College of Nurses of Ontario v. Kouxova, 2016 ONCNO 104246

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Margaret Tuomi, Chairperson Public Member Terry Holland, RPN Member Shiraz Irani, RN Member Donna Rothwell, RN Member Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for ) College of Nurses of Ontario

• and - ) ) NO REPRESENTATION for ) Tamara Kouxova TAMARA KOUXOVA ) Registration No. 0469882 ) ) JOHANNA BRADEN ) Independent Legal Counsel ) Heard: October 20, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on October 20, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

As Tamara Kouxova (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 and not represented.

Counsel for the College provided the Panel with evidence that the Member had been sent the Notice of Hearing on August 29, 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 Allegation

The allegation against the Member as stated in the Notice of Hearing dated August 29, 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 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 dishonourable or unprofessional, and in particular, you failed to complete the Specified Continuing Education or Remediation Program that you were ordered to complete by a decision of the Inquiries, Complaints and Reports Committee dated December 19, 2014.

Member’s Plea

Given that the Member was not present nor represented, she 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 a Registered Nurse and was registered with the College initially on July 27, 2004. The Member was employed at Rainbow Nursing Registry Toronto and Revera Long-Term Care Centre, Uxbridge, Ontario. The Member was suspended in March 11, 2010 for less than a month for non-payment of fees. She was again suspended on February 19, 2016 for non-payment of fees. On March 21, 2016 the Member’s certificate of registration was administratively revoked for non-payment of fees.

In 2011 the Member was notified that she had been selected to participate in the College’s Quality Assurance program. The Member failed to complete her practice assessment as directed by the Quality Assurance Committee.

The Quality Assurance Committee referred the Member to the Inquiries, Complaints and Reports Committee (the “ICRC”) in January 2013. On February 21, 2013, the Member signed an undertaking with the ICRC to complete her practice assessment. On December 19, 2014, the ICRC issued a letter to the Member ordering that she complete a remediation program and reflective questionnaire, as the Member had failed to comply with the undertaking. The Member was given numerous opportunities to comply with the ICRC’s order of December 19, 2014, however she failed to do so. The Panel found the Member had committed an act of professional misconduct and that with regard to all the circumstances would reasonably be regarded by members of the profession as dishonorable and unprofessional.

The Evidence

The sole witness for the College was [Monitoring Administrator], a Monitoring Administrator for the College since January 2011. The witness identified Exhibits 5-9, which were communications sent to the Member at the Member’s current address on the College’s database. The witness gave an overview of the monitoring process and advised it is the Member’s responsibility to ensure the address on file with the College is current and correct. The witness outlined that all correspondence was sent to the Member’s address on file and is assumed received if not returned to the College. None of the communications mailed to the Member in this matter had been returned to the College.

The Exhibits show as follows.

On December 19, 2014, the Member was sent the decision from ICRC which required her to complete a Specified Continuing Education and Remediation Program (“SCERP”) (Exhibit 5).

On December 24, 2014, the Member received a follow-up letter from the Monitoring Team (Exhibit 6).

On February 19, 2015, the Member received a second reminder follow-up reminding her of the deadline for completion of the SCERP (Exhibit 7).

On March 20, 2015, the Member was sent a letter inviting her to request an extension to the due date of her SCERP (Exhibit 8).

On April 8, 2015, the Member was sent a second invitation to request an extension to complete her SCERP (Exhibit 9).

Each letter from the College included the SCERP instruction sheet and contact information for support staff at the College.

On April 23, 2015, a memo of breach was sent from the Monitoring Administrator to College Intake (Exhibit 10).

Final Submissions

College Counsel submitted that the Panel should find that the Member breached by failing to complete the required SCERP as ordered by the ICRC.

College Counsel submitted that as a result, the Panel should make a finding that the Member’s conduct would reasonably be regarded by members of the profession as unprofessional in that the Member ignored the professional obligation to follow decisions made by her regulatory authority. In addition, College Counsel argued that the Panel ought to find that the conduct would be reasonably regarded as dishonourable given the Member’s disregard for the regulatory process by not completing the SCERP as ordered by the ICRC.

Decision

The Panel after deliberating found that the Member committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professions Procedural Code, and as alleged in Paragraph 1 of the Notice of Hearing.

Specifically, the Panel found that the Member’s actions would reasonably be considered by members of the profession to be dishonourable and unprofessional in that she did not complete the SCERP as ordered.

Reasons for Decision

The Panel was satisfied that the Member was aware of the SCERP and the deadline for completion of the SCERP. In addition, the Member was made aware of at least two opportunities to request an extension for the completion of the SCERP. The Member chose to ignore its importance despite multiple attempts by the College to give her an opportunity to comply. The evidence supporting this was clear, cogent and undisputed. This action was preceded by the Member disregarding the request to complete a practice assessment by the Quality Assurance Committee, a signed undertaking with the ICRC, and finally a breach of the SCERP. The very fact that the Member chose not to comply, questions her governability. It is critical that members recognize the importance of compliance with orders from statutory committees in order to maintain the ability to self-govern.

The Panel found that the Member’s actions would reasonably be considered by members of the profession to be dishonourable and unprofessional. The Member demonstrated a profound lack of professionalism and unwillingness to be governed.

Penalty

The College requested that 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 her own expense and within six months of the date of this Order. If the Expert determines that a greater number of sessions are required, the Expert will advise the Member and write to 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 18 months of the date of the 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 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 her 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 her certificate of registration.

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 reviewed a number of cases from this Discipline Committee that paralleled this case. Specifically, the College provided four cases to illustrate that the proposed penalty is in line with previous decisions.

• CNO v. Cornelius (Discipline Committee, 2014): The member in this case failed to complete a SCERP and received a four-month suspension, a reprimand, and terms, conditions, and limitations on her certificate of registration.

• CNO v. Greenshields (Discipline Committee, 2014): The member in this case failed to complete a SCERP and received a three-month suspension, a reprimand, and terms, conditions, and limitations on her certificate of registration.

• CNO v. Lineses (Discipline Committee, 2014): The member in this case failed to complete a SCERP and received a one-month suspension, a reprimand, and terms, conditions, and limitations on her certificate of registration. In Lineses, the member had admitted her misconduct, participated in the hearing, and entered into an agreed statement of facts and joint submission.

• CNO v. McLaughlin (Discipline Committee, 2009): The member in this case failed to complete specified remedial measures ordered by the Quality Assurance Committee and received a three-month suspension, a reprimand, and terms, conditions, and limitations on her certificate of registration.

As College Counsel reviewed these cases it was evident that there were striking similarities in the cases compared to the hearing before us.

College Counsel once again gave an overview of the College’s communication with the Member with regards to the SCERP and related timelines. The fact that the Member had every opportunity to complete the SCERP and was offered support by College staff is an aggravating factor in this case.

College Counsel asked the Panel to consider that the penalty proposed would serve to protect the public through the suspension and by ensuring that the Member receives appropriate training. This order provides for specific and general deterrence. It also provides remediation for the Member while ensuring that the Member respects the regulatory process and is subject to consequences when failing to comply with an order from a statutory committee. As well, it demonstrates that the College is capable of maintaining the discipline of its members, ensuring that members cannot ignore orders without impunity.

Penalty Decision

The Panel makes the following order as to penalty:

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 her own expense and within six months of the date of this Order. If the Expert determines that a greater number of sessions are required, the Expert will advise the Member and write to 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 18 months of the date of the 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 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 her 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 her certificate of registration.

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 found that the penalty meets the principles of both general and specific deterrence, rehabilitation, and remediation of the Member, as well as protection of the public. The four-month suspension and oral reprimand sends a message to the Member and to the profession that serious attention is given to unprofessional behaviour and that failure to comply with an order by a statutory committee will not be tolerated. The terms, conditions and limitations on the Member’s certificate of registration, including the meetings with a Nursing Expert, will ensure that the Member will undergo remediation and review learning goals, allowing the Member to return to practice should she so choose. Public protection is met through the overall penalty, including the suspension, remediation, and close monitoring of the Member’s practice.

I, Margaret Tuomi, 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:

Terry Holland, RPN

Shiraz Irani, RN

Donna Rothwell, RN

Chuck Williams, Public Member