College of Nurses of Ontario v. Cartier, 2018 CanLII 132364

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

This decision was followed by an appeal and cross-appeal, the results of which can be found at the end of this document.

PANEL:

Catherine Egerton, Public Member Chairperson

David Edwards, RPN Member Carly Gilchrist, RPN Member Heather Stevanka, RN Member

Devinder Walia Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for

) College of Nurses of Ontario

• and - )

LOUISE MARIE P. CARTIER ) IAN MCLEAN for

Reg. No. HA10363 ) Louise Marie P. Cartier

) CHRIS WIRTH

) Independent Legal Counsel

) Heard: May 17, 2018

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on May 17, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Louise Marie P. Cartier (the “Member”) as stated in the Notice of Hearing dated April 23, 2018 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(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 complete a Specified Continuing Education or Remediation Program that you were ordered to complete by a decision of the Inquiries, Complaints and Reports Committee dated September 7, 2016.

Member’s Plea

The Member denied the allegation set out in the Notice of Hearing.

Overview

The Member is a Registered Practical Nurse (“RPN”) and was initially registered with the College on January 1, 1981. The Member is employed at Finlandia Nursing Home in Sudbury, Ontario. The allegations leading to the initial Inquiries, Complaints and Reports Committee (“ICRC”) investigation occurred while the Member was employed at Lady Isabelle Nursing Home for which she was hired on July 2, 2012 and subsequently terminated on June 2, 2015.

In a letter dated September 7, 2016 notification via regular mail was sent to the Member informing her of the ICRC’s decision for the Member to participate in the College’s Specified Continuing Education or Remediation Program (“SCERP”). The SCERP included:

• A review of the College’s Professional Standards and Therapeutic Nurse-Client Relationship standard;

• Completion of reflective questionnaires for each standard reviewed;

• Completion of the College’s Online Participation Forms;

• Reviewing the College’s “One is One Too Many” video and completing the related workbook; and

• Attending a meeting with an approved regulatory expert.

The College alleges that the Member did not complete the SCERP within the timeline provided.

The issues are as follows:

a) Was the Member aware of the ICRC decision dated September 7, 2016?

b) Was the Member aware of the requirement from ICRC to complete the SCERP?

c) Did the Member fail to complete the SCERP?

d) Did the Member commit professional misconduct by engaging in conduct that would be considered by members of the profession to be dishonourable, and unprofessional by failing to complete the SCERP?

The Evidence

The College’s sole witness was [the Monitoring Coordinator], a Monitoring Coordinator at the College who has been in her present position for approximately two years. In her current role, [the Monitoring Coordinator] did not personally send the correspondence and/or monitor the responses in this matter, however her position provides supervision to her team and ensures all information on the College’s Register is correct based on current legislative requirements.

[The Monitoring Coordinator] testified that the letters at Exhibit #3, 4, 5, 8, 9, 10, and 12 are standard procedural letters that are sent out to members who are required to complete the SCERP. [The Monitoring Coordinator] also testified that the letters provided the Member with detailed instructions on how to complete each step of the remediation process, contact information for connecting with a staff member at the College and all applicable deadlines.

The Exhibits included:

1. The Notice of Hearing, dated April 23, 2018 which includes the allegation in contest at the hearing of the Member;

2. The College’s Public Register Report of the Member, dated March 28, 2017 which displays the Members registration history as an RPN in the General Class and her current place of employment;

3. A letter to the Member’s Defence Counsel from the College advising his client that the ICRC requires the Member to complete a specified remediation program, dated September 7, 2016;

4. A letter to the Member’s Defence Counsel from the College enclosing an instruction sheet for the Member’s specified remediation program, dated September 8, 2016;

5. A letter to the Member’s Defence Counsel from the College advising his client that she had one month to complete the specified remediation program, dated November 8, 2016;

6. A letter to the College from the Member’s Defence Counsel advising that his client will not be completing the specified remediation program, dated November 15, 2016;

7. A letter to the College from the Member’s Defence Counsel confirming his client’s position, dated November 16, 2016;

8. A letter to the Member’s Defence Counsel from the College advising his client of the consequences should she fail to complete the specified remediation program, dated November 22, 2016;

9. A letter to the Member’s Defence Counsel from the College providing a warning that his client has breached the terms of the ICRC’s order, dated December 8, 2016;

10. A letter to the Member’s Defence Counsel from the College providing a second warning that his client has breached the terms of the ICRC’s order, dated December 23, 2016;

11. A letter to the College from the Member’s Defence Counsel confirming his client’s position, dated January 6, 2017; and

12. A letter to the Member’s Defence Counsel from the College advising that his client’s file has been transferred to the Reports and Prosecution team, dated January 13th, 2017.

At the request of the Defence Counsel, a submission was put forward to the Panel for another letter dated June 16th, 2016 to be entered into evidence. The letter was sent via fax by the Defence Counsel to an Investigator within the College’s Professional Conduct Department. The letter acknowledged the College’s request for a deadline extension and continued on with an overview of the Member’s employment at Lady Isabelle Nursing Home and the incidents investigated by the ICRC.

College counsel objected to the submission presented by Defence submitting to the Panel that this letter was not relevant to the matter. College Counsel continued by saying that the hearing is about failure to complete the SCERP and not about the correctness of the ICRC decision. Counsel for the College stated that the evidence of what was before ICRC is not relevant in this matter.

Counsel for the Member responded by advising the Panel that the letter is in fact quite relevant because there was no formal investigation or findings and is a clear example of a lack of natural justice.

In response, Counsel for the College disagreed with the characterisation set out by Defence Counsel and reiterated to the Panel that the hearing is about the Member’s conduct in the face of failing to comply with remediation and does not relate to the conduct investigated by ICRC. Counsel for the College called attention to the formal appeal process and that the Member chose not to proceed in that fashion. College Counsel advised that this hearing is regarding the Member’s failure to comply with an order of a statutory committee of a regulatory college.

Upon deliberation, the Panel did allow into evidence the letter from the Defence Counsel to the College dated June 16, 2016. However during final deliberations little to no weight was placed on this piece of evidence due to its lack of relevance to the allegation in the Notice of Hearing.

Defence Counsel called the Member as a witness who confirmed her information on the College Register and added that she was terminated from Lady Isabelle Nursing Home and is currently undergoing legal proceedings with that facility.

Upon cross examination, Counsel for the College confirmed the Member did receive the letters from the College directing her to complete remediation.

Final Submissions

College Counsel submitted that the ICRC’s decision was entirely within its statutory rights and also submitted a Book of Authorities containing three cases for the Panel’s consideration, showing how other panels of the Discipline Committee have characterized a member’s failure to complete a SCERP.

Counsel for the College reviewed with the Panel key excerpts of the Health Professionals Procedural Code in particular s. 26(3) “In exercising its powers under paragraph 4 of subsection (1), the panel may not refer the matter to the Quality Assurance Committee, but may require a member to complete a specified continuing education or remediation program.”

CNO v. Kouxova (Discipline Committee, October 20, 2016). The case is similar in that the member did not complete a SCERP and after follow up letters, the matter was forwarded from the ICRC to a Discipline panel. However in that case the panel found that the Member’s failure to comply with an order of the ICRC would be reasonably regarded as dishonourable given the Member’s disregard for the regulatory process.

CNO v. Singh (Discipline Committee, October 24, 2016). The case is similar in that it involves a member who was ordered by the ICRC to complete a SCERP and after multiple letters from the College requesting completion of the order, the case was subsequently escalated to a Discipline panel. In this case the panel found that the member’s failure to comply with an undertaking and an order of the ICRC would be reasonably regarded as dishonourable and unprofessional.

CNO v. Cornelius (Discipline Committee, July 23, 2014). This case is similar in that the member was required to complete a SCERP by the ICRC and failed to comply with the order. Subsequently the panel found that given the circumstances, the member’s conduct would be reasonably regarded as dishonourable and unprofessional.

College Counsel submitted that the facts of the above noted cases parallel the facts in this case.

Counsel for the Member submitted that the Member was ordered by ICRC to complete remediation activities and that one can only “remedy” something that is terribly wrong. Counsel submitted that you had to look at all the circumstances and that the original allegations were unproven, unprovable or incapable of supporting even the most rudimentary aspects of a lack of professionalism on the part of the Member.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing. In particular, the Member engaged in conduct that would reasonably be regarded by members of the profession as unprofessional by failing to comply with an order of the ICRC to complete a SCERP in its written decision dated September 7, 2016.

Reasons for Decision

The Panel was satisfied that the Member was aware of the SCERP and was given ample notice of the deadline for completion. In addition, the Member was made aware of at least four opportunities to request an extension for the completion of the SCERP. The Member chose not to comply with the order despite multiple attempts by the College to give her an opportunity to complete the remediation program. The Panel concluded that the supporting evidence was clear, cogent and convincing. The Member chose to ignore the order of the ICRC and for unknown reasons decided not to follow due process by seeking to have the ICRC decision reviewed or appealed and decided to bring it forward to the discipline committee instead. By ignoring the order of the ICRC, the Member is effectively denying the importance of the self-regulatory governance model and the integrity of the standards of the profession.

The Panel found that the Member’s actions would reasonably be regarded by members of the profession as unprofessional in that the Member failed to complete a SCERP that was ordered by a decision of the ICRC dated September 7, 2016. It is the general understanding of this Panel that for conduct to be considered dishonourable, the Member's actions should involve some level of dishonesty or deceit and/or has an element of moral failing. The Panel did not find sufficient evidence to support that the Member's conduct would reasonably be regarded as dishonourable.

Penalty

The College submitted that the Panel should 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 four 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 two meetings with a Nursing Expert (the “Expert”) at her own expense and within six months from the date of this Order. If the Expert determines that a greater number of session 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 one year 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, and

3. 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 (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 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

College Counsel reviewed the cases previously mentioned in her closing submissions.

CNO v. Kouxova (Discipline Committee, October 20, 2016). The panel found that the member’s failure to comply with an order of the ICRC would be reasonably regarded as dishonourable given the member’s disregard for the regulatory process. The panel ordered the same penalty which College submitted in this matter.

CNO v. Singh (Discipline Committee, October 24, 2016). The panel found that the Member’s failure to comply with an undertaking and an order of the ICRC would be reasonably regarded as dishonourable and unprofessional. The Panel ordered the same penalty which College submitted in this matter.

CNO v. Cornelius (Discipline Committee, July 23, 2014). This case is similar in that the member was required to complete a SCERP by the ICRC and failed to comply with the order. Subsequently the panel found that given the circumstances, the member’s conduct would be reasonably regarded as dishonourable and unprofessional. The Panel ordered the almost same penalty which College submitted in this matter except in the case of CNO v. Cornelius only one meeting with a nursing expert was ordered.

The College submitted that in light of the Member’s conduct and prior recent decision via the ICRC, the penalty requested meets all necessary requirements.

Counsel for the Member submitted that in this case, there is no evidence that any member or the public were harmed and for the College to say that the Member is “ungovernable” is a case of being “sentenced before judgement”. Counsel for the Member submitted that there should be no suspension of the Member’s certificate of registration as suspending it will place substantial hardships on the Member to continue to make a living.

Penalty Decision

The Panel makes the following order as to penalty:

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 two meetings with a Nursing Expert (the “Expert”) at her own expense and within six months from the date of this Order. If the Expert determines that a greater number of session 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 one year 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, and

3. 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 (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 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

In contrast to the comparable cases submitted by College Counsel, this Panel found the Member to be unprofessional rather than both dishonourable and unprofessional. Given those circumstances, the Panel inquired if there were similar cases where members were found only to be unprofessional. College and Defence Counsel notified the Panel through Independent Legal Counsel that no other cases were able to be located. The Panel found the cases submitted were not aligned with the proposed penalty and reduced the requested suspension to two months.

The Panel found that the penalty meets the principles of both general and specific deterrence, rehabilitation and remediation of the Member as well as protection of the public. The two month suspension and oral reprimand sends a message to the Member and the profession that serious attention is given to professional misconduct and that failure to comply with orders of statutory committees is wholly unacceptable. The terms, conditions and limitations on the Member’s certificate of registration as well as the meetings with the nursing expert require the Member to complete the original remediation and learning goals and will help the Member to understand her conduct. The above mentioned penalties fulfill the remediation and rehabilitation requirement as they will allow the Member to successfully return to practice should she choose to.

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

Appeal

On April 8, 2019, the Ontario Superior Court of Justice, Divisional Court, released its decision.

The Member argued that she was denied natural justice by the Discipline Committee because there was no hearing into the merits of the allegations that led to the ICRC order. The Court indicated that it had no jurisdiction to review the ICRC’s order on this appeal. The Court determined that the Member had a fair hearing before the Discipline Committee and there was no denial of natural justice. Accordingly, the appeal was dismissed.

The College cross-appealed the finding of professional misconduct by the Discipline Committee and the penalty imposed. The College submitted that the Discipline Committee ought to have found the Member’s conduct to have been both “unprofessional” and “dishonourable”, not just unprofessional. The Court determined that the Discipline Committee’s decision was a reasonable outcome, supported by the evidence, and there was no basis to interfere with the Discipline Committee’s finding of professional misconduct.

The College also submitted that the two-month suspension imposed by the Discipline Committee was unreasonable and that a four-month suspension was warranted. The Court determined that the Discipline Committee’s penalty decision was reasonable given the facts and the range of penalties for similar misconduct. The cross-appeal was dismissed.