College of Nurses of Ontario v. Cockett, 2022 CanLII 135429

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Karen Laforet, RN Chairperson

Tim Crowder Public Member Sylvia Douglas Public Member

Ramona Dunn, RN Member

Susan Roger, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DOUGLAS MONTGOMERY for

) College of Nurses of Ontario

• and - )

NADINE COCKETT ) PATRICK JAMES for

Registration No. IH05664 ) Nadine Cockett

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: September 8, 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 September 8, 2022, via videoconference.

The Allegations

The allegations against Nadine Cockett (the “Member”) as stated in the Notice of Hearing dated August 8, 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 Practical Nurse at Baycrest 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 2011 to 2016, you submitted and/or accepted payment for 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 Practical Nurse at the Facility, you misappropriated property from a client or workplace, and in particular, in or around 2011 to 2016, you submitted and/or accepted payment for 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 Practical Nurse at the Facility, you falsified a record relating to your practice, and in particular, in or around 2011 to 2016, you submitted and/or accepted payment for 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 Practical 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 2011 to 2016, you submitted and/or accepted payment for 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 Practical 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 2011 to 2016, you submitted and/or accepted payment for 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:

MEMBER

1. Nadine Cockett (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on January 26, 1998.

2. The Member was employed as an RPN at Baycrest Health Sciences (the “Facility”), located in Toronto, Ontario from 1999 to 2019. The Member’s employment at the Facility was terminated as a result of the incidents described below.

BENEFIT PLAN

3. The Facility offers its employees a self-insured group insurance policy by which the Facility provides coverage to employees for extended health care, dental, and other insurance benefits (the “Benefit Plan”). Coughlin & Associates Ltd (“Coughlin”) administers the Benefit Plan on behalf of the Facility. The Facility, however, is the plan sponsor for the Benefit Plan, and therefore funds the cost of claims paid out to employees under the plan. Employees contribute to the cost of the Benefit Plan as set out in their employment agreement and/or collective agreement, and based on their election for individual or family coverage.

4. In order to submit a benefit claim, members of the Benefit Plan would complete a medical expense claim form provided by Coughlin. The medical expense claim form requires certain information, including information on the plan member, any dependents, and the nature of the claim. The plan member must certify “that the information given is true, correct and complete to the best of [their] knowledge”.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

5. Between 2011 and 2016, the Member submitted false claims under the Benefit Plan for physiotherapy, custom orthotics, compression stockings, and orthopedic shoes. The value of the false claims submitted by the Member amounted to $15,323.

6. The Facility conducted an internal investigation of claims submitted by employees and identified the Member as having submitted a series of claims that required review.

7. The Facility met with the Member on April 10, 2019. During the meeting, the Member admitted that she had participated in a scheme whereby false claims would be submitted for products or services that she had not received. Once Coughlin provided the Member with reimbursement for the false claims, the Member would split the funds with a person who facilitated the scheme.

8. The Facility terminated the Member’s employment in 2019 as a result of this conduct. The Member did not make restitution.

BENEFIT FRAUD CASES

9. To date, a total of 58 benefit fraud cases involving 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

10. 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.

11. 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.

12. 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

13. 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.

14. 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.

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

16. The Member admits and acknowledges that she contravened CNO’s Professional Standards and Ethics Standard.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

17. 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 5 to 8 and 10 to 16 above.

18. 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 5 to 8 above.

19. 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 5 to 8 above.

20. 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 5 to 8 above.

21. 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 5 to 8 and 10 to 16 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, #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 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 5 to 8 and 10 to 17 in the Agreed Statement of Facts. The Member submitted false claims under the Baycrest Hospital’s (the “Facility”) employee group benefit plan (the “Benefit Plan”) between 2011 and 2016 and received $15,323.00 in relation to those false claims. When she met with the Facility on April 10, 2019, the Member admitted that she would split the funds with the person who facilitated the scheme. The College’s Professional Standards provides that “Each nurse is accountable to the public and responsible for ensuring that her/his practise and conduct meets legislative requirements and the standards of the profession”. The College’s Ethics Standard provides that "nurses have a duty to uphold the standards of the profession, conduct themselves in a manner that reflects well on the profession”. The Member admitted, and the Panel finds, that she breached both of these standards when she submitted false claims to the Facility’s Benefit Plan.

Allegation #2 in the Notice of Hearing is supported by paragraphs 5 to 8 and 18 in the Agreed Statement of Facts. The Member has admitted to misappropriating property from the Facility by submitting false claims under the Benefit Plan between 2011 and 2016, and to receiving $15,323.00 in relation to those false claims and to then splitting the money with the person who facilitated the scheme. Receiving money with respect to false benefit claims constitutes misappropriation of property.

Allegation #3 in the Notice of Hearing is supported by paragraphs 5 to 8 and 19 in the Agreed Statement of Facts. The Member falsified a record relating to her practice when she submitted multiple claim forms to the Benefit Plan between 2011 and 2016 for physiotherapy, custom orthotics, compression stockings, and orthopedic shoes. By signing and submitting claim forms that contained false information, the Member was found to have falsified records relating to her practice and did so in the context of her employment as a Registered Practical Nurse (“RPN”).

Allegation #4 in the Notice of Hearing is supported by paragraphs 5 to 8 and 20 in the Agreed Statement of Facts. The Member signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement when she submitted false claims to the Benefit Plan in the context of her employment as an RPN. Accordingly, the facts support the allegation that the Member signed or issued, in her professional capacity, a document that she knew contained a false or misleading statement.

Allegation #5 in the Notice of Hearing is supported by paragraphs 5 to 8, 10 to 16 and 21 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was clearly relevant to the practice of nursing when she submitted false claim forms to the Benefit Plan. This conduct was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations as set out in the Professional Standards and the Ethics Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through the submission of false claims to the Benefit Plan in the total amount of $15,323.00 and to splitting this sum with the person who facilitated the scheme. The Member’s conduct occurred over a period of five years or more. The Member knew or ought to have known that her actions were wrong and that she conducted herself in a manner that was blind to the deceitfulness of this behaviour. 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:

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 4 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 behaviour demonstrated serious and persistent dishonesty over a period of five years, at the expense of the Facility’s Benefit Plan;

• The Member had enough time to reconsider her conduct and to stop it;

• The Member misused the trust of an employer; and

• The Member took advantage of her employer and of having a benefit plan altogether.

The mitigating factors in this case were:

• The Member took full responsibility for her actions with her employer and with the College by admitting to the allegations and entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and

• The Member has no prior discipline history with the College.

The proposed penalty provides for general deterrence through the 4 month suspension of the Member’s certificate of registration, which sends a clear message to other members of the profession that such misconduct will not be tolerated.

The proposed penalty provides for specific deterrence through the oral reprimand and the 4 month suspension of the Member’s certificate of registration, which will send a clear message to the Member that benefit fraud will not be tolerated.

The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert, serving to deepen the Member’s understanding of her obligations to the profession and to the public.

Overall, the public is protected through the 12 month employer notification period.

The penalty to which the Parties have agreed, demonstrates that this conduct is serious and has attracted a serious sanction as a result. Taken as a whole, the penalty demonstrates to the public that nursing is a profession that is capable of governing itself.

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. Velasquez (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member was found to have committed acts of professional misconduct when she involved herself in similar benefit fraud. The fraudulent claims occurred over a number of years and the member received at least $11,080.00. The member retained her employment and entered into a repayment agreement with the employer. 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.

CNO v. Verde-Balayo (Discipline Committee, 2021): In this case, the member was found to have committed acts of professional misconduct when she was involved in similar benefit fraud that occurred over several years and allowed the member to receive at least $7,982.50 as a result of false claims. The member was terminated from the facility and 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.

College Counsel presented the Panel with the signed Panel Order in CNO v. Cervantes (Discipline Committee, 2022). This order was made on very similar findings of professional misconduct. This member had misappropriated funds from their benefit plan of at least $14,515.00. The member did not pay any restitution and 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.

The Member’s Counsel had no submissions on penalty and advised that he agreed with College Counsel’s submissions.

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 4 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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. Specific deterrence is achieved through the oral reprimand and a 4 month suspension of the Member’s certificate of registration, which will send a clear message to the Member that benefit fraud will not be tolerated. General deterrence is addressed by the 4 month suspension of the Member’s certificate, which will demonstrate to the profession that employee benefit fraud will not be tolerated. Rehabilitation and remediation will be achieved through the 2 meetings with a Regulatory Expert and the associated review of the standards. The 12 months of employer notification and monitoring period will ensure that the public is protected.

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

I, Karen Laforet, 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.