DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL:
Sherry Szucsko-Bedard, RN Chairperson Sylvia Douglas Public Member Marnie MacDougall Public Member Heather Stevanka, RN Member Patricia Sullivan-Taylor, RN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) GLYNNIS HAWE for ) College of Nurses of Ontario
- and - ) KRISTEN MCFARLANE ) MIRIAM LONDON for Registration No. 08341412 ) Kristen McFarlane ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: February 17, 2022
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on February 17, 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 public disclosure and banning the publication or broadcasting of the name(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented at the Discipline hearing of Kristen McFarlane. The Member’s Counsel did not oppose the motion.
The Panel considered the submissions of College Counsel and Member’s Counsel, and decided that there be an order preventing public disclosure and banning the publication or broadcasting of the name(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented at the Discipline hearing of Kristen McFarlane.
The Allegations
The allegations against Kristen McFarlane (the “Member”) as stated in the Notice of Hearing dated November 1, 2021 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 you were employed as a Registered Nurse (“RN”) at the Thunder Bay Regional Health Sciences Centre in Thunder Bay, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession in that, on or around March 9 to 10, 2019, you disclosed the personal health information of [the Patient], without the patient’s consent or other authorization and/or for no clinical purpose;
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(10) of Ontario Regulation 799/93, in that while you were employed as a RN at the Facility, you gave information about a patient to a person other than the patient or his or her authorized representative without the consent of the patient or his or her authorized representative or as required or allowed by law in that, on or around March 9 to 10, 2019, you disclosed the personal health information of [the Patient], without the patient’s consent or other authorization and/or for no clinical purpose; and/or
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 you were employed as a RN 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 in that, on or around March 9 to 10, 2019, you disclosed the personal health information of [the Patient], without the patient’s consent or other authorization and/or for no clinical purpose.
Member’s Plea
The Member admitted the allegations set out in paragraphs 1, 2 and 3 in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.
Agreed Statement of Facts
College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:
THE MEMBER
Kristen McFarlane (the “Member”) obtained a Baccalaureate Degree in nursing from Lakehead University in 2008.
The Member initially registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on May 9, 2008.
The Member was employed at Thunder Bay Regional Health Sciences Centre, located in Thunder Bay, Ontario (the “Facility”) from April 14, 2008 to April 15, 2019, at which time her employment was terminated.
At the time of the incident described below, the Member was working full-time on Ward 2A, the Medical Unit. The Member had recently returned from a medical leave of absence and the week of March 4, 2019 was the first week during which she assumed regular duties.
PRIOR HISTORY
- The Member has no prior disciplinary findings with CNO.
THE PATIENT
On March 3, 2019, the patient [ ] (the “Patient”) was admitted to the Facility.
The Patient was [ ] years old at the time and had recently been diagnosed with [ ] cancer.
The Patient was well known at the Facility because she had worked on Ward 1A, the Facility’s Oncology Unit [ ] for most of her career.
The Patient first presented at the Emergency Department due to a fracture and was later taken to the Intensive Care Unit for further assessment and monitoring.
On March 5, 2019, the Patient was transferred to Ward 2A, where the Member worked.
The Patient passed away on [ ], 2020.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
When the Patient was admitted to Ward 2A, she and her husband spoke with the Ward 2A Nurse Manager about the issue of patient confidentiality.
The Patient and her husband had expressed concerns about maintaining privacy given that the Patient [also worked] at the Facility. They requested that the Nurse Manager take extra caution to prevent the possibility of the Patient’s name appearing in documents easily accessible to staff not involved in her treatment, without prior approval.
Subsequent to this consultation with the Patient and her husband, the Nurse Manager held safety huddles with all the registered staff in Ward 2A who would be in the Patient’s circle of care, including the Member. The Nurse Manager instructed the registered staff to only use the Patient’s initials and to refrain from identifying the Patient by her full name.
The Member provided care to the Patient on March 6, 2019, and made multiple entries in the Patient’s chart.
[Nurse A], a Registered Practical Nurse (“RPN”), had previously worked with the Patient for three or four years on Ward 1A.
[Nurse A] also worked with the Member on Ward 2A from January to June of 2016.
In March 2019, [Nurse A] was working as an RPN in the Transitional Care Unit (“TCU”), a space offsite from the main Facility connected to Hogarth Riverview Manor, a long-term care home.
On March 9 or 10, 2019, while off duty, the Member visited TCU to see her grandmother, an inpatient on the unit.
Before leaving the TCU site, the Member stopped at the Nursing Station where [Nurse A] was seated and initiated a friendly conversation. They spoke for approximately ten minutes.
The Member did not lower her voice; she spoke at a normal volume throughout the interaction with [Nurse A].
During the conversation, the Member disclosed to [Nurse A] the fact that the Patient was on Ward 2A. The Member further informed [Nurse A] that:
a) The Patient was not in the electronic medical charting system (“Meditech”) and the Member commented that the reason for this was to accommodate the Patient’s request that no one at the Facility know she was a patient;
b) The Patient had fallen [ ] and required surgery on her leg;
c) The Patient had been transferred to the [ ] floor of the Facility for surgery;
d) The nurses on the [ ] floor of the Facility had not previously been aware of the Patient’s admission to the Facility because only upper management was privy to this information; and,
e) the Patient’s “cancer was back” and was “all in her bones” or words to similar effect.
This conversation was not in earshot of the Member’s grandmother, or any other patients.
[Nurse A] was not in the Patient’s circle of care.
There was no clinical purpose in disclosing the Patient’s health information to [Nurse A].
The Member did not have explicit or implicit consent to make the disclosure to a third party outside the Patient’s circle of care.
[Nurse A] reported the fact and content of the conversation she had with the Member to the Facility approximately a week later. She expressed concern about the Member’s disclosure of Patient information and noted that she felt unable to stop the conversation at the time.
On March 20, 2019, the Nurse Manager informed the Member that he had received a report from [Nurse A] and requested that she complete a privacy breach memo recounting her recollection of the incident.
In response to the Nurse Manager’s request, the Member indicated that she was not able to fully remember everything from the date of the incident due to a lack of sleep and stressors in her personal life. The Member nonetheless took responsibility and apologized.
If the Member were to testify, she would state that the incident is not a reflection of how she typically conducts herself in the workplace. Rather, even engaging in gossip or “watercooler talk” with colleagues is in contrast to her ordinarily reserved nature.
The incident occurred within days of the Member returning to her full duties at the Facility, following a lengthy leave of absence precipitated by a medical disability.
If the Member were to testify, she would say that at the time of the incident she was experiencing an adverse reaction to a medication prescribed to her when she sought medical attention during her leave of absence. Under direct medical supervision of her treating physician, the Member engaged in a trial of medications to ultimately arrive at the most effective and tolerable treatment for her condition. Through this process, the Member came to learn that the medication she was taking at the time of the incident is known to impact memory and social inhibitions for some individuals.
The Member admits and acknowledges that she disclosed the confidential health information of the Patient without authorization or consent, and for no clinical purpose. She has never denied the alleged conduct and immediately expressed remorse for her actions, notwithstanding the frailty of her own recollection of the events.
In her response to the CNO investigation, the Member acknowledged that she breached confidentiality when she discussed the Patient’s personal health information with [Nurse A]. The Member expressed remorse and noted that she has taken proactive steps to educate herself since the incident occurred, including reviewing CNO’s Code of Conduct and the Code of Conduct webcast, the Confidentiality and Privacy standard and webcast, and the Ethics standard and Ethics Learning Module.
professional obligation to Protect Personal Health Information
The Personal Health Information Protection Act, 2004 (“PHIPA”) governs health care information in Ontario. Under PHIPA, the Facility and its agent nurses are required to have the consent of an individual in order to disclose their personal health information, subject to specific exceptions which are not applicable in this instance.
CNO’s Confidentiality and Privacy – Personal Health Information standard incorporates and confirms the obligations of nurses under PHIPA. It states that nurses have ethical and legal responsibilities to maintain the confidentiality and privacy of client health information obtained while providing care. In addition, nurses are responsible for ensuring that they use client information only for the purpose(s) for which it was collected.
A nurse meets the standard with respect to personal health information practices by obtaining express consent to disclose personal health information outside of the patient’s health care team or for a purpose unrelated to providing health care.
As expressly referenced in the standard, one of the definitions of professional misconduct in the Nursing Act, 1991, is “giving information about a client to a person other than the client or his or her authorized representative, except with the consent of the client or his or her representative, or as required or allowed by law.”
In addition, the Facility’s Confidentiality and Release of Information Policy states that “all information concerning patients and hospital business is confidential and must be treated as privileged information.” Patient affairs or illnesses must never be discussed with anyone, including fellow employees, except in the course of duty.
The Facility also has a Privacy of Personal Health Information (PHI) Policy, which states that patient personal health information should only be shared on a “need to know” basis to current and direct care providers. Access to health information is limited to information that is required to fulfill the purpose of care.
The Member completed training on confidentiality of patient information when she was initially hired by the Facility in 2008 and on an annual basis thereafter.
On May 8, 2008, the Member executed an agreement with the Facility acknowledging that she understood that she was required to never discuss or disclose patient, client or corporate information unless required for the performance of her normal duties.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that she committed the act 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 standard of practice of the profession, as described in paragraphs 6-42 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, by giving information about a patient to a person other than the patient or his or her authorized representative without the consent of the patient or his or her authorized representative or as required by law, as described in paragraphs 6-42 above.
The Member admits that she committed the act of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, in that she engaged in conduct relevant to the practice of nursing, that would reasonably be regarded by members as dishonourable and unprofessional, as described in paragraphs 6-42 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, and 2 of the Notice of Hearing. As to allegation #3, 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 6 to 43 in the Agreed Statement of Facts. The Member admitted that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing. The Panel finds that she contravened a standard of practice of the profession or failed to meet the standard of practice when she disclosed the personal health information of [the Patient] without the patient’s consent or other authorization and/or for no clinical purpose. [The Patient] and her husband had gone to great lengths to ensure confidentiality and privacy. They had spoken with the Ward 2A Nurse Manager and requested extra caution be taken to prevent [the Patient]'s name from appearing in documents easily accessible to staff not involved in her treatment, without prior approval. The Member attended safety huddles with other registered staff in Ward 2A. The staff and the Member were instructed to only use [the Patient]’s initials and to refrain from identifying [the Patient] by her full name. [The Patient] was well known at the Facility because she had worked on Ward 1A, the Oncology Unit, [ ] for most of her career. On March 9 or 10, 2019, the Member was off duty and while visiting her grandmother at the Transitional Care Unit (“TCU”), the Member shared [the Patient]'s confidential information with [Nurse A], an RPN who also worked with the Member on Ward 2A from January to June 2016. This is a breach of the College’s Confidentiality and Privacy-Personal Health Information Standard which states that nurses have ethical and legal responsibilities to maintain the confidentiality and privacy of client health information obtained while providing care, that the nurse meets the standard by seeking information about issues of privacy and confidentiality of personal health information and by not discussing client information with colleagues or the client in public places.
Allegation #2 in the Notice of Hearing is supported by paragraphs 6 to 42 and 44 in the Agreed Statement of Facts. The Member admitted that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing. The Panel finds she gave information about [the Patient] to a person other than [the Patient] or her authorized representative without [the Patient]'s consent or the consent of her authorized representative as required by law. While visiting her grandmother at TCU, the Member shared [the Patient]’s personal information with [Nurse A]. The Member disclosed to [Nurse A] that [the Patient]’s medical information was not in the electronic medical charting system (“Meditech”), so no one knew she was there. The Member shared the personal information without the consent of [the Patient] or her authorized representative that [the Patient] had fallen and was transferred to the [ ] floor for surgery on her leg. Lastly, the Member shared that [the Patient]’s “cancer was back.” [Nurse A] was not in [the Patient]’s circle of care. The Member had no clinical purpose for disclosing [the Patient]’s personal health information to [Nurse A]. The Facility’s Confidentiality and Release of Information Policy states that “all information concerning patients and hospital business is confidential and must be treated as privileged information.”
With respect to allegation #3 which is supported by paragraphs 6 to 42 and 45, the Panel finds that the Member’s conduct was clearly relevant to the practice of nursing and was unprofessional and dishonourable.
The Member admitted and acknowledged that she disclosed the confidential health information of [the Patient] without authorization or consent and for no clinical purpose. Nurses are accountable for practising in accordance with the Professional Standards, practice expectations, legislation and regulations. They inform nurses of their accountabilities and the public of what to expect of nurses. Standards apply to all nurses regardless of their role, job description or area of practice. The Panel finds that the Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.
The Panel also finds that the Member’s conduct was dishonourable. The Member shared confidential information with a person, not in [the Patient]’s circle of care or employed at the Facility at the time of the incident. The Member breached [the Patient] and her husband's trust, causing undue stress and harm. The Member’s conduct has an element of moral failing; the Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional. The College’s Ethics Standard states, “Nurses demonstrate regard for privacy and confidentiality by keeping all personal and health information confidential within the obligations of the law and standards of practice and protecting clients’ physical and emotional privacy.”
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 three months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 1 month. This suspension shall take effect from February 20, 2022, 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 a minimum of 1 meeting with a Regulatory Expert (the “Expert”) at her 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 the Director of Professional Conduct (the “Director”) 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 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 the Director of Professional Conduct (the “Director”) in advance of the meetings;
ii. At least seven days before the first meeting, 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, decision tools and online participation forms (where applicable):
Professional Standards,
Confidentiality and Privacy – Personal Health Information,
Code of Conduct,
Circle of Care: Sharing Personal Information for Health-Care Purposes as released by the Information and Privacy Commissioner of Ontario;
iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms;
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 his/her report to the Director, 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 her behaviour;
vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;
b) For a period of 12 months from the date this Order becomes final, the Member will notify her employers of the decision. To comply, the Member is required to:
i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
ii. Provide her employer(s) with a copy of:
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;
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 the Director, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify the Director 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 the 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 that the Joint Submission on Order is the product of negotiations by experienced counsel and that the Panel must accept it as it is in the public interest, is appropriate and reflects the aggravating and mitigating factors, meets the goals of penalty and is consistent with prior decisions of this Committee.
The aggravating factors in this case were:
The Member took advantage of a vulnerable patient;
[the Patient] and her husband took steps to prevent disclosing her personal health information by setting up meetings with the Nurse Manager and the care team in which the Member was a part;
The Member breached the trust of [the Patient], her family and colleagues.
The mitigating factors in this case were:
The Member took responsibility for her actions with her employer and the College;
The Member co-operated with the College by entering into an Agreed Statement of Facts and a Joint Submission on Order;
The Member expressed remorse for her conduct;
The Member has no previous disciplinary history with the College;
It appears to be a single isolated incident.
The proposed penalty provides for general deterrence through the 1 month suspension of the Member’s certificate of registration as it sends a message to the membership that sharing a patient’s personal health information is unacceptable and taken seriously.
The penalty provides for specific deterrence through the oral reprimand and the 1 month suspension of the Member’s certificate of registration as it demonstrates the seriousness of the conduct to the Member.
The proposed penalty provides for remediation and rehabilitation through a minimum of 1 meeting with a Regulatory Expert which will help the Member to reflect and learn from her mistakes and through the 12 months of employer notification which will ensure that this will not occur again. The proposed penalty also promotes public confidence in the ability of the nursing profession to regulate its members.
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. Vaughan (Discipline Committee, 2017): In this case, the member accessed the personal health information of ten patients without consent or proper authorization. The panel found that the member’s conduct was dishonourable, and it demonstrated an element of dishonesty and deceit as the member accessed the client records over a period of time and in a surreptitious manner. The penalty included an oral reprimand, a three-month suspension of the member’s certificate of registration, two meetings with a Nursing Expert and 12 months of employer notification.
The case before this Panel is different in that it was a one-time occurrence, and the Member did not access the patient's chart but knew the patient's history and current situation.
CNO v. Halley (Discipline Committee, 2018): In this case, the member accessed the personal health information of a high-profile patient known to her. The member was not in the circle of care yet accessed personal health information 13 times over two occasions then shared it with the patient’s office clerk. The panel found the member’s conduct was dishonourable, and it demonstrated an element of dishonesty and deceit through accessing information she had no reason to access in the performance of her professional duties as this patient was not under her care. The penalty included an oral reprimand, a two-month suspension of the member’s certificate of registration, two meetings with a Nursing Expert and 12 months of employer notification.
Submissions were made by the Member’s Counsel.
The Member’s Counsel submitted that she agreed with College Counsel's submissions as to why the Joint Submission on Order meets the goals of penalty.
The Member’s Counsel also submitted that the Member entered into the Agreed Statement of Facts and the Joint Submission on Order, thereby taking responsibility for her actions. The Member has no prior discipline history with the College and has been an RN with 14 years of service, and there have never been workplace issues. The Member’s Counsel submitted that this was not a typical breach of information case or a snooping case as the Member had access because she was in the patient’s circle of care and did not access any personal health records. The Member acknowledged that she disclosed information about the patient. The Member admitted that she could not recall exactly the events and admitted that her colleague, [Nurse A], had no reason to lie. The Member took accountability for her actions. The Member was on an extended leave of absence, and she was unaware that the medication she was prescribed was affecting her social inhibitions. The Member’s Counsel submitted that the Member is normally an introvert, and she does not generally socialize with her peers and would never talk about a patient. The Member realized the medication had changed her behaviour, so she returned to her doctor, and the prescription was changed, and she returned to normal. The Member never tried to cover up what she had done; she took full responsibility and expressed remorse and continues to do so.
Lastly, the Member’s Counsel submitted that this is an appropriate order and the product of negotiations by experienced counsel. The Member’s Counsel and the Member asked the Panel to accept 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 three months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 1 month. This suspension shall take effect from February 20, 2022, 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 a minimum of 1 meeting with a Regulatory Expert (the “Expert”) at her 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 the Director of Professional Conduct (the “Director”) 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 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 the Director of Professional Conduct (the “Director”) in advance of the meetings;
ii. At least seven days before the first meeting, 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, decision tools and online participation forms (where applicable):
Professional Standards,
Confidentiality and Privacy – Personal Health Information,
Code of Conduct,
Circle of Care: Sharing Personal Information for Health-Care Purposes as released by the Information and Privacy Commissioner of Ontario;
iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms;
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 his/her report to the Director, 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 her behaviour;
vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;
b) For a period of 12 months from the date this Order becomes final, the Member will notify her employers of the decision. To comply, the Member is required to:
i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
ii. Provide her employer(s) with a copy of:
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;
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 the Director, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify the Director 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 the 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.
Specific deterrence is met through the Member’s suspension and oral reprimand.
General deterrence is met through the suspension and the terms, conditions, and limitations on the Member’s certificate.
Rehabilitation and remediation are accomplished through the Member’s meeting with a Regulatory Expert. The meeting gives the Member the opportunity to reflect on the issues that brought her before the College, and she will gain the insight to improve her practice going forward.
Public protection is accomplished through all these aspects of the penalty and through the employer notification.
The penalty is consistent with past Discipline decisions, and falls within a reasonable range of penalties for privacy breaches or improper disclosure of patients' private health information. The penalty falls in the lower range of the scale because this is a single incident, and the Member had no inappropriate access and was part of the patient's care.
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.