College of Nurses of Ontario v. Golem, 2017 CanLII 62909

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson

Samantha Diceman, RPN Member George Rudanycz, RN Member Margaret Tuomi Public Member Catherine Ward Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MEGAN SHORTREED for ) College of Nurses of Ontario

• and - )

MEAGAN GOLEM ) SELF-REPRESENTED Reg. No.09378684 )

) ANDREA GONSALVES

) Independent Legal Counsel

) Heard: MAY 15, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 15, 2017 (the “Panel”) at the College of Nurses of Ontario (“the College”) at Toronto. Meagan Golem (the “Member”) was present and self-represented.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated March 28, 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 Act, and defined in subsection 1(8) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at Southern Ontario Fertility Technologies Inc. in London, Ontario (the “Facility”), you misappropriated property from a client or work place, and in particular, you accepted payment from your employer for hours you did not work from October to November 2014; 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 Act, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while employed as a Registered 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 as disgraceful, dishonourable or unprofessional with respect to accepting payment from your employer for hours you did not work from October to November 2014 for the purposes of defrauding the government’s Employment Insurance scheme.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1 and 2 in the Notice of Hearing. With regards to paragraph 2, the Member admitted that her conduct was disgraceful, dishonourable and unprofessional. 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. Meagan Golem (the “Member”) obtained a degree in nursing from Western University in 2009.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on May 14, 2009.

3. The Member was employed at Southern Ontario Fertility Technologies Inc. (the “Clinic”) from February 2, 2008 to November 24, 2014, when her employment was terminated as a result of the incident below.

THE CLINIC

4. The Clinic is located in London, Ontario.

5. The Clinic is a fertility clinic that is owned by [Doctor A] and [Doctor B], who are husband and wife.

6. The Member was the In-Vitro Fertilization Coordinator at the Clinic. Her duties included managing In-Vitro Fertilization (“IVF”) cycles and monitoring.

7. The Member’s brother, Bradley Ferris, was the Office Manager at the Clinic. He was also an RN. As of October 2014, Mr. Ferris was the only employee responsible for payroll at the Clinic.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

8. On October 3, 2014, the Member went on her second maternity leave. She was pregnant with twins and ordered to go off work early on bed rest because it was a high risk pregnancy.

9. At the time, the Member did not have enough hours to qualify for Employment Insurance (“EI”) benefits because she had only returned to work from her first maternity leave in July 2014. She was approximately 200 hours short of qualifying for EI benefits.

10. Mr. Ferris asked [Doctor A] how he could obtain more hours for the Member so she could be eligible for EI. If [Doctor A] were to testify, she would say that she told Mr. Ferris the Clinic would have nothing to do with the EI scheme.

11. Between October and November 2014, Mr. Ferris falsified the payroll records and arranged for the Member to be paid for hours she did not work. The Member accepted payment for the following hours:

• October 6-19, 2014 – 74 hours

• October 20-November 2, 2014 – 79.50 hours

• November 3-16, 2014 – 40 hours

12. In order to make payments to the Member, Mr. Ferris allocated hours he worked to the Member, for most but not all of the hours credited to her. The Clinic therefore suffered only a minimal financial loss as a result of the EI scheme (about which the Member was not aware at the time).

13. If the Member were to testify, she would say that Mr. Ferris told her he received approval from [Doctor A] to credit some of his hours to her so she could qualify for EI benefits. The Member would further testify that she never asked Mr. Ferris or anyone at the Clinic to arrange for her to qualify for EI benefits, and it was solely Mr. Ferris’ idea, but she was aware of and did not object to the scheme.

14. In any case, the Member admits that she knew that, by accepting credit and payment for hours she did not work, she misappropriated property and was complicit in a scheme to circumvent the EI system requirements.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

15. 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 8 to 14 above, in that she misappropriated property from her work place when she accepted payments from the Clinic for hours she did not work from October to November 2014.

16. 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 would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, as described in paragraphs 8 to 14 above.

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 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 11, 12, 13, 14 and 15 in the Agreed Statement of Facts. The acceptance of three payments for hours the Member did not work is clearly a misappropriation of property from the work place and is an act of professional misconduct.

Allegation #2 in the Notice of Hearing is supported by paragraphs 11, 13, 14, 15 and 16 in the Agreed Statement of Facts.

With respect to Allegation #2, the Panel finds that the Member’s conduct was unprofessional as it demonstrated a serious 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 accepting payments for hours she clearly did not work, with the intention of collecting EI.

Finally, the Panel did not find that the Member’s conduct was disgraceful. “Disgraceful” conduct is the most serious misconduct that shows such a significant element of moral failing that it has the effect of shaming the Member and, by extension, the profession. Although this Member’s misconduct was serious, it happened only the one time, the Member was under stress with her pregnancy and she thought that her actions were approved by management.

The Panel asked the College counsel for further submissions as to why the Panel should find that the conduct would be regarded by members as “disgraceful”. College counsel submitted that misappropriation is always found to be disgraceful, dishonourable and unprofessional and that the Panel had an agreed statement of facts before them, where the Member admitted that her conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. This agreement had been reached by experienced counsel.

The Panel asked for advice from its Independent Legal Counsel (“ILC”) on the issue. ILC’s advice was to review the evidence in the Agreed Statements of Facts and consider whether the evidence supported the findings being requested. The Panel did not need to defer to the parties’ views of the evidence to the same extent as the Panel needs to defer to joint submissions on penalty. Tampering with joint submissions on penalty should only occur if the proposed order would bring the administration of justice into disrepute. When it comes to findings of professional misconduct, the Panel should be guided by the facts and evidence of the individual case and the Panel’s understanding of what would constitute “disgraceful” conduct.

The Panel did not find the Member’s actions to be so serious that they cast doubt on her moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet, nor did the Panel find the membership would be shamed by the Member’s misconduct in all of the circumstances.

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 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 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

Submissions were made by College Counsel. Joint Submission on Orders should not be taken lightly, they are a product of negotiation between experienced legal counsel, and unless a proposed joint submission would bring the system into disrepute the Panel should not tinker with them. In crafting sanctions the overriding goal is protection of the public. The three objectives are general deterrence, specific deterrence and remediation of the Member. The process takes into consideration the aggravating and mitigating factors and the facts of the case.

The Member’s focus at the time was on her high risk pregnancy, bed rest and being off work. Mr. Ferris credited his own hours to the Member so there would not be a loss to the employer, but there was still a minimal loss to the employer.

The parties agreed that the mitigating factors in this case were: the Member cooperated with the College, has admitted her guilt from the start, it was her first time before the College and she was the beneficiary of the scam but not the architect. The employer suffered little to no harm.

The aggravating factors in this case were: the Member committed theft, intended to defraud EI for personal gain and the employer suffered a small loss. In this case College counsel submitted the Member thought she had the approval of the employer but this was still an attempt to defraud the government.

The proposed penalty provides for general deterrence through the one month suspension and the terms, conditions and limitations imposed. It sends a clear message to the membership that actions like are not acceptable and will not be tolerated.

The proposed penalty provides for specific deterrence through: the reprimand of the Member, the one month suspension and the 18 month reporting requirement.

The proposed penalty provides for remediation and rehabilitation through: the meetings with an expert, the review of professional standards and the 18 month reporting requirement.

Overall, the public is protected because: of the reprimand, once month suspension, remediation and employer reporting.

Counsel submitted a case to the panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee. The case was CNO vs S Mohamed (Discipline Committee, October 1, 2008). In this case the member was given a 4 month suspension in addition to a reprimand and terms, conditions and limitations. This was a more serious case where the member repeatedly misrepresented herself, altered doctors’ notes and there was a loss to the employer of around $16,500.00.

College counsel submitted the proposed penalty in this case is in the range of acceptable penalties and does not bring the administration of justice into disrepute. The Panel should make an order accordingly.

The Member agreed with the College’s submissions and apologized for her actions.

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 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 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, in that the Member was reprimanded, given a month-long suspension, and is required to undergo remediation so this professional misconduct will not be repeated. The penalty is in line with what has been ordered in previous cases.

I, MICHAEL HOGARD, 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 Date