College of Nurses of Ontario v. Dinsmore, 2016 ONCNO 106929

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Tammy Hedge, RPN Chairperson

Renate Davidson Public Member

Desiree Ann Prillo, RPN Member George Rudanycz, RN Member

Devinder Walia Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JESSICA LATIMER for

) College of Nurses of Ontario

• and - )

) NO REPRESENTATION for

) Hilda Dinsmore

HILDA DINSMORE )

Reg. No. GI05854 )

) LUISA RITACCA

) Independent Legal Counsel

) Heard: August 3, 2016

DECISION AND REASONS

This matter came on for hearing before a panel (“the Panel”) of the Discipline Committee on August 3, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

The hearing was scheduled to start at 9:30 a.m. Commencement of the hearing was delayed. When the hearing started at approximately 9:40 a.m., the Panel noted that Hilda Dinsmore (the “Member”) was not in attendance and not represented. The Panel was satisfied by the evidence before it that the Member had received adequate notice of the time, date, place and nature of the hearing, and of the consequences of not attending the hearing. The Panel therefore proceeded with the hearing in the Member’s absence.

The Allegations

Counsel for the College advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 2 and 4 of the Notice of Hearing dated March 7, 2016 as they were repetitions of allegations 1 and 3. The Panel granted this request. The remaining allegations set out in the Notice of Hearing are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that on February 26, 2015, in the Ontario Court of Justice in Brantford, Ontario, you were found guilty of offences relevant to your suitability to practise, as follows:

(a) between the 29th day of January in the year 2013 and the 9th day of February in the year 2013 at the City of Brantford in the said Region, did by deceit, falsehood or other fraudulent means defraud [ ] of money in the sum of $4400.00 by cashing Visa cheques belonging to [the Client], contrary to section 380(1) of the Criminal Code of Canada; and

(b) on the 29th day of January in the year 2013 at the City of Brantford in the said Region, did knowingly use a forged document to wit a [ ] Visa cheque [ ] belonging to [the Client], as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.

2. [Withdrawn]

3. 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 paragraph 1(8) of Ontario Regulation 799/93, in that, while practicing as a Registered Practical Nurse at St. Joseph’s Lifecare Centre in Brantford, Ontario, you misappropriated property from a client or workplace in that, in or about January to February 2013, you misappropriated cheques from the client, [the Client], and/or attempted to deposit those cheques into your personal bank account.

4. [Withdrawn]

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 initially registered with the College on January 1, 1979. The Member was an employee of St. Joseph’s Lifecare Centre in Brantford, Ontario. The Member was charged with defrauding a bank and forging a document between January 29, 2013 and February 9, 2013 for a sum totalling $4,400. The Member plead guilty to these charges. The issues are as follows:

(a) was the Member found guilty of offences relevant to her suitability to practice in that she cashed forged cheques belonging to a client; and

(b) did the Member commit an act of professional misconduct by misappropriating property (namely cheques) from a client.

The Panel found that the Member committed professional misconduct as alleged in the Notice of Hearing.

The Evidence

The Panel was presented with 5 exhibits and heard from one witness.

Witness – [Witness A]

[Witness A] is a Prosecutions Assistant with the College. She identified Exhibit 3 and confirmed that it was in fact the registration page of the Member’s public record with the College, indicating that the Member is not currently entitled to practise as her Certificate of Registration had been revoked on March 20, 2015.

Exhibit 4

The Panel reviewed the certified copy of the information from the Ontario Court of Justice which clearly demonstrated that the Member made an admission of guilt to counts 1 and 3 of the charges related to forging documents and misappropriating property.

Exhibit 5

College Counsel submitted Exhibit 5 to the Panel for consideration. This exhibit is the certified transcript of the Plea Proceedings from the Ontario Court of Justice.

This evidence makes out allegations of professional misconduct and the Member was found guilty of said allegations.

Final Submissions

College Counsel submitted that upon reviewing the facts in Exhibits 4 and 5, the conduct was admitted by the Member. She was working at the facility when she stole three cheques from the client and deposited or attempted to deposit those funds into her bank account. This evidence is uncontradicted and shows she was found guilty. This conduct is clearly relevant to the Member’s suitability to practise as the offences were repetitive, included dishonesty and took place in the workplace. They were committed against a vulnerable client.

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 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 3 of the Notice of Hearing. In particular, the Member engaged in conduct relevant to her suitability to practise when she defrauded a banking institution using a forged document as if it were genuine and misappropriating cheques from a client and attempting to deposit those cheques into her personal bank account. The Member admitted to this conduct at her criminal proceedings.

Reasons for Decision

The Panel found the evidence to be clear, cogent and convincing. The Panel was comfortable determining that on the balance of probabilities the Member committed acts of professional misconduct as alleged in the Notice of Hearing. The criminal offences at issue clearly relate to her suitability to practise, as she stole cheques from a client and forged them.

Penalty Submissions

College Counsel submitted that there three perspectives that should be taken into account when crafting a penalty: the public interest, the profession’s interest, and the Member’s interest.

Five factors to consider are:

1. Protection of the public, which is the College’s preeminent duty;

2. Maintenance of the public’s confidence in the College to self-regulate;

3. General deterrence;

4. Specific deterrence; and

5. The Member’s circumstances.

The Member’s conduct was serious and involved a breach of trust. The client, [the Client], was vulnerable, suffering from severe dementia and unable to write or speak at the time the misconduct occurred. The Member committed this misconduct for her own personal gain. The Member did not admit her actions to the College and was only caught when the family reviewed the client’s bank accounts while settling her estate.

This conduct brings discredit to the profession as a result. All of these facts are aggravating factors and favour a significant penalty.

The Member did not participate in the College’s proceedings and while the Member cannot be punished for this, the lack of participation leaves the panel with no information on her situation or circumstances.

College Counsel submits that revocation is the only appropriate penalty as the conduct included elements of deceit, was dishonourable, and involved a breach of trust with respect to vulnerable clients. This conduct was repetitive and intentional. The Member has not provided any evidence of willingness and the capacity to be rehabilitated. Revoking the Member’s Certificate of Registration will help restore public confidence in the profession and will serve as a general deterrent to the members of the College, showing that fraud for personal gain will not be tolerated.

College Counsel provided the Panel with four cases to review:

CNO vs Barbara Pierce-Nagel (July, 2013)

In this case, the member misused a credit card and misappropriated property in the form of clients’ money. The member’s Certificate of Registration in this case was revoked due to the serious nature of the misconduct and the member took no responsibility for her actions.

CNO vs Jillian Ghesquiere (April, 2013)

The member was found guilty of fraud. The member had previously resigned her Certificate of Registration prior to the hearing; however, the panel revoked her Certificate of Registration as it had the jurisdiction to do so.

CNO vs Tracy Hare (Sept., 2010)

CNO vs Moreblessing Kambarami (Aug., 2009)

These two cases are distinguishable by their mitigating factors. While both cases involved misappropriation of property from elderly vulnerable clients, both members co-operated with the College and demonstrated the ability and willingness to be rehabilitated. In the case of Tracy Hare, the panel accepted that the member’s conduct was out of character. Listed among the mitigating factors, the member had participated in counselling and had a supportive family. This gave the panel the opportunity to evaluate the member’s potential for rehabilitation.

Penalty Decision

The Panel orders that the Executive Director is directed to immediately revoke the Member’s Certificate of Registration.

Reasons for Penalty Decision

The Panel considered submissions made by College Counsel. The Member chose not to exercise her right to defend against these allegations. The Panel accepts that members cannot be punished for this decision but agrees it leaves the Panel with very little or no insight into any future practice this Member may attempt to engage in.

Revocation of the Member’s Certificate of Registration serves as a general deterrent, is in the best interest of public protection, and sends a message to the profession that this conduct is so serious in nature that it will not be tolerated by the College.

The Panel finds that revocation falls within the appropriate range of penalties in cases with similar circumstances.

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 as listed below:

Chairperson Date