DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Sherry Szucsko-Bedard, RN (Chairperson) Sylvia Douglas (Public Member) David Edwards, RPN (Member) Neil Hillier, RPN (Member) Lalitha Poonasamy (Public Member)
BETWEEN:
COLLEGE OF NURSES OF ONTARIO Denise Cooney for College of Nurses of Ontario
- and -
JEAN AIRNS NISBET Registration No. 9007246 Christopher Bryden for Jean Airns Nisbet Christopher Wirth, Independent Legal Counsel
Heard: October 14, 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 October 14, 2022, via videoconference.
The Allegations
The allegations against Jean Airns Nisbet (the “Member”) as stated in the Notice of Hearing dated April 19, 2022 are as follows:
IT IS ALLEGED THAT:
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto Western 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 2016, you submitted false claims under the Facility’s employee group benefit plan (the “Benefit Plan”).
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(8) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Facility, you misappropriated property from a client or workplace, and in particular, in or around 2016, you submitted false claims under the Benefit Plan.
You committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(14) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Facility, you falsified a record relating to your practice, and in particular, in or around 2016, you submitted false claims under the Benefit Plan.
You committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(15) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Facility, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, and in particular, in or around 2016, you submitted false claims under the Benefit Plan.
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Facility, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular, in or around 2016, you submitted false claims under the Benefit Plan.
Member’s Plea
The Member admitted the allegations set out in paragraphs 1, 2, 3, 4 and 5 in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.
Agreed Statement of Facts
College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:
MEMBER
Jean Airns Nisbet (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on March 21, 1986, and as a Registered Nurse (“RN”) on October 11, 1989. The Member’s RPN certificate was suspended for non-payment on May 1, 1997, and she resigned her RPN certificate on February 1, 2013.
The Member was employed as an RN at Toronto Western Hospital, located in Toronto, Ontario (the “Facility”) at the time of the incidents described below. The Member is still employed at the Facility.
BENEFIT PLAN
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”). SunLife Insurance (“SunLife”) 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, based on their election for individual or family coverage.
To submit a benefit claim online, members of the Benefit Plan must confirm that the information submitted is accurate and true, and agree, if requested, to provide original receipts and/or supporting documents.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
In 2016, the Member submitted false claims for medical services (such as chiropody) and products (such as compression stockings, orthotics and shoe modifications) under the Benefit Plan and received $3,025.47 in monetary payments and/or store credits for items which were not covered by the Benefit Plan.
Following an investigation by SunLife into a service provider who was found to have been participating in benefit fraud, the Facility conducted an internal investigation of claims submitted by employees under the Benefit Plan.
The Facility identified the Member as having submitted a series of claims that required review. The Facility met with the Member on December 18, 2017 and February 9, 2018 as part of its internal investigation. During and after these meetings, the Member admitted to the Facility that she submitted false claims. In exchange for the false claims, the Member would receive store credits for products (such as shoes) which were not covered by the Benefit Plan.
The Member made restitution of $3,025.47 and served a five-day, unpaid suspension.
BENEFIT FRAUD CASES
- To date, at least 75 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
CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.
CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standards of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.
CNO’s Professional Standards provides, in relation to the leadership standard, that leadership requires self-knowledge (understanding one’s beliefs and values and being aware of how one’s behaviour affects others), respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. The leadership expectation is not limited to nurses in formal leadership positions and all nurses, regardless of their position, have opportunities for leadership. Nurses demonstrate this standard by actions such as role-modelling professional values, beliefs and attributes.
Ethics
CNO’s Ethics Standard describes ethical values that are important to the nursing profession in Ontario including patient well-being, patient choice, privacy and confidentiality, respect for life, maintaining commitments, truthfulness and fairness.
CNO’s Ethics Standard provides, in relation to maintaining commitments, that nurses have a commitment to the nursing profession and being a member of the profession brings with it the respect and trust of the public. To continue to deserve this respect, nurses have a duty to uphold the standards of the profession, conduct themselves in a manner that reflects well on the profession, and to participate in and promote the growth of the profession.
CNO’s Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive.
The Member admits and acknowledges that she contravened CNO’s Professional Standards and Ethics Standard.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 5 to 8 and 10 to 16 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing in that she misappropriated property from a workplace, as described in paragraphs 5 to 8 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing in that she falsified a record relating to her practice, as described in paragraphs 5 to 8 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 4 of the Notice of Hearing in that she signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement, as described in paragraphs 5 to 8 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 5 of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 5 to 8 and 10 to 16 above.
Submissions on liability were made by College Counsel.
College Counsel asked the Panel to accept the Agreed Statement of Facts and the Member’s admissions to all the allegations as set out in paragraphs 17-21 in the Agreed Statement of Facts and to find the Member committed professional misconduct. College Counsel submitted to the Panel that when any member of the profession submits false claims under the employer benefit plan it is relevant to the nursing profession as it is directly related to the Member’s nursing employment when she filed these false claims.
The Member’s Counsel advised the Panel that the Member was remorseful, apologizes and is committed to ensuring that this never happens again.
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 5-8, and 10-17 in the Agreed Statement of Facts. Under the College's Professional Standards, the Member has an obligation to conduct herself with respect, trust and integrity. The Member admitted to contravening this standard when she submitted false claims through the Toronto Western Hospital’s (the “Facility”) employee group benefit plan (the “Benefit Plan”) in 2016 and to receiving $3,025.47 in monetary payments and/or store credits for items which were not covered by the Benefit Plan in relation to those false claims. The Member also admitted to contravening the College’s Ethics Standard, where in relation to truthfulness, members are to speak and act without intending to deceive. By submitting false claims to the Benefit Plan, the Member acted in direct opposition to this practice standard.
Allegation #2 in the Notice of Hearing is supported by paragraphs 5-8 and 18 in the Agreed Statement of Facts. The Member admitted to misappropriating property from the Facility by submitting false claims to the Benefit Plan in 2016 and to receiving $3,025.47 in monetary payments and/or store credits for items which were not covered by the Benefit Plan in relation to those false claims. Receiving money with respect to false benefit claims constitutes misappropriation of property.
Allegation #3 in the Notice of Hearing is supported by paragraphs 5-8 and 19 in the Agreed Statement of Facts. The Member falsified a record relating to her practice when she submitted false claims to the Benefit Plan in 2016. Following an investigation by SunLife Insurance into a service provider who was found to have been participating in benefit fraud, the Facility conducted an internal investigation of claims submitted by employees under the Benefit Plan. The Facility identified the Member as having submitted a series of claims that required review. The Facility met with the Member on December 18, 2017 and February 9, 2018 as part of its internal investigation. During and after these meetings, the Member admitted to the Facility that she submitted false claims. In exchange for the false claims, the Member would receive store credits for products (such as shoes) which were not covered by the Benefit Plan. The Member had access to the benefit plan by virtue of her employment as a nursing professional. Accordingly, the facts support the allegation that the Member falsified a record relating to her practice and did so in the context of her employment as a Registered Practical Nurse.
Allegation #4 in the Notice of Hearing is supported by paragraphs 5-8 and 20 in the Agreed Statement of Facts. The Member admitted that she signed, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement. To submit a benefit claim online, members of the Benefit Plan must confirm that the information submitted is accurate and true, and agree, if requested, to provide original receipts and/or supporting documents. As noted above, the Member had access to the benefit plan by virtue of her employment as a nursing professional. Accordingly, the facts support the allegation that the Member signed, in her professional capacity, a document that she knew contained a false or misleading statement.
With respect to allegation #5 and supported by paragraphs 5-7 and 10-16 in the Agreed Statement of Facts, the Panel finds that the Member’s conduct in submitting false benefit claims was clearly relevant to the practice of nursing. The Panel found the 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 falsifying documentation in her professional capacity that she knew or ought to have known fell below the level of integrity that the public expects from nurses. The Member also knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.
Penalty
College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:
Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 3 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):
Code of Conduct,
Professional Standards, and
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:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into 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. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;
ii. 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;
iii. Provide the Member’s employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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 serious and persistent dishonesty and deceit by the Member at the expense of the employer-funded benefit plan;
The employer is a public institution and therefore these claims were funded in part out of the public purse;
The Member received $3,025.47 for false claims for a variety of services and products;
This was not a simple lapse of judgement and there were enough opportunities presented to the Member to reconsider her actions and take accountability;
The Member took advantage of the trust that was placed in her by her employer and the Benefit Plan to use the benefits appropriately; and
The Member took advantage of the privilege of having an employer-funded benefit plan.
The mitigating factors in this case were:
The Member has repeatedly taken responsibility for her actions with respect to the Facility’s and the College’s investigations;
The Member has taken responsibility 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;
The Member made full restitution of the amount at issue;
The Member is a long-standing member of the College, she was first registered as an RPN over 35 years ago; and
The Member has no prior disciplinary history with the College.
The proposed penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration. General deterrence is of key significance in this case as there have been at least 75 fraudulent cases to date and there needs to be a clear message sent to the other members of the profession that misconduct involving benefit fraud is not acceptable and will not be tolerated by the public or the College. The suspension sends a strong signal to all members of the profession that this conduct is unacceptable and sends a clear message to the profession that this type of dishonesty is not professional.
The proposed penalty provides for specific deterrence through the oral reprimand and the 3-month suspension of the Member’s certificate of registration. The oral reprimand will assist the Member in achieving a greater understanding of how her actions are perceived by her colleagues and members of the public. The suspension sends a strong signal to the Member that this conduct is unacceptable and makes sure it is not repeated.
The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the College’s standards and publications. These remediation steps will allow the Member to reflect on her actions and absorb the gravity of how her actions affect the profession and will allow the Member to return to ethical practice.
Overall, the public is protected through the 12 months of employer notification which sets a clear basis of enhanced employer oversight upon the Member’s return to 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. 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 included the member making false claims under her employee group benefit plan, signing or issuing in her professional capacity, documents which she knew or ought to have known contained false or misleading statements and misappropriation of property. 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 4-month suspension in this case was the only significant difference as the member did not make restitution.
CNO v. De Vera (Discipline Committee, 2022): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member had received $2,650.00 from false benefit claims and full restitution was made. 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 which is identical to the terms being sought in the case before this Panel.
Submissions were made by the Member’s Counsel.
The Member’s Counsel submitted the following mitigating factors:
The Member is remorseful and contrite.
The Member is committed to cooperating with the Joint Submission on Order
Penalty Decision
The Panel accepts the Joint Submission on Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 3 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):
Code of Conduct,
Professional Standards, and
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:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into 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. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;
ii. 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;
iii. Provide the Member’s employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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. General and specific deterrence is satisfied by the suspension which sends a strong signal to the Member and all members of the profession that this conduct is unacceptable and makes sure it is not repeated. The Oral reprimand will assist the Member in achieving a greater understanding of how her actions are perceived by her colleagues and members of the public. The meetings with a regulatory expert and review of the College’s standards satisfy the goals of rehabilitation and remediation as this will allow the Member to return to ethical practice. Finally, the employer notification provision will promote public protection as there will be enhanced employer oversight upon the Member’s return to practice.
The penalty is also in line with what has been ordered in previous cases in similar circumstances.
I, Sherry Szucsko-Bedard, 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.