College of Nurses of Ontario v. Odile Magakou, 2019 CanLII 128954

minicounsel

PANEL: Mary MacMillan-Gilkinson Chairperson Renate Davidson Public Member

Terry Holland, RPN Member

Carolyn Kargiannakis, RN Member

Linda Marie Pacheco, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DENISE COONEY for

) College of Nurses of Ontario

and - )

ODILE MAGAKOU ) GREGORY KO for

Registration No.: 10438902 ) Odile Magakou

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: July 9, 2019

DECISION AND REASONS

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

Odile Magakou (the “Member”) was present and represented by Counsel. The Member was provided with French language interpreter services.

The Allegations

College Counsel advised the Panel that the College and the Member were requesting leave to withdraw the allegations set out in paragraphs 1(a)(i) and 4(a)(i) of the Notice of Hearing dated July 4, 2019. The Panel granted this request.

In addition at the request of College Counsel, and unopposed by the Member’s Counsel, the Panel made an order pursuant to s.40 of the Health Professional Procedural Code of the Nursing Act, 1991, that allegations 1(a)(iv) and 4(a)(iv) in the Notice of Hearing be amended. The allegations against the Member as stated in the Notice of Hearing as amended, with the amendments underlined, are as follows:

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at Bayshore Home Health, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

a. you failed to maintain the appropriate boundaries of the therapeutic nurse-client relationship with [the Patient] and/or in his family including but not limited to:

i. [withdrawn];

ii. you requested that [the Patient]’s father ask Bayshore Home Health to assign you additional shifts with [the Patient] in or about September 2017;

iii. you requested [the Patient]’s father provide you a letter of reference on or about September 21, 2017; and/or

iv. you remained in [the Patient]’s home without a clinical purpose, on or about September 21, 2017;

b. you failed to maintain appropriate documentation with respect to the care you provided [the Patient] in June 2017;

c. you removed [the Patient]’s communication book containing his health records from his home without a clinical purpose, and without consent or authorization, on or about September 21, 2017; and/or

d. you failed to return [the Patient]’s communication book containing his health records after removing them from his home on or about September 21, 2017.

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 paragraph 1(13) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at Bayshore Home Health, you failed to keep records as required, and in particular, in or about June 2017, you failed to maintain appropriate documentation with respect to the care you provided [the Patient] in June 2017.
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 paragraph 1(8) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at Bayshore Home Health, you misappropriated property from [the Patient] when you removed his communication book containing his health records.
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 that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:

a. you failed to maintain the appropriate boundaries of the therapeutic nurse-client relationship with [the Patient] and/or in his family including but not limited to:

i. [withdrawn];

ii. you requested that [the Patient]’s father ask Bayshore Home Health to assign you additional shifts with [the Patient] in or about September 2017;

iii. you requested [the Patient]’s father provide you a letter of reference on or about September 21, 2017; and/or

iv. you remained in [the Patient]’s home without a clinical purpose, on or about September 21, 2017;

b. you failed to maintain appropriate documentation with respect to the care you provided [the Patient] in June 2017;

d. you failed to return [the Patient]’s communication book containing his health records after removing them from his home on or about September 21, 2017.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a)(ii), (iii), (iv); 1(b); 1(c); 1(d); 2; 3; 4(a) (ii), (iii), (iv); 4(b); 4(c) and 4(d) 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 admissions were 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 (ASF), which reads, unedited, as follows:

THE MEMBER

Odile Magakou (the “Member”) obtained a baccalaureate degree in Nursing from York University in 2010.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on November 4, 2010. The Member resigned her certificate of registration with CNO on November 7, 2018.
The Member was employed as a community nurse at Bayshore Home Health, a community care agency in Ottawa, Ontario (the “Agency”), from August 15, 2016, until September 21, 2017. Her employment was terminated as a result of the incidents described below.
The Member registered as an RN with the Ordre des infirmières et infirmiers du Québec (“OIIQ”) on March 16, 2018. She is currently practicing as an RN in Quebec.
At the time in question, the Member was a single mother with sole childcare responsibilities for a young child.

THE PATIENT

[The Patient] (the “Patient”) was nine years old at the time of the incidents.
The Patient had developmental delays and severe disabilities. He suffered from frequent seizures and required a feeding tube and daily medication regime.
The Patient received nursing care through the Agency.
The Member provided the Patient with nursing care through the Agency during two periods: a two week period in June 2017, and in September 2017.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

June 2017

The Member first provided care to the Patient for a two-week period in June 2017.
The nursing care the Member provided during this period included maintenance of the Patient’s feeding tube, administering his medication, and attending to his seizures.
The Member failed to document any of the care she provided to the Patient during this period. The Agency required that the Member conduct and document an initial assessment of the Patient’s needs, her initial visit, any subsequent care provided, as well as her assessment of the Patient’s condition throughout each day on which she provided care.

September 2017 Incidents

In September 2017, the Member was assigned to provide care to the Patient two days per week during the Patient’s school day. The Agency also assigned a second nurse to provide care to the Patient on the school days where the Member was not assigned to provide him care.
If the Member were to testify, she would say that she believed that the Patient and his family would benefit from having a single nurse provide care to [the Patient] on a full-time basis. However, she also acknowledges that she would have personally preferred to provide care to [the Patient] on a full-time basis.
The Member suggested to the Patient’s father, [the Patient’s Father], on more than one occasion that he call the Agency to request that the Member be the only nurse assigned to provide care to the Patient, so she would provide care to the Patient on a full-time basis. If [the Patient’s Father] were to testify, he would say that he understood she needed the money to pay for childcare for her own child.
On or about September 21, 2017, the Member again suggested that [the Patient’s Father] contact the Agency to have the Member assigned to provide full-time care to the Patient. If [the Patient’s Father] were to testify, he would say that he did not want to make the request, but called the Agency on September 21, 2017 to request that the Member be assigned to the Patient full-time to put an end to the situation.
The Agency was confused by [the Patient’s Father]’s request and followed up with him. On that second call, [the Patient’s Father] reported to the Agency that it was the Member who had suggested he call the Agency to ask that the Member be assigned to provide full-time care to the Patient and that he was not comfortable with making the request.
After receiving this call, the Agency phoned the Member to inform her that she had been removed from the Patient’s schedule and was to have no further contact with the Patient’s family. The Member was upset and ended the call.
At the time she was notified, the Member was at the Patient’s home completing her shift. The Member remained in the Patient’s home after the end of her shift, though there was no clinical reason to do so. If the Member were to testify, she would say that she remained in the home with the permission of [the Patient’s Father]’s spouse in order to inform [the Patient’s Father] in person that she would no longer be working with the Patient. She, however, acknowledges that doing so was not appropriate.
When [the Patient’s Father] returned home, the Member informed [the Patient’s Father] that she would no longer be assigned to his son and asked [the Patient’s Father] to write her a letter of reference. [The Patient’s Father] agreed to write her a letter of reference and they proceeded to drive to the public library because [the Patient’s Father] did not have a computer at home.
Around the same time, the Agency called [the Patient’s Father] to report that the Member was no longer assigned to the Patient. During the call, [the Patient’s Father] reported that the Member was at their home and he ended the call.
The Agency’s Area Director was concerned with the Member’s conduct, and attended at the Patient’s home to ensure that the Member was not disturbing the Patient and his family. The Member and [the Patient’s Father] were at the library when the Area Director arrived. They arrived at the home approximately 20 minutes later. When they arrived, the Area Director advised the Member that her assignment with the Patient was completed, and that they should leave the home.
The Member and the Area Director had a heated exchange outside of the Patient’s home. The Member refused to leave the Patient’s home despite the Area Director’s repeated direction that they leave the family be. The interaction was witnessed by the Patient’s family, who were upset and confused by it. If the Member were to testify, she would say that she was upset because she felt that the Agency had not treated her fairly in terms of scheduling and hours of work.
Earlier on September 21, 2017, the Member had taken the Patient’s communication book, which she had transported to and from the Patient’s school. The communication book contained the Patient’s health records, and was used by the Patient’s service providers to communicate regarding the Patient’s health needs. The communication book was to remain with the Patient at all times, but the Member had retained the communication book in her workbag after her shift, for no clinical purpose.
During the course of her interaction with the Area Director outside the Patient’s home, the Area Director requested but the Member declined to return the communication book. The Member advised that she needed to retain the file to show she was a good nurse.
The Patient’s communication book containing his health records was never recovered by the Patient, his family, school, or the Agency.
The Patient’s family confirmed that: (a) the Member was always kind to the family, (b) that they enjoyed working with her, and (c) that they had no concerns about the care she provided to the Patient prior to the September 21, 2017 incident.
The Agency confirmed that the Member was a good employee and always stepped up. The Agency indicated that the episode with the Patient’s family was out of character.
If the Member were to testify, she would explain that her conduct in September 2017 was the product of the stress she encountered at the Agency in maintaining regular and sufficient hours to support her child and her childcare responsibilities as a single mother.

COLLEGE STANDARDS

Professional Standards

CNO’s Professional Standards provides that “[e]ach nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships. One way of doing so is “maintaining boundaries between professional therapeutic relationships and non-professional personal relationships.”
In terms of relationships, the standard sets out indicators nurses must demonstrate, including:

ensuring clients’ needs remain the focus of nurse-client relationships;
developing collaborative partnerships with clients and families that respect their needs, wishes, knowledge, experiences, values and beliefs.

The Member admits that she contravened the Professional Standards when she acted outside of the boundaries of the therapeutic relationship, as described in paragraphs 15-26 above.

Therapeutic Nurse-Client Relationship Standard

CNO’s Therapeutic Nurse-Client Relationship standard begins by stating that therapeutic nursing services “contribute to the client’s health and well-being” and the relationship is based on “trust, respect, empathy and professional intimacy, and requires the appropriate use of power inherent in the care provider’s role.”
The standard defines “Boundary” as the following:

A boundary in the nurse-client relationship is at the point at which the relationship changes from professional and therapeutic to unprofessional and personal. Crossing a boundary means that the care provider is misusing the power in the relationship to meet her/his personal needs, rather than the needs of the client, or behaving in an unprofessional manner with the client. The misuse of power does not have to be intentional to be considered a boundary crossing.

The standard indicates that nurses must maintain boundaries as they “are responsible for effectively establishing and maintaining the limits or boundaries in the therapeutic nurse-client relationship.”
The standard provides that a nurse meets the standard in a number of ways, including by:

ensuring that any approach or activity that could be perceived as a boundary crossing is included in the care plan developed by the health care team;
recognizing that there may be an increased need for vigilance in maintaining professionalism and boundaries in certain practice settings (for example, when care is provided in a client’s home, a nurse may become involved in the family’s private life and needs to recognize when her/his behaviour is crossing the boundaries of the nurse- client relationship);
continually clarifying her/his role in the therapeutic relationship, especially in situations in which the client may become unclear about the boundaries and limits of the relationship… ;
consulting with colleagues and/or the manager in any situation in which it is unclear whether a behaviour may cross a boundary of the therapeutic relationship …;
ensuring that the nurse-client relationship and nursing strategies are developed for the purpose of promoting the health and well-being of the client and not to meet the needs of the nurse …

The Member admits that she contravened the Therapeutic Nurse-Client Relationship standard when she failed to maintain the boundaries of the therapeutic relationship, as described in paragraphs 15-26 above.

Documentation

CNO’s Documentation standard states that:

Nursing documentation is an important component of nursing practice and the interprofessional documentation that occurs within the Patient health record. Documentation — whether paper, electronic, audio or visual — is used to monitor a Patient’s progress and communicate with other care providers. It also reflects the nursing care that is provided to a client.

A nurse meets the standard by “ensuring their documentation of client care is accurate, timely and complete.”
The Member admits that she contravened the Documentation standard when she failed to document any of the care provided to the Patient in June 2017, as described in paragraph 12 above; and when she removed and failed to return the Patient’s communication book in September 2017, as described in paragraphs 24-26 above.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as described in paragraphs 15-26 above, in that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as alleged in the Notice of Hearing, as follows:

1(a) she failed to maintain the appropriate boundaries of the therapeutic nurse-client relationship with the Patient and his family including but not limited to:

o (ii) she requested that the Patient’s father ask the Agency to assign her additional shifts with the Patient in or about September 2017; and

o (iii) she requested the Patient’s father provide her a letter of reference on or about September 21, 2017.

o (iv) she remained in the Patient’s home without a clinical purpose on or about September 21, 2017.

1(b) she failed to maintain appropriate documentation with respect to the care she provided the Patient in June 2017.
1(c) she removed the Patient’s communication book containing his health records from his home without a clinical purpose, and without consent or authorization, on or about September 21, 2017; and
1(d) she failed to return the Patient’s communication book containing his health records after removing them from his home on or about September 21, 2017.

The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, and in particular, she failed to keep records as required, when she failed to maintain appropriate records with respect to the care she provided the Patient in June 2017, as described in paragraphs 10-12 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, and in particular, she misappropriated property from the Patient when she removed his communication book containing his health records, as described in paragraphs 24-26 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 4(a)(ii), (a)(iii), a(iv), (b), (c), (d) of the Notice of Hearing, and in particular, that her conduct was dishonourable and unprofessional, as described in paragraphs 12 and 15-26 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 paragraphs 1(a)(ii); (iii); (iv); 1(b); 1(c); 1(d); 2; 3; 4(a)(ii); (iii); (iv); 4(b); 4(c) and 4(d) in the Notice of Hearing. As to the entirety of allegation #4, the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be dishonourable and unprofessional.

Reasons for Decision

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

Allegation #1(a)(ii) in the Notice of Hearing is supported by paragraphs 15, 16, 17, 18 and 41 in the ASF. The Member, on more than one occasion, suggested to the Patient’s father that he approach the Agency to have the Member assigned to provide full-time care to the Patient, which he ultimately reluctantly did. This resulted in an inquiry from the Agency and the subsequent removal of the Member from the assignment. The Member’s conduct in making such a request was a breach of the Professional Standards as stated in paragraphs 30 and 31 of the ASF and the Therapeutic Nurse-Client Relationship Standard as stated in paragraphs 33 to 36 of the ASF as she acted outside of the boundaries of the therapeutic relationship.

Allegation #1(a)(iii) in the Notice of Hearing is supported by paragraphs 20 and 41 in the ASF. The Member, upon being removed from this assignment, asked the Patient’s father to provide her with a letter of reference. This request was a breach of the Professional Standards and the Therapeutic Nurse-Client Relationship Standard.

Allegation #1(a)(iv) in the Notice of Hearing is supported by paragraphs 19, 20, 21, 22, 23 and 41 in the ASF. The Member, upon being removed from this assignment, remained in the Patient’s home without a clinical purpose. In doing so, the Member breached the Professional Standards and the Therapeutic Nurse-Client Relationship Standard.

Allegation #1(b) in the Notice of Hearing is supported by paragraphs 12 and 41 in the ASF. The Member failed to document the care she provided to the Patient during a two-week period in June 2017, ignoring the Agency requirement that she conduct and document the initial assessment of the Patient’s needs, her initial visit and any subsequent care as well as her ongoing assessment of the Patient’s condition. By failing to do so, the Member breached the Documentation Standard as stated in paragraphs 38 and 39 of the ASF.

Allegation #1(c) in the Notice of Hearing is supported by paragraphs 24 and 41 in the ASF. On September 21, 2017, the Member kept the communication book in her workbag after her shift even though it was to remain with the Patient at all times. The communication book contained the Patient’s health records and was used by his service providers to communicate regarding his health needs. This action was a breach of the Documentation Standard.

Allegation #1(d) in the Notice of Hearing is supported by paragraphs 25, 26, 40 and 41 in the ASF. The Member failed to return the communication book and as such breached the Documentation Standard. The communication book is a critical component of nursing care and is used to share important clinical information and to monitor a patient’s progress. The Member’s failure to return the book could have put the Patient at risk.

Allegation #2 in the Notice of Hearing is supported by paragraphs 12 and 42 in the ASF. The Member committed acts of professional misconduct when she failed to keep records as required, with respect to the care she provided the Patient in June 2017.

Allegation #3 in the Notice of Hearing is supported by paragraphs 24, 25, 26 and 43 in the ASF. The Member committed acts of professional misconduct when she misappropriated property from the Patient by removing his communication book that contained his health records.

Allegations #4(a)(ii), (iii), (iv); 4(b), 4(c) and 4(d) in the Notice of Hearing are supported by paragraphs 12 and 15 to 26 in the ASF. The Panel finds that the Member’s conduct was dishonourable and unprofessional. Her conduct demonstrated a serious disregard for her professional obligations. The fact that the Member did not complete proper documentation on the first assessment of this vulnerable [patient] was completely unacceptable and unprofessional. Furthermore, when her assignment was terminated, she misappropriated the communication book containing health records of the Patient potentially putting the Patient at risk which was unprofessional and dishonourable. The Member’s appeal to the Patient’s father to request the Agency place her on the assignment was unprofessional as was her ultimate request for a letter of reference. These behaviours showed a serious disregard for her professional obligations and an element of deceit that the Member knew or ought to have known were wrong.

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:

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 the Member obtains an active certificate of registration in a practising class, and shall continue to run without interruption as long as the Member maintains an active certificate of registration in a 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 2 meetings with a Regulatory Expert (the “Expert”), at her own expense and within 6 months from the date the Member obtains an active certificate of registration in a practising class. To comply, the Member is required to ensure that:

i. The Expert has expertise in Nursing Regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

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

iv. 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;

v. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;

vi. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration.

b) For a period of 12 months from the date the Member continues or returns to the practice of nursing in Ontario, 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 in Ontario;

ii. Provide her employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position in Ontario, the employer(s) forward(s) a report to the Director, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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

Submissions were made by College Counsel. College Counsel stated that the proposed penalty is a product of ongoing negotiations by College Counsel and the Member who was represented by experienced Counsel. The agreement is reasonable and in the public interest.

The aggravating factors in this case are the breach of the nurse-client boundaries and the abuse of power inherent in the nurse-client relationship. The Member tried to use that power imbalance for her own gain when she requested that the father of the Patient contact the home care agency and pursue additional shifts for her and when she requested a reference letter. The misappropriation of the communication book was a serious breach of her obligations as it contained health records that have never been recovered. Her conduct was intentional, deliberate, and repeated over a period of time.

College Counsel submitted that documentation is a critical component of the nursing process as it allows care providers to communicate with each other and supports safe nursing care. The Member, by removing the communication book, could have put the [P]atient at serious risk. Similarly the Member’s failure in June 2017 to document her assessment of the Patient could have put him at risk. College Counsel submitted that there is no doubt this conduct brings discredit to the profession.

The mitigating factors in this case are that the Member has co-operated with the College, has admitted the allegations and has accepted responsibility for her actions. She has no prior discipline history with the College and has expressed remorse.

The proposed penalty provides for specific and general deterrence through the 4 month suspension and the reprimand. Remediation and rehabilitation are provided for through two meetings with a nursing expert within 6 months from the date the Member obtains an active certificate of registration in the practicing class. Overall, the public is protected by the 12 month employer notification that will ensure the Member’s practice is monitored for a significant period of time when she returns to nursing after her suspension.

College Counsel submitted cases to the Panel to demonstrate some similarities to this case.

CNO v Zarac (Discipline Committee 2013)

This case involved a member who misappropriated a compact disc (CD) from the television in the patient’s room. The member indicated that she had obtained permission to remove the CD and intended to watch it in order for her to better care for the patient. The penalty was an oral reprimand, a two month suspension, two meetings with a nursing expert and employer notification for a period of 12 months.

In the case at hand, the misconduct was more egregious as the Member took the entire communications records for her own purposes and never returned them to the Patient or the agency.

CNO v Reinhart (Discipline Committee 2018)

This case involved a member who misappropriated a narcotic for her own use and failed to meet the basic need of a vulnerable [patient], resulting in neglect of the patient. The case also involved falsifying the patient’s record when she misappropriated the narcotic. The penalty was an oral reprimand, a five month suspension, two meetings with a nursing expert and employer notification for a period of 18 months.

CNO v Premji (Discipline Committee 2017)

This case involved a member allowing a 16-year old [patient] to watch an “R” rated movie on his iPad, and showing the [patient] his personal cellphone which contained family photos. The member also exchanged phone numbers with the [patient]. He initiated the exchange of personal text messages with the [patient] even texting a request for the name of the [patient’s] marijuana supplier. The penalty was an oral reprimand, a three month suspension, two meetings with a nursing expert and employer notification for a period of 12 months.

College Counsel submitted that in the case at hand, central to the allegations are the misappropriation of a patient’s health record, documentation issues and breaches of the nurse-client relationship. College Counsel stated that a 4 month suspension is within the range of penalties of previous cases.

The Member’s Counsel indicated that he agreed with College Counsel’s submissions. The Member’s Counsel reiterated that both parties worked diligently and co-operatively to properly respond to the allegations. He stated that the Member’s conduct was out of character and isolated. He referred to paragraphs 27 and 28 in the ASF which indicate that the Agency stated she was a good employee and always stepped up, and that the episode with the Patient’s family was out of character. The Patient’s family confirmed that the Member was always kind to the family, that they enjoyed working with her and that they had no concerns about the care she provided to the Patient prior to the September 21, 2017 incident.

The Member’s Counsel stated that the issue occurred during a time in the Member’s professional/personal life when she was struggling with the heavy demands of raising a young child while trying to maintain regular and sufficient hours to support her child and her childcare responsibilities as a single mother. He characterized her behaviour as dishonourable and unprofessional, but submitted that it did not rise to the level of disgraceful and reiterated that this was her first appearance before a discipline panel of the College. He submitted that the proposed penalty was reasonable and struck the proper balance between deterrence and protection of the public, remediation and rehabilitation. He reiterated that the Member was forthcoming in arriving at an ASF and Joint Submission on Order, thus avoiding the need to proceed with a long hearing. In accepting her responsibilities, the Member underscored she understands the seriousness of her conduct and commitment to remediate her practice as in the terms, conditions and limitations of the Order.

Independent Legal Counsel’s advice to the Panel was that the Joint Submission on Order should be accepted unless to do so would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. He reminded the Panel that its primary goal was to protect the public and maintain high professional standards.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

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 the Member obtains an active certificate of registration in a practising class, and shall continue to run without interruption as long as the Member maintains an active certificate of registration in a practising class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

i. The Expert has expertise in Nursing Regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

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

iv. 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;

v. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;

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 in Ontario;

ii. Provide her employer(s) with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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 understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. The penalty is within the range of what was ordered in previous cases.

The penalty provides protection for the public. It sends a strong message to the profession that nurses must practice according to standards regardless of their practice setting and that at all times appropriate boundaries in the nurse/client relationship must be maintained. It demonstrates that misappropriation of [patient] records and abuse of the power dynamic will not be tolerated. It also sends the message that nurses cannot allow their personal struggles to influence or interfere with their professional obligations.

I, Mary MacMillan-Gilkinson, Public Member, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.