College of Nurses of Ontario v. Julie McGowan, 2016 ONCNO 153064

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Tammy Hedge, RPN Member Winsome Plummer, RN Member Margaret Tuomi Public Member Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

• and - )

JULIE MCGOWAN ) NO REPRESENTATION for Registration No. AA786640 ) JULIE MCGOWAN ) ANDREA GONSALVES ) Independent Legal Counsel ) Heard: March 30-31, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on March 30, 2016 and March 31, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

As Julie McGowan (the “Member”) was not present, the hearing recessed for 20 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was not in attendance.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on February 15, 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 Julie McGowan (the “Member”) as stated in the Notice of Hearing dated February 11, 2016, are as follows.

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 while registered as a Registered Practical Nurse, on December 30, 2013, in the Ontario Court of Justice in St. Catharines, Ontario, you were found guilty of offences relevant to your suitability to practise, and in particular,

(a) you were found guilty of possessing licence plates #[ ] of a value not exceeding five thousand dollars, the property of [A], knowing that said property had been obtained by an offence, on or about the 29^th^ day of April, 2013, contrary to section 355(b) of the Criminal Code of Canada;

(b) you were found guilty of break and enter of a home and committing theft, on or about the 17^th^ day of June, 2013, contrary to section 348(1)(b) of the Criminal Code of Canada;

(c) you were found guilty of using a credit card in the name of [B], knowing that said credit card had been obtained by the commission of an offence, on or about the 28^th^ day of July, 2013, contrary to section 342(1)(c)(i) of the Criminal Code of Canada; and/or

(d) you were found guilty of using a credit card in the name of [B], knowing that said credit card had been obtained by the commission of an offence, on or about the 29^th^ day of July, 2013, contrary to section 342(1)(c)(i) of the Criminal Code of Canada.

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(1) of Ontario Regulation 799/93, in that, while practising as a Registered Practical Nurse at St. Elizabeth Health Care, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

(a) on or about December 1, 2012, you failed to attend a scheduled appointment and to provide care to your client, [C], including changing his dressings as ordered;

(b) on or about December 1, 2012, you failed to attend a scheduled appointment and to provide care to your client, [D];

(c) on or about December 7, 2012, you failed to attend a scheduled appointment and to provide care to your client, [E], including changing his dressings as ordered;

(d) on or about January 7, 2013, while providing care to your client, [F] in her home, you attempted to misappropriate personal items from [F’s] family member, [G];

(e) on or about June 6, 2013, you failed to attend a scheduled appointment at 1600 and to provide care to your client, [H], including checking insulin and blood sugar levels as ordered, and/or you failed to document your care of [H];

(f) on or about June 7, 2013, you failed to attend a scheduled appointment at 1800 and to provide care to your client, [I], including administering Morphine and Gravol as ordered;

(g) on or about June 7, 2013, you misappropriated property from your client, [I], being one unopened vial of Morphine and/or one opened vial of Morphine containing Morphine to be wasted; and/or

(h) misappropriated property from your workplace in that you billed, and were paid, for client visits not made by you to the following clients:

a) [C], on or about December 1, 2012;

b) [D], on or about December 1, 2012;

c) [E], on or about December 7, 2012; and/or

d) [H], on or about June 6, 2013.

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 practising as a Registered Practical Nurse at St. Elizabeth Health Care, you misappropriated property, in particular:

(a) on or about June 7, 2013, you misappropriated property from your client, [I], being one unopened vial of Morphine and/or one opened vial of Morphine containing Morphine to be wasted; and/or

(b) you misappropriated property from your workplace in that you billed, and were paid, for client visits not made by you to the following clients:

a) [C], on or about December 1, 2012;

b) [D], on or about December 1, 2012;

c) [E], on or about December 7, 2012; and/or

d) [H], on or about June 6, 2013.

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 paragraph 1(13) of Ontario Regulation 799/93, in that, while practicing as a Registered Practical Nurse at St. Elizabeth Health Care, you failed to keep records as required, and in particular:

(a) you failed to document your attendance and/or care of your client, [H], on or about June 6, 2013.

5. 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 practising as a Registered Practical Nurse at St. Elizabeth Health Care, 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 in that:

(a) on or about December 1, 2012, you failed to attend a scheduled appointment and to provide care to your client, [C], including changing his dressings as ordered;

(b) on or about December 1, 2012, you failed to attend a scheduled appointment and to provide care to your client, [D];

(c) on or about December 7, 2012, you failed to attend a scheduled appointment and to provide care to your client, [E], including changing his dressings as ordered;

(d) on or about January 7, 2013, while providing care to your client, [F] in her home, you attempted to misappropriate personal items from [F’s] family member, [G];

(e) on or about June 6, 2013, you failed to attend a scheduled appointment at 1600 and to provide care to your client, [H], including checking insulin and blood sugar levels as ordered, and/or you failed to document your care of [H];

(f) on or about June 7, 2013, you failed to attend a scheduled appointment at 1800 and to provide care to your client, [I], including administering Morphine and Gravol as ordered;

(g) on or about June 7, 2013, you misappropriated property from your client, [I], being one unopened vial of Morphine and/or one opened vial of Morphine containing Morphine to be wasted; and/or

(h) misappropriated property from your workplace in that you billed, and were paid, for client visits not made by you to the following clients:

a) [C], on or about December 1, 2012;

b) [D], on or about December 1, 2012;

c) [E], on or about December 7, 2012; and/or

d) [H], on or about June 6, 2013;

(i) you were found guilty of possessing licence plates #[ ] of a value not exceeding five thousand dollars, the property of [A], knowing that said property had been obtained by an offence, on or about the 29^th^ day of April, 2013, contrary to section 355(b) of the Criminal Code of Canada;

(j) you were found guilty of break and enter of a home and committing theft, on or about the 17^th^ day of June, 2013, contrary to section 348(1)(b) of the Criminal Code of Canada;

(k) you were found guilty of using a credit card in the name of [B], knowing that said credit card had been obtained by the commission of an offence, on or about the 28^th^ day of July, 2013, contrary to section 342(1)(c)(i) of the Criminal Code of Canada; and/or

(l) you were found guilty of using a credit card in the name of [B], knowing that said credit card had been obtained by the commission of an offence, on or about the 29^th^ day of July, 2013, contrary to section 342(1)(c)(i) of the Criminal Code of Canada.

Counsel for the College advised the panel that the College was not calling any evidence with respect to the allegations set out in paragraph 4 of the Notice of Hearing. Counsel also advised that if the panel made findings that the Member failed to attend a scheduled appointment at the home of [H] (as alleged in paragraphs 2(e) and 5(e)), the panel was to disregard the second part of that allegation (that the Member failed to document her care of [H]). Similarly the panel should treat allegations 3(b)(d) and 5(h)(d) with the same consideration.

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 worked for St. Elizabeth Health Care (the “Facility”) on the evening shift. The allegations concerned the timeframe from approximately December 2012 to July 29, 2013. During that time, the Member committed offenses relevant to her suitability to practice as she was found guilty of being in possession of stolen license plates, was found guilty of breaking and entering, and was found guilty of using a stolen credit card on two occasions in July of 2013. The Member also allegedly committed acts of professional misconduct in that she failed to attend scheduled appointments, misappropriated a narcotic from a client, and misappropriated property from the Facility in that she billed and was paid for client visits she did not make.

The panel found that the facts alleged by the College in paragraphs 1, 2, 3 and 5 of the Notice of Hearing had occurred. The panel found that the Member committed professional misconduct by failing to meet the standards of practice, and by misappropriating property from a client and from her workplace. The offenses she pled guilty to are relevant to her suitability to practice. Overall, she engaged in conduct that would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

The panel made no finding with respect to allegation 4.

The Evidence

The panel was provided with a book of documents, which included thirty nine exhibits to consider, and heard from four witnesses. The evidence called by the College was as follows.

Criminal Findings

Exhibits #3, #4, #5 and #6 are all certified copes of court documents and transcripts, clearly detailing the Member’s guilty plea to the charges of break and enter, possessing stolen license plates on her car, and using a stolen credit card.

Evidence Regarding Client Visits

For the evidence regarding client visits, the College called [Witness A]. [Witness A] is an RN and is the Director of Nursing at the Facility. She walked the panel through multiple pieces of evidence regarding how nurses are paid for their visits, the charting system, how nurses bill and how the Facility gets paid from CCAC (Exhibits 7 through 31). The panel found this witness’ testimony to be credible.

Client [C]

[C] was a client who lived alone and required dressing changes to be done by staff members. On December 1, 2012 the Member failed to attend the scheduled appointment, however she billed the Facility for the visit, and was subsequently paid for it. The next nurse to attend [C] noticed there was no charting for the date in question, and raised concerns. The Facility sent the Member an email to clarify whether or not she had attended the client’s home. The Member first said that she had seen this client, but eventually admitted that she didn’t think she had seen the client (Exhibit #15).

Client [D]

This client was receiving end of life care, and was scheduled to have the Member visit on December 1, 2012 (Exhibit #13) The Member did not attend this visit as evidenced by the lack of charting. The Member did bill for this visit, and was paid. As with client [C], the Facility asked the Member via email if she had seen this client. The Member first said that she had seen this client, but eventually admitted that she didn’t think she had seen the client (Exhibit #15).

Client [E]

[E] was receiving services for diabetic wound care (Exhibit #14). The Member was scheduled to visit the client on December 7, 2012. The Member billed for this visit and was paid for it. However, the family told the next nurse that the Member had never attended. The Facility contacted the Member on December 13, 2012. The Member said she had attended the client’s house on December 7 but arrived a bit late. When she got there nobody answered the door, so the Member left. According to [Witness A], this is not the proper procedure. If a nurse attends a client’s home and the client does not answer, the nurse should take steps to ensure the client is okay.

Client [F] and her mother [G]

On January 7, 2013 the Member attended a scheduled appointment at the home of [F]. During this visit the Member attempted to misappropriate items from the purse of the client’s mother [G], who testified at this hearing. [G] testified that she was in another room and heard a noise in the dining room of the home, where nobody had any reason to be. When [G] looked around the corner she saw the Member with her hands in [G’s] purse. [G] testified that she asked the Member, “What are you doing in my purse?” The Member replied, “I didn’t take anything” [G] advised the Member that she was going to report this incident. The Member had her jacket on, and left immediately without saying anything else. [G] reported this to the Facility the next day (Exhibit #20). [G] also spoke with the police. [G] confirmed with the police that in fact nothing was taken from her purse.

Client [H]

The Member was scheduled to attend the client at home twice on June 6, 2013, at 1600 and 2100. The client’s chart shows that the Member only charted at 2100. There is no entry for 1600. Billing records (Exhibit #26) show that the visits for the day were started and stopped in quick succession, one right after the other. The weight of the evidence is that the Member was then paid for both visits, but only completed one.

Client [I]

[I] was discharged from hospital on June 7, 2013 after having received shoulder surgery. The instructions given to her by the hospital were that the Member would attend her home at 1800 for drain care, wound care and pain medication (Exhibit #27). The client did not receive any pain medication on discharge from the hospital. The Member charted that the client was discharged late so the 1800 visit was cancelled and the Member attended at 2200. The Member charted her administration of one vial of morphine and one vial of gravol.

[Witness B] was the nurse for [I] the next day. He testified that he attended the home of [I] on June 8. He recalled doing so around 0800. The witness recalled looking at the care plan and the orders for the client as well as the medication administration record (MAR). He testified that when he looked at the medications and the MAR he discovered that the client had been dispensed 3 vials of morphine and 3 vials of gravol, only 1vial of morphine was left, but 2 bottles of gravol remained. He thought there might have been a mistake so he questioned the client and her husband. After explaining what he found he showed the client his pockets to make sure they understood that he did not take the missing vial of morphine. The witness testified that as soon as he got into his car he called the Facility’s supervisor to report what he had found.

The panel found [Witness B] to be a credible witness. He testified in a forthright manner, admitted that he had no personal connection with the Member and appeared genuinely concerned during testimony that the client did not receive her second dose of morphine and gravol.

Expert Evidence

College counsel relied on an expert witness, Cheryl Reid-Haughian, and presented the panel with her CV. The panel accepted Ms. Reid-Haughian as an expert in the standards of practice of the profession, specifically relating to home health care and nursing environments.

Ms. Reid- Haughian testified that home care nurses are privileged in that they carry a great deal of autonomy in practice. They are expected to live up to the expectations of the standards. She identified the published standards of practice that she said were relevant to this case and breached by this nurse: the Ethics Standard, the Professional Standards (2002), the Therapeutic Nurse-Client Relationship Standard (2006) and the Medication Standard (2015).

The witness submitted that once a nurse accepts an appointment for a client, he or she is obligated by the standards of practice to attend, unless he or she has made contact with the office so that a replacement can be sent. With respect to the issue of ethics, the Member is required to maintain a commitment to professional accountability, and the Member did not fulfill those commitments. The nature of the case does not change Ms. Reid-Haughian’s stand on the issues, because there is the potential for increased risk to clients related to pain, diabetes, and other conditions. Nurses do not see clients unless nursing care is required.

The Member billed for visits not made, and this action demonstrates the intent to deceive. This conduct damages public confidence in the profession, as well as damages confidence in the Member on a personal level.

The panel found the expert witness to be knowledgeable and credible. Her opinion on the hypothetical situation given to her was well thought out and the panel found it to be reasonable.

Final Submissions

College counsel submitted that the panel was presented with sufficient evidence to prove the facts on the balance of probabilities, as it had heard from three fact witnesses, viewed numerous exhibits and heard expert evidence on the standards of practice related to this case.

The panel had received certified court documents to be able to prove that the offenses were committed. College counsel submitted the offences are all relevant to the Member’s moral fitness and the ability to follow and live up to the expectations of the members of this College.

The Member’s suitability to practice is called into question through the evidence contained in the transcripts from the court. As to the possession of the stolen plates that she used on her car, possession of stolen property is contrary to the expectations of members of the College, as it is deceptive and untrustworthy.

The break and enter offence involved the Member breaking into the home of her client, [E]. She stole narcotics that had been prescribed to him. This clearly calls the Member’s suitability to practice into question. She gained knowledge about [E’s] schedule and medications as a result of the care she provided. Improper use of information gained in providing nursing care demonstrates this finding of guilt is directly and specifically related to the Member’s suitability to practice.

The final charges related to two counts of using a stolen credit card. These charges demonstrate a lack of integrity. College counsel submitted that the panel has the basis to make findings on allegation #1.

With respect to allegations #2 and #3, the Member repeatedly failed to attend several scheduled appointments with clients. She billed for them. This is supported by the lack of documentation and the pay records from the Facility. The expert evidence supports findings to be made on these allegations. College counsel submitted that the panel has sufficient evidence to make findings, including the evidence of [G] and [Witness B].

With regard to allegation #5, College counsel submitted the Member’s conduct was all three of dishonourable, disgraceful and unprofessional conduct. The Member’s conduct shows a serious disregard for her obligations, and demonstrates a failing in the Member’s moral compass.

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, 2, 3 and 5 of the Notice of Hearing.

As to allegation 4, College counsel advised that she was not calling any evidence in respect of that allegation. Accordingly, the panel dismisses allegation 4 in the Notice of Hearing.

Reasons for Decision

The panel found that given the numerous pieces of evidence, the testimony from three fact witnesses and an expert opinion, the allegations had been proven on the balance of probabilities. The Member made several choices that she ought to have known were wrong, and made them continually. To miss a client visit once could be seen as a mistake, but for it to happen with several clients demonstrates that the Member has no insight into her obligations.

With respect to the criminal charges and the Member’s suitability to practice, nurses are required to live up to a high standard, professionally and personally. This is no secret to the members of the profession. This is the reason that the College has published Standards and regulates practice. The Member continually chose to attempt to deceive and steal. There is no reasonable excuse for this behaviour, and it is relevant to her suitability to discharge the high ethical standards expected of nurses.

The Member offered no defense to her actions and conduct, which included theft of narcotics, attempted theft from a client, theft from her workplace and obvious moral failings in leaving vulnerable clients without care.

With respect to the allegation #5, the panel finds that there were certainly elements of deliberate deceit and moral failing, and the Member’s conduct rose to the level of disgraceful, unprofessional and dishonourable.

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