College of Nurses of Ontario v. Cruz, 2017 ONCNO 49268

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Terry Holland, RPN Chairperson Samantha Diceman, RPN Member Mary MacMillan-Gilkinson Public Member George Rudanycz, RN Member Margaret Tuomi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for ) College of Nurses of Ontario

• and - )

ESTHER CRUZ ) SHAUN O’BRIEN for Reg. No. 8824096 ) Esther Cruz

) Heard: April 3, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on April 3, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

Counsel for the College advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 3 and 4(c) of the Notice of Hearing dated December 12, 2016. The Panel granted this request. The remaining allegations against Esther Cruz (the “Member”) 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 (the “Act”), and defined in subsection 1(1) of Ontario Regulation 799/93, in that, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to the following incidents:

a) while employed as a Registered Nurse by Rouge Valley Health System in Toronto, Ontario, you:

i. stole approximately 162 client labels containing personal health information and provided those client labels to a third party, [Third Party], in or about January 2012 to October 2014;

ii. received monetary reward for the provision of approximately 162 client labels to a third party, [Third Party], in or about January 2012 to August 2014; and/or

b) while employed as a Registered Nurse by The Scarborough Hospital in Toronto, Ontario, you:

i. stole approximately 150 client labels containing personal health information and provided those client labels to a third party, [Third Party], in or about January 2012 to September 2013;

ii. received monetary reward for the provision of approximately 150 client labels to a third party, [Third Party], in or about January 2012 to August 2014.

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Act, and defined in subsection 1(10) of Ontario Regulation 799/93, in that, you gave information about a client to a person other than the client or his or her authorized representative, without the consent of the client or his or her authorized representative, and without any requirement under the law, with respect to the following incidents:

a) while employed as a Registered Nurse by Rouge Valley Health System in Toronto, Ontario, in or about January 2012 to October 2014, you stole approximately 162 client labels containing personal health information and provided those client labels to a third party, [Third Party]; and/or

b) while employed as a Registered Nurse by The Scarborough Hospital in Toronto, Ontario, in or about January 2012 to September 2013, you stole approximately 150 client labels containing personal health information and provided those client labels to a third party, [Third Party]

3. [Withdrawn]

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Act, 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 with respect to the following incidents:

a) while employed as a Registered Nurse by Rouge Valley Health System in Toronto, Ontario, you:

i. stole approximately 162 client labels containing personal health information and provided those client labels to a third party, [Third Party], in or about January 2012 to October 2014;

ii. received monetary reward for the provision of approximately 162 client labels to a third party, [Third Party], in or about January 2012 to August 2014; and/or

b) while employed as a Registered Nurse by The Scarborough Hospital in Toronto, Ontario, you:

i) stole approximately 150 client labels containing personal health information and provided those client labels to a third party, [Third Party], in or about January 2012 to September 2013;

ii) received monetary reward for the provision of approximately 150 client labels to a third party, [Third Party], in or about January 2012 to August 2014; and/or

c) [Withdrawn]

Member’s Plea

The Member admitted the allegations set out in paragraphs 1a(i), 1a(ii), 1b(i), 1b(ii), 2a, 2b, and 4 (in that she agreed her conduct would reasonably be considered by members to be dishonourable and unprofessional) 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 and the member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Esther Cruz (the “Member”) obtained a diploma in nursing in the Philippines in 1975 and a Bachelor of Science in nursing in the Philippines in 1977.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on January 21, 1988. The Member resigned from the College on November 8, 2016.

3. The Member was employed as a full-time staff nurse at The Scarborough Hospital (the “TSH”) from April 9, 1989 to September 26, 2013, when she resigned. The Member worked on TSH's Maternal Child Health and Paediatric Units.

4. The Member was employed at Rouge Valley Health System (“Rouge Valley”) as a casual staff nurse from April 17, 2000 to March 13, 2015, when her employment was terminated as a result of the conduct described below. The Member worked on Rouge Valley's Maternal Child Health Unit.

5. Prior to the conduct described below, the Member had been registered with the College for approximately 25 years, with no prior concerns raised regarding her practice.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Providing Client Labels to a Third Party

6. In September 2013 and April 2014, Rouge Valley discovered privacy breaches by two of its employees, one of whom had sold confidential client information to a Registered Education Savings Plan ("RESP") and the other of whom had sold information to a sales representative from Knowledge First Financial Inc. Rouge Valley reported the breaches to the Ontario Securities Commission (“OSC”), the Toronto Police Service and the Privacy Commissioner of Ontario. Rouge Valley also notified clients about the breaches. Some clients responded, indicating that they had been contacted by [Third Party] about RESPs.

7. An investigation was commenced by the Joint Serious Offences Team (a collaboration between the OSC and the Ontario Provincial Police). Search warrants were executed on [Third Party’s] phone records and bank accounts, which showed regular contact between [Third Party] and the Member. A search of [Third Party’s] home revealed over three hundred client labels from Rouge Valley and TSH, containing the name, address, phone number, hospital ID, OHIP numbers and date of admission of clients.

8. The investigation revealed that the Member provided [Third Party] with approximately 162 client labels containing personal health information from Rouge Valley and approximately 150 client labels containing personal health information from TSH.

9. If the Member were to testify, she would say that she provided [Third Party] with the client information so that [Third Party] could contact the clients about a government program that would provide parents with a $500 grant, in addition to insurance. At the time, the Member believed that she was doing something good and helpful for clients. She now fully recognizes that her actions were misguided.

10. On June 2, 2015, the Member was charged with two counts of secret commissions, two counts of breach of trust by a public officer and two counts of theft under $5,000. The Member pled guilty on May 31, 2016 to two counts of secret commissions, one for Rouge Valley and one for TSH.

11. The Member was sentenced to a conditional sentence of six months. For the first three months, she was required to remain under house arrest. The sentencing order also included two years of probation and a total of 340 hours of community service.

Receiving Monetary Rewards for Providing Client Information to a Third Party

12. Between May 6, 2012 and July 30, 2014, [Third Party] wrote 12 cheques to the Member totalling $9,740. The Member’s banking records confirm receipt of the payments.

13. If the Member were to testify, she would say that she did not request any payment from [Third Party] and did not provide the client information to [Third Party] because she was seeking payment. In addition, on many occasions, the Member loaned money to [Third Party] for various expenses, such as [Third Party’s] daughter's college expenses. [Third Party] gave cheques to the Member in repayment for these loans and added additional amounts to these cheques presumably for the client information. The Member would testify that she and [Third Party] never agreed to any amount of money owed for the client information and that most of the amounts of the cheques were for the repayment of loans.

14. The Joint Serious Offences Team investigation found that the employees who participated in the other Rouge Valley privacy breaches were paid between $1.00 and $2.50 for each client name.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

15. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a)(i) & (ii), 1(b)(i) & (ii) and 2(a) & (b) of the Notice of Hearing in that she stole, and received a monetary reward for, approximately 162 client labels containing personal health information from Rouge Valley and approximately 150 client labels containing personal health information from TSH, as described in paragraphs 6 to 14 above.

16. The Member also admits that she committed the acts of professional misconduct as alleged in paragraphs 4(a)(i) & (ii), 4(b)(i) & (ii) of the Notice of Hearing, and in particular, her conduct was dishonourable and unprofessional, as described in paragraphs 6 to 14 above.

Decision

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a)(i) & (ii), 1(b)(i) & (ii), 2(a) and (b), 4(a)(i) & (ii) and 4(b)(i) &(ii) of the Notice of Hearing. As to allegation #4, the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be dishonourable and unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1 in the Notice of Hearing is supported by paragraphs 8, 9, and 10 in the Agreed Statement of Facts. The standard of practice of the profession clearly require nurses to respect client confidentiality, and by secretly providing client information to a third party for monetary gain, the Member breached and undermined those standards.

Allegation #2 in the Notice of Hearing is supported by paragraphs 8, 9 and 10 in the Agreed Statement of Facts. Providing information about clients when not authorized to do so is its own specific form of misconduct, reflecting the importance of client confidentiality.

With respect to Allegation # 4, the Panel finds that the Member’s conduct in providing the personal information of over 300 clients to a third party was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through the breach of confidentially, invasion of client privacy and the acceptance of a monetary reward for supplying the information.

Penalty

Counsel for the College and the Member advised the Panel that the Member had entered into an undertaking with the Executive Director of the College dated March 30, 2017 (the “Undertaking”). In the Undertaking, the Member undertook and agreed (among other things):

• That she resigned as a member of the College on November 8, 2016;

• That her resignation would be permanent;

• That she would not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future; and

• That the public portion of the College’s Register would indefinitely reflect that she entered into the Undertaking to permanently resign as part of an agreed resolution of allegations of professional misconduct.

In light of the Member’s Undertaking, the parties made a Joint Submission on Order, requesting that this Panel make an order requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

Penalty Submissions

Submissions were made by College Counsel. The Member’s Counsel indicated that she agreed with those submissions.

The parties agreed that the mitigating factors in this case were that the Member had no prior history with the College. She signed an Undertaking with the College to not return to the practice of nursing and she voluntarily admitted to the allegations and co-operated with the College.

The aggravating factors in this case were the seriousness of the Member’s actions and the breach of privacy of the clients.

The proposed penalty provides for general deterrence through the signing of an Undertaking and the reprimand. The terms of the Member’s Undertaking will be publicly available.

The proposed penalty provides for specific deterrence through the reprimand.

Overall, the public is protected because the Member has permanently resigned and signed the Undertaking with the College to never practice nursing again.

Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee, and that panels have made penalty orders confined to a reprimand in cases where members have given undertakings to permanently resign.

CNO v. Eno (Discipline Committee 2016)

In this case the member entered into a personal relationship with a client’s spouse, solicited large sums of money from a client’s spouse and failed to re-pay this money. This was also an Agreed Statement of Facts where the Member admitted professional misconduct and where the Member signed an undertaking to permanently resign her membership with the College. In light of the undertaking, the panel ordered an oral reprimand.

CNO v. Hearty (Discipline Committee 2012)

In this case the member admitted to failure to care for clients and crossing therapeutic boundaries. The member also signed an undertaking to permanently resign membership with the College, and so the panel imposed only an oral reprimand.

Penalty Decision

The Panel accepts the Joint Submission as to Order and accordingly orders:

• The Member shall appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

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.

Had the Member not signed the Undertaking, the Panel would have imposed a much different penalty in order to fully address the Member’s significant professional misconduct, which includes breaching the privacy of hundreds of clients. The breach was so serious that it resulted in the Member’s criminal conviction.

In this case, the Member has given an Undertaking to the College to permanently resign her membership and never reapply. The Undertaking and its terms will be publicly available so that the profession and the public understand that this misconduct had serious consequences for this Member.

In light of the Undertaking, 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. The Panel finds that the penalty satisfies the principles of specific and general deterrence, in that it sends a strong message to the Member and the profession that actions such as this will not be tolerated. The public is protected by the fact the Member has signed an Undertaking to never practice nursing again.

This penalty is in line with similar cases as presented by College counsel.

I, TERRY HOLLAND, 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.

Chairperson, Discipline Committee Date