College of Nurses of Ontario v. Francisco II Reyes, 2020 CanLII 50437

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Terry Holland, RPN Chairperson Catherine Egerton, Public Member Sherry Szucsko-Bedard, RN Member Richard Woodfield Public Member

BETWEEN:

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

• and - )

FRANCISCO II REYES ) REBECCA YOUNG for Registration No. 12484331 ) Francisco II Reyes

) CHRISTOPHER WIRTH ) Independent Legal Counsel

) Heard: March 13, 2020

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on March 13, 2020 at the College of Nurses of Ontario (the “College”) at Toronto. Francisco II Reyes (the “Member”) and his Counsel were in attendance via teleconference due to unforeseen circumstances and to prevent the risk of coronavirus transmission.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated January 27, 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, and defined in subsection 1(20) of Ontario Regulation 799/93, in that while registered as a member of the College of Nurses of Ontario, you failed to appear before a panel of the Inquiries, Complaints and Reports Committee (“ICRC”) to be orally cautioned on or about September 20, 2018 and/or November 21, 2018 and/or December 13, 2018, pursuant to a decision of the ICRC, dated June 19, 2018; and/or

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, and, in particular, you failed to:

(a) complete a Specified Continuing Education or Remediation Program that you were ordered to complete by a decision of the ICRC dated June 19, 2019; and/or

(b) appear before a panel of the ICRC to be orally cautioned on or about September 20, 2018 and/or November 21, 2018 and/or December 13, 2018, pursuant to a decision of the ICRC, dated June 19, 2018.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1 and 2(a) and 2(b) 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. Francisco II Reyes (the “Member”) obtained a degree in nursing from Arellano University School of Nursing in 2006.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse on January 3, 2012. The Member was also registered with CNO as a Registered Practical Nurse from April 20, 2011 until his resignation on January 27, 2013.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

3. On May 16, 2018, a panel of the Inquires Complaints and Reports Committee (“ICRC”) of CNO issued an order requiring the Member to complete a Remediation Program. The Remediation Program included the following:

• reviewing CNO’s Professional Standards, Therapeutic Nurse-Client Relationship, and Confidentiality and Privacy: Personal Health Information standards;

• completing the “Reflective Questionnaires” related to these standards;

• completing CNO’s online learning modules related to these standards and the Online Participation Forms for these modules;

• reviewing CNO’s Confidentiality and Privacy webcast; and

• after completing the above, attending a meeting with an approved regulatory expert to discuss the incidents investigated, the applicable nursing standards, and the insights and learning gained from practice reflection.

4. The Member was also ordered to attend an Oral Caution before the ICRC.

5. The Member and his counsel were notified of the ICRC’s Order by letter dated May 17, 2018.

6. The Member and his counsel were subsequently sent the ICRC’s reasons for decision in a letter dated June 19, 2018. The letter also stated the Member was required to complete the Remediation Program within three months of the date of the letter, being September 19, 2018. In addition, the letter stated the Member’s Oral Caution was scheduled for Thursday, September 20, 2018.

7. CNO sent the Member and his counsel a letter dated June 21, 2018, which provided instructions on how to comply with the Order from the ICRC. The letter further stated that all future correspondence would be sent to the Member’s legal counsel.

8. CNO sent a letter dated August 16, 2018, to the Member’s counsel with a reminder of the Remediation Program deadline.

9. The Member failed to complete the Remediation Program by September 19, 2018. He also did not attend his Oral Caution scheduled for September 20, 2018.

10. CNO sent the Member and his counsel a letter dated September 20, 2018, regarding the Member’s breach of the ICRC’s Order. The letter provided instructions for requesting an extension and stated the deadline for requesting the extension was October 3, 2018. The letter also provided the Member with a new date for the Oral Caution, being November 21, 2018, and requested that the Member confirm his availability.

11. On September 28, 2018, Member’s counsel sent an email to CNO acknowledging that the Member had failed to complete the Remediation Program and attend the Oral Caution and requesting an extension of time to fulfil the terms of the Remediation Program and Oral Caution. Member’s counsel requested an indulgence until October 31, 2018 and stated that the Member had been struggling with significant personal matters. CNO responded to the Member’s counsel and advised that the extension request could not be processed until the Member provided a confirmed date to meet with the expert.

12. On October 17, 2018, Member’s counsel informed CNO that the Member had a meeting scheduled with an expert on October 31, 2018.

13. CNO sent the Member and his counsel a letter dated October 19, 2018 advising that the deadline to complete the Remediation Program was extended to November 1, 2018 and the new date for the Oral Caution was November 21, 2018.

14. On October 25, 2018, the expert informed CNO that she had cancelled the meeting with the Member because the Member did not provide his documents to her seven days in advance of the meeting, as required under the terms of the Remediation Program.

15. CNO sent the Member’s counsel a letter dated November 15, 2018, noting that the Member’s meeting with the expert, scheduled for October 31, 2018, was cancelled because the Member failed to submit the required documents to the expert seven days before the meeting. The letter also provided instructions for requesting an extension and stated the deadline for requesting the extension was November 27, 2018. The letter further stated that if the request for extension was approved, the date for attending the Oral Caution would be December 13, 2018.

16. CNO did not receive a response to the letter dated November 15, 2018. The Member did not complete the Remediation Program or attend the Oral Caution.

17. If the Member were to testify, he would state that he is remorseful for his actions and that he has since engaged in remediation by reviewing the CNO standards required by the Remediation Program and beginning the reflective questionnaires.

18. If the Member were to testify, he would also state that he was suffering from a health condition during the time period which influenced his behaviour and judgment. He has since sought treatment for his health condition.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

19. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that he failed to appear before a panel of the ICRC to be orally cautioned pursuant to a decision of the ICRC dated June 19, 2018, as described in paragraphs 3 to 18 above.

20. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2 (a) and (b) of the Notice of Hearing in that he engaged in conduct that was unprofessional when he:

a. failed to complete a Remediation Program that was ordered by the decision of the ICRC dated June 19, 2018, as described in paragraphs 3 to 18 above; and

b. failed to appear before a panel of the ICRC to be orally cautioned pursuant to a decision of the ICRC dated June 19, 2018, as described in paragraphs 3 to 18 above.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1 and 2(a) and 2(b) of the Notice of Hearing. With regard to the allegations in paragraphs 2(a) and 2(b), the Panel finds that the Member’s conduct would reasonably be regarded by members of the profession as 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 3 to 19 in the Agreed Statement of Facts. This allegation was clearly a breach of the Member’s obligations, as a registered member of the College, in that he did not abide by the order from the College’s Inquiries, Complaints and Review Committee (“ICRC”) to attend to receive an oral caution even after receiving multiple notifications and opportunities to respond.

Allegation #2 in the Notice of Hearing is supported by paragraphs 3 to 18, and 20 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct, in failing to complete a Specified Continuing Education or Remediation Program in the stated timeframe and failing to appear before a panel of the ICRC to be orally cautioned, was unprofessional. The Member chose to ignore repeated communications from the College and showed disregard for the standards of his profession. This behaviour demonstrated a serious disrespect for his professional obligations which are documented in the Health Professionals Procedural Code of the Nursing Act, 1991.

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 1 month. 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 2 meetings with a Regulatory Expert (the “Expert”), at his 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. Therapeutic Nurse-Client Relationship, and

3. Confidentiality and Privacy: Personal Health Information;

iv. 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;

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 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;

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 his 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 his certificate of registration;

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 mitigating factors in this case were:

• The Member cooperated with the College and participated in the process;

• The Member admitted to the allegations and accepted responsibility for his actions;

• The Member has no prior discipline history with the College;

• The Member attended 2 pre hearing conferences;

• The Member expressed remorse for not following the ICRC’s order;

• The Member has been proactive and has already started the review that is laid out in #3(iii) of the proposed penalty;

• The Member had health issues during this time period, which influenced his behaviour and his judgement, and has since sought treatment.

The aggravating factors in this case were:

• The Member’s conduct was serious and intentional;

• The Member’s conduct showed a disregard for his professional obligations. Remediation and the oral caution were ordered by the ICRC in response to concerns with the Member’s conduct. By not completing the order, the Member subverted the regulatory process;

• The Member’s behaviour brought discredit to his profession.

The proposed penalty provides for general and specific deterrence through:

• The one-month suspension;

• The oral reprimand.

The proposed penalty provides for remediation and rehabilitation through:

• The two meetings with a Nursing Expert which will allow the Member to reflect on his professional standards and requirements;

• The terms, conditions and limitations placed on the Member’s certificate of registration.

Overall, the public is protected because:

• The proposed Joint Submission on Order, in its totality, is geared toward public protection. The order sends a message to nurses that there are consequences to their behaviour, and to the public of the profession’s ability to self-regulate.

College Counsel submitted three cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

CNO v. Agyekum (Discipline Committee, September 2012): The member failed to appear before a panel of the ICRC to be orally cautioned; failed to respond in a timely manner when the College attempted to schedule her attendance and failed to advise the College in a timely manner that her telephone number had changed. The member was given a penalty including an oral reprimand, a one month suspension and two meetings with a Nursing Expert.

CNO v. Lineses (Discipline Committee, February 2014): The member failed to complete a Specified Continuing Education or Remediation Program ordered by the ICRC. The member was given a penalty including an oral reprimand, one month suspension and three meetings with a Nursing Expert.

CNO v. Shawanda (Discipline Committee, April 2017): The member failed to appear before a panel of the ICRC to be orally cautioned and failed to complete a Specified Continuing Education or Remediation Program. The member was given a penalty including an oral reprimand, a two month suspension and two meetings with a Nursing Expert.

The CNO is increasingly of the view that behaviour like this is taken seriously. In this case there are additional mitigating factors. The Member was proactive and recognized the need to rehabilitate in advance of today’s hearing.

The Member’s Counsel asked the Panel to accept the Joint Submission on Order.

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 1 month. 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 2 meetings with a Regulatory Expert (the “Expert”), at his 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. Therapeutic Nurse-Client Relationship, and

3. Confidentiality and Privacy: Personal Health Information;

iv. 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;

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 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;

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 his 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 his certificate of registration;

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. Members of the profession will be reminded that failing to comply with an order from a statutory committee of the College is serious and will not be tolerated.

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

I, Terry Holland, 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.