College of Nurses of Ontario v. Mage, 2019 CanLII 129287

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Heather Stevanka, RN Chairperson

Deborah Graystone, NP Member Carolyn Kargiannakis, RN Member Devinder Walia Public Member

BETWEEN:

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

• and - )

KRISTY DAWN MAGE ) MICHAEL MANDARINO for Registration No.: 9400532 ) Kristy Dawn Mage

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: ­­June 14, 2019­­

DECISION AND REASONS

This matter came on for hearing before a Panel of the Discipline Committee (the “Panel”) on June 14, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The Allegations

The allegations against Kristy Dawn Mage (the “Member”) as stated in the Notice of Hearing dated April 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 June 19, 2017, in the Ontario Court of Justice in Kitchener, 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) On or about the 30^th day of September, 2016 at the City of Kitchener in the said region did steal oxycodone tablets, the property of [the Patient] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada; and

(b) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, being the trustee of patient medication for [the Patient] did convert the patient’s medication to a use not authorized by the trust with intent to defraud and in contravention of the trust contrary to Section 336 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(1) of Ontario Regulation 799/93, in that, while practicing as a Registered Nurse at CarePartners Waterloo Wellington Branch, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular, in September 2016, you failed to maintain the boundaries of the therapeutic nurse-client relationship with [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(8) of Ontario Regulation 799/93, in that, while practicing as a Registered Nurse at CarePartners Waterloo Wellington Branch, you misappropriated property from a client or workplace, and in particular, in September 2016, you misappropriated oxycodone tablets from [the Patient].

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, on June 19, 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 June 19, 2017, you were found guilty of the following offences, which you did not report:

(a) On or about the 30^th day of September, 2016 at the City of Kitchener in the said region did steal oxycodone tablets, the property of [the Patient] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada; and

(b) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, being the trustee of patient medication for [the Patient] did convert the patient’s medication to a use not authorized by the trust with intent to defraud and in contravention of the trust contrary to Section 336 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(18) of Ontario Regulation 799/93, in that, in or around October 2016, 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 October 27, 2016:

(a) On or about the 30^th day of September, 2016 at the City of Kitchener in the said region did steal oxycodone tablets, the property of [the Patient] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada;

(b) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, did have in her possession property to wit: oxycodone tablets, of a value not exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 355(b) of the Criminal Code of Canada;

(c) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, did unlawfully possess a substance included in Schedule I, to wit: oxycodone, contrary to Section 4(1) of the Controlled Drugs and Substances Act; and

(d) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, being the trustee of patient medication for [the Patient] did convert the patient’s medication to a use not authorized by the trust with intent to defraud and in contravention of the trust contrary to Section 336 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(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 June 19, 2017, you failed to report findings of guilt to the Registrar (being the Executive Director) of the College, as follows:

(a) On or about the 30^th day of September, 2016 at the City of Kitchener in the said region did steal oxycodone tablets, the property of [the Patient] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada; and

(b) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, being the trustee of patient medication for [the Patient] did convert the patient’s medication to a use not authorized by the trust with intent to defraud and in contravention of the trust contrary to Section 336 of the Criminal Code of Canada.

7. 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 you failed to report charges and/or findings of guilt to the Executive Director of the College, as follows:

(a) On or around October 27, 2016, you were charged with the following offences, which you did not report:

a) On or about the 30^th day of September, 2016 at the City of Kitchener in the said region did steal oxycodone tablets, the property of [the Patient] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada;

b) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, did have in her possession property to wit: oxycodone tablets, of a value not exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 355(b) of the Criminal Code of Canada;

c) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, did unlawfully possess a substance included in Schedule I, to wit: oxycodone, contrary to Section 4(1) of the Controlled Drugs and Substances Act; and

d) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, being the trustee of patient medication for [the Patient] did convert the patient’s medication to a use not authorized by the trust with intent to defraud and in contravention of the trust contrary to Section 336 of the Criminal Code of Canada.

(b) On June 19, 2017, you were convicted of the following offences, which you did not report:

a) On or about the 30^th day of September, 2016 at the City of Kitchener in the said region did steal oxycodone tablets, the property of [the Patient] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada; and

b) On or about the 30^th day of September 2016 at the City of Kitchener in the said region, being the trustee of patient medication for [the Patient] did convert the patient’s medication to a use not authorized by the trust with intent to defraud and in contravention of the trust contrary to Section 336 of the Criminal Code of Canada.

Member’s Plea

Member’s Plea

The Member admitted the allegations set out in paragraphs 1 to 7 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

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, unedited, as follows:

THE MEMBER

1. Kristy Dawn Mage (the “Member”) obtained a diploma in nursing from Mohawk College – Fennell Campus in 1993.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on August 4, 1993. On July 13, 2018, the Member voluntarily entered into an Undertaking with the Executive Director of CNO agreeing to certain restrictions, which include, among other things, certain workplace restrictions.

3. The Member began working at CarePartners Waterloo Wellington Branch (the “Facility”) on January 12, 2015. The Member went on a medical leave in October 2016 until her employment was terminated on January 2, 2019.

THE FACILITY

4. The Facility is located Kitchener, Ontario.

5. The Member worked full-time as a home care RN on the palliative care team.

6. As a home care RN, the Member was responsible for providing care to patients in their homes.

THE PATIENT

7. [The “Patient”] was 75 years old at the time of the incidents. She had osteoporosis and a previous diagnosis of cancer.

8. The Patient lived with her daughter, [ ], and son-in-law.

9. The Member was assigned to provide care to the Patient. In particular, the Member would attend at the home to monitor the Patient’s condition, administer an injection and change the Patient’s fentanyl patch.

10. The Patient was prescribed oxycodone tablets, but she did not require assistance with these; she was under her physician’s direction to take them herself, as required.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Theft of Oxycodone

11. In September 2016, the Member attended the Patient’s home for both scheduled and unscheduled visits with the Patient.

12. The unscheduled visits were contrary to the Facility’s policy and the Member did not disclose them to the Facility.

13. During the unscheduled visits, the Member engaged in conduct that did not include providing nursing services, including sitting with the Patient on the front porch and smoking. The Member also offered on one occasion to pick up the Patient’s narcotic prescription from the drug store.

14. On September 26 or 27, 2016, during a scheduled visit to the Patient’s home, the Member stole 56 oxycodone tablets from the Patient.

15. The Patient was able to identify that the Member had stolen the tablets, because on September 28, 2016, she noticed tablets were missing.

16. On September 29, 2016, the Patient informed [the Patient’s daughter] that her pills were very low and she was concerned she may have taken the medication without realizing she had. The Patient told [the Patient’s daughter] that she counted the pills six times and the number of pills did not match the number on the bottle.

17. [The Patient’s daughter] and her husband counted the tablets and confirmed there were only 94 remaining of the original 150. They knew the Member was scheduled to visit again on September 30, 2016, and [the Patient’s daughter] told the Patient not to mention the missing tablets.

18. After the Member left on September 30, 2016, the Patient and her family counted the tablets again, and a further 15 were missing. The Member had stolen a further 15 oxycodone tablets from the Patient during the visit.

19. The Patient and her family notified the police, who attended to take a report and notified the Facility.

20. The incidents broke the Patient’s trust in nurses and it was very difficult for her to have nurses come into the home after the incident.

21. If the Member were to testify, she would say that she was suffering from a health condition during this time period which influenced her behaviour and judgment. She has since sought, and is compliant with, treatment for this condition.

Criminal Charges and Findings of Guilt

22. On October 27, 2016, the Member was charged with four offences including:

a. theft under $5,000, contrary to section 334(b) of the Criminal Code;

b. possessing property under $5,000 knowing that property was obtained by commission of an indictable offence, contrary to s. 355(b) of the Criminal Code;

c. unlawfully possessing a Schedule I substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act; and

d. being a trustee and converting property to a use not authorized by the trust with intent to defraud and in contravention of the trust, contrary to s. 336 of the Criminal Code (also known as breach of trust).

23. On June 19, 2017, the Member pled guilty and was found guilty of theft under $5,000 and breach of trust. The other two charges were withdrawn.

24. The Member acknowledged having stolen the oxycodone tablets from the Patient while she was attending at her home to provide nursing services.

25. The Patient’s victim impact statement filed in the criminal proceeding noted that the incidents caused the Patient stress and as a result of the stress, the Patient lost weight. The Patient also had nightmares and concerns with others coming into the home.

26. The Member received a conditional sentence of four months’ house arrest followed by 16 months’ probation, in addition to other terms and conditions.

Failure to Report to CNO

27. The Member was required to report any criminal charges and findings of guilt to CNO, as a condition of her certificate of registration, and, with respect to findings of guilt, in accordance with section 85.6.1 of the Health Professions Procedural Code.

28. The Member failed to report both the criminal charges from October 27, 2016 and the findings of guilt from June 19, 2017 to CNO.

CNO Standards

29. CNO’s Therapeutic Nurse-Client Relationship Standard (the “TNCR Standard”) places the responsibility for establishing and maintaining the limits or boundaries in the therapeutic nurse-client relationship on the nurse.

30. The TNCR Standard states:

[c]rossing a boundary means that the care provider is misusing the power in the relationship to meet his or her personal needs rather than the needs of the client, or behaving in an unprofessional manner with the client.

31. The TNCR Standard further clarifies that a nurse may cross a boundary in a number of different ways, including failing to ensure that the nurse-client relationship promotes the well-being of the client and not the needs of the nurse.

32. The TNCR Standard states that a nurse meets the standard by actions such as:

a. 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; and

b. Recognizing that there may be an increased need for vigilance in maintaining professionalism and boundaries in certain practice settings (i.e. when care is provided in a client’s home).

ADMISSIONS OF PROFESSIONAL MISCONDUCT

33. The Member admits that she was found guilty of theft under $5,000 and breach of trust and that the findings of guilt are relevant to her suitability to practice.

34. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 (a) and (b) of the Notice of Hearing in that she was found guilty of offences relevant to her suitability to practice, as described in paragraphs 22-26 above.

35. The Member admits she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, as described in paragraphs 11-13 and 29-32 above, in that she breached the TNCR Standard by failing to maintain the boundaries of the therapeutic nurse-client relationship with [the Patient] when she:

a. made unscheduled visits with the Patient which were not for the purpose of providing nursing services and which were not disclosed to the Facility; and

b. smoked with the Patient, which was not in the best interests of the Patient.

36. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing in that she misappropriated oxycodone tablets from the Patient, as described in paragraphs 11-21 above.

37. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 4, 5(a) to (d), 6(a) and (b) and 7(a) and (b) 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 22-28 above.

Decision

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) and (b), 2, 3, 4(a) and (b), 5(a), (b), (c) and (d), 6(a) and (b) and 7(a) and (b) of the Notice of Hearing. As to allegations 7(a) and (b), the Panel finds that the Member also engaged in conduct that would reasonably be considered by members of the profession to be disgraceful, dishonourable and unprofessional when the Member failed to report criminal charges and findings of guilt to the Executive Director of the College.

Reasons for Decision

Reasons for Decision

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

Allegation #1(a) in the Notice of Hearing is supported by paragraphs 22 to 26 in the Agreed Statement of Facts. The Panel finds that the Member has 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 June 19, 2017 she was found guilty of offences relevant to her suitability to practise. In particular, she was found guilty of stealing oxycodone tablets in September 2016, the property of [a patient] of the Member, of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada.

Allegation #1(b) in the Notice of Hearing is supported by paragraphs 11 to 26 in the Agreed Statement of Facts. The Panel finds that the Member has 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 when on June 19, 2017 she was found guilty of offences relevant to her suitability to practise. In particular, she was found guilty of while being the trustee of patient medications in September 2016 for [the Patient], converting the patient’s medication to a use not authorized by the trust, with the intent to defraud and in contravention of the trust contrary to Section 336 of the Criminal Code of Canada.

Allegation #2 in the Notice of Hearing is supported by paragraphs 11 to 13 and 29 to 32 in the Agreed Statement of Facts. The Panel accepts the Member’s admission and finds that the Member has 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, by failing to maintain the boundaries of the therapeutic nurse-client relationship with [the Patient] in September 2016.

Allegation #3 in the Notice of Hearing is supported by paragraphs 11 to 21 in the Agreed Statement of Facts. The Panel finds that the Member 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, when the Member misappropriated oxycodone tablets from her patient [ ] in September 2016. The Member admitted to doing so.

Allegation #4(a) in the Notice of Hearing is supported by paragraphs 22 to 28 in the Agreed Statement of Facts. The Panel finds that the Member committed an act of professional misconduct when she contravened a term, condition or limitation on her certificate of registration, imposed pursuant to s. 1.5(1)1.i. of Ontario Regulation 275/94, by failing to report findings of guilt to the Executive Director of the College. The Member was found guilty, on June 19, 2017, of stealing oxycodone tablets, the property of her patient [ ] on September 30, 2016 of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada.

Allegation #4(b) in the Notice of Hearing is supported by paragraphs 11 to 26 in the Agreed Statement of Facts. The Panel finds that the Member committed an act of professional misconduct when she contravened a term, condition or limitation on her certificate of registration imposed pursuant to s. 1.5(1)1.i. of Ontario Regulation 275/94 by failing to report findings of guilt to the Executive Director of the College, in particular when she was found guilty, on June 19, 2017, of the offence that while being the trustee of [the Patient]’s medication on September 30, 2016, she converted the patient’s medication ([ ]) to a use not authorized by the trust with intent to defraud and in contravention of the trust contrary to the Criminal Code of Canada.

Allegation #5(a) in the Notice of Hearing is supported by paragraphs 22 to 28 in the Agreed Statement of Facts. The Panel finds that the Member committed an act of professional misconduct when she contravened a term, condition or limitation on her certificate of registration pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94 when she failed to report charges to the Executive Director of the College on or around October 27, 2016 relating to an offence of stealing oxycodone tablets, the property of her patient [ ] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada on September 30, 2016.

Allegation #5(b) in the Notice of Hearing is supported by paragraphs 22 to 28 in the Agreed Statement of Facts. The Panel finds that the Member committed an act of professional misconduct when she contravened a term, condition or limitation on her certificate of registration, pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94 by failing to report charges to the Executive Director of the College on or around October 27, 2016 relating to an offence of having in her possession property to wit, oxycodone tablets of a value not exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 355(b) of the Criminal Code of Canada.

Allegation #5(c) in the Notice of Hearing is supported by paragraphs 22 to 28 in the Agreed Statement of Facts. The Panel finds that the Member committed an act of professional misconduct when she contravened a term, condition or limitation on her certificate of registration pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94 by failing to report charges to the Executive Director of the College on or around October 27, 2016 relating to an offence of unlawful possession of a substance included in Schedule I, oxycodone, contrary to Section 4(1) of the Controlled Drugs and Substances Act.

Allegation #5(d) in the Notice of Hearing is supported by paragraphs 22 to 28 in the Agreed Statement of Facts. The Panel finds that the Member committed an act of professional misconduct when she contravened a term, condition or limitation on her certificate of registration pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94 by failing to report charges to the Executive Director of the College on or around October 27, 2016 relating to an offence that while being the trustee of patient medications for [the Patient], she did convert the patient’s medication to a use not authorized by the trust with the intent to defraud and in contravention of the trust contrary to Section 336 of the Criminal Code of Canada.

Allegation #6(a) in the Notice of Hearing is supported by paragraphs 22 to 28 in the Agreed Statement of Facts. The Panel finds that the Member 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 the Member 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 June 19, 2017 the Member failed to report findings of guilt to the Executive Director of the College for the offence of stealing oxycodone tablets, the property of her patient [ ] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada.

Allegation #6(b) in the Notice of Hearing is supported by paragraphs 22 to 28 in the Agreed Statement of Facts. The Panel finds the Member 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 the Member 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 June 19, 2017 the Member failed to report findings of guilt to the Executive Director of the College for the offence that while being the trustee of patient medications for [the Patient] she did convert the patient’s medication to a use not authorized by the trust with intent to defraud and in contravention of the trust contrary to Section 336 of the Criminal Code of Canada.

Allegations #7(a) a), b) and c) in the Notice of Hearing are supported by paragraphs 27 to 28 in the Agreed Statement of Facts. Allegation #7(a) d) is supported by paragraphs 29 to 32 in the Agreed Statement of Facts. Allegation #7(b) a) is supported by paragraphs 27 and 28 in the Agreed Statement of Facts. Allegation #7(b) b) is supported by paragraphs 27 to 32 in the Agreed Statement of Facts. The Panel finds that the Member has 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 she engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional, in that the Member failed to report charges and findings of guilt to the Executive Director of the College.

The Panel finds that the Member’s conduct when she failed to report criminal charges and findings of guilt to the Executive Director of the College was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through stealing oxycodone tablets from her patient [ ] and converting the patient’s medication to a use not authorized by the trust with the intent to defraud.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct of failing to report, to the Executive Director of the College, criminal charges and convictions related to stealing oxycodone tablets from the Member’s patient, the unlawful possession of a substance included in Schedule I and while being the trustee of her patient’s medication, converting the patient’s medication to a use not authorized by the trust with intent to defraud, casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

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 five 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. Therapeutic Nurse-Client Relationship,

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

4. 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 18 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 practise independently in the community for a period of 18 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

Penalty Submissions

Submissions were made by College Counsel.

The mitigating factors in this case were:

• The Member has cooperated with the College and has admitted to all allegations and has accepted responsibility for her actions;

• The Member has pled guilty to her criminal charges;

• The Member has been compliant with treatment of a health condition that at the time of the events, influenced her behaviour and judgment;

• The Member has expressed regret for her actions.

The aggravating factors in this case were:

• The Member’s conduct relates directly to her professional obligations, indicating a serious disregard for her accountabilities;

• The Member’s findings of guilt for theft and dishonesty occurred while she was practising nursing;

• The Member’s conduct was intentional and repeated twice;

• The Member’s conduct in stealing pain medications belonging to the patient was potentially medically harmful to the patient;

• The Member’s conduct caused actual harm by altering the patient’s ability to trust nurses, which discredits the profession as a whole.

The proposed penalty provides for general deterrence which is achieved through the 5 month suspension of the Member’s certificate. The suspension, in conjunction with the 18 month employer notification of this decision and 18 month restriction of independent practice, will send a message to the profession as a whole that this conduct will not be tolerated.

The proposed penalty provides for specific deterrence and this is achieved by the 5 month suspension of the Member’s certificate, and through Regulatory Expert meetings. The Member’s review of the Professional Standards, Therapeutic Nurse-Patient Relationship, Mandatory Reporting: A Process Guide for Employers Facility Operators and Nurses and the Code of Conduct will also serve as a specific deterrence by ensuring the Member gains knowledge and is able to transfer this knowledge into behaviour.

The proposed penalty provides for remediation and rehabilitation which will be achieved through the meetings with a Regulatory Expert. The Member’s review of the Professional Standards, Therapeutic Nurse-Patient Relationship, Mandatory Reporting: A Process Guide for Employers Facility Operators and Nurses and the Code of Conduct will also serve as remediation and rehabilitation by ensuring the Member gains knowledge and is able to transfer this knowledge into behaviour.

Overall, the public is protected because of the Member’s 5 month certificate suspension, the 18 month employe[r] notification of this decision and the 18 month restriction of independent practice of the Member.

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

CNO v. Genereaux (Discipline Committee, 2018) This case was submitted by College Counsel with the similarity of the member failing to report criminal charges/convictions to the Executive Director of the College. This member did not appear at the hearing and therefore was deemed to deny all allegations. In this case, the member received a 7 month suspension.

CNO v. Reinhart (Discipline Committee 2018) This case was submitted by College Counsel with the similarity of misappropriation of a controlled substance which was intended for the member’s patient. Also similar was that the member was charged and convicted of criminal offences. The member was present and cooperated with the College in the proceeding which resulted in a 5 month suspension of the member’s certificate.

The Member’s Counsel indicated that the Member accepts responsibility for her actions, is remorseful and apologizes. The Member has 25 years of experience and this is her first matter before the Discipline Committee.

The Member’s Counsel also provided the Panel with an additional case.

CNO v. Hopka (Discipline Committee, 2018) This case was submitted by Member’s Counsel as it has the similarity of failing to report criminal charges/convictions to the Executive Director of the College. This member cooperated with the College in a Discipline proceeding and received a 5 month suspension.

The Member’s Counsel also reviewed the principles applicable to Joint Submissions on Order.

Penalty Decision

Penalty Decision

The Panel accepts 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 five 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. Therapeutic Nurse-Client Relationship,

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

4. 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 18 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 practise independently in the community for a period of 18 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

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 is aware that the Joint Submission on Order should be accepted unless the Panel believes that the penalty is so disproportionate to the offences that the public interest is not protected or that it would bring the administration of justice into disrepute.

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.

A 5 month suspension of the Member’s certificate along with an 18 month employer notification of this decision will act as a specific deterrent for the Member, as well as a general deterrent to the profession as it sends a message to all members of the profession and the public that this conduct will not be tolerated.

Public confidence is upheld by the severity of this penalty along with the inclusion of rehabilitation and remediation through review of College standards, meeting with a Regulatory Expert and restricting the Member’s independent practice for 18 months from the date the Member returns to the practice of nursing.

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

I, Heather Stevanka, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.