College of Nurses of Ontario v. Tara Frater, 2021 CanLII 152831

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Carolyn Kargiannakis, RN Member Heather Stevanka, RN Member Devinder Walia Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO DENISE COONEY for College of Nurses of Ontario

• and -

TARA FRATER Registration No. 9729781 JANE LETTON for Tara Frater

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: July 5, 2021

DECISION AND REASONS ON PENALTY

In its Decision and Reasons on Liability released on February 18, 2021, this panel of the Discipline Committee (the "Panel") made findings of professional misconduct against Tara Frater (the "Member"). In particular, the Panel found that the Member committed acts of professional misconduct as alleged in paragraphs #1(b), #1(c), #1(f), #1(g)(i), #1(g)(ii), #1(g)(iii), #1(g)(v), #2(a), #2(b), #3(a), #3(b), #4(b), #4(c), #4(f), #4(g)(i), #4(g)(ii), #4(g)(iii) and #4(g)(v). With respect to allegations #4(b), #4(c) and #4(f), the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional. As to allegations #4(g)(i), #4(g)(ii), #4(g)(iii) and #4(g)(v), the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession as unprofessional.

The Panel dismissed allegations #1(g)(iv), #1(h)(i), #1(i), #4(g)(iv), #4(h)(i) and #4(i).

Allegations #1(a), #1(d), #1(e), #1(h)(ii), #4(a), #4(d), #4(e) and #4(h)(ii) were withdrawn.

The Panel reconvened on July 5, 2021 via videoconference for the penalty hearing. The Panel's decision and reasons on penalty are set out below.

Penalty

Penalty Submissions - College Counsel

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

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member's certificate of registration for 12 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 a minimum of 2 meetings with a Regulatory Expert (the "Expert") at her own expense and within 6 months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise the Director of 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 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, Professional Conduct (the "Director") in advance of the meetings;

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

1. the Panel's Order,

2. the Notice of Hearing, and

3. if available, a copy of the Panel's Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Documentation, and

3. Code of Conduct;

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

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

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member's patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

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

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert's assessment of the Member's insight into 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) Within 12 months from the date that this Order becomes final, or a longer time period as approved by the Director, the Member shall successfully complete at her own expense a nursing course (with clinical or laboratory or other practical components) that have received prior approval from the Director regarding: Health Assessment. The Member must pass the course. If the course is graded, the Member must receive a minimum passing grade of 65%. The Member must provide the Director with proof of enrolment, successful completion of the course and the specific grade received (if applicable).

c) 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:

1. the Panel's Order,

2. the Notice of Hearing, and

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

The aggravating factors in this case were:

• The Member's conduct was serious;
• The Member had a persistent pattern of dishonesty with two key points:
  • The Member deliberately lied to her employer 48 separate times over 18 months about her ability to go to work;
  • The Member did not have a momentary lapse in judgement;
• The Member gained financially as she received sick pay from one employer and pay from the other employer;
• The Member took advantage of employee sick time and emergency time;
• The Member could have caused a risk to other patients by leaving the employer short-staffed;
• The Member's conduct was deliberate, repeated and could have caused decreased focus, increased distraction while working between two employers;
• The Member failed to carry out her obligations to [Patient A] and [Patient B];
• The Member failed to review the patients' previous history and Offender Tracking Information System ("OTIS");
• The Member failed to administer the Clinical Institute Withdrawal Assessment ("CIWA") and Clinical Opioid Withdrawal Scale ("COWS") assessment per policy;
• The Member failed to alert colleagues of her concerns and this lead to tragic consequences.
• While there is no evidence of harm to patients due to her sick calls and emergency sick time, the Panel can take notice of the potential for short staffing for her employer.

The mitigating factors in this case were:

• The Member admitted to some of her misconduct and agreed to the Agreed Statement of Facts;
• The Member cooperated with the College;
• The Member had no performance appraisal from her employer to indicate any improvement was needed.

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

CNO v. Zhou (Discipline Committee, 2018). This case is similar in that the member committed theft of time when she knowingly overlapped shifts on 83 occasions for a total of 292.5 hours working between two employers. The member also admitted to theft of time when she called in sick at one employer and was paid while working at another. The member was dishonest, deceitful and demonstrated a moral failing when she lied to her employer about her work. The member had to have known this was wrong. The member received an oral reprimand, a 7-month suspension of her certificate of registration, and terms, conditions and limitations on her certificate of registration requiring her to attend 2 meetings with a Nursing Expert at her expense and a 24-month employer notification.

CNO v. Ohiegbomwan (Discipline Committee, 2020). This case is considerably different in that the member failed to appropriately document care for two patients. She failed to observe and assess [Patient 1] for six hours. The member relied on a video monitor to assess his condition. [Patient 1] was found unresponsive by the RN who assumed his care and was pronounced dead that afternoon. Similarly, the member did not assess [Patient 2], and she did not monitor the patient for signs of sepsis during her shift. The member acknowledged that she did not appropriately monitor [Patient 2], who subsequently passed away a few hours later. The member received an oral reprimand, a 3-month suspension of her certificate registration, and terms, conditions and limitations on her certificate of registration requiring her to attend two meetings with a Regulatory Expert at her expense, to complete a nursing course with clinical or laboratory, or practical components with a minimum passing grade of 65% at her own expense, an 18-month employer notification and the member's employer(s) must perform three random spot audits over 12 months.

In the present case, the Member did initiate follow-up care for [Patient B] and she admitted [Patient A] to the SNU. The Member had no other interaction with these two people once they left her care.

CNO v. Popo (Discipline Committee, 2020). This case is similar in that the member's documentation came into question. The member documented that she had assessed patient(s) at different times but had not. The member failed to respond to and put into place protocols she knew were part of the policy at her place of employment after being informed that one patient was having respiratory issues. The member failed to act when she was informed of the decline in the patient's health. The member failed to initiate CPR and call a Code Blue when she found the patient unresponsive. The member ignored the wishes of the patient that he wanted every intervention done to save his life. The member decided on her own that there was no reasonable prospect of resuscitation. This patient died. The member received an oral reprimand, a 3-month suspension of her certificate of registration, and terms, conditions and limitations on her certificate of registration requiring her to attend 2 meetings with a Regulatory Expert at her expense and an 18-month employer notification.

In the present case, the Member did initiate follow-up care for [Patient B] and she admitted [Patient A] to the SNU. The Member had no other interaction with these two people once they left her care. [Patient A] died the following day.

College Counsel also commented on the three cases which the Member's Counsel intended to rely upon, submitting that they were of limited assistance and that none of them involved the care issues and the findings in the current case.

Penalty Submissions - Member's Counsel

The Member's Counsel also made submissions on penalty as follows:

The Member agrees that the penalty should include an oral reprimand, but disagrees with having to take the Nursing Health Assessment Course as it was excessive given the 2 core issues of time theft and the Member's practice. There were no findings that the Member failed to properly assess [Patient B] or [Patient A].

The Member did not falsify records, had no performance appraisals in years, was not notified that her practice fell short of the standards of practise and organizational standards, and no workplace concerns were raised with her.

While the Member understands that she will have some suspension, the 12-month suspension of the Member's certificate of registration for time theft proposed by the College is excessive compared to the Zhou case, wherein the member was given a 7-month suspension when she had 83 incidences compared to the Member's 48.

In Zhou, the member had overlapped shifts, while in this case the Member's shifts were within a 24 hour period. There is a difference between overlapping and shifts during the same 24-hour period. The overlapping in the Zhou case had a considerable number of hours in comparison.

The Member does not object to 2 meetings with a Regulatory Expert, but disagrees with a 24-month employer notification and submits that an 18-month employer notification is more consistent with prior hearings and would still provide public protection. As well, 2 meetings with a Regulatory Expert would address any concerns and reassure the public.

The Member's Counsel submitted that the mitigating factors in this case were:

• The Member had no performance appraisals;
• The Member was never informed by her employer that her practice fell short;
• The Member's employer never raised any concerns regarding her practice;
• The Member never falsified records;
• The Member had not changed her practice;
• The Member made the appropriate referrals for both Patients [A] and [B].

The Member's Counsel submitted three cases to the Panel to demonstrate that the Member's position on penalty fell within the range imposed by the Discipline Committee. The Member's Counsel submitted that the members' conduct in the cases being submitted was more serious than that of the Member in the matter before this Panel. In those cases there was more active dishonesty and the members engaged in conduct in which they falsified documents, presented false information from a doctor, called in sick, and/or used the voice of another to falsify documents.

CNO v. Fellows-Smith (Discipline Committee, 2006). The Member's Counsel acknowledged that it is an older decision, but asked the Panel to rely upon it as it is similar in that the member committed theft of time when she was on sick leave and collected sick benefits at one employer and worked during that same period at another employer. The member falsified Return to Work Status Reports on three occasions and even spelled the treating physician's name wrong. Falsification of documents does not apply in the matter before this Panel. The member received an oral reprimand, a 60 day suspension of her certificate of registration, paid a fine of $2,500.00 to the Minister of Finance for Ontario, and finally, the member had terms, conditions and limitations placed on her certificate of registration for 24 months of employer notification. While the present case before this Panel constituted time theft, the Member did not falsify documents.

CNO v. Mohamed (Discipline Committee, 2008). This case is similar because the member committed theft of time when she falsely claimed that her medical conditions required her to be off sick and needed modified work for an extended period. The member claimed that she was on dialysis, had a central line and back injury. The member falsified the Attending Physician's Report from her doctor when she added additional words to the document and faxed it from a printing store, not her doctor's office. The member was morally wrong, and her conduct involved a significant amount of deceit over an extended period, including multiple lies. The member received an oral reprimand, a 4-month suspension of her certificate of registration, and terms, conditions and limitations on her certificate of registration which included 6 meetings with a professional counsellor, a fine of $2,500.00 to the Minister of Finance for Ontario, and 18 months of employer notification. While in the present case the Member's conduct constituted time theft; she did not falsify documents.

CNO v. Ferris (Discipline Committee, 2017). This case is vastly different in that it involved an elaborate scheme to defraud the federal government of EI funds. The member solicited a doctor for assistance in manipulating his sister's hours to receive EI benefits, for which she was not entitled. The member manipulated the payroll records giving his sister credit for hours she did not work, and lastly, the member submitted a false Record of Employment to a doctor for signature, knowing this was a lie. The member received an oral reprimand, a 3-month suspension of his certificate of registration, and terms, conditions and limitations on his certificate of registration which included 2 meetings with a Nursing Expert and a 12-month employer notification.

While the Member's conduct in the case before this Panel constituted time theft, she did not carryout an elaborate well thought out scheme to defraud the government as in the Ferris case, nor did she falsify documents. The Member's Counsel also noted that the Member had been found to be credible and that the Popo case did not have a requirement for a course and the 18-month employer notification is sufficient for public protection.

The Member's Counsel also submitted that the delay in the decision being released was understandable because of the pandemic, but as the Member had to wait, she has not been working in the interim and asked that this be taken into consideration.

College Counsel's Reply

In reply, College Counsel submitted that the Health Assessment Course was not a punitive measure but remedial and it would help the Member's assessments, assist her to practise safely and would be appropriate.

While there were unusual circumstances concerning the time it took for the decision, the Panel's concern is to protect the public and maintain public safety and there is no precedent for the delay due to Covid to have an effect on the penalty order and there is no evidence of hardship and it is not a mitigating factor.

Penalty Decision

The Panel orders that:

1. The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member's certificate of registration for 4 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 a minimum of 2 meetings with a Regulatory Expert (the "Expert") at her own expense and within 6 months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise the Director of 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 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, Professional Conduct (the "Director") in advance of the meetings;

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

1. the Panel's Order,

2. the Notice of Hearing, and

3. if available, a copy of the Panel's Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Documentation, and

3. Code of Conduct;

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

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

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member's patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

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

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member,

4. 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 18 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, and

3. 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 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 protection of the public, specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation.

Specific deterrence is met through the Member's 4-month suspension and oral reprimand. General deterrence is met through the suspension and the terms, conditions and limitations on the Member's certificate of registration. Rehabilitation and remediation are accomplished through the Member's 2 meetings with a Regulatory Expert, giving the Member an opportunity to reflect on the issues that brought her before the Discipline Committee, gain insight and improve her practice in the future. Public protection is accomplished through all of these aspects of the penalty and the 18-month employer notification. All of these components of the penalty will promote public safety and confidence in self-regulation.

College Counsel requested that the Member's certificate of registration be suspended for 12 months and that the Member attend a nursing course. The Panel finds both a 12 month suspension and the requirement to take a nursing course excessive in light of the cases presented by College Counsel and the Member's Counsel. The Panel finds that a 4-month suspension is more in line with past cases. The Member did not falsify documents; the Member did not attempt to defraud the Federal Government's EI program; the Member did not fail to assess her patients; the Member did not fail to institute plans for re-assessment; the Member was not the direct cause of a patient's death.

The Member accepted responsibility and agreed that some areas of her documentation were lacking, but it was her position that she had done the best she could with the time given. The Member admitted to several allegations and took responsibility for her actions. The Member was patient-focused and advocating for her patients. There was no evidence presented that showed the Member had ever been disciplined, reprimanded orally or in writing by her employer regarding her performance, assessments, care plans, or documentation.

Regarding the nursing course proposed by College Counsel, the Panel finds it is not reasonable. The Member was never informed that her charting fell below the standard and policy of her employer. The Member was never informed there were any issues with her assessments or documentation either verbally or in writing.

The Panel found that the 18-month employer notification was in line with past cases. The members' conduct in those cases were more serious than the Member's in that there was more active dishonesty and falsification of documents and records, including one for monetary gain. Consequently, the panel found that an 18-month employer notification is appropriate and sufficient to protect the public.

I, Grace Fox, NP, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.