College of Nurses of Ontario v. Davis, 2020 ONCNO 116470

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

• Heather Stevanka, RN Chairperson
• Natalie Montgomery Public Member
• Lalitha Poonasamy Public Member
• Michael Schroder, NP Member
• Patricia Sullivan, RN Member

BETWEEN:

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

• and -

ELIZABETH HELEN DAVIS Registration No. 9203373 BALRAJ DOSANJH for Elizabeth Helen Davis

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: October 28, 2020

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on October 28, 2020, via videoconference.

The Allegations

The allegations against Elizabeth Helen Davis (the “Member”) as stated in the Notice of Hearing dated September 23, 2020 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for practice assessment in or around 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(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 as disgraceful, dishonourable or unprofessional, in that you failed to participate after being selected by the Quality Assurance Committee for practice assessment in or around 2017.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1 and 2 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

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. Elizabeth Helen Davis (the “Member”) obtained a diploma in nursing from Loyalist College.

2. The Member registered with the College of Nurses of Ontario (the “CNO”) as a Registered Practical Nurse (“RPN”) on June 24, 1988. Her RPN certificate was administratively suspended for non-payment of fees from December 31, 1991 until February 1, 2013, at which time she resigned her RPN certificate. If the Member were to testify, she would say she did not pay fees during the period on the basis that she was maintaining an RN certificate, as described below.

3. The Member registered with CNO as a Registered Nurse (“RN”) on December 9, 1991. She retains an RN certificate and is currently entitled to practice nursing in Ontario as an RN without restrictions.

4. The Member has been employed as a full-time RN with Saint Elizabeth Health Care since September 1, 2019, and as a casual RN with Nurse Next Door Home Care Services since June 1, 2019.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

CNO’s Quality Assurance Program

5. CNO is required by the Health Professions Procedural Code, to establish a quality assurance program. CNO’s Quality Assurance Committee (QAC) is responsible for administering CNO’s Quality Assurance Program (“QA Program”).

6. The QA Program helps nurses engage in activities that promote or foster lifelong learning. The QA Program helps nurses maintain and improve their competence, and participation is a professional requirement. The QA program includes three kinds of assessment: self, peer, and practice assessment.

7. In a letter dated February 13, 2017, the Member was notified by CNO that she was randomly selected to participate in a Practice Assessment as part of the QA Program. The letter stated that her participation was mandatory and explained that in order to comply she was required to submit a learning plan and complete online multiple-choice tests. The Member was given until March 23, 2017 to complete the Practice Assessment.

8. The Member did not respond to CNO’s notification on February 13, 2017 and did not complete the Practice Assessment as required.

9. In a letter dated April 20, 2017, the QAC provided the Member a second opportunity to complete the Practice Assessment. The Member was provided an extended deadline to complete the Practice Assessment to May 16, 2017. The Member was advised that if she did not complete the Practice Assessment by the new deadline, the QAC may report her to CNO’s Inquiries, Complaints and Reports Committee (the “ICRC”) for lack of cooperation with the QA Program.

10. The Member did not respond to CNO’s notification on April 20, 2017 and did not complete the Practice Assessment as required.

11. In a letter dated June 2, 2017, CNO notified the Member that the QAC had referred the matter to the ICRC for the Member’s failure to cooperate with the QAC and participate in the 2017 QA Program. The Member was given 14 days to provide written submissions in response to the QAC’s decision.

12. The Member did not provide a response to CNO’s letter of June 2, 2017. She did not complete the Practice Assessment as required at any time.

13. If the Member were to testify, she would say that a series of personal issues led to her failure to participate in the QA Program in 2017. Nevertheless, the Member acknowledges that, despite any circumstances impacting her personal life, she had a professional obligation to participate in the QA Program, and to respond to communications from CNO. If the Member were to further testify, she would state that she understands the importance of accountability to CNO as her professional regulator, as well as her duty to participate in the statutorily mandated QA Program.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

14. The Member admits that she committed the act of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that she failed to cooperate with the Quality Assurance Committee and, in particular, failed to participate in the 2017 QA Program practice assessment, as described in paragraphs 7-13 above.

15. The Member admits that she committed the act of professional misconduct as alleged in paragraph 2 of the Notice of Hearing and that her conduct was unprofessional, as described in paragraphs 7-13 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 and 2 of the Notice of Hearing. As to allegation #2, the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be unprofessional.

Reasons for Decision

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

Allegation #1 in the Notice of Hearing is supported by paragraphs 7 to 14 in the Agreed Statement of Facts. The evidence is clear that the Member disregarded the requirements of the Quality Assurance Committee by not participating in the 2017 Quality Assurance program.

Allegation #2 in the Notice of Hearing is supported by paragraphs 7 to 13 and 15 in the Agreed Statement of Facts. With respect to allegation #2, the Panel finds that the Member’s conduct in failing to participate in the Quality Assurance program was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

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 2 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 a practicing class.

a) Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration: The Member will attend two meetings with a Regulatory Expert (the “Expert”) at her own expense and within 6 months from the date that this Order becomes final. 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 7 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 CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

1. Professional Standards, and

2. Code of Conduct;

iv. 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 patients, 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;

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

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;

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

b) The Member shall participate in CNO’s next available Quality Assurance program cycle, within 24 months from the date this Order becomes final.

3. All documents delivered by the Member to CNO and the Expert will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were that the Member did not complete the practice assessment activities despite being given two opportunities to do so, including an extended deadline. The Member did not respond to the correspondence from the College. The Member was sent a third letter and provided with an opportunity to provide written submissions. The Member did not reply to this third letter. The persistent failure to participate in the Quality Assurance program casts serious doubt about the Member’s governability and commitment to her regulatory body. Specifically, the Member continued to practice without validating competence by completing the Quality Assurance program.

The mitigating factors in this case were that the Member has accepted responsibility for her actions. The Member reported she was also dealing with difficult personal circumstances at the time of her conduct.

The proposed penalty provides for general deterrence through the two-month suspension which sends a strong signal to members that there are serious consequences for not completing the Quality Assurance program.

The proposed penalty provides for specific deterrence through the oral reprimand which signals disapproval of professional misconduct of this nature.

The proposed penalty provides for remediation and rehabilitation through the meetings with the regulatory expert. The Member will have the opportunity to reflect and learn from this experience. The Member is also required to participate in the next cycle of the Quality Assurance program.

Overall, the public is protected as members are less likely to fail to participate in the Quality Assurance program. Public confidence is maintained through self-regulation and maintenance of standards.

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. Castor (Discipline Committee, 2017). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member failed to participate in the practice assessment component of the Quality Assurance Program. The penalty imposed upon this member included an oral reprimand, a one-month suspension, two meetings with a regulatory expert, and participation in the CNO Quality Assurance Program within 24 months.

CNO v. Keating (Discipline Committee, 2020). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member failed to participate in the practice assessment component of the Quality Assurance Program. The member received an oral reprimand, a two-month suspension, two meetings with a regulatory expert, and mandatory participation in the College’s next Quality Assurance program cycle.

CNO v. Rubinas (Discipline Committee, 2020). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member failed to participate in the practice assessment component of the Quality Assurance Program. The member received an oral reprimand, a two-month suspension, two meetings with a regulatory expert, and mandatory participation in the College’s next Quality Assurance program cycle.

College Counsel submitted that historically, Discipline panels gave a one-month suspension for failure to participate in the Quality Assurance program, however, there has been a recent increase in members not participating in the Quality Assurance program. Discipline panels have recently been ordering higher suspensions as a mechanism to diminish this professional misconduct through general deterrence.

The Member’s Counsel submitted that a mitigating factor was that the Member’s conduct had been found to be just unprofessional and not dishonourable and referred to the decision of CNO v. Cartier (Discipline Committee, 2018) in which a 2 month suspension was given to a member for failing to do the program and where the member’s conduct was found to be unprofessional but not dishonourable.

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 2 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 a practicing 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 6 months from the date that this Order becomes final. 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 7 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 CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

1. Professional Standards, and

2. Code of Conduct;

iv. 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 patients, 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;

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

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;

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

b) The Member shall participate in CNO’s next available Quality Assurance program cycle, within 24 months from the date this Order becomes final.

4. All documents delivered by the Member to CNO and the Expert 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.

With this penalty, members will be reminded that failing to participate in the Quality Assurance program is considered professional misconduct and is subject to disciplinary consequences.

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.