College of Nurses of Ontario v. Lisa Marie Figg, 2019 CanLII 73943

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Catherine Egerton Chairperson Grace Fox, NP Member Linda Marie Pacheco, RN Member Tania Perlin Public Member Michael Schroder, NP Member

BETWEEN:

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

• and - )

LISA MARIE FIGG ) JENNIFER MICALLEF for Registration No. 8801797 ) Lisa Marie Figg ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: April 2, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on April 2, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Lisa Marie Figg (the “Member”) as stated in the Notice of Hearing dated November 26, 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 working at Woodstock Private Hospital you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, and in particular, you assigned and/or permitted [S.V.] to work as a Registered Practical Nurse when her certificate of registration was suspended in 2014, 2015, 2016 and/or 2017.

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(25) of Ontario Regulation 799/93, in that, while working at Woodstock Private Hospital, you failed to report an incident of unsafe practice or unethical conduct of a health care provider to the College, and in particular, you failed to report that [S.V.] was working as a Registered Practical Nurse when her certificate of registration was suspended in 2014, 2015, 2016 and/or 2017.

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 working at Woodstock Private Hospital, 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 as disgraceful, dishonourable or unprofessional, and in particular, you assigned and/or permitted [S.V.] to work as a Registered Practical Nurse when her certificate of registration was suspended in 2014, 2015, 2016 and/or 2017.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1, 2 and 3 in the Notice of Hearing. The Panel conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal. College Counsel also provided a written plea inquiry, signed by the Member, dated January 25, 2019.

Agreed Statement of Facts

College Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows:

THE MEMBER

1. Lisa Marie Figg (the “Member”) obtained a diploma in nursing from Fanshawe College in 1987.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on August 6, 1987.

3. The Member is employed at the Woodstock Private Hospital (the “Facility”).

THE FACILITY

4. The Facility is located in Woodstock, Ontario.

5. The Facility is a 16-bed hospital for clients requiring complex and continuing long-term care. The Facility is owned by the Member’s mother.

6. The Facility employs one RN, several Registered Practical Nurses (“RPN”), multiple Personal Support Workers (“PSW”), and other administrative staff. Typically, there is only one registered staff member (either an RN or an RPN) working on each shift.

7. The Member has been the Administrator at the Facility since 2000, and she continues to be employed in that role. As the Administrator, the Member was responsible for scheduling staff, purchasing medical and other supplies, Pharmacy inspection and accreditation, Fire safety and fire inspections, facility management and maintenance, Hospital On-Call Program, records maintenance, payroll, and occasionally participated in performance evaluations (until a Head Nurse Director of Care was hired in April of 2017), among other duties.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

8. The Member’s sister, [S.V.], is an RPN. She initially registered with the College on May 21, 1998. She has been employed at the Facility at various times as an RPN and a PSW.

9. On May 11, 2012, S.V.’s certificate of registration was suspended by the Fitness to Practise Committee, and it remains suspended to date. The Member was aware that S.V.’s certificate of registration was suspended on May 11, 2012.

10. Between 2014 and 2017, S.V. worked as an RPN at the Facility while she was suspended. Despite being aware of S.V.’s suspension, the Member, between 2014 and 2016, permitted her to work at the Facility as an RPN while her certificate of registration was suspended. In fact, the Member was responsible for scheduling S.V.’s shifts, and therefore facilitated her being scheduled as the only registered staff on duty.

11. The following Facility documents demonstrate that S.V. worked as an RPN, while suspended between 2014 and 2017, with the Member’s knowledge:

• The health records of five randomly selected patients reveal S.V. signed patient care notes, signature sheets, and/or documented a telephone order as “RPN.”
• The health records of three randomly selected clients indicate S.V. administered medication, including narcotics.
• The health record of at least one randomly selected client indicates S.V. signed a medication review in the space for “Nurse’s Signature.”
• The Facility’s staff schedules list S.V. on its schedule of registered staff on various shifts between January 2015 and April 2017. In many cases, S.V. was the only registered staff working on a particular shift.
• The Facility’s payroll records list S.V. as being paid at an RPN rate (as opposed to a Health Care Aid/PSW rate) on numerous occasions between July 2014 and March 2017.
• Incident reports in S.V.’s Human Resources file at the Facility, dated September 21, 2014, May 25, 2015, June 28, 2015, July 19, 2015, and January 7, 2016, identify medication administration errors made by S.V., including with respect to narcotics, with the Member’s signed acknowledgement of the errors having occurred.

12. In addition to the above, the Member completed a performance evaluation for S.V. in August 2015 in which she encouraged S.V. “to seek reinstatement as an RPN.”

13. While the Facility records noted above demonstrate that there were incidents in 2017 in which S.V. worked as an RPN at the Facility, the Member did not become aware of these incidents until after the fact, during the College’s investigation.

14. The Member acknowledges that she was aware S.V. was suspended in May 2012 and that she allowed her sister to work as an RPN while her certificate of registration was suspended. The Member recognizes that her conduct put clients at risk by, not only allowing unsafe practi[c]e to occur, but by actually facilitating it to continue over a period of several years.

15. If the Member were to testify, she would say that she believed her sister was in the process of reinstating her licence with the College, and that S.V. had been telling her that her license was to be reinstated “at any moment”, as she had completed the requirements for reinstatement. As a result, the Member believed that S.V. was therefore eligible to practice nursing. She recognizes that it was her responsibility to check with the College before allowing a suspended member to practice at the Facility.

16. The Member would further say that it was only as of August 2016 that it became clear to her that S.V. was not, in fact, about to be reinstated to practice, as S.V. had led her to believe. At this time, the Member took steps to assign S.V. to PSW work only, even though records at the Facility appear to indicate that S.V. did continue working as an RPN until March 2017. The Member was not aware of these occurrences until many months after the fact.

17. The Member would further say that, once she became aware that the College was investigating her conduct, she hired a Director of Care and a Nurse Manager to distance herself from overseeing nursing staff.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

18. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing, as described in paragraphs 8 to 16 above, in that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession when she assigned and/or permitted S.V. to work as an RPN when her certificate of registration was suspended in 2014, 2015, 2016 and/or 2017.

19. 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 16 above, in that she failed to report an incident of unsafe practice or unethical conduct of a health care provider to the College when she failed to report that S.V. was working as an RPN when her certificate of registration was suspended in 2014, 2015, 2016 and/or 2017.

20. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 8 to 16 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, #2 and #3 of the Notice of Hearing. As to allegation #3, the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable, and unprofessional.

Reasons for Decision

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

Allegation #1 in the Notice of Hearing is supported by paragraphs 8 through 16 and 18 in the Agreed Statement of Facts. The Member contravened a standard of practice of the profession when she assigned and permitted her sister, S.V., to work as a Registered Practical Nurse when S.V’s certificate of registration was suspended.

The Panel requested and received the College’s Professional Standards, Revised 2002 (the “Standard”) document. College Counsel and the Member’s Counsel reviewed two prior versions of the Professional Standards dated August 2013 and May 2015 and found no change in the language. Guiding principles within the Standard state that “the goal of professional practice is to obtain the best possible outcome for clients, with no unnecessary exposure to risk of harm”. In the ‘Accountability’ heading it states, “each nurse is accountable to the public and responsible for ensuring that her/his practice and conduct meets legislative requirements and the standards of the profession”. Indicators under the same Standard state that a nurse demonstrates the standard by: “providing, facilitating, advocating and promoting the best possible care for clients”. In the administrator role the nurse demonstrates the indicator by: “ensuring that mechanisms allow for staffing decisions that are in the best interest of clients and professional practice”. An indicator under the Ethics Standard states that “a nurse in an administrator role creates environments that promote and support safe, effective and ethical practice”.

The Panel found that the Standards including the indicators presented by College Counsel gave further support to Allegation #1.

Allegation #2 in the Notice of Hearing is supported by paragraphs 8 through 16 and 19 in the Agreed Statement of Facts. It was clear to the Panel that the Member failed to report that S.V. was working as a Registered Practical Nurse when S.V.’s certificate of registration was under suspension.

With respect to Allegation #3, the College and the Member had requested that the conduct be found to be unprofessional and dishonourable. The Panel deliberated and asked both the College and the Member to provide submissions as to why the Member’s conduct, based upon the facts that had been agreed to, would not also constitute disgraceful conduct.

College Counsel submitted that the parties came to an agreement through lengthy discussions. The parties turned their minds to dishonourable conduct as it demonstrates an element of deceit. Disgraceful conduct has a higher degree of moral failing and dishonesty. The facts in the Agreed Statement of Facts, paragraphs 15, 16 and 17 suggest that there was an element of misrepresentation by S.V. as she stated that her suspension was almost cleared. The Member took steps to assign Personal Support Worker assignments to S.V. but S.V. still worked in the Registered Practical Nurse role. The Member then later attempted to distance herself from her administrative role. It was suggested that this mitigates the dishonesty as the Member believed that S.V. was going to be reinstated as an RPN.

Member’s Counsel submitted that the definition of disgraceful suggests that there is more knowledge of the wrongfulness and emphasizes the word “more”. The Member was misled by her sister S.V. and took steps on her own in 2017 to distance herself. S.V. was fully aware of her conduct and continued to accept Registered Practical Nurse assignments.

The Panel finds that the Member’s conduct in supporting an unsafe work environment and not reporting S.V. for working while suspended 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 the ongoing support and assignment of a suspended member to nursing roles.

Finally, after lengthy deliberation, the Panel finds that the Member’s conduct was disgraceful for the following reasons:

a) In accordance with paragraphs 15, 16, and 17 of the Agreed Statement of Facts the Member’s conduct was disgraceful as it shames the Member and by extension the profession;

b) In accordance with paragraphs 9-12 and 14 of the Agreed Statements of Facts, the Member’s conduct demonstrates a continuing degree of knowledge and wrongfulness; and

c) The Member’s conduct further demonstrates a blatant disregard for the College’s process. The length of time the Member allowed S.V.’s conduct to continue and the multiple documented medication errors made by S.V., during that time, including those with narcotics, casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

Counsel for the College advised the Panel that a Joint Submission on Order as to Penalty had been agreed upon. The Joint Submission on Order as to Penalty provides 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,
   

   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;

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

Penalty Submissions

Submissions were made by College Counsel and the Member’s Counsel.

The parties agreed that the mitigating factors in this case were:

1. The Member has no prior discipline history;
2. The Member admitted early to the allegations; and
3. The Member cooperated with the discipline process;

The aggravating factors in this case were:

1. The Member’s conduct was serious and intentional;
2. The conduct demonstrated dishonesty and a breach of trust of clients in her care;
3. The Member has a personal interest in that S.V., who was her sister, was working in the facility under her administration. Their mother was the owner of the facility;
4. Significant harm to patients could have resulted; and
5. The Member disregarded the Fitness to Practi[s]e Committee’s decision to suspend S.V. which is a discredit to the profession.

The proposed penalty provides for general and specific deterrence through the Joint Submission on Order in the suspension of 3 months and oral reprimand.

The proposed penalty provides for remediation and rehabilitation of the Member, through the terms, conditions and limitations on the Member’s certificate of registration and meetings with the nursing expert.

Overall, the public is protected because the penalty sends a clear message that disregarding a Fitness to Practice Committee order is not acceptable and that there are serious consequences for such conduct. It also demonstrates that the profession has the ability to self-regulate in the public interest.

College Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee. In both cases the members did not report unsafe conduct.

CNO v. Spiridi (Discipline Committee, 2018)

The member was in a management position and did not report an incident of abuse. She delayed reporting for 68 days. The member was given a suspension of 2 months along with terms, conditions and limitations to her certificate of registration.

CNO v. Appiah-Kubi (Discipline Committee (2018)

The member was a charge nurse who did not report another member for having sex with a patient while on duty. She was given a 2 month suspension with terms, conditions and limitations to her certificate of registration.

College Counsel stated that the factual difference in the case before the Panel and the cases presented is that the precedent cases are single incidents which were not reported. The conduct in the current case went on for years. The Member facilitated the conduct by scheduling her sister into an RPN role. The Member was in a position of power and did the work schedule. The Member’s reasoning that it was alright to schedule her sister in RPN assignments, since her sister led her to believe that she was in the midst of reinstatement, created a risk to patient care over a much longer period of time.

In her submissions, Member’s Counsel also suggested that the Member’s conduct was impaired by her sister and when she realized that, she attempted to not assign S.V. RPN shifts and distanced herself once investigations were started. S.V. was not consistently working as an RPN during the entire time in question.

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,
   

   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;

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

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly. Suspension orders by the College need to be adhered to and are an obligation of all nurses in our goal of public protection.

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, Catherine Egerton, 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.