College of Nurses of Ontario v. Sharon O’Connor, 2022 CanLII 136844

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Jean-Laurent Domingue, RN Member Sylvia Douglas Public Member Sandra Larmour Public Member Mary MacNeil, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO DENISE COONEY for College of Nurses of Ontario

• and -

SHARON O’CONNOR Registration No. IB11665 ANDREA WOBICK for Sharon O’Connor CHRISTOPHER WIRTH Independent Legal Counsel

Heard: September 1, 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 1, 2022, via videoconference.

Publication Ban

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

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

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(a)(i), (ii), (iv), 3(a), 6(a)(i), (ii) and (iv) in the Amended Notice of Hearing dated June 15, 2022. The Panel granted this request. The remaining allegations against Sharon O’Connor (the “Member”) 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 employed as a Registered Practical Nurse by Dr. L. Kistemaker and Dr. L. Kistemaker Medicine Professional Corporation (the “Employer”) you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as follows:

a. on or about March 29, 2019, in relation to a prescription clarification for Patient [A]:

i. [Withdrawn];

ii. [Withdrawn];

iii. you signed the prescription clarification for Patient [A] using Dr. Laura Kistemaker’s initials without Dr. Kistemaker’s permission or authorization; and/or

iv. [Withdrawn];

b. on or about March 29, 2019, in relation to a request for physician wound care orders for Patient [B], you:

i. you failed to bring the request for physician wound care orders to the attention of a physician;

ii. you provided wound care orders for Patient [B] without consultation or direction from a physician;

iii. you signed a response to a request for wound care orders for Patient [B] using Dr. Kistemaker’s name and/or signature without Dr. Kistemaker’s permission or authorization; and/or

iv. did not appropriately maintain documentation with respect to the response to a request for wound care orders provided to Patient [B].

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(12) of Ontario Regulation 799/93, in that you failed to advise Patient [B] to obtain services from another health professional where you knew or ought to have known that Patient [B] had a condition which was outside your scope of practice or within your scope of practice but outside your competency to treat, and in particular, while practicing as a Registered Practical Nurse at the Employer, you provided a response to a request for wound care orders for Patient [B].

3. 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 paragraph 1(13) of Ontario Regulation 799/93, in that, while employed as a Registered Practical Nurse at the Employer, you failed to keep records as required, and in particular:

a. [Withdrawn]; and/or

b. on or about March 29, 2019, you did not appropriately maintain documentation with respect to a response to a request for wound care orders provided to Patient [B].

4. 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 paragraph 1(14) of Ontario Regulation 799/93, in that, while employed as a Registered Practical Nurse at the Employer, you falsified a record relating to your practice, and in particular:

a. on or about March 29, 2019, you signed a prescription clarification for Patient [A] using Dr. Kistemaker’s initials without Dr. Kistemaker’s permission or authorization; and/or

b. on or about March 29, 2019, you signed a response to a request for wound care orders for Patient [B] using Dr. Kistemaker’s name and/or signature without Dr. Kistemaker’s permission or authorization.

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 paragraph 1(15) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at the Employer, you signed or issued, in your professional capacity, a document that you knew, or ought to have known contained a false or misleading statement with respect to your professional credentials, and in particular:

a. on or about March 29, 2019, you signed a prescription clarification for Patient [A] using Dr. Kistemaker’s initials without Dr. Kistemaker’s permission or authorization; and/or

b. on or about March 29, 2019, you signed a response to a request for wound care orders for Patient [B] using Dr. Kistemaker’s name and/or signature without Dr. Kistemaker’s permission or authorization.

6. 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 employed as a Registered Practical Nurse at the Employer, 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, as follows:

a. on or about March 29, 2019, in relation to a prescription clarification for Patient [A]:

i. [Withdrawn];

ii. [Withdrawn];

iii. you signed the prescription clarification for Patient [A] using Dr. Laura Kistemaker’s initials without Dr. Kistemaker’s permission or authorization; and/or

iv. [Withdrawn];

b. on or about March 29, 2019, in relation to a request for physician wound care orders for Patient [B], you:

i. you failed to bring the request for physician wound care orders to the attention of a physician;

ii. you failed to advise Patient [B] to obtain services from another health professional where you knew or ought to have known that Patient [B] had a condition which was outside your scope of practice or within your scope of practice but outside your competency to treat, and in particular, while practicing as a Registered Practical Nurse at the Employer, you provided a response to a request for wound care orders for Patient [B];

iii. you provided wound care orders for Patient [B] without consultation or direction from a physician;

iv. you signed a response to a request for wound care orders for Patient [B] using Dr. Kistemaker’s name and/or signature without Dr. Kistemaker’s permission or authorization; and/or

v. did not appropriately maintain documentation with respect to the response to request for wound care orders provided to Patient [B].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a)(iii), 1(b)(i), (iii), (iv), 2, 3(b), 4(a), 4(b), 5(a), 5(b), 6(a)(iii), 6(b)(i), (ii), (iii), (iv) and (v) 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:

THE MEMBER

1. Sharon O’Connor (the “Member”) obtained a diploma in nursing from Cambrian College in 1992.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on June 26, 1992.

3. In and around March 2019, the Member was employed by Dr. Laura Kistemaker and Dr. L. Kistemaker Medicine Professional Corporation (the “Employer”). Dr. Kistemaker worked as a General Practitioner. The Member resigned her employment on May 9, 2019 in relation to the incidents described below.

PRIOR HISTORY

4. The Member has no prior disciplinary findings with CNO.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

5. All patient prescription requests at the Employer were to be directed to Dr. Kistemaker or another physician. This practice is consistent with RPN scope of practice.

6. Dr. Kistemaker went on leave in late March 2019. She had arranged for her practice to be covered by another physician, a locum. Dr. Kistemaker remained available remotely and was reviewing prescription renewals and lab results from home.

Patient [A]

7. Prior to taking her leave, Dr. Kistemaker had commenced Patient [A] on a course of Vagifem 10 mcg, to be taken 1 time daily for 14 days.

8. On March 25, 2019, Patient [A]’s pharmacy sent a prescription clarification request to the Employer in relation to the Vagifem prescription. The pharmacy noted that the Patient [A] had completed the two-week course ordered by Dr. Kistemaker and asked if the Patient [A] should switch to one tablet twice weekly, or continue with daily use.

9. On or around March 26, 2019, the Member electronically notified Dr. Kistemaker of the request for clarification received from the pharmacy. She asked Dr. Kistemaker to clarify the order for Vagifem. Dr. Kistemaker asked the Member how often or how much, and the Member attached a copy of the note which stated that usually Vagifem is started daily for 2 weeks, and then reduced. The Member asked whether Dr. Kistemaker wanted to reduce, and if so to what, 2 or 3 times per week.

10. On March 29, 2019, Dr. Kistemaker replied “Yes please”. The Member did not seek clarification from Dr. Kistemaker as to what she meant, and advised Dr. Kistemaker that she “suggested twice a week as this seems to be most common.”

11. The Member responded to the prescription clarification request from the pharmacy. The Member indicated that the appropriate dosage was “switch to one tablet twice weekly”, and affixed the initials “L.K.” (i.e. Dr. Kistemaker’s initials) on the prescription. The Member faxed the clarification to the pharmacy. In doing so, the Member represented on the document that the order and direction had been made and signed by Dr. Kistemaker, when it had not.

12. If the Member were to testify she would say that she did so out of concern that the prescription hadn’t been clarified, and that she believed that Dr. Kistemaker would be fine with either two or three times per week based on her response.

13. The Member documented in Patient [A]’s chart that the Vagi[ ]fem prescription had been renewed and changed to 2 times weekly.

14. After responding to the request, the Member placed the fax from the pharmacy in an open bin at her desk for papers to be collected, which would then be emptied into a locked bin for shredding at the end of the day.

15. Dr. Kistemaker’s receptionist, [ ], found the fax in the open bin beside the Member’s desk.

16. Dr. Kistemaker spoke to the Member about the incident after she became aware of it. The Member acknowledged that she should not have responded to the pharmacy’s request independently. If the Member were to testify, she would state that she was trying to be helpful and did in fact seek instructions from Dr. Kistemaker prior to notifying the pharmacy of the change in prescription.

Patient [B]

17. On March 29, 2019, Patient [B] saw the Member at the Employer’s office.

18. Patient [B] provided the Member with a “Physician’s Appointment Note” from VON Canada dated March 28, 2019. The form included the following request for physician wound care orders for Patient [B]. The request was made by a nurse at VON Canada:

Red area under R abd apron. Not able to visualize any open area. Interdry wet daily odour as well. Would benefit from cream? Clotrimazole or Miconazlole?

19. The Member completed the response to VON Canada on Patient [B]’s Physician’s Appointment Note without consulting a physician, including Dr. Kistemaker or the locum physician attending at the Employer. Instead, the Member provided advice on wound care herself, though this falls outside of RPN scope of practice. Beside the names of the creams suggested by the nurse who had issued the request, the Member wrote “NO”. The Member provided the following advice: “Keep at it until healed. Then keep dry as best as possible. Tip – use Hair dryer on cool after Bathing”.

20. The Member signed the document with Dr. Kistemaker’s signature stamp and dated it March 29, 2019. In doing so, the Member represented on the document that the order and direction had been made and signed by Dr. Kistemaker when it had not.

21. The Member did not have Dr. Kistemaker’s permission or authorization to use her name or signature stamp on the Physician’s Appointment Note.

22. If the Member were to testify she would state that she felt confident in her ability to respond to the inquiry from VON Canada as she did not view the issue of the wound care in question to be complex. Notwithstanding, the Member acknowledges that she did not have the requisite professional knowledge, skills or training to provide wound care, and ought to have consulted with a qualified health professional.

23. After completing the Physician’s Appointment Note, the Member did not document the Physician’s Appointment Note in Patient [B]’s file or maintain the security of the document. Instead, she placed it in an open bin close to the Employer’s receptionist.

24. When Dr. Kistemaker discussed this incident with the Member, the Member acknowledged her actions. The Member also stated that she was doing her best to be helpful.

25. The Member admits that she did not bring the request for physician wound care orders to the attention of a physician. The Member admits that she provided wound care orders for Patient [B] without consultation or direction from a physician and signed wound care orders for Patient [B] using Dr. Kistemaker’s signature stamp without Dr. Kistemaker’s permission or authorization to do so.

26. The Member further acknowledges that she ought to have included her own name on the form, and that the documentation ought to have been scanned into Patient [B]’s file.

CNO STANDARDS

27. CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring her or his practice and conduct meets legislative requirements and the standards of practice of the profession. A nurse demonstrates this standard by providing, facilitating, advocating and promoting the best possible care for patients.

28. CNO’s Professional Standards further provides, in relation to the Accountability standard, that each nurse demonstrates accountability by seeking assistance appropriately and in a timely manner; and maintaining competence and refraining from performing activities that the nurse is not competent in.

29. Each nurse is expected to understand, uphold and promote the values and beliefs described in CNO’s Ethics practice standard. Ethical nursing care includes assuring privacy and confidentiality, and respecting truthfulness. It also includes acting with integrity, honesty and professionalism in all dealings with the [patient] and other health care team members.

30. CNO’s Documentation standard requires that nursing documentation reflect all aspects of the nursing process including, assessment, planning, intervention (independent and collaborative) and evaluation.

31. In accordance with the Documentation standard, nurses are accountable for ensuring their documentation presents an accurate, clear and comprehensive picture of the [patient]’s needs, the nurse’s interventions and the [patient]’s outcomes.

32. Among other things, nurses meet the Documentation standard of practice by:

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

b. Ensuring that relevant [patient] care information kept in temporary hard copy documents is captured in the permanent health record; and

c. Providing a full signature or initials, and professional designation (RPN, RPN [Temp], RN, RN [Temp] or NP) with all documentation.

33. CNO’s Decisions About Procedures and Authority standard outlines the expectations of nurses when determining if: they have the authority to perform a procedure; it is appropriate for them to perform a particular procedure; and they are competent to perform. There are four standards, each with accompanying indicators, that describe a nurse’s accountabilities when performing any procedure, as summarized below:

a. Appropriate health care provider

Nurses must consider each situation to determine if the performance of the procedure promotes safe [patient] care, and if it is appropriate for a nurse to perform the procedure. A nurse meets this standard by having sufficient knowledge, skill and judgment to determine the appropriateness of performing the procedure at a given time for a particular [patient], considering the: [patient]’s overall condition, risks and benefits of possible outcomes, and available resources to support the performance of the procedure. Another indicator that the nurse has met the standard is advocating for the appropriate health care provider to perform the procedure.

b. Authority

Nurses ensure that they have the appropriate authority before performing procedures. A nurse meets this standard by knowing the scope of practice of nursing, the legislated authority and what the practice setting has approved as a nurse’s role and responsibilities, knowing when specific direction for [patient] care is required in the form of orders, directives, protocols or recommendations, and ensuring that [patient] records reflect the initiated procedures.

c. Competence

Nurses ensure that they are competent in both the cognitive and technical aspects of a procedure prior to performing it. A nurse meets this standard by declining to perform procedures that she/he is not competent to perform; consulting when she/he reaches the limits of her/his knowledge, skill and judgment; and communicating with other health care team members as necessary for safe, effective and ethical [patient] care.

d. Managing outcomes

Prior to performing procedures, nurses ensure that they are able to identify the potential outcomes of procedures, have the authority and competence to manage the outcomes of procedures, or have the resources available to manage those outcomes. A nurse meets the standard by identifying the potential risks and outcomes related to performing a procedure; determining whether the management of the possible outcomes is within her/his knowledge, skill, judgment and authority; and declining to perform procedures when she/he cannot manage the outcomes or does not have the required resources available to manage the outcomes and communicating that decision appropriately.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

34. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 (a) (iii) and 1 (b) (i) to (iv) of the Notice of Hearing, in that she contravened a standard of practice of the profession, as described in paragraphs 5 – 32 above.

35. The Member admits that she committed the act of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, in that she provided wound care orders for Patient [B] which she ought to have known was outside of her scope of practice or within her scope of practice but outside of her competency to treat, described in paragraphs 17 – 26 and 33 above.

36. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 (b) of the Notice of Hearing, in that she failed to keep records as required, as described in paragraphs 23 – 26 and 30 – 32 above.

37. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 4(a) and (b) of the Notice of Hearing, in that she falsified a record relating to her practice, as described in paragraphs 11, 19 – 21, 25 and 32, above.

38. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 5(a) and (b) of the Notice of Hearing, in that she signed or issued, in her professional capacity, a document she knew, or ought to have known contained a false or misleading statement with respect to her professional credentials, as described in paragraphs 11, 19 – 21, 25 and 32 above.

39. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 6 (a) (iii) and 6 (b) (i) to (v) of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 5 – 33 above.

40. With leave of the Discipline Committee, CNO withdraws allegations 1(a)(i),1(a)ii, 1(a)(iv), 3(a), 6(a)(i),6(a)(ii), and 6(a)(iv).

Submissions on liability were made by College Counsel.

College Counsel asked the Panel to accept the facts and the Member’s admissions as set out in the Agreed Statement of Facts and to make findings of professional misconduct with respect to the allegations that were not withdrawn. The admissions are set out in paragraph 34-39 of the Agreed Statement of Facts and include the relevant facts for each admission.

College Counsel submitted that the Agreed Statement of Facts should be accepted as part of a resolution that is fair and protects the public interest. The Agreed Statement of Facts contains the relevant College practice standards and the Member’s admissions that her conduct contravened the standards.

With regard to allegations #6(a)(iii), 6(b)(i), (ii), (iv) and (v), College Counsel submitted that the Member's conduct is relevant to the practice of nursing and that it is dishonourable and unprofessional. The alleged conduct occurred as part of the Member’s practice and, having regard to the circumstances, others in the profession would consider the Member’s conduct to be dishonourable and unprofessional. The Member admitted to practicing outside her scope as a RPN and also that she failed to properly document. Practicing out of scope is a serious disregard for the Member’s professional obligations to respect the scope of RPN practice. The Member’s conduct was dishonourable as she represented that the care she provided was provided by a physician when it was not. She did so without authorization and, in particular, used the physician’s stamp inappropriately. The Member’s conduct amounted to an abuse of trust and showed a failure to demonstrate self-knowledge about her practice. The Member’s conduct fell below the standard expected by members of the profession.

Submissions on liability were made by the Member’s Counsel.

The Member’s Counsel asked the Panel to make findings based on the Agreed Statement of Facts and did not make further submissions on liability.

The Panel had questions for College Counsel and the Member’s Counsel concerning allegations 1(b)(ii) and 6(b)(iii) following which they asked the Panel to make no findings on these two allegations.

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(a)(iii), 1(b)(i), (iii), (iv), 2, 3(b), 4(a), 4(b), 5(a), 5(b), 6(a)(iii), 6(b)(i), (ii), (iv) and (v) of the Notice of Hearing. As to allegations #6(a)(iii), #6(b)(i), (ii), (iv) and (v), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be unprofessional and dishonorable. The Panel made no findings and dismissed allegations #1(b)(ii) and #6(b)(iii).

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(a)(iii) in the Notice of Hearing is supported by paragraphs 5-16 and 27-34 in the Agreed Statement of Facts. On March 25, 2019, Patient [A]’s pharmacy requested clarification of a medication order for Patient [A]. The next day, March 26, 2019, the Member sought clarification from Dr. Kistemaker regarding the prescription. Dr. Kistemaker’s clarification, received on March 29, 2019 was incomplete. Rather than seek further clarification, the Member responded to the prescription clarification request, adjusted the medication regime and affixed the initials of Dr. Kistemaker on the prescription. The Member’s conduct falsely represented that the prescription had been made and signed by Dr. Kistemaker when it had not.

The Panel acknowledged that the March 29, 2019 response from Dr. Kistemaker was unclear. However, lack of clarity was not a reason to proceed to change and sign the prescription with Dr. Kistemaker’s initials without Dr. Kistemaker’s permission or authorization. Additionally, the employer had a policy that all prescription requests were to be directed to Dr. Kistemaker or another physician.

The Member’s conduct was a breach of both the College’s Decisions About Procedures and Authority Standard and the Ethics Practice Standard. The College’s Decisions About Procedures and Authority Standard states that nurses need to know their scope of practice and be accountable to what the practice setting has approved as a nurse’s role and responsibility. The Member should have been aware that her scope of practice and her employer did not permit her to respond to the prescription clarification request, particularly concerning a medication, without consulting a physician. In the Ethics Practice Standard, nurses are called to act with integrity and honesty in all dealings with the patient and other health care team members. Signing the physician’s name without Dr. Kistemaker’s permission or authorization was dishonest. Signing the prescription clarification was also a misrepresentation of who was providing the prescription clarification and was deceitful. In signing the prescription clarification for Patient [A] using Dr. Kistemaker’s initials without Dr. Kistemaker’s permission, the Member breached multiple College standards.

Allegations #1(b)(i), (iii) and (iv) in the Notice of Hearing are supported by paragraphs 5, 6 and 17-34 in the Agreed Statement of Facts. The Agreed Statement of Facts indicated all patient prescriptions were to be directed to Dr. Kistemaker or another physician. On March 29, 2019, Patient [B] presented the Member with a Physician’s Appointment Note from VON Canada. The note contained a wound assessment and a request for physician wound care orders regarding the need for wound cream. The Member completed the response to VON Canada on the Physician’s Appointment Note, including direction to not use wound cream and did so without consulting a physician.

The College’s Professional Standards provides that the practice of a nurse needs to meet the legislative requirements and standards of the profession. Nurses are also accountable to seek assistance appropriately and refrain from performing activities where they lack competency. The College’s Decisions About Procedures and Authority Standard is also clear about nurses knowing their scope of practice and ensuring they are accountable to what the practice setting has approved as a nurse’s role and responsibility. Although it may have been within scope for the Member to provide wound care advice, in this case, the Member should have brought the request for physician related wound care orders, particularly where a prescription may have been warranted, to the attention of the physician per her employer’s policy. The Member should have been aware that her employer did not permit her to respond to the request for wound care orders, particularly regarding use of a medication, without consulting a physician. The Member also signed the response to a request for wound care orders with Dr. Kistemaker’s signature stamp, without Dr. Kistemaker’s permission or authorization. By doing this, the Member was suggesting that the direction for wound care had been made by Dr. Kistemaker when it had not. Signing the document without authorization and misrepresenting the physician was an act of dishonesty and deceit and a breach of the College’s Ethics Standard. The Member also did not appropriately maintain documentation with respect to the response to a request for wound care orders as she placed the document in an open bin rather than ensure the notes were entered in Patient [B]’s file. This conduct is a breach of the Documentation Standard which requires nurses to ensure any documentation in temporary hard copy is captured in the permanent record. The Member’s conduct failed to meet multiple standards of the College and was an act of professional misconduct.

Allegation #2 in the Notice of Hearing is supported by paragraphs 17-26, 33 and 35 in the Agreed Statement of Facts. On March 29, 2019, the Member responded to a request for a wound care order for Patient [B] that she knew or ought to have known was outside her scope of practice, particularly because the request involved a request regarding a prescription for wound cream. The Member should have advised Patient [B] that the request required consultation with a physician and she should have taken the necessary steps to consult with the physician. Instead, the Member responded to the request for wound care orders without consulting with a physician which was outside her scope. Responding to a request for wound care orders that required consultation with a physician and was outside the Member’s scope of practice constituted professional misconduct.

Allegation #3(b) in the Notice of Hearing is supported by paragraphs 23-26, 30-32 and 36 in the Agreed Statement of Facts. On March 29, 2019, Patient [B] presented the Member with a Physician’s Appointment Note from VON Canada. The note contained a wound assessment and a question from a nurse at VON regarding further wound care treatment for Patient [B]. The Member responded to the request on the Physician’s Appointment Note but failed to document on Patient [B]’s record the consult from VON and her actions related to the consult. Not documenting the consult and her actions related to the consult in Patient [B]’s health record while practicing as a nurse constituted professional misconduct.

Allegations #4(a) and #4(b) in the Notice of Hearing are supported by paragraphs 11, 19-21, 25, 32 and 37 in the Agreed Statement of Facts. On March 29, 2019, the Member signed a prescription clarification for Patient [A] using Dr. Kistemaker’s initials without Dr. Kistemaker’s permission or authorization. The Member affixed the initials of Dr. Kistemaker on the prescription, representing that the order and direction for the medication had been made and signed by Dr. Kistemaker when it had not. By affixing the initials of Dr. Kistemaker on the prescription without Dr. Kistemaker’s permission or authorization, the Member falsified a record. On the same day, the Member signed a response to a request for wound care orders for Patient [B] using Dr. Kistemaker’s signature stamp. In doing so, the Member falsely represented on the document that the order and direction had been made and signed by Dr. Kistemaker when it had not. The Member signed these documents while working as a nurse therefore the falsification was related to her nursing practice and as such constituted professional misconduct.

Allegations #5(a) and #5(b) in the Notice of Hearing are supported by paragraphs 11, 19-21, 25, 32 and 38 in the Agreed Statement of Facts. In using Dr. Kistemaker’s initials for Patient [A]’s prescription clarification and Dr. Kistemaker’s signature stamp on the Physician’s Appointment Note for Patient [B], the Member knew or ought to have known that she was issuing those documents with a false or misleading statement, namely that Dr. Kistemaker had not actually provided permission or authorized the prescription and wound care directions the Member issued. Signing a document in her professional capacity that the Member knew or ought to have known contained false or misleading information with respect to her professional credentials as a nurse constituted professional misconduct.

Allegations #6(a)(iii), #6(b)(i), (ii), (iv) and (v) in the Notice of Hearing are supported by paragraphs 5-39 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. Her conduct breached multiple practice standards and showed a lack of good judgment and responsibility which is required of nurses.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit by using Dr. Kistemaker’s signature and signature stamp for a prescription clarification and on a response to a request for wound care orders without authorization or permission from Dr. Kistemaker. The Member also knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

With regard to allegations #1(b)(ii) and #6(b)(iii), as indicated, the Panel asked Counsel for further submissions to clarify the difference between the Member providing advice and/or providing an order. After reviewing the College’s standards, College Counsel and the Member’s Counsel clarified that the Member had responded to a request for orders. With regards to allegations #1(b)(ii) and #6(b)(iii) specifically, College Counsel and the Member’s Counsel asked the Panel to not make findings on allegations #1(b)(ii) or #6(b)(iii). After deliberating, the Panel agreed to not make findings on allegations #1(b)(ii) or #6(b)(iii) and dismissed them.

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

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

a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at their own expense and within 6 months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

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

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

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,

3. Documentation, and

4. Decisions About Procedures and Authority;

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 their 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 their 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 their employers of the decision. To comply, the Member is required to:

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

ii. Provide their 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 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 the terms of the Joint Submission on Order and reviewed aggravating and mitigating factors of the case.

The aggravating factors in this case were:

• On two occasions the Member used the physician's initials and stamp without authorization and thereby represented that the advice or care being provided was advice or care that came from a physician when it had not;

• There were two incidents of dishonesty; and

• The Member represented care that had been provided by a physician when in fact the Member had been the one providing the care and advice.

The mitigating factors in this case were:

• The Member did not have malicious intent. Her conduct was based on a desire to facilitate patient care;

• The misconduct happened on the same day and lacked a pattern of ongoing misconduct;

• The Member admitted to the allegations and took responsibility for her actions;

• The Member entered into an Agreed Statement of Facts and a Joint Submission on Order with the College; and

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

College Counsel submitted that the 2-month suspension represented the lower end of suspensions typically seen by the Discipline Committee but given the limited nature and lack of malicious intent, the 2-month suspension reflects the circumstances of the case.

College Counsel submitted that the Joint Submission on Order met the goals of penalty to protect the public and enhance public confidence that the College can appropriately regulate the profession. The goals of penalty are met through specific and general deterrence, rehabilitation and remediation. Specific deterrence is met through the oral reprimand and the 2-month suspension of the Member’s certificate of registration. The oral reprimand will assist the Member to gain understanding of how her actions are perceived by the public. A suspension of the Member’s certificate of registration also sends a strong message to the Member that behaviour of this nature is unacceptable, thereby helping to ensure conduct of this nature is not repeated. General deterrence is met through the 2-month suspension of the Member’s certificate of registration, which will signal to other members of the profession that this kind of conduct is unacceptable.

Rehabilitation and remediation are met through a minimum of 2 meetings with a Regulatory Expert and the review of the College publications. These will help the Member prepare to return to practice and also help the Member understand practice expectations. The public is also protected through the 12 months of employer notification allowing the employer to provide oversight on the Member’s practice.

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. Rainville (Discipline Committee, 2019): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order with terms similar to the case before this Panel. In this case, the member provided care to two patients. For one patient the member discontinued a medication order without communicating with the physician and the Local Health Integration Network (“LHIN”) and practiced out of scope. The member also failed to document her advice and direction to the patient with respect to seeking follow up medical attention. For the second patient, the member assessed the patient as requiring urgent transportation to the emergency department but failed to communicate with the physician as well as the LHIN. The member also failed to document aspects of the patient’s care. This case was similar to the one before this Panel as there was a failure to communicate with a physician and failure to document. The penalty included an oral reprimand, a 2-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert, 12 months of employer notification and 12 months of no independent practice in the community.

CNO v. Russon (Discipline Committee, 2018): In this case, the member did not appear so it was different than the case before this Panel where the Member has attended and expressed remorse. In this case, the member performed two injections without a physician’s order and proper authorization and also failed to document the nursing assessment and treatments in an accurate manner. This case involved concern of a member practicing outside scope, documentation failures and the use of a physician stamp without permission. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 24-months of employer notification. In the case before this Panel, the Member has appeared and took responsibility for her actions. The Member’s conduct is also not as serious as the Russon case where two controlled acts were involved.

College Counsel submitted that the Joint Submission on Order before the Panel is appropriate having regard to other orders in similar and overlapping issues.

Submissions were made by the Member’s Counsel.

The Member’s Counsel agreed with College Counsel on the goals of penalty and the sanctions as submitted in the Joint Submission on Order. The Member’s Counsel accepted the aggravating factors submitted by College Counsel and added the following mitigating factors to consider:

• The Member is a long-time nurse, practicing since 1992 with no prior discipline history with the College;

• There was no evidence of patient harm as a result of the Member’s conduct;

• The Member pled guilty and avoided the need for witness testimony and hearing time;

• The Member acknowledged her conduct with her employer;

• Even though her actions were not the right actions, the Member had good intentions. There was no nefarious intent; and

• Both incidents happened in a short period of time that occurred right after the physician began an absence from her practice. The Member's conduct did not demonstrate a pattern over a long period of time and is not representative of the Member’s practice.

The Member’s Counsel also submitted the following case for the Panel to consider:

CNO v. Cecilioni (Discipline Committee, 2008): In this case, the member diagnosed a patient and administered a medication without a physician's order. The Member also used the physician’s letterhead and signature stamp without authorization. The penalty included an oral reprimand, a one-month suspension of the member’s certificate of registration, a meeting with a Practice Consultant and 12 months of employer notification.

The Member's Counsel submitted that the three cases before the Panel have a range of penalties, none of which exactly align with the case before this Panel. However, the agreed penalty falls within a range of reasonable outcomes. The Member’s Counsel advised the Panel to review this case on its own facts but suggested that the three cases that have been provided can provide guidance.

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

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

a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at their own expense and within 6 months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

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

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

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,

3. Documentation, and

4. Decisions About Procedures and Authority;

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 their 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 their 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 their employers of the decision. To comply, the Member is required to:

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

ii. Provide their 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 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 proposed penalty provides for specific deterrence through the oral reprimand and the 2-month suspension of the Member’s certificate of registration, which sends a message to the Member to not engage in similar conduct in the future. General deterrence is met through the 2-month suspension of the Member’s certificate of registration, which will signal to other members of the profession that this kind of conduct is unacceptable.

The proposed penalty provides for remediation and rehabilitation through a minimum of 2 meetings with a Regulatory Expert. The meetings will help the Member understand the seriousness of her conduct and hopefully improve her understanding of the ramifications of her conduct and the trust expected of a member in a regulated profession to follow the Professional Standards.

Overall, the public is protected through the 12 months of employer notification, which will notify her employer that there has been a problem in the past and allow her employer to monitor her practice and to be on the watch for repeated behaviour.

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

I, Michael Hogard, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.