College of Nurses of Ontario v. Dhaliwal, 2016 CanLII 104254

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP, Chairperson Catherine Egerton, Public Member George Rudanycz, RN, Member Margaret Tuomi, Public Member Ingrid Wiltshire-Stoby, RN, Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO (Megan Shortreed for College of Nurses of Ontario)

• and -

MANPREET DHALIWAL, Registration No. JH708017 (James Cameron for Manpreet Dhaliwal)

Heard: September 27, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on September 27, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

Order for Publication And Broadcasting Identity Ban

The Panel considered the submissions of the parties and ordered that there be a ban on the publication and broadcasting of the name of the clients referred to in the hearing.

The Allegations

The allegations against Manpreet Dhaliwal (the “Member”) as stated in the Notice of Hearing dated August 29, 2016 are 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(1) of the Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at [the Hospital] in [ ], Ontario (the “Hospital”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to:

a. accessing client [Client B’s] personal health information in electronic medical records, without consent or other authorization, on or about January 28, 2014 at 17:48 hours; and/or

b. accessing client [Client B’s] personal health information in electronic medical records, without consent or other authorization, on or about July 7, 2014 at 17:15 hours; and/or

c. accessing client [Client A’s] personal health information in electronic medical records, without consent or other authorization, on or about July 3, 2014 at 10:26 hours; and/or

d. accessing client [Client A’s] personal health information in electronic medical records, without consent or other authorization, on or about July 7, 2014 at 16:32 hours and 17:17 hours; and/or

2. 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 employed as a Registered Practical Nurse at the Hospital, 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 with respect to:

a. accessing client [Client B’s] personal health information in electronic medical records, without consent or other authorization, on or about January 28, 2014 at 17:48 hours; and/or

b. accessing client [Client B’s] personal health information in electronic medical records, without consent or other authorization, on or about July 7, 2014 at 17:15 hours; and/or

c. accessing client [Client A’s] personal health information in electronic medical records, without consent or other authorization, on or about July 3, 2014 at 10:26 hours; and/or

d. accessing client [Client A’s] personal health information in electronic medical records, without consent or other authorization, on or about July 7, 2014 at 16:32 hours and 17:17 hours.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 1(b), 1(c), 1(d), 2(a), 2(b), 2(c), and 2(d) 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 and the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Manpreet Dhaliwal (the “Member”) obtained a diploma in nursing from [ ] in 2008 and a degree in nursing from [ ] in 2014.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on June 26, 2008.

3. The Member was employed at [the Hospital] from January 5, 2009 to October 23, 2014 when her employment was terminated as a result of the incidents described below.

THE HOSPITAL

4. The Hospital is located in [ ], Ontario.

5. The Member worked in the Pre-Admission Unit (the “Unit”), as a part-time staff nurse on the day and evening shift.

6. The Unit was a clinic for clients having planned, elective surgery. Clients attended the Unit for screening, pre-operative blood work and tests.

HOSPITAL POLICIES

7. The Member signed the Hospital’s Confidentiality Agreement on November 11, 2008. In doing so, the Member agreed to:

…observe and comply with all policies and procedures of [the Hospital] with respect to privacy, confidentiality and security.

Except when I am legally authorized to do so and as required in the proper and faithful discharge of my duties of responsibilities, I will not access, use or disclose confidential information that comes to my knowledge or possession by reason of my employment…

8. The Hospital’s policy on “Protection of Personal Health Information” defines an unwarranted access as “any access to information by someone who does not have authorized purpose, justification or legal authority.”

9. The Hospital’s policies adopt the “Circle of Care” analysis of the Information and Privacy Commission.

10. The Member had taken the Hospital’s Privacy and Security course twice before the incidents described below.

COLLEGE STANDARDS

11. The College issued a Practice Standard titled Confidentiality and Privacy – Personal Health Information (“Practice Standard”). It was first published in 2004 and updated in 2009. It largely addresses the Personal Health Information Protection Act, 2004 (“PHIPA”).

12. The Practice Standard begins with a general statement about the purpose of practice standards:

Nursing standards are expectations that contribute to public protection. They inform nurses of their accountabilities and the public of what to expect of nurses. Standards apply to all nurses regardless of their role, job description or area of practice.

13. The Practice Standard provides key indicators nurses can use to ensure they are meeting the standard, including:

The nurse meets the standard by:

• seeking information about issues of privacy and confidentiality of personal health information;

• maintaining confidentiality of clients’ personal health information with members of the healthcare team, who are also required to maintain confidentiality, including information that is documented or stored electronically;

• maintaining confidentiality after the professional relationship has ended, an obligation that continues indefinitely when the nurse is no longer caring for a client or after a client’s death;

• ensuring clients or substitute decision-makers are aware of the general composition of the health care team that has access to confidential information;

• collecting only information that is needed to provide care;

• not discussing client information with colleagues or the client in public places such as elevators, cafeterias and hallways;

• accessing information for her/his clients only and not accessing information for which there is no professional purpose;

• safeguarding the security of computerized, printed or electronically displayed or stored information against theft, loss, unauthorized access or use, disclosure, copying, modification or disposal;

• not sharing computer passwords; …

14. The Member acknowledges that she was bound by the College’s Practice Standard and that a nurse who breaches those standards, and the statutory obligations set out in PHIPA, is subject to discipline by the College.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

[Client A]

15. [Client A] was admitted to the Hospital on June 17, 2014 after cutting himself on the neck. He was 20 years old at the time.

16. Client A had a history of paranoid delusions, schizophrenia and suicidal ideations and intent. He was treated in [the Unit] at the Hospital. The Member had no involvement with this unit, or its patients.

17. On June 26, 2014, Client A committed suicide while under a “close observation” at the Hospital. He went unseen by staff for three hours before his body was discovered hanging from the ceiling of the shower room at 16:50. A Code Blue was called, but he could not be revived and was pronounced dead at 17:15.

18. In October 2014, in light of press coverage of privacy-related incidents at another hospital, the Hospital conducted an internal audit of its electronic document system, MediTech, with respect to accesses to Client A’s health record.

19. The audit revealed that the Member accessed Client A’s personal health record following his death.

20. Specifically, the Member accessed Client A’s personal health record on:

21. July 3, 2014 at 10:26 hours, for a minute and a half,

22. July 7, 2014 at 16:32 hours, for a minute and a half, and

23. July 7, 2014 at 17:17 hours, for 6 minutes and a half.

24. The Member accessed Client A’s health records, patient care notes and diagnostic imaging, all of which contained personal health information within the meaning of the PHIPA.

25. The Member was never in Client A’s circle of care, and she did not provide care to him during his admission to the Hospital.

[Client B]

23. [Client B] is the Member’s [relative]. The Member is listed as his next-of-kin on the Patient Inquiry form in his health record.

24. Client B made outpatient visits to the Hospital on August 13, 2013 and May 21, 2014, neither of which was to the Unit where the Member worked.

25. In the course of conducting the audit and subsequent investigation into the Member’s access of Client A’s health record, the Hospital learned that the Member also accessed her [relative’s] health record on two occasions.

26. The audit record showed that the Member accessed Client B’s personal health record on January 28, 2014 at 17:48 hours, for six seconds, and again on July 7, 2014, at 17:15 hours, for one minute and nine seconds. At those times, Client B was not a patient of the Hospital.

27. In particular, the Member accessed Client B’s orders, diagnostic imaging and visit history, all of which contained personal health information within the meaning of PHIPA.

28. The Member was never in Client B’s circle of care, and she did not provide care to him on either visit to the Hospital.

29. During the Hospital’s investigation, the Member denied accessing this Client’s file. In her response to the College, the Member admitted that she accessed Client A and Client B’s personal health records without consent or proper authorization. The Member expressed regret and acknowledged that her actions were a serious violation of client confidentiality.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

30. The Member admits that her unauthorized accesses to Client A and Client B’s personal health information, set out in paragraphs 15 to 29 above, constitutes a breach of the College’s standard on Confidentiality and Privacy – Personal Health Information.

31. The Member admits that she committed the acts of professional misconduct as alleged in the following paragraphs of the Notice of Hearing:

• 1(a), (b), (c) and (d), in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession; and

• 2(a), (b), (c) and (d), in that she 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 and unprofessional.

Decision

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 1(c), 1(d), 2(a), 2(b), 2(c) and 2(d) of the Notice of Hearing. As to allegation #2(a), 2(b), 2(c), and 2(d), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional.

Reasons for Decision

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

Allegation #1 (a) in the Notice of Hearing is supported by paragraphs 25, 26, 27, 28, 29 and 30 in the Agreed Statement of Facts.

Allegation #1(b) in the Notice of Hearing is supported by paragraphs 25, 26, 27, 28, 29 and 30 in the Agreed Statement of Facts.

Allegation #1(c) in the Notice of Hearing is supported by paragraphs 18, 19, 20, 21, 22 and 30 in the Agreed Statement of Facts.

Allegation #1(d) in the Notice of Hearing is supported by paragraphs 18, 19, 20, 21, 22 and 30 in the Agreed Statement of Facts.

Allegation #2(a) in the Notice of Hearing is supported by paragraphs 25, 26, 27, 28, 29 and 31 in the Agreed Statement of Facts.

Allegation #2(b) in the Notice of Hearing is supported by paragraphs 25, 26, 27, 28, 29, and 31 in the Agreed Statement of Facts.

Allegation #2(c) in the Notice of Hearing is supported by paragraphs 18, 19, 20, 21, 22 and 31 in the Agreed Statement of Facts.

Allegation #2(d) in the Notice of Hearing is supported by paragraphs 18, 19, 20, 21, 22 and 31 in the Agreed Statement of Facts.

With respect to Allegations #2(a), 2(b), 2(c) and 2(d), the Panel finds that the Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations as the conduct fell below the standards of practice of the profession. The Member’s persistence showed disregard for the privacy of the patients.

The Panel also finds the Member’s conduct was dishonourable. The Member’s conduct demonstrated a moral failing in that she accessed personal health information for unauthorized files to her practice which included a member of her family.

Penalty

Counsel for the College and the Member advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission 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 two meetings with a Nursing Expert (the “Expert”), at her 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, online learning modules and online participation forms (where applicable):

1. Professional Standards,
2. Confidentiality and Privacy - Personal Health Information

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires,

vi. 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;

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 her 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 her certificate of registration;

b) For a period of 18 months from the date that this Order becomes final, the Member will notify her 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 her 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

Submissions were made by College Counsel. The Member’s Counsel indicated that he agreed with those submissions.

The parties agreed that the mitigating factors in this case were:

• The Member admitted to allegations and cooperated with the College after initially denying the allegations;

• The Member showed obvious remorse and a willingness to attend two meetings with a nursing expert at her own expense; and

• The Member has never appeared before the Discipline Committee in the past.

The aggravating factors in this case were:

• The Member accessed more than one patient file;

• The Member initially denied the allegations; and

• The seriousness of the allegations and that the Member accessed health records belonging to her family member.

The proposed penalty provides for general deterrence through a three-month suspension as it conveys to the Member and the profession the serious breach of confidence and trust that unauthorized access of client records represents.

The proposed penalty provides for specific deterrence through the oral reprimand, the three-month suspension and the 18 month period of employer notification.

The proposed penalty provides for remediation and rehabilitation through the terms, conditions and limitations, including the meetings with a nursing expert.

Overall, the public is protected because the Member will attend meetings with a nursing expert to discuss and reflect on this specific act of professional misconduct, and for a period of 18 months after return to practice the Member’s employer(s) will be aware of the panel’s findings.

Counsel submitted two cases to the panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

CNO v. Smith (Discipline Committee 2008). In this case the member accessed a client’s record on several occasions and disclosed information about the client without consent. This case proceeded by way of Agreed Statement of Facts and Joint Submission on Order and the penalty included a six-week suspension.

CNO v. Calvano (Discipline Committee 2015). In this case the member had accessed approximately 338 medical records without consent. This case proceeded by way of Agreed Statement of Facts and Joint Submission on Order and the penalty included a three-month suspension.

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 two meetings with a Nursing Expert (the “Expert”), at her 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, online learning modules and online participation forms (where applicable):

1. Professional Standards,
2. Confidentiality and Privacy - Personal Health Information

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires,

vi. 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;

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 her 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 her certificate of registration;

b. For a period of 18 months from the date that this Order becomes final, the Member will notify her 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 her 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.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

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. The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. It is the obligation of every nurse to protect every client’s right to privacy and when one disregards this important responsibility, it casts doubt upon and damages the trust that the public places in the nursing profession. Members of the profession must have heightened awareness of potential breaches of confidentiality due to changes in technology and the increased accessibility of private information. The penalty is in line with what has been ordered in previous cases.

I, Grace Fox, NP, 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 George Rudanycz, RN Margaret Tuomi, Public Member Ingrid Wiltshire-Stoby, RN