College of Nurses of Ontario v. Gurwinderjit Singh, 2016 CanLII 104244

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Susan Roger, RN Chairperson Catherine Egerton Public Member Carly Gilchrist, RPN Member Desiree Ann Prillo, RPN Member Catherine Ward Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO Alysha Shore for College of Nurses of Ontario

• and -

GURWINDERJIT SINGH Registration No.AA790467 No representation for Gurwinderjit Singh

ANDREA GONSALVES Independent Legal Counsel

Heard: October 24, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on October 24, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

As Gurwinderjit Singh (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not in attendance.

College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing on June 07, 2016. The Panel was satisfied that the Member had received adequate notice of the time, date, place and nature of the hearing, and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegation against the Member as stated in the Notice of Hearing dated June 06, 2016, is 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(37) of Ontario Regulation 799/93, in that while registered as a Registered Practical Nurse in the Province of 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, and in particular you failed to:

(a) complete the Specified Continuing Education or Remediation Program that you were ordered to complete by a decision of the ICRC dated March 12, 2015.

Member’s Plea

Given that the Member was not present nor represented, he was deemed to have denied the allegation in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegation in the Notice of Hearing against the Member.

Overview

The Member was initially registered as a Registered Practical Nurse with the College on April 14, 2011. The Member’s status was administratively revoked at the time when the Inquires, Complaints, and Reports Committee (“ICRC”) of the College received notice from the Quality Assurance Committee (“QAC”) that the Member had not complied with his Practice Assessment from March 18, 2013. The ICRC sent notice to the Member that in light of his failure to comply with the directions of the QAC, a Specified Continuing Education or Remediation Program (“SCERP”) was to be completed. The SCERP included:

• A review of College’s Professional Standards;
• Completion of the College’s online learning module with respect to the Professional Standards;
• A “Reflective Questionnaire”; and
• A meeting with an approved regulatory expert.

The College alleges that the Member did not compete the SCERP within the timeline provided.

The issues are as follows:

(a) Was the Member aware of the ICRC decision dated March 12, 2015 and the SCERP requirements imposed upon him as specified in the ICRC decision?

(b) Did the Member fail to complete the SCERP?

(c) Did the Member commit professional misconduct by engaging in conduct that would be considered by members of the profession to be dishonourable and unprofessional by failing to complete the SCERP?

The Evidence

The College’s one witness was [ ]a Monitoring Administrator at the College since January 2011. [The Monitoring Administrator] was previously an ICRC Administrator. In her current role as Monitoring Administrator[ ] sent the correspondence and monitored the responses in this matter.

She testified that the letters at Exhibit # 6, 7, 9 and 11 were issued by her to the Member’s current address on file by way of regular mail as per the College’s usual practice.

These letters included:

(a) A letter to the Member dated March 12, 2015 with the Decision of the ICRC and the details of the SCERP requirements to be completed.

(b) A letter to the Member dated May 15, 2015 as a follow up and reminder that the SCERP was to be completed by June 12, 2015.

(c) A letter to the Member dated June 08, 2015 noting that a phone message from the Member had been received and that as a result the Member’s SCERP due date had been extended to June 22, 2015.

(d) A letter to the Member dated June 24, 2015 which acknowledged a letter from the Member received by the College on June 21, 2015, and requested that the Member submit his SCERP or request for an extension by July 07, 2015.

The witness further confirmed that a phone message from the Member was received on June 08, 2015 at 10:22 a.m. and when she returned the call at 11:46 a.m. there was no answer or voicemail. The witness also confirmed an email with an attached letter from the Member dated June 21, 2015 which lead to her sending the letter dated June 24, 2015 to clarify the Member’s intention and possible extension. The letter from the Member at Exhibit #10 did not request an extension and no supporting documents were included to indicate an intention to complete the SCERP.

Final Submissions

College Counsel submitted a Book of Authorities containing three cases for the Panel’s consideration, showing how other panels of the Discipline Committee have characterized a member’s failure to complete a SCERP.

CNO v McLaughlin (Discipline Committee, June 2009). The case is similar in that the member did not complete specified remedial measures ordered by the QAC and the file was referred from ICRC to the Discipline Committee. The panel in that case found that the member’s failure to comply with the directives of the QAC would reasonably be regarded by members as dishonourable and unprofessional.

CNO v Cornelius (Discipline Committee, July 2014). This case is similar in that it also involves a member who failed to complete a SCERP after being given several opportunities to comply. The panel found this failure would reasonably be regarded by members as dishonourable and unprofessional.

CNO v Szabo (Discipline Committee February 2015). This case, as in the other two presented, showed that the member was given ample opportunities to complete a SCERP, but showed total failure to engage in the process. The panel found this would reasonably be regarded by members as dishonourable and unprofessional.

College Counsel submitted that the Panel should make a finding that the Member’s conduct would reasonably be regarded by the members of the profession as unprofessional in that the Member ignored his professional obligation to follow decisions made by the Quality Assurance Committee. The Member did not attempt to rectify his situation by doing the SCERP or submitting for an extension with the ICRC. College Counsel also argued that the Member’s lack of governability and respect for the profession displayed conduct that would be regarded as 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 on 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 paragraph 1(a) of the Notice of Hearing. In particular, the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional by failing to complete the SCREP as ordered by the ICRC in its written decision dated March 12, 2015.

Reasons for Decision

The Panel was satisfied that the Member was aware of the SCERP and the deadline for completion and that he chose not to comply with the request from ICRC. Submitted exhibits satisfied the Panel that had the Member had received the mailings from the College in that he made contact with the College and sent a letter via email.

Compliance with orders from any of the statutory committees is key to maintenance of the College’s ability to self-govern. For this reason, the Panel finds the Member’s conduct would be reasonably regarded as dishonourable and unprofessional. This behaviour shows a lack of professionalism and unwillingness to be governed by the College.

Penalty

The College requested 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 the Member obtains an active certificate of registration 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 a minimum of two meetings with a Nursing Expert (the “Expert”) at his own expense and within six months from the date that this Order becomes final. If the Expert determines that a greater number of session are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 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, 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 (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. 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 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; and

4. 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

College Counsel submitted that there are three interests to consider with respect to penalty and they include the public, the profession and the Member. There is a need to maintain public confidence in self-regulation, a need for general deterrence for the profession as whole and a need for specific deterrence for the Member of the College. The Panel should also consider the particular situation and the circumstances when deciding on a penalty. The Panel should consider the seriousness of the Member not adhering to the direction of the ICRC that the Member complete a SCERP.

The aggravating factors also have to be noted. The Member had many opportunities to comply with the request and choose not to. This brings into question the governability of the Member.

Mitigating factors included that the Member had no prior discipline proceedings with the College. The Member did not participate in the discipline process which in itself is not punishable however it does leave the panel without any insight into the surrounding circumstances.

The College submitted that the proposed penalty will restore confidence in the profession by the public and act as a rehabilitative method as the Member will be required to have meetings with an expert in nursing and complete the necessary requirements as directed by the ICRC.

Penalty Decision

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 four months. This suspension shall take effect from the date the Member obtains an active certificate of registration 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 a minimum of two meetings with a Nursing Expert (the “Expert”) at his own expense and within six months from the date that this Order becomes final. If the Expert determines that a greater number of session are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 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, 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 (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. 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 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; and

4. 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 reviewed the cases and noted that the penalties ranged from two to four months. The Panel found that a four month suspension reflected the seriousness of this case. The Member had the opportunity to comply with the College’s repeated requests for compliance and his lack of governability is of a serious concern. The Member’s persistent disregard for his obligations to the regulatory process is of grave concern. The penalty sends a clear message to the membership that failing to comply with an order from a statutory committee of the College is serious and will not be tolerated.

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:

Susan Roger RN Chairperson Date

Panel Members:

Catherine Egerton, Public Member

Carly Gilchrist, RPN

Desiree Ann Prillo, RPN

Catherine Ward, Public Member