College of Nurses of Ontario v. Jacqueline E. Carter, 2021 ONCNO 39065

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Carly Gilchrist, RPN Chairperson Karen Goldenberg Public Member Terry Holland, RPN Member Jane Mathews, RN Member Ian McKinnon Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO GLYNNIS HAWE for College of Nurses of Ontario

• and -

JACQUELINE E. CARTER Registration No.: 0518068 NO REPRESENTATION for Jacqueline E. Carter CHRISTOPHER WIRTH Independent Legal Counsel

Heard: January 18, 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 January 18, 2021, via videoconference.

The Allegations

The allegations against Jacqueline E. Carter (the “Member”) as stated in the Notice of Hearing dated October 14, 2020, are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for practice assessment and/or failed to complete all practice assessment requirements in or around 2013, 2014 and/or 2016.

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that you failed to participate after being selected by the Quality Assurance Committee for practice assessment and/or failed to complete all practice assessment requirements in or around 2013, 2014 and/or 2016.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1 and 2 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 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. Jacqueline E Carter (the “Member”) obtained a certificate in nursing from Conestoga College in 2000.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on March 21, 2001. The Member resigned her RPN certificate of registration on December 31, 2002. The Member registered with CNO as a Registered Nurse (“RN”) on October 11, 2005.

3. The Member is employed as a RN at Manitoulin Health Centre – Little Current.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

4. The Member failed to cooperate with the Quality Assurance (“QA”) Committee in that she did not participate and did not complete all of the Practice Assessment requirements as directed by the QA Committee in 2013 to 2014 and in 2016.

2013-2014

5. The Member was first selected to participate in a Practice Assessment as part of CNO’s QA Program in 2013. In a letter dated March 18, 2013, the Member was informed of her selection and her mandatory participation by the deadline of April 27, 2013.

6. The Practice Assessment consisted of having the Member’s Learning Plan assessed and completing multiple-choice objective tests; both components were to be completed online. The Member did not complete these activities.

7. On July 5, 2013, the QA Committee wrote to the Member and stated that its records showed that she did not complete the activities in the Practice Assessment. As a result, the QA Committee directed the Member to complete the following activities:

• Submit a reflection to demonstrate her commitment to continuing competence by August 2, 2013;

• Submit a paper copy of her 2013 Learning Plan by August 2, 2013; and

• Complete all components of Practice Assessment in 2014.

8. The Member completed the reflection and the 2013 Learning Plan, as required.

9. The Member was informed of the components of the 2014 Practice Assessment she was required to complete in a letter dated March 24, 2014. In particular, she was to complete and submit her current 2014 Learning Plan and complete objective multiple-choice tests online by April 25, 2014. The Member did not complete these activities.

10. On May 23, 2014, the QA Committee wrote to the Member and informed her of its decision to refer her to the Inquiries Complaints and Reports Committee (“ICRC”) for lack of participation in the 2014 Practice Assessment. The Member was provided with the opportunity to make a written submission to the QA Committee regarding this decision within 14 days. The Member did not respond to this letter or make a written submission.

11. A panel of the ICRC met on May 14, 2015 and decided that an investigation into the Member’s failure to complete the 2014 Practice Assessment was not warranted at that time. The Member was informed of this decision in a letter dated August 18, 2015.

2016

12. In a letter dated December 22, 2015, the QA Committee informed the Member that she was directed to participate in the 2016 Practice Assessment and that further details would be sent to her in February 2016. The QA Committee explained this decision was made after considering the Member’s history with the QA Program, including not fulfilling Practice Assessment obligations to date.

13. On February 2, 2016, the QA Committee wrote to the Member regarding the 2016 Practice Assessment activities she was required to complete by March 7, 2016. In particular, the QA Committee told the Member that she must submit her 2016 Learning Plan and take objective multiple-choice tests online. The QA Committee’s letter also included a website where the Member could access the Practice Assessment Guide and other QA resources.

14. The QA Committee sent the Member a further letter, dated February 9, 2016, regarding technical difficulties the online application had experienced, but reiterating the requirements to complete her Learning Plan and the objective tests and the deadline of March 7, 2016.

15. The Member submitted her 2016 Learning Plan, but she did not complete the objective multiple-choice tests.

16. Accordingly, on March 30, 2016, the QA Committee informed the Member of its decision to refer her to the ICRC for lack of participation in the QA Program. In its letter, the QA Committee outlined the Member’s history regarding her prior participation in the QA process, and cited this history, as well as her failure to complete all of the 2016 Practice Assessment requirements, as the basis for disclosing the Member’s name to the ICRC. The Member was provided 14 days to make a written submission to the QA Committee regarding the decision to disclose her name to the ICRC.

17. The Member provided a response on April 13, 2016, in which she stated her failure to complete the objective tests was an oversight and that upon receipt of the letter she attempted to complete the tests, but they were no longer available. The Member apologized for not completing the entirety of the Practice Assessment and stated it was not intentional.

18. The QA Committee sent the Member a letter dated April 28, 2016, advising that the QA Committee reviewed her response and made the decision to refer her to the ICRC.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

19. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that she failed to participate after being selected by the QA Committee for practice assessment and failed to complete all practice assessment requirements in or around 2013, 2014 and 2016, as described in paragraphs 4 to 18 above.

20. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, and in particular her conduct was unprofessional, as described in paragraphs 4 to 18 above.

College Counsel’s Submissions

College Counsel submitted that the Panel should accept the Agreed Statement of Facts and that it should make findings of professional misconduct against the Member as alleged in paragraphs 1 and 2 of the Notice of Hearing. With respect to allegation #2, College Counsel submitted that the Member’s conduct was clearly relevant to the practice of nursing and that the College was seeking a finding that the Member’s conduct was unprofessional.

Member’s Submissions

The Member submitted that she agreed with the facts set out in the Agreed Statement of Facts and admitted to the allegations and she realizes the importance of the College’s Quality Assurance Program and will ensure she will comply with the requirements in the future. The Member stated that her practice at work does not reflect poorly and provided peer feedback in that regard in the form of letters from some of her colleagues.

College Counsel’s Reply

College Counsel had no objection to entering the Member’s letters from colleagues into evidence but reiterated that the peer feedback was reflective of the Member as a co-worker and was not relevant to the allegations nor did it change the Member’s professional accountabilities to meet her statutory and professional obligations that arise from College by-laws and standards.

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 and 2 of the Notice of Hearing. As to allegation #2, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be unprofessional.

Reasons for Decision

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

Allegation #1 in the Notice of Hearing is supported by paragraphs 4-18 and 19 in the Agreed Statement of Facts. The Member clearly failed to participate in the practice assessment process, as directed by the Quality Assurance Committee in 2013, 2014 and 2016.

Allegation #2 in the Notice of Hearing is supported by paragraphs 4-18 and 20 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in failing to fulfill her Quality Assurance responsibilities was conduct relevant to the practice of nursing and was conduct that would reasonably be considered by members of the profession to be unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

Penalty

College Counsel and the Member 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 2 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

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

a) The Member will attend 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:

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, and

2. Code of Conduct;

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

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

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 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) The Member shall participate in CNO’s next available Quality Assurance program cycle, within 24 months from the date this Order becomes final.

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

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

• The Member received numerous communications from the College and was offered multiple opportunities to comply with her obligations;

• The Quality Assurance requirements are a statutory obligation, set out in the College Standards and By-laws;

• This was repeated behaviour over the course of three years.

The mitigating factors in this case were:

• The Member has accepted responsibility and accountability;

• The Member has expressed regret;

• The Member has participated willingly with the College;

• The Member has agreed to the Agreed Statement of Facts and the Joint Submission on Order.

The proposed penalty provides for specific deterrence through a reprimand and a 2-month suspension.

The proposed penalty provides for general deterrence through the suspension. The penalty sends a clear message to members of this College that this conduct will not be tolerated. College Counsel stated that the College has seen an increase in Quality Assurance issues and takes these matters very seriously.

While in the past suspensions for this conduct have normally been one month, given the number of these type of cases still being referred to the Discipline Committee, the College was now seeking longer suspensions of two months to address general deterrence.

The proposed penalty provides for remediation and rehabilitation through the 2 meetings with the Regulatory expert, with related terms, conditions and limitations, and the requirement that the Member participate in the next Quality Assurance program cycle.

Overall, the public is protected because the penalty reminds nurses that continuing competence is a fundamental requirement of the profession. Participation in the Quality Assurance program helps nurses practice reflection, goal setting and develop learning plans. These processes support nurses’ performance and the ability to provide quality care.

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

CNO v. Castor (Discipline Committee, 2017). This case involved a member who failed to complete practice assessments. The member was given a reprimand, a one-month suspension and similar terms, conditions and limitations.

CNO v. Keating (Discipline Committee, 2020) is a case with similar allegations. This member failed to participate in the Quality Assurance program in one year and admitted to unprofessional and dishonourable conduct. The penalty in this case was a reprimand, 2-month suspension, meetings with an expert, and similar terms, conditions and limitations; furthermore, the member was also ordered to participate in the next Quality Assurance program cycle.

CNO v. Rubinas (Discipline Committee, 2020) involves similar allegations to the Member’s case. The member failed to participate in one Quality Assurance cycle, as required. The order was identical to the current case in that this member was given a reprimand, 2-month suspension, 2 meetings with a Regulatory Expert with similar terms, conditions and limitations and the requirement to complete the next Quality Assurance program cycle within 24 months.

CNO v. Davis (Discipline Committee, 2020). The allegations against the member were similar as with the Member’s case. The penalty ordered was the same as what is being sought here.

The Member agreed with the submissions of College Counsel and also submitted that she accepts that she did not do what was required of her and that the Joint Submission on Order was fair. The Member expressed remorse and further stated that she has taken the events very seriously.

Penalty Decision

The Panel accepted the Joint Submission on Order and initially ordered:

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 2 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

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

a) The Member will attend 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:

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, and

2. Code of Conduct;

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

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

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 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) The Member shall participate in CNO’s next available Quality Assurance program cycle, within 24 months from the date this Order becomes final.

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

However, subsequent to the hearing, the Panel received a communication from College Counsel advising that the Member and the Member’s employer were seeking that the start of her suspension be delayed until January 3, 2022 as she works at the Manitoulin Island Health Centre and was the only infection control and occupational health nurse for its two locations. Given the circumstances of the ongoing COVID-19 pandemic, the rising cases in Northern Ontario, and the nature of the findings against the Member, the College was consenting to the Member’s request.

Accordingly, the Panel decided to exercise its discretion to vary its penalty order to provide that the suspension of the Member’s certificate of registration for two months shall commence on January 3, 2022.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specific deterrence is met through the oral reprimand and suspension. General deterrence for the profession is met through the suspension. Members of this profession will see that the College takes such conduct very seriously and members are required to comply with the requirements of the Quality Assurance program.

Rehabilitation and remediation are met through the meetings with the nursing Expert and the requirement for the Member to complete the next Quality Assurance program cycle. Public protection is met when nurses are committed to continuing competence and when they comply with their professional accountabilities for quality assurance. Requiring the Member to complete the next Quality Assurance program cycle will ensure the public that the Member has reflected on her conduct and learned from her experience.

With respect to varying the start date of the Member’s suspension to January 3, 2022, the Panel took notice of the current COVID-19 pandemic and the strains which it has placed on Ontario’s health care system and as the College consented to the Member’s request, the Panel was satisfied that it was appropriate and in the public interest to defer the commencement of the Member’s suspension until January 3, 2022.

I, Carly Gilchrist, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.