College of Nurses of Ontario v. Shawanda, 2017 CanLII 49762

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: HEATHER STEVANKA, RN Chairperson

TAMMY HEDGE, RPN Member MARY MACMILLAN-GILKINSON Public Member ASHLEIGH MOLLOY Public Member DESIREE ANN PRILLO, RPN Member

BETWEEN:

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

• and - )

ROSEMARY A. SHAWANDA ) SELF- REPRESENTED Reg. No. HB11997 )

) Heard: April 11, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on April 11, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Rosemary A. Shawanda (the “Member”) as stated in the Notice of Hearing dated February 8, 2017 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(20) of Ontario Regulation 799/93, in that while registered as a member of the College of Nurses of Ontario, you failed to appear before a panel of the Inquiries, Complaints and Reports Committee (“ICRC”) to be orally cautioned on or about April 20, 2016, pursuant to a decision of the ICRC, dated November 25, 2015; and/or

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(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:

(a) complete a Specified Continuing Education or Remediation Program by February 26, 2016, that you were ordered to complete by a decision of the ICRC dated November 25, 2015; and/or

(b) appear before a panel of the ICRC to be orally cautioned on or about April 20, 2016, pursuant to a decision of the ICRC, dated November 25, 2015.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1 and 2 (a) and (b) 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. Rosemary A. Shawanda (the “Member”) obtained a certificate in nursing from Cambrian College in 1982.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on January 1, 1982. The Member was suspended for non-payment of fees between April 24, 2003 and April 12, 2010.

3. The Member currently works at the Wikewemikong Health Centre in Wikewemikong, Ontario as an independent foot care nurse.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Failure to Participate in Quality Assurance

4. On or about March 18, 2013, the Member was sent a letter notifying her that she was randomly selected to participate in a Practice Assessment, as part of the College’s Quality Assurance Program (“QA”). The Member was required to complete the Practice Assessment by 11:59 p.m. on April 27, 2013.

5. The Member failed to complete the Practice Assessment.

6. The Member was sent a subsequent letter on or about July 4, 2013, indicating that she would be reported to the Inquiries, Complaints and Reports Committee (“ICRC”) unless she completed certain activities by August 2, 2013. The activities included the following:

• A reflection which demonstrates your commitment to continuing competence by August 2, 2013;

• Submit a paper copy of your 2013 Learning Plan by August 2, 2013; and,

• Complete all components of Practice Assessment in 2014.

7. The Member failed to complete the required activities by August 2, 2013.

8. On or about October 28, 2013, the Member was notified by letter that the QA Committee reported her name and allegations against her to the ICRC.

Failure to Comply with SCERP Ordered by the ICRC

9. On or about November 25, 2015, the ICRC issued a decision (“ICRC Decision”) requiring the Member to participate in a Specified Continuing Education or Remedial Program (“SCERP”) that included the following:

• Review Professional Standards

• Complete online learning module re: Professional Standards

• Complete Reflective Questionnaire re: Professional Standards

• Meet with a regulatory expert

10. The Member was given three months, until February 26, 2016, to complete these remedial activities.

11. The Member was also ordered to attend an oral caution on April 20, 2016 at 11:00 a.m. She was required to sign and return a Notice of Meeting to confirm her attendance at the oral caution.

12. The ICRC Decision was sent to the Member by regular mail on or about November 26, 2015, to the Member’s address on the College’s system. An instruction sheet for the Member on how to complete the SCERP was also included. The Monitoring Team confirmed the deadline of February 26, 2016.

13. In or about December 2015, the Member signed and returned to the College the Notice of Meeting, confirming that she would attend the oral caution at the College on April 20, 2016 at 11:00 a.m. The signed Notice of Meeting was received by the College on or about December 7, 2015.

14. The Monitoring Team followed up with a letter to the Member on December 23, 2015, again enclosing the SCERP instruction sheet.

15. The Monitoring Team sent another follow-up letter on February 8, 2016 reminding the Member of the deadline.

16. The Member did not complete the SCERP by February 26, 2016.

17. On or about March 11, 2016, the Monitoring Team sent a breach warning letter to the Member with instructions on how to obtain an extension to complete the SCERP and warning the Member that she could be the subject of an investigation if she failed to complete the SCERP or request an extension. The Member was given until March 23, 2016 to request an extension, which she did not do.

18. The Member also failed to attend her oral caution on April 20, 2016 at 11:00 a.m.

19. The Member successfully completed the SCERP on September 12, 2016.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

20. The Member admits that she failed to appear before a panel of the ICRC to be orally cautioned on April 20, 2016, as described in paragraph 18 above, and as alleged in paragraph 1 of the Notice of Hearing.

21. The Member admits that she engaged in conduct that is dishonourable and unprofessional in that she:

• failed to complete a SCERP that was ordered by the ICRC Decision, as described in paragraphs 9 to 17 above, and as alleged in paragraph 2(a) of the Notice of Hearing;

• failed to appear before a panel of the ICRC to be orally cautioned on April 20, 2016, as described in paragraph 18 above and as alleged in paragraph 2(b) of the Notice of Hearing.

Decision

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

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 paragraph 18 in the Agreed Statement of Facts. The Member clearly breached the requirement that she abide by the order from the College’s Inquiries, Complaints and Review Committee which required her to receive an oral caution.

Allegation #2 in the Notice of Hearing is supported by paragraphs 9 – 18 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct, in failing to complete a Specified Continuing Education or Remediation plan in the required time and failing to appear before a panel of the ICRC to be cautioned, was unprofessional. She chose to disregard the standards of her profession. She also chose to ignore repeated communications from the College. These behaviours show a lack of good judgment and responsibility. They also demonstrate a serious and persistent disregard for her professional obligations which are mandated by the Health Professions Procedural Code of the Nursing Act, 1991. The Panel also found that the Member’s conduct was dishonourable when she did not attend the oral caution after confirming her attendance. This behaviour shows elements of dishonesty and deceit. The Panel felt that it also placed an unnecessary burden on the College who prepared for an oral caution that did not occur.

Penalty

Counsel for the College and the Member 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 two 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 of this Order. 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, and 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;

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.

Penalty Submissions

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

The parties agreed that the mitigating factors in this case were:

• The Member did eventually complete the SCERP although it was several months late.

• The Member expressed remorse for not abiding by ICRC’s decision.

• The Member cooperated with the College and participated in the process.

• The Member admitted the allegations and accepted responsibility for her actions.

• The Member has no prior discipline history with the College.

The aggravating factors in this case were:

• The Member’s conduct was serious and intentional.

• The Member’s conduct showed a disregard for her professional obligations.

• The Member’s behaviour and referral to ICRC came about as a result of a previous failure to complete her Quality Assurance requirements.

• The Member’s behaviour brought discredit to her profession.

The proposed penalty provides for general deterrence and specific deterrence through:

• the oral reprimand

• the two-month suspension.

The proposed penalty provides for remediation and rehabilitation through:

• The terms, conditions and limitations placed on the Member’s certificate.

• The two meetings with a Nursing Expert which will allow the Member to reflect on her professional standards and requirements.

Overall, the public is protected because:

• The proposed Joint Submission on Order, in its totality, is geared toward public protection.

• It sends a strong message to the profession that there are serious consequences for this type of conduct.

• The College has demonstrated that it is able to regulate itself.

Counsel submitted two cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

CNO v. Kouxova (Discipline Committee, 2016): The member in this case failed to complete a SCERP. The SCERP was ordered as a result of the member’s failure to participate in the Quality Assurance process. The member was not present and did not participate in the process. She had requested and been granted an adjournment, but did not attend the second scheduled hearing date. The member was given a penalty including an oral reprimand, a four month suspension and two meetings with a Nursing Expert.

CNO v. Singh (Discipline Committee, 2016): In this case, the member failed to complete a SCERP. He did not participate in the hearing. He was given a penalty including a four month suspension, an oral reprimand and two meetings with a Nursing Expert.

The Member made submissions to the Panel. She stated that, throughout this process, she has gained an increased appreciation of the work of the College. The Member acknowledged the seriousness of her behaviour when she disregarded the College’s attempts to communicate with her. The Member stated that she has learned a lot from the process. She is currently engaging in professional development opportunities. She acknowledged that the process “opened up my eyes”. She stated that, moving forward, she will try her best.

Penalty Decision

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

1. The Member shall 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 two 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 of this Order. 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, and 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;

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

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 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, rehabilitation and remediation, and public protection. Members of the profession will be reminded that failing to comply with an order from a statutory committee of the College is serious and will not be tolerated.

The penalty is in line with what has been ordered in previous cases.

I, Heather Stevanka, RN, Chairperson, 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 Date