College of Nurses of Ontario v. Holly Shier, 2019 ONCNO 128953

PANEL: Terry Holland, RPN Chairperson Catherine Egerton, Public Member Mary MacNeil, RN Member Christopher Woodbury, Public Member

BETWEEN:

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

and -

HOLLY SHIER Registration No.: JC03560 NO REPRESENTATION for Holly Shier

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: August 19, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on August 19, 2019 at 9:30 a.m. at the College of Nurses of Ontario (the “College”) at Toronto.

As Holly Shier (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not in attendance.

College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing on June 6, 2019. The Panel was satisfied that the Member had received adequate notice of the hearing and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated June 2, 2019, 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(20) of Ontario Regulation 799/93, in that while registered as a member of the College of Nurses of Ontario, you failed to appear before a panel of the Inquiries, Complaints and Reports Committee (“ICRC”) to be orally cautioned on or about October 18, 2017, pursuant to a decision of the ICRC, dated August 10, 2017; and/or
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:

a. complete a Specified Continuing Education or Remediation Program that you were ordered to complete by a decision of the ICRC dated August 10, 2017; and/or

b. appear before a panel of the ICRC to be orally cautioned on or about October 18, 2017, pursuant to a decision of the ICRC, dated August 10, 2017.

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member was initially registered as a Registered Practical Nurse (“RPN”) with the College on March 13, 2003. The Member is currently registered in the General Class. The Inquiries, Complaints and Reports Committee (the “ICRC”) of the College had a meeting on August 10, 2017, at which time a decision requiring the Member to complete a Specified Continuing Education or Remediation Program (“SCERP”) was made. The SCERP included:

A review of the College Professional Standards, Therapeutic Nurse-Client Relationship Standard as well as Medication and Documentation Standards;
A review of the “Reflective Questionnaire”;
Complete online learning modules of the Professional Standards, Therapeutic Nurse-Client Relationship and Documentation Standards; and
A meeting with an Approved Regulatory Expert within three months of the date of the letter dated August 10, 2017.

The Member was also to attend an oral caution before the ICRC which was scheduled for October 18, 2017. The College alleged that the Member neither completed the required SCERP nor attended the oral caution as ordered.

The issues are as follows:

(1) Was the Member aware of the ICRC decision dated August 10, 2017 requiring the Member to complete a SCERP?

(2) Was the Member aware of the Oral Caution scheduled for October 18, 2017?

(3) Did the Member fail to complete the requirements of the SCERP and attend the oral caution?

(4) Should the failure to complete the requirements of both the SCERP and to attend the oral caution that was ordered by the ICRC result in a finding of professional misconduct?

The Panel heard evidence from one witness and received 13 exhibits to consider. As set out more fully below, the Panel found the Member committed professional misconduct as alleged in the Notice of Hearing and engaged in conduct that would be regarded by members of the profession to be unprofessional and dishonourable.

The Evidence

Issues 1 and 2: Was the Member aware of the ICRC decision dated August 10, 2017 requiring the Member to complete a SCERP; Was the Member aware of the oral caution scheduled for October 18, 2017?

The College called [Witness A], a Monitoring Administrator at the College who testified that a letter was sent by regular mail on August 10, 2017 to the Member at the address provided to the College by the Member notifying her of the Decision of the ICRC. The correspondence (Exhibit #3) included the written decision of the ICRC dated August 10, 2017 requiring the Member to complete the SCERP and attend for an oral caution.

[Witness A] testified that she sent a second letter to the Member by regular mail on August 11, 2017 (Exhibit #4). This letter explained how to comply with the Order from the ICRC. The correspondence also included an instruction worksheet and set October 18, 2017 as the date of the oral caution.

[Witness A] was asked by College Counsel about the returned mail (Exhibit #5). The letter returned was the correspondence from the ICRC dated August 11, 2017 (Exhibit #4). It came back “unclaimed” “return to sender” on October 13, 2017. [Witness A] was asked by College Counsel and confirmed that the email she sent the Member on October 16, 2017 (Exhibit #6) was to the email address for the Member on file at the College. In the email she asked the Member to confirm her address on file. There was no response from the Member nor did the email bounce back as undelivered.

[Witness A] sent another letter to the Member dated November 14, 2017 to the same address where the previous correspondence was sent (Exhibit #7). This letter was to advise the Member she may have breached the terms in the Order. This letter was not returned in the mail.

[Witness A] testified that she sent a further letter (Exhibit #8) to the Member dated January 11, 2018 as a follow up to the letter mentioned in the previous paragraph, to which there had been no response from the Member. This letter was not returned in the mail.

[Witness A] sent a letter to the Member dated February 15, 2018 to advise that the Member had breached the terms set out in the Order and that her file had been transferred to the Reports and Prosecutions team (Exhibit #9). This letter was not returned in the mail.

[Witness A] was asked to confirm the email address for the Member on record at the College (Exhibit #10). [Witness A] confirmed the email and home address for the Member as of December 29, 2016 as per the membership renewal information sent by the Member to the College.

[Witness A] was asked and confirmed that the Member’s address at the time of her 2018 renewal and the address in 2016 were the same. [Witness A] then confirmed the address on the 2019 renewal form (Exhibit #13) was also the same address on file from 2016. [Witness A] also testified that only one letter had been returned to the College and no email had bounced back.

Issue 3: Did the Member fail to complete the required elements of the SCERP including the Oral caution?

As per [Witness A]’s testimony above, the College had sent a letter to the Member dated August 11, 2017 and enclosed the SCERP instruction sheet. The instructions required the Member to contact the monitoring team with the date of the scheduled meeting with the expert, and to subsequently contact the monitoring team when the meeting with the expert had been completed. The Member never responded to any correspondence or email. The Panel did note that the letter of August 11, 2017 was returned to the College as “unclaimed” “return to sender”, but mailings after that time appeared to have been delivered. The Member did not attend for the oral caution.

Issue 4: Should the failure to complete the requirements of both the SCERP and to attend the oral caution that was ordered by the ICRC result in a finding of professional misconduct?

The Panel asked College Counsel for confirmation that ICRC had the authority to make the Order.

College Counsel advised the Panel that ICRC made the Order pertaining to this issue pursuant to Section 26(1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991.

Final Submissions

College Counsel submitted three cases in which there were similar allegations of conduct at this College.

CNO vs Cornelius (Discipline Committee, July 2014). This case is similar in that it also involves a member who failed to complete a SCERP after being given several opportunities to comply. The panel found this failure would be reasonably regarded by the members as dishonourable and unprofessional.

CNO vs Singh (Discipline Committee, October 2016). This case is similar in that it also involved a member who failed to complete a SCERP after being provided with several opportunities to comply. The panel found this failure would reasonably be regarded by members of the profession as dishonourable and unprofessional.

CNO vs Shawanda (Discipline Committee, April 2017). This case is similar in that it also involves a member who failed to complete a SCERP after being provided with several opportunities to comply. The panel found this failure would reasonably be regarded by members of the profession as dishonourable and unprofessional.

Decision

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

Allegation #1

The Panel found that the Member failed to appear before a panel of the ICRC for an oral caution. The ICRC notified the Member by mail in a letter dated August 10, 2017 to appear on October 18, 2017. The Member’s failure to appear is an act of professional misconduct.

Allegations #2(a) and 2(b)

The Panel found that the Member failed to complete a SCERP as required and failed to appear before a panel of the ICRC for an oral caution.

The Panel found that the Member engaged in conduct that would reasonably be considered by members as unprofessional and dishonourable. The Member’s persistent failure to meet her professional obligations by repeatedly choosing to not comply with the ICRC’s orders and lack of response to the College leads to governability concerns as well.

Reasons for Decision

The Panel was satisfied that the Member was aware of the SCERP and of the requirement to attend for an oral caution. It was noted that one letter was returned to the College while all other communications appear to have been delivered.

It is also the responsibility of the Member to ensure information is current and accurate on file with the College including updated email and mailing address. The College followed appropriate procedures and gave the Member ample opportunity to respond to the notices.

Compliance with orders from any of the statutory committees is key to maintenance of the College’s ability to self-govern. For this reason, the Panel finds the Member’s conduct would be reasonably regarded as dishonourable and unprofessional. This behaviour shows a lack of professionalism and unwillingness to be governed by the College.

The Member’s conduct shows a serious and persistent disregard of her professional obligations. Ignoring any order of the ICRC shows disrespect. The Member was given additional opportunities to bring herself into compliance with the order and chose to ignore all communications and opportunities. When a member fails to comply with a directive from a statutory committee, it brings dishonour to the profession, particularly in a self-regulating profession such as nursing.

Penalty

College Counsel requested that this Panel make an order as follows:

Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 4 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 a minimum of 2 meetings with a Nursing Expert (the “Expert”) at her own expense and within 6 months from the date that this Order becomes final. 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 12 months from the date that this Order becomes final.

b) 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, 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 (where applicable):

Professional Standards,
Code of Conduct,
Therapeutic Nurse-Client Relationship,
Medication, and
Documentation

iv. Before the first meeting, the Member completes the College of Registered Nurses of British Columbia online learning module, Communication in Nursing Practice Module, and the accompanying workbook located at: https://www.crnbc.ca/Lists/Flash%20Modules/Communications/player.html

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 and Nurses’ Workbook;

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 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 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;

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

Penalty Submissions

College Counsel submitted that there are three interests to consider with respect to penalty and they include the public, the profession and the Member. There is a need to maintain public confidence in the self-regulation of nurses through the College, a need for general deterrence for the profession as a whole; and a need for specific deterrence for the Member. College Counsel also referred to the goal of rehabilitation of the Member where that is appropriate.

Aggravating factors in this matter included:

The Member’s conduct was serious and intentional;
The Member had many opportunities to comply with this order;
The Member showed a disregard for her professional obligations;
The Member’s governability is in question; and
The Member’s behaviour discredits the profession and its ability to self-regulate.

The only mitigating factor is that the Member has no record of prior discipline proceedings with the College.

The proposed penalty provides for general deterrence and specific deterrence through an oral reprimand and a four month suspension.

The proposed penalty provides remediation and rehabilitation to the Member by imposing terms, conditions and limitations on the Member’s certificate of registration. The two meetings with a nursing expert will allow the Member to reflect on her professional and standards requirements.

College Counsel referred the Panel to the three previous cases that were highlighted earlier. The penalties in those cases ranged from two to four months suspensions as well as terms, conditions and limitations. They also included reprimands and meetings with a nursing expert.

The College submitted that the proposed penalty will restore confidence in the profession by the public and act as a rehabilitation method for the Member. The Member will be required to have meetings with an expert in nursing and complete the necessary requirements as directed by the ICRC.

Penalty Decision

The Panel accepts College Counsel’s Submission on Order and makes the following Order:

The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 4 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.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

b) 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, and
if available, a copy of the Panel’s Decision and Reasons;

Professional Standards,
Code of Conduct,
Therapeutic Nurse-Client Relationship,
Medication, and
Documentation

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 and Nurses’ Workbook;

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 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;

All documents delivered by the Member to the CNO, 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 reviewed the cases and noted that the suspension penalties ranged from two to four months. The Panel found that a four month suspension reflected the seriousness of this case. The Member had the opportunity to comply with the College’s repeated requests for compliance and her lack of governability is a serious concern. The Member’s persistent disregard for her obligations to the regulatory process is of grave concern.

The penalty meets the goal of general deterrence by sending a clear message to the membership that failing to comply with an order from a statutory committee of the College is serious and will not be tolerated. The penalty meets the goal of specific deterrence through the suspension and reprimand of the Member.

Finally, the penalty meets the goals of protection of the public and remediation through the suspension, as well as the terms, conditions and limitations placed upon the Member’s certificate of registration, which include meetings with a nursing expert.

I, Catherine Egerton, Public Member, sign this decision and reasons for the decision on behalf of the members of the Discipline Panel.