College of Nurses of Ontario v. Vicki Church-Labrie, 2020 CanLII 45992

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Dawn Cutler, RN Chairperson Margarita Cleghorne, RPN Member Catherine Egerton Public Member Honey Palalon, RN Member Devinder Walia Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO GLYNNIS HAWE for College of Nurses of Ontario

• and -

VICKI CHURCH-LABRIE Registration No.: 0182840 BEN MILLARD for Vicki Church-Labrie

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: March 9, 2020

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on March 9, 2020 at the College of Nurses of Ontario (the “College”) at Toronto.

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 the public disclosure, including a ban on the publication or broadcasting of the identity of the patients in the Discipline hearing of Vicki Church-Labrie or any information that could disclose the patients’ identity, including any reference to the patients’ name contained in the allegations in the Notice of Hearing and in any exhibits filed with the Panel.

The Panel considered the submissions of the Parties and decided that there be an order preventing the public disclosure, including a ban on the publication or broadcasting of the identity of the patients in the Discipline hearing of Vicki Church-Labrie or any information that could disclose the patients’ identity, including any reference to the patients’ name contained in the allegations in the Notice of Hearing and in any exhibits filed with the Panel.

The Allegations

The allegations against Vicki Church-Labrie (the “Member”) as stated in the Notice of Hearing dated November 22, 2019 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 you were employed as a Registered Nurse at Health Sciences North-Sudbury Outpatient Centre in Sudbury, Ontario (the “Hospital”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to the following incidents:

a. you accessed personal health information of one or more of the following patients, without consent or other authorization, and/or without clinical purpose with respect to:

i. [Patient A], on or about July 3, 2013, and/or May 28, 2014;

ii. [Patient B], on or about February 13, 2014;

iii. [Patient C], on or about:

1. December 18, 2012;

2. January 3, 2013;

3. January 5, 2013;

4. February 2, 2013;

5. March 1, 2013;

6. May 28, 2013;

7. June 24, 2013;

8. June 25, 2013;

9. February 27, 2014;

10. April 12, 2014; and/or

11. May 28, 2014.

iv. [Patient D], on or about:

1. October 20, 2010;

2. October 21, 2010;

3. October 25, 2010;

4. October 26, 2010;

5. October 29, 2010; and/or

6. November 4, 2010.

b. you accessed your own personal health information without clinical purpose, on or about the dates indicated below:

i. May 21, 2010;

ii. October 16, 2010;

iii. October 20, 2010;

iv. October 21, 2010;

v. March 4, 2011;

vi. August 14, 2012;

vii. August 23, 2012;

viii. September 29, 2012;

ix. February 2, 2013;

x. March 28, 2013;

xi. May 2, 2013;

xii. May 16, 2013;

xiii. August 21, 2013;

xiv. September 12, 2013;

xv. October 22, 2013;

xvi. December 16, 2013;

xvii. January 7, 2014;

xviii. February 27, 2014;

xix. May 28, 2014;

xx. October 6, 2014;

xxi. October 29, 2014;

xxii. April 24, 2015;

xxiii. May 22, 2015; and/or

xxiv. June 15, 2015.

c. on or around October 6, 2014, you engaged in a verbal confrontation regarding a personal matter with a colleague, [Patient A], on or around the grounds of the Hospital, in which you raised your voice and/or used profanity.

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 while you were employed as a Registered Nurse at the 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 of the profession as disgraceful, dishonourable or unprofessional with respect to:

a. you accessed personal health information of one or more of the following patients, without consent or other authorization, and/or without clinical purpose with respect to:

i. [Patient A], on or about July 3, 2013, and/or May 28, 2014;

ii. [Patient B], on or about February 13, 2014;

iii. [Patient C], on or about:

1. December 18, 2012;

2. January 3, 2013;

3. January 5, 2013;

4. February 2, 2013;

5. March 1, 2013;

6. May 28, 2013;

7. June 24, 2013;

8. June 25, 2013;

9. February 27, 2014;

10. April 12, 2014; and/or

11. May 28, 2014.

iv. [Patient D], on or about:

1. October 20, 2010;

2. October 21, 2010;

3. October 25, 2010;

4. October 26, 2010;

5. October 29, 2010; and/or

6. November 4, 2010.

b. you accessed your own personal health information without clinical purpose, on or about the dates indicated below:

i. May 21, 2010;

ii. October 16, 2010;

iii. October 20, 2010;

iv. October 21, 2010;

v. March 4, 2011;

vi. August 14, 2012;

vii. August 23, 2012;

viii. September 29, 2012;

ix. February 2, 2013;

x. March 28, 2013;

xi. May 2, 2013;

xii. May 16, 2013;

xiii. August 21, 2013;

xiv. September 12, 2013;

xv. October 22, 2013;

xvi. December 16, 2013;

xvii. January 7, 2014;

xviii. February 27, 2014;

xix. May 28, 2014;

xx. October 6, 2014;

xxi. October 29, 2014;

xxii. April 24, 2015;

xxiii. May 22, 2015; and/or

xxiv. June 15, 2015.

c. on or around October 6, 2014, you engaged in a verbal confrontation regarding a personal matter with a colleague, [Patient A], on or around the grounds of the Hospital, in which you raised your voice and/or used profanity.

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(a)(i) to (iv) inclusive, #1(b)(i) to (xxiv) inclusive, #1(c) and #2(a)(i) to (iv) inclusive, #2(b)(i) to (xxiv) inclusive, #2(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

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. Vicki Church-Labrie (the “Member”) obtained a diploma in nursing from Sault College in 2001.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse on May 7, 2001.

THE HOSPITAL

3. The Member is employed in the Nephrology Department at Health Sciences North – Sudbury Outpatient Centre (the “Hospital”) as a Dialysis Nurse.

4. The Hospital is located in Sudbury, Ontario.

5. The Member was issued a three-shift suspension by the Hospital and was required to sign a Pledge of Confidentiality as a result of her access of personal health information described below.

6. The Member was issued a coaching letter by the Hospital as a result of the verbal confrontation described below.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Accessing Personal Health Information

7. Through an audit of the Hospital’s Meditech system, the Hospital determined that the Member had improperly accessed the personal health records of [Patient A], [Patient C] and [Patient B] in 2013 and/or 2014.

8. The Member and [Patient C] [were acquainted]. [Patient C] has been employed [ ] at the Hospital [ ].

9. [Patient B] is [Patient C]’s ex-[spouse].

10. [Patient A] is employed [ ] at the Hospital. [Patient A] and [Patient C] [were acquainted] at the time of the incidents.

11. [Patient A], [Patient C], and [Patient B] had all been patients of the Hospital, but they have never been patients of the Nephrology Department and the Member was never involved in their circle of care.

12. In addition, the Hospital’s audit showed that the Member accessed and sometimes printed her own health records between 2010 and 2015 as well as accessed and sometimes printed the health records of [her family member], [Patient D].

[Patient A]’s Personal Health Information:

13. The audit performed by the Hospital’s Privacy Office found that the Member accessed [Patient A]’s health records on the following dates and times:

• On July 3, 2013 between 8:40-8:43 am, the Member accessed the demographic information page and Visit Summary pages; and

• On May 28, 2014 between 6:46-6:49 pm, the Member accessed the demographic information page.

14. The Member admits that she did not have a professional purpose or proper authorization to access [Patient A]’s personal health information.

[Patient C]’s Personal Health Information:

15. The audit performed by the Hospital’s Privacy Office found that the Member accessed [Patient C]’s health records on the following dates and times:

• On December 18, 2012, from 9:24-9:25 am, the Member accessed the Summary, Laboratory, and Order History pages;

• On January 3, 2013, from 4:23-4:32 pm, the Member accessed the Summary, Order History, Special Panels, and Notes pages;

• On January 5, 2013, from 4:25-4:26 pm, the Member accessed the Summary and Other Reports pages;

• On February 2, 2013, from 8:42-8:49 am, the Member accessed the Summary, Laboratory, and Other Reports pages;

• On March 1, 2013, from 4:41-4:46 pm, the Member accessed the Summary and Laboratory pages;

• On May 28, 2013 at 7:55 pm, the Member accessed [Patient C]’s demographic information page;

• On June 24, 2013, from 10:58-10:59 pm and from 11:55 pm-12:04 am (June 25, 2013), the Member accessed the Summary, Imaging, Special Panels, Laboratory, and Notes pages;

• On February 27, 2014, from 2:35-2:37 pm the Member accessed [Patient C]’s demographic information and Summary pages;

• On April 12, 2014, from 3:40-3:43 pm, the Member accessed [Patient C]’s demographic information page; and

• On May 28, 2014, from 6:46-6:47 pm, the Member accessed [Patient C]’s demographic information page.

16. The Member admits that she did not have a professional purpose or proper authorization to access [Patient C]’s personal health information.

[Patient B]’s Personal Health Information:

17. The audit performed by the Hospital’s Privacy Office found that the Member accessed [Patient B]’s health records and viewed the demographic information page on February 13, 2014 from 11:58 am to 12:02 pm.

18. The Member admits that she did not have a professional purpose or proper authorization to access [Patient B]’s personal health information.

The Member’s Personal Health Information:

19. The audit performed by the Hospital’s Privacy Office found that the Member accessed, and in some cases printed, her own health records on the following dates:

• 2010: May 21, October 16, October 20, October 21;

• 2011: March 4;

• 2012: August 14, August 23, September 29;

• 2013: February 2, March 28, May 2, May 16, August 21, September 12, October 22, December 16;

• 2014: January 7, February 27, May 28, October 6, October 29; and

• 2015: April 24, May 22, June 15.

20. The audit records indicate that the Member accessed the Summary, Imaging, 24 Hour, Order, and Laboratory pages of her own health records on various dates listed above.

21. If the Member were to testify, she would state that at the time in question, she was not aware of the correct process to follow in order to access her own health records and did not realize that she had done anything improper. Nevertheless, the Member admits and acknowledges that she was responsible for determining and following the appropriate process that is consistent with CNO’s standards of practice.

[Patient D]’s Personal Health Information:

22. The audit performed by the Hospital’s Privacy Office found that the Member accessed, and in some cases printed, [Patient D]’s health records on the following dates and times:

• On October 20, 2010, at 8:16 pm, the Member accessed [Patient D]’s demographic information page and order history;

• On October 21, 2010, between 7:02-7:03 pm, the Member accessed and printed [Patient D]’s order history;

• On October 25, 2010, between 8:43-9:10 am, the Member accessed [Patient D]’s demographic information page and accessed and printed [Patient D]’s order history;

• On October 26, 2010, at 5:45 pm, the Member accessed [Patient D]’s demographic information page and viewed and printed [Patient D]’s order history;

• On October 29, 2010, between 3:41-3:42 pm, the Member accessed [Patient D]’s demographic information page and accessed and printed [Patient D]’s order history; and

• On November 4, 2010, between 8:46-8:47am, the Member accessed [Patient D]’s demographic information page and accessed and printed [Patient D]’s order history.

23. If the Member were to testify, she would state that she accessed [Patient D]’s records at his request and for his benefit. However, the Member acknowledges that she did so without following the proper procedure or filing a written consent as required.

Verbal Confrontation

24. On October 6, 2014, the Member engaged in a verbal confrontation with [Patient A] on or around the grounds of the Hospital. During the confrontation, the Member raised her voice and used profanity.

25. If the Member were to testify, she would state that the incident occurred while the Member was walking on the sidewalk in front of the Hospital. At the time, the Member and [Patient A] were having an ongoing personal dispute. When they crossed paths outside the Hospital they had a brief, mutual argument in which both parties raised their voices. The Member immediately regretted the incident and self-reported it to her manager. The Member regrets her part in the argument and she admits that speaking to a co-worker in that manner on or around the grounds of the Hospital was inappropriate.

Hospital Policies

26. The Hospital has a policy titled “Protection of Personal Health Information & Confidentiality.” This policy acknowledges that all staff members have a “legal, ethical and at times a professional obligation to protect the confidentiality of personal health information and other sensitive information.” The policy requires that personal health information not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law.

27. With respect to the Member’s access of [Patient A], [Patient C], and [Patient B]’s records, the Member admits that she did not have a professional purpose or proper authorization to access their personal health information.

28. The Hospital’s “Request for Access to Personal Health Information Policy” sets out the policy when a patient requests access to their own personal health records, including through a substitute decision-maker. The Policy is clear that it applies to Hospital staff wishing to access their own personal health records.

29. With respect to the Member’s access to the personal health records of [Patient D], the Policy requires that the Member be the substitute decision-maker for the patient in order to request access. The Member was not the substitute decision-maker for [Patient D].

30. The Policy further required that the records requestor fill out the “Access Request for Personal Health Information” form. The Member did not do so for her own records, or for [Patient D]’s records.

31. Finally, the Policy requires that all requests and accesses to personal health records be documented. The Member failed to document any of her accesses to her own personal health records or the personal health records of [Patient D].

32. The Member was required to be cognizant of and compliant with these policies and procedures. The Member also signed a confidentiality pledge and received privacy training from the Hospital when she was hired.

CNO STANDARDS

33. CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring her or his practice and conduct meets legislative requirements and the standards of the profession.

34. CNO’s Professional Standards further provides, in relation to the Relationships standard, that nurses meet the standard by establishing and maintaining respectful and professional relationships with colleagues, healthcare team members and employers. The Professional Relationships standard notes that professional relationships are based on trust and respect, and result in improved client care. A nurse demonstrates having met this standard by actions such as:

a. role-modelling positive collegial relationships;

b. demonstrating effective conflict-resolution skills; and

c. using a wide range of communication and interpersonal skills to effectively establish and maintain collegial relationships.

35. In addition, CNO’s Professional Standards further provides that a nurse demonstrates leadership by providing, facilitating and promoting the best possible care/service to the public. A nurse demonstrates this standard by actions such as role-modelling professional values, beliefs and attributes.

36. CNO’s Conflict Prevention and Management guideline provides that nurses must be able to work in cooperation with colleagues to deliver safe, effective and ethical client care. The guideline further provides that to function effectively as part of a team, nurses must establish positive collegial relationships and that the active management of conflict is an integral part of building positive collegial relationships.

37. The Member admits and acknowledges that her conduct towards her co-worker, [Patient A], was inappropriate and fell below the standards of practice.

38. CNO’s Confidentiality and Privacy: Personal Health Information standard largely incorporates the Personal Health Information Protection Act, 2004 (“PHIPA”). This standard requires that personal health information be kept confidential and secure. Nurses comply with this standard by accessing information for her or his patients only and not accessing information for which there is no professional purpose.

39. The Member admits and acknowledges that accessing personal health information for patients without professional purpose, and without their authorization and/or consent is a breach of this standard.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

40. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 (a) to (c) of the Notice of Hearing in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 7 to 39 above.

41. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a) to (c) of the Notice of Hearing, and in particular, that her conduct was dishonourable and unprofessional, as described in paragraphs 7 to 39 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)(i) to (iv) inclusive, #1(b)(i) to (xxiv) inclusive and #1(c) of the Notice of Hearing. As to Allegations #2(a)(i) to (iv) inclusive, #2(b)(i) to (xxiv) inclusive and #2(c) the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be unprofessional and dishonourable

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(a)(i) in the Notice of Hearing is supported by paragraphs 7, 13, 14 and 33 to 40 in the Agreed Statement of Facts. The Member admitted she committed acts of misconduct when she did not follow the CNO’s Professional Standards in regards to Confidentiality and Privacy

The Hospital had determined that the Member had improperly accessed the records of [Patient A] on two occasions. The Member admitted she had accessed the information and did not have the authorization to do so.

Allegation #1(a)(ii) in the Notice of Hearing is supported by paragraphs 7, 17, 18 and 33 to 40 in the Agreed Statement of Facts. The Member admitted she committed acts of misconduct when she did not follow the CNO’s Professional Standards in regards to Confidentiality and Privacy The Hospital had determined that the Member had improperly accessed the records of [Patient B] on one occasion. The Member admitted she had accessed the information and did not have the authorization to do so.

Allegation #1(a)(iii) in the Notice of Hearing is supported by paragraphs 7, 15, 16 and 33 to 40 in the Agreed Statement of Facts. The Member admitted she committed acts of misconduct when she did not follow the CNO’s Professional Standards in regards to Confidentiality and Privacy. The Hospital had determined that the Member had improperly accessed the records of [Patient C] on eleven occasions. The Member admitted she had accessed the information and did not have the authorization to do so.

Allegation #1(a)(iv) in the Notice of Hearing is supported by paragraphs 12, 22, 23 and 33 to 40 in the Agreed Statement of Facts. The Member admitted she committed acts of misconduct when she did not follow the CNO’s Professional Standards in regards to Confidentiality and Privacy The Hospital had determined that the Member had improperly accessed the records of [Patient D] on six occasions. The Member admitted she had accessed the information and did not have the authorization to do so.

Allegations #1(b)(i) to (xxiv) inclusive in the Notice of Hearing are supported by paragraphs 12, 19, 20, 21 and 33 to 40 in the Agreed Statement of Facts. The Member admitted she committed acts of misconduct when she did not follow the CNO’s Professional Standards in regards to Confidentiality and Privacy. The Hospital had determined that the Member had improperly accessed her own medical records 24 times. The Member admitted she had accessed the information and did not have the authorization to do so.

Allegation #1(c) in the Notice of Hearing is supported by paragraphs 24, 25 and 33 to 40 in the Agreed Statement of Facts. The Member admitted she committed acts of misconduct when she did not follow the CNO’s Professional Standards in regards to the Relationship Standard. The Member admits that she had a verbal confrontation with [Patient A] on Hospital grounds in which there was raised voices and the use of profanity.

Allegations #2(a)(i) to (iv) inclusive, #2(b)(i) to (xxiv) inclusive and 2(c) in the Notice of Hearing are supported by paragraphs 7 to 41 in the Agreed Statement of Facts. The Member admitted that she committed acts of professional misconduct as her conduct was unprofessional and dishonourable. The Panel finds the Member’s conduct as admitted to in paragraphs 7 to 39 of the Agreed Statement of Facts was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. The Member should have known not to engage on the hospital grounds in a confrontation that included profanity. The Member had on multiple occasions and with numerous personal medical records, including her own, violated both Hospital policies and the College’s professional standards with regard to accessing personal health information. The Panel also found this misconduct to be dishonourable with an element of dishonesty and deceit through the repeated unauthorized access to private records over an extended period of time which the Member ought to have known was unacceptable and fell below the standards of a professional.

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 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 3 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 2 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,

2. Conflict Prevention and Management,

3. Confidentiality and Privacy: Personal Health Information,

4. Code of Conduct,

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 7 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 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 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.

3. 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 mitigating factors in this case were:

• The Member has been a long-standing member of the College;

• The Member had no previous discipline history with the College;

• The Member has admitted to her misconduct by entering a plea therefore avoiding a hearing;

• The Member has accepted the responsibility for her actions;

• The Member has cooperated with the College;

• The Member attended the hearing.

The aggravating factors in this case were:

• The Member’s actions were not an isolated case and were a breach of trust;

• The Member accessed five different patients’ personal files including her own;

• The Member’s access to files occurred over a five year time span.

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 vs Evoy (Discipline Committee 2019). This case is similar as the member accessed the records of 11 clients over a 3 year term. The member in this case also had an Agreed Statement of Facts with a Joint Submission on Order that included an oral reprimand, a 3 month suspension, 2 meetings with a Nursing Expert and an 18 month employer notification with random spot audits.

CNO vs Vaughan (Discipline Committee 2017). This case is similar as the member accessed the records of 10 clients over a 4 year term. The member in this case also had an Agreed Statement of Facts with a Joint Submission on Order that included an oral reprimand, a 3 month suspension, 2 meetings with a Nursing Expert and a 12 month employer notification.

CNO vs Trudel (Discipline Committee 2018). This case is similar as the member accessed the records of 63 clients over a 2 year term. The member in this case also had an Agreed Statement of Facts with a Joint Submission on Order that included an oral reprimand, a 4 month suspension, 2 meetings with a Nursing Expert and a 12 month employer notification.

The Member’s Counsel agreed with College Counsel and added that the Member is still employed at the Hospital where the allegations occurred and that her employer supports her. The Member has taken full responsibility and self-reported to her employer about the incidents that occurred. The Member’s Counsel cited a letter of recognition from the Member’s employer as to the character of the Member. The Member’s Counsel also told the Panel that the Member has been taking courses to improve her practice and has been asked to work as a preceptor.

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 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 3 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 2 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,

2. Conflict Prevention and Management,

3. Confidentiality and Privacy: Personal Health Information,

4. Code of Conduct,

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 7 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 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 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.

3. 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 deliberated and agreed that the Joint Submission on Order satisfies the principles of penalty.

The penalty provides for general deterrence through the three month suspension, which sends a clear message to the profession as a whole that unauthorized access to personal health information is a serious breach and will not be tolerated.

The penalty also provides for specific deterrence through a three month suspension, two meetings with a Regulatory Expert at the Member’s expense and a 12 month employer notification. All of these measures should deter the Member from future professional misconduct.

The penalty provides for remediation and rehabilitation through the two meetings with a Regulatory Expert, and will provide the Member with the opportunity to improve her practice by re-education in the areas of professional standards. The areas outlined in the review will allow the Member to reflect on her errors in judgement and learn from her experience.

Overall, the public is protected because all aspects of the penalty address the most critical issue of public protection and the penalty sends a powerful message to the public that this behaviour is not acceptable and will not be tolerated by the profession. The Member will have an opportunity to reflect on her conduct, gain insight into her actions and improve her practice. Nurses have legal and ethical obligations to maintain the confidentiality and privacy of patients.

The Panel concluded that the 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. It sends a strong message to the membership regarding the importance of ensuring that medical records remain private, confidential and secure. The College and the public will not tolerate any nurse who breaches the standards of privacy and confidentiality. Conduct by a nurse that demonstrates a lack of integrity, dishonesty and an abuse of power by misusing their ability to view confidential medical information, cannot be tolerated.

I, Dawn Cutler, 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.