College of Nurses of Ontario v. Backstrom, 2017 CanLII 50754

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Catherine Egerton, Chairperson Public Member Renate Davidson, Public Member Samantha Diceman, RPN Member Carly Gilchrist, RPN Member George Rudanycz, RN Member

BETWEEN:

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

• and -

ERIN BACKSTROM, Reg. No. AA795890 MICHAEL HARGADON for Erin Backstrom

Heard: March 13, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on March 13, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Erin Backstrom (the “Member”) as stated in the Notice of Hearing (Exhibit 1) dated January 25, 2017 are as follows.

IT IS ALLEGED THAT:

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 on February 16, 2016, you were found guilty of offences relevant to your suitability to practise nursing, as follows:

(a) on or about the 12th day of January in the year 2014 in the City of Thunder Bay, in the Province of Ontario, while your ability to operate a motor vehicle was impaired by alcohol, you did operate a motor vehicle and thereby cause bodily harm to two individuals contrary to sections 253(1)(a) and 255(2) of the Criminal Code; and

(b) on or about the 12th day of January in the year 2014 in the City of Thunder Bay, in the Province of Ontario, having the care and control of a motor vehicle that was involved in an accident, with the intent to escape civil or criminal liability, did fail to stop your vehicle to give your name, address and offer assistance to two injured individuals contrary to section 252(1)(b) of the Criminal Code.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a) and 1(b) in the Notice of Hearing. The Panel received a written plea inquiry (Exhibit 2) 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. Erin Backstrom (the “Member”) obtained a diploma in nursing from Confederation College in 2011.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on July 6, 2011.

3. The Member is employed at St. Joseph’s Hospital in Thunder Bay, Ontario, and has been employed there on a full-time basis since June 2011.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Findings of Guilt

4. On January 11, 2014, the Member drove her car to a friend’s house, in Thunder Bay, Ontario, around 16:00 for a house party. The group of friends who gathered at the house travelled back and forth by taxi between the house and various bars over the course of the evening. Around 01:30 on January 12, 2014, the group settled at the house to continue the party.

5. The Member was consuming alcohol throughout the evening, both at the bars and at the house party.

6. At some point during the early morning hours, the Member left the party to drive home to get her dog. The Member was alone in her car, which was a Dodge Dakota.

7. Around 03:15, another car, a Hyundai Elantra, was stopped at the lights at the intersection of Memorial Avenue and Harbour Expressway. The driver noticed the Member’s car speeding up behind him. The Member hit the stopped Elantra and sped away. The Elantra was pushed through the intersection. It suffered significant damage to the rear of the vehicle.

8. In addition to the driver, there was a female passenger in the front passenger seat and another female passenger in the back seat. Both women were taken to the hospital by ambulance and sustained injuries, including concussions, whiplash, bruising, scratches and other soft tissues injuries.

9. After hitting the Elantra, the Member continued home to retrieve her dog. She then returned to the house party where the police later found her under the influence of alcohol.

10. On January 25, 2014, the Member was charged with impaired driving causing bodily harm to two individuals, contrary to section 253(1)(a) and 255(2) of the Criminal Code of Canada, and failure to stop at the scene of an accident and offer assistance to two individuals, contrary to section 252(1)(b) of the Criminal Code of Canada.

11. On February 16, 2016, the Member pled guilty to impaired driving causing bodily harm to two individuals and failure to stop at the scene of an accident and offer assistance to two individual. The Member was sentenced to 30 days in custody, 12 months’ probation, an 18 month driving suspension, a victim surcharge, a DNA order and a 10-year weapons prohibition.

12. The Member self-reported the charges to the College on January 28, 2015.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

13. The Member admits that she committed the act of professional misconduct as alleged in paragraphs 1(a) and (b) of the Notice of Hearing, and as described in paragraphs 4 to 11 above, in that she was found guilty of impaired driving causing bodily harm to two individuals, contrary to section 253(1)(a) and 255(2) of the Criminal Code of Canada, and failure to stop at the scene of an accident and offer assistance to two individuals, contrary to section 252(1)(b) of the Criminal Code of Canada.

Decision

The Panel accepted the Agreed Statement of Facts and found that the Member committed acts of professional misconduct as alleged in paragraphs 1(a) and 1(b) of the Notice of Hearing.

Reasons for Decision

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

Allegation #1(a) in the Notice of Hearing is supported by paragraphs 4 to 12 in the Agreed Statement of Facts. Allegation #1(b) in the Notice of Hearing is supported by paragraphs 4 to 12 in the Agreed Statement of Facts. The evidence clearly establishes that the Member was found guilty of two criminal offences, impaired driving and failing to stop following an accident. Both offences are relevant to the Member’s suitability to practise because the Member showed her lack of self-discipline which is an important part of being a member of a self-regulating body. These actions bring into question if the Member is governable by herself and by the College.

Penalty

Counsel for the College and the Member advised the Panel that a Joint Submission on 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 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 a minimum of one meeting with a Nursing Expert (the “Expert”) at her own expense and within three months from the date of this Order. If the Expert determines that a greater number of sessions are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed 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;

b) For a period of 18 months from the date the Member’s suspension ends, 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 addresses the overriding concern of public protection and the goals of a penalty – general deterrence, specific deterrence, rehabilitation and remediation.

The parties agreed that the mitigating factors in this case were the fact that the Member had no previous misconduct findings, she made an early admission of wrongdoing, has co-operated with the College and has admitted remorse over her conduct. The Member’s Counsel added that the Member had a history of acting in a caring capacity, was sincerely remorseful about her behaviour and has abstained from alcohol since the incident. She has already completed all the reflective learning modules. The aggravating factors in this case were the serious nature of the conduct of the Member, that is, driving while intoxicated and leaving the scene of an accident. This type of behaviour is not in line with what the public or the College expects of nurses.

College Counsel submitted that the proposed penalty is tailored appropriately to deter this Member from similar behaviour in the future. All aspects of the order work towards deterrence going forward. The oral reprimand and two-month suspension provide for general and specific deterrence as it conveys to the Member and the profession that this type of conduct will not be tolerated.

The proposed penalty provides for remediation and rehabilitation through the imposition of terms, conditions and limitations on the Member’s certificate of registration that include meeting with a nursing expert to review the standards of practice.

The public is protected through the requirement of the Member to inform her employers of this decision for a period of eighteen months from the date the Member’s suspension ends. This penalty also sends a clear message to professional members that this conduct is serious and will not be tolerated within the nursing profession.

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 vs Jan Jasper Soriano (Discipline Committee, Feb. 2016). This matter related to an offence that the panel found relevant to the member’s suitability to practice, and involved assault and possession of a weapon. The member did report the conviction to the College and demonstrated efforts to remediate himself. The matter ultimately proceeded by way of an Agreed Statement of Facts and Joint Submission on Order that included a reprimand, a suspension of the member’s certificate of registration for two months, and the imposition of terms, conditions and limitations on the member’s certificate of registration.

CNO vs Derrick Kent (Discipline Committee, May, 2015). This matter related to an offence that the panel found relevant to the member’s suitability to practice, involving assault on two occasions, two criminal convictions, and a failure to report those convictions to the College. This matter also proceeded by way of an Agreed Statement of Facts and Joint Submission on Order that included a reprimand, a three-month suspension, and terms, conditions and limitations including meetings with a nurse expert and a twelve-month period of employer notification.

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 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 a minimum of one meeting with a Nursing Expert (the “Expert”) at her own expense and within three months from the date of this Order. If the Expert determines that a greater number of sessions are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed 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;

b) For a period of 18 months from the date the Member’s suspension ends, 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 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 two-month suspension and 18-month employer notification period provide specific and general deterrence. The requirement to meet with the nursing expert, standards review, and online learning modules provide the Member the opportunity for remediation and support a safe return to practice for the Member and for the public. The penalty is in line with what has been ordered in previous cases.

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.

Chairperson Date