College of Nurses of Ontario v. Soriano, 2016 ONCNO 102074

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Catherine Egerton, Public Member Chairperson

Samantha Diceman, RPN Member

Shiraz Irani, RN Member Robert MacKay Public Member

Susannah McGeachy, NP Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JESSICA LATIMER for

) College of Nurses of Ontario

• and - )

JAN JASPER SORIANO ) LONNY J. ROSEN for Registration No. 08356744 ) Jan Jasper Soriano

) Heard: February 29, 2016

DECISION AND REASONS

This matter came on for hearing before a Panel of the Discipline Committee on February 29, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Jan Jasper Soriano (the “Member”) as stated in the Notice of Hearing dated October 27, 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 on January 28, 2014, in the Ontario Court of Justice [ ], you were found guilty of offences relevant to your suitability to practise nursing, as follows:

(a) on or about the 13th day of September in the year 2013 [ ], you did have in your possession a weapon, to wit, a knife, for the purpose of committing an offence, contrary to the Criminal Code of Canada; and/or

(b) on or about the 14th day of September in the year 2013 [ ], you did commit an assault [ ], contrary to the Criminal Code of Canada.

Member’s Plea

The Member admitted the allegations set out in paragraph 1 (a) and 1(b) of the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. In addition, the Panel conducted an oral plea inquiry and was satisfied that the Member’s admissions were 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.

THE MEMBER

1. Jan Jasper Soriano (the “Member”) obtained a degree in nursing [ ] in 2008.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on June 24, 2008.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Finding of Guilt on January 28, 2014

3. On September 13, 2013, the Member arrived home from work and engaged in a heated discussion with his common-law [partner] during which he charged at her and caused her to fall to the ground, then grabbed her by the throat and dragged her to the couch in the living room. The Member then retrieved a knife from the kitchen, returned to the living room and pointed it at [his partner] in a stabbing motion, but did not touch [his partner] with the knife.

4. [The Member’s partner] retreated to her bedroom but did not call the police.

5. On September 14, 2013, the Member and [his partner] were at home discussing ending their common-law relationship. The argument got heated and the Member was yelling and swearing. He then grabbed an object and stated, “I feel like smashing your head in with something.” The Member then grabbed [his partner] by the throat and struck her head on the armrest of the couch.

6. [The Member’s partner] retreated to the bedroom and said she was calling the police. The Member stated back, “Well, I’ll slit your throat.” The Member then kicked down the door and attempted to take the phone from his [partner]. The police arrived and placed the Member under arrest.

7. On January 28, 2014, the Member pled guilty to two offences related to the September 13 and 14, 2013, incidents: possession of a dangerous weapon, pursuant to section 88(1) of the Criminal Code of Canada (“Criminal Code”), and assault, pursuant to section 266 of the Criminal Code.

8. On April 2, 2014, the Member was sentenced. He received a conditional discharge and probation for two years. In addition, the Member was ordered to have no contact with his [ex-partner], no possession of weapons, to attend and actively participate in all assessments, counselling or rehabilitative programs directed by his probation officer and 120 hours of community service. The Member’s DNA was added to the National DNA Data Bank and he was prohibited from owning or carrying a weapon for five years.

9. On April 11, 2014, the Member self-reported the finding of guilt to the College.

10. If the Member were to testify, he would say that he is very remorseful about the incidents that led to his finding of guilt and that he has taken significant steps to remediate since then, including rehabilitative programs for anger management, domestic violence and stress management.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

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

12. The Member further admits that he was found guilty of possession of a dangerous weapon and assault on January 28, 2014, and that the findings of guilt are relevant to his suitability to practise.

13. The Member admits that he committed the acts of professional misconduct as described above in paragraphs 3 to 10, and as alleged in paragraphs 1(a) and (b) in the Notice of Hearing.

Decision

The Panel considered and accepted the Agreed Statement of Facts. Having accepted the Agreed Statement of Facts, the Panel found that the facts support a finding of professional misconduct. In particular, the Panel found that the Member committed an act of professional misconduct as alleged in paragraph 1(a) and 1(b) in the Notice of Hearing in that he was found guilty of offenses relevant to his suitability to practise nursing, those being (1) possession of a weapon for the purpose of committing an offence and (2) assault.

Reasons for Decision

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

Allegation 1(a) is supported by paragraphs 3, 7, 10, 11, and 12 in the Agreed Statement of Facts.

Allegation 1(b) is supported by paragraphs 5, 7, 10, 11, and 12 in the Agreed Statement of Facts.

The Member pled guilty and received a conditional discharge relating to two offences, specifically, possession of a dangerous weapon, pursuant to section 88(1) of the Criminal Code of Canada, and assault, pursuant to section 266 of the Criminal Code of Canada. As the Member admits, the conditional discharge constitutes a finding of guilt for the purposes of the Health Professions Procedural Code. Hence, the only consideration for the Panel was whether the Member’s offences are relevant to his suitability to practise nursing. The Panel concluded that the Member’s threatening behavior and physical assault of his domestic partner, while it did not occur in the workplace, is highly relevant to the Member’s suitability to practise in that it displayed poor judgment, lack of self-control, and a capacity for violent acts which stands in stark opposition to the caring, protecting, and healing goals and values characteristic of the nursing profession.

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 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 two 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 at least one, and no more than two, meetings with a Nursing Expert (the “Expert”), at his own expense and within six months from the date that this Order becomes final. 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 and online participation forms (where applicable):

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, 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. Following the first meeting, the Expert will decide if a second meeting with the Member is required. If a second meeting is not required, the Expert will provide written confirmation that one meeting was sufficient to address the Member’s insight.

vii. 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;

viii. 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’s suspension ends, 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

Counsel for the College submitted that the proposed order strikes an appropriate balance by adequately addressing the goals of public protection, remediation, general deterrence, and specific deterrence, while maintaining fairness to the Member. Counsel reminded the Panel that that the Panel is generally expected to accept the joint submission on order unless it is clearly contrary to the public interest or falls sufficiently outside the range of reasonable penalties so as to call the administration of justice at the College into disrepute.

Counsel highlighted aggravating and mitigating factors of the case. Aggravating factors include the serious nature of the offences, which involved acts of violence, the repeated nature of the offences, showing lack of self-restraint, and that these actions reflect poorly on the profession of nursing. Mitigating factors include the actions taken by the Member since the incident which demonstrate significant remorse. These actions include accepting responsibility by pleading guilty during criminal proceedings, self-reporting the findings of guilt to the College, cooperating with the discipline proceedings and completion of additional counseling since the time of the incidents regarding anger management, domestic violence, and stress management.

Counsel for the College submitted that the proposed order adequately addresses penalty goals including general deterrence, specific deterrence, rehabilitation, and public protection. Specifically, the two-month suspension and publication of findings meet the requirement of general deterrence by sending a clear message to professional members that this conduct is serious and will not be tolerated within the nursing profession. College Counsel submitted that the oral reprimand, two-month suspension, and employer notification period also provide specific deterrence for the Member himself, ensuring against engaging in similar conduct in future. The goal of rehabilitation is met through the proposed terms, conditions, and limitations including review of a College standard, expert meeting(s), reflective exercise and development of a learning plan. College Counsel submitted that the goal of public protection is adequately met through the proposed suspension and employer notification period.

Counsel for the Member agreed with College Counsel’s submissions and highlighted additional specific mitigating factors relating to the Member. Counsel reiterated that since the time of the incidents the Member had engaged in rehabilitative counseling in anger management, domestic violence, and stress management. Counsel submitted that the Member had engaged in a number of sessions with a psychotherapist and that his therapist noted that the Member was actively engaged in these and had a positive attitude towards the therapeutic relationship. Counsel submitted that the Member now recognizes that he was under heavy stress due to working seven days per week at the time of the incident, and has taken steps to recognize, avoid, and cope with stress appropriately since that time. Counsel also submitted that after the Member self-reported his finding of guilt to the College, his supervisors wrote letters of support to the College, noting that this behavior was “completely out of character” for the Member. Furthermore, Counsel submitted that the criminal court judge, in his decision, noted that he had no concerns regarding the Member posing a risk to future [clients], on account of the treatment the Member had undergone since the time of the incidents. Counsel reminded the Panel again that the joint submission on order should be accepted unless it is contrary to the public interest.

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 two 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 at least one, and no more than two, meetings with a Nursing Expert (the “Expert”), at his own expense and within six months from the date that this Order becomes final. 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 (where applicable):

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. Following the first meeting, the Expert will decide if a second meeting with the Member is required. If a second meeting is not required, the Expert will provide written confirmation that one meeting was sufficient to address the Member’s insight;

vii. 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;

viii. 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’s suspension ends, the Member will notify his employers of the decision. To comply, the Member 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:

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;

vi. 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 considered the Joint Submission as to Order and concluded that the proposed penalty is reasonable and in the public interest.

The Panel believes that the penalty provides for the goals of general and specific deterrence and sends a message to the Member and the professional membership at large that threatening and violent behavior, even outside the work context, is completely unacceptable, and casts serious doubt on the Member’s judgment, self-control, and suitability to the profession of nursing. However, the Panel was reassured that the Member accepted responsibility for his actions in cooperating with both the criminal and professional discipline proceedings, and seeking counseling and support following the incidents.

The suspension and period of employer notification provide specific and general deterrence. The employer notification period and educational review with nursing expert meetings provide for public protection by ensuring the Member is monitored and supported following his return to practice. Meetings with the nursing expert, standards review, and online learning modules provide the Member opportunity for remediation and support safe return to practice for the Member and the public.

Neither Counsel for the College nor Member’s Counsel provided the Panel with any similar cases from this College or other health regulatory colleges to demonstrate a range of reasonable penalty outcomes. This was a concern for the Panel, as it leaves this panel without means of ensuring the proposed penalty falls within the range of reasonable outcomes based on previous decisions of the Discipline Committee. Nevertheless, this Panel is cognizant of its responsibility to generally accept joint submissions on order unless they fall so far outside the range of reasonable outcomes so as to be contrary to the public interest or call the establishment of justice into disrepute. In considering this joint submission on order, the Panel did not find this to be the case. Although the Panel was concerned that a two-month suspension is short given the seriousness of the Member’s misconduct, the Panel appreciates the mitigating factors in the case highlighted by both College Counsel and Member’s Counsel. The Panel ultimately accepted that the proposed penalty package is not outside the realm of the reasonable.

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

Shiraz Irani, RN

Robert MacKay, Public Member

Susannah McGeachy, NP