College of Nurses of Ontario v. Basilio, 2016 ONCNO 63929

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Sarah Corkey, RN Chairperson Barbara Titley, RPN Member Renate Davidson Public Member Catherine Ward Public Member

BETWEEN:

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

• and - )

TERRI-ANN BASILIO ) NO REPRESENTATION for Registration No. II10241 ) Terri-Ann Basilio

) Heard: April 4, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee ( the “Panel”) on April 4, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Terri-Ann Basilio (the “Member”) as stated in the Notice of Hearing dated February 23, 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(18) of Ontario Regulation 799/93, in that, while working as a registered practical nurse at [the Facility], you contravened a term, condition or limitation imposed on your certificate of registration by the FTP Order and in particular:

a. you failed to advise the College when you obtained employment in nursing at [the Facility] on or about February 11, 2014 as required by paragraph 5 of Schedule A of the FTP Order;

b. you failed to inform [the Facility] of the fact that your Certificate of Registration was subject to Conditions as required by paragraph 6 of Schedule A of the FTP Order;

c. you failed to file with the College a letter from [the Facility] confirming their receipt of copy of the FTP Order and their agreement to provide monitoring, as required by paragraph 6 of Schedule A of the FTP Order; and/or

d. between on or about February 11, 2014 and February 27, 2014, you engaged in the practice of nursing without a monitor as required by paragraph 2 of Schedule A of the FTP Order.

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(21) of Ontario Regulation 799/93, in that, while working as a registered practical nurse at [the Facility], you failed to comply with an order of the Fitness to Practise Committee in that:

a. you failed to advise the College when you obtained employment in nursing at [the Facility] on or about February 11, 2014 as required by paragraph 5 of Schedule A of the FTP Order;

b. you failed to inform [the Facility] of the fact that your Certificate of Registration was subject to Conditions as required by paragraph 6 of Schedule A of the FTP Order;

c. you failed to file with the College a letter from [the Facility] confirming their receipt of copy of the FTP Order and their agreement to provide monitoring, as required by paragraph 6 of Schedule A of the FTP Order; and/or

d. between on or about February 11, 2014 and February 27, 2014, you engaged in the practice of nursing without a monitor as required by paragraph 2 of Schedule A of the FTP Order.

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(37) of Ontario Regulation 799/93, in that, while working as a registered practical nurse at [the Facility], 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 particular:

a. you failed to comply with an order of the FTP Order in that:

i. you failed to advise the College when you obtained employment in nursing at [the Facility] on or about February 11, 2014 as required by paragraph 5 of Schedule A of the FTP Order;

ii. you failed to inform [the Facility] of the fact that your Certificate of Registration was subject to Conditions as required by paragraph 6 of Schedule A of the FTP Order;

iii. you failed to file with the College a letter from [the Facility] confirming their receipt of copy of the FTP Order and their agreement to provide monitoring, as required by paragraph 6 of Schedule A of the FTP Order; and/or

iv. between on or about February 11, 2014 and February 27, 2014, you engaged in the practice of nursing without a monitor as required by paragraph 2 of Schedule A of the FTP Order.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1a,1b,1c, 1d; 2a, 2b, 2c, 2d; and 3a i, ii, iii, iv 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 advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts (“ASF”) which provided as follows.

THE MEMBER

1. Terri-Ann Basilio (the “Member”) obtained a diploma in nursing [ ] in 1998.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on July 8, 1999. The Member voluntarily surrendered her certificate of registration between February 15, 2007 and July 25, 2011 as a result of a referral to the Fitness to Practise Committee.

3. The Member was employed at [the Facility] from February 11, 2014 to August 11, 2014, when she was terminated.

THE FACILITY

4. The Facility is located in [ ] Ontario.

5. The Facility is a [ ] long-term care home that provides on-site medical care and 24-hour nursing supervision to residents.

6. The Member worked as a full-time staff nurse on the day and evening shift.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Fitness to Practise Proceedings

7. On November 16, 2006, the Member was referred by the Inquiries, Complaints and Reports Committee to the Fitness to Practise Committee at the conclusion of a health inquiry. The inquiry was prompted by a 2005 report from the Member’s employer [ ].

8. On February 15, 2007, the Member voluntarily surrendered her certificate of registration and was not entitled to practice.

9. In 2011, the Member applied for a return of her certificate of registration. She entered into a consent agreement with terms, conditions and limitations on her certificate of registration (the “TCL Agreement”) on July 25, 2011.

10. [ ]

11. The Fitness to Practise Committee accepted the TCL Agreement and issued a decision on consent incorporating the terms, conditions and limitations (“FTP Order”).

12. The terms, conditions and limitations set out in the FTP Order were in place for 33 months and were set to expire on April 25, 2014.

Variances to the FTP Order

13. On November 22, 2011, the Director approved a variance to the agreement to allow a Personal Support Worker to be the Member’s workplace monitor instead of a registered nurse.

14. On February 27, 2014, the Director agreed to remove the condition requiring a workplace monitor. All other terms, conditions and limitations set out in the TCL Agreement remained in force.

Breach of the FTP Order

15. On May 30, 2013, the Member was sent a letter from a Monitoring Administrator at the College stating:

Please be reminded that as per Condition 5, prior to obtaining any employment in nursing you must notify the College immediately and inform any prospective employer about the Conditions on your certificate of registration.

16. Despite being aware of her obligations, the Member failed to advise the College of her employment at the Facility between February 11, 2014 and April 25, 2014, when the agreement expired. She also failed to provide confirmation that the Facility received a copy of the FTP Order and that it agreed to provide monitoring, as required.

17. The Member did not advise the Facility that she required a workplace monitor between February 11, 2014 and February 27, 2014, when the condition was removed by the Director, nor did she arrange any workplace monitoring during that time.

18. The Member did not advise the Facility that her certificate of registration was subject to terms, conditions and limitations between February 11, 2014 and April 25, 2014. The Facility first learned of the FTP Order in May 2014.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

19. The Member admits she contravened a term, condition or limitation imposed on her certificate of registration by the FTP Order, as set out in paragraphs 15 to 18 above, which constitutes professional misconduct as alleged in paragraphs 1(a), (b), (c) and (d) of the Notice of Hearing.

20. The Member admits that she failed to comply with an order of the Fitness to Practise Committee, as set out in paragraphs 15 to 18 above, which constitutes professional misconduct as alleged in paragraphs 2(a), (b), (c) and (d) of the Notice of Hearing.

21. The Member further admits that she committed the acts of professional misconduct as alleged in paragraphs 3 (a)(i), (ii), (iii) and (iv) of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 15 to 18 above.

Decision

The Panel considered the ASF 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 1a, 1b, 1c, 1d; 2a, 2b, 2c, 2d; and 3a i, ii, iii and iv of the Notice of Hearing in that the Member contravened a term, condition or limitation imposed on her Certificate of Registration by a Fitness to Practise Order and that she failed to comply with an order of the Fitness to Practise Committee. This is conduct that would reasonably be regarded by members as dishonourable and unprofessional.

Reasons for Decision

The ASF provided sufficient evidence to support the findings of professional misconduct based on the allegations in the Notice of Hearing. The Member’s conduct was found to be unprofessional and dishonourable as there was a disregard for her professional obligations to the College, her employer and the public. The Member’s failure to comply with all components of the Fitness to Practise order showed a serious error in judgement and an intent to deceive.

Penalty

Counsel for the College advised the Panel that a Joint Submission as to Order had been agreed upon. The Joint Submission as to Order 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 three 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 12 months from the date the Member returns to the practice of nursing, 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

Counsel for the College submitted that the proposed order in its entirety fulfills the goals of penalty. Remediation is achieved through the terms, conditions and limitations which encourage reflection and analysis. Specific and general deterrence are achieved through the three month suspension and oral reprimand. These two components send a clear message to both the general membership and the Member herself that this conduct will not be tolerated. Overall the goal of public protection is achieved through the penalty as a whole and in particular the requirement outlined in 3b) iii.

Mitigating factors in this case include the Member’s cooperation and remorse during this process and that there is no history of previous discipline findings. The aggravating factors include the Member’s advanced reminder of her reporting obligation to the College prior to obtaining employment in nursing and that the Member took steps to proceed with nursing employment without notifying the College or the employer. These actions are deceptive in nature and this is not a case where the Member did not understand the process or the requirements. College counsel submitted that the relative short duration and absence of harm as a result of this misconduct do not mitigate the deception and dishonesty that is evident in this case.

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 three 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 12 months from the date the Member returns to the practice of nursing, 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 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 for her actions.

The Panel believes the penalty achieves deterrence for the Member and the general membership, that remediation and protection of the public will be achieved through the attendance of the Member with a nursing expert and the terms, conditions and limitations that will be applied to the Member’s certificate for 12 months after her return to the practice of nursing, and that the public is protected.

I, Sarah Corkey, RN, 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:

Barbara Titley, RPN

Renate Davidson, Public Member

Catherine Ward, Public Member