College of Nurses of Ontario v. Twance, 2021 CanLII 152559

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Mary MacNeil, RN Chairperson

Eloisa Busto, RPN Member Dawn Cutler, RN Member Fidelia Osime Public Member

Lalitha Poonasamy Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) GLYNNIS HAWE for

) College of Nurses of Ontario

• and - )

FAITH TWANCE ) RENEE KOPP for Registration No. JG689762 ) Faith Twance

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: July 15, 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”) on July 15, 2021, via videoconference.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing public disclosure and banning the publication or broadcasting of the names of the patients, or any information that could disclose their identities, referred to orally or in any documents presented in the Discipline hearing of Faith Twance.

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

The Allegations

The allegations against Faith Twance (the “Member”) as stated in the Notice of Hearing dated March 19, 2021, which as amended 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 working as a Registered Practical Nurse at Marathon Family Health Team in Marathon, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession in that you accessed [the Patient]’s personal health information, without consent or other authorization, on or about the following dates:

a. November 30, 2017;

b. February 13, 2018;

c. February 20, 2018;

d. February 23, 2018;

e. February 27, 2018;

f. March 13, 2018;

g. March 14, 2018;

h. March 16, 2018;

i. March 23, 2018; and/or

j. March 27, 2018;

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 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 you accessed [the Patient]’s personal health information, without consent or other authorization, on or about the following dates:

a. November 30, 2017;

b. February 13, 2018;

c. February 20, 2018;

d. February 23, 2018;

e. February 27, 2018;

f. March 13, 2018;

g. March 14, 2018;

h. March 16, 2018;

i. March 23, 2018; and/or

j. March 27, 2018.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), 2(a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) 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. Faith Twance (the “Member”) obtained a diploma in nursing from Confederation College in 2007.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on December 11, 2007.

3. The Member was employed full-time as a RPN at Marathon Family Health Team (the “Clinic”) from April 2014 until April 2018 when her employment was terminated as a result of the incidents described below.

4. The Member is currently employed by the North of Superior Healthcare Group (“NOSH”) in Marathon, Ontario. The NOSH describes the Member as an exemplary employee.

5. The Member has no prior history of complaints or discipline with CNO. The Member had no prior disciplinary issues while employed by the Clinic.

THE CLINIC

6. The Clinic is located in Marathon, Ontario. The Member provided a range of nursing services to patients in the Clinic as well as in patient homes.

7. The Clinic uses a records system known as eMR. When a user logs into a patient’s eMR, they are directed to a main page. In order to view patient information or make entries, the user must then intentionally navigate to other areas of the record, such as the demographics or clinical notes area.

8. The eMR tracks the user, the date and time the user logs in, and when a user makes an entry or only views specific areas of the record. The eMR does not track when the user logs out.

9. The Clinic also had privacy policies, of which the Member was aware. Pursuant to those policies, the Member signed a confidentiality agreement dated April 4, 2017.

THE PATIENT

10. [The Patient] (the “Patient”) became a patient of the Clinic in the fall of 2017 because she required medication refills. In February 2018, the Patient began to see a psychiatrist at the Clinic.

11. The Patient’s boyfriend at the time of the incidents was [related to one of the Member’s children]. The Patient’s boyfriend and the Member were friends. The Patient and the Member had met each other on at least one social occasion prior to the Patient becoming a patient of the Clinic.

12. The Member provided professional nursing services to the Patient on November 7, 2017. This was the only occasion on which the Member provided direct nursing care to the Patient.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

13. On March 29, 2018, the Clinic received a complaint from the Patient, via phone, advising that she had a ‘gut feeling’ that the Member knew about her health status and the care she received at the Clinic in February and March 2018. The Patient requested a chart audit focusing on potential viewings of her record during February 2018 and March 2018.

14. The Clinic conducted an audit of activity by all Clinic staff for the preceding six months. The audit identified that the Member accessed the Patient’s record several times. Based on the results, the Clinic conducted a second and more focused audit to examine the Member’s activities with the Patient’s records in the preceding six months.

15. The second audit revealed that the Member viewed the Patient’s eMR on 10 dates between November 30, 2017 and March 27, 2018, with the majority of the viewings taking place between February and March 2018. The Member did not make any entries in the Patient’s eMR.

16. The audit determined that the Member accessed the Patient’s records as follows:

• On November 30, 2018, the Member accessed the electronic chart with clinical notes;

• On February 13, 2018, the Member accessed the electronic chart with clinical notes;

• On February 20, 2018, the Member accessed the electronic chart with clinical notes and the demographics section;

• On February 23, 2018, the Member accessed the electronic chart with clinical notes;

• On February 27, 2018, the Member accessed the electronic chart with clinical notes on six occasions;

• On March 13, 2018, the Member accessed the demographics section;

• On March 14, 2018, the Member accessed the electronic chart with clinical notes;

• On March 16, 2018, the Member accessed the electronic chart with clinical notes;

• On March 23, 2018, the Member accessed the electronic chart with clinical notes on three occasions and the demographic section on one occasion; and

• On March 27, 2018, the Member accessed the electronic chart with clinical notes.

17. The Clinic’s investigation did not find a clinical reason for the Member’s access to the eMR on these 10 dates and, as a result, the Clinic terminated the Member’s employment.

18. If the Member were to testify, she would state that her intent in accessing the Patient’s records was not malicious. Nevertheless, the Member admits and acknowledges that she did not have a clinical or professional reason to access the Patient’s eMR on these 10 dates and she regrets her conduct.

THE MEMBER’S REMEDIATION ACTIVITIES

19. If the Member were to testify, she would state that after the termination of her employment at the Clinic in 2018, she undertook independent remediation activities, including:

• reviewing:

o CNO’s Confidentiality and Privacy – Personal Health Information standard;

o Circle of Care: Sharing Personal Health Information for Health Care Purposes and A Guide to the Personal Health Information Protection Act, published by the Information and Privacy Commissioner of Ontario; and

o Backgrounder #1: Unauthorized Access and Privacy Breaches and General Data Protection Regulation, published by the Ontario Hospital Association;

• completing learning modules on CNO’s Documentation and Ethics standards, and the Professional Standards;

• reviewing CNO’s webcast on Documentation;

• preparing a Learning Plan and Practice Reflection Worksheet;

• conducting research and reading numerous texts and articles on topics relevant to the allegations, including publications from the Canadian Nurses’ Association, the Information and Privacy Commissioner, and the Ontario Hospital Association, on patient privacy and confidentiality; and

• attending a 2-hour meeting with the Chief Nursing Officer of NOSH to discuss the Patient’s complaint and the Member’s review and preparation of the materials above.

CNO STANDARDS

20. 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. Nurses are accountable for conducting themselves in ways that promote respect for the profession.

21. CNO’s Professional Standards further provides, in relation to the Ethics standard, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members, and assuring privacy and confidentiality in dealings with patients.

22. CNO’s Confidentiality and Privacy: Personal Health Information standard (“Privacy Standard”) largely incorporates the Personal Health Information Protection Act, 2004 (“PHIPA”). The Privacy Standard requires that personal health information be kept confidential and secure. Nurses comply with this standard by actions such as:

• seeking information about issues of privacy and confidentiality of personal health information;

• maintaining confidentiality of [patients’] personal health information with members of the healthcare team, who are also required to maintain confidentiality, including information that is documented or stored electronically;

• maintaining confidentiality after the professional relationship has ended, an obligation that continues indefinitely when the nurse is no longer caring for a [patient] or after a [patient’s] death; and

• accessing information for her/his [patients] only and not accessing information for which there is no professional purpose.

23. The Member admits and acknowledges that by accessing the Patient’s personal health information without consent, other authorization or clinical or professional purpose, she contravened CNO’s Privacy Standard and her obligations under PHIPA.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

24. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i) and 1(j) 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 6 to 23 above.

25. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i) and 2(j) of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 6 to 23 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), (b), (c), (d), (e), (f), (g), (h), (i), (j), 2 (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) of the Notice of Hearing. As to allegations #2(a), (b), (c), (d), (e), (f), (g), (h), (i) and (j), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

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

Allegations #1(a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) in the Notice of Hearing are supported by paragraphs 6 through 24 in the Agreed Statement of Facts. Paragraph 19 of the Agreed Statement of Facts, which sets out remedial steps the Member took at her own initiative, indicated to the Panel that the Member understood at the time of her termination of employment that she knew or ought to have known that she had breached the standards of practice. The Member knew or ought to have known that when she accessed the electronic files of a patient whose care she had nothing to do with and who had not given her permission to access it, she was committing an act of professional misconduct. Accessing the patient’s personal health information without consent, other authorization or clinical or professional purpose, is a direct contravention of the College’s Privacy Standard and the Member’s obligations under PHIPA.

With respect to Allegations #2(a), (b), (c), (d), (e), (f), (g), (h), (i) and (j), the Panel finds that the Member’s conduct in accessing the personal health information of the patient who was not in her circle of care and with whom she also had a personal relationship, was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. The allegation is supported by paragraphs 7 through 20, 23 and 25 in the Agreed Statement of Facts. The Member caused harm to a vulnerable patient by accessing her files without her permission.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through knowingly and repeatedly viewing the contents of the patient’s chart without the consent of the patient or any clinical or professional purpose to do so. Further, the Member knew or ought to have known that her conduct 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 three months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 2 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

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 1 meeting 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 meeting;

ii. At least 7 days before the 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 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. Confidentiality and Privacy - Personal Health Information, and

3. Code of Conduct;

iv. Before the 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 meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

vi. The subject of the session 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 session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the date the Member attended the session,

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 aggravating factors in this case were the seriousness and extent of the breach of the Privacy Standard. Although it was only one patient, the Member had a personal relationship with the patient, the access was deliberate and recurred twenty times over a period of three or four months. The Member’s actions caused harm to the patient, adding stress and anxiety due to the sensitive nature of the privacy breach and undermined the patient’s confidence in the nursing profession.

The mitigating factors in this case were that the Member accepted responsibility for breaching the standards of practice by agreeing to the Agreed Statement of Facts and the Joint Submission on Order and worked with the College to complete an uncontested discipline hearing. The Member had no prior discipline history with the College and she undertook voluntary remediation, in the form of reviewing the College’s standards, completing learning modules, reviewing the College’s webcasts and preparing a Learning Plan, along with other initiatives towards becoming a better nurse.

The proposed penalty provides for general deterrence through the two month suspension of the Member’s certificate of registration. It sends a clear message to the membership that this conduct will not be tolerated.

The proposed penalty provides for specific deterrence through the two month suspension during which time the Member will be guided through a process whereby she will gain increased knowledge and will have time to reflect on the seriousness of her behaviour and the harm inflicted on the patient. The oral reprimand will assist the Member in gaining a greater understanding of the impact of her conduct.

The proposed penalty provides for remediation and rehabilitation through the meeting with a Regulatory Expert and continued review of the College’s standards related to Confidentiality and Privacy, the Circle of Care and Unauthorized Access and Privacy Breaches which will deepen the Member’s understanding of her misconduct and thereby ensure that it will not be repeated.

Overall, the public is protected because of the terms, conditions and limitations placed on the Member’s certificate of registration, in particular, the twelve month period of employer notification related to this hearing and the Panel’s Decision and Reasons.

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

CNO v. Halley (Discipline Committee, 2018). This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the patient was a physician where the member worked, who had fallen and suffered a head injury. The member, who was not in the circle of care, accessed the records thirteen times over two months. As in the present case, there was noted a slight personal connection. The penalty included an oral reprimand, a two month suspension, two meetings with a Nursing Expert and twelve months of employer notification.

CNO v. Vaughan (Discipline Committee, 2017). This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. This case was slightly different in that the member accessed information only once, for each of ten different patients, so there were more patients involved and no voluntary remediation. Similar to this case, the member was not in the circle of care and did not have authorization for the access. The penalty included an oral reprimand, a three month suspension, two meetings with a Nursing Expert and twelve months of employer notification.

CNO v. Church-Labrie (Discipline Committee, 2020). This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member inappropriately accessed personal information of four patients, all of whom she had a personal relationship with. Furthermore she had an argument in the hospital parking lot with one patient regarding her access of the chart. The penalty included an oral reprimand, a three month suspension, two meetings with a Regulatory Expert and twelve months of employer notification. Overall, this case differed in that there was no voluntary remediation and there was a higher volume of inappropriate access.

The Member’s Counsel submitted that the Member has no prior discipline history with the College or her employer, was an exemplary nurse and has engaged in extensive, voluntary remediation activities including initiating a meeting with the Chief Nursing Officer of NOSH.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 2 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 1 meeting 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 meeting;

ii. At least 7 days before the 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 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. Confidentiality and Privacy - Personal Health Information, and

3. Code of Conduct;

iv. Before the 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 meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

vi. The subject of the session 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 session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the date the Member attended the session,

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 concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. The Member caused harm to a patient by inappropriately accessing personal health information without permission. Conduct by nurses that demonstrates a lack of integrity, dishonesty, abuse of power and authority, or disregard for the welfare and safety of members of the public is conduct that cannot be tolerated by the nursing profession. Members of the profession will be reminded that there will be serious consequences when the College’s standards are not followed. The penalty protects the public, which is paramount and it allows for the Member to rehabilitate and learn from her mistakes to become a better nurse.

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

I, Mary MacNeil, 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.