College of Nurses of Ontario v. Xavier, 2016 ONCNO 102070

Catherine Egerton, Public Member Chairperson

Samantha Diceman, RPN Member Spencer Dickson, RN Member Michael Hogard, RPN Member Cathy Ward Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for

) College of Nurses of Ontario

and - )

PATRICK XAVIER ) NO REPRESENTATION for Registration No. JH710914 ) Patrick Xavier

) LUISA RITACCA ) Independent Legal Counsel

) Heard: March 17, 2016

DECISION AND REASONS

This matter came on for hearing before a Panel of the Discipline Committee on March 17, 2016 at the College of Nurses of Ontario (“the College”) at Toronto. Patrick Xavier (the “Member”) participated via teleconference. A French interpreter attended the hearing to provide interpreter services for the Member.

The Allegations

The allegations against Patrick Xavier (the “Member”) as stated in the Notice of Hearing dated January 21, 2016, are as follows.

IT IS ALLEGED THAT:

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 standards of practice of the profession, as follows:

a) in or about May 2011, you disclosed personal information about yourself to [Client A] when you had no therapeutic purpose for doing so;

b) in or about May 2011, you asked [Client A] for money on one or more occasions;

c) in or about May 2011, you accepted money from [Client A];

d) on or about October 19, 2011, you entered [Client A]’s residence without her knowledge and/or permission;

e) on or about October 19, 2011, you asked [Client A] for a ride;

f) on or about October 19, 2011, you asked [Client A] for money on one or more occasions;

g) on or about October 19, 2011, you accepted money from [Client A];

h) between about March 18, 2011, and April 11, 2011, you practised nursing while your certificate of registration was suspended;

i) on or about November 27, 2009, you knowingly made a false statement on an application for employment; and/or

j) on or about October 26 and October 27, 2011, you failed to respond appropriately to an order for medication in relation to [Client B];

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(15) of Ontario Regulation 799/93, in that you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, and in particular, on or about November 27, 2009, you knowingly made a false statement on an application for employment;
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 Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts, and in particular:

a) between about March 18, 2011, and April 11, 2011, you used the title “registered practical nurse” or an abbreviation thereof while your certificate of registration was suspended, contrary to s. 11(1) of the Nursing Act, 1991;

b) between about March 18, 2011, and April 11, 2011, you held yourself out as qualified to practise in Ontario as a nurse while your certificate of registration was suspended, contrary to s. 11(5) of the Nursing Act, 1991;

c) between about March 18, 2011, and April 11, 2011, you performed the controlled act of administering a substance by injection, to [Client C] on at least the following dates: March 18, 21, 22, 23, April 4, 7, 8, and 9, 2011, and to [Client D] on at least the following dates: April 4 and 8, 2011, contrary to s. 27(1) of the Regulated Health Professions Act, 1991;

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 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) in or about May 2011, you disclosed personal information about yourself to [Client A] when you had no therapeutic purpose for doing so;

b) in or about May 2011, you asked [Client A] for money on one or more occasions;

c) in or about May 2011, you accepted money from [Client A];

d) on or about October 19, 2011, you entered [Client A]’s residence without her knowledge and/or permission;

e) on or about October 19, 2011, you asked [Client A] to drive you somewhere;

f) on or about October 19, 2011, you asked [Client A] for money on one or more occasions;

g) on or about October 19, 2011, you accepted money from [Client A];

h) between about March 18, 2011, and April 11, 2011, you practised nursing while your certificate of registration was suspended;

i) on or about November 27, 2009, you knowingly made a false statement on an application for employment; and/or

j) on or about October 26 and October 27, 2011, you failed to respond appropriately to an order for medication in relation to [Client B].

Counsel for the College advised the Panel that the College was not calling any evidence with respect to the allegations set out in paragraphs 1 a), 1 b), 1 c), 1 d), 1 e), 1 f), 1 g), 1 i); 2 and

4 a), 4 b), 4 c), 4 d), 4 e), 4 f), 4 g), 4 i) in the Notice of Hearing.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1 h), 1 j); 3 a), 3 b), 3 c); and 4 h), 4 j) 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 advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows.

Patrick Xavier (“Mr. Xavier”) obtained a diploma in nursing [ ] in 2008.
Mr. Xavier registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) in the General Class in February 2009. His certificate of registration (“Certificate”) was suspended for non-payment of fees between February 15, 2011, and April 12, 2011. He was also administratively suspended for non-payment of fees from February 18, 2015, until March 20, 2015, at which point he was administratively revoked. Mr. Xavier remains administratively revoked at this time.
Mr. Xavier was employed at [the Facility] as a full-time staff nurse from December 1, 2009 to December 2, 2011, when he was terminated.

THE FACILITY

The Facility

The Facility was a retirement residence that was located in [ ] Ontario. It closed in the spring/summer of 2014. All residents were placed into or found alternative accommodations.

There were approximately 115 to 120 residents at the Facility.
Mr. Xavier’s role was to assist with resident care. He was responsible for administering medications, care plans, transcribing physicians’ orders and any other nursing care for the residents.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Incidents Relevant to Allegations of Professional Misconduct

Failing to Adequately Follow Up on a New Prescription for [Client B]

[Client B] (the “Client”) was an oriented and relatively independent resident at the Facility.
The Client had gone to the hospital and returned on October 25, 2011, at approximately 2330 with a prescription for Levofloxacin, an antibiotic. The prescription was written on a piece of paper that accompanied the Client.
Mr. Xavier had not worked on October 25, 2011, and was not present when the Client returned to the Facility.
On October 26, 2011, during the day shift, [Nurse A] transcribed the order onto the Client’s Treatment Administration Record (“TAR”), which was being used as a Medication Administration Record (“MAR”) at the time.
The 24 Hour Resident Condition Report for the night shift between October 25, 2011, and October 26, 2011, noted that the Client returned from the hospital with a prescription for an antibiotic that needed to be faxed. The day shift entry for October 26, 2011, on this Report indicated “New orders” for that Client.
At 0830 on October 26, 2011, [Nurse A] also faxed the prescription to the pharmacy.
Medication orders faxed to the pharmacy before 1500 would be dispensed the same day and would be available for administration in the evening around dinnertime (1800 or 1900).
Antibiotics need to be administered as soon as the medication is delivered from the pharmacy. The Levofloxacin should have first been administered to the Client at 2100 on October 26, 2011, after it had been received from the pharmacy.
Mr. Xavier worked the evening shift of October 26 and October 27, 2011, and was responsible for medication administration in the evening, including at 2100.
Mr. Xavier initialled the Client’s MARs on October 26, 2011, for several medications that were required to be administered at 1700, indicating that he administered those medications at that time.
Mr. Xavier also initialled the Client’s TAR on October 27, 2011, for a medication required to be administered at 2100 (and that had not been ordered until October 27, 2011), indicating that he administered that medication at that time.
The Levofloxacin was not delivered by the pharmacy to the Facility on October 26 or 27, 2011.
Mr. Xavier did not initial in the box on the Client’s TAR reserved to indicate the administration of Levofloxacin at 2100 on October 26 or 27, 2011.
Even if there was some error with the transcribing or the faxing of the order for Levofloxacin on October 26, 2011, by [Nurse A], Mr. Xavier should have been aware that there was an order for the Levofloxacin based on the 24 Hour Resident Condition Report.
Mr. Xavier failed to:
document anywhere (MAR, TAR or Client’s Progress Notes) that the Levofloxacin which had been ordered to be administered to the Client starting on October 26, 2011, had not been provided by the pharmacy or administered;
communicate with anyone about this issue until it was discovered by another nurse on October 28, 2011, when it was raised with Mr. Xavier; or
otherwise take any action to follow up with anyone or inform anyone about the issue.
Although the pharmacy normally closed at 1700, the Facility’s Director of Care was on call 24 hours a day, seven days a week.
On October 28, 2011, a geriatric nurse came to assess the Client. The nurse noticed that the Client’s TAR indicated that no Levofloxacin had been administered on either October 26 or 27, 2011. This nurse notified [Nurse A], who was on shift at the time, and who re-faxed the Client’s prescription to the pharmacy. [Nurse A] documented the missed doses of Levofloxacin in the Client’s progress notes, and notified the Director of Care.

Using the Title of RPN and Practising while Suspended

24.

Using the Title of RPN and Practising while Suspended

Mr. Xavier’s Certificate was suspended for non-payment of fees between February 15, 2011, and April 12, 2011. At the time his suspension began, Mr. Xavier was on leave from the Facility.

Mr. Xavier returned from leave on March 18, 2011, and began working regular evening shifts at the Facility.
Mr. Xavier completed an application for reinstatement of his certificate of registration, and sent it to the College. It was received by the College on March 22, 2011, and processed in the ordinary course. His Certificate was reinstated on April 12, 2011.
During the period of time beginning when Mr. Xavier returned from leave on March 18, 2011, until April 11, 2011, Mr. Xavier practised nursing at the Facility, while his Certificate was still suspended.
Mr. Xavier used the title of RPN repeatedly on various documentation between March 18, 2011, and April 11, 2011, during the time he was suspended.
The Facility was unaware and Mr. Xavier did not advise the Facility that his Certificate had been suspended when he returned to work on March 18, 2011. The Facility only realized that Mr. Xavier’s Certificate had been suspended after his Certificate had been reinstated. When Mr. Xavier returned to work on March 18, 2011, the Facility believed Mr. Xavier was returning to work in the role of an RPN, and treated and paid him as an RPN.
Mr. Xavier practised as an RPN while he was suspended by performing the controlled act of administering insulin shots to two clients on March 18, 21, 22, 23 and April 4, 7, 8 and 9, 2011.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

31.

Admissions of Professional Misconduct

Mr. Xavier admits that he committed the acts of professional misconduct as alleged in following paragraphs of the Notice of Hearing:

1(h), (j);
3(a), (b), (c);
4(h) and (j), in that the conduct was unprofessional.

Mr. Xavier admits that he contravened the standards of practice of the profession when he failed to respond appropriately to an order for medication in relation to [Client B] and when he practised nursing while his Certificate was suspended. In particular, Mr. Xavier admits that he breached the following standards of practice published by the College, which were in force at the time of the incidents:
Professional Standards, Revised 2002;
Medication; and
Documentation, Revised 2008.
Mr. Xavier admits that he committed professional misconduct by contravening a provision of the Nursing Act, 1991, the Regulated Health Professions Act, 1991 or the regulations under either of those acts when he used the title of RPN while suspended, held himself out as qualified to practise as a nurse while he was suspended and performed the controlled act of administering insulin to two clients on nine dates in March and April 2011.

Decision

The Panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs numbered 1 h), 1 j); 3 a), 3 b), 3 c); and 4 h), 4 j) in the Notice of Hearing in that the Member failed to meet the standards of practice of the profession. The Panel also concluded that the Member engaged in conduct which would reasonably be viewed by members of the profession as unprofessional.

As to allegations 1 a), 1 b), 1 c), 1 d), 1 e), 1 f), 1 g), 1 i); 2; and 4 a), 4 b), 4 c), 4 d), 4 e), 4 f), 4 g), 4 i), College Counsel advised that he was not calling any evidence with respect to them. Accordingly, the Panel dismisses allegations paragraphs 1 a), 1 b), 1 c), 1 d), 1 e), 1 f), 1 g), 1 i); 2; and 4 a), 4 b), 4 c), 4 d), 4 e), 4 f), 4 g), 4 i) in the Notice of Hearing.

Reasons for Decision

The Member failed to fully meet the Professional Standards, the Medication Standard and the Documentation Standard published by this College. He did not meet the legislative and other accountabilities of the profession. Specifically, the Member practised nursing while suspended from the College, failed to meet the medication practice standards and failed to ensure that his clinical documentation was a complete record of the nursing care that he provided.

As the Member failed to meet three standards of the profession, the Panel concluded that his conduct would be reasonably considered by members of the profession as unprofessional.

Penalty

Counsel for the College advised the Panel that a Joint Submission as to Order had been agreed upon. The Joint Submission as to Order requested that the Panel make an order as follows:

Requiring Mr. Xavier to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
If and when Mr. Xavier obtains an active certificate of registration, directing the Executive Director to suspend Mr. Xavier’s certificate of registration for three months. This suspension shall take effect from the date Mr. Xavier obtains an active certificate of registration and shall continue to run without interruption as long as he remains in the practising class.
If and when Mr. Xavier obtains an active certificate of registration, directing the Executive Director to impose the following terms, conditions and limitations on Mr. Xavier’s certificate of registration:

a) Mr. Xavier will attend two meetings with a Nursing Expert (the “Expert”), at his own expense and within six months from the date Mr. Xavier obtains an active certificate of registration. To comply, Mr. Xavier 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, Mr. Xavier provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, Mr. Xavier reviews the following College publications and completes the associated Reflective Questionnaires, online learning modules and online participation forms (where applicable):

Professional Standards, and
Medication;

iv. At least seven days before the first meeting, Mr. Xavier 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:

the acts or omissions for which Mr. Xavier was found to have committed professional misconduct,
the potential consequences of the misconduct to Mr. Xavier’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after Mr. Xavier has completed the last session, he will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

the dates Mr. Xavier attended the sessions,
that the Expert received the required documents from Mr. Xavier,
that the Expert reviewed the required documents and subjects with Mr. Xavier, and
the Expert’s assessment of Mr. Xavier’s insight into his behaviour;

vii. If Mr. Xavier does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in Mr. Xavier breaching a term, condition or limitation on his certificate of registration;

b) For a period of 12 months from the date Mr. Xavier returns to the practice of nursing, he will notify his employers of the decision. To comply, Mr. Xavier 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of Mr. Xavier’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that Mr. Xavier has breached the standards of practice of the profession; and
All documents delivered by Mr. Xavier to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which Mr. Xavier will retain.

Penalty Submissions

Counsel for the College submitted that the proposed joint submission achieved the principles of denunciation of the misconduct, general and specific deterrence, remediation and rehabilitation of the Member, and preservation of the public’s confidence in the regulator’s ability to manage members’ conduct.

The reprimand and suspension support denunciation of the misconduct as well as provide for specific and general deterrence. The suspension along with the employer notification following the Member’s return to practice also serve to protect the public’s confidence in the profession. The meetings with the nursing expert support the Member’s remediation and rehabilitation.

Penalty Decision

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

Mr. Xavier is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
If and when Mr. Xavier obtains an active certificate of registration, the Executive Director is directed to suspend Mr. Xavier’s certificate of registration for three months. This suspension shall take effect from the date Mr. Xavier obtains an active certificate of registration and shall continue to run without interruption as long as he remains in the practising class.
If and when Mr. Xavier obtains an active certificate of registration, the Executive Director is directed to impose the following terms, conditions and limitations on Mr. Xavier’s certificate of registration:

a. Mr. Xavier will attend two meetings with a Nursing Expert (the “Expert”), at his own expense and within six months from the date Mr. Xavier obtains an active certificate of registration. To comply, Mr. Xavier 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, Mr. Xavier provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
[the] Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, Mr. Xavier will review the following College publications and complete the associated Reflective Questionnaires, online learning modules and online participation forms (where applicable):

Professional Standards, and
Medication;

iv. At least seven days before the first meeting, Mr. Xavier will provide 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:

the acts or omissions for which Mr. Xavier was found to have committed professional misconduct,
the potential consequences of the misconduct to Mr. Xavier’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after Mr. Xavier has completed the last session, he will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

the dates Mr. Xavier attended the sessions,
that the Expert received the required documents from Mr. Xavier,
that the Expert reviewed the required documents and subjects with Mr. Xavier, and
the Expert’s assessment of Mr. Xavier’s insight into his behaviour;

b. For a period of 12 months from the date Mr. Xavier returns to the practice of nursing, he will notify his employers of the decision. To comply, Mr. Xavier is required to:

iv. 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;

v. Provide his employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
[the] Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

vi. Ensure that within 14 days of the commencement or resumption of Mr. Xavier’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that Mr. Xavier has breached the standards of practice of the profession; and
All documents delivered by Mr. Xavier to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which Mr. Xavier will retain.

Reasons for Penalty Decision

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 for his actions.

The penalty is within the range imposed by previous panels for similar misconduct. Further, the Panel concluded that the penalty met the requirements of specific and general deterrence, remediation and rehabilitation of the Member and also promoted public confidence in the profession.

I, Catherine Egerton, Public Member, 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:

Samantha Diceman, RPN

Spencer Dickson, RN

Michael Hogard, RPN

Cathy Ward, Public Member