College of Nurses of Ontario v. Stephanie Cowell Desante, 2016 ONCNO 104253

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Catherine Egerton Public Member, Chairperson

Shiraz Irani, RN Member Winsome Plummer, RN Member Desiree Ann Prillo, RPN Member

Devinder Walia Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JESSICA LATIMER for

) College of Nurses of Ontario

• and - )

STEPHANIE COWELL DESANTE ) NO ONE PRESENT for

Registration No. JB05443 ) Stephanie Cowell Desante

) LUISA RITACCA

) Independent Legal Counsel

) Heard: September 20, 2016

DECISION AND REASONS

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

As Stephanie Cowell Desante (the “Member”) was not present, the hearing started 20 minutes after the scheduled time to give the Member and/or her representative time to appear. Upon reconvening the Panel noted that the Member was still not in attendance.

Counsel for the College provided the Panel with evidence that the Member had been sent the Notice of Hearing on May 12, 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 allegations against the Member as stated in the Notice of Hearing dated May 12, 2016, are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended (the “Code”), in that, in or about March 2013 – October 2013, you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for practice assessment.

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code, and defined in subsection 1 (37) of Ontario Regulation 799/93, in that, in or about March 2013 – October 2013, 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, by failing to participate after being selected by the Quality Assurance Committee for practice assessment.

Member’s Plea

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

Overview

The Member is a Registered Practical Nurse who was randomly selected to participate in the 2013 Practice Assessment process as part of the College’s Quality Assurance (QA) program. In March 2013 the Member was notified of the random selection and provided with a letter outlining the particulars. By way of email received October 22, 2015, the Member did submit a self-reflection on continuing competence and laid out a learning plan as required. Unfortunately, this was more than two years too late. She never followed up with the College before the fall of 2015, despite having been given several extensions and warnings.

The Panel found the Member committed professional misconduct by failing to participate in a practice assessment after being selected by the Quality Assurance Committee. The Member was sent various notifications from the College and there was no acknowledgement from the Member until September 2015.

The Panel heard evidence from two witnesses and received 11 exhibits into evidence.

The Evidence

The College’s first witness was the Manager of the Quality Assurance Program at the College since the fall of 2011. The Manager told the Panel that all College members, on an annual basis, are to do a self-reflection to highlight areas of improvement for their professional development. She also explained that every year random members are selected for the Quality Assurance Program.

The witness identified a letter sent to the Member on March 18, 2013 from the College. This letter advised the Member she had been selected to participate in the 2013 Practice Assessment process. It outlined the Quality Assurance Program and the legislative responsibility of all nurses, and also outlined the resources available and contacts.

The witness identified a letter sent to the Member from the College dated July 4, 2013 as a follow up to the previous letter. The follow-up letter gave further information and a direct contact with phone and email information. The witness also noted a new time line of the reflection portion, to be completed by August 2, 2013.

The witness then identified a letter from the College to the Member dated October 28, 2013, advising the Member that nothing had been received by the College and the Member had 14 days to make a written submission to the QA Committee. The witness lastly identified Exhibit #6, which is the address supplied by the Member for all correspondence. It is the responsibility of the Member to keep the College current of any address changes.

The second witness was an investigator for the College who has been employed with the College since 2008. She identified a letter to the Member from the College dated July 31, 2015, advising the Member that the Inquiries, Complaints and Reports Committee had approved the investigation of the Member’s practice as it pertained to allegations of the Member’s failure to cooperate with the Quality Assurance Committee.

The witness also identified correspondence and emails with the Member at Exhibit #9 and #10 from September 14, 2015 and October 20, 2015. The Member did submit her “Reflections on Continuing Competence” and “Learning Plan”, which were received by the College on October 22, 2015. This was more than two years after the original deadline.

Final Submissions

The College submitted that the oral and documentary evidence clearly showed the Member’s lack of regard for participating in the QA program. The College stated that the Member’s repeated failure to comply with the QA Committee contravenes section 82(1)(e) of the Code and constitutes professional misconduct as defined in subsection 51(1)(b.0.1). The College also submitted that the persistent failure of the Member to meet her professional obligations, despite repeated opportunities to do so, shows a lack of professionalism and unwillingness to be governed. The Member’s lack of response fell well below the professional standard and would be considered by members to be both unprofessional and dishonourable.

Decision

The College bears the onus of proving the allegation in accordance with the standard of proof, that being the balance of probabilities and based upon 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 paragraphs 1 and 2 of the Notice of Hearing.

Reasons for Decision

The Member was randomly selected for participation in the 2013 QA program and despite multiple opportunities, she chose not to participate. The Member’s decision not to participate in the QA program for more than two years displayed a serious disregard for her professional obligation and for self-regulation. As a result her behaviour would be considered by members as both unprofessional and dishonourable.

Penalty

Penalty Submissions

The College requested the Panel order a reprimand, a suspension of three months, and various terms, conditions and limitations on the Member’s certificate of registration.

The College provided three cases as comparable examples of previous decisions from other Discipline Committee panels at the College:

• Greenshields v CNO (Discipline Committee, 2014): In Greenshields the member had failed to comply with the QA Committee in 2011. The Panel found this case to closely resemble the actions of this Member in this hearing.

• McLaughlin v CNO (Discipline Committee, 2009): In McLaughlin, the member was randomly selected to complete the Practice Assessment and, after completion of the first phase, was ordered to complete an additional focused component but failed to do so. This case has some relevance as the Member in this hearing did complete the self-reflections two and half years after the original notice from the QA Committee.

• Kaastra v CNO (Discipline Committee, 2011): In Kaastra, the member failed to successfully complete a medication administration course ordered by the QA Committee as a result of complaint. Kaastra involved a targeted order from the QA Committee rather than a random selection. The Panel did not rely as much on this case as it was felt the circumstances were more severe and showed a greater example of a member unwilling to be governed by the College. The penalty in Kaastra was a six-month suspension, which is more severe than the three-month suspension ordered in the other two cases.

Penalty Decision

The Panel makes the following Order:

1. The Member shall 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 from 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, 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;

b) The Member shall participate in the College’s 2017 Quality Assurance program (or the next available cycle) within 24 months from the date the Member’s suspension ends.

4. All documents delivered by the Member to the College or the Expert will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The Panel finds that the noncompliance with the QA Committee after numerous attempts by the QA Committee to contact the Member to be a serious concern. The Member did after a long period of time provide the College with a Reflection Document and a Learning Plan, but the evidence still demonstrates the Member’s lack of respect for the process and need for governability by the College to protect the public.

The Panel believes that the three-month suspension provides specific and general deterrence.

There were no mitigating factors presented by the Member as she was absent from the hearing. The College did note that the Member has no previous discipline history.

The limitations, terms and conditions provide protection for the public, while providing an avenue for the Member to return to practice should she comply with the Panel’s order

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:

Catherine Egerton, Public Member, Chairperson

Shiraz Irani, RN

Winsome Plummer, RN

Desiree Ann Prillo, RPN

Devinder Walia, Public Member