College of Nurses of Ontario v. Lina Feng, 2023 ONCNO 149178

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Jean-Laurent Domingue, RN Member Sandra Larmour Public Member Matthew Secord, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO (JOSEPH BERGER for College of Nurses of Ontario)

• and -

LINA FENG Registration No. 14054809 (DENA SMITH-SPRINGER for Lina Feng)

PATRICIA HARPER Independent Legal Counsel

Heard: July 31, 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 July 31, 2023, via videoconference.

The Allegations

The allegations against Lina Feng (the “Member”) as stated in the Notice of Hearing dated June 26, 2023 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General 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 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(8) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General Hospital in Toronto, Ontario (the “Facility”), you misappropriated property from a client or workplace, and in particular, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

3. You committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(14) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General Hospital in Toronto, Ontario (the “Facility”), you falsified a record relating to your practice, and in particular, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

4. You committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(15) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General Hospital 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 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

5. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General Hospital 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 2016, 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

1. Lina Feng (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse in the General Class on July 30, 2014.

2. At the time of the incidents described below, the Member was employed at Toronto General Hospital in Toronto, Ontario (the “Facility”).

BENEFIT PLAN

3. The Facility offers its employees a self-insured group insurance policy by which the Facility provides coverage to employees for extended health care, dental, and other insurance benefits (the “Benefit Plan”). SunLife Insurance (“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.

4. To submit a benefit claim, members of the Benefit Plan were required to 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 for this claim is true and complete”, and then sign.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

5. In November 2015 and November 2016, the Member submitted two claims totaling $2,710 to the Benefit Plan for compression stockings, custom orthotics, shoe modifications, heel cushions, and a chiropody assessment.

6. In August 2017, Sun Life alerted the Facility that it had identified higher than expected costs in certain benefits categories and had conducted a review of benefits use at the Facility. Sun Life delisted a number of suppliers that it concluded had facilitated fraudulent claims. One of the service providers investigated by Sun Life was Downtown Wellness and Foot Care (“Downtown Wellness”).

7. The Facility initiated an internal investigation which included interviews of staff involved, including the Member, who had submitted claims from Downtown Wellness.

8. On July 9, 2018, the Facility interviewed the Member. During the interview, the Member admitted to having submitted claims for medical products that she did not receive and in return, receiving non-medical brand name products such as UGG boots, sneakers, and a pair of shoes for her father.

9. The Facility required the Member to make restitution in the amount of $2,750 and suspended the Member without pay from her employment for five days. The Member paid restitution.

BENEFIT FRAUD CASES

10. To date, at least 82 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

11. 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.

12. 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.

13. 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

14. 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.

15. 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.

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

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

ADMISSIONS OF PROFESSIONAL MISCONDUCT

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 has taken the Member’s plea, conducted a verbal plea inquiry, and received a written plea inquiry which confirmed that the plea was voluntary, informed, and made on the advice of experienced Counsel. College Counsel submitted that based on the Agreed Statement of Facts, which specifically describes the facts in relation to the allegations, the Panel has enough evidence to find that the Member committed professional misconduct as set out in all of the allegations in the Notice of Hearing.

College Counsel reviewed allegations #1 and #5 with the Panel. With regard to allegation #1, College Counsel submitted that this allegation is supported by the Agreed Statement of Facts, which contained evidence of the relevant College standards of the profession, as well as the Member’s admissions that those standards were breached.

With regard to allegation #5, College Counsel submitted that the parties agreed that the Member’s conduct is relevant to the practice of nursing and is dishonourable and unprofessional. College Counsel submitted that this agreement is part of a resolution reached between the College and the Member.

The conduct at issue, which is that the Member submitted two false claims totalling $2,710.00 through the Toronto General Hospital’s (the “Facility”) employee group benefit plan (the “Benefit Plan”) in November 2015 and November 2016, is relevant to the practice of nursing as claims were submitted as part of her nursing employment at the Facility. Although paragraph 9 of the Agreed Statement of Facts indicates that the Member paid back $2,750.00 to the Facility in restitution, which is $40.00 more than the alleged total of the false claims, for the purposes of this case, the parties agreed that the amount of the false claims totalled $2,710.00.

College Counsel submitted that having regard to all of the circumstances members of the profession would consider the Member’s conduct to be unprofessional and dishonourable as submitting false claims to the Benefit Plan constitutes a serious and persistent disregard for her professional obligations to act with honesty and integrity as required of a nurse. College Counsel further submitted that the Member’s conduct is dishonourable as it involved dishonesty and deceit. The Member repeated the conduct on two occasions, approximately one year apart, and thus, it should not be considered a one-time error in judgement. College Counsel submitted that the Member failed to act with integrity and that her conduct brings shame on the profession.

The Member’s Counsel did not make submissions on liability.

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 unprofessional and dishonourable.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1 in the Notice of Hearing is supported by paragraphs 5 to 9 and 11 to 18 in the Agreed Statement of Facts. The Member admitted to submitting two false claims through the Facility’s Benefit Plan in November 2015 and November 2016 for compression stockings, custom orthotics, shoe modifications, heel cushions, and a chiropody assessment and to receiving non-medical brand name products in the amount of $2,710.00 in relation to those false claims.

The Member contravened the College’s Professional Standards which provides that nurses are accountable to the public and responsible for ensuring that their practice and conduct meets the legislative requirements and the standards of the profession, and that they 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. The Panel finds that by submitting and accepting payments for two false claims, the Member failed to meet the standards of the profession and engaged in conduct that jeopardized the public’s respect for the nursing profession.

The Member also contravened the College’s Ethics Standard which provides 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 deserve this respect, nurses have a duty to uphold the standards of the profession, to conduct themselves in a manner that reflects well on the profession, and to participate in and promote the growth of the profession. The College’s Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive. The Panel finds that by submitting and receiving payments for two false claims, the Member conducted herself in a manner that intended to deceive and that reflected poorly on the profession.

Allegation #2 in the Notice of Hearing is supported by paragraphs 5 to 9 and 19 in the Agreed Statement of Facts. The Member admitted to misappropriating property from the Facility when she submitted two false claims through the Facility’s Benefit Plan and received non-medical brand name products for those false claims. Receiving non-medical brand name products with respect to false benefit claims constitutes misappropriation of property.

Allegation #3 in the Notice of Hearing is supported by paragraphs 5 to 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 medical expense claim forms to the Facility’s Benefit Plan. The Panel accepted the position of the parties in the Agreed Statement of Facts that it is by virtue of her employment as a nurse at the Facility that the member has access to the Benefit Plan, thus her actions are 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 RN at the Facility.

Allegation #4 in the Notice of Hearing is supported by paragraphs 5 to 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 forms that required her to certify that all goods or services were received as claimed and that “the information provided for this claim is true and complete”, she knew or ought to have known that she was signing a document that contained a false or misleading statement and that it was a false claim under the Facility’s Benefit Plan. As noted above, the Panel accepted that 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 on her behalf, she did so in her professional capacity as an RN. Accordingly, the facts support the allegation that the Member signed or issued, in her professional capacity, a document that she knew contained a false or misleading statement.

Allegation #5 in the Notice of Hearing is supported by paragraphs 5 to 9, 11 to 17 and 22 in the Agreed Statement of Facts. The Panel accepted the position of the parties in the Agreed Statement of Facts that it is by virtue of her employment as a nurse at the Facility that the member has access to the Benefit Plan, thus her actions are relevant to the practice of nursing. It was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in breaching the College’s 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 when she submitted false claims to the Facility’s Benefit Plan that she knew or ought to have known were false. The Member repeated her conduct on two occasions, and thus, the Panel does not consider it to be an error in judgement. The Panel finds that the Member’s conduct lacked integrity and brought shame on the profession. 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:

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 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.

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

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

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

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

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

1. Code of Conduct;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into the Member’s behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employer(s) of the decision. To comply, the Member is required to:

i. 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

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:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to CNO, the Expert or the Member’s employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

College Counsel’s Submissions

College Counsel submitted that the Panel should accept the Joint Submission on Order and make an order in accordance with its terms as it is a product of negotiations between two experienced Counsel. College Counsel submitted that the Panel is generally expected to accept the Joint Submission on Order unless it believes it is contrary to public interest or that it would bring the administration of justice into disrepute. College Counsel submitted that the Joint Submission on Order is appropriate for three reasons: (1) it reflects the aggravating and mitigating factors of the case; (2) it meets the goals of penalty; and (3) it is consistent with prior decisions of the College’s Discipline Committee.

The aggravating factors in this case were:

• The Member’s misconduct was repeated conduct. She made two false claims in November 2015 and November 2016;

• The total value of the Member’s claim was $2,710.00, which is not an insignificant amount of money;

• The Member’s conduct was dishonest and included an element of deceit;

• The Member’s conduct was carried out for her own financial benefit;

• The Member’s conduct came at the expense of an employer-funded benefit plan;

• The Member knew or ought to have known that what she was doing was wrong;

• The Member took advantage of the trust placed in her by the Facility and the public; and

• The Member abused the privilege of having an employer-funded benefit plan.

The mitigating factors in this case were:

• The Member has taken responsibility for her actions by admitting the allegations and entering into an Agreed Statement of Facts and a Joint Submission on Order with the College. College Counsel submitted that this can be understood as a sign of remorse and that, by taking responsibility, it saves the Panel and the College time and money;

• The Member made restitution; and

• The Member has no discipline history with the College.

The proposed penalty provides for general deterrence through the oral reprimand and the 3-month suspension of the Member’s certificate of registration. The oral reprimand will show to all members of the profession the perception of their peers related to their conduct. The 3-month suspension on the certificate of registration will send a signal to other members of the profession that this type of conduct is unacceptable and not worth it.

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 conduct is perceived by her colleagues and members of the public. The 3-month suspension of the Member’s certificate of registration will send a signal to the Member that her conduct is unacceptable and not worth it.

The proposed penalty provides for rehabilitation and remediation through the 2 meetings with a Regulatory Expert and review of the Code of Conduct, which will assist the Member with her transition to ethical nursing practice.

Overall, the public is protected through the 12 months of employer notification, which will allow for the Member’s employer to have greater oversight over her practice upon her return to nursing practice.

College Counsel submitted that the Agreed Statement of Facts indicates that at least 82 similar benefit fraud cases have been reported to the College and that, since then, at least 24 decisions have been published. College Counsel submitted that this form of dishonesty is not acceptable.

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. Nisbet (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 claims to her employer-funded benefit plan totalling $3,025.47. The Member made restitution and served a five-day unpaid suspension. The penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.

CNO v. 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 claims to her employer-funded benefit plan totalling $2,150.00. The member received a five-day unpaid suspension and entered into a payment agreement with the Facility 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.

CNO v. Avena (Discipline Committee, 2023): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member submitted false claims to his employer-funded benefit plan totalling $2,000.00. The member made restitution and served a five-day unpaid suspension. 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.

College Counsel submitted that the three cases provided to the Panel were similar to the one before this Panel. At least two of the three had the same provider and the members’ conduct in submitting false claims to an employer-funded benefit plan was the same. College Counsel submitted that at least 82 cases have been referred to the College’s Discipline Committee with similar schemes. The case before this Panel and the three similar cases provided to the Panel have a similar value of fraud. In the case before this Panel, the Member’s false claims totalled $2,710.00, which is comparable to the three cases provided. In all of the cases, the members made restitution.

College Counsel submitted that the one difference between the three cases provided to the Panel and the case before this Panel is that in the three cases provided to the Panel, the members were required to review the College’s Code of Conduct, the Professional Standards and the Ethics Standard. In the proposed penalty in the case before this Panel, the Member is only required to review the Code of Conduct. College Counsel submitted that the reason for this is that the two other publications are being suspended shortly, since the publication of the new Code of Conduct includes the elements of the Professional Standards and the Ethics Standard.

The Member’s Counsel’s Submissions

The Member’s Counsel submitted that the following contextual elements around the conduct should be considered as mitigating factors:

• The Member has been working for nine years at the Facility and continued in her employment there at the time of the hearing;

• The Member was introduced to Downtown Wellness (the facility that provided services for which the false claims were submitted) by colleagues that she trusted and respected;

• The Member mistakenly believed that chiropody assessments had been provided;

• The Member did not contemplate that the claims would be dishonest, and she did not associate that she was committing fraud;

• The Member regrets her conduct and knows that her conduct amounted to fraud;

• The total amount of the Member’s claims was at the lower end of the range of the 82 cases referred to the Discipline Committee;

• It was not until the second claim that the Member truly appreciated that what she was doing was wrong. After recognizing her error, she vowed to never return to Downtown Wellness;

• When the fraud was discovered between 2016 and 2018, the Member did not go back to Downtown Wellness and did not submit further false claims;

• When the Member was confronted by the Facility, she acknowledged her wrongdoing, and was remorseful;

• The Member made full restitution the day following her meeting with the Facility;

• The Member has an unblemished record with the College;

• The Member was a new and young nurse, she was very naïve and relied on poor advice from colleagues;

• The Member has received stellar comments from colleagues, families and patients;

• The Member has reflected on the situation, conducted a comprehensive review of the College’s standards and has gained valuable insight;

• The Member undertook a thorough review of the employer benefit booklet (rules and requirements); and

• In a similar situation in the future, the Member would make a different decision. She now knows that she should not rely on others to educate her on her allotted benefits.

College Counsel’s Reply

College Counsel reminded the Panel that only the facts contained in the Agreed Statement of Facts should be considered as evidence in its deliberations. Thus, the Member’s Counsel’s submissions about the context surrounding the Member’s conduct should not be considered as facts in evidence as those are not a component of agreed upon facts.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 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.

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

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

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

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

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

1. Code of Conduct;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into the Member’s behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employer(s) of the decision. To comply, the Member is required to:

i. 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

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:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to CNO, the Expert or the Member’s employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The Panel agreed with College Counsel’s reply to the Member’s Counsel’s submissions on penalty and only considered as evidence the facts contained in the Agreed Statement of Facts when making a decision on penalty. The Panel did consider the submissions of both College Counsel and the Member’s Counsel with respect to aggravating and mitigating factors.

The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. The penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration. Although College Counsel suggested that the oral reprimand also contributes to general deterrence, the Panel was not satisfied with College Counsel’s submission in this regard, in this particular case, considering the limited reach of such an oral reprimand. The Panel concluded that general deterrence was only satisfied through the 3-month suspension of the Member’s certificate of registration, and the subsequent publication of the decision. The 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 conduct is perceived by her colleagues and members of the public. The 3-month suspension of the Member’s certificate of registration will send a signal to the Member that her conduct was unacceptable. The penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the Code of Conduct. The Panel was satisfied with College Counsel’s submission as to why the Member would only need to review the Code of Conduct and not the Professional Standards and the Ethics Standard, as was the case in Nisbet, Soosaipillai and Avena.

Overall, the public is protected because of the cumulative effect of the terms of the penalty, including the 12 months of employer notification, which will provide a heightened level of monitoring by the employer on the Member’s return to nursing practice.

The penalty is also in line with what has been ordered in previous cases in similar circumstances, as is demonstrated in the cases relied upon by College Counsel.

I, Grace Fox, NP, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.