College of Nurses of Ontario v. Martha Castor, 2017 CanLII 50752

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Catherine Egerton, Public Member Chairperson Renate Davidson, Public Member Grace Fox, NP Member Lina Kiskunas, RN Member Terry Holland, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO JEAN-CLAUDE KILLEY for College of Nurses of Ontario

• and -

MARTHA CASTOR Reg. No: JB82863 SELF-REPRESENTATION for Martha Castor

Heard: January 26, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on January 26, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Martha Castor (the “Member”) as stated in the Notice of Hearing dated December 13, 2016 are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for practice assessment in or about March-July 2013 and/or March-May 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 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, by failing to participate after being selected by the Quality Assurance Committee for practice assessment in or about March-July 2013 and/or March-May 2014.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1 and 2 in the Notice of Hearing. The Panel 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. Martha Castor (the “Member”) obtained a certificate in nursing from La Cite Collegiale in Ottawa, Ontario in 2002.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on November 11, 2002.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Failure to Participate in Quality Assurance

3. On or about March 18, 2013, a letter was sent to the Member advising that she was randomly selected to participate in the 2013 Practice Assessment, as part of the College’s Quality Assurance (“QA”) Program. The Member was required to complete and return the Practice Assessment requirements to the College by May 10, 2013.

4. The Member failed respond to the letter and to complete the Practice Assessment by May 10, 2013.

5. On or about July 5, 2013, the Member was sent another letter indicating that since she had failed to complete the Practice Assessment process, it 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. Submitting a reflection which demonstrates the Member’s commitment to continuing competence;

b. submitting a paper copy of the Member’s 2013 Learning Plan; and

c. participating in the 2014 Practice Assessment process.

6. The Member failed to complete the reflection on continuing competence or the Learning Plan, or to otherwise respond to the letter.

7. On or about March 24, 2014, the Member was sent a letter with instructions on completing the 2014 Practice Assessment. This included a Confidentiality Agreement, which the Member signed on April 3, 2014 and sent back to the College.

8. On or about April 17, 2014, after having received the Member’s signed Confidentiality Agreement, the College sent the Member her 2014 Practice Assessment package with a deadline of April 25, 2014 to return the completed assessment. The College included a pre-addressed and pre-paid courier envelope, as well as contact information for Purolator and instructions to contact them to pick-up the envelope once the Practice Assessment was completed.

9. The Member did not return the completed 2014 Practice Assessment by April 25, 2014, or at all.

10. On May 8, 2014 the College emailed the Member about not receiving the Practice Assessment by the deadline. A response was requested by May 12, 2014 but was not received.

11. On or about May 27, 2014, the College sent the Member another letter indicating that she had failed to complete the 2014 Practice Assessment and that the College had tried to contact her by phone, but the line was disconnected, and by email, with no response. The Member was again directed to return the Practice Assessment by a new deadline, June 6, 2014, and warned that her name, and allegations against her, would be disclosed to the ICRC if she failed to comply.

12. The Member did not complete the 2014 Practice Assessment by June 6, 2014, or at all.

13. On or about June 5, 2015, the College appointed an Investigator to inquire into and examine the Member’s practice.

14. On or about June 16, 2015, the College’s Investigator sent the Member a disclosure package with an invitation to respond to the ICRC by July 21, 2015.

15. The Member did not provide a response to the ICRC.

16. On July 28, 2015, the College’s Investigator left the Member a voicemail. The next day, the Member left the Investigator a voicemail message saying she had not received the disclosure package.

17. The Investigator and the Member traded voicemails until August 8, 2015 when they spoke. The Member provided a new email address but confirmed that her mailing address had not changed. The disclosure package was sent again and a new deadline of September 8, 2015 was provided. The Member provided a response dated August 22, 2015, which was received by the College on September 23, 2015.

18. In total, the Member was sent seven letters from the College to her address on file, two of which she responded to; one unanswered letter (May 27, 2014) was preceded by an email and a voicemail from the College, to the Member’s contact information on file, that were both also unanswered.

19. If the Member were to testify, she would say that she completed and returned the Practice Assessment on April 21, 2014, despite the fact that the College never received it. The Member would further say that her email account was blocked and she had no home phone around the time the College was trying to reach her.

20. Despite her issues with her email and home phone, the Member acknowledges that she is obligated to provide the College with updated contact information. She also acknowledges that it was her responsibility to return the Practice Assessment and confirm that it was received by the College.

21. In any case, the Member admits that she received the College’s March 24, 2014 letter explaining her requirement to participate in the 2014 QA program and was therefore aware of her obligation.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

22. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing, as described in paragraphs 3 to 21 above, in that she failed to cooperate with the QA Committee or any assessor appointed by that Committee, and in particular, she failed to participate after being selected by the QA Committee for practice assessment.

23. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, and in particular her conduct was unprofessional, as described in paragraphs 3 to 21 above.

The Member addressed the Panel and spoke of her remorse and her family situation at the time of the allegations and asked the Panel to take into consideration any financial implications due to the penalty that might be imposed.

Decision

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing. As to allegation #2 , the panel finds that the Member engaged in conduct that would reasonably be considered by members to be 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 3 to 22 inclusive in the Agreed Statement of Facts. The evidence is clear that the Member disregarded the requirements of the Quality Assurance Committee.

Allegation #2 in the Notice of Hearing is supported by paragraphs 3 to 21 and 23 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in failure to participate in the Quality Assurance Program was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

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 one month. 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) The Member shall participate in the College’s 2017 Quality Assurance program (or the next available cycle) within 24 months from the date the Member’s suspension ends.

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 that the Member cooperated with the College and showed remorse. The proposed penalty provides for general deterrence as the suspension denunciates the wrongful conduct. The proposed penalty provides for specific deterrence through the reprimand as it signals disapproval of misconduct of this nature. Quality assurance is a key element in maintaining high standards of all self-regulated professions. The success of the program relies on Members participating when required to do so and governability of the College.

The proposed penalty provides for remediation and rehabilitation through terms conditions and limitations on the Member’s certificate, as well as meetings with the Nursing Expert to review standards of practice. The penalty is aimed at improving practice, public protection and maintaining confidence in standards and the regulatory process. The Member’s requirement to participate in the next round of Quality Assurance will reinforce the importance of continued education.

Overall, the public is protected as this decision illustrates denunciation of the conduct. Public confidence is maintained through self-regulation and maintenance of standards.

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

• In CNO v. Parker (Discipline Committee, 2016) the circumstances were very similar in that there was a failure to comply with Quality Assurance Program requirements. The member was present and the hearing proceeded on an Agreed Statement of Facts and Joint Submission on Order. The terms, conditions and limitations as well as the suspension were the same as proposed in this case.

• In CNO v. Greenshields (Discipline Committee, 2014) there was a failure to participate in the Quality Assurance Program. The breach of the Nursing Act, 1991 was considered a duplicate allegation. The Member did not attend and the hearing proceeded on a contested basis. The Member received a three-month suspension, a reprimand and essentially the same terms, conditions and limitations as proposed in the present case.

• CNO v. McLaughlin (Discipline Committee, 2009) was not given weight by the Panel, as that case involved a member who failed to complete the specified remedial measures as directed by the Quality Assurance Committee. That allegation was a more serious disregard for professional obligations; noncompliance with remedial measures suggests a member’s ungovernability.

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 one month. 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) The Member shall participate in the College’s 2017 Quality Assurance program (or the next available cycle) within 24 months from the date the Member’s suspension ends.

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

With this penalty, members will be reminded that they cannot ignore the requirements of the College’s statutory committees. Failing to cooperate with the Quality Assurance Committee will result in disciplinary consequences.

I, Catherine Egerton, Public Member, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.

Discipline Panel Chairperson Date