNO v. Smith (Discipline Committee, 2009). In this case the member accessed the electronic health records of her boyfriend and co-worker without consent. This was a second professional misconduct allegation for the same matter. This case proceeded by way of ASF and JSO and the penalty included a 3-month suspension.

CNO v. Billesberger (Discipline Committee, 2011). In this case the member accessed 4 client records without authorization or consent and disclosed information about one of those clients. This case proceeded by way of ASF and JSO and the penalty included a 1-month suspension.

CNO v. Kaufman (Discipline Committee, 2012). In this case the member provided access to client records to a third party without authorization or consent and disclosed personal health information of the client on a publicly accessible internet page. This case proceeded as a contested matter and the penalty included a 4-month suspension.

Counsel for the College also provided the panel with a variety of news articles spanning from 2007-2015 to highlight the mounting public concern over breaches of confidentiality and privacy related to the unauthorized access of personal health information. Both College counsel and the Member’s counsel noted that none of the articles provided to the panel involved the Member and they agreed that the press clippings were provided to enlighten the panel on this growing public concern.

Penalty Decision

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

1. The Member is required to 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 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, online learning modules and online participation forms:

1. Professional Standards,

2. Confidentiality and Privacy - Personal Health Information;

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

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 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 18 months from the date the Member returns to the practice of nursing, 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.

The panel concluded that the proposed penalty is 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. In particular, the order of a three-month suspension provides a clear message to the profession that unauthorized access to client information is an act that will not be dealt with lightly. It is the obligation of every nurse to protect every client’s right to privacy and when one disregards this important responsibility, it casts doubt upon and damages the trust that the public places in the nursing profession.

The penalty is in line with what has been ordered in previous cases.

I, Grace Fox, NP, 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

Devinder Walia, Public Member