College of Nurses of Ontario v. Christabel Owusu-Afriyie, 2020 ONCNO 120850

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: David Edwards, RPN Chairperson

Sylvia Douglas Public Member Lalitha Poonasamy Public Member George Rudanycz, RN Member

Sherry Szucsko-Bedard, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for

) College of Nurses of Ontario

• and - )

CHRISTABEL OWUSU-AFRIYIE ) GRANT FERGUSON for Registration No. AB865973 ) Christabel Owusu-Afriyie

) ) PATRICIA HARPER

) Independent Legal Counsel

) Heard: June 29, 2020­­

AMENDED 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 June 29, 2020, via teleconference.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing public disclosure and banning publication or broadcasting of the name, or any information that could disclose the identity of the patient referred to orally or in any documents presented in the Discipline hearing of Christabel Owusu-Afriyie.

The Panel considered the submissions of the Parties and decided that there be an order preventing public disclosure and banning publication or broadcasting of the name, or any information that could disclose the identity of the patient referred to orally or in any documents presented in the Discipline hearing of Christabel Owusu-Afriyie.

The Allegations

The allegations against Christabel Owusu-Afriyie (the “Member”) as stated in the Notice of Hearing dated June 2, 2020, 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 (the “Act”), and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while a Registered Practical Nurse employed as a Personal Support Worker by Hospall Private Home Care in King City, Ontario (the “Agency”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when you accepted money from [the Patient] in the total amount of approximately $2,100.00, on, around, or between May to June 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 Act, and defined in subsection 1(8) of Ontario Regulation 799/93, in that, while a Registered Practical Nurse employed as a Personal Support Worker by the Agency you misappropriated property from a patient when you accepted money from [the Patient] in the total amount of approximately $2,100.00, on, around or between May to June 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 Act, and defined in subsection 1(26) of Ontario Regulation 799/93, in that, while a Registered Practical Nurse employed as Personal Support Worker by the Agency, you practised while in a conflict of interest in that you accepted money from [the Patient] in the total amount of approximately $2,100.00, on, around, or between May to June 2017; and/or

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Act, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while a Registered Practical Nurse employed as a Personal Support Worker by the Agency, 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 when you accepted money from [the Patient] in the total amount of approximately $2,100.00, on, around, or between May to June 2017.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2, 3 and 4 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. Christabel Owusu-Afriyie (the “Member”) obtained a diploma in nursing from Seneca College in December 2011.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on December 19, 2012.

3. The Member was employed as a part-time personal support worker (“PSW”) at Hospall Private Home Care (the “Facility”) in King City, Ontario, from March 2015, until she was terminated on April 29, 2018, as a result of the incident described below.

4. Since June 1, 2019, the Member has been employed as an RPN at Atikokan General Hospital and remains employed there.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Misappropriation of Patient’s Property

5. [The “Patient”] was an elderly male patient with Parkinson’s disease. The Member provided home care to the Patient for approximately two years.

6. While reviewing the Patient’s banking documents, the Patient’s son noticed three separate cheques made out to the Member on the same days that the Facility was also paid by cheque.

7. The Member admitted that between May and June 2017, she wrote and cashed three cheques made payable to herself using the Patient’s cheques and signature stamp, totalling approximately $2,100. The particulars of the cheques were as follows:

a. $600 dated May 25, 2017;

b. $700 dated June 8, 2017; and,

c. $800 dated June 15, 2017.

8. If the Facility’s owner were to testify, she would state that the Member advised the Facility that the Patient overheard her talking about her personal debt and offered to give her some money to help. The Member was desperate and accepted the help.

9. If the Member were to testify, she would state that the Patient gifted her the money as a way of showing gratitude for the care she had provided him over the years. However, the Member now recognizes that it was inappropriate and that she contravened the standards of practice of the profession by taking or accepting money from a patient.

10. On the Facility’s request, the Member promptly repaid the total sum within 48-hours of the termination and phoned the Patient’s son to apologize.

CNO STANDARDS

11. CNO has published nursing standards to set out the expectations for the practice of nursing. CNO’s standards inform nurses of their accountabilities and apply to all nurses regardless of their role, job description, or area of practice.

Professional Standards

12. The Professional Standards practice standard states that 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. A nurse demonstrates this standard by providing, facilitating, advocating and promoting the best possible care for patients.

13. The Professional Standards practice standard also requires nurses to maintain respectful, collaborative, therapeutic and professional relationships. A nurse demonstrates this standard by:

a. maintaining the boundaries between professional therapeutic relationships and non-professional personal relationships; and

b. ensuring patients’ needs remain the focus of nurse-patient relationships;

Therapeutic Nurse-Client Relationship Standard

14. The Therapeutic Nurse-Client Relationship Standard (“the TNCR Standard”) places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-patient relationship on the nurse.

15. The TNCR Standard also generally prohibits nurses from engaging in financial transactions unrelated to the provision of care, and activities that could result in monetary, personal, or other material benefit, gain or profit for the nurse (other than the appropriate remuneration for nursing care or services), or result in monetary or personal loss for the patient.

16. The TNCR Standard specifically addresses gifts. It states that nurses meet the TNCR Standard by:

a. abstaining from accepting individual gifts unless, in rare instances, the refusal will harm the nurse-client relationship. If the refusal could be harmful, consult with a manager and/or the College and document the consultation before accepting the gift.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

17. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1-3 of the Notice of Hearing, and as described in paragraphs 5-9 above, when she accepted money from the Patient in the amount of approximately $2,100 between May to June 2017.

18. The Member admits that she committed the act of professional misconduct as alleged in paragraph 4 of the Notice of Hearing, and in particular, that her conduct was disgraceful, dishonourable and unprofessional.

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 4, 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 5-9, 13-16 and 17 in the Agreed Statement of Facts. The Member committed an act of professional misconduct as she failed to meet the standard of practice of the profession when she accepted money from the Patient in the total amount of approximately $2,100.00. The Therapeutic Nurse-Client Relationship Standard prohibits nurses from engaging in financial transactions unrelated to the provision of care. The Professional Standards set out that nurses must maintain the boundaries between professional therapeutic relationships and non-professional personal relationships.

Allegation #2 in the Notice of Hearing is supported by paragraphs 6-9 and 17 in the Agreed Statement of Facts. The Panel finds that the Member misappropriated property from the Patient when she used the Patient’s cheques and signature stamp to write herself and cash three cheques between the dates of May 25, 2017 and June 15, 2017. The Member admits that she committed an act of professional misconduct when she misappropriated property from the Patient.

Allegation #3 in the Notice of Hearing is supported by paragraphs 5-9 and 17 in the Agreed Statement of Facts in that the Member practiced while in a conflict of interest as she had received money from the Patient that was unrelated to the provision of care. The Member admits that she committed this act of professional misconduct.

With respect to Allegation #4 the Panel finds that the Member’s conduct was relevant to the practice of nursing and that having regard to all of the circumstances, would in the Panel’s opinion be reasonably regarded by members as unprofessional as the Member contravened the standard of practice by accepting money from the Patient for her own personal gain and it demonstrated a serious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. The Member demonstrated an element of dishonesty and deceit through misappropriating property from the Patient when she used the Patient’s cheques and signature stamp to write herself three cheques between the dates of May 25, 2017 and June 15, 2017. This is evidence of moral failure and the conduct falls well below the standards of the profession.

Finally, the Panel further finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member took advantage of an elderly, vulnerable patient who believed that the Member was there to care for him. This conduct casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects nurses to meet.

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 practicing 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 a minimum of two meetings with a Regulatory Expert (the “Expert”) at her own expense and within six months from the date that this Order becomes final. If the Expert determines that a greater number of session are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 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 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 CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Code of Conduct, and

3. Therapeutic Nurse-Client Relationship;

iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

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 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;

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 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 practice 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 CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

• The breach of trust involved an elderly, vulnerable patient;

• The Member’s misconduct involved personal gain;

• The Member’s misconduct is very serious and relates directly to her professional obligations;

• The Member’s misconduct occurred in the Patient’s home where she had been caring for him for approximately 2 years; and

• The Member’s misconduct brings discredit to the profession as a whole.

The mitigating factors in this case were:

• The Member had no prior history of discipline with the College;

• The Member admitted and accepted responsibility for her actions;

• The Member paid the money back within 48 hours when requested;

• The Member cooperated with the College and the investigation; and

• The Member was remorseful and apologized to the Patient’s son.

The proposed penalty provides for general and specific deterrence through:

• The 5 month suspension;

• The oral reprimand.

The proposed penalty provides for remediation and rehabilitation through:

• The terms, conditions and limitations placed on the Member’s certificate of registration, including two meetings with a Regulatory Expert which will allow the Member to reflect on her professional standards and requirements.

Overall, the public is protected because the Member will be required to notify her employers of the decision of the Discipline Committee for 18 months and will not be permitted to practise independently for 18 months from the date she returns to practice.

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. Guarrasi (Discipline Committee, 2012). In this case, the member committed an act of professional misconduct as she misappropriated property from a [patient] involving money and/or gift cards. The member was providing care to the [patient] in a home setting. The member was given a penalty including an oral reprimand, a 4 month suspension, 2 meetings with a Nursing Expert and 24 months of employer notification.

CNO v. Steen (Discipline Committee, 2018). In this case, the member committed an act of professional misconduct when [he] failed to maintain the boundaries of the therapeutic nurse-client relationship as [he] engaged in a financial transaction with a [patient] unrelated to the provision of care. The financial transactions were greater than $100,000.00 in total. The member was providing care in the home to an elderly [patient]. The member was given a penalty including an oral reprimand and her certificate of registration was immediately revoked.

CNO v. Hughes (Discipline Committee, 2019). In this case, the member committed an act of professional misconduct when she was found guilty of an offence relevant to her suitability to practise as she was found guilty of defrauding a [patient’s] spouse out of money exceeding $5,000.00. The member was given a penalty including an oral reprimand, a 5 month suspension, 2 meetings with a Regulatory Expert, an 18 month employer notification and was not able to practice independently for a period of 12 months from the date the member returned to the practice of nursing.

The Member’s Counsel agreed that the proposed penalty reflects these aggravating and mitigating factors. He also indicated that his client was remorseful.

The Member’s Counsel also provided a further case for the Panel to demonstrate that the proposed penalty is appropriate as demonstrated with previous cases.

CNO v. Henderson (Discipline Committee, 2019). In this case, the member committed an act of professional misconduct and was found guilty of offences relevant to suitability to practise; misappropriated property from a [patient] in particular credit cards; failed to report a finding of guilt to the College and failed to report charges relating to any offence to the College. The member was given a penalty including an oral reprimand, a 12 month suspension, 2 meetings with a Regulatory Expert, a 24 month employer notification and was not able to practice independently for a period of 24 months from the date the member returned to the practice of nursing.

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 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 a minimum of two meetings with a Regulatory Expert (the “Expert”) at her own expense and within six months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 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 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 CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Code of Conduct, and

3. Therapeutic Nurse-Client Relationship;

iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

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 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;

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 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. the 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 practice 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 CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

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

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. The suspension of five months followed by a period of employer notification and being unable to work independently for eighteen months once the Member starts to practice nursing addresses the principle of public protection. The penalty reinforces the expectation that members are to consistently maintain high professional and ethical standards when caring for a vulnerable patient population.

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

I, David Edwards, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.