DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Sherry Szucsko-Bedard, RN Chairperson
Morgan Krauter, NP Member
Karen Laforet, RN Member
Sandra Larmour Public Member
Lalitha Poonasamy Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) DOUGLAS MONTGOMERY for
) College of Nurses of Ontario
- and - )
IVY ORINES ) DANIEL LIBMAN for
Registration No. AJ752633 ) Ivy Orines
) PATRICIA HARPER
) Independent Legal Counsel
) Heard: May 18, 2023
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on May 18, 2023, via videoconference.
The Allegations
The allegations against Ivy Orines (the “Member”) as stated in the Notice of Hearing dated December 8, 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 Practical Nurse at Bridgepoint Active Healthcare - Sinai Health System 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 2015 to 2017, you submitted and/or accepted payment for false claims under the Facility’s employee group 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 Practical Nurse at Bridgepoint Active Healthcare - Sinai Health System in Toronto, Ontario (the “Facility”), you misappropriated property from a client or workplace, and in particular, in or around 2015 to 2017, you submitted and/or accepted payment for false claims under the Facility’s employee group 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 Practical Nurse at Bridgepoint Active Healthcare - Sinai Health System in Toronto, Ontario (the “Facility”), you falsified a record relating to your practice, and in particular, in or around 2015 to 2017, you submitted and/or accepted payment for false claims under the Facility’s employee group 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 Practical Nurse at Bridgepoint Active Healthcare - Sinai Health System in Toronto, Ontario (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 2015 to 2017, you submitted and/or accepted payment for false claims under the Facility’s employee group 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 Practical Nurse at Bridgepoint Active Healthcare - Sinai Health System in Toronto, Ontario (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 2015 to 2017, you submitted and/or accepted payment for false claims under the Facility’s employee group 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
Ivy Orines (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on January 4, 2010.
At the time of the incident, the Member was employed at Bridgepoint Active Healthcare, a complex care and rehabilitation centre which is part of the Sinai Health System in Toronto, Ontario (the “Facility”). Her employment with the Facility ended on October 30, 2017, following the Facility’s investigation into the incidents described below.
BENEFIT PLAN
The Facility offers its employees a group insurance policy through which the Facility provides coverage to employees for extended health care, dental, and other insurance benefits (the “Benefit Plan”). Sun Life Financial (“Sun Life”) 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.
To submit a benefit claim, members of the Benefit Plan would complete a medical expense claim form provided by Sun Life. The medical expense claim form requires certain information, including information on the plan member, any dependents, and the nature of the claim. The plan member must certify that all goods or services were received as claimed, and that the information provided in the benefit claim form is “true and complete”.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
Sun Life identified Elm Orthotics and Foot Care, formerly called Downtown Wellness and Foot Care (“Elm Orthotics”), as a high-billing service provider for orthotics, braces, and compression stockings. Sun Life initiated an investigation into Elm Orthotics, which included a secret shopper visit on March 1, 2017. Sun Life ultimately concluded that Elm Orthotics had been involved in facilitating a scheme whereby illegitimate claims were submitted for goods or services that were not actually provided.
Several of the Facility’s employees were identified as having submitted claims at Elm Orthotics, including the Member.
The Facility and Sun Life interviewed the Member on October 27, 2017. Although the Member initially stated that all her claims made through Elm Orthotics were proper, she eventually admitted to participating in a scheme whereby she purchased non-medical items for herself and her family with funds received from the benefit plan for false claim submissions.
Sun Life ultimately determined the Member made claims for orthotics, orthopedic shoes, and podiatrist/chiropodist services which were not received. The value of the claims amounted to $2,290.
The Member ultimately paid restitution to the Facility.
BENEFIT FRAUD CASES
- To date, at least 80 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 9 and 11 to 17 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 9 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 9 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 9 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 9 and 11 to 17 above.
College Counsel’s Submissions on Liability
College Counsel asked the Panel to accept the Agreed Statement of Facts, as well as the Member’s admissions to all the allegations as set out in paragraphs 18-22 of the Agreed Statement of Facts and, on the basis of those facts and admissions, make findings of professional misconduct with respect to the allegations in the Notice of Hearing. College Counsel submitted that the Panel had taken the Member’s plea and conducted a verbal plea inquiry, which confirmed that the plea was voluntary, informed, and made on the advice of experienced Counsel.
With regard to allegation #1, College Counsel submitted that the Member failed to meet the provisions of the College’s Professional Standards and the Ethics Standard. The Member admitted that these standards were breached when she submitted false claims through the Bridgepoint Active Healthcare – Sinai Health System’s (the “Facility”) employee group benefit plan (the “Benefit Plan”) and purchased non-medical items with the funds received. The value of the claims amounted to $2,290.00. Therefore, this admission and supporting facts provide a basis for making findings of professional misconduct.
With regard to allegation #5, College Counsel submitted that the Member’s conduct was relevant to the practice of nursing since it was through her employment as a Registered Practical Nurse (“RPN”) at the Facility that she had access to the Benefit Plan. College Counsel submitted that members of the profession would regard the Member’s conduct as unprofessional and dishonourable as her conduct was a departure from the conduct expected of nurses. The Member’s conduct was unprofessional as it demonstrated a marked and persistent disregard to act with integrity and uphold the trust of the public. Dishonourable conduct involves an element of moral failing, and this holds out in this case due to the Member’s acts of dishonesty. The Member’s conduct was dishonourable in that submitting false claims demonstrated dishonesty and deceit.
The parties did not agree, nor had the Member admitted, that the conduct was disgraceful. Disgraceful conduct is most serious misconduct such that it brings the profession into disrepute. Therefore, the College was only seeking a finding of unprofessional and dishonourable conduct and not seeking a finding of disgraceful conduct.
College Counsel submitted for review CNO v. Verde-Balayo (Discipline Committee, 2021). This was the first decision from the Discipline Committee regarding similar conduct and the panel in the case concluded that conduct of this nature was unprofessional and dishonourable, but not disgraceful.
College Counsel asked the Panel to make findings on all of the allegations in the Notice of Hearing.
The Member’s Counsel’s Submissions on Liability
The Member’s Counsel asked the Panel to accept the Agreed Statement of Facts which supported the Member’s admissions of professional misconduct made at paragraphs 18–22. In addition, paragraph 22 of the Agreed Statement of Facts confirmed that the Member had only admitted to unprofessional and dishonourable conduct, not to conduct that was disgraceful.
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 5–9 and 11–18 in the Agreed Statement of Facts. The Member admitted to submitting claims through the Facility’s Benefit Plan for orthotics, orthopedic shoes and podiatrist/chiropodist services which were not received and to purchasing non-medical items for herself and her family with funds received from the Benefit Plan for these false claim submissions. The value of the claims amounted to $2,290. The College’s Professional Standards require nurses to be truthful, have integrity and conduct themselves in a way that ensures respect for the nursing profession. The Ethics Standard also requires nurses to be truthful and to act without intending to deceive. The Member failed to meet these standards when she submitted false claims through the Facility’s Benefit Plan.
Allegation #2 in the Notice of Hearing is supported by paragraphs 5–9 and 19 in the Agreed Statement of Facts. The Member admitted to misappropriating property from the Facility when she submitted false claims through the Facility’s Benefit Plan for orthotics, orthopedic shoes and podiatrist/chiropodist services which were not received and purchasing non-medical items with the funds for herself and her family that valued in the amount of $2,290. Purchasing non-medical items with funds obtained from false benefit claims constitutes misappropriation of property.
Allegation #3 in the Notice of Hearing is supported by paragraphs 5–9 and 20 in the Agreed Statement of Facts. The Member admitted to falsifying a record relating to her practice when she signed and submitted false claim forms to the Facility’s Benefit Plan for medical services which were not received. The Member also certified that all goods or services were received as claimed, and that the information provided in the benefit claim form was “true and complete”. The Member, as an RPN employed at the Facility, had access to the Benefit Plan by virtue of her employment as a nursing professional and so her actions were related to her practice as a nurse. 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 an RPN at the Facility.
Allegation #4 in the Notice of Hearing is supported by paragraphs 4–9 and 21 in the Agreed Statement of Facts. The Member admitted to signing or issuing, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement. When the Member signed the medical expense claim form that required her to certify that all goods or services were received as claimed, and that the information provided in the benefit claim form was “true and complete”, she knew or ought to have known that it was a false claim under the Facility’s Benefit Plan and therefore she was signing a document that contained a false or misleading statement. As noted above, the Member had access to the Facility’s Benefit Plan by virtue of her employment as a nursing professional. When she signed and submitted claim forms, she did so in her capacity as an RPN employee of the Facility. Accordingly, the facts support the allegation that the Member signed or issued, in her professional capacity, a document that she knew contained a false or misleading statement.
Allegation #5 in the Notice of Hearing is supported by paragraphs 5–9, 11–17 and 22 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. It 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 Member failed to act with integrity and to maintain public trust by her intentional submissions of false claims.
The Panel also finds that the Member’s conduct was dishonourable as it demonstrated an element of dishonesty, deceit and moral failing when she repeatedly submitted benefit claims she knew to be false. The Member 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
College Counsel’s Submissions
College Counsel submitted that the Panel was required to accept the Joint Submission on Order unless the terms were contrary to the public interest, brought the administration of justice into disrepute, or failed to meet the goals of penalty. The proposed penalty appropriately considered the aggravating and mitigating factors of this case, would protect the public, met the objectives of penalty and was consistent with prior decisions of the Discipline Committee.
The aggravating factors in this case were:
The Member’s serious and persistent dishonesty and deceit at the expense of the Facility’s Benefit Plan;
The Member submitted claims for medical services not received and used the funds from the false claims to purchase non-medical items for a value of $2,290.00.
The Member’s pattern of misconduct could have stopped at any time. However, she failed to do so, demonstrating this was not a one-time lapse in judgment;
The Member took advantage of the Facility and the Benefit Plan; and
The Member abused the privilege of having a Benefit Plan.
The mitigating factors in this case were:
The Member took 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, thereby saving the expense of a contested hearing;
The Member made restitution;
The Member eventually took responsibility with the Facility; and
The Member had no prior discipline history with the College since receiving her certificate of registration in 2010.
College Counsel submitted that the Joint Submission on Order met the objectives of penalty, which are not to punish the Member, but to enhance public confidence in the College’s ability to regulate nurses and maintain high standards. The elements of the penalty address specific and general deterrence and provide for rehabilitation and remediation.
The proposed penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration, which will send a message to the members of the profession that inappropriate use of employee benefits is not acceptable. The need for general deterrence is pronounced in benefit fraud cases as there is indication of a systemic issue which requires the College to respond with a clear message to members of the profession.
The proposed penalty provides for specific deterrence through the oral reprimand and the 3-month suspension of the Member’s certificate of registration, which will help the Member gain greater understanding of how her actions are perceived by members of the profession and the public and sends a message to the Member that this type of behaviour is unacceptable.
The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the College’s publications. These activities will help the Member return to an ethical practice as is expected of nurses.
Overall, the public is protected through the 12 months of employer notification, which adds an additional layer of oversight on 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 penalty hearing proceeded by way of a Partial Joint Submission on Order. This case established a precedent regarding the penalty in benefit misuse cases. The member submitted false benefit claims in the amount of $7,982.50. The member did not make restitution. The penalty included an oral reprimand, a 4-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification. The terms, conditions and limitations in the case are similar to the proposed Joint Submission on Order in the case before this Panel.
CNO v. Lee (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 submitted false benefit claims in the amount of $2,315.00. The member had received a five-day unpaid suspension from the facility and had entered into a payment agreement to pay back the $2,315.00. 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. The same terms, conditions and limitations are being proposed in the Joint Submission on Order in the case before this Panel.
CNO v. Soosaipillai (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 submitted false benefit claims in the amount of $2,150.00. The member had received a five-day unpaid suspension from the facility and had entered into a payment agreement to pay back the $2,150.00. 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.
The Member’s Counsel’s Submissions
The Member’s Counsel asked the Panel to accept the Joint Submission on Order as it met the College’s goals of maintaining the integrity of the profession, and also addressed the need for deterrence and the Member’s potential for rehabilitation.
The Member’s Counsel submitted that there were a number of mitigating factors. The Member had admitted to the allegations and had taken responsibility for her actions by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College. The Member acknowledged that her behaviour did not speak to her clinical skill and yet fell short of the standard. The Member was remorseful and had cooperated with the College saving time and resources and prevented a contested hearing. Prior to these allegations the Member had an unblemished record.
The Member’s Counsel submitted that the Joint Submission on Order provided an appropriate penalty. It addressed specific and general deterrence, recognized the Member’s potential for rehabilitation and protected the public.
The Member’s Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty should not be interfered with or rejected by the Panel lightly:
R v. Anthony-Cook (Supreme Court of Canada, 2016): This case is considered the leading authority on Joint Submissions on Order. The decision upheld that a Joint Submission on Order should not be changed unless the proposed penalty would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. The Member’s Counsel submitted that the proposed penalty before the Panel did not meet this high threshold for rejecting a Joint Submission on Order, nor was it appropriate to make changes to a Joint Submission on Order that had been negotiated by experienced Counsel.
Bradley v. Ontario College of Teachers (Divisional Court, 2021): This was an appeal case brought before the Divisional Court regarding the College of Teachers’ Discipline Committee changing conditions of a Joint Submission on Order. The appeal was allowed as the discipline panel was unable to show why the penalty agreed to by the parties was contrary to the public interest.
The Member’s Counsel submitted that the principles of penalty, specifically public safety, increasing public confidence in the self-regulation of the profession and the Member’s remediation and rehabilitation, are met with the proposed Joint Submission on Order. The penalty is consistent with other penalties for similar cases and had been negotiated by experienced Counsel. Public interest was met with the proposed order and the cases presented encourage 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 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. Specifically, the oral reprimand and the 3-month suspension of the Member’s certificate of registration provides for specific deterrence. The 3-month suspension of the Member’s certificate of registration provides for general deterrence. The 2 meetings with a Regulatory Expert will allow for rehabilitation and remediation and the 12 months of employer notification will ensure the public is protected.
The penalty is also in line with what has been ordered in previous cases in similar circumstances.
I, Lalitha Poonasamy, Public Member, sign this decision and reasons for the decision on behalf of the Chairperson and members of this Discipline Panel.