DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Mary MacMillan-Gilkinson Public Member, Chairperson
Renate Davidson Public Member Spencer Dickson, RN Member Desiree Ann Prillo, RPN Member
Ingrid Wiltshire-Stoby, RN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for
) College of Nurses of Ontario
- and - )
ANGELA VAUGHAN ) PEGGY E. SMITH for Reg. No. 0102285 ) Angela Vaughan
) JOHANNA BRADEN
) Independent Legal Counsel
) Heard: June 22, 2017
DECISION AND REASONS
This matter came on for hearing before a Panel of the Discipline Committee on June 22, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.
Publication Ban
At the commencement of this hearing, the panel was asked to make an order banning the publication or broadcasting of the identities of the clients referred to in the hearing and on information that could identify those clients, including the name of the facility and the city in which it is located. The panel granted the order as requested.
The Allegations
The allegations against Angela Vaughan (the “Member”) as stated in the Notice of Hearing dated June 2, 2017 are as follows.
IT IS ALLEGED THAT:
- 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(1) of Ontario Regulation 799/93, in that while you were employed as a Registered Nurse at [Facility A] in [ ], Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to accessing personal health information without consent or other proper authorization, for the following clients on or about the dates indicated below:
Client Name
Date of Access
Client #1
March 30, 2010 March 31, 2010
Client #2
January 2, 2014
Client #3
January 8, 2014
Client #4
January 9, 2014
Client #5
January 10, 2014
Client #6
February 7, 2014
Client #7
February 18, 2014
Client #8
February 27, 2014
Client #9
March 13, 2014
Client #10
March 27, 2014
- 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 with respect to accessing personal health information without consent or other proper authorization, for the following clients on or about the dates indicated below:
Client Name
Date of Access
Client #1
March 30, 2010 March 31, 2010
Client #2
January 2, 2014
Client #3
January 8, 2014
Client #4
January 9, 2014
Client #5
January 10, 2014
Client #6
February 7, 2014
Client #7
February 18, 2014
Client #8
February 27, 2014
Client #9
March 13, 2014
Client #10
March 27, 2014
Client
Client as Described in the Specified Allegations
[Client A]
Client #1
[Client B]
Client #2
[Client C]
Client #3
[Client D]
Client #4
[Client E]
Client #5
[Client F]
Client #6
[Client G]
Client #7
[Client H]
Client #8
[Client I]
Client #9
[Client J]
Client #10
Member’s Plea
The Member admitted the allegations set out in paragraphs 1 and 2 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
Angela Vaughan (the “Member”) obtained a diploma in nursing from St. Lawrence College in 2001.
The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on February 19, 2001.
The Member was employed at Facility A from April 2, 2001 to May 21, 2014 when her employment was terminated as a result of the incidents described below.
THE FACILITY
Facility A is located in Eastern Ontario.
From January 21, 2013 to January 26, 2014, the Member worked as a patient care “navigator” at Facility A. In this role, the Member assisted patients as they progressed through the system. The Member was attached to the internal medicine team and would visit internal medicine patients wherever they were located in Facility A.
From January 27, 2014 until her employment was terminated, the Member worked as a charge nurse on the neuroscience unit.
Facility A’s Electronic Record System
All users of Facility A’s electronic records system have a user ID and password, which is used to access a certain desktop with particular applications relevant to their role. Once a user is logged in to the desktop, he or she can access files without re-entering a password.
The system has two privacy alerts – one at the time of login and another when a client record is opened. The second alert requires the user to click “Y” to open the record. Once the “Y” is selected, the access is recorded in the system.
Facility A’s Policy
- The Member executed a Statement of Confidentiality and Hospital Principles when she began working at Facility A in April 2001. Among other things, the Member committed to the following:
You will treat all Hospital administrative, financial, patient, employee and other records, whether written, verbal or electronically stored, as confidential material and you will protect it to ensure full confidentiality. You will not read records, discuss or use such information unless there is a legitimate purpose to do so in your normal duties and responsibilities.
You will protect the security of your signature code and you will not use the code of another person, or enable another person to know or use your code.
COLLEGE STANDARDS
The College issued a Practice Standard titled Confidentiality and Privacy – Personal Health Information (“Practice Standard”). It was first published in 2004 and updated in 2009. It largely addresses the Personal Health Information Protection Act (“PHIPA”).
The Practice Standard begins with a general statement about the purpose of practice standards:
Nursing standards are expectations that contribute to public protection. They inform nurses of their accountabilities and the public of what to expect of nurses. Standards apply to all nurses regardless of their role, job description or area of practice.
- The Practice Standard provides key indicators nurses can use to ensure they are meeting the standard, including:
The nurse meets the standard by:
seeking information about issues of privacy and confidentiality of personal health information;
maintaining confidentiality of clients’ personal health information with members of the healthcare team, who are also required to maintain confidentiality, including information that is documented or stored electronically;
maintaining confidentiality after the professional relationship has ended, an obligation that continues indefinitely when the nurse is no longer caring for a client or after a client’s death;
ensuring clients or substitute decision-makers are aware of the general composition of the health care team that has access to confidential information;
collecting only information that is needed to provide care;
not discussing client information with colleagues or the client in public places such as elevators, cafeterias and hallways;
accessing information for her/his clients only and not accessing information for which there is no professional purpose; [emphasis added]
safeguarding the security of computerized, printed or electronically displayed or stored information against theft, loss, unauthorized access or use, disclosure, copying, modification or disposal;
not sharing computer passwords; ….
- The Member acknowledges that she was bound by the College’s Practice Standard and that a nurse who breaches those standards and the statutory obligations set out in PHIPA is subject to discipline by the College.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
Inappropriate Access of Client 1’s Record
In May 2014, the Privacy Office at Facility A received a complaint from “Client 1”, who suspected that his privacy had been breached by the Member accessing his health record and sharing it in the community. As a result of the complaint, an audit was conducted by Facility A, which confirmed that the Member accessed Client 1’s file on two dates in March 2010.
On the two dates in question, the Member worked night shifts in the intensive care unit at Facility A.
Client 1 had been a patient in the mental health unit at Facility B in March 2010. Facility A and Facility B share an electronic records system, which allowed the Member to access Client 1’s records at Facility B from Facility A.
At a meeting on April 30, 2014, the Member admitted to management at Facility A that she knew Client 1 from outside of the Facility as a person in a personal relationship with her friend. The Member acknowledged that she had no clinical or professional reason to access Client 1’s medical records. The Member was placed on unpaid leave pending further investigation.
The Member acknowledges accessing Client 1’s health record without consent or other authorization. If the Member were to testify, she would state that she did so out of concern for her friend. However, the Member acknowledges that this was not a legitimate reason for accessing the medical records of Client 1.
Second Audit of the Member’s Access to Health Records
As a result of Client 1’s complaint to Facility A, a further audit of the Member’s access to client files was conducted for the Member’s file access activities between January 1, 2014 and May 12, 2014.
All clients who had a connection with the Member’s practice were removed from the list, including anyone who was admitted to the Member’s unit and clients that may have interacted with the Member in her role as patient care navigator. This left approximately 20 client records identified in the audit for further review.
Another meeting was held with the Member on May 20, 2014. At the meeting, Facility A’s Privacy Officer reviewed the names of the 20 remaining clients with the Member. The Member provided responses regarding some clients and the list of unauthorized accesses was narrowed to nine clients (“Clients 2-10”), in addition to Client 1.
If the Member were to testify, she would state that she knew some of the clients personally, but others she did not. The Member would further say that she did not access the records for any malicious reason. However, the Member acknowledges that it was inappropriate to access client records when she had no professional reason relating to nursing care or administration responsibilities for doing so, and that she accessed the medical records of the ten clients without their consent or other authorization.
A physician reported to the College on behalf of Client 1 in June 2014 that his medical records had been accessed inappropriately by the Member. Facility A also reported the termination of the Member’s employment to the College in June 2014.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that her unauthorized accesses to personal health information, as described in paragraphs 14 to 23 above, constituted a breach of the College’s standard on Confidentiality and Privacy – Personal Health Information.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, and in particular that her conduct was dishonourable and unprofessional, as described in paragraphs 14 to 23 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 9 through 25 in the Agreed Statement of Facts. The facts demonstrate that the Member did access the files of all of the clients noted in the Notice of Hearing (paragraphs 14 and 21). The Member admitted that she did not have authorization to do so (paragraphs 17, 18 and 22).
Accessing client information without authorization is a breach of both College standards (paragraph 12) and the policy of her employer (paragraph 9).
Allegation #2 in the Notice of Hearing is supported by paragraphs 8, 9, 10 through 13, 18, and 22 in the Agreed Statement of Facts.
With respect to Allegation # 2, the Panel finds that the Member’s conduct in accessing the clinical record of 10 clients without authorization 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 as the Member accessed the client records over an extended period of time, and in a surreptitious manner. She accessed the records via the Facility’s system which required her to indicate at more than one instance that she had authority to access the records when she did not.
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.
Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for three 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.
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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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, decision tools and online participation forms (where applicable):
Professional Standards,
Confidentiality and Privacy - Personal Health Information,
iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;
v. 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;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. 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:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;
viii. 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 12 months from the date the Member returns to the practice of nursing, 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:
that they received a copy of the required documents, and
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
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 and the Member’s Counsel.
The parties agreed that the mitigating factors in this case were that the Member has admitted to her misconduct, cooperated throughout the disciplinary process and has taken responsibility for her actions.
The aggravating factors in this case were that the Member demonstrated a pattern of misconduct which occurred over a period time. The Member accessed information for personal reasons and demonstrated a breach of trust with the clients whose record she accessed.
The proposed penalty provides for general deterrence through a reprimand and suspension as this will demonstrate that misconduct of this kind will attract significant penalty.
The proposed penalty provides for specific deterrence through the reprimand, suspension and employer notification as the serious of misconduct has been brought to the attention of the Member and a penalty imposed
The proposed penalty provides for remediation and rehabilitation through meetings with a nursing expert to support the Member’s application of the College standards and Employer Notification in that her future employers will be mindful of the previous misconduct and support the Member to ensure this does not reoccur.
Overall, the public is protected because the proposed penalty supports public confidence in that this sort of misconduct will not be tolerated. The remediation requirements will support the Member returning to practice with a deepened understanding of her professional obligations.
Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee as follows:
CNO v. Brutzki (Discipline Committee, 2016) This case involved multiple unauthorized incidents of accessing client records and resulted in a two month suspension along with similar terms conditions and limitations as sought in the current case.
CNO v. Edgerton (Discipline Committee, 2016) This case involved multiple unauthorized incidents of accessing client records along with other allegations of breach of standards related to client care. The resultant penalty was a four month suspension along with three meetings with a nursing expert and 18 months of employer notification.
CNO v. Oliveria (Discipline Committee, 2015) This case involved multiple unauthorized incidents of accessing over 1300 client records over a period of nine years and resulted in a five month suspension along with three meetings with a nursing expert and 18 months of employer notification.
CNO v. Calvano (Discipline Committee, 2015) This case involved multiple unauthorized incidents of accessing client records over a one year period and resulted in a three month suspension along with two meetings with a nursing expert and 18 months of employer notification.
Counsel submitted that the proposed penalty was within the range of previous decisions.
Penalty Decision
The Panel accepts the Joint Submission as to Order and accordingly orders:
Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for three 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.
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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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, decision tools and online participation forms (where applicable):
Professional Standards,
Confidentiality and Privacy - Personal Health Information,
iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;
v. 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;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. 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:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;
viii. 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 12 months from the date the Member returns to the practice of nursing, 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:
that they received a copy of the required documents, and
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
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 College’s ability 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 suspension demonstrates to the Member, other nurses, as well as the public that this sort of misconduct will not be tolerated. Further the meetings with the nursing expert will provide the Member support to address the gaps in her practice and promote remediation. The employer notification supports public protection in that the Member’s practice will be monitored and supported as she transitions back to practice following the suspension.
The penalty is in line with what has been ordered in previous cases.
I, Mary MacMillan-Gilkinson, 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 as listed below:
Chairperson Date