College of Nurses of Ontario v. Jacqueline Annette Henderson, 2019 CanLII 103280

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Grace Fox, NP Chairperson

Carolyn Kargiannakis, RN Member Mary MacMillan-Gilkinson Public Member Honey Palalon, RN Member

Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JESSICA LATIMER for ) College of Nurses of Ontario

• and - )

JACQUELINE ANNETTE HENDERSON ) OLANDO VINTON for Registration No. 0405951 ) Jacqueline Annette Henderson

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: May 30, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on

May 30, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Jacqueline Annette Henderson (the “Member”) as stated in the Notice of Hearing dated February 25, 2019 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 August 29, 2017, in the Ontario Court of Justice in Oshawa, Ontario, you were found guilty of offences relevant to your suitability to practise, and in particular, you were found guilty of the following offences:

a. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did, by deceit, falsehood or other fraudulent means, defraud President’s Choice Financial of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada;

b. Between the 13^th day of September in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did use a credit card in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

c. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Canadian Tire of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada; and

d. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Capital One of money of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada.

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(8) of Ontario Regulation 799/93, in that, while practicing as a Registered Nurse at the Central East Community Care Access Centre in Whitby, Ontario, you misappropriated property from a client or workplace, and in particular, in or about 2016, you misappropriated credit cards from [the Patient].

3. 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(18) of Ontario Regulation 799/93, in that, on August 29, 2017, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.i. of Ontario Regulation 275/94, in that you failed to report findings of guilt to the Executive Director of the College of Nurses (the “College”), in particular, that on August 29, 2017, you were found guilty of the following offences, which you did not report:

a. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did, by deceit, falsehood or other fraudulent means, defraud President’s Choice Financial of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada;

b. Between the 13^th day of September in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did use a credit card in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

c. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Canadian Tire of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada; and

d. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Capital One of money of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada.

4. 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(18) of Ontario Regulation 799/93, in that, in or around June 2017, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94, in that you failed to report charges relating to any offence to the Executive Director of the College, and in particular, that you were charged with the following offences on or around June 19, 2017:

a. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did, by deceit, falsehood or other fraudulent means, defraud President’s Choice Financial of merchandise of a value exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (a) of the Criminal Code of Canada;

b. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did fraudulently personate [the Patient] with intent to gain advantage for herself, contrary to section 403, subsection (3) of the Criminal Code of Canada;

c. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did use a credit card, namely President’s Choice Financial in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

d. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did possess a credit card, namely President’s Choice Financial in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

e. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did possess property, namely a President’s Choice MasterCard of a value exceeding five thousand dollars, the property of [the Patient], knowing that the said property had been obtained by an offence punishable by indictment, contrary to Section 354, subsection (1) of the Criminal Code of Canada;

f. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Canadian Tire of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada;

g. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did fraudulently personate [the Patient] with intent to gain advantage for herself, contrary to Section 403, subsection (3) of the Criminal Code of Canada;

h. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did use a credit card, namely a Canadian Tire MasterCard in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

i. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did possess a credit card, namely a Canadian Tire MasterCard in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

j. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did possess property, namely a Canadian Tire MasterCard of a value not exceeding five thousand dollars, the property of [the Patient], knowing that all or part of the said property had been obtained by an offence punishable by indictment, contrary to Section 354, subsection (1) of the Criminal Code of Canada;

k. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Capital One of money of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada;

l. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did fraudulently personate [the Patient] with intent to gain advantage for herself, contrary to Section 403, subsection (3) of the Criminal Code of Canada;

m. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did use a credit card, namely a Capital One MasterCard in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

n. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did possess a credit card, namely a Capital One MasterCard in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada; and

o. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did possess property, namely a Capital One MasterCard of a value not exceeding five thousand dollars, the property of [the Patient], knowing that all or part of the said property had been obtained by an offence punishable by indictment, contrary to Section 354, subsection (1) of the Criminal Code of Canada.

5. 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(19) of Ontario Regulation 799/93, in that you contravened a provision of the Nursing Act, 1991, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or the regulations under either of those Acts, and in particular, section 85.6.1 of the Health Professions Procedural Code, in that, on August 29, 2017, you failed to report findings of guilt to the Registrar (being the Executive Director) of the College, as follows:

a. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did, by deceit, falsehood or other fraudulent means, defraud President’s Choice Financial of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada;

b. Between the 13^th day of September in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did use a credit card in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

c. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Canadian Tire of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada; and

d. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Capital One of money of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada.

6. 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 in that, in or around June 2017, you failed to report charges and/or findings of guilt to the Executive Director of the College, as follows:

a. On or around June 19, 2017, you were charged with the following offences, which you did not report:

i. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did, by deceit, falsehood or other fraudulent means, defraud President’s Choice Financial of merchandise of a value exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (a) of the Criminal Code of Canada;

ii. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did fraudulently personate [the Patient] with intent to gain advantage for herself, contrary to section 403, subsection (3) of the Criminal Code of Canada;

iii. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did use a credit card, namely President’s Choice Financial in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

iv. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did possess a credit card, namely President’s Choice Financial in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

v. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did possess property, namely a President’s Choice MasterCard of a value exceeding five thousand dollars, the property of [the Patient], knowing that the said property had been obtained by an offence punishable by indictment, contrary to Section 354, subsection (1) of the Criminal Code of Canada;

vi. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Canadian Tire of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada;

vii. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did fraudulently personate [the Patient] with intent to gain advantage for herself, contrary to Section 403, subsection (3) of the Criminal Code of Canada;

viii. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did use a credit card, namely a Canadian Tire MasterCard in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

ix. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did possess a credit card, namely a Canadian Tire MasterCard in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

x. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did possess property, namely a Canadian Tire MasterCard of a value not exceeding five thousand dollars, the property of [the Patient], knowing that all or part of the said property had been obtained by an offence punishable by indictment, contrary to Section 354, subsection (1) of the Criminal Code of Canada;

xi. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Capital One of money of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada;

xii. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did fraudulently personate [the Patient] with intent to gain advantage for herself, contrary to Section 403, subsection (3) of the Criminal Code of Canada;

xiii. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did use a credit card, namely a Capital One MasterCard in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

xiv. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did possess a credit card, namely a Capital One MasterCard in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada; and

xv. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did possess property, namely a Capital One MasterCard of a value not exceeding five thousand dollars, the property of [the Patient], knowing that all or part of the said property had been obtained by an offence punishable by indictment, contrary to Section 354, subsection (1) of the Criminal Code of Canada.

b. On August 29, 2017, you were convicted of the following offences, which you did not report:

i. Between the 13^th day of September in the year 2016 and the 17^th day of October in the year 2016 at the City of Oshawa in the Central East Region did, by deceit, falsehood or other fraudulent means, defraud President’s Choice Financial of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada;

ii. Between the 13^th day of September in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did use a credit card in the name of [the Patient], knowing the said credit card had been obtained by the commission in Canada of an offence, contrary to Section 342, subsection (1), clause (c), paragraph (i) of the Criminal Code of Canada;

iii. Between the 18^th day of October in the year 2016 and the 29^th day of October in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Canadian Tire of merchandise of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada; and

iv. Between the 24^th day of October in the year 2016 and the 1^st day of November in the year 2016 at the City of Oshawa in the Central East Region did by deceit, falsehood or other fraudulent means, defraud Capital One of money of a value not exceeding five thousand dollars, contrary to Section 380, subsection (1), clause (b) of the Criminal Code of Canada.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1-6 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

College Counsel and the Member’s Counsel 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. Jacqueline Annette Henderson (the “Member”) obtained a diploma in nursing from Centennial College in 2003.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on March 1, 2004. Her certificate of registration has been interim suspended since August 16, 2017 due to an Order of the Inquiries, Complaints and Reports Committee of CNO (“ICRC”).

3. The Member worked as a full time Care Coordinator at the Central East Community Care Access Centre (“CECCAC”) in Whitby, Ontario, from July 2, 2014 to November 17, 2016. The Member’s employment was terminated as a result of the incidents outlined below.

CECCAC

4. As a Care Coordinator at CECCAC, the Member assessed patients for services, arranged for service provision and worked with community partners such as long-term care facilities in respect of patients.

5. The Member’s caseload included twelve patients. The Member’s patients were typically frail, elderly, and/or high risk in the community, and were all awaiting long-term care placement.

THE PATIENT

6. [The Patient] was 79 years old at the time of the incidents. In or around September 2016, the member was assigned as a Care Coordinator for the Patient.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Misappropriation of the Patient’s Property

7. Between September and October 17, 2016, on occasions when she was attending at the Patient’s home to perform Care Coordinator duties, the Member obtained and used the Patient’s personal information to open a credit card, but used her own personal phone number as the contact information for the credit card company to reach her. The Member also found and took other credit cards from [the Patient]’s home. The Member then used the credit cards to make various purchases and cash advances, including at fast-food restaurants, Wal-Mart, Urban Barn, No Frills, Home Sense, Cost-Co and the LCBO.

8. The Member’s conduct was discovered in part by the assistance of a neighbour and also by a Social Worker who was assigned to help the Patient organize her financial paperwork. These individuals helped the Patient file a police report and alert the credit card companies.

9. The police began investigating, including reviewing security footage from the stores. When the Member learned of the investigation in progress, she admitted her conduct to a co-worker, who told her to admit her conduct to the police. The Member did so.

10. If the member were to testify, she would explain that shortly after this conduct she was diagnosed with a medical condition and has since sought treatment.

Criminal Charges and Findings of Guilt

11. The Member was charged in June 2017 with three separate sets of five charges each, for a total of 15 fraud-related charges. All of these charges related to the Member obtaining and using three different credit cards under the Patient’s name and information.

12. On August 29, 2017, the Member pled guilty and was found guilty of four of the fraud-related charges. In particular, she pled guilty and was found guilty of three counts of fraud under $5,000 against credit card companies, and one count of using a credit card in the name of the Patient knowing that the said credit card had been obtained by the commission of an offence. Two of the charges were amended at the time of the guilty plea. One charge was amended to fraud under $5000 and another charge was amended to change the date and remove the name of the credit card.

13. Although the three counts of fraud were against the credit card companies, who reimbursed the Patient for the charges upon determining they were fraudulent transactions, the direct victim against whom the acts were carried out in relation to all of these charges was the Patient.

14. In the guilty plea and sentencing proceedings, the Member admitted that, while working as an RN and providing nursing services to the Patient, she illegally obtained and used three credit cards in the Patient’s name.

15. The Member was sentenced on July 17, 2018 to a conditional sentence for 9 months, including a house arrest home confinement condition for the first 4 ¼ months, followed by a subsequent 18 months of probation. At the time of sentencing, the Member had already made restitution of $8,000 and was ordered to make a further $2,226.34.

Failure to Report to CNO

16. The Member was required to report any criminal charges and findings of guilt to CNO, as a condition of her certificate of registration, in accordance with section 1.5(1) of Ontario Regulation 275/94, made under the Nursing Act, 1991. The obligation for members to report findings of guilt is also set out in section 85.6.1 of the Health Professions Procedural Code.

17. The Member failed to report both the criminal charges from June 2017 and the findings of guilt from August 2017 to CNO.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

18. The Member admits that she was found guilty of three counts of fraud under $5,000 against credit card companies, and one count of using a credit card in the name of the Patient knowing that the said credit card had been obtained by the commission of an offence and that the findings of guilt are relevant to her suitability to practice.

19. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 (a) to (d) of the Notice of Hearing in that she was found guilty of offences relevant to her suitability to practice, as described in paragraphs 7-15 above.

20. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing in that she misappropriated credit cards from the Patient, as described in paragraphs 7-10 above.

21. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3 (a) to (d), 4 (a) to (o), 5 (a) to (d) and 6(a) (i) – (xv) and (6) (b) (i) – (iv) of the Notice of Hearing, in that she failed to report charges and findings of guilt to the Executive Director of CNO, and that this conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 11-17 above.

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 1(a), (b), (c), (d); 2; 3(a), (b), (c), (d); 4 (a) (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n) (o); 5(a), (b), (c), (d); 6 (a)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv); 6(b)(i), (ii), (iii) and (iv) in the Notice of Hearing. As to allegation 6, the Panel finds that the Member engaged in conduct that would reasonably be considered by members of the profession to be disgraceful, dishonourable, and unprofessional.

Reasons for Decision

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

Allegation #1 in the Notice of Hearing is supported by paragraphs 7 – 15 in the Agreed Statement of Facts. The Member was found guilty of four fraud related charges which were relevant to her suitability to practice. The Member admitted that, while working as an RN in the role of a Care Coordinator, she obtained and used three credit cards which were in the name of her Patient. The Member also admitted that she used the Patient’s personal information to obtain an additional credit card.

Allegation #2 in the Notice of Hearing is supported by paragraphs 7 – 10 in the Agreed Statement of Facts. The Member pled guilty to misappropriating credit cards from her Patient.

Allegation #3 in the Notice of Hearing is supported by paragraphs 11 – 17 in the Agreed Statement of Facts. The Member admitted that she contravened a term, condition or limitation on her certificate of registration when she failed to report her findings of guilt to the College.

Allegation #4 in the Notice of Hearing is supported by paragraphs 11- 17 in the Notice of Hearing. The Member admitted that she neglected to report her criminal charges to the College. This is a contravention of the terms, conditions or limitations placed on her certificate of registration.

Allegation #5 in the Notice of Hearing is supported by paragraphs 11 -17 in the Notice of Hearing. The Member admitted that she contravened the regulations under the Nursing Act and the Health Professions Procedural Code when she failed to report the findings of guilt to the College.

With respect to Allegation #6, the Panel finds that the Member’s conduct was unprofessional when she obtained and used credit cards belonging to a Patient. This demonstrates a serious disregard for her professional obligations. The Member’s conduct was also repetitive and persistent in nature as her fraudulent actions occurred over a period of one month.

The Panel also finds that the Member’s conduct was dishonourable. Misappropriating property from a Patient is dishonest and is evidence of a moral failure. Failure to report charges and findings of guilt to the College is deceitful and has the intent of hiding relevant information that the College needs to be able to fulfill its mandate of protection of the public. This conduct falls well below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful. The Member took advantage of an elderly, vulnerable patient who believed that the Member was there to help. The Member gained financially from the misappropriated credit cards. This conduct has the effect of shaming the Member and, by extension, the profession. It casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations expected of professionals.

Penalty

College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on 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 12 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 two meetings with a Regulatory 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, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses,

3. Code of Conduct;

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 24 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:

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.

c) The Member shall not practice independently in the community for a period of 24 months from the date the Member returns to the practice of nursing.

4. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

The mitigating factors in this case were:

• The Member has cooperated with the College;

• The Member has admitted and accepted responsibility for her actions;

• The Member pled guilty early in the criminal process;

• She has no prior history of misconduct;

• Around the time of the misconduct, the Member was diagnosed with a medical condition; and

• The Member is receiving treatment for this medical condition.

The aggravating factors in this case were:

• The Member’s misconduct is very serious and relates directly to her professional obligations;

• The Member’s misconduct occurred in a Patient’s home where the Member was expected to provide nursing care;

• The Member’s findings of guilt involved both theft and dishonesty;

• The breach of trust involved an elderly, vulnerable patient;

• The Member’s misconduct involved personal gain; and

• The Member’s misconduct brings discredit to the profession as a whole.

The proposed penalty provides for general and general deterrence through the lengthy 12 month suspension and the reprimand.

The proposed penalty provides for remediation and rehabilitation through the terms, limitations and conditions imposed on the Member’s certificate of registration. The Member will also be required to review various College publications and have two meetings with a Regulatory Expert.

Overall, the public is protected because the Member will be required to notify her employers of the decision of the Discipline Committee for 24 months and will not be permitted to practice independently for 24 months from the date she returns to practice.

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

College Counsel submitted that the case of CNO v. Victor Manzano III (Discipline Committee, 2016) is the most relevant as the facts and penalty are similar. The member was charged and convicted of stealing credit cards from four patients in the facility where he worked. The member failed to report his charges and convictions to the College. The member participated in the disciplinary process. The parties agreed and accepted the same penalty: a 12 month suspension and a 24 month employer notification requirement.

The case of CNO v. Bernadette Amber Halladay (Discipline Committee, 2017) has some similarities in that the member was charged and convicted on eight criminal offences which involved stealing credit cards. Some of the offences involved her patients and occurred in her workplace. The member did not participate in the disciplinary process. As a result, no mitigating factors were presented to the panel. The member’s certificate of registration was revoked.

Submissions were also made by the Member’s Counsel.

The mitigating factors in this case, as submitted by Member’s Counsel were:

• The Member has voluntarily admitted the facts alleged against her;

• The Member, as a result of her admissions, has saved the College valuable resources by not having a contested hearing;

• The College is able to discharge its duty to protect the public;

• The Member’s admissions are parallel to her admissions in criminal court;

• The Member has answered for her criminal convictions by being on house arrest and probation;

• The Member cooperated with the College and came to an Agreed Statement of Fact;

• A medical condition was operative at the time of the allegations;

• The Member sought treatment for her medical condition and did not use it as an excuse for her conduct; and

• The Member has deep remorse regarding the circumstances that brought her to the College.

The Member asked if she could address the Panel. The Member apologized and promised to uphold her professional obligations once she returns to nursing practice. The Member stated that she takes seriously the events that brought her to the College.

Penalty Decision

The Panel accepted the Joint Submission on 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 12 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 two meetings with a Regulatory 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, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses,

3. Code of Conduct;

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 24 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:

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.

c) The Member shall not practice independently in the community for a period of 24 months from the date the Member returns to the practice of nursing.

4. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has cooperated 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. It sends a strong message to the Member, and the membership as a whole, that actions such as these will not be tolerated. Members must ensure that all charges and findings of guilt are reported to the College. Members are also expected to consistently maintain high professional and ethical standards. This is particularly the case when members are engaged in independent practice with a vulnerable population.

The public is protected by the fact that the Member has accepted responsibility for her actions and will be rehabilitated by the suspension and the meetings with the expert. There is also a significant period of employer notification that will ensure that, when the Member returns to practice, she obtains appropriate supervision.

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

I, Grace Fox, NP, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.