College of Nurses of Ontario v. Jennifer Rizan, 2021 CanLII 153189

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Dawn Cutler, RN Chairperson Eloisa Busto, RPN Member Tim Crowder Public Member Carly Gilchrist, RPN Member Karen Goldenberg Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO JEAN-CLAUDE KILLEY for College of Nurses of Ontario

• and -

JENNIFER RIZAN Registration No. 9815911 ZOE HOUNTALAS for Jennifer Rizan CHRISTOPHER WIRTH Independent Legal Counsel

Heard: December 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 December 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 prohibiting 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 Jennifer Rizan.

The Panel considered the submissions of College Counsel and the Member’s Counsel and decided that there be an order prohibiting 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 Jennifer Rizan.

The Allegations

The allegations against Jennifer Rizan (the “Member”) as stated in the Notice of Hearing dated October 25, 2021 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 practicing as a Registered Nurse in the extended class in Toronto, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular:

(a) between about December 2018 and March 25, 2020, you provided nursing care to [the Patient] with whom you had a pre-existing and/or ongoing personal relationship;

(b) between about December 2018 and March 25, 2020, you practised the profession while in a conflict of interest, by providing nursing care to [the Patient] while being named as the beneficiary of [the Patient]’s pension plan and life insurance policy; and/or

(c) on or about April 25, 2018, October 10, 2018, and/or on two occasions on or about November 19, 2018, you accessed health records for [the Patient] at the Scarborough Health Network without being in [the Patient]’s circle of care and/or without consent or other authorization;

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(26) of Ontario Regulation 799/93, in that, while practicing as a Registered Nurse in the extended class in Toronto, Ontario, you practised the profession while in a conflict of interest, and in particular, between about December 2018 and March 25, 2020, you practised the profession while in a conflict of interest, by providing nursing care to [the Patient] while being named as the beneficiary of [the Patient]’s pension plan and life insurance policy;

3. 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 practicing as a Registered Nurse in the extended class in Toronto, Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular:

(a) between about December 2018 and March 25, 2020, you provided nursing care to [the Patient] with whom you had a pre-existing and/or ongoing personal relationship;

(b) between about December 2018 and March 25, 2020, you practised the profession while in a conflict of interest, by providing nursing care to [the Patient] while being named as the beneficiary of [the Patient]’s pension plan and life insurance policy; and/or

(c) on or about April 25, 2018, October 10, 2018, and/or on two occasions on or about November 19, 2018, you accessed health records for [the Patient] at the Scarborough Health Network without being in [the Patient]’s circle of care and/or without consent or other authorization.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), (b), (c), 2, 3(a), (b) and (c) 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. Jennifer Rizan (the “Member”) obtained a baccalaureate degree in nursing from Ryerson University in 1998. The Member also obtained a master’s degree from the University of Toronto in 2010.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse on July 10, 1998 in the General Class. The Member has been registered in the Extended Class since February 24, 2011 as a Nurse Practitioner (“NP”).

3. The Member was employed at Scarborough Health Network – General Site (“SHN”) from January 2014 until her employment was terminated in May 2020 as a result of the incidents described below.

THE PATIENT

4. [The Patient] was [ ] years old and had [concurrent medical conditions, including a recent surgical procedure, a mental health disorder and drug misuse]. The Patient had an extensive history of prescription and nonprescription drug use including anabolic steroids and opioids.

5. On March 25, 2020, the Member found the Patient unresponsive at his apartment. If the Member were to testify, she would say she spoke to the Patient that day and attended his apartment with dinner. She would further testify that upon discovering the Patient unresponsive, she called 911 and administered doses of Narcan to him because she was aware of his history of opioid use.

6. Emergency services arrived at the Patient’s apartment and administered additional doses of Narcan to the Patient, but they were unsuccessful in resuscitating him.

7. Following a postmortem examination, the Patient’s cause of death was determined to be Fentanyl toxicity and the manner of death was deemed an accident. At the time of his death, the Patient was on disability leave from [the Patient’s employer].

8. The Toronto Police Detective who investigated the Patient’s death reported information to CNO about the Member’s involvement with the Patient. The Detective was concerned that the Member, when interviewed by police about her relationship to the Patient, only mentioned having a personal relationship with the Patient not a professional relationship. However, the police discovered several bottles of a prescription opioid in the Patient’s apartment that had apparently been prescribed by the Member.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Breach of Boundaries

9. The Member and the Patient had an ongoing personal relationship when the Member began providing the Patient with nursing care.

10. The Member told the police and SHN that she first met the Patient in 2010, that they “reconnected” after the Patient visited SHN in February 2018, and that the Member was not involved in his care during that visit to SHN.

11. In February 2018 and April 2018, the Member attempted to arrange for a physician, [the Physician], to assess the Patient. [The Physician] is a general surgeon with privileges at three SHN sites as well as Women’s College Hospital. In an email dated April 12, 2018, the Member wrote to [the Physician], “Thank you for seeing and scoping my friend, [the Patient].” In addition, in December 2018, the Member attempted to refer the Patient to the Transitional Pain Clinic.

12. In September 2019, the Member initiated an opioid treatment program with the Patient. In progress notes, the Member documented the Patient’s opioid treatment, as well as other elements of his healthcare such as changes to his treating physician and his attempts to access programs at other facilities.

13. The Member prescribed the Patient Hydromorphone CR 3mg to be taken every 12 hours, and Hydromorphone 2mg PRN for breakthrough pain. The Member initially authorized the Patient to be dispensed a two-week supply at a time; however, she later reduced this to a seven-day supply at a time.

Pension and Insurance Policy Beneficiary

14. On January 30, 2019, the Patient designated the Member as the beneficiary of his pension and his life insurance policy. The Member was described as a “friend” on the Patient’s life insurance beneficiary designation form.

15. The Patient’s parents reported that the Patient changed his beneficiary designations many times, according to who was in his favor at various points in his life.

16. On March 27, 2020, two days after the Patient’s death, the Member emailed the [Patient’s employer] from her SHN email account, asking how to inform the [Patient’s employer] that an employee had passed away. The Member did not identify the Patient in this email to the [Patient’s employer]. The Member also asked in her email: “how would a beneficiary for that deceased employee be informed that she or he is the beneficiary if the deceased employee did not have the opportunity to inform their beneficiary of this decision?”

17. If the Member were to testify, she would state she was unaware that the Patient had designated her as beneficiary of his life insurance and pension plans until after his death. The Member would further testify that she had received a phone call from a family member the day after the Patient’s passing indicating that she had been named his beneficiary.

18. The Member ultimately collected $142,000.00 on the Patient’s life insurance, and $900,242.22 on the Patient’s pension (less 30% withholding taxes).

19. Whether or not the Member knew that the Patient had designated her as his beneficiary, she knew it was a possibility, and correspondingly that it was a possibility he could remove her as his beneficiary. This created a conflict of interest wherein the Member’s personal interests could improperly influence her professional obligations and judgment, or conflict with her duty to act in the Patient’s best interest.

Privacy Breaches

20. Upon learning of the Member’s conduct, SHN conducted an audit of the Patient’s health records. The audit revealed that the Member accessed the Patient’s SHN health record on April 25, 2018, October 10, 2018, and twice on November 19, 2018. The access on April 25, 2018, was approximately two weeks after the Member had emailed [the Physician] about attempting to arrange care for the Patient.

21. The Member was not in the Patient’s circle of care at SHN, nor did she have consent or other authorization to access his health records on the dates listed above.

CNO STANDARDS

Code of Conduct

22. CNO’s Code of Conduct is a standard of practice describing the accountabilities all Ontario nurses have to the public. The Code of Conduct consist of six principles including:

• Nurses respect the dignity of patients and treat them as individuals;

• Nurses work together to promote patient well-being;

• Nurses maintain patients’ trust by providing safe and competent care;

• Nurses work respectfully with colleagues to best meet patients’ needs;

• Nurses act with integrity to maintain patients’ trust; and

• Nurses maintain public confidence in the nursing profession.

23. Regarding the principle requiring nurses to act with integrity to maintain patients’ trust, CNO’s Code of Conduct provides that:

• Nurses declare any conflict of interest that could affect their judgment. This includes a nurse’s personal, financial or commercial interest; and

• Nurses maintain professional boundaries with patients.

24. CNO’s Code of Conduct defines boundaries as:

The points when a relationship changes from professional and therapeutic to unprofessional and personal. Therapeutic nurse-patient relationships put patients’ needs first. Crossing a boundary means a nurse is misusing their power and trust in the relationship to meet personal needs or behaving in an unprofessional manner with the patient. Crossing a boundary can be intentional or unintentional

Professional Standards

25. CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership, and relationships.

26. CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring her or his practice and conduct meets the legislative requirements and the standard of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.

27. 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. A nurse demonstrates having met this standard by actions such as identifying ethical issues and communicating them to the healthcare team.

28. In addition, CNO’s Professional Standards further provides that a nurse demonstrates leadership by actions such as role-modelling professional values, beliefs, and attributes.

Therapeutic Nurse-Client Relationship

29. CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) contains four standard statements which describe nurses’ accountabilities with respect to therapeutic communication, patient-centred care, maintaining boundaries and protecting the patient from abuse. The TNCR Standard provides that the nurse-patient relationship is built on trust, respect, empathy, professional intimacy and requires the appropriate use of power inherent in the care provider’s role.

30. With respect to nursing a family member or friend, Appendix B of the TNCR Standard provides that caring for a family member, friend or acquaintance should be limited to circumstances in which there are no other care providers available. The patient should be stabilized and, if possible, care should be transferred. Appendix B of the TNCR Standard further provides that if a nurse’s sexual partner is admitted to an agency where the nurse is providing care or services, the nurse must make every effort to ensure that alternative care arrangements are made.

31. Appendix B of the TNCR Standard provides that if it is not possible to transfer care of a patient, a nurse must consider factors such as input from the patient and carefully reflect on whether they can maintain professionalism and objectivity in caring for the patient and whether the relationship interferes with meeting the patient’s needs. The nurse must discuss the situation with colleagues and their employer before making a decision.

32. In addition, with respect to maintain boundaries, when providing care to a family member, friend or acquaintance, a nurse is required to:

• Be aware of the boundary between their personal and professional role;

• Clarify the boundary for the [patient];

• Meet personal needs outside the relationship; and

• Develop and follow a care plan.

33. CNO’s TNCR Standard defines a boundary in the nurse-patient relationship as “the point at which the relationship changes from professional and therapeutic to unprofessional and personal.” CNO’s TNCR Standard places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-patient relationship on the nurse. CNO’s TNCR Standard provides that:

Crossing a boundary means that the care provider is misusing the power in the relationship to meet his/her personal needs, rather than the needs of the [patient], or behaving in an unprofessional manner with the [patient].

34. CNO’s TNCR Standard provides, in relation to maintaining boundaries, that nurses meet this standard by:

• Setting and maintaining the appropriate boundaries within the relationship, and helping [patients] understand when their requests are beyond the limits of the therapeutic relationship;

• Ensuring that the nurse-[patient] relationship and nursing strategies are developed for the purpose of promoting the health and well-being of the [patient] and not to meet the needs of the nurse, especially when considering self-disclosure, giving a gift to or accepting a gift from a [patient];

• Continually clarifying her/his role in the therapeutic relationship, especially in situations in which the [patient] may become unclear about the boundaries and limits of the relationship;

• Ensuring that any approach or activity that could be perceived as a boundary crossing is included in the care plan developed by the health care team; and

• Consulting with colleagues and/or the manager in any situation in which it is unclear whether a behaviour may cross a boundary of the therapeutic relationship.

Nurse Practitioner

35. CNO’s Nurse Practitioner standard describes the accountabilities specific to NPs. NPs are also accountable for complying with relevant laws and other CNO standards and guidelines as applicable.

36. CNO’s Nurse Practitioner standard states that:

A conflict of interest exists when a nurse’s personal interests (financial or non-financial) could improperly influence their professional judgment or interfere with their duty to act in the best interest of [patients]. It is professional misconduct for a nurse to practise while in a conflict of interest.

37. CNO’s Nurse Practitioner standard provides that NPs recognize and ethically manage actual, potential, and perceived conflicts of interest. It further provides that NPs:

• Must not obtain any personal benefit, which conflicts with their ethical duty to [patients], as a result of their NP practice;

• Only provide professional services to family members, partners, friends, or acquaintances when there are no other providers available in circumstances outlined in the Therapeutic Nurse-Client Relationship practice standard; and

• Only prescribe a controlled substance to a family member, partner, friend, or acquaintance to intervene in an emergency situation and only when there is no other prescriber immediately available.

Confidentiality and Privacy: Personal Health Information

38. CNO’s Confidentiality and Privacy: Personal Health Information standard largely incorporates the Personal Health Information Protection Act, 2004 and requires that personal health information be kept confidential and secure. Nurses comply with this standard by actions such as accessing information for their patients only and not accessing information for which there is no professional purpose.

39. The Member admits and acknowledges that she contravened CNO’s Code of Conduct, Professional Standards, TNCR Standard and Nurse Practitioner standard by failing to maintain the boundaries of the nurse-patient relationship when she provided nursing care to the Patient while in a pre-existing and ongoing personal relationship with the Patient.

40. The Member admits and acknowledges that she contravened CNO’s Code of Conduct, Professional Standards, TNCR Standard and Nurse Practitioner standard by practicing the profession while in a conflict of interest when she provided nursing care to the Patient while being named as the beneficiary of the Patient’s pension plan and life insurance policy.

41. The Member admits and acknowledges that she contravened CNO’s Confidentiality and Privacy: Personal Health Information standard when she accessed health records for the Patient at SHN without being in the Patient’s circle of care and without consent or other authorization.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

42. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a), (b) and (c) 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 9 to 41 above.

43. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing in that she practised the profession while in a conflict of interest, as described in paragraphs 9 to 21 and 29 to 37 above.

44. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3 (a), (b) and (c) of the Notice of Hearing, and in particular her conduct was disgraceful, dishonourable, and unprofessional, as described in paragraphs 9 to 41 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), 2, 3(a), (b) and (c) of the Notice of Hearing. As to allegations 3(a), (b) and (c), 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 9-13, 23, 24, 29, 30-34, 36, 37 and 42 in the Agreed Statement of Facts. The Member and [the Patient] had an ongoing personal relationship when the Member began providing care. [The Patient] died of an overdose from Fentanyl toxicity. After an investigation by the police, a detective was concerned over the Member’s relationship with [the Patient] as it was discovered that there were several bottles of prescription opioids which were prescribed by the Member. The Member told the police and her employer that she had first met [the Patient] in 2010 and that they “reconnected”. After [the Patient] had visited Scarborough Health Network (“SHN”) in February 2018, the Member was not involved with his care during the visit. The College’s Code of Conduct further defines boundaries as “The points when a relationship changes from professional and therapeutic to unprofessional and personal. Crossing a boundary means a nurse is misusing their power and trust in the relationship to meet personal needs.” The Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) provides that caring for a family member, friend or acquaintance should be limited to circumstances in which there are no other care providers available. The Member crossed professional boundaries by treating [the Patient], a person with who she had a personal relationship. CNO Professional Standards provide that nurses are responsible for their actions and the consequences of those actions.

Allegation #1(b) in the Notice of Hearing is supported by paragraphs 14-19, 23, 24, 26, 27, 37 and 42 in the Agreed Statement of Facts. At the time of [the Patient]’s death, he was on disability leave from the [Patient’s employer]. On January 30, 2019 [the Patient] designated the Member as the beneficiary of his pension and his life insurance policy. The Member was described as a “friend” on [the Patient]’s life insurance/beneficiary designation form. Two days after [the Patient]’s death the Member emailed the [Patient’s employer] about “how would a beneficiary for that deceased employee be informed that she or he is the beneficiary?”. If the Member were to testify, she would state that she was unaware that [the Patient] designated her as the beneficiary of his life insurance and pension plan. The Member collected $142,000.00 on [the Patient]’s life insurance and $900,242.22 on [the Patient]’s pension (less 30% withholding taxes). Whether or not the Member knew that [the Patient] was designating her as his beneficiary the Member knew it was a possibility. This created a conflict of interest when the Member’s personal interest could improperly influence her professional obligations, judgment, or conflict with her duty to act in [the Patient]'s best interest. The College’s Nurse Practitioner Standard (“NP Standard”) states “A conflict of interest exists when a nurse’s personal interests (financial or non-financial) could improperly influence their professional judgment or interfere with their duty to act in the best interest of [patients].” The NP Standard provides that Nurse Practitioners (“NPs”) recognize and ethically manage actual, potential and perceived conflicts of interest. NPs must not obtain any personal benefit, which conflicts with their ethical duty to patients, as a result of their NP practice. An NP can only prescribe a controlled substance to a family member, partner, friend or acquaintance in an emergency situation and only when there is no other prescriber immediately available. The College’s code of conduct states that “Nurses declare any conflict of interest that could affect their judgement. This includes a nurses personal, financial, or commercial interest.”

Allegation #1(c) in the Notice of Hearing is supported by paragraphs 20, 21, 23 and 38-42 in the Agreed Statement of Facts. Upon learning of the Member’s conduct, SHN conducted an audit of [the Patient]’s personal health record. The audit revealed that the Member accessed [the Patient]’s health records at SHN on April 25, 2018, October 10, 2018 and November 19, 2018. The Member was not in [the Patient]’s circle of care at SHN nor did she have consent or other authorization to access his health records on the dates listed above. Nurses comply with the Confidentiality and Privacy: Personal Health Information Standard (“CPPHI Standard”) by accessing information for their patients only and not accessing information for which there is no professional purpose. The Member admits and acknowledges that she contravened the CPPHI Standard when she accessed health records for [the Patient] at SHN without being in his circle of care and without consent or authorization.

Allegation #2 in the Notice of Hearing is supported by paragraphs 9-21, 29-37 and 43 in the Agreed Statement of Facts. At the time of [the Patient]’s death he was on disability leave from the [Patient’s employer]. On January 30, 2019, [the Patient] designated the Member as the beneficiary of his pension and life insurance policy. The Member was described as a “friend” on [the Patient]’s life insurance and beneficiary designation form. Two days after [the Patient]’s death the Member emailed the [Patient’s employer] about “how would a beneficiary for that deceased employee be informed that she or he is the beneficiary?”. If the Member were to testify, she would state that she was unaware that [the Patient] designated her as beneficiary of his life insurance and pension. The Member collected $142,000.00 on [the Patient]’s life insurance and $900,242.22 on his pension (less 30% withholding taxes). A detective investigating [the Patient]’s death became concerned over the Member’s relationship with [the Patient] as it was discovered that [the Patient] had several bottles of prescription opioids which were prescribed by the Member. The College’s NP Standard states “A conflict of interest exists when a nurse’s personal interests (financial or non-financial) could improperly influence their professional judgment or interfere with their duty to act in the best interest of [patients].”

With respect to allegations #3(a), (b) and (c) in the Notice of Hearing, it is supported by paragraphs 9-41 in the Agreed Statement of Facts. The Member admits to this allegation. The Panel finds that the Member’s conduct in having a personal relationship with [the Patient] while prescribing opioids to him was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations as indicated in the College’s standards of practice.

The Panel also finds that the Member’s conduct was dishonourable. The Member’s conduct demonstrated an element of moral failing. She repeatedly crossed professional boundaries by treating someone with whom she had a personal relationship. Furthermore, throughout this friendship the Member ought to have known that she could have positively benefited from [the Patient]’s death by being named as a beneficiary. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct of maintaining a personal friendship with [the Patient] while prescribing opioids to him casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet. The Panel acknowledges that the Member’s conduct was ethically unsound. The Member’s actions put herself first rather than [the Patient]. It is the duty of any practicing nurse to put the patient first no matter the circumstances that arise.

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 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 10 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 from the date that this Order becomes final. To comply, the Member is required to ensure that:

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

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

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

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

1. Professional Standards,

2. Therapeutic Nurse-Client Relationship,

3. Nurse Practitioner,

4. Confidentiality and Privacy: Personal Health Information, and

5. Code of Conduct;

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:

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 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;

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 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,

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.

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

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

Penalty Submissions

Submissions were made by College Counsel. Both College Counsel and the Member’s Counsel also reviewed with the Panel the R. v. Anthony-Cook (2016) Supreme Court of Canada decision, strongly urging the Panel to accept the Joint Submission on Order unless to do so would bring the administration of justice into disrepute.

College Counsel

College Counsel provided an overview to the Panel on the College’s submissions as to the guiding principles that govern a penalty order. The objective that the College hopes to achieve includes deterrence - general and specific as well as rehabilitation and remediation. Rehabilitation focuses on the Member’s specific circumstances and reintegration into the profession. Deterrence focuses on signalling to the Member and the profession the way the Panel views the misconduct and to avoid similar conduct in the future. The penalty must maintain public confidence in the College’s ability to regulate itself as a self-governing profession. The penalty must also protect the public. The reprimand is aimed primarily at deterrence and denunciation, the suspension is targeted at those objectives as well, but also includes protection of the public since it provides a period where the Member is not practicing. During this time, the Member will be engaged in remedial/remediation activities that are listed in the terms, conditions and limitations. The terms of the employer notification and restrictions on independent practice serve as a public protection as well as maintaining public confidence.

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

Bradley v. Ontario College of Teachers (Divisional Court, 2021): This is a decision of the Ontario Divisional Court which formally adopted in Ontario the test set out in R. v. Anthony-Cook as also being applicable to professional regulatory tribunals.

CNO v. Sopha (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts as well as a Joint Submission on Order and involved failing to maintain professional boundaries in the therapeutic nurse-client relationship. There were financial transactions with a patient unrelated to the provision of care, providing assistance with services unrelated to the provision of care, and accepting a Power of Attorney for personal care and property. The Member and the patient engaged in financial transactions involving the patient’s home and agreement in repurchasing the sale, negotiation over the price of purchase. The Member was assigned as the patient’s care coordinator through the LHIN. The nature of the Member’s responsibility was one of supervision and the Member was not directly involved in patient care. The penalty included an oral reprimand, suspension of the member’s certificate of registration for 8 months and terms, conditions and limitations on the member’s certificate of registration including a minimum of 2 meetings with a Regulatory Expert and employer notification for 18 months.

College Counsel submitted that the penalty was less in the above case than in the case before this Panel due to two factors. The first is due to the Member’s status as a Nurse Practitioner which is the highest class a nurse can achieve with the broadest scope of practice and most responsibility for patient care. With a heightened authority comes heightened responsibility with respect to the nurse-client relationship. College Counsel further submitted that the care that the Member provided to [the Patient] in the case before this Panel was care that engaged in the highest level of nursing judgment. No other category of nurse could prescribe opioid medication to an opioid addicted patient in a program to ultimately wean him off the medication. College Counsel submitted that this type of relationship demands a very vigilant level of detachment from the personal relationship that may exist. There is no suggestion that the care that the Member provided was actually problematic to [the Patient] or responsible in any way for the death of [the Patient].

CNO v. Trzop (Discipline Committee, 2018): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order and involved breaches of the therapeutic nurse-patient relationship. There were several different ways in which the professional and personal relationship were breached. The member brought her daughter to the client’s home, engaged in a personal/sexual relationship with the client’s grandson, resided in the client’s home and engaged in a financial relationship with the client‘s daughter by agreeing to pay the rent. The penalty included an oral reprimand, suspension of the member’s certificate of registration for 12 months and terms, conditions and limitations on the member’s certificate of registration including two meetings with a Nursing Expert, 12 months of employer notification and legal costs of the College in the amount of $1,500.00 related to the late resolution of this matter. College Counsel submitted that in this case there was a significance attached to the level of care that was provided by the member, the patient in this case required home based care and the member had engaged in several breaches with the therapeutic nurse-client relationship and boundaries. The member was a Registered Practical Nurse working at Paramed.

CNO v. Giguere (Discipline Committee, 2021): College Counsel provided the Panel with the excerpt for this member from “Find a Nurse” which summarized this decision, but the written decision has not been released to the public. Although the Panel cannot review details of the case, College Counsel also encouraged the Panel to review the excerpt. The summary of the allegations included findings of professional misconduct against the Member, and a summary of the penalty imposed. College Counsel submitted that this would help the Panel see a range of penalty with similar conduct. The member was a Registered Practical Nurse and was found guilty of abusing a patient emotionally and contravening the standards of practice of the profession. His conduct was found to be disgraceful, dishonourable, and unprofessional. The member engaged in a personal and sexual relationship with the mother of the patient. The penalty included an oral reprimand, a suspension of the member’s certificate of registration for 9 months and terms, conditions and limitations on the member’s certificate of registration including a minimum of 2 meetings with a Regulatory Expert and 24 months of employer notification.

College Counsel submitted that as a Registered Practical Nurse the nurse-client relationship boundaries must be respected, but in the case before this Panel, given the Member’s classification as a Nurse Practitioner, her obligations are more significant.

Member’s Counsel

The Member’s Counsel submitted that the Member is before the Panel to take responsibility for her actions. College Counsel and the Member’s Counsel worked closely to negotiate the proposed Joint Submission on Order. The Joint Submission on Order is from both parties and the Member’s Counsel echoed that the proposed penalty is sufficient to address the misconduct in this case. The Member’s Counsel submitted that the proposed penalty does not bring the administration of justice into disrepute and should be accepted by the Panel.

The mitigating factors were:

• The Member has no prior discipline history with the College with over 20 years of practice with the College;

• By entering into the Agreed Statement of Facts and Joint Submission on Order the Member has saved the witnesses from the inconvenience of testifying as well as saving the College the time and expense of proceeding with a fully contested hearing;

• There is no suggestion in this case that the care that the Member provided was inappropriate or below the standard or involved with [the Patient]’s death;

• There has been no criminal charges laid against the Member;

• The Member has lost her employment as a result of her misconduct;

• The Member has accepted previous restrictions on her ability to practice which had been imposed by an interim order;

• The Member has cooperated with the investigation;

• The Member has conducted herself in a professional manner throughout;

• The Member has proactively completed remedial activities to address the misconduct.

The Member’s Counsel reviewed with the Panel the following cases:

Bradley v. Ontario College of Teachers (Divisional Court, 2021): This is a recent decision from March 2021. The Member’s Counsel submitted that the R. v. Anthony-Cook decision which is a criminal decision, was applied within the regulatory context by the Divisional Court. In the Bradley case the parties presented an Agreed Statement of Facts and a Joint Submission Order on Penalty. The joint penalty included a proposed two-month suspension which was to commence immediately after the hearing during the two months of the summer. The panel expressed concern over the proposal and the suspension taking place over the summer and rejecting it and instead directed the suspension to commence in September. The decision was appealed to the Divisional Court and it found that the Discipline Committee made an error in the application of the principles from R. v. Anthony-Cook test. The Divisional Court applied the legal test from R. v. Anthony-Cook as the applicable authority and indicated that they did not see any basis for the panel’s finding the case to be so unhinged from circumstances of the offence to warrant rejection of the Joint Submission on Order.

The Member’s Counsel submitted that a joint submission might not necessarily be the precise order the Panel would have proposed but rather it needs to be defensible in law. The purpose of the high threshold test seeks to encourage resolution by providing both sides with a reasonable degree of confidence to be able to negotiate a resolution that will be accepted. Joint resolutions benefit all parties involved as well as the regulatory system at large. Second guessing the joint submissions of the parties would detract from the benefit of reaching a compromise to the satisfaction of both parties. The Member’s Counsel submitted to the Panel that the parties before them have carefully crafted a proposed order through negotiation and consideration of appropriate case law. The adversarial nature of the process also helps to ensure that the negotiation and resolution does not unduly favor one party over the other and adverse parties will consider the strengths and weaknesses of their own position fully in coming to a joint submission.

CNO v. Sopha (Discipline Committee, 2020): The Member’s Counsel submitted that the Member’s conduct was most comparable to this case. The member was a Registered Nurse, a care coordinator and provided a service plan in the community to home care patients. He provided home care to a 90-year-old female patient and developed a personal relationship while the therapeutic nurse relationship was ongoing. The member provided the patient care and ran errands for her outside of his professional capacity. The member purchased the patient’s home and assets i.e. a car, TV etc. The patient appointed the member as her Power of Attorney for her personal care, property and financial affairs. The patient named the member in her last will and testament as an alternative trustee and beneficiary of 95% of her estate. The member was terminated from his employment. The member entered into a Joint Submission on Order with the College and the penalty included an 8-month suspension of the member’s certificate of registration, an oral reprimand, a minimum of 2 meetings with a Regulatory Expert and employer notification for 18 months.

CNO v. Trzop (Discipline Committee, 2018): The member in this case was a Registered Practical Nurse at a home care facility. The patient in this situation was in her late nineties. The member provided almost daily palliative care. Throughout her care the member developed a personal relationship with the patient’s family. She developed a personal and sexual relationship with the patient’s grandson who lived with the patient at the time. The member became pregnant and moved in with the patient’s family. The member offered to obtained pain medication for the patient’s daughter. Text messages were exchanged between the patient’s grandson to the effect of the member giving the patient’s daughter medication that was a controlled substance. These medications were not prescribed to the patient’ daughter. The member was also engaged in a financial relationship with the patient’s daughter. The penalty included a 12-month suspension, an oral reprimand and terms, conditions and limitations on the member’s certificate of registration including two meetings with a Nursing Expert, 12 months of employer notification and legal costs of the College in the amount of $1,500.00.

CNO v. O'Connell (Discipline Committee, 2019): The member in this case was a Registered Nurse who worked full-time as an outreach nurse on a psychiatric outreach team. As part of her role, the member identified persons at risk in the community, linked them to services and provided short-term counselling. The client at issue was 21 years of age at the time and suffered from substance abuse disorder. He was a resident of a supportive housing program for transitional youth, and he was required to meet with an outreach nurse as a condition of his housing plan. The client had a history of relapses and was a high risk for relapse while in the member’s care. The member had extensive communication with the client outside of the therapeutic relationship, there was evidence of exchanges amounting to 1100 text messages and speaking on the phone for over 25 hours. The content of the text messages was formal and friendly and were not always directly related to the client's care. The member also made multiple personal disclosures to the client. The client at the time made comments of a sexual nature but the member deflected it and did not reciprocate. The member did not document any interactions, the relationship or when the client would make these comments. The member was terminated from her employment. The penalty included a 5-month suspension, an oral reprimand and terms, conditions and limitations on the member’s certificate of registration including two meetings with a Regulatory Expert and an employer notification period of 12 months.

The Member’s Counsel submitted that there were similarities in the O'Connell case. It involved a personal relationship during an on going therapeutic nurse-patient relationship. The patient had a history of drug misuse and the member acknowledged that she failed to maintain a therapeutic boundary. The Member’s Counsel submitted that there are a few distinguishing factors as no two cases are alike. The patient in the O’Connell case was very young and the member had met with the client in the course of her professional duties rather than an ongoing personal relationship. There was evidence of extensive communication between both parties.

CNO v. Tugade (Discipline Committee, 2018): This decision involved a Registered Practical Nurse employed in a clinic that provided outpatient support for clients suffering from Substance Use Disorders.

The Member’s Counsel submitted that this case is similar to the prior case in that the client was receiving services and had suffered from an opioid and alcohol use disorder. In the Agreed Statement of Facts for this case it describes the client as unstable, juvenile and vulnerable. The client claims that she was in a relationship with the member. The member acknowledged a personal relationship though he did deny other allegations. The member acknowledges socializing with the client outside the clinic but adamantly denies purchasing or providing cocaine to the client. The member admits to having affection for her. The member did not inform the clinic of the nature of his relationship with the client. He arranged for a hotel to assist the client with her living arrangements, he provided her with a cellphone and credit cards, they communicated by phone, and he allowed her to access areas of the clinic where secure medications were held. The member acknowledged that his behaviour was one of professional misconduct.

The Member’s Counsel submitted that there was also an element of a privacy violation in this case, with respect to a separate client. The member sent an email from his personal email which included the client’s name and her mother’s name and some background information of the client and her history. The client in this case was an adolescent and these emails were considered a breach of health information. In that decision, the penalty included a 5-month suspension, an oral reprimand and terms, conditions and limitations on the member’s certificate of registration including two meetings with a Nursing Expert and 18 months of employer notification. A key distinction of the member in this case was that he met the client during his nursing duties and provided outpatient support to vulnerable clients. The member admitted to his professional misconduct by agreeing to the proposed order and the panel took into consideration a number of mitigating factors which are relevant in the case before this Panel. The member had participated in the process and negotiated in good faith an Agreed Statement of Facts. The member avoided a lengthy contested hearing and had also taken accountability and responsibility for his actions.

CNO v. Leclair (Discipline Committee, 2011 &2012) and CNO v. Kravitz (Discipline Committee, 2010): These cases resulted in three-month suspensions and included a personal and financial relationship with patients. The member in the Leclair case was a Registered Practical Nurse in a retirement facility. The client was an elderly resident, who suffered from Chronic Obstructive Pulmonary Disease and he was required to wear supplemental oxygen. The member and the client were neighbours prior to him being admitted into the facility, they developed a friendship which continued when he became a resident of the facility, the client would go for coffee with the member and they would attend each other’s house for holidays such as barbeques. The client provided the member and her family with various gifts throughout their relationship including new bicycles for children, lawn furniture, cheques in monetary amounts ranging from $200.00 to $1,000.00 and an automobile. Following his death, the client’s daughter filed a complaint with the College. She discovered returned cheques for the car and for large sums of money. The member was terminated from her employment due to the personal relationship with the client. This case involves a personal relationship with a patient and a pre-existing relationship to the ongoing therapeutic nurse-client relationship. The member also received a financial benefit from the personal relationship with the client.

In the Kravitz decision, the member was a self-employed Registered Nurse. She and her husband owned a business and represented themselves as cognitive rehabilitative specialists. The client was an adult female who suffered from various health conditions as a result of a motor vehicle accident. The member assisted the client with her insurance and disability claims. The member received authorization from the insurance company of the patient to conduct the limited assessment of her and to provide her with a report. Shortly thereafter the insurance company recognized the member as the client’s case manager. The client believed the member was assisting her and was acting in her capacity as a nurse. One of the initial reasons why the client contacted the member was because she knew the member was a nurse. The member was compensated by the insurance company for her service and received over $25,000.00 from it. The member also received payment of $38,000.00 from the client herself for the services provided. There was also a personal relationship that was ongoing. The client spent a great deal of time in the member’s home, she slept in the member’s home for an average of 1-2 nights per week and the client had a key to the member’s home. The member had also borrowed $7,000.00 from the client throughout the relationship.

The Member’s Counsel submitted to the Panel that the Member has agreed to a significant penalty as set out in the proposed order which includes the 10-month suspension followed by an 18-month restriction on independent practice and an 18-month period of employer notification. Under the proposed penalty order the Member must also receive an oral reprimand and attend a minimum of 2 meetings with a Regulatory Expert. The oral reprimand, suspension and lengthy restrictions on her practice will serve as specific deterrence for herself as well as general deterrence to the profession at large. The meetings with the Regulatory Expert as set out in the proposed order have remedial and deterrent value. As part of the expert meetings the Member will be required to review practice standards and materials specific to personal health information practices, this will supplement her ongoing remedial work. Finally, the Member’s Counsel submitted that the proposed penalty is within a reasonable range as set out in the cases reviewed.

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 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 10 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 from the date that this Order becomes final. To comply, the Member is required to ensure that:

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

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

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

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

1. Professional Standards,

2. Therapeutic Nurse-Client Relationship,

3. Nurse Practitioner,

4. Confidentiality and Privacy: Personal Health Information, and

5. Code of Conduct;

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:

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 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;

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 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,

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.

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

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

Reasons for Penalty Decision

It was clear to the Panel that the Member lacked insight into her breach of professional nurse-client boundaries. It is the hope of this Panel that the Member gains insight into her actions and how her conduct has the potential to have detrimental effects on her patients. The proposed penalty provides general deterrence through the lengthy suspension, employer notification and restriction on independent practice. The proposed penalty provides for specific deterrence through the 10-month suspension, oral reprimand and restrictions of independent practice. The proposed penalty provides for remediation and rehabilitation through a minimum of two meetings with a Regulatory Expert. During this time the Member will have an opportunity to review the standards of practice and reflect on her professional misconduct.

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 public should be reassured that this Panel recognizes the importance of the therapeutic nurse-client relationship and breaches of such results in substandard care. It is the hope of this Panel that the ordered penalty allows the Member the opportunity of rehabilitation and deters other members of the profession from committing similar misconduct.

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

I, Dawn, Cutler, 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.