College of Nurses of Ontario v. Tenzin Wangmo, 2022 ONCNO 135159

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Mary MacNeil, RN Chairperson Jay Armitage Public Member Ramona Dunn, RN Member Marnie MacDougall Public Member Jane Mathews, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO NICK COLEMAN for College of Nurses of Ontario

• and -

TENZIN WANGMO Registration No. 06290907 VANESSA YANAGAWA for Tenzin Wangmo

PATRICIA HARPER Independent Legal Counsel

Heard: May 16, 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 16, 2022, via videoconference.

The Allegations

The allegations against Tenzin Wangmo (the “Member”) as stated in the Notice of Hearing dated April 14, 2022 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while 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 2013-2014, you submitted false claims under the Facility’s employee group benefit plan (the “Benefit Plan”).

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(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 2013-2014, you submitted false claims under the Benefit Plan.

3. 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 2013-2014, you submitted false claims under the Benefit Plan.

4. 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 2013-2014, you submitted false claims under the Benefit Plan.

5. 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 2013-2014, 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 reads, unedited, as follows:

THE MEMBER

1. Tenzin Wangmo (the “Member”) obtained a degree in nursing from Ryerson University in 2006.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) in the General Class on August 30, 2006.

3. The Member is currently employed as an RN by SRT Medstaff in Toronto.

4. Between August 1, 2006 and March 2, 2017, the Member was employed as a full-time staff nurse at St. Michael’s Hospital in Toronto (the “Facility”). Her employment was terminated as a result of the incidents described below.

THE BENEFIT PLAN

5. 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.

6. 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.

7. 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).

8. 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

9. In 2013 and 2014, the Member submitted false claims under the Benefit Plan and received a total of $2,400 in relation to the false claims.

10. 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, 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.

11. Through the Facility’s Investigation, it identified the Member as having submitted claims that required review. In particular, the Member submitted claims in 2013 and 2014 for support stockings.

12. As a result, the Facility and Sunlife interviewed the Member on February 17, 2017 and reviewed the claims from 2014. 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 spouse purchased the support stockings listed in the receipts submitted with the claims. The Member stated that she provided Valle with the prescription submitted in support of the claim for herself but did not provide a prescription for her husband.

13. The Member explained that she would partially fill out the benefit claim form, sign it, and provide it to Valle. Valle would then complete the form, including the amount of the claim, attach false receipts and prescriptions, and submit 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.

14. The Member only remembers receiving $1,600 in 2014 for these claims. However, she does not dispute that the 2013 claim was also false.

15. The total amount paid to the Member for the claims in 2013 and 2014 was $2,400.

16. The Facility terminated the Member’s employment on March 2, 2017 as a result of this conduct.

17. The Member paid restitution to the Facility for the full amount of the false claims on April 28, 2022.

18. If the Member were to testify, she would express deep remorse over her choices and apologizes for her conduct. She acknowledges that was a serious matter that reflected poorly on her and her profession. She regrets accepting the money from SunLife when the products were not appropriately ordered or received.

BENEFIT FRAUD CASES

19. To date, a total of 52 benefits 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

20. 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.

21. CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their 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.

22. 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

23. 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.

24. 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.

25. CNO’s Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive.

26. The Member admits and acknowledges that she contravened CNO’s Professional Standards and Ethics Standard when she submitted false claims under the Benefit Plan in 2013 and 2014.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

27. 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 9 to 16 and 20 to 26 above.

28. 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 9 to 16 above.

29. 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 9 to 16 above.

30. 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 9 to 16 above.

31. 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 9 to 16 and 20 to 26 above.

Submissions

Submissions were made by College Counsel.

College Counsel submitted to the Panel that there are numerous cases of benefit fraud before the Discipline Committee with either the same or similar schemes as the case before this Panel. College Counsel submitted to the Panel the CNO v. Verde-Balayo liability decision (Discipline Committee, 2021). College Counsel submitted that it is unusual to provide decisions to the Panel on findings of professional misconduct during the liability phase of a hearing. However,

in the Verde-Balayo case it was noted that the panel had made a decision regarding allegations #3 and #4 in the Notice of Hearing. Those allegations are the same as the allegations in the case before this Panel and are regarding whether the professional misconduct was related to the member’s practice and whether she had been acting in a professional capacity. In that decision, the Panel determined the professional misconduct was related to the member’s practice and she had been acting in a professional capacity and therefore made findings of professional misconduct for all five allegations. College Counsel submitted that in the case before this Panel, similar findings of professional misconduct should be made as the allegations were substantially the same as in the Verde-Balayo case.

College Counsel submitted that the substance of allegation #5 is that the Member engaged in conduct or performed an act that having regard to all circumstances would reasonably be regarded by members of the profession to be disgraceful, dishonourable or unprofessional. College Counsel submitted to the Panel that, as indicated in the Agreed Statement for Facts, the Member has admitted, and the College agrees, that the conduct in question would be reasonably characterized by members of the profession as both unprofessional and dishonourable, but not disgraceful. College Counsel submitted that the conduct in this case does not rise to disgraceful conduct which is reserved for the very worse conduct that a member of the profession might commit. On that basis, the appropriate characterization regarding allegation #5 is that the Member’s conduct is both unprofessional and dishonourable and that members of the profession would reasonably regard it as so.

The Member’s Counsel made no submissions on liability.

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 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 9-16 and 20-27 in the Agreed Statement of Facts. The Member admitted to submitting false claims under the St. Michael’s Hospital’s (the “Facility”) employee benefit plan (the “Benefit Plan”) between the years of 2013 and 2014 and to receiving a total sum of $2,400.00 in relation to these false claims. The Facility and SunLife Insurance (“SunLife”) interviewed the Member on February 17, 2017 in respect to the claims that she and her spouse had submitted in 2013 and 2014 specifically regarding claims for support stockings. The Member admitted that neither she nor her spouse purchased the support stockings listed in the receipts submitted with the claim.

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 2013 and 2014. The College’s Professional Standards provide that nurses are accountable to the public and responsible for ensuring their practice meets the standards of the profession. Nurses are responsible for their actions as well as conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with the College’s standards of practice and guidelines as well as legislation. The College’s Professional Standards provide that leadership requires self-knowledge (understanding one’s beliefs and values and being aware of how one’s behaviour affects others), respect, trust and integrity. Nurses demonstrate this standard by actions such as role-modelling professional values, beliefs and attributes. The College’s Ethics Standard describes the ethical values which are important to the nursing profession in Ontario including but not limited to maintaining commitments, truthfulness and fairness. Being a member of the nursing profession, brings a certain level of respect and trust expected by the public.

Allegation #2 in the Notice of Hearing is supported by paragraphs 9-14, 15 and 28 in the Agreed Statement of Facts. Between the years of 2013 and 2014 the Member submitted false claims under the Facility’s Benefit Plan and in relation to those false claims the Member received a total monetary value of $2,400.00. The Panel finds that receiving money as a result of submitting false benefit claims constitutes misappropriation of property.

Allegation #3 in the Notice of Hearing is supported by paragraphs 8, 9-14 and 29 in the Agreed Statement of Facts. The Member admitted to committing an act of professional misconduct by falsifying a record. The Member had access to the Facility’s Benefit Plan, which also covered her spouse, as a result of her employment as an RN at the Facility. Among other things the Benefit Plan provided 100% reimbursement for up to 4 pairs of support stockings annually per person. Claims were to be submitted using a paper claim form with a receipt and prescription attached. 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, if applicable. 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 $2,400.00. As a part of this financial scheme the Member also admitted to splitting the reimbursement with Gener Valle (“Valle”) a porter at the Facility, in conjunction with him falsifying the SunLife benefit claim form. By submitting the false claim form, the Member falsified a record related to her practice.

Allegation #4 in the Notice of Hearing is supported by paragraphs 8-16 and 30 in the Agreed Statement of Facts. As part of her employment with the Facility the Member was eligible for a Benefit Plan which provided her and her spouse 100% coverage for support stockings. From the years 2013 and 2014, 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, if applicable. I certify that the information in this form is true and complete”. The Member admitted that she would partially fill out the benefit form, sign it, and provide it to Valle. The Member also provided Valle with the prescription submitted in support of the claim for herself but did not provide a prescription for her husband. The Member admitted that neither she nor her husband purchased the support stockings listed in the receipts submitted with the claims. The Member admitted that on reimbursement of the claim from SunLife she would keep half of the money for herself and gave half of the money to Valle. The Member knew or ought to have known that she was signing false or misleading documents in providing SunLife with false claim declaration statements.

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. It demonstrated a serious and persistent disregard for her professional obligations. The Member did not model attributes fitting with the profession, thus poorly reflecting on the nursing profession.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated elements of dishonesty and deceit through repeatedly submitting false claims to the Benefit Plan for her own personal financial gain over a period of two years. The Member’s actions lacked integrity and truthfulness. Having trust in the nursing profession is paramount as the public rely on nurses to hold themselves to a standard fitting with the profession, if they do not it can impact public trust in the profession as a whole.

Penalty

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

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

2. Directing the Executive Director to suspend the Member’s certificate of registration for 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.

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 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.

3. 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.

The aggravating factors in this case were:

• The Member’s conduct was serious and dishonest; and

• The Member was paid $2,400.00 as reimbursement for falsified claims.

The mitigating factors in this case were:

• The Member has acknowledged her mistakes and accepted responsibility by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College;

• The Member paid restitution in the amount of $2,400.00;

• The Member has demonstrated a willingness to make amends which Counsel submitted is a positive sign for rehabilitation;

• The plea also saves the College the time, expense and effort to prove this case; and

• The Member has expressed her remorse and indicated that she would not repeat this misconduct again.

The proposed penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration. It communicates a message to other members of the profession that similar conduct will attract a significant penalty sanction. General deterrence is an important element given the significant number of pending similar cases before the Discipline Committee. It will alert other members of the profession that this misconduct is taken seriously and will not be tolerated.

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. The length of suspension will hopefully deter the Member from repeating this misconduct in the future.

The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert. The Member will also review the College’s publications and complete Reflective Questionnaires, online learning modules, decision tools and online participation forms, including the development of a learning plan in collaboration with the Expert. These requirements will help to deepen the Member’s understanding and strengthen her insight of her misconduct and will help to ensure that this conduct is not repeated in her future practice.

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 requirements whereby the Member is required to notify her employers of the Panel’s decision. This penalty sends a message to the public about the profession’s ability to self-regulate and to ensure this conduct is not repeated in her future practice. The public must have confidence that what the member says is valid and true, even in the absence of direct patient care.

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): In this case, the hearing proceeded by way of a partial Agreed Statement of Facts and a partial Joint Submission on Order. Similarities to the case before this Panel includes the member making fraudulent claims under her employee group benefit plan. Between 2012-2016, the member submitted false claims under the Benefit Plan and was paid $7,982.50. 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 hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. Similarities to the case before this Panel includes the member making fraudulent claims under her employee group benefit plan. Between 2013-2016, the member submitted false claims under the Benefit Plan and was paid $11,080.00. 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 physician involved in this case pleaded guilty to 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 this case indicates that general deterrence can be given special emphasis if there is a widespread problem in the profession.

College Counsel submitted that this JSO is based on the standard terms for these benefit fraud cases. The only variable between them is the duration of the suspension. For cases that have been heard so far, if the member has paid restitution in full to the facility the period of suspension has been 3 months whereas, in cases in which the member has not paid restitution the period of suspension is 4 months. College Counsel submitted that this is a negotiated joint submission between the parties and urged the Panel to accept it unless the Panel is of the view that making the penalty order as proposed by the parties pursuant to the JSO would bring the administration of justice into disrepute or be contrary to the public interest.

Submissions were made by the Member’s Counsel.

The Member’s Counsel submitted to the Panel that it should accept the JSO and that the penalty is within the appropriate range. The Panel should accept the JSO unless the proposed penalty would bring the administration of justice into disrepute or be contrary to the public interest. The Supreme Court of Canada in the case of R. v. Anthony-Cook stated that the rejection of a Joint Submission on Order would denote a submission so unhinged from the circumstances of the offence of the offender that acceptance would lead reasonable and informed persons aware of all the relevant circumstances including in promoting certainty of resolution discussions to believe that the proper functioning of the justice system had broken down. This is undeniably a high threshold. The Member’s Counsel submitted that the JSO was the product of the adversarial process with the College and that the Member was represented by experienced and competent Counsel. The Panel was urged to consider these factors when deliberating on the proposed penalty.

The Member’s Counsel further submitted that the Member has always accepted responsibility, has paid restitution and has expressed remorse. This has been challenging for the Member who wishes to take steps forward.

Penalty Decision

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

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

2. The Executive Director is directed to suspend the Member’s certificate of registration for 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.

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 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.

3. 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. The penalty sends a strong message to the nursing profession and the public that benefit fraud will be taken seriously, it amounts to professional misconduct. Nurses are required to act with honesty and integrity.

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 for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.