College of Nurses of Ontario v. Janice Hines, 2021 ONCNO 123819

PANEL: David Edwards, RPN Chairperson Andrea Arkell Public Member Natalie Montgomery Public Member Michael Schroder, NP Member Josee Wright, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for ) College of Nurses of Ontario

and - ) JANICE HINES ) NO REPRESENTATION for Registration No. IF03648 ) Janice Hines ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: January 13-14, 2021

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”) commencing on January 13, 2021, via videoconference.

As Janice Hines (the ”Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not in attendance.

College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing (Exhibit 1), on November 25, 2020 by way of an affidavit (Exhibit 2) from [ ], Prosecutions Clerk, dated December 1, 2020, confirming that [the Prosecutions Clerk] sent correspondence on November 25, 2020 to the Member’s last known address on the College Register.

The Panel was satisfied that the Member had received adequate notice of the time, place, and purpose of the hearing and of the fact that if she did not participate in the hearing, it may proceed without her participation. Accordingly, the Panel decided to proceed with the hearing in the Member’s absence.

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 and banning the publication or broadcasting of the names, or any information that could disclose the identities, of the patients referred to orally or in any documents presented in the Discipline hearing of Janice Hines.

The Panel considered the submissions of College Counsel and decided that there be an order preventing the public disclosure and banning the publication or broadcasting of the names, or any information that could disclose the identities, of the patients referred to orally or in any documents presented in the Discipline hearing of Janice Hines.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated November 25, 2020 are as follows:

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code (the “Code”) of the Nursing Act, 1991, S.O. 1991, c. 32, as amended (the “Act”), in that on March 6, 2019, in the Ontario Court of Justice in Cobourg, Ontario, you were found guilty of an offence relevant to your suitability to practice as follows:

(a) On or between the 19th day of December, 2017 and the 20th day of June, 2018, at the Town of Cobourg in the said region did, steal the property of [the Patient] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code of the Act and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while you were employed as a Registered Practical Nurse at Victoria Retirement Living in Cobourg, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in, around, or between November 2014 and June 20, 2018 with respect to the following incidents:

(a) you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Patient];

(b) you used [the Patient’s] bank card to make personal purchases and/or cash withdrawals for your own benefit, without the patient’s consent to do so;

(c) you failed to return [the Patient’s] bank card, in a timely manner, when requested to do so by the patient, on numerous occasions; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code of the Act, and defined in subsection 1(7) of Ontario Regulation 799/93, in that, while you were employed as a Registered Practical Nurse at the Facility, you abused [the Patient] verbally, physically and/or emotionally in, on or between December 17, 2017 and June 20, 2018 when you used [the Patient’s] bank card to make personal purchases and/or cash withdrawals for your own benefit, without the patient’s consent to do so; and/or
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code of the Act, and defined in subsection 1(8) of Ontario Regulation 799/93, in that, while employed as a Registered Practical Nurse at the Facility, on or between December 17, 2017 and June 20, 2018, you misappropriated property from [the Patient], in particular you made personal purchases and/or cash withdrawals for your own benefit, using [the Patient’s] bank card without her consent to do so;
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code of the Act, and defined in subsection 1(18) of Ontario Regulation 799/93, in that, on or around March 6, 2019, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.i. of Ontario Regulation 275/94, in that you failed to report findings of guilt to the Executive Director of the College of Nurses (“CNO”), in particular, that on March 6, 2019, you were found guilty of the following offence, which you did not report:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code of the Act and defined in subsection 1(18) of Ontario Regulation 799/93, in that, on or around October 2018, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94, in that you failed to report charges relating to any offence to the Executive Director of CNO, and in particular, that you were charged with the following offences on or around October 22, 2018:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code of the Act, and defined in subsection 1(19) of Ontario Regulation 799/93, in that you contravened a provision of the Act, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or the regulations under either of those Acts, and in particular, section 85.6.1 of the Code, in that, on March 6, 2019, you failed to report findings of guilt to the Registrar (being the Executive Director) of CNO, as follows:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code of the Act, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while you were employed as a Registered Practical Nurse at the Facility, 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 on, around or between, November 2014 and June 20, 2018:

(a) you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Patient];

(b) you used [the Patient’s] bank card to make personal purchases and/or cash withdrawals for your own benefit, without the patient’s consent to do so;

(c) you failed to return [the Patient’s] bank card, in a timely manner, when requested to do so by the patient, on numerous occasions; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code of the Act, 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 report charges and/or findings of guilt to the Executive Director of CNO, as follows:

(a) On or around October 22, 2018, you were charged with the following offence, which you did not report:

(i) On or between the 19th day of December, 2017 and the 20th day of June, 2018, at the Town of Cobourg in the said region did, steal the property of [the Patient] of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada; and/or

(b) On March 6, 2019, you were convicted of the following offence, which you did not report:

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member is a Registered Practical Nurse and was employed at Victoria Retirement Living (the “Facility”), a retirement home in Cobourg, Ontario. During her period of employment at the Facility, and specifically from December 2017 to June 2018, it was alleged that the Member misappropriated funds from a Patient by using the Patient’s bank card to make personal transactions. It is also alleged that the Member abused the Patient verbally, physically, and/or emotionally by using the Patient’s bank card to make personal transactions without the Patient’s consent. Additionally, the Member has been found guilty of criminal offences related to her suitability to practise, including stealing the property of the Patient of a value not exceeding five thousand dollars. It is alleged that the Member failed to report the findings of guilt and the criminal charge to the College.

The Panel heard from two witnesses and received 14 exhibits, including testimony from the Patient. The Panel found that all of the allegations in the Notice of Hearing had been proven. As to allegation #3, the Panel found that the Member had abused the Patient emotionally. As to allegations #8(a), 8(b), 8(c), 9(a)(i) and 9(b)(i), the Panel found that the Member had engaged in conduct that would reasonably be regarded by the members of the profession to be disgraceful, dishonourable and unprofessional.

The Evidence

With respect to allegation #1(a), the Panel received certified copies of transcripts of the proceedings at the trial before the Ontario Court of Justice relating to the Member dated March 6, 2019. This proved that the Member had been found guilty of the following offence:

Contrary to Section 334(b) of the Criminal Code of Canada (“Criminal Code”), the Member had been found guilty of stealing the property of the Patient of a value not exceeding five thousand dollars.

The factual underpinnings of allegation #2(a) and allegation #8(a) were inexorably linked and therefore, the evidence in support of them is summarized jointly. The following summarizes the evidence for both of these allegations:

The Panel heard from two witnesses: a nurse investigator and the Patient. The nurse investigator was employed in the professional conduct department at the College. The evidence of the nurse investigator was honest, forthright, and credible. Three versions of the College’s of Nurses of Ontario’s Therapeutic Nurse Client Relationship practice standard (“TNCR Standard”) were entered into evidence.

The Patient testified that she initially met the Member during the course of residing at the Facility. The Patient offered that she received nursing care from the Member in the form of “medication administration”. The Patient commented that the Member was aware of her medical conditions. The Patient considered the Member to be her nurse. The Patient agreed that the Member shared personal information about herself including that she had been “married on one or more occasions”, that she had a “custody relation with her children”, that the Member’s husband had ”visitation with her children”, that the Member’s current relationship was with a ”childhood sweetheart”, and that he had “problems around alcohol and drug use”. The Patient testified that she had met the Member’s “two teenage boys on more than one occasion” as they came into the facility on “more than one occasion” to “mingle with the residents in the home”. The Patient testified that she attended “a few hockey games” of the Member’s children. The Patient responded “absolutely” when asked by College Counsel if she considered the Member to be a friend. The Patient replied “she was more of a friend than a nurse as she focused more on my inner needs rather than my illness”. The Patient testified that she and the Member would have “lunch frequently together and planned on going to a movie together”. The Patient described the Member as a “bestie”. The Panel found that the witness misremembered certain details and there were some inconsistencies in her testimony. Despite this, the Panel found that the Patient was more credible than not with respect to the details surrounding the Member’s misconduct.

The factual underpinnings of allegations #2(b), 4 and 8(b) were also inexorably linked and therefore the evidence in support of them is summarized jointly. The following summarizes the evidence for these allegations:

The Panel received certified copies of transcripts of the proceedings at trial before the Ontario Court of Justice relating to the Member (dated March 6, 2019). The transcripts outline each transaction whereby the Patient’s bank card was used to make unauthorized personal purchases and cash withdrawals for the Member’s own benefit.

The Panel heard testimony from the Patient regarding the use of her bank card. The Patient testified that the Member initially volunteered to purchase incidental items for the Patient and the Patient would reimburse the Member by cheque. The Patient would ask the Member to purchase specific incidental items (e.g. “personal hygiene items”) at a frequency of “more than once a week, and sometimes three to four times a week”. At some point, the Patient provided the Member with her bank card for “expediency sake”. The Patient “trusted this lady” with her bank card and never told the Member to purchase items for the Member’s personal use or gave permission to the Member to withdraw cash from a bank machine. The Patient began noticing transactions on her bank statement that she was not familiar with. The Patient confided in two PSWs to help her go through the bank statements. The PSWs noticed that the Patient was subscribed to two cable channels, buying gasoline, and eating out. The Patient had a car and noted additional gasoline charges 24-36 hours after the Patient had filled her own vehicle with gas. Although the Patient had a cable and internet contract with “Rogers”, the Patient noticed a transaction from another provider on her bank statement. After the PSW’s had discussed the matter with their union, the matter was reported to the police.

The factual underpinnings of allegations #2(c) and 8(c) were also inexorably linked and therefore the evidence in support of them is summarized jointly. The following summarizes the evidence for these allegations:

The Panel heard testimony from the Patient regarding the failure of the Member to return the Patient’s bank card in a timely manner on numerous occasions. The Patient testified that she sometimes did not get the card for “more than a few days” after asking the Member to return it. The Patient testified that the Member would make “excuses” as to why she did not return the card. The Patient testified that the failure to return the bank card when requested occurred “more than once”.

Allegation #3

Three versions of the TNCR Standard were entered into evidence through the testimony of the nurse investigator witness.

The Panel heard testimony from the Patient whereby the Patient described that she felt “incompetent”, “crushed”, and “discouraged” when she learnt that the Member had been using her bank card to make personal purchases and cash withdrawals. The Patient testified that she felt “devastated to learn that I was helping to support the Member and her family and wasn’t doing anything for mine”. The Patient offers that it “eroded my level of trust” and that she had “no boundaries of safety” and that it was a “lonely, desolate time” when she learnt of this incident. The Patient stated that she “trusted no one” when asked by College Counsel about her relationship with other nurses.

The factual underpinnings of allegations #5(a), 6(a), 7(a), 9(a)(i) and 9(b)(i) were also inexorably linked and therefore the evidence in support of them is summarized jointly. The following summarizes the evidence for these allegations 5(a), 6(a), 7(a), 9(a)(i) and 9(b)(i):

The Panel heard testimony from the nurse investigator in regards to the charges and findings of guilt. The Panel received a certified copy of information from the Ontario Court of Justice dated November 14, 2018 which outlines the Member’s charges. The Panel received a certified copy of the transcript from the Ontario Court of Justice which outlines that the Member pleaded guilty to the charges of theft. The Panel received a certified copy of information from the Ontario Court of Justice dated July 18, 2019 which outlines the conditional sentence, probation, and restitution that the Member received in relation to her findings of guilt.

The Panel heard testimony from the nurse investigator who disclosed that the Executive Director of the College never received any self-report from the Member in regards to her criminal charges and/or findings of guilt.

Final Submissions

College Counsel submitted that all of the evidence including the evidence received from the two witnesses who were both forthright and sincere, was clear, cogent, and convincing and thus it was credible and reliable and it should be accepted by the Panel.

With respect to allegation #1(a), the Member committed professional misconduct as outlined in the Health Professions Procedural Code subsection 51(1)(a). The Certified information and court transcripts were submitted into evidence which speak to the Member’s charges, guilty plea, and sentencing. The transcript outlines that the Patient provided the Member with her bank card and PIN number in order for the Member to purchase the patient incidentals for the Patient at Walmart. The Member was the only other person in receipt of the Patient’s bank card and PIN number. The Member made approximately 20 unauthorized cash withdrawals from a bank machine using the Patient’s bank card. The transcript outlines that the Member could be seen on the CIBC video camera footage making the cash withdrawals. The Member admitted to these facts in her guilty plea. College Counsel submitted that this offence of theft is related to the Member’s suitability to practice nursing. The theft occurred during the Member’s nursing relationship with the Patient. The Member took advantage of the trust in this relationship to commit this crime.

Allegation #2(a) relates to a breach in the TNCR Standard. College Counsel submitted that an expert witness is not required in this instance due to the flagrant breach of the standard. As there is no determined onset as to when the therapeutic nurse-client relationship began to be breached, the three TNCR Standards spanning from years 2014 to present were submitted although their relevant sections were all the same. College Counsel submitted that it is the nurse’s responsibility to establish and maintain the boundaries of the therapeutic nurse-client relationship. Refraining from self-disclosure is a key element in therapeutic communication. The client’s well being is maintained through the nurse’s ability to provide a relationship built on client centred care. College Counsel submitted that heightened vigilance is required in maintaining boundaries in a patient’s home such as a retirement home residence. Protecting patients from abuse is maintained through not entering a friendship with the patient. Personal information was shared with the Patient contrary to her professional obligations outlined in the TNCR Standard. In the eyes of the Patient, the Member was both a nurse and a friend and this led to the blurring of boundaries, and thus the Member was able to take advantage of the Patient.

Allegation #2(b) relates to the unauthorized use of the Patient’s bank card for personal purposes. The TNCR Standard maintains that nurses must refrain from becoming involved in financial transactions unrelated to the provision of care. The Member crossed the boundary when she utilized the Patient’s bank card for her own personal purchases.

Allegation #2(c) relates to the Member not returning the bank card when requested to do so by the Patient. The Patient’s testimony included that the Member failed to return the bank card on numerous occasions, often times, making various excuses. The Patient was upset by this as the Patient required the bank card to manage her affairs. College Counsel submitted that failing to return the bank card demonstrates a lack of respect which is integral to the therapeutic nurse-client relationship.

Allegation #3 relates to the Member abusing the Patient while using the bank card for personal purposes. The TNCR Standard outlines examples of abuse which includes theft as an example of financial abuse. The testimony from the Patient speaks to being “heartbroken” and “devastated” which supports that emotional abuse had occurred.

With regards to Allegation #4, College Counsel directed the Panel to the evidence submitted that makes it quite clear that the Member misappropriated the Patient’s property.

Allegation #5(a) pertains to the Member’s failure to report the guilty finding. The Member contravened a term, condition, or limitation on her certificate of registration by failing to report the guilty finding. The nurse investigator’s testimony discussed that there was an absence of self-reporting of the finding of guilt of the criminal offence by the Member.

Allegation #6(a) pertains to the Member’s failure to report her criminal charges. The Member contravened a term, condition, or limitation on her certificate of registration by failing to report the criminal charge. The nurse investigator’s testimony discussed that there was an absence of self-reporting of the criminal charge by the Member.

Allegation #7(a) pertains to the Member contravening a provision of the Regulated Health Professions Act by failing to file a report in writing to the Registrar that she had been found guilty of an offence. This is a second statutory obligation for a Member to report findings of guilt to the College. The nurse investigator testified that no such report was received from the Member.

Regarding allegations #8(a), 8(b), 8(c), 9(a)(i) and 9(b)(i), College Counsel submitted that the Panel is permitted to apply its own assessment as to whether the conduct would be considered unprofessional, dishonourable, and/or disgraceful. College Counsel submitted that an expert opinion is not required in this case. College Counsel submitted that the Member’s conduct is unprofessional, dishonourable, and disgraceful. The conduct was unprofessional as the Member used the Patient’s bank card for her own personal benefit on multiple occasions, which is a serious disregard for her own professional obligations. The conduct is dishonourable as misappropriating property from a patient is a dishonest act which has an element of moral failing. The conduct is disgraceful in that the Member took advantage of an elderly vulnerable Patient who believed the Member was helping her. This casts serious doubt on the Member’s inherent ability to discharge the higher obligations of professionals.

College Counsel submitted the case of CNO v. Henderson (Discipline Committee, 2019) in which, during the course of an RPN providing homecare to a patient, the RPN stole credit cards from the patient’s home and the patient’s personal information in order for the RPN to open credit cards in the patient’s name. The RPN was criminally charged and convicted of theft. The RPN did not report the charges of the criminal findings to the College. The panel found the member’s conduct to be unprofessional, dishonourable, and disgraceful.

College Counsel also submitted the case of CNO v. Forrester (Discipline Committee, 2019) which included a number of allegations which pertained to a breach of the therapeutic nurse-client relationship. The member disclosed personal life circumstances to the patient. The Agreed Statement of Facts made comments about the therapeutic nurse-client relationship and the need to refrain from self-disclosure. The panel found that the member breached the standards of the profession by breaching the therapeutic nurse-client relationship.

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), 2(a), 2(b), 2(c), 4, 5(a), 6(a) and 7(a) of the Notice of Hearing. With respect to allegation #3, the Panel finds that the Member abused the patient emotionally. As to allegations #8(a), 8(b), 8(c), 9(a)(i) and 9(b)(i), the Panel finds that the Member’s conduct would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

College Counsel presented two witnesses and 14 exhibits to support the allegations.

The Panel assessed the credibility of the witnesses by taking into account their appearance and the demeanour of the witnesses, their capacity to remember the events from the years 2017-2019, the probability and reasonableness of their evidence, and their individual interest in the outcome of the hearing. Although the Panel found that the Patient misremembered certain details and there were some inconsistencies in her testimony, the Panel found that the Patient was more credible than not with respect to the details surrounding the Member’s misconduct.

With respect to allegation #1(a), the certified copies of transcripts of the court proceedings at the trial before the Ontario Court of Justice relating to the Member dated March 6, 2019 clearly outlined that the Member has been found guilty of stealing the property of the Patient of a value not exceeding five thousand dollars. The Panel found that this offence was relevant to the Member’s suitability to practice as it flagrantly breached the TNCR Standard. In particular, the Member failed to maintain professional boundaries by engaging in a financial transaction with the Patient which was unrelated to the provision of care.

With respect to allegations #2(a), the Patient’s testimony included that a nurse-client relationship had been established as the Member provided medication administration to the Patient and the Member was aware of the Patient’s medical diagnoses. From the Patient’s testimony, the Panel found that the Member breached the nurse-client relationship when the Member shared personal information about herself with the Patient, invited her children to meet the Patient, invited the Patient to her children’s hockey games and had lunch frequently with the Patient. The TNCR Standard includes that the nurse meets the standard of maintaining professional boundaries by abstaining from disclosing personal information to the Patient and ensuring the nurse-client relationship is developed to meet the needs of the client rather than the nurse. The Panel found that the Member did not maintain the boundaries of the nurse-client relationship.

With respect to allegations #2(b), the Panel reviewed the court transcripts which included a list of unauthorized transactions and cash withdrawals. The Patient’s testimony included that the Patient provided her bank card to the Member exclusively for the Member to purchase provisions for the Patient. In her testimony, the Patient denied granting the Member use of the bank card for the Member’s personal use. The TNCR Standard indicates that the nurse meets the standard by abstaining from engaging in any financial transactions unrelated to the provision of care with the client. As the Member used the bank card for her own personal gain, the Member committed the act of professional misconduct as outlined in allegation #2(b).

With respect to allegations #2(c), the Panel referred to the Patient’s testimony which included that the Patient would not receive her bank card for “more than a few days” when the Patient asked the Member to return the bank card. The Patient’s testimony included that the Member would make excuses as to why the Member was unable to return the bank card and that this occurred on more than one occasion. The Panel concluded that the delay in the return of the bank card would have placed undue burden on the Patient with respect to managing her own financial affairs. The Panel found that the Member committed the act of professional misconduct as outlined in allegation #2(c) as the Member demonstrated a lack of respect regarding the ability for the Patient to manage her financial affairs.

With respect to allegation #3, the Panel reviewed the court transcripts which included a list of unauthorized transactions and cash withdrawals made by the Member. The Panel considered the testimony of the Patient which included that the Patient felt “incompetent”, “crushed”, and “discouraged” after learning that the Member had made the financial transactions. The Patient testified that she had “no boundaries of safety”. The Panel considered the definition of abuse contained in the TNCR Standard which includes betraying the client’s trust when the nurse knew or ought to have known that the action could cause or reasonably be expected to cause emotional harm to the client. The Member ought to have known that misappropriating the Patient’s property and preventing the Patient from managing her financial affairs would reasonably be expected to cause emotional harm to the Patient. When the Patient referred to the Member as a “bestie”, the Panel concluded that the Member had entered into a friendship relationship with the Patient when a therapeutic relationship existed, which would be considered emotional abuse. Considering the Patient’s testimony and the definition of abuse contained with the TNCR Standard, the Panel finds that the Member abused the Patient emotionally as outlined in allegation #3.

With respect to allegation #4, the Panel reviewed the certified copies of transcripts of the court proceedings at the trial before the Ontario Court of Justice relating to the Member dated March 6, 2019 which clearly outline the personal transactions and cash withdrawals that the Member made for her own benefit. The Patient’s testimony included that she never provided permission for the Member to use the bank card for the Member’s own personal use. Considering the Patient’s testimony and the certified copies of transcripts of the court proceedings, the Panel found that the Member committed the act of professional misconduct as outlined in allegation #4 as the Member misappropriated the property of the Patient without the Patient’s consent to do so.

With respect to allegations #5(a), 6(a) and 7(a) as a whole, the Panel reviewed the certified copies of the transcripts of the court proceedings at the trial before the Ontario Court of Justice which clearly show that the Member pleaded guilty to the charges of theft. The Panel also reviewed the certified copies of information from the Ontario Court of Justice, dated July 18, 2019, which clearly outline the conditional sentence and probation that the Member received in relation to her findings of guilt, and the restitution the Member made. The Panel considered the testimony of the nurse investigator which included that the Executive Director of the College was not notified of the findings of guilt or the charges. The nurse investigator had a good recollection of the events which was supported by documentary evidence. The nurse investigator did not have any interest in the outcome of the matter. The Panel found the nurse investigator to be credible and accepted their evidence. Based upon the court transcripts and the testimony of the nurse investigator, the Panel found that the Member did not report the findings of guilt or the charges to the College. Reporting on the finding of guilt and/or criminal charges is a condition on the Member’s certificate of registration. By not reporting the findings of guilt or the charges, the Member committed the acts of professional misconduct as outlined in allegations #5(a), 6(a) and 7(a).

With respect to allegations #8(a), 8(b), 8(c), 9(a)(i) and 9(b)(i) as a whole, the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional when the Member demonstrated a serious disregard for her professional obligations by using the Patient’s bank card for her own personal benefit on multiple occasions. The Member demonstrated a lack of respect to the Patient by repeatedly failing to return the bank card when asked. The Member breached the TNCR Standard by failing to maintain boundaries through divulging personal details of her life to the Patient and spending time with the Patient outside of the nurse-client relationship. In her position as an RPN, the Member misappropriated property from the Patient which is a dishonest act and has an element of moral failing. The Member attempted to deceive the College by failing to self-report criminal charges and findings of guilt. The Member’s conduct casts a serious doubt on her ability to discharge the higher obligations the public expects nursing professionals to meet. Over a period of many months, the Member took advantage of an elderly vulnerable Patient who believed that the Member was genuinely helping her. The Member abused the Patient, both emotionally and financially through the misappropriation of the Patient’s property. The Member exploited the trust that had developed in the nurse-client relationship to misappropriate the Patient’s property for her own personal gain. The behaviours shame the Member and by extension, the profession.

With no evidence presented on behalf of the Member, the Panel was unable to find any justification for the Member’s actions and behaviours as proven by the evidence led by College Counsel.

Penalty Submissions

College Counsel submitted that, in view of the Panel’s findings of professional misconduct, it should make an Order as follows:

Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 12 months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption as long as the Member remains in a practicing class.
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 2 meetings with a Nursing Expert (the “Expert”) at her own expense within 6 months from the date that the Member obtains an active certificate of registration in a practicing class. If the Expert determines that a greater number of session are required, the Expert will advise the Director, 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 the Member obtains an active certificate of registration in a practicing class. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by 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:

the Panel’s Order,
the Notice of Hearing, and
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):

Code of Conduct,
Ethics,
Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses,
Professional Standards, and
Therapeutic Nurse-Client Relationship;

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:

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
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:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;

vii. If the Member does not comply with any 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 24 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:

the Panel’s Order,
the Notice of Hearing, and
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:

that they received a copy of the required documents, and
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; and

c) The Member shall not practice independently in the community for a period of 24 months from the date the Member returns to the practice of nursing.

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

College Counsel made submissions based on the goals of sanctioning members of the profession who have been found guilty of professional misconduct.

These goals include:

Protection of the public;
Providing specific deterrence to the Member and general deterrence to the profession, and;
Rehabilitation of the Member.

The aggravating factors are that the conduct is serious as it involved the Member engaging in criminal activity which was related to her nursing practice. The Member flagrantly breached the College’s standards by breaching the nurse-client relationship. The Member engaged in a breach of trust and dishonesty by repeatedly committing theft from a vulnerable Patient. The conduct was an intentional act which was for the Member’s own personal gain. The Member’s conduct caused the Patient significant mental anguish and emotional abuse. The Member’s conduct demonstrated a serious disregard for her professional obligations to the Patient. The Member’s conduct brought discredit to the profession.

The only mitigating factor is that the Member had no prior discipline history with the College. Any other mitigating factors are unknown as the Member did not attend the disciplinary hearing.

College Counsel submitted that the penalty protects the public through the 12 month suspension, meetings with a regulatory expert, employer notification, and a limitation on independent practice. These act to protect the public by ensuring that the Member is closely monitored if she does elect to return to the nursing profession.

General deterrence is achieved through providing a message to the profession that this kind of conduct will not be tolerated. Serious consequences will stem from conduct which involves misappropriation of patient property and the failure to report criminal charges or convictions as required. The membership will also be aware that self-reporting of criminal charges and convictions is critical to the protection of the public.

Specific deterrence is achieved through the oral reprimand, the suspension, the employer notification and the restrictions on independent practice.

Rehabilitation and remediation is addressed through the meetings with the Regulatory Expert as it will afford the Member an opportunity for self-reflection and to learn from her mistakes.

College Counsel submitted the same cases provided earlier to the Panel, along with one additional case, to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

CNO v. Henderson (Discipline Committee, 2019). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty included an oral reprimand, a 12 month suspension, 2 meetings with a Regulatory Expert, 24 month employer notification, and no independent practice for 24 months. Distinguishing features included the member participating in the disciplinary process and that the member demonstrated remorse and accountability. Additionally, the member used the patient’s personal information to open credit cards in the patient’s name.

CNO v. Forrester (Discipline Committee, 2019). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The panel found that the member breached the standards of the profession by breaching the therapeutic nurse-client relationship. The penalty included an oral reprimand, a 4 month suspension, 2 meetings with a Regulatory Expert and 18 month employer notification.

CNO v. Manzano III (Discipline Committee, 2016). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member was an RPN and was criminally charged and found guilty of theft and fraud in respect of 5 patient’s credit cards. The member made a number of online purchases with the patient’s credit cards, however, he refused the packages when they arrived. The penalty included an oral reprimand, a 12 month suspension, 2 meetings with a Nursing Expert, 24 month employer notification, and no independent practice. Distinguishing features include the conduct was more serious as there were 5 patients involved.

Penalty Decision

The Panel accepts the College’s Submission on Order and accordingly orders:

The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 12 months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption as long as the Member remains in a practicing class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

i. The Expert has expertise in nursing regulation and has been approved by 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:

the Panel’s Order,
the Notice of Hearing, and
if available, a copy of the Panel’s Decision and Reasons;

Code of Conduct,
Ethics,
Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses,
Professional Standards, and
Therapeutic Nurse-Client Relationship;

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:

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
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:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;

b) For a period of 24 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:

the Panel’s Order,
the Notice of Hearing, and
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:

that they received a copy of the required documents, and
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; and

c) The Member shall not practice independently in the community for a period of 24 months from the date the Member returns to the practice of nursing.

All documents delivered by the Member to 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 recognizes the seriousness of the Member’s actions and that this behaviour is not in keeping with the values of the College. The Member repeatedly misappropriated property from a vulnerable elderly patient for her own personal financial gain. The Panel finds this behaviour reprehensible. The Panel also considered the Member’s disregard for the disciplinary process and the fact that she chose not to attend the hearing demonstrates that there is no acknowledgement of any responsibility for her actions. The Member has offered no explanation and has shown no insight into her behaviour, and as a result, the Panel has few mitigating factors to consider.

The suspension and oral reprimand address specific deterrence of the Member. The penalty achieves general deterrence by sending a very strong message to members of the profession that boundary violations of the TNCR Standard and emotional abuse of a patient will not be tolerated. The membership will be reminded that failure to report findings of guilt and criminal conviction to the College will result in serious consequences. The two meetings with a Nursing Expert will provide the Member an opportunity for remediation and rehabilitation.

This penalty is also within the penalty range from similar prior decisions of this Committee.

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.