College of Nurses of Ontario v. Araya, 2021 ONCNO 152560 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Sherry Szucsko-Bedard, RN Chairperson Margarita Cleghorne, RPN Member Sylvia Douglas Public Member Neil Hillier, RPN Member Carly Hourigan Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO EMILY LAWRENCE for College of Nurses of Ontario

and -

LOREDANA ARAYA Registration No. 11461900 DANIELLE BISNAR for Loredana Araya

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: January 15, 2021

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on January 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 publication or broadcasting of the names of the patients, or any information that could disclose the identities of the patients referred to orally or in any documents presented in the Discipline hearing of Loredana Araya.

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

The Allegations

The allegations against Loredana Araya (the “Member”) as stated in the Notice of Hearing dated December 11, 2020 are as follows:

IT IS ALLEGED THAT:

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 registered as a Registered Nurse and/or working at the Central West Community Care Access Centre (the “Agency”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

a. you accessed personal health information in electronic medical records for approximately 318 clients, without consent or other authorization, between on or about January 2014 to December 2015;

b. on or about August 4, 2014, you attended a home visit at the residence of [Patient A], without a clinical purpose, and/or did not adequately document the home visit;

c. on or about August 4, 2014, you misappropriated medication from the residence of [Patient A], being approximately 20 tablets of OxyContin;

d. on or about August 5 and 6, 2014, you failed to escalate a report you received from a family member of [Patient A] regarding the medication you misappropriated;

e. on or about September 18, 2015, you attended a home visit at the residence of [Patient B], without a clinical purpose or patient consent, and/or did not document the home visit and/or documented it as occurring on another date;

f. on or about September 18, 2015, you misappropriated medication from the residence of [Patient B], being approximately 10-30 tablets of OxyContin and/or three tablets of Tylenol 3;

g. on or about October 1, 2015, you attended a home visit at the residence of [Patient B], without a clinical purpose, and/or did not accurately document the home visit in a timely manner;

h. on or about October 1, 2015, you misappropriated medication from the residence of [Patient B], being approximately three Butrans (opioid) pain patches and/or 20 Salonpas (over the counter) pain patches and/or three tablets of Tylenol 3;

i. on or about December 30, 2015, you attended a home visit at the residence of [Patient C], without a clinical purpose, and/or did not document the home visit; and/or

j. on or about December 30, 2015, you misappropriated medication from the residence of [Patient C], being approximately 16 tablets of morphine; and/or

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 paragraph 1(8) of Ontario Regulation 799/93, in that, while registered as a Registered Nurse and/or working at the Agency, you misappropriated property, in particular:

a. on or about August 4, 2014, you misappropriated medication from the residence of [Patient A], being approximately 20 tablets of OxyContin;

b. on or about September 18, 2015, you misappropriated medication from the residence of [Patient B], being approximately 10-30 tablets of OxyContin and/or three tablets of Tylenol 3;

c. on or about October 1, 2015, you misappropriated medication from the residence of [Patient B], being approximately three Butrans (opioid) pain patches and/or 20 Salonpas (over the counter) pain patches and/or three tablets of Tylenol 3; and/or

d. on or about December 30, 2015, you misappropriated medication from the residence of [Patient C], being approximately 16 tablets of morphine; and/or

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 registered as a Registered Nurse and/or working at the Agency, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that:

a. you accessed personal health information in electronic medical records for approximately 318 clients, without consent or other authorization, between on or about January 2014 to December 2015;

b. on or about August 4, 2014, you attended a home visit at the residence of [Patient A], without a clinical purpose, and/or did not adequately document the home visit;

c. on or about August 4, 2014, you misappropriated medication from the residence of [Patient A], being approximately 20 tablets of OxyContin;

d. on or about August 5 and 6, 2014, you failed to escalate a report you received from a family member of [Patient A] regarding the medication you misappropriated;

f. on or about September 18, 2015, you misappropriated medication from the residence of [Patient B], being approximately 10-30 tablets of OxyContin and/or three tablets of Tylenol 3;

g. on or about October 1, 2015, you attended a home visit at the residence of [Patient B], without a clinical purpose, and/or did not accurately document the home visit in a timely manner;

i. on or about December 30, 2015, you attended a home visit at the residence of [Patient C], without a clinical purpose, and/or did not document the home visit.

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), 3(a), (b), (c), (d), (e), (f), (g), (h) and (i) 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 as amended reads, unedited, as follows:

THE MEMBER

Loredana Araya (“the Member”) obtained a diploma in nursing from Humber College in 2005 and subsequently obtained a degree in nursing from Ryerson University in 2011.
The Member registered as a Registered Nurse with the College of Nurses of Ontario (“CNO”) on June 23, 2011. In addition, the Member held a certificate of registration as a Registered Practical Nurse between March 2006 and January 6, 2012.
The Member was employed at the Central West Community Care Access Centre (the “Central West CCAC”) as a Care Coordinator from January 13, 2014 to November 2015. The Member took a leave of absence in July 2014 and from August 2014 to February 2015.
The Member’s employment at the Central West CCAC was terminated in November 2015 as a result of the incidents described below.

COMMUNITY CARE ACCESS CENTRES

Community Care Access Centres (“CCACs”) coordinate healthcare services in the home including nursing, occupational therapy, physiotherapy, dietician services, speech and language services, lab services, personal support worker services, equipment or medical supplies and social work services. CCACs also connect patients to community resources.
Care Coordinators coordinate the services and they do not provide hands-on care to patients. Care Coordinators meet with patients in the patients’ homes to complete assessments and obtain information to coordinate care. Care Coordinators are required to document all interactions, in person or otherwise, with patients.
CCACs use an electronic document system called CHRIS which contains patient demographics, health card numbers, personal and medical contact information, patient care plan information and long-term care applications. Care Coordinators have access to CHRIS and they receive training on appropriate use, access to, disclosure of and retention of personal health information.
Pursuant to the Central West CCAC’s Privacy of Client Health Information Policy (the “Privacy Policy”), access to personal health information is limited to only those authorized to hold, view or handle such information for their current job duties and on a need-to-know basis. It is a violation of the Privacy Policy for a staff member to collect, access, use or disclose personal health information without a legitimate reason related to their current job responsibilities. The Member received orientation on the Privacy Policy and related polices, and she signed an Agreement of Confidentiality that prohibited improper information access.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Patient [A]

The Member was assigned to provide care coordination services to [Patient A]. Patient [A] does not speak English well and his daughter assists him with his healthcare.
On August 4, 2014, when the Member was not on shift, the Member contacted [Patient A] to arrange a home visit. The Member did not have a clinical purpose to conduct a home visit. The Member did not attend [Patient A]’s home at the scheduled time and [Patient A]’s daughter left for work. Later that day, the Member visited the home of [Patient A], while [Patient A]’s daughter was not there.
During the home visit, the Member did not complete assessments or obtain information to coordinate care. The Member failed to document her home visit to [Patient A]’s home in CHRIS and only input the notation “file review as per task.”
During her home visit, the Member misappropriated approximately 20 OxyContin tablets prescribed to [Patient A], for her personal use, without consent and without any clinical reason. [Patient A] discovered that the medication was missing after the Member left the home.
On August 5, 2014, [Patient A]’s daughter contacted the Member by telephone to report that a nurse had attended her father’s home and took medication. The Member documented in CHRIS that [ ] [Patient A]’s daughter had reported that a nurse had attended and that her father “only had a few pain medications left.”
[Patient A]’s daughter also reported the attendance and medication theft to another healthcare worker, who reported the matter to a colleague of the Member who, in turn, forwarded the information to the Member. On August 6, 2014, the Member documented in CHRIS receipt of this information and her intent to inform her manager. However, the Member did not complete a risk report or notify a manager, as required by the Central West CCAC’s policy. If the Member were to testify, she would state that the reason she did not complete a risk report or notify a manager was because she began a sick leave on or about August 7, 2014 and was not working due to illness.
The Central West CCAC became aware of this incident in December 2015, when its staff contacted [Patient A] as part of its investigation into the Member’s accesses of patient health information, as described in paragraphs 28 to 31 below.

Patient [B]

The Member was assigned to provide care coordination services to [Patient B].
In or about September 2015, [Patient B] contacted the Member to request personal support worker support. To do this, the Member was required to conduct a reassessment. On or about September 18, 2015 the Member attended the residence of [Patient B]. The Member did not have an appointment scheduled with [Patient B] on that date and she entered [Patient B]’s home without a confirmed appointment or consent.
The Member conducted a reassessment for care services for 30 minutes, and then asked to use the washroom and then left the residence.
While in the washroom, the Member accessed [Patient B]’s medicine cabinet and misappropriated approximately 30 tablets of OxyContin and 3 tablets of Tylenol 3, for her personal use, without consent and without any clinical reason. Patient [B] discovered that the medication was missing after the Member left the home. Patient [B] reported the incident to a visiting nurse.
On September 29, 2015, the Member contacted [Patient B] in the evening to conduct another reassessment, which [Patient B] and the Member scheduled for October 1, 2015. The Member did not have a clinical purpose to conduct a reassessment or a home visit.
On October 1, 2015, [Patient B] removed her tablets from the washroom before the scheduled visit. The Member attended for a very short visit lasting only a few minutes. During the visit, the Member used the washroom and [Patient B] overheard the latch of the medicine cabinet being opened. The Member took two boxes of pain patches. Patient [B] did not notice anything was missing until three weeks later when she discovered that the boxes of pain patches were missing.
The Member failed to document the home visit on September 18, 2015. The Member documented that that she completed a home visit on October 1, 2015, which was documented as a late entry on October 9, 2015.
Patient [B] reported the Member’s misappropriation to the Central West CCAC in late October 2015. The Central West CCAC raised these concerns with the Member in November 2015 and terminated her employment on November 23, 2015. The Member grieved her termination and on December 22, 2015, the Member attended a grievance meeting during which she was told to not have any contact with Central West CCAC patients.

Patient [C]

On December 30, 2015, after the Member attended a grievance meeting with the Central West CCAC, the Member attended the home of [Patient C]. Patient [C] was not assigned to the Member prior to her termination. The Member gained entry to [Patient C]’s home by referencing the Central West CCAC and asked to see [Patient C]’s medication. The Member did not have a clinical purpose to attend [Patient C]’s home.
While in [Patient C]’s home, the Member misappropriated 16 tablets of morphine.

Criminal Proceedings

In March 2018, the Member was charged with ten criminal charges including five counts of breaking and entering a dwelling house and committing theft as well as five counts of entering a dwelling house with intent to commit an indicatable offence. Eight of these charges related to the Member’s entry into the homes of [Patient B], [Patient A], and [Patient C].
In October 2018, the Crown withdrew the criminal charges against the Member.

Improper Access of Patient Records

During the Central West CCAC’s investigation into [Patient B]’s report that the Member misappropriated medication, the Central West CCAC discovered that the Member had a significant number of suspicious patient record accesses. The Central West CCAC conducted a privacy investigation.
The CHRIS system has auditing capabilities such that CCACs can determine any access of a patient record by a staff member, but CCACs cannot determine the specific pages of the patient chart that were accessed. The patient records accessible through CHRIS contain personal health information within the meaning of the Personal Health Information Protection Act, 2004 (“PHIPA”).
The Central West CCAC’s investigation revealed that the Member accessed the personal health records of patients who were not assigned to her and for which there was no apparent reason for her to access the records. The investigation found that between January 13, 2014 and February 2, 2015, the Member inappropriately accessed the personal health records of 128 patients, and between February 2, 2015 and October 29, 2015, the Member inappropriately accessed the personal health records of 190 patients, including two immediate family members. The Central West CCAC contacted a subset of patients whose records had been accessed by the Member.
If the Member were to testify, she would state that she had a clinical reason and implied consent to access some of the patient records identified by the Central West CCAC, including when she was in training or covering for colleagues, and/or completing documentation after regular business hours. However, the Member admits and acknowledges that she improperly accessed personal health information in electronic medical records of patients, without consent or other authorization, between on or about March 2014 to October 2015. These included the records of two of her family members, approximately 16 paediatric patients, approximately 52 palliative patients, and approximately 46 closed files. If the Member were to testify, she would state that, other than her family members, the other patients were chosen at random for educational purposes, which she now acknowledges was not a proper purpose for accessing the records. She also admits that she accessed electronic medical records after hours, during vacation, and during a medical leave of absence, and these accesses were without consent or other authorization.

Member’s Health

If the Member were to testify, she would state that she was suffering from a health condition during the relevant time period which affected her behaviour and judgment. She would further testify that she has since sought treatment for her health condition and that her health condition has been successfully managed and stable for some time.

STANDARDS OF PRACTICE

CNO Standards

CNO’s practice standards explain that:

Nursing standards are expectations that contribute to public protection. They inform nurses of their accountabilities and the public of what to expect of nurses. Standards apply to all nurses regardless of their role, job description or area of practice.

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.
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.
CNO’s Professional Standards also provides, in relation to the Relationships standard, that each nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships. A nurse demonstrates this standard by demonstrating respect and empathy for, and interest in patients, ensuring that patient needs remain the focus of the nurse-patient relationship and ensuring that his/her personal needs are met outside of the therapeutic nurse-patient relationship.
CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) places the responsibility for establishing and maintaining the therapeutic nurse-patient relationship on the nurse. The TNCR Standard provides that the nurse-patient relationship is built on trust, respect, empathy, professional intimacy and the appropriate use of power.
The TNCR Standard also requires nurses to protect the patient from harm by ensuring that abuse is prevented or stopped and reported. With respect to protecting the patient from abuse, a nurse demonstrates having met this standard by not engaging in activities that are exploitative or could result in monetary, personal or other material benefit, gain or profit for the nurse or monetary or personal loss for the patient.
CNO’s Confidentiality and Privacy – Personal Health Information standard (“Privacy Standard”) largely incorporates 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 [patient’s] 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;
ensuring [patients] or substitute decision-makers are aware of the general composition of the health care team that has access to confidential information;
collecting only information that is needed to provide care;
not discussing client information with colleagues or the [patient] in public places such as elevators, cafeterias and hallways;
accessing information for her/his [patients] only and not accessing information for which there is no professional purpose; [emphasis added]
safeguarding the security of computerized, printed or electronically displayed or stored information against theft, loss, unauthorized access or use, disclosure, copying, modification or disposal; and
not sharing computer passwords.

The Member admits and acknowledges that by improperly accessing personal health information of patients, she contravened the Central West CCAC’s policies, CNO’s Privacy Standard and her obligations under PHIPA.
The Member’s conduct not only violated the professional standards required of nurses, the Member knew or ought to have known that her conduct was wrong and would bring shame on the profession.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a) and 3(a) of the Notice of Hearing, in that she accessed personal health information in electronic medical records for patients, without consent or other authorization, between on or about January 2014 to December 2015, as described in paragraphs 28 to 31 and 39 to 41 above. The Member admits her conduct contravened a standard of practice of the profession or failed to meet the standards of practice of the profession. The Member further admits that her conduct is relevant to the practice of nursing and would reasonably be regarded by members as dishonourable and unprofessional.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(b), 1(c), 1(d), 2(a), 3(b), 3(c), and 3(d) of the Notice of Hearing, in respect of her interactions with [Patient A], as described in paragraphs 9 to 15, 33 to 38 and 41, above. The Member admits that she attended a home visit at the residence of [Patient A] without clinical purpose, misappropriated medications from the residence of [Patient A], failed to document the home visit, and failed to escalate a report regarding the medication she misappropriated. The Member admits her conduct contravened a standard of practice of the profession or failed to meet the standards of practice of the profession. The Member further admits that her conduct is relevant to the practice of nursing and would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(e), 1(f), 1(g), 1(h), 2(b), 2(c), 3(e), 3(f), 3(g), and 3(h) of the Notice of Hearing, in respect of her interactions with [Patient B], as described in paragraphs 16 to 23, 33 to 38 and 41 above. The Member admits that she attended home visits at the residence of [Patient B] on September 18, 2015 and October 1, 2015 without clinical purpose, misappropriated medications from the residence of [Patient B] and failed to document the home visits accurately and in a timely manner. The Member admits her conduct contravened a standard of practice of the profession or failed to meet the standards of practice of the profession. The Member further admits that her conduct is relevant to the practice of nursing and would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(i), 1(j), 2(d) and 3(i) of the Notice of Hearing, in respect of her interactions with [Patient C], as described in paragraphs 24 to 25, 33 to 38 and 41 above. The Member admits that she attended a home visit at the residence of [Patient C] without clinical purpose, misappropriated medications from [Patient C] and failed to document the home visit. The Member admits her conduct contravened a standard of practice of the profession or failed to meet the standards of practice of the profession. The Member further admits that her conduct is relevant to the practice of nursing and would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), 2(a), (b), (c), (d), 3(a), (b), (c), (d), (e), (f), (g), (h) and (i) of the Notice of Hearing. With respect to allegation #3(a), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional. As to allegations #3(b), (c), (d), (e), (f), (g), (h) and (i), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

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

Allegation #1(a), in the Notice of Hearing is supported by paragraphs 28 to 31 and 39 to 42 in the Agreed Statement of Facts. Allegations #1(b), (c) and (d) in the Notice of Hearing are supported by paragraphs 9 to 15, 33 to 38, 41 and 43 in the Agreed Statement of Facts. Allegations #1(e), (f), (g) and (h) in the Notice of Hearing are supported by paragraphs 16 to 23, 33 to 38, 41 and 44 in the Agreed Statement of Facts. Allegations #1(i) and (j) in the Notice of Hearing are supported by paragraphs 24 and 25, 33 to 38, 41 and 45 in the Agreed Statement of Facts. The Member admits her conduct contravened a standard of practice of the profession or failed to meet the standards of practice of the profession and constituted breaches of the College’s Professional Standards, TNCR Standard and Privacy Standard.

Allegation #2(a), in the Notice of Hearing is supported by paragraphs 9 to 15, 33 to 38, 41 and 43 in the Agreed Statement of Facts. Allegations #2(b) and (c) in the Notice of Hearing are supported by paragraphs 16 to 23, 33 to 38, 41 and 44 in the Agreed Statement of Facts. Allegation #2(d) in the Notice of Hearing is supported by paragraphs 24 and 25, 33 to 38, 41 and 45 in the Agreed Statement of Facts. The Member admits her conduct constituted misappropriation of patients’ property.

With respect to Allegation #3(a), the Panel finds that the Member’s conduct in accessing approximately 318 records without authority or permission was both dishonourable and unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. It demonstrated an element of dishonesty and deceit when she knowingly accessed Electronic Health Records (“EHR”) without permission.

Finally, with respect to allegations #3(b), (c), (d), (e), (f), (g), (h) and (i), the Member’s conduct in misappropriating medications, attending homes without any clinical purpose, not documenting such visits, failing to escalate a report given by family members and misappropriation of property, the Panel finds that the Member’s conduct was disgraceful, dishonourable and unprofessional as it demonstrated a serious and persistent disregard for her professional obligations; the Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional; and it shames the Member and by extension the profession. The conduct casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:

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 7 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.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at her own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, 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):

Professional Standards,
Code of Conduct,
Therapeutic Nurse-Client Relationship, and
Confidentiality and Privacy – Personal Health Information;

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

v. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

vi. The subject of the sessions with the Expert will include:

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;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

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;

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 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,
the Agreed Statement of Facts,
this Joint Submission on Order, 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.

c) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will only practice nursing for an employer or employers who agree to provide a report to the Director within 14 days of the commencement or resumption of the Member’s employment in any nursing position, confirming that they agree to perform 3 random spot audits, without warning to the Member, of the Member’s accesses to patients’ electronic health records at the following intervals and provide a report to the Director advising whether the Member has accessed personal health information without clinical purpose or proper authorization:

the first audit shall take place within 3 months from the date the Member begins or resumes employment with the employer,
the second audit shall take place within 6 months from the date the Member begins or resumes employment with the employer, and
the third audit shall take place within 9 months from the date the Member begins or resumes employment with the employer.

d) 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.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

There was a serious breach of trust of several patients by the entry into their homes and theft of their property. Using knowledge of CCAC processes to gain access for her own benefit, is a breach of trust;
The Member accessed approximately 318 health records without authority;
The Member entered into homes with no authority and used her position to gain entry;
The Member accessed two family members records, 18 pediatric records, 52 palliative records and 47 closed files;
The Member breached employer policy, Standards of Practice and the PHIPA.

The mitigating factors in this case were:

The Member has no prior discipline history with the College;
The events occurred 6 years ago with no further issues identified;
The Member cooperated with the College and by agreeing to the Agreed Statement of Facts and Joint Submission on Order, the Member has accepted responsibility for her conduct;
The Member has taken accountability for her conduct, thereby avoiding a contested hearing;
The Member suffered from a health condition that she sought treatment for and has been stabilized for some years;

The proposed penalty provides for general deterrence through the oral reprimand and a 7 month suspension which sends a strong message to the profession that breach of privacy and confidentiality and theft of property will not be tolerated.

The proposed penalty provides for specific deterrence through the oral reprimand and a 7 month suspension as it shows the Member that there are consequences for her behaviour.

The proposed penalty provides for remediation and rehabilitation through the terms, conditions and limitations placed on the Member’s certificate of registration including two meetings with a Regulatory Expert, a 24 month employer notification, 12 months of random spot audits by employers of the Member’s access to patients’ electronic health records and that the Member shall not practice independently in the community for a period of 24 months.

Overall, the public is protected because all aspects of the penalty address public protection and sends a strong message to the public this conduct will not be accepted or tolerated by the profession.

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

CNO v. Genereaux (Discipline Committee, 2018). In this case the member was not present nor represented. Similarly to the case before the Panel, the member suffered from a physical condition, there was misappropriation of narcotics, there were criminal charges however these charges were not reported to the College. The member was given a penalty which included an oral reprimand, a 7 month suspension similar to the current case, two meetings with a Nursing Expert, a 24 month employer notification and not being allowed to practice independently in the community for a period of 18 months.

CNO v. Evoy (Discipline Committee, 2019). In this case there was access of personal charts without authorization approximately 27 times, two of which were family members. The member impersonated a family member on a voice mail to a hospital. The member was given a penalty which included an oral reprimand, a 3 month suspension, 2 meetings with a Regulatory Expert, an 18 month employer notification and 12 months of random spot audits by employers of the member’s access to patients’ electronic health records.

The Member’s Counsel submitted that the Joint Submission on Order was the result of careful negotiation between the parties and that the mitigating factors in this case, include:

Relevant substance dependence which applies to human rights to be free from discrimination (section 6 of the Human Rights Code);
The nature of the Member’s disability;
A penalty should not unduly stop the Member from integrating into the public;

In reply, College Counsel submitted that the Member’s substance dependence is a mitigating factor and the Member is entitled to be free from discrimination based upon a disability, but that this must be viewed in the context of the College’s mandate to protect the public.

Independent Legal Counsel (“ILC”) advised that the Panel should accept the Joint Submission on Order unless doing so would bring the administration of justice into disrepute or otherwise not be in the public interest.

Penalty Decision

The Panel accepts the Joint 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 7 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.
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 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

Professional Standards,
Code of Conduct,
Therapeutic Nurse-Client Relationship, and
Confidentiality and Privacy – Personal Health Information;

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

v. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

vi. The subject of the sessions with the Expert will include:

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;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

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,
the Agreed Statement of Facts,
this Joint Submission on Order, 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.

the first audit shall take place within 3 months from the date the Member begins or resumes employment with the employer,
the second audit shall take place within 6 months from the date the Member begins or resumes employment with the employer, and
the third audit shall take place within 9 months from the date the Member begins or resumes employment with the employer.

d) 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 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 and accepted the Joint Submission on Order. 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 amount of Personal Health Information accessed, and the multiple misappropriations of patients’ medication by the Member warrants a lengthy suspension. Random spot checks of the Member’s access of EHR addresses and deters improper access. The Joint Submission on Order is in the best interest of the public and meets the goal of general deterrence, as it sends a strong message to members and the public that this conduct will not be tolerated. It also addresses specific deterrence as the Member will be removed from practice for a period of time and is subject to an oral reprimand. Further it provides for remediation and rehabilitation as the Member will meet with a Regulatory Expert, spot audits will be performed, and there will be limited practice within the community.

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

I, Sherry Szucsko-Bedard, 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.