College of Nurses of Ontario v. Tammy Hough, 2016 CanLII 152838

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Zahir Hirji, RN Member Laura Sanderson, RPN Member Renate Davidson Public Member Catherine Egerton Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JESSICA LATIMER for ) College of Nurses of Ontario

• and - )

TAMMY HOUGH ) ANDREW FURGIUELE for Reg. No. AJ767850 ) Tammy Hough

) Heard: May 13, 2016

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel (“the Panel”) of the Discipline Committee on May 13, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The Allegations

The allegations against Tammy Hough (the “Member”) as stated in the Notice of Hearing dated April 5, 2016 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 you were found guilty of an offence relevant to your suitability to practise, and in particular, in the Ontario Court of Justice, in St. Catharines, Ontario, on February 20, 2014, you were found guilty of sexual assault of [ ], contrary to Section 271 of the Criminal Code.

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(18) of Ontario Regulation 799/93, in that you contravened a term, condition or limitation on your certificate of registration, as provided by section 1.5(1)1 of Ontario Regulation 275/94 of the Nursing Act, 1991, with respect to failing to provide the Executive Director with details of the finding of guilt of a criminal offence, and in particular, that in the Ontario Court of Justice, in St. Catharines, Ontario, on February 20, 2014, you were found guilty of sexual assault of [ ], contrary to Section 271 of the Criminal Code.

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 subsection 1(19) of Ontario Regulation 799/93, in that you contravened a provision of the Nursing Act, 1991, the Regulated Health Professions Act, or the regulations under either of those Acts, and in particular, section 85.6.1 of the Health Professions Procedural Code, in particular, you failed to report to the Executive Director that in the Ontario Court of Justice, in St. Catharines, Ontario, on February 20, 2014, you were found guilty of sexual assault of [ ], contrary to Section 271 of the Criminal Code.

4. 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 disgraceful, dishonourable or unprofessional, and in particular, you failed to report to the Executive Director that in the Ontario Court of Justice, in St. Catharines, Ontario, on February 20, 2014, you were found guilty of sexual assault of [ ], contrary to Section 271 of the Criminal Code.

Member’s Plea

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1, 2, 3 and 4 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

Agreed Statement of Facts

Counsel for the College advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows.

THE MEMBER

1. Tammy Hough (the “Member”) obtained a diploma in nursing from Niagara College in 2010.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on August 10, 2010.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Finding of Guilt of Sexual Assault on February 20, 2014

3. The Member and her [ ], were at home on May 28, 2013, when the incident occurred.

4. The Member and [ ] engaged in consensual sexual contact in their bedroom – the Member touched [ ]’s vagina with her hand. She then stopped and told [ ] they would continue when the injury to [ ]’s tailbone was healed. [ ] became upset because she wanted the sexual contact to continue.

5. and the Member left the bedroom and argued about the Member stopping the sexual contact in the way she did.

6. The Member and [ ] then went back into the bedroom and continued to argue. The Member said to [ ], “if you want to fuck, let’s fuck.” She then pushed [ ] onto the bed, held her down and digitally penetrated her. Throughout the attack, [ ] was crying and saying “no” and “stop.”

7. On June 6, 2013, the Member was charged with sexual assault, contrary to section 271 of the Criminal Code of Canada.

8. On February 6, 2014, the Member self-reported the charge to the College.

9. On February 20, 2014, after a trial, the Member was found guilty by the Ontario Court of Justice of sexual assault against [ ]

10. On August 12, 2014, the Member was sentenced to a one year conditional sentence (jail sentence to be served in the community) and probation for three years. In determining that a conditional sentence was appropriate, the court noted that, while the severity of the crime was significant, the Member’s risk of re-offending was minimal, and the offence appeared to the court to be an isolated incident.

11. The finding of guilt was upheld by the Superior Court of Justice, on April 28, 2015.

Failure to Report the Finding of Guilt to the College

12. Although the Member reported the charge to the College, she failed to report the finding of guilt.

13. If the Member were to testify, she would say that she notified her employer about the finding of guilt on February 20, 2014. The Member’s employer submitted a mandatory Report Form for Facility Operators and Employers to the College.

14. The Member would further testify that she submitted a self-reporting form to the College on February 20, 2014, by mail, disclosing the finding of guilt, but she acknowledges that the College never received the document.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

15. The Member admits that she was found guilty of sexual assault on February 20, 2014, and that the finding of guilt is relevant to her suitability to practise.

16. The Member admits that she was responsible for reporting the finding of guilt to the College, and that, as the College never received a self-reporting form or any other notification from the Member with respect to the finding of guilt, the Member failed to make this report.

17. The Member admits that she committed the acts of professional misconduct as described above in paragraphs 3 to 14, and as alleged in the following paragraphs in the Notice of Hearing: paragraph 1; paragraph 2; paragraph 3; and paragraph 4, in that the conduct was unprofessional.

Decision

Decision

The Panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs 1, 2, 3 and 4 in the Notice of Hearing. With respect to allegation 4, the Panel finds that the Member’s failure to report her finding of guilt to the College was unprofessional.

Reasons for Decision

Reasons for Decision

The Panel carefully considered the Agreed Statement of Facts and finds it supports the findings of professional misconduct in that the Member was found guilty of an offence relevant to her suitability to practice and did not self-report to the College the finding of guilt for sexual assault.

Allegation #1 in the Notice of Hearing is supported by Paragraphs 7, 9, 10, 11 and 15 in the Agreed Statement of Facts. The offence for which the Member was found guilty is relevant to her suitability to practise because although the conduct occurred in her personal life, the Member did not inform the College of her conviction of sexual assault. The offence was a violent and dangerous act that is the complete opposite of the conduct expected of a nurse.

Allegation #2 in the Notice of Hearing is supported by Paragraphs 12 and 16 in the Agreed Statement of Facts. There is no question based on the facts that the Member failed to inform the College of her conviction of sexual assault.

Allegation #3 in the Notice of Hearing is supported by Paragraphs 12, 14 and 16 in the Agreed Statement of Facts.

Allegation #4 in the Notice of Hearing is supported by Paragraphs 15, 16 and 17 in the Agreed Statement of Facts. This conduct would be considered by members to be unprofessional because her behaviour was absolutely inconsistent with the values of the profession and the practice of nursing.

Penalty

Penalty

Counsel for the College and the Member’s Counsel 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 12 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,

iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, 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 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 the Member’s suspension ends, 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

c) The Member shall not practise independently in the community for a period of 18 months.

2. 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

Penalty Submissions

The parties agreed that the aggravating factors were:

• The conduct was serious enough to merit discipline;

• The finding of guilt was serious in nature;

• Although the event occurred in the Member’s personal life, it is relevant as it was violent in nature and the behaviour is contrary to nursing practices;

• The Member’s conduct discredits the nursing profession; and

• Although the Member self-reported the sexual assault and conviction to her employer, she failed to advise the College of her conviction.

The parties agreed that the mitigating factors were:

• This was the Member’s first offence;

• The Member fully cooperated with the College’s disciplinary proceedings, including not challenging the criminal court finding before the Panel.

Penalty Decision

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 12 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,

iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, 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 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 the Member’s suspension ends, the Member will notify her employers of the decision. To comply, the Member is required to:

iv. 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;

v. 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;

vi. 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

c. The Member shall not practise independently in the community for a period of 18 months.

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

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 fair, reasonable and in the public interest. The Member has cooperated 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.

The College submitted two cases of this Discipline Committee for the Panel’s review:

CNO v. McWaters (Discipline Committee, 2014); and

CNO v. Kent (Discipline Committee, 2015)

The Member’s Counsel also submitted two cases for the Panel’s review:

CNO v. McWaters (Discipline Committee, 2014); and

CNO v. Faichnie (Discipline Committee, 2007)

The cases submitted support that the joint submission proposed by the parties and accepted by the Panel is within the range of penalties ordered in cases where members are found guilty of offences relevant to their suitability to practise and/or fail to report findings of guilt to the College. However, the Panel did not find these cases particularly useful in that the cases did not involve similar terms of suspension.

I, Michael Hogard, 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

Panel members:

Zahir Hirji, RN

Laura Sanderson, RPN

Renate Davidson, Public Member

Catherine Egerton, Public Member