College of Nurses of Ontario v. Hamilton, 2019 CanLII 54732

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Renate Davidson, Chairperson Margarita Cleghorne, RPN Member Catherine Egerton, Public Member Carly Gilchrist, RPN Member Terah White, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO DENISE COONEY for College of Nurses of Ontario

• and -

KIMBERLEY JANE HAMILTON Registration No. IC12422 MICHELLE GIBBS for Kimberley Jane Hamilton

CHRIS WIRTH Independent Legal Counsel

Heard: January 18, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on January 18, 2019 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Kimberley Jane Hamilton (the “Member”) as stated in the Notice of Hearing dated December 7, 2018 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at Nipissing Manor Nursing Care Centre, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that, on or about December 3, 2016:

(a) you posted personal health information about [the Client] to a publicly-accessible internet page, without the Client’s consent or other authorization;

(b) you made inappropriate and unprofessional statements directed towards [the Client’s] family members on a publicly-accessible internet page; and/or

(c) you made inappropriate and unprofessional statements directed towards [the Client’s] grand[child], [grandchild A], on a publicly-accessible internet page which you knew, or ought to have known, could be perceived by [grandchild A] as a threat;

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(10) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at Nipissing Manor Nursing Care Centre, you gave information about [the Client] to a person other than the Client or his or her authorized representative without the consent of the Client or his or her authorized representative and without being required or allowed by law, in that on or about December 3, 2016, you posted personal health information about [the Client] to a publicly-accessible internet page, without the Client’s consent or other authorization;

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(37) of Ontario Regulation 799/93, in that while practicing as a Registered Practical Nurse at Nipissing Manor Nursing Care Centre 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 on or about December 3, 2016:

(a) you posted personal health information about [the Client] to a publicly-accessible internet page, without the Client’s consent or other authorization;

(b) you made inappropriate and unprofessional statements directed towards [the Client’s] family members on a publicly-accessible internet page; and/or

(c) you made inappropriate and unprofessional statements directed towards [the Client’s] grand[child], [grandchild A], on a publicly-accessible internet page which you knew, or ought to have known, could be perceived by [grandchild A] as a threat.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a)(b)(c), 2 and 3(a)(b)(c) 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

Counsel for the College and Counsel for the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which is reproduced below, without the Appendices mentioned therein.

THE MEMBER

1. Kimberley Jane Hamilton (the “Member”) obtained a certificate in nursing from Cambrian College in 1993.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on June 25, 1993.

3. The Member has been employed at Nipissing Manor Nursing Care Centre (the “Facility”) since May 2002.

THE FACILITY

4. The Facility, which is located in Corbeil, Ontario, is a long-term care facility and retirement living residence.

5. The Member worked as a staff nurse for both long-term care and retirement living client populations. She worked primarily with elderly clients, who had a wide range of diagnoses.

THE CLIENT

6. [The “Client”] was 90 years old at the time of the incident and resided at the Facility. Her diagnoses included Alzheimer’s disease and dementia.

7. The Member provided care to the Client at the Facility.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

8. On December 2, 2016, [the Client’s child, (“child A”)], posted a publicly available message on Facebook expressing concerns about the Client’s power of attorney (“POA”), who was also [the Client’s child (“child B”)]. In [child A’s ] post, [child A] expressed concerns about the care the Client was receiving at the Facility, and about [child B’s] conduct in response to those concerns about their mother’s care. [Child A’s] initial Facebook post is attached as Appendix A.

9. A number of the Client’s relatives and other third parties responded to [child A’s ] initial post.

10. The following day, December 3, 2016, the Member published several comments, under the name Kim [ ]-Hamilton, in direct response to [child A’s] Facebook post. The Member’s comments were public.

11. In her posts, the Member disclosed personal health information about the Client, including:

• referring to the Client by her first name;

• identifying the Client as a resident at the Facility;

• identifying herself as working at the Facility;

• referring to the Client’s POA, and stating, “we don’t have a problem with the POA”;

• identifying herself as an RPN providing nursing care to the Client; and

• referring to experiences dealing with clients diagnosed with Alzheimer’s and dementia.

12. In addition to disclosing personal health information and breaching the Client’s privacy, the tone and contents of the Member’s posts were inappropriate and unprofessional towards [child A]. In one post directed at [child A], the Member stated:

I’m sorry but there are 2 sides to every story. I happen to work at this facility and there is no way [the Client] or any of our residents are treated as these people speak of. How dare you imply that she is neglected in any way. Our residents receive more care hours than the provincial average in Ontario long term care home. Our staff are the hardest working I’ve seen in any LTC facility I know. I’m disgusted that you would even post this filth and lies on social media. Shame on you!

13. In response to a reply comment by [child A], the Member stated: “We don’t have a problem with the POA [child B]. This is your personal business which you have chosen to hang out to dry on Facebook. I will gladly call you a liar because I spend more time with your mother than you do.”

14. [Child A’s] children (the Client’s grandchildren), [grandchild A] and [grandchild B], posted comments defending [child A] on Facebook. The Member responded with a number of comments directed specifically at [grandchild A] and [grandchild B], which were inappropriate and unprofessional. The nature of these posts included the following:

• She described [grandchild A] as having a “bad mouth” and stated that the Client would be disappointed in [grandchild A] for [grandchild A’s] language;

• Asked [grandchild A] if [grandchild A] had educated [grandchild A’s]self on Alzheimer’s disease, and implied that [grandchild A] was uneducated and had no understanding of [grandchild A’s] grandmother’s health; and,

• Told [grandchild A] and [grandchild B] to either “shut up” or “grow up.”

15. Finally, in one post the Member wrote, “Oh [grandchild A] I look forward to meeting you the next time you visit your grandmother – I see we have much to discuss.” [grandchild A] and [grandchild A’s] family members who viewed the post perceived the Member’s comment as a threat directed to [grandchild A].

16. The Member deleted her comments soon after posting them. Screenshots of some of the Member’s exchanges with the Client’s family were captured prior to the Member deleting them, which are attached as Appendix B.

17. If the Member were to testify, she would say that she responded to [child A’s] post to defend the Facility and the care she and her colleagues provide to the Client. The Member realizes that it was inappropriate to engage in such dialogue with a client’s family, especially in a very public forum such as Facebook. The Member acknowledges that she breached the Client’s privacy and disclosed personal health information by disclosing her personal health information without her consent or other authorization in a public forum.

18. With respect to the comment which [grandchild A] and [grandchild A’s] family perceived as threatening, the Member would say she did not intend her comment as a threat, but rather a sincere invitation for [grandchild A] to discuss [grandchild A’s] concerns about the Client’s care the next time [grandchild A] attended the Facility. In any case, regardless of her intention, the Member acknowledges that it was inappropriate for her to correspond with [grandchild A] the way she did.

COLLEGE STANDARDS

19. The College also issued a Practice Standard titled Confidentiality and Privacy – Personal Health Information (“Practice Standard”). It was first published in 2004 and updated in 2009. It largely addresses the Personal Health Information Protection Act (“PHIPA”).

20. The Practice Standard begins with a general statement about the purpose of practice standards:

Nursing standards are expectations that contribute to public protection. They inform nurses of their accountabilities and the public of what to expect of nurses. Standards apply to all nurses regardless of their role, job description or area of practice.

21. The Practice Standard provides key indicators nurses can use to ensure they are meeting the standard, including:

The nurse meets the standard by:

• seeking information about issues of privacy and confidentiality of personal health information;

• maintaining confidentiality of clients’ personal health information with members of the healthcare team, who are also required to maintain confidentiality, including information that is documented or stored electronically; [emphasis added]

• maintaining confidentiality after the professional relationship has ended, an obligation that continues indefinitely when the nurse is no longer caring for a client or after a client’s death;

• ensuring clients or substitute decision-makers are aware of the general composition of the health care team that has access to confidential information;

• collecting only information that is needed to provide care;

• not discussing client information with colleagues or the client in public places such as elevators, cafeterias and hallways; [emphasis added]

• accessing information for her/his clients only and not accessing information for which there is no professional purpose;

• safeguarding the security of computerized, printed or electronically displayed or stored information against theft, loss, unauthorized access or use, disclosure, copying, modification or disposal;

• not sharing computer passwords; …

ADMISSIONS OF PROFESSIONAL MISCONDUCT

22. The Member admits that she committed the acts of professional misconduct as described in paragraphs 8 to 18 above, and as alleged in the following paragraphs of the Notice of Hearing:

• 1(a) in that she posted personal health information about the Client on Facebook, without the Client’s consent or other authorization;

• 1(b) in that she made inappropriate and unprofessional statements directed towards the Client’s family members on Facebook;

• 1(c) in that she made inappropriate and unprofessional statements directed towards the Client’s grand[child], [grandchild A], on Facebook that she knew, or ought to have known, could be perceived by [grandchild A] as a threat.

23. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, as described in paragraphs 8 to 18 above, in that she gave information about the Client to a person other than the Client or her authorized representative without consent and without being required by law, when she posted personal health information about the Client on Facebook, without the Client’s consent or other authorization.

24. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3 (a), (b) and (c) of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 8 to 18 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)(b)(c); 2 and 3(a)(b)(c) of the Notice of Hearing. With respect to allegation 3(a)(b)(c) 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 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 10, 11, 12 , 14 and 22 in the Agreed Statement of Facts in that the Member posted personal health information about the Client to a publicly-accessible internet page without consent or authorization.

Allegation #1 (b) in the Notice of Hearing is supported by paragraphs 12, 13, 14, 16 and 22 in the Agreed Statement of Facts in that the Member made inappropriate statements directed towards the Client’s family members in a publicly-accessible internet page.

Allegation #1 (c) in the Notice of Hearing is supported by paragraphs 14, 15, 18 and 22 in the Agreed Statement of Facts in that the Member’s statements could be perceived as a threat.

Allegation #2 in the Notice of Hearing is supported by paragraphs 10 through to 18 and 23 in the Agreed Statement of Facts in that the Member gave out information about the Client to a person other that the Client or her authorised representative, without the Client’s consent and without being required to do so by law.

Allegations #3(a)(b)(c) in the Notice of Hearing are supported by paragraphs 11, 12, 13, 14, 15 and 24 in the Agreed Statement of Facts. The Member’s conduct with respect to all the allegations shows disregard for private information of clients and inappropriate use of social media. The conduct is unprofessional as it falls below the standards of nursing with respect to confidentiality and trust. The Member showed a persistent disregard for her professional obligations. The Member’s conduct was dishonourable as the Member knew or ought to have known that disclosing personal health information and breaching the Client’s privacy on an open public forum was unacceptable and fell well below the standards of the profession.

Penalty

Counsel for the College and the Member 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 three 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. Confidentiality and Privacy - Personal Health Information

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

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;

vi. 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;

vii. 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;

viii. 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 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; and

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

Penalty Submissions

Submissions regarding penalty were made by Counsel for the College.

The aggravating factors in this case were:

• The seriousness of the allegations;

• The disclosure of personal information;

• The improper use of a public forum to express extremely confidential information.

The mitigating factors in this case were:

• The Member had no prior disciplinary findings;

• The Member showed remorse and was involved with the College to reach an agreement;

• The Member showed insight into the allegations and the severity of her specific conduct.

The proposed penalty provides for general deterrence through:

• The suspension and oral reprimand to demonstrate to the public and the membership that this conduct will not be tolerated.

The proposed penalty provides for specific deterrence through:

• The suspension and oral reprimand.

The proposed penalty provides for remediation and rehabilitation through:

• The Terms, Conditions and Limitations set out in the Joint Submission on Order will include meetings with a Nursing expert to review specific standards;

• The Member will complete Reflective Questionnaires to give her more insight into the Nursing Standards and expectations of the profession;

• Notification to the employer gives the public protection.

Overall, the public is protected because the proposed order meets all the goals of a penalty and is within the range of orders made in cases with similar findings. Counsel for the College submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

CNO v. Kaufman (Discipline Committee, 2012). This member was found to have breached the standards by allowing personal health information to be viewed and posting personal health information to a publicly accessible internet page without the consent of the clients, abusing a client emotionally, and disgraceful, dishonourable and unprofessional conduct. In this hearing the member did not attend or cooperate with the College. The penalty ordered in this matter was a reprimand, a four month suspension and terms, conditions and limitations that included two meetings with a Nursing Expert, the review and completion of various College publications and online learning modules and 12 months of employer notification.

CNO v. Lauzon (Discipline Committee, 2013). This member was found to have breached the standards by communicating inappropriately with a client’s family member, by taking pictures of another client without the client’s consent and distributing the pictures for purposes unrelated to the client’s care. She was also found to have emotionally abused a client and engaged in disgraceful, dishonourable and unprofessional conduct. The member cooperated with the College by admitting to the facts and agreeing to a penalty. The penalty ordered in this matter was a reprimand, a three month suspension and terms, conditions and limitations that included two meetings with a Nursing Expert, the review and completion of various College publications and online learning modules and 12 months of employer notification.

The Member’s Counsel indicated that she agreed with those submissions and that the proposed penalty meets all the objectives of a 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 three 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. Confidentiality and Privacy - Personal Health Information

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

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;

vi. 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;

vii. 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;

viii. 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 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; and

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

Reasons for Penalty Decision

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

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has 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 in line with what has been ordered in previous cases.

I, Renate Davidson, Public Member, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.

Chairperson