College of Nurses of Ontario v. Harris, 2016 ONCNO 105666

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tammy Hedge, RPN Chairperson

Dawn Cutler, RN Member Ashleigh Malloy Public Member

Chuck Williams Public Member

Ingrid Wiltshire-Stoby, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for

) College of Nurses of Ontario

• and - )

KAREN J. HARRIS ) NO ONE PRESENT for

Registration No. 7934433 ) Karen J. Harris

) Heard: November 2, 2016

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on November 2, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

As Karen Harris (the “Member”) was not present, the hearing recessed to allow time for the Member to appear. Upon reconvening at 15 minutes past the scheduled start time, the Panel noted that the Member was not in attendance and was not represented.

Counsel for the College provided the Panel with evidence that the Member had been sent the Notice of Hearing on August 30, 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 August 29, 2016, are as follows.

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(20) of Ontario Regulation 799/93, in that while you held a certificate of registration as a Registered Nurse in Ontario, you failed to appear before a panel of the Inquiries, Complaints and Reports Committee (“ICRC”) to be cautioned on August 19, 2015, as ordered by a decision of the ICRC dated May 26, 2015; 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 you held a certificate of registration as a Registered Nurse in 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 with respect to failing to appear before a panel of the ICRC to be cautioned on August 19, 2015, as ordered by a decision of the dated May 26, 2015.

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 Nurse currently registered as non-practising (resigned as of January 19, 2016). A panel of the Inquiries, Complaints, and Reports Committee (“ICRC”) of the College had a meeting on March 25, 2015 after which they sent a letter of caution to the Member and required her to attend an oral caution on August 19, 2015.

The Member failed to appear before the ICRC to be cautioned on August 19, 2015, as ordered by a decision of the ICRC dated May 26, 2015.

As well, it is alleged that the Member 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 failing to appear before a panel of the ICRC to be cautioned on August 19, 2015, as ordered by a decision of the ICRC dated May 26, 2015.

The Panel heard evidence from one witness who identified the key documents and correspondence. As set out more fully below, the Panel found the Member committed professional misconduct as alleged in the Notice of Hearing, including by engaging in conduct that would be regarded by members of the profession to be dishonourable and unprofessional.

The Evidence

Proof that the Notice of Hearing was delivered to the Member was submitted through the affidavit of the College’s Prosecutions Clerk, Professional Conduct.

Witness #1

The Panel heard from the College’s first witness, the Manager of the Complaints Team for the College. After outlining her role with the College, the witness gave an overview of this case.

The College sent a letter out on May 27, 2015 requiring that the Member attend a meeting with the ICRC on August 19, 2015 to receive an oral caution, as outlined in the enclosed decision from the ICRC dated May 26, 2015. The Member was asked to sign and return confirmation of receipt of this letter.

The Member did return correspondence to the College stating that she would not be attending the meeting to receive an oral caution from the ICRC. She did not sign the “Notice of Meeting” letter.

Finally, the witness reviewed an interview summary sheet which described a conversation [the Former Manager of Complaints] had with the Member on August 12, 2015. The witness stated that in that call, according to the interview summary sheet, [the Former Manager of Complaints] explained the process to the Member and what to expect at the oral caution scheduled for August 19, 2015. As well, [the Former Manager of Complaints] had explained to the Member that she had the ability to appeal the ICRC Decision to the Health Professions Appeal and Review Board. The witness also stated that it was recorded in the interview summary sheet that the Member stated that she would not be attending the meeting set for August 19, 2015, and would not appeal the decision.

Final Submissions

College Counsel submitted that the Panel should find the Member guilty of professional misconduct as she failed to attend a meeting with the ICRC on August 19, 2015 to receive an oral caution, and this conduct would be regarded by members of the profession to be dishonourable and unprofessional

College Counsel reviewed the evidence that the Member was aware of the ICRC order to appear at a meeting on August 19, 2015, and the Member deliberately refused to attend by crossing out her request for signature on the form, and writing the words “no intention of attending”. In addition to this, the Panel was reminded that the Manager of Complaints took time to contact the Member by phone on August 12, 2015 to explain the process as well as the appeal process, and the Member once again stated she would not be attending the meeting and would not be appealing the decision of the ICRC.

College Counsel submitted that the College is requesting a finding of unprofessional conduct based on the Member’s disregard for the profession and occupation by ignoring an order by the ICRC, a statutory committee of the College. College Counsel also requested a finding of dishonourable conduct towards the profession, based on the Member’s failure to comply with an order of the statutory committee of the College.

Decision

With the Member not being present, the Panel proceeded under the assumption that the Member pleaded “not guilty”. The Panel proceeded on the basis that the College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

After considering 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. For allegation 2, the Panel finds in particular that the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional.

Reasons for Decision

The first allegation in the Notice of Hearing is:

“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(20) of Ontario Regulation 799/93, in that while you held a certificate of registration as a Registered Nurse in Ontario, you failed to appear before a panel of the Inquiries, Complaints and Reports Committee (“ICRC”) to be cautioned on August 19, 2015, as ordered by a decision of the ICRC dated May 26, 2015.”

The evidence provided by College Counsel and their credible witness, supports the allegation that the ICRC ordered the Member to appear before it on August 19, 2015 to receive a caution, and that the Member was given notice of this decision by the ICRC. In addition to that the Member was contacted by phone (on August 12, 2015) after sending a written notice to the College that she would not be attending the meeting on August 19, 2015.

During this conversation, the Member was given an explanation of the process as well as a description of her right to appeal and the process to follow.

The second allegation in the Notice of Hearing is:

“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 you held a certificate of registration as a Registered Nurse in 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 with respect to failing to appear before a panel of the ICRC to be cautioned on August 19, 2015, as ordered by a decision of the dated May 26, 2015.”

The Panel relied on the evidence presented by College Counsel that supported a finding of behaviour would reasonably be regarded by members of the profession as dishonourable and unprofessional, however it would not be considered disgraceful.

The Member was aware of the ICRC order to appear at a meeting on August 19, 2015 to be cautioned, and the Member deliberately refused to attend by crossing out her request for signature on the form, and writing the words “no intention of attending”. In addition, the Manager of Complaints took time to contact the Member by phone on August 12, 2015 to explain the process as well as an appeal process and the Member once again stated she would not be attending the meeting and would not be appealing the decision of the ICRC.

The behaviour was found to be unprofessional conduct based on the Member’s disregard for the profession and occupation by ignoring an order by the ICRC, a statutory committee of the College. The behaviour was also found by the Panel to be dishonourable conduct towards the profession.

Penalty

Penalty Submissions

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 three 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 one 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;

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 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 Panel directs the Executive Director to suspend the Member’s certificate of registration for three 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 Panel directs the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend one meeting 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:

ii. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

iii. At least seven days before the 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;

iv. 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,

v. 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;

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 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;

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 finds that the penalty imposed is appropriate given the behaviour and conduct of the Member.

In considering protection of the public, the Panel finds this penalty will ensure the public is protected by the Member’s suspension, as well as the Member’s requirement to work with a Nurse Expert if she returns to the profession. This penalty will also ensure that public confidence in the College’s ability to regulate its members is maintained, and specifically within the health professions.

As to maintaining the confidence of the profession, this penalty demonstrates that the College will continue to regulate its members and will not tolerate the disregard for orders from statutory committees by its members. This will serve as a general deterrent to the profession.

Specific deterrents to the Member are found in the recognition that this conduct is viewed as serious misconduct, and failure to comply with an order from one of the profession’s statutory committees will not be tolerated.

The Panel took into consideration the aggravating factors that the Member was given ample opportunity to comply with the ICRC order, and was also made aware of her right to appeal the decision. She did not agree with the ICRC order and chose to ignore it. The Member’s conduct raises serious concerns about her governability.

The Panel also considered the mitigating factor that the Member has been practicing for 37 years without prior discipline issues with the College.

The Panel relied on three cases submitted by College Counsel in its Book of Authorities that provided a basis for this penalty decision.

First, CNO vs. Cornelius (Discipline Committee, July 23, 2014), in which the member failed to complete a SCERP ordered by the ICRC, resulting in a three-month suspension imposed by the Discipline Committee as well as a reprimand and terms, conditions and limitations similar to those ordered here.

Second, CNO vs. Agyekum (Discipline Committee, September 19, 2012) in which the member did appear at the discipline hearing and admitted to failing to appear before an ICRC panel as ordered. This resulted in a three-month suspension as well as a reprimand and terms, conditions and limitations on the member’s certificate of registration.

Finally, CNO vs. Weeks (Discipline Committee, April 22, 2005) in which the member failed to appear before an ICRC panel to be orally cautioned, resulting in a four-month suspension plus a reprimand and terms, conditions and limitations.

Self-regulation is based on members being responsible and accountable for their actions to the College and its statutory committees, and the Panel believes this penalty will serve to support that premise.

I, TAMMY HEDGE, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.

______________________________ Date:______________________

Chairperson, Discipline Panel