College of Nurses of Ontario v. Marianne Lucier-Harkai, 2022 CanLII 125440

minicounsel

PANEL:

Susan Roger, RN Chairperson

Ramona Dunn, RN Member Carly Gilchrist, RPN Member Marnie MacDougall Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for

) College of Nurses of Ontario

and - )

MARIANNE LUCIER-HARKAI ) NO REPRESENTATION for

Registration No. 9527680 ) Marianne Lucier-Harkai

) PATRICIA HARPER

) Independent Legal Counsel

) Heard: March 23, 2022

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 March 23, 2022, via videoconference.

Publication Ban

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

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

The Allegations

College Counsel identified a typographical error in paragraph 3 of the Notice of Hearing. On consent of the parties, the Panel amended the Notice of Hearing to correct this error. Accordingly, the allegations against Marianne Lucier-Harkai (the “Member”) as stated in the Notice of Hearing dated February 18, 2022, as amended, are as follows:

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(b) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that, while registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”), the governing body of another health profession in Ontario, or the governing body of a health profession in a jurisdiction other than Ontario, found that you committed an act of professional misconduct that would, in the opinion of the panel, be an act of professional misconduct under this section or an act of professional misconduct as defined in the regulations, with respect to findings of professional misconduct made in the Consent Order and Stipulation issued by the Board of Nursing Disciplinary Subcommittee, Bureau of Health Professions, Department of Community Health, State of Michigan, on or about October 10, 2008.
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while registered with CNO as a RN, and/or as employed in that capacity at St. Elizabeth Health Care in Windsor, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to the following incidents:

(a) in or about October 2008 and thereafter, you failed to provide CNO with details regarding findings of professional misconduct made in the Consent Order and Stipulation issued by the Board of Nursing Disciplinary Subcommittee, Bureau of Health Professions, Department of Community Health, State of Michigan, on or about October 10, 2008;

(b) on or about May 16, 2018, you administered 4mg of Haldol in a four-hour period to [Patient A] and/or you assisted [Patient A]’s spouse to do so, when only 1-2mg of Haldol had been authorized; and/or

(c) on or about October 5, 2018, you prepared prefilled syringes containing 7.5mg of Morphine when only 5mg of Morphine had been authorized, and/or you documented inaccurately that prefilled syringes containing 5mg of Morphine had been prepared.

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(18) of Ontario Regulation 799/93, in that, while registered with CNO as a RN, you contravened a term, condition or limitation on your certificate of registration pursuant to Ontario Regulation 275/94, section 5(3) (now Ontario Regulation 275/94, section 1.5(1)), in or about October 2008 and thereafter, with respect to failing to provide CNO with details regarding the findings of professional misconduct made in the Consent Order and Stipulation issued by the Board of Nursing Disciplinary Subcommittee, Bureau of Health Professions, Department of Community Health, State of Michigan, on or about October 10, 2008.
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 (“Act”), as amended, and defined in subsection 1(19) of Ontario Regulation 799/93, in that, while registered with CNO as a RN, you contravened a provision of the Act, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or the regulations under either of those Acts, and in particular, Ontario Regulation 275/94, section 5(3) (now Ontario Regulation 275/94, section 1.5(1)), in or about October 2008 and thereafter, with respect to failing to provide CNO with details regarding the findings of professional misconduct made in the Consent Order and Stipulation issued by the Board of Nursing Disciplinary Subcommittee, Bureau of Health Professions, Department of Community Health, State of Michigan, on or about October 10, 2008.
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while registered with CNO as a RN, and/or as employed in that capacity at the Facility, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to the following incidents:

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2(a), 2(b), 2(c), 3, 4, 5(a), 5(b) and 5(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 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

Marianne Lucier-Harkai (the “Member”) obtained a diploma in nursing from St. Clair College of Applied Arts and Technology in 1995.
The Member registered with the College of Nurses of Ontario (the “CNO”) as a Registered Nurse (“RN”) on August 2, 1995.
Since her initial registration with CNO in 1995 through to the present, the Member has remained registered as an RN with CNO, with one interruption in March – April 2010, when she was suspended for non-payment of fees.
The Member is currently entitled to practice nursing in Ontario without restrictions.
In and around 2007 and 2008, the Member was also licensed to practice as a registered nurse in the State of Michigan.

PRIOR HISTORY

The Member has no prior disciplinary findings with CNO.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Findings of Professional Misconduct in Another Jurisdiction

The Board of Nursing, Bureau of Health Professions, Department of Community Health, State of Michigan (the “Board”) is an administrative agency established by the Public Health Code, 1978 PA 368, as amended (the Public Health Code).
The Board’s Disciplinary Subcommittee is empowered to discipline licensees for violations of the Public Health Code.
The Michigan Department of Community Health filed a complaint against the Member dated March 6, 2008.
The complaint related to the Member’s conduct while employed as an RN at Beaumont Grosse Point Hospital in Grosse Pointe, Michigan. In particular, the complaint concerned the Member’s involvement in approximately 20 separate instances of withdrawal of Dilaudid and Demerol from Grosse Point Hospital’s automated medication dispensing system between January and July 2007, including doses not ordered for or administered to patients, and her failure to document wastage and/or administration of the narcotics in question.
In October 2008, the Member was found guilty of professional misconduct by the Board’s Disciplinary Subcommittee, with the findings characterized as violations of sections of the Public Health Code.
In accordance with the terms of the Consent Order and Stipulation issued by the Board’s Disciplinary Subcommittee on or about October 10, 2008, the Member neither admitted nor denied the allegations raised in the complaint but agreed that the Disciplinary Subcommittee should treat the allegations as true, which finding would have the same force and effect as if evidence and argument were presented in support of the allegations.
The Member signed and expressly agreed to the terms of the Consent Order and Stipulation on October 3, 2008.
The Consent Order and Stipulation required, amongst other things, that the Member enter into a Monitoring Agreement to undergo an assessment for substance abuse/chemical dependency and to commit to treatment, if required. However, it was also noted in the Consent Order and Stipulation that the Member had undergone a substance abuse evaluation and that the resulting report indicated that the Member did not have any “personality indicators of substance dependency or abuse.”
In and around October 2008, O. Reg. 275/94 section 5(3), under the Nursing Act, 1991, provided that it was a condition of a certificate of registration that a member was required, amongst other things, to report any finding of professional misconduct in another jurisdiction that occurred after the member’s initial registration with CNO. The same requirement is currently set out in O. Reg. 275/94, section 1.5(1), as amended.
It was a condition of the Member’s certificate of registration to report to CNO the details of the Consent Order and Stipulation setting out findings of professional misconduct by the Board’s Disciplinary Subcommittee.
The Member did not report the findings of the Board’s Disciplinary Subcommittee in October 2008, or at any time thereafter, during her registration with CNO.
If the Member were to testify, she would say that she had thought that the United States and Canada operated as separate jurisdictions. The Member would further state that she did not appreciate that she had an obligation to report the findings of the Board’s Disciplinary Subcommittee in October 2008 and only became aware of this requirement in the course of CNO’s investigation in and around 2018. The Member takes accountability for, and regrets, her failure to report the findings of professional misconduct made in the State of Michigan to CNO. The Member would testify that she understands that it was her responsibility to familiarize herself with her professional obligations and that she will ensure that she acts in accordance with those obligations going forward.

Unauthorized Medication Administration and Medication Errors

The Member was employed by St. Elizabeth Health Care in Windsor, Ontario (the “Facility”) as a full-time RN, providing community care between March 12, 2012 and October 16, 2018, at which time the Facility terminated the Member’s employment.
The Hospice of Windsor is a care partner of the Facility, operating within the Ontario Local Health Integration Network.

a) May 16, 2018

The Member worked on May 15 - 16, 2018 and visited [Patient A] at his home to provide palliative care.
[Patient A] was diagnosed with pleural effusion secondary to metastatic parotid carcinoma and type 2 diabetes. He was 73 years old at the time of the incident.
[Patient A] had an order for Haldol 1mg “PO TID PRN” (by mouth, 3 times/day, as needed) for agitation.
Shortly after a 1mg dose of Haldol had been administered at midnight, the Member contacted [Colleague A], the on-call Nurse Educator whom staff are expected to consult for changes to orders, and requested authorization for a stronger dose of the medication.
[Colleague A] called the physician and obtained new orders for Haldol “1 – 2 mg PO q4 h PRN” (1 – 2 mg, by mouth, every 4 hours, as needed) for agitation/delirium. [Colleague A] provided the Member with the revised order by telephone.
The Member indicated to [Colleague A] that she did not think the new order was adequate and proposed a loading dose of 5 mg, and if not that, then 4mg.
[Colleague A] advised the Member against doing so as it would be contrary to the physician’s order.
Despite the direction from the Nurse Educator, the Member proceeded to administer a second dose of Haldol to [Patient A] within a four-hour period, with the total amounting to 4 mg.
If the Member were to testify, she would state that she did not recall administering 4 mg at one time and believes that she may have initially given [Patient A] 2mg and then another dose of 2mg within two hours.
The Member acknowledges that she administered a dose of Haldol in excess of what had been authorized by the order in place for [Patient A].

b) October 5, 2018

The Member was providing palliative care to [Patient B], in her home, on October 5, 2018.
On the same date, [Patient B]’s physician authorized an order for 5 mg doses of morphine at two hour intervals and as needed, for pain.
The Member was responsible for prefilling eight syringes with the ordered doses of morphine, so that the medication could be administered by family members of [Patient B].
The Member prefilled eight syringes with 7.5 mg of morphine instead of the 5 mg of morphine that had been authorized.
The Member erroneously documented the eight syringes as 5 mg doses.
If the Member were to testify, she would state that she had expected vials of morphine 10 mg/ml, as that had been what the pharmacy typically provided in her experience. The Member received vials of 15 mg/ml instead. The Member acknowledges that she rushed to prepare the prefilled syringes and failed to double check for any changes to the existing order.
Family members of [Patient B] used the pre-filled syringes to administer morphine to the patient in excess of what had been ordered.
[Patient B] passed away shortly after the incident. It was not clinically evident that her death was related to the morphine overdose. However, family members were left questioning if [Patient B]’s death was hastened by the event. The family subsequently contacted the Local Health Integration Network to report the overdose of medication.
If the Member were to testify, she would state that she did not intend to cause [Patient B] or her family any harm. The Member would further state that she is remorseful and regrets the mistake she made in preparing the eight syringes with the incorrect dose of morphine and documenting the concentration inaccurately in [Patient B]’s medical record.

CNO STANDARDS

CNO’s Professional Standards provides that each nurse is 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. A nurse demonstrates accountability by actions such as:

a. Providing, facilitating, advocating and promoting the best possible care for [patients];

b. Assessing/describing the [patient] situation using a theory, framework or evidence-based tool and identifying/recognizing abnormal or unexpected client responses and taking action appropriately;

c. Ensuring practice is consistent with CNO’s standards of practice and guidelines as well as legislation;

d. Seeking assistance appropriately and in a timely manner;

e. Taking action in situations in which [patient] safety and well-being are compromised;

f. Evaluating/describing the outcomes of specific interventions and modifying the plan/approach; and

g. Taking responsibility for errors when they occur and taking appropriate action to maintain [patient] safety.

In addition, CNO’s Professional Standards provides that each nurse continually improves the application of professional knowledge and demonstrates knowledge application by actions such as identifying and addressing practice-related issues.
CNO’s Medication standard provides that administering, recommending and/or prescribing medication requires knowledge, technical skills and judgment. With respect to competence, nurses need the competence to assess the appropriateness of medication for a patient, manage adverse reactions, understand issues related to consent and make ethical decisions about medications.
The Medication standard also provides that safe medication practice includes reporting all errors and near misses using formal practice-setting communication mechanisms.
The Medication standard further provides that a nurse meets the standard by:

a. Assessing her or his own knowledge, skill and judgment to competently carry out medication administration, use medication equipment and intervene during an adverse reaction;

b. Preparing and administering the medication according to an evidence-based rationale, including:

i. Scheduling dosing times for a medication, taking into consideration the effect of food intake or medication absorption, contraindications, required interventions before, during and after administration, and [patient] choice and preference;

ii. Applying principles of infection prevention and control when administering medication; and

iii. Verifying the 8 rights of medication administration; and

c. Documenting, during and/or after medication administration, in the [patient’s] record according to documentation standards.

CNO’s Documentation standard provides that nurses are accountable for ensuring their documentation of patient care is accurate, timely and complete. The standard further clarifies that a nurse meets the standard by:

a. Ensuring documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessment, planning, intervention (independent and collaborative) and evaluation;

b. Documenting in a timely manner and completing documentation during, or as soon as possible after, the care or event; and

c. Ensuring that relevant [patient] care information is captured in a permanent record.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1, 2 (a) to (c), 3, 4, and 5 (a) to (c) of the Notice of Hearing, as further particularized below.
The Member admits that while registered with CNO as an RN, the Board of Nursing Disciplinary Subcommittee, Bureau of Health Professions, Department of Community Health, State of Michigan, found that she had committed an act of professional misconduct that would, in the opinion of the panel, be an act of professional misconduct under subsection 51(1)(b) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32 (the “Act”), as amended. Accordingly, the Member admits that she committed the act of professional misconduct as alleged in paragraph 1 of the Notice of Hearing, as described in paragraphs 2 – 5 and 7 - 18 above.
The Member admits that she breached a condition of her certificate of registration as an RN with CNO, when she failed to provide CNO with details regarding findings of professional misconduct made in the Consent Order and Stipulation. The Member further admits that she breached the Professional Standards, Medication Standard and Documentation Standard, when she administered medication in excess of what had been authorized, and/or assisted the Patient’s spouse to do so; and prepared prefilled syringes with Morphine at a concentration higher than authorized and inaccurately documented the concentration in the Patient’s chart. Accordingly, the Member admits that while registered with CNO as an RN, she committed the acts of professional misconduct as alleged in paragraphs 2 (a), (b) and (c) of the Notice of Hearing, and in particular 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 2 – 5 and 7 – 45 above.
The Member admits that she contravened a term, condition or limitation on her certificate of registration with CNO, with respect to failing to provide details regarding the findings of professional misconduct made in the Consent Order and Stipulation. Accordingly, the Member admits that she committed the act of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, in that, while registered with CNO as an RN, she contravened a term, condition or limitation on her certificate of registration as described in paragraphs 2 – 5 and 7 - 18 above.
The Member admits that she contravened a provision of the Act, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or the regulations under either of those Acts, and in particular, Ontario Regulation 275/94, section 5(3) (now Ontario Regulation 275/94, section 1.5(1)), in or about October 2008 and thereafter, with respect to failing to provide CNO with details regarding the findings of professional misconduct made in the Consent Order and Stipulation, as described in paragraphs 2 – 5 and 7 - 18 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 5 of the Notice of Hearing, in that, while registered as an RN with CNO, she 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 dishonourable and unprofessional described in paragraphs 2 – 5 and 7 - 45 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, 2(a), 2(b), 2(c), 3, 4, 5(a), 5(b) and 5(c) of the Notice of Hearing. As to allegations #5(a), 5(b) and 5(c), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

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

Allegation #1 in the Notice of Hearing is supported by paragraphs 2-5, 7-18, 46 and 47 in the Agreed Statement of Facts. In and around 2007 and 2008, the Member was also licensed to practice as a Registered Nurse (“RN”) in the State of Michigan. The Michigan Department of Community Health filed a complaint against the Member dated March 6, 2008. The complaint related to the Member’s conduct while employed as an RN at Beaumont Grosse Point Hospital in Grosse Pointe, Michigan. The complaint against the Member involved approximately 20 separate instances of withdrawal of Dilaudid and Demerol from Grosse Pointe Hospital’s automated medication dispensary system between January and July 2007. The withdrawal included dosages that were not ordered for or administered to patients and her failure to document wastage and/or administration of the narcotics in question. In October 2008, the Member was found to have committed an act of professional misconduct by the Board of Nursing Disciplinary Subcommittee, Bureau of Health Professions, Department of Community Health, State of Michigan (the “Board”), with the findings characterized as violations of sections of the Public Health Code. The Panel finds that while registered with the CNO as an RN, the governing body of a health profession in another jurisdiction found that the Member committed an act of professional misconduct that would, in the opinion of the Panel, be an act of professional misconduct under subsection 51(1)(b) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended.

Allegations #2(a), 2(b) and 2(c) in the Notice of Hearing are supported by paragraphs 2-5, 7-46 and 48 in the Agreed Statement of Facts. As to allegation #2(a), in or about October 2008, the Member failed to report to the College the details regarding findings of her professional misconduct made by the Board or any time thereafter during her registration with the College. The College’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring her/his practice and conduct meets the legislative requirements and the standards of the profession.

As to allegation #2(b), the Member provided palliative care to [Patient A], in his home on May 15-16, 2018. [Patient A] had an order for Haldol 1mg by mouth, 3 times a day, as needed for agitation. The Member had concerns about this order. The Member contacted the on-call Nurse Educator, who then contacted the physician and obtained a new order for Haldol 1-2mg by mouth, every 4 hours, as needed for agitation/delirium. The Member indicated that she did not think the new order was adequate and proposed a loading dose of 5mg, and if not that, then 4mg. The Member was advised by the Nurse Educator against the administration of her proposed Haldol dose as it was against a physician’s order. Despite the direction from the Nurse Educator, the Member proceeded to administer a second dose of Haldol to [Patient A] within a four-hour period totalling 4mg. The Member breached the Medication Standard by not assessing her knowledge, skill and judgement to competently carry out medication administration. The Member also failed to meet the Standard by failing to prepare and administer the medication according to evidence-based rationale including verifying the 8 rights of the Medication Standard.

As to allegation #2(c), the Member was providing palliative care to [Patient B], in her home on October 5, 2018. On the same date [Patient B]’s physician authorized an order for 5mg doses of Morphine at two-hour intervals and as needed for pain. The Member was responsible for prefilling eight syringes with the ordered doses so that the medication could be administered by the family. The Member pre-filled eight syringes with 7.5mg of Morphine instead of 5mg which had been authorized. The Member erroneously documented the eight syringes as 5mg doses. If the Member were to testify, she would state that she had expected the vials of Morphine to be 10mg/ml. The Member received vials of 15mg/ml instead. The Member acknowledged that she rushed to prepare the pre-filled syringes and failed to double check for any changes to the existing order. The College’s Professional Standards provides that a nurse demonstrates the standard by taking action in situations in which client safety and well-being are compromised and by taking responsibility for errors when they occur and taking appropriate action to maintain client safety. The Medication Standard provides that a nurse meets this standard by preparing and administering the medication according to an evidence-based rationale, including verifying the 8 rights of medication administration.

Allegation #3 in the Notice of Hearing is supported by paragraphs 2-5, 7-18, 46 and 49 in the Agreed Statement of Facts. The Member had findings of professional misconduct in another jurisdiction after her initial registration with the College; In October 2008, the Member was found to have committed an act of professional misconduct by the Board of Nursing Disciplinary Subcommittee, Bureau of Health Professions, Department of Community Health, State of Michigan, with the findings characterized as violations of sections of the Public Health Code. The Panel finds that while registered with the CNO as an RN, the governing body of a health profession in another jurisdiction found that the Member committed an act of professional misconduct that would, in the opinion of the Panel, be an act of professional misconduct in that the Member failed to and thus contravened a term, condition or limitation on her certificate of registration, as outlined in subsection 51(1)(b) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended.

Allegation #4 in the Notice of Hearing is supported by paragraphs 2-5, 7-18, 46 and 50 in the Agreed Statement of Facts. Based on these facts and the Member’s admission, the Panel finds that she contravened a provision of the Nursing Act, 1991, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or the regulations under those Acts, and in particular, Ontario Regulation 275/94, section 5(3) (now Ontario Regulation 275/94, section 1.5 (1)), in or about October 2008 and thereafter by failing to provide the College with details regarding the findings of professional misconduct made in the Consent Order and Stipulation issued by the Board, on or about October 10, 2008.

With respect to allegations #5(a), 5(b) and 5(c), the Panel finds that the Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. The Member should have recognized her professional responsibility to report any professional misconduct in any jurisdiction, including findings of professional misconduct from the State of Michigan in the United States.

The Panel also finds that the Member’s conduct was dishonourable. The Member chose to not accept a physician’s order and administered a dosage of medication that she felt was adequate and acceptable. The Member should have known that failing to follow a physician’s order on two separate occasions was deceitful and showed an element of moral failing. The Member also failed to follow the College’s Medication Standard, consequently providing a family with the wrong dose of Morphine to be administered to [Patient B]. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Penalty

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

Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 3 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 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 CNO 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 CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

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

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

Code of Conduct,
Professional Standards,
Medication Standard, and
Self-Reporting Form/Reporting Guide;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, 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:

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;

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) For a period of 12 months from the date the Member returns to the practice of nursing the Member will notify her employers of the decision. To comply, the Member is required to:

i. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide her employer(s) with a copy of:

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

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify CNO 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 12 months from the date the Member returns to the practice of nursing.

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

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

The seriousness of the misconduct related to failure to report findings of professional misconduct from another jurisdiction:

o History of 20 separate incidents of withdrawal of Morphine narcotics in a seven-month period including dosages not ordered for or administered to patients, failure to document wastage and administration of the narcotics albeit found 14 years ago;

o The Member’s failure to report the professional misconduct from another jurisdiction to the College which denied it the opportunity to address the Member’s professional practice in Ontario at any time until the present;

The Member knowingly disregarded a revised physician’s order for Haldol, despite a follow-up conversation with the Nurse Educator regarding same;
The Member’s careless actions in preparing the Morphine syringes for a palliative patient;
The Member had a pattern of misconduct dating back to 2008.

The mitigating factors in this case were:

The Member accepted responsibility for her conduct by entering into an Agreed Statement of Facts and a Joint Submission on Order;
The Member has demonstrated rehabilitation potential in her conduct with the Discipline processes.

The purpose of general deterrence is to demonstrate that acts of professional misconduct are taken seriously by Panels of the Discipline Committee and there will be consequences for those that engage in such misconduct. The proposed penalty provides for general deterrence through:

the 3-month suspension of the Member’s certificate of registration.

Specific deterrence dissuades the Member from committing acts of professional misconduct in the future. The proposed penalty provides for specific deterrence through:

the oral reprimand; and
the 3-month suspension of the Member’s certificate of registration.

The purpose of remediation and rehabilitation is a result of the Member’s engagement in the disciplinary process to date and help equip the Member with the tools that they may need to meet the requirements of nursing practice. The proposed penalty provides for remediation and rehabilitation through:

the 2 meetings with a Regulatory Expert.

Overall, the public is protected through:

the 12 months of employer notification; and
the 12 months of no independent practice in the community.

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.

CNO v. Smith (Discipline Committee, 2015): This case involved two findings of professional misconduct against the member in another jurisdiction and failing to report those findings of professional misconduct to the College. This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty included an oral reprimand, a suspension of the members certificate of registration for three months, two meetings with a Nursing Expert, 18 months of employer notification and no independent practice in the community for 12 months.

CNO v. Russon (Discipline Committee, 2018): This case involved two incidents of the member performing a controlled act without a physician’s order or other delegation of authority. The member did not attend the discipline hearing. The penalty included an oral reprimand, a suspension of the members certificate of registration for four months, two meeting with a Regulatory Expert and 24 months of employer notification.

CNO v. Rainville (Discipline Committee, 2019): This case involved two incidents of the member discontinuing a physician’s order. The member did not take steps to communicate with the most responsible physician. The member also failed to document about this incident. This hearing proceeded way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty included an oral reprimand, a suspension of the member’s certificate of registration for 2 months, two meetings with a Regulatory Expert, 12 months of employer notification and no independent practice in the community for 12 months.

College Counsel reminded the Panel that this penalty submission is a Joint Submission on Order. It was negotiated following a pre-hearing involving the College and the Member. There were extensive negotiations. When Joint Submissions are presented to the Panel, the Panel is essentially bound to accept them unless the Panel is of the view that in doing so would bring the administration of justice or the administration of professional regulation into disrepute or is contrary to the public interest.

Member’s Submissions

The Member was given the opportunity to make submissions. The Member agreed with College Counsel’s submissions, specifically commenting that she agreed they reflected prior decisions.

Penalty Decision

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

The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 3 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

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

Code of Conduct,
Professional Standards,
Medication Standard, and
Self-Reporting Form/Reporting Guide;

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

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;

b) For a period of 12 months from the date the Member returns to the practice of nursing the Member will notify her employers of the decision. To comply, the Member is required to:

i. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide her employer(s) with a copy of:

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

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify CNO 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 12 months from the date the Member returns to the practice of nursing.

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

Reasons for Penalty Decision

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

The Panel considered the Member’s actions in failing to report prior findings of professional misconduct serious. The Member chose to ignore a physician’s order by administering a higher prescribed dose of Haldol. Registered Practical Nurses and Registered Nurses do not have the authority to make these types of changes to prescribed medications. The Panel found that the Member’s actions were careless as she failed to follow the Medication Standard ensuring the eight rights to medication administration were completed. The medication she pre-filled in the syringes had the potential to have detrimental effects on the patient.

The oral reprimand and lengthy suspension will strongly discourage future misconduct by the Member and serve as a general deterrent to the membership. The rehabilitation and remediation aspects of the penalty allow the Member the opportunity to gain insight into her misconduct allowing her the ability to learn and strengthen her professional practice in the future. The elements of the penalty that include employer notification and the restriction on independent practice by the Member should reassure the public that protection of the public is paramount.

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.

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

I, Susan Roger, 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.

College of Nurses of Ontario v. Marianne Lucier-Harkai, 2022 CanLII 125440

Case Summary

Publication Ban

The Allegations

Member’s Plea

Agreed Statement of Facts

Decision

Reasons for Decision

Penalty

Penalty Submissions

Member’s Submissions

Penalty Decision

Reasons for Penalty Decision

College of Nurses of Ontario v. Marianne Lucier-Harkai, 2022 CanLII 125440

Case Summary

Publication Ban

The Allegations

Member’s Plea

Agreed Statement of Facts

Decision

Reasons for Decision

Penalty

Penalty Submissions

Member’s Submissions

Penalty Decision

Reasons for Penalty Decision