Discipline Committee of the College of Nurses of Ontario
PANEL: Jane Mathews, RN Chairperson Ramona Dunn, RN Member Marnie MacDougall Public Member Mary MacNeil, RN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for ) College of Nurses of Ontario
- and - )
JOCELYN PASION-SANTOS ) PHILIP ABBINK for Registration No. 0204040 ) Jocelyn Pasion-Santos
) PATRICIA HARPER ) Independent Legal Counsel
) Heard: May 17, 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 May 17, 2022, via videoconference.
The Allegations
The allegations against Jocelyn Pasion-Santos (the “Member”) as stated in the Notice of Hearing dated April 11, 2022 are as follows:
IT IS ALLEGED THAT:
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while working as a Registered Nurse at St. Michael’s Hospital in Toronto, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular, in or around 2014-2016, you submitted false claims under the Facility’s employee group benefit plan (the “Benefit Plan”).
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(8) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Facility, you misappropriated property from a client or workplace, and in particular, in or around 2014-2016, you submitted false claims under the Benefit Plan.
You 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(14) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Facility, you falsified a record relating to your practice, and in particular, in or around 2014-2016, you submitted false claims under the Benefit Plan.
You 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(15) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Facility, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, and in particular in or around 2014-2016, you submitted false claims under the Benefit Plan.
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 working as a Registered Nurse 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, and in particular, in or around 2014-2016, you submitted false claims under the Benefit Plan.
Member’s Plea
The Member admitted the allegations set out in paragraphs 1, 2, 3, 4 and 5 in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.
Agreed Statement of Facts
College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which as amended reads, unedited, as follows:
MEMBER
Jocelyn Pasion-Santos (the “Member”) obtained a degree in nursing from Dr. Carlos S. Lanting College in the Philippines in 1995.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on February 25, 2002.
Between October 15, 2002 and February 24, 2017, the Member was employed as a full-time nurse at St. Michael’s Hospital in Toronto (the “Facility”). Her employment was terminated as a result of the incidents described below.
BENEFIT PLAN
The Facility’s employee benefit plan (the “Benefit Plan”) is a group insurance policy which provides coverage for extended health care, dental, and other insurance benefits. The Facility is the Plan Sponsor for the Benefit Plan and funds the cost of claims paid out under the plan. SunLife Insurance (“SunLife”) administers the Benefit Plan on behalf of the Facility.
The Member, as an RN at the Facility represented by the Ontario Nurses’ Association (“ONA”), was a member of the Benefit Plan through the collective agreement between ONA and the Facility. The Member’s spouse also had coverage under the Benefit Plan.
In relation to extended health care, the Benefit Plan provided the Member and her family with coverage for medical equipment and supplies, among other things. In particular, the Benefit Plan provided 100% reimbursement for up to 4 pairs of support stockings annually (per person), up to a maximum of $200/pair.
Claims for equipment and supplies under the Benefit Plan, including support stockings, were to be submitted using a paper claim form with the receipt and prescription attached. The claim form included the following declaration to be signed by the employee submitting a claim:
Authorization and Signature
I certify that all goods and services being claimed have been received by me and/or my spouse or dependents, if applicable. I certify that the information in this form is true and complete and does not contain a claim for any expense previously paid for by this or any other plan. [emphasis added]
In the event there is suspicion and/or evidence of fraud and/or Plan abuse concerning this claim, I acknowledge and agree that Sun Life may investigate and that information about me, my spouse and/or dependents pertaining to this claim may be used and disclosed to any relevant organization including regulatory bodies, government organizations, medical suppliers and other insurers, and where applicable my Plan Sponsor, for the purpose of investigation and prevention of fraud and/or Plan abuse.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
Between 2014 and 2016, the Member submitted false claims under the Benefit Plan and received $4,900 in relation to the false claims.
In or around early 2017, the Facility and SunLife uncovered a scheme whereby employees of the Facility were submitting false benefit claims, including in relation to support stockings. The joint investigation conducted by the Facility and SunLife (the “Facility’s Investigation”) identified a porter at the Facility, Gener Valle (“Valle”), as the central figure in the scheme. The Facility’s Investigation concluded that Valle coordinated with other Facility employees to submit false claims to SunLife for products and services that were never purchased. Valle and the employee would then split the reimbursed funds.
Through the Facility’s Investigation, it identified the Member as having submitted claims that required review. In particular, the Member submitted claims for support stockings from 2014 to 2016.
As a result, the Facility and SunLife interviewed the Member on February 22, 2017 and reviewed these claims. The Member admitted to submitting false claims to SunLife for reimbursement under the Benefit Plan with Valle. Specifically, the Member admitted that neither she nor her family members purchased the support stockings listed in the receipts submitted with the claims, nor did they obtain the prescriptions submitted in support of the claim.
The Member explained that she signed a partially filled out benefit claim forms, signed the forms and provided them to Valle. The Member further explained that Valle completed the benefit claim forms by adding the amount of the claim attaching the required documents, including false receipts and prescriptions, and submitted the claim form to SunLife. The Member admitted that when she received the reimbursement from SunLife, she provided half of it to Valle and kept the other half for herself. She further admitted that she received no product in return for the money.
The total amount paid to the Member for the claims between 2014 and 2016 was $4,900.
The Facility terminated the Member’s employment on February 24, 2017 as a result of this conduct. The Member paid restitution to the Facility for the full amount of the false claims on April 1, 2022.
If the Member were to testify, she would state that she recognizes that it was wrong to have allowed the false claims to be submitted in her name and her actions constitute an aberration.
BENEFIT FRAUD CASES
- To date, a total of 52 benefit fraud cases relating to substantially similar schemes as the one identified in this case, involving either cash or products not covered by the benefit plan, have been referred to the Discipline Committee. The dollar amounts of the false claims involved range from under $500 to over $45,000.
CNO STANDARDS
Professional Standards
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.
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.
CNO’s Professional Standards provides, in relation to the leadership standard, that leadership requires self-knowledge (understanding one’s beliefs and values and being aware of how one’s behaviour affects others), respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. The leadership expectation is not limited to nurses in formal leadership positions and all nurses, regardless of their position, have opportunities for leadership. Nurses demonstrate this standard by actions such as role-modelling professional values, beliefs and attributes.
Ethics
CNO’s Ethics Standard describes ethical values that are important to the nursing profession in Ontario including patient well-being, patient choice, privacy and confidentiality, respect for life, maintaining commitments, truthfulness and fairness.
CNO’s Ethics Standard provides, in relation to maintaining commitments, that nurses have a commitment to the nursing profession and being a member of the profession brings with it the respect and trust of the public. To continue to deserve this respect, nurses have a duty to uphold the standards of the profession, conduct themselves in a manner that reflects well on the profession, and to participate in and promote the growth of the profession.
CNO’s Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive.
The Member admits and acknowledges that she contravened CNO’s Professional Standards and Ethics Standard when she submitted false claims under the Benefit Plan between 2014 and 2016.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 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 8 to 15 and 17 to 23 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing in that she misappropriated property from a workplace, as described in paragraphs 8 to 15 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing in that she falsified a record relating to her practice, as described in paragraphs 8 to 15 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 4 of the Notice of Hearing in that she signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement, as described in paragraphs 8 to 15 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 5 of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 8 to 15 and 17 to 23 above.
Submissions were made by College Counsel.
College Counsel submitted the following case that is similar to the one before this Panel:
CNO v. Verde-Balayo (Discipline Committee, 2021): In this case, the allegations involved the same scheme at the same hospital and the details are substantially the same. The member faced the same five allegations and admitted to allegations #1, #2 and #5 and then the parties argued allegations #3 and #4. Following extensive argument the panel made findings of professional misconduct for all five of the allegations.
After addressing the issue of liability with reference to the Verde-Balayo case, College Counsel turned to allegation #5 before the Panel. With regard to allegation 5, which relates to the characterization of the conduct, the Member performed an act relevant to nursing that considering all circumstances would reasonably be regarded as dishonourable and unprofessional but not disgraceful.
Unprofessional conduct involves a serious or persistent disregard for professional obligations. College Counsel submitted there is no contest that the Member’s conduct was unprofessional. Dishonourable conduct must include an element of moral failing which can be found in acts of dishonesty but also more generally in conduct that the Member knew or ought to have known would be considered as dishonourable. Characterizing conduct that is disgraceful is reserved for the very worst conduct that members of the profession might commit. College Counsel asked the panel to accept the characterization that the Member’s conduct was both unprofessional and dishonourable but not disgraceful.
Submissions were made by the Member’s Counsel.
The Member’s Counsel agreed that the Verde-Balayo case was virtually identical to the case before this Panel. The panel in the Verde-Balayo case made findings on all five allegations and the decision supports the member’s admissions. The Member’s Counsel submitted that in paragraph 28 of the Agreed Statement of Facts the Member is admitting dishonourable and unprofessional conduct but not disgraceful conduct which is usually reserved for much more serious conduct such as sex abuse cases or other similar serious situations. The Member’s Counsel also submitted that in order to find for a breach of standards there needs to be evidence of standards which is available in the Agreed Statement of Facts.
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 ,3, 4 and 5 of the Notice of Hearing. As to allegation #5, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be unprofessional and dishonourable.
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 8 to 15 and 17 to 24 in the Agreed Statement of Facts. The Member admitted to submitting false claims under the St. Michael’s Hospital’s (the “Facility”) employee group benefit plan (the “Benefit Plan”) between the years of 2014 and 2016 and to receiving a total sum of $4,900.00 in relation to those false claims. As a result, the Facility and SunLife Insurance (“SunLife”) interviewed the Member on February 22, 2017 in respect of the claims that she and her family members had submitted between 2014 and 2016, specifically in regards to claims for support stockings. The Member admitted that neither she nor her family members purchased the support stockings listed in the receipts submitted with the claims, nor did they obtain the prescriptions submitted in support of the claims. The Member contravened the College’s Professional Standards and the Ethics Standard when she submitted the false claims under the Benefit Plan between the years of 2014 to 2016.The College’s Professional Standards require nurses to be truthful, have integrity and conduct themselves in a way that ensures respect for the nursing profession. The Ethics Standard also requires nurses to be truthful and act without intending to deceive. The Member failed to meet these standards over multiple years when she submitted false claims under the Facility’s Benefit Plan.
Allegation #2 in the Notice of Hearing is supported by paragraphs 8 to 15 and 25 in the Agreed Statement of Facts. The Member submitted false claims under the Facility’s Benefit Plan between the years of 2014 and 2016 and received a total sum of $4,900.00 in relation to those false claims. In or around the year 2017, the Facility and SunLife uncovered a scheme whereby employees of the Facility were submitting false claims including support stockings. There was a joint investigation by the Facility and SunLife (the “Facility’s Investigation”) which identified a porter at the Facility, Gener Valle (“Valle”) as the central figure in the scheme. The Facility’s Investigation concluded that the Facility employees would submit false claims to SunLife for products and services that were never purchased. The employee and Valle would then split the reimbursed funds. The Member admitted that neither she nor her family members purchased support stockings listed in the receipts submitted nor did they obtain prescriptions submitted as indicated in her submitted claims. The Member admitted that she did not receive any product and that she would in fact split the monetary proceeds from the false benefit claims. Receiving money with respect to false benefit claims constitutes misappropriation of property.
Allegation #3 in the Notice of Hearing is supported by paragraphs 8 to 15 and 26 in the Agreed Statement of Facts. As an RN employed at the Facility, the Member had access to the Benefit Plan which also covered her family members. Among other things the Benefit Plan provided 100% reimbursement for up to 4 pairs of support stockings annually per person up to a maximum of $200.00/pair. Claims were to be submitted using a paper claim form with a receipt and prescription attached and be signed by the employee submitting the claim. The claim form included a declaration which was to be signed by the employee submitting the claim. The declaration read as follows “I certify that all goods and services being claimed have been received by me and/or my spouse or dependents. I certify that the information in this form is true and complete”. The Member admitted to signing this form and submitting false claims, collecting a total of $4,900.00. By completing and submitting false claims, the Member falsified a record relating to her practice, as she had access to the Benefit Plan in the context of her employment as an RN at the Facility.
Allegation #4 in the Notice of Hearing is supported by paragraphs 8 to 15 and 27 in the Agreed Statement of Facts. From the years 2014 to 2016, the Member signed falsified benefit claim forms for support stockings. In this form, a declaration statement read as follows “I certify that all goods and services being claimed have been received by me and/or my spouse or dependents. I certify that the information in this form is true and complete”. Over two years, the Member collected an amount of $4,900.00 due to false claims, the Member admitted that she would partially fill out the benefit form, sign it, and provide it to Valle. The Member admitted that neither she nor her family members purchased the support stockings listed in the receipts submitted with the claims. The Member knew or ought to have known that she was misleading SunLife through the false declaration statement. When the Member signed the claim form containing the declaration, she signed a false or misleading statement in her professional capacity as she had access to the Benefit Plan by virtue of being an RN employee of the Facility.
With respect to allegation #5, the Panel finds that the Member’s conduct in submitting false claims under the Facility’s Benefit Plan was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. The Member failed to meet the College’s Professional Standards and the Ethics Standard. The Member ignored these standards over multiple years when she participated in the insurance fraud scheme.
The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit. The Member was a willing participant in a scheme to defraud the Facility’s Benefit Plan. The Member’s conduct showed an element of moral failing. The Member also 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’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:
Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 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 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 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: 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 and decision tools (where applicable): 1. Code of Conduct, 2. Professional Standards, and 3. Ethics; 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; 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 their report to CNO, 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) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify her employer(s) 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: 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 CNO, in which it will confirm: 1. that they received a copy of the required documents, and 2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.All documents delivered by the Member to CNO, the Expert, or her employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
Penalty Submissions
Submissions were made by College Counsel.
College Counsel submitted that the terms of the Joint Submission on Order provide a disposition that falls within the range of reasonable dispositions. Protection of the public interest is paramount when deciding penalty, but the penalty should also include deterrence and rehabilitation of the Member's practice. The penalty will turn on the seriousness of the conduct and will also take into consideration any aggravating and mitigating factors.
The aggravating factors in this case were:
- The Member’s conduct was serious and blatantly dishonest;
- The Member put her financial interest ahead of the Facility;
- The Member brought dishonour to herself and the profession;
- The conduct continued over a number of years and involved multiple claims; and
- The Member was paid $4,900.00 for reimbursement of falsified claims.
The mitigating factors in this case were:
- The Member admitted to allegations of professional misconduct early in the process and accepted responsibility by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and
- The Member paid restitution to the Facility’s Benefit Plan in advance of the hearing.
College Counsel submitted that specific and general deterrence constitute the message in a penalty sanction that is intended to dissuade members and others from participating in the conduct. The proposed penalty provides for specific deterrence through the oral reprimand and the 3 month suspension of the Member’s certificate of registration as it demonstrates to the Member the serious nature of her misconduct and deters her from repeating the misconduct in the future. The proposed penalty provides for general deterrence through the 3 month suspension of the Member’s certificate of registration, indicating to other members of the profession that this conduct is treated as serious and is unacceptable. General deterrence is particularly significant in this case as benefit fraud is widespread in the profession as referenced in the Agreed Statement of Facts. The widespread nature of this misconduct requires a clear message by way of the suspension and the reprimand that the conduct is entirely unacceptable to the College and the Discipline Committee.
The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert, which will allow the Member the opportunity to learn from this experience by refreshing herself on the standards and making a learning plan to help her learn why this conduct is problematic.
Overall, the public is protected because this process will assist the Member in gaining additional insight and knowledge into her practice. This will inform her future practice. The public is also protected through the 12 months of employer notification, which will serve as a reminder to the Member once she returns to practice of the outcome of the disciplinary hearing and also give opportunity to the employer to pay attention to the conduct of the Member.
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 Verde-Balayo (Discipline Committee 2021): This case dealt with the very same benefit fraud scheme at the same facility. The member submitted false claims under the facility’s benefit plan and was paid $7,982.50 between 2012 and 2016. In this case, the member did not make any restitution. The penalty included an oral reprimand, a 4-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.
CNO v. Velasquez (Discipline Committee, 2021): In this case, the member submitted false claims under the facility’s benefit plan and was paid $11,080.00 between 2013 and 2016. The member paid restitution in full. The penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.
CPSO v. Moore (Divisional Court, 2003): The member involved in this case pleaded guilty of defrauding OHIP of $75,000.00 over a period of three years. Restitution was made in full. The penalty included an oral reprimand, a 12-month suspension of the member’s certificate of registration, which would be reduced to 6 months if certain conditions were met. College Counsel submitted that the ruling in this case indicates that general deterrence can be given special emphasis to deter widespread fraud in the profession.
College Counsel submitted that the Joint Submission on Order is clearly within the range of reasonable dispositions and should be accepted unless the penalty is so disproportionate to the conduct that the penalty would bring the administration of justice into disrepute.
Submissions were made by the Member’s Counsel.
The Member’s Counsel submitted that the difference between the Verde-Balayo case and the Velasquez case was the length of suspension and that in the Verde-Balayo case restitution was not paid. In the case before this Panel, the Member has paid restitution and, as such, the Panel should consider this a mitigating factor. The Velasquez case also involved repayment of a substantial amount received from fraudulent claims and the suspension imposed was 3 months, rather than 4 months.
The Member’s Counsel submitted that the Member’s admission to fraudulent claims in the amount of $4,900.00 is the first act in making amends. By pleading guilty the Member also saved the College time and effort to prosecute the case. The Member’s Counsel agreed that the penalty suggested in the Joint Submission on Order is within the range of reasonable outcomes and quoted from the R. v. Anthony-Cook case, paragraph 34.
Reply submissions were made by College Counsel.
College Counsel submitted that the aggravating factor is the falsification of the claims and misappropriating funds. Not paying restitution is not an aggravating factor but rather the absence of a mitigating factor. College Counsel submitted that this may seem a distinction without a difference, but it is important to be clear about the concepts.
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:
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 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: 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 and decision tools (where applicable): 1. Code of Conduct, 2. Professional Standards, and 3. Ethics; 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; 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 their report to CNO, 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) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify her employer(s) 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: 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 CNO, in which it will confirm: 1. that they received a copy of the required documents, and 2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.All documents delivered by the Member to CNO, the Expert, or her employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
Reasons for Penalty Decision
The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.
The Panel concluded that the proposed penalty is reasonable and in the public interest. 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. Specifically, the oral reprimand and the 3-month suspension of the Member’s certificate of registration provides for specific deterrence. The 3-month suspension of the Member’s certificate of registration provides for general deterrence. The 2 meetings with a Regulatory Expert will allow for rehabilitation and remediation and the 12 months of employer notification will ensure the public is protected.
The penalty is also in line with what has been ordered in previous cases in similar circumstances.
I, Mary MacNeil, RN, sign this decision and reasons on behalf the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.