College of Nurses of Ontario v. Forget, 2023 CanLII 149369

DISCIPLINE COMMITTEE

OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson

Carolyn Hourigan Public Member

Jean-Laurent Domingue, RN Member

Kerrie Naylor, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) HAILEY BRUCKNER for

) College of Nurses of Ontario

• and - )

LAURA FORGET ) NIITI SIMMONDS for

Registration No. 0319715 ) Laura Forget

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: October 20, 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 October 20, 2023, via videoconference.

Laura Forget (the “Member”) did not have access to appropriate technology for videoconferencing. As a result, the Panel accepted that she join the hearing by telephone.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated August 14, 2023 are as follows:

IT IS ALLEGED THAT:

1. You committed an act or acts of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that you were found guilty of an offense that is relevant to your suitability to practice, and in particular, you were found guilty on or around January 25, 2022, with theft under $5,000, contrary to s. 334(b) of the Criminal Code of Canada.

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(1) of Ontario Regulation 799/93, in that while practicing as a Registered Nurse at The Hospice of Windsor and Essex County Inc. (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

a) On or about January 22, 2020, you removed a sharps container from the Facility; and/or

b) On or about January 23, 2020, you removed a box of Dilaudid from the Facility.

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(8) of Ontario Regulation 799/93, in that, while practicing as a Registered Nurse at The Hospice of Windsor and Essex County Inc. (the “Facility”), you misappropriated property from a client or work place, and in particular:

a) On or about January 22, 2020, you removed a sharps container from the Facility; and

b) On or about January 23, 2020, you removed a box of Dilaudid from the Facility.

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(18) of Ontario Regulation 799/93, in that while registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse, you contravened a term, condition or limitation on your certificate of registration, as provided in subsections 1.5(1)1. (ii) of O. Reg. 275/94, in that you failed to provide the Executive Director of CNO with details of criminal charges that you were subject to, in that that you had been charged with theft under $5,000, contrary to s. 334(b) of the Criminal Code of Canada on February 21, 2020.

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 registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”), you engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:

a) On or about January 22, 2020, while practicing as a RN at The Hospice of Windsor and Essex County Inc. (the “Facility”), you removed a sharps container from the Facility;

b) On or about January 23, 2020, while Practice as a RN at the Facility, you removed a box of Dilaudid from the Facility;

c) You failed to provide the Executive Director of CNO with details of criminal charges that you were subject to, in that that you had been charged with theft under $5,000, contrary to s. 334(b) of the Criminal Code of Canada on February 21, 2020.

Member’s Plea

The Member admitted the allegations set out in paragraphs #1, #2(a), (b), #3(a), (b), #4 and #5(a), (b) and (c) 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

1. Laura Forget (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on August 25, 2003.

2. The Member was administratively suspended for non-payment of fees on February 17, 2021. Her license to practice in Ontario expired on March 19, 2021.

3. The Member worked full-time as a palliative Clinical Coordinator at the Hospice Residential Home at The Hospice of Windsor and Essex County Inc. in Leamington, Ontario (the “Facility”) from December 6, 2019 to January 27, 2020.

4. The Member was in a leadership position at the Facility. She was responsible for supervising regulated and non-regulated health professionals, including other RNs, Registered Practical Nurses, and Personal Support Workers.

5. The Facility terminated the Member on January 27, 2020 in relation to the incidents described below. The Member was still in her probationary period at the Facility at the time of her termination.

6. The Member also worked as a casual RN at Chatham-Kent Hospice from November 2018 until November 19, 2020, at which time she was terminated for absenteeism.

INCIDENTS RELEVANT TO THE ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Member Stole a Sharps Container and 10 Vials of Dilaudid from the Facility

7. Over the course of several days in January 2020, the Member stole a sharps container and 10 vials of Dilaudid from the Facility’s medication storage room.

8. The Member admits that she stole the sharps container and 10 vials of Dilaudid. In particular, she admits that:

• On January 22, 2020, the Member took a sharps container full of used, leftover medication from the medication storage room and put it in her purse. The Member stole the sharps container and its contents from the Facility.

• On January 23, 2020, the Member opened several locked cupboards in the Facility’s medication room and removed a box containing 10 vials of Dilaudid. She put the box of Dilaudid down her pants and left the medication storage room. The Member stole the 10 vials of Dilaudid from the Facility.

• On January 24, 2020, the Member returned the sharps container to the Facility. She took the sharps container out of her purse and put it back in the medication room. If the Member were to testify, she would say that she returned the entire contents of the sharps container to the Facility.

• The 10 vials of Dilaudid were never returned to the Facility. If the Member were to testify, she would say that she discarded the 10 vials of Dilaudid.

9. The Facility had video surveillance cameras in the medication storage room. These cameras recorded the Member as she stole the sharps container and 10 vials of Dilaudid.

10. On January 27, 2020, the Member was interviewed by management at the Facility about her theft. She admitted to stealing the sharps container and 10 vials of Dilaudid on learning that her conduct had been recorded by the Facility’s surveillance cameras.

11. If the Member were to testify, she would say that she was experiencing a mental health crisis at the time that she stole the sharps container and 10 vials of medication. She would further state that she stole the medications because she intended to use them to commit suicide. The Member would testify that she ultimately discarded the medications and sought medical care.

The Member Failed to Report Criminal Charges to CNO

12. The Member did not meet her reporting obligations to CNO in respect of the criminal charges laid against her further to her misappropriation of medications from the Facility.

13. On February 21, 2020, the Member was charged with theft under $5,000, contrary to s. 334(b) of Canada’s Criminal Code.

14. The Member was under an obligation to report these criminal charges to CNO, as a condition of her certificate of registration pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94 of the Nursing Act, 1991.

15. However, the Member did not report the criminal charges laid against her to CNO at any time. If the Member were to testify, she would say that her mental health was a factor in her failure to report. The Member would testify that she felt overwhelmed by the need to address the criminal proceedings against her while undergoing treatment for her mental health crisis, which prevented her from focusing on other responsibilities, including her reporting obligations to CNO.

16. The Member pled guilty to the criminal charges against her on January 25, 2022. She was sentenced to a 6-month conditional sentence and a 12-month probationary period.

17. The Member met her obligation to report findings of guilt to CNO in accordance with s. 1.5(1)1.(i) of Ontario Regulation 275/94 of the Nursing Act, 1991, as well as under s. 85.6.1 of the Health Professions Procedural Code. In the Self-Reporting Form, dated January 25, 2022, the Member reported the criminal finding of guilt against her to CNO.

18. If the Member were to testify, she would state that she was suffering from a mental health condition during the relevant time period, which affected her behaviour and judgment. She would further testify that she has since sought treatment for her health condition.

CNO STANDARDS OF PRACTICE

19. CNO publishes nursing standards to set out the expectations for the practice of nursing. CNO’s published standards inform nurses of their accountabilities and apply to all nurses regardless of their role, job description, or area of practice.

Code of Conduct

20. The Code of Conduct articulates what Ontarians can expect of nurses in all practice settings. It aims to promote public confidence in the nursing profession through a principle-based accountability model.

21. Being a member of CNO brings with it the respect and trust of the public. Nurses maintain public trust and confidence in the nursing profession’s integrity and care by upholding the standards of the profession and comporting themselves in a manner befitting their role. Nurses must behave in a way that reflects well on the membership and, importantly, must take accountability for their actions when their conduct falls below or contravenes an articulated standard. This is a critical element of self-regulation.

22. Members uphold this standard by acting with integrity and maintaining patients’ trust by providing safe, competent care. Nurses do not use their position for personal gain.

23. The Code of Conduct also provides that nurses promote dignity and respect for the nursing profession by portraying professionalism and showing leadership. To do this, nurses are expected to model core behaviours, including:

a) Nurses do not steal, misuse, abuse or destroy the property of their clients, health care team, or employers;

b) Nurses self-reflect on health and seek help if their health affects their ability to practice safely.

24. Importantly, nurses uphold the Code of Conduct by investing in their own mental, emotional, and physical wellbeing. As set out above, nurses are expected to maintain their health, and proactively identify when to seek help if their health affects or may impact their ability to practice safe nursing.

25. The Member admits and acknowledges that she contravened the Code of Conduct.

Professional Standards

26. CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring their conduct meets legislative requirements and the standards of practice of the profession. Nurses demonstrate this standard by role-modelling professional values, beliefs, and attributes. Nurses are expected to take active roles in creating and promoting a work environment of trust, integrity, and respect among all members of the health care team, especially when occupying a leadership role in a workplace.

27. CNO’s Professional Standards further provides, in relation to the Ethics standard, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members.

28. The Member admits and acknowledges that she contravened CNO’s Professional Standards.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

29. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1-5 of the Notice of Hearing, as described in paragraphs 7-18 above.

30. The Member admits that she was found guilty of an offence relevant to her suitability to practise as alleged in paragraph 1 of the Notice of Hearing when she was found guilty of theft under $5,000 contrary to s.334(b) of Canada’s Criminal Code, as described in paragraphs 12-18 above.

31. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a) and 2(b) 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 7-11 and 19-28 above.

32. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a) and 3(b) of the Notice of Hearing in that she misappropriated property from a workplace, as described in paragraphs 7-11 above.

33. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 4 of the Notice of Hearing in that she contravened a term, condition or limitation on her certificate of registration when she failed to report details of the criminal charges against her to CNO as required by statute, as described in paragraphs 12-18 above.

34. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 5(a), 5(b) and 5(c) of the Notice of Hearing, and that her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 7-28 above.

Submissions on Liability

College Counsel’s Submissions

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 29 to 34 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.

With regard to allegation #1, College Counsel submitted that the Member was found guilty of theft under $5,000.00 contrary to s. 334(b) of the Criminal Code of Canada on January 25, 2022.

With regard to allegations #2(a) and (b), College Counsel submitted that the Member contravened the College’s standards of practice as 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 contravened.

With regard to allegations #3(a) and (b), College Counsel submitted that while working as a Clinical Coordinator at The Hospice of Windsor and Essex County Inc. (the “Facility”), the Member misappropriated property when she stole a sharps container and a box of 10 vials of Dilaudid from the Facility. The Member admitted to this conduct.

With regard to allegation #4, College Counsel submitted that the Member failed to report to the Executive Director of the College that on February 21, 2020 she was charged with theft under $5,000.00, contrary to s. 334(b) of the Criminal Code of Canada due to misappropriation of medications from the Facility.

With regard to allegations #5(a), (b) and (c), College Counsel submitted that the parties agreed that the Member’s conduct is relevant to the practice of nursing as it took place while the Member was working and had access to the medication room at the Facility. College Counsel submitted that the Member’s conduct was unprofessional, dishonourable and disgraceful. The Member’s conduct was unprofessional as it demonstrated a disregard for her professional obligations and was serious and persistent. The Member’s conduct was dishonourable as it included an element of moral failing. The Member knew or ought to have known that her conduct was unacceptable and fell below what would be expected from a member of the profession. The Member’s conduct was disgraceful as she stole medications while being in a leadership position and in a position of trust; she was given the keys to the medication room based on this trust relationship. The Member engaged in misconduct and theft on two occasions. This conduct shames the profession as it is contrary to what the public would expect from members of the profession.

The Member’s Counsel’s Submissions

The Member’s Counsel submitted that the Agreed Statement of Facts provides the evidence and includes the Member’s admissions of professional misconduct. The agreed facts support the findings of professional misconduct.

In paragraphs 19 to 28 of the Agreed Statement of Facts, the Panel has the relevant standards to make findings of professional misconduct and the Member’s admission that she contravened these standards.

The Member’s Counsel submitted that the Agreed Statement of Facts provides the Panel with the appropriate evidence to make findings of professional misconduct for each of the allegations contained within the Notice of Hearing. The Member’s Counsel submitted that such findings are consistent with other decisions that would be made available to the Panel at a later point in the hearing.

College Counsel’s Reply

College Counsel asked for the case law referred to by the Member’s Counsel to be made available to the Panel. This case law included three cases, namely CNO v. Hopka (Discipline Committee, 2018); CNO v. Mage (Discipline Committee, 2019); and CNO v. Araya (Discipline Committee, 2021).

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(a), (b), #3(a), (b), #4 and #5(a), (b) and (c) 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 disgraceful, 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 12 to 18, 29 and 30 in the Agreed Statement of Facts. The Member admitted that she was found guilty of an offence relevant to her suitability to practice when she was found guilty on January 25, 2022, of theft under $5,000.00, contrary to s. 334(b) of the Criminal Code of Canada. The Member’s theft of a sharps container and 10 vials of Dilaudid was relevant to her suitability to practice as it occurred while she was employed as a Clinical Coordinator at the Facility.

Allegations #2(a) and (b) in the Notice of Hearing are supported by paragraphs 7 to 11, 19 to 29 and 31 in the Agreed Statement of Facts. The Member admitted that on January 22, 2020 she removed a sharps container full of used leftover medication from the Facility’s medication storage room and put it in her purse and that on January 23, 2020 she removed a box containing 10 vials of Dilaudid from the Facility, put it down her pants and left the medication storage room.

The Member contravened the College’s Code of Conduct, which provides that, to uphold this standard, Members must act with integrity and maintain patients’ trust by providing safe, competent care. Nurses do not use their position for personal gain. The College’s Code of Conduct also provides that nurses promote dignity and respect for the nursing profession by portraying professionalism and showing leadership. To do this, nurses are expected to model core behaviours, including, not stealing, misusing, abusing or destroying the property of their clients, health care team, or employers. The Panel finds that by removing a sharps container and a box of 10 vials of Dilaudid from the Facility, the Member used her position for personal gain in contravention of the College’s Code of Conduct. By stealing and destroying the property of the Facility, the Member’s conduct disrespected the nursing profession.

The Member contravened the Professional Standards, which provides that each nurse is accountable to the public and responsible for ensuring their conduct meets legislative requirements and the standards of practice of the profession. Nurses demonstrate this standard by role-modelling professional values, beliefs and attributes. Nurses are expected to take active roles in creating and promoting a work environment of trust, integrity, and respect among all members of the health care team. The Panel finds that by removing a sharps container and a box of 10 vials of Dilaudid from the Facility, the Member failed to role-model professional nursing values and failed to create and promote a work environment of trust and integrity.

Allegations #3(a) and (b) in the Notice of Hearing are supported by paragraphs 7 to 11, 29 and 32 in the Agreed Statement of Facts. The Member admitted that she misappropriated property from the Facility when she removed a sharps container on January 22, 2020 and a box of 10 vials of Dilaudid on January 23, 2020 from the mediation storage room at the Facility.

Allegation #4 in the Notice of Hearing is supported by paragraphs 12 to 18, 29 and 33 in the Agreed Statement of Facts. The Member admitted that she contravened a term, condition or limitation on her certificate of registration, as provided by subsections 1.5(1)1. (ii) of Ontario Regulation 275/94 of the Nursing Act, 1991, S.O. 1991, c. 32 when she failed to report to the Executive Director of the College details of criminal charges that she was subject to, namely that she had been charged with theft under $5,000.00, contrary to s. 334(b) of the Criminal Code of Canada on February 21, 2020.

Allegations #5(a), (b) and (c) in the Notice of Hearing are supported by paragraphs 7 to 28, 29 and 34 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in removing a sharps container and a box of 10 vials of Dilaudid from the Facility, and in failing to report to the Executive Director of the College details of a criminal charge that she was subject to was clearly relevant to the practice of nursing and 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. It demonstrated an element of dishonesty and deceit by engaging in conduct that she knew or ought to have known was contrary to what would be expected of a nursing professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The disgraceful nature of the conduct relates to the fact that the Member was charged with an offence related to the practice of nursing and failed to report this charge to the Executive Director of the College contrary to subsections 1.5(1)1. (ii) of Ontario Regulation 275/94 of the Nursing Act, 1991. This casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

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 5 months. This suspension shall take effect from the date the Member obtains an active certificate of registration in a practicing class and shall continue to run without interruption as long as the Member remains in a practicing class.

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

a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense within 6 months from the date the Member obtains an active certificate of registration in a practicing class. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date the Member obtains an active certificate of registration in a practicing class. 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 24 months from the date the Member obtains an active certificate of registration in a practicing class and returns to the practice of nursing, the Member will notify the Member’s employers 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;

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

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

Penalty Submissions

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 conduct was serious;

• The Member’s conduct was deliberate;

• The Member’s conduct was repeated on two occasions; and

• The Member’s conduct discredited the profession.

The mitigating factors in this case were:

• The Member took responsibility for her conduct and cooperated with the College by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College;

• The Member admitted to her misconduct;

• The Member has no prior discipline history with the College; and

• The Member had extenuating health circumstances that altered her judgement at the time of the misconduct.

The proposed penalty provides for general deterrence through the 5-month suspension of the Member’s certificate of registration, which sends a strong signal to other members of the profession that this type of conduct is unacceptable.

The proposed penalty provides for specific deterrence through the oral reprimand and the 5-month suspension of the Member’s certificate of registration. The oral reprimand provides the Member with an understanding of the way her actions are perceived by other members of the profession and by the public. The 5-month suspension of the Member’s certificate of registration sends a strong signal to the Member that her conduct is unacceptable.

The proposed penalty provides for remediation and rehabilitation through a minimum of 2 meetings with a Regulatory Expert and the review of the College’s Code of Conduct. These meetings will ensure that the Member meets the College’s Professional Standards should she return to the practice of nursing.

Overall, the public is protected through the 24 months of employer notification and the 18 months of no independent practice in the community. This will provide an additional layer of oversight over the Member’s practice upon her return to the practice of nursing.

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. Mage (Discipline Committee, 2019): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member stole Oxycodone while providing homecare, was charged with theft under $5,000.00 and failed to report these charges to the College’s Executive Director. The panel found that the member had breached the College’s Professional Standards, had been found guilty of offences relevant to the practice of nursing, failed to report charges to the College’s Executive Director, and engaged in conduct that was considered to be unprofessional, dishonourable and disgraceful. The findings made in this case are consistent with the findings in the case before this Panel. In this case, the member was also experiencing a health condition at the time of the conduct. The penalty included an oral reprimand, a five-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert, 18 months of employer notification and 18 months of no independent practice in the community.

CNO v. Araya (Discipline Committee, 2021): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member misappropriated Oxycontin, Tylenol 3 and morphine, and improperly accessed patient charts. The panel found that the member had breached the Professional Standards, misappropriated property, and that her conduct was unprofessional, dishonourable and disgraceful. In this case, the member was not charged under the Criminal Code of Canada. However, the member accessed patient charts and inappropriately accessed the homes of clients for the purpose of misappropriating medications. The member was suffering from a health condition at the time of the conduct, and she sought treatment. The penalty included an oral reprimand, a 7-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert, 24 months of employer notification, random spot audits of the member’s accesses to patients’ electronic health records and 24 months of no independent practice in the community. College Counsel submitted that in the case before this Panel, the proposed penalty only requested a 5-month suspension of the Member’s certificate of registration and 18 months of no independent practice in the community as the Member did not falsify documentation, nor did she enter patients’ homes without authorization or clinical purpose.

The Member’s Counsel’s Submissions

The Member’s Counsel submitted that the Joint Submission on Order was the product of negotiations between experienced Counsel, it reflects the aggravating and mitigating factors and aligns with the principles of penalty. The Member’s Counsel submitted that she agreed with College Counsel in that the penalty sought is consistent with other decisions made by the Discipline Committee.

The Member’s Counsel submitted that the following constituted additional mitigating factors:

• The Member accepted her wrongdoing and took full responsibility for her conduct;

• The Member admitted to the allegations;

• The Member has been registered with the College for 17 years without a history of discipline with the College;

• The Member’s actions were a one-time transgression;

• The Member’s actions took place at a time where she was experiencing a suicidal crisis at a low time in her life;

• There is no evidence that the Member misused the narcotics she stole;

• The Member was cooperative and forthright with the College and the Facility, which is a marker for rehabilitation;

• The Member pled guilty to the criminal charges and reported her guilty finding when she was no longer in the height of her crisis;

• The Member’s mental condition influenced her conduct;

• The Member feels remorse and shame for the impact her actions had on the nursing profession, on her colleagues and on her family; and

• The Member’s admissions prevented a contested hearing from taking place.

The Member’s Counsel submitted that the Joint Submission on Order was appropriate considering the aggravating and mitigating factors, and that it meets the purpose of penalty.

The Member’s Counsel reviewed the following cases with the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:

In relation to the Mage and Hopka cases, the Member’s Counsel submitted that the penalty in both these cases included a five-month suspension of the member’s certificate of registration. The Member’s Counsel submitted that these cases were similar to the one before this Panel in that there was theft under $5,000.00, contrary to the Criminal Code of Canada, and failure to report the criminal charges to the College’s Executive Director. In the Mage case, the terms, conditions and limitations on the member’s certificate of registration included two meetings with a Regulatory Expert, 18 months of employer notification and 18 months of no independent practice in the community. In the Hopka case, the terms, conditions and limitations on the member’s certificate of registration included two meetings with a Nursing Expert and 24 months of employer notification.

In relation to the Araya case, the Member’s Counsel submitted that the penalty included a 7-month suspension of the member’s certificate of registration as there were additional aggravating factors that are not present in the case before this Panel.

The Member’s Counsel submitted that the Joint Submission on Order is consistent with decisions made in other similar cases. The Panel must accept the Joint Submission on Order unless doing so would bring the administration of justice into disrepute. The Joint Submission on Order meets the intended goals of penalty, it benefits both parties, it offers an opportunity to begin amends, and it saves time and expense for the College.

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 5 months. This suspension shall take effect from the date the Member obtains an active certificate of registration in a practicing class and shall continue to run without interruption as long as the Member remains in a practicing class.

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

a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense within 6 months from the date the Member obtains an active certificate of registration in a practicing class. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date the Member obtains an active certificate of registration in a practicing class. 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 24 months from the date the Member obtains an active certificate of registration in a practicing class and returns to the practice of nursing, the Member will notify the Member’s employers 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;

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

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

Reasons for Penalty Decision

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

The Panel concluded that the penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility.

The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. The penalty provides for specific deterrence through the oral reprimand and the 5-month suspension of the Member’s certificate of registration. The oral reprimand provides the Member with an understanding of how her actions are perceived by other members of the profession and the public. The 5-month suspension of the Member’s certificate of registration sends a strong signal to the Member that her conduct is unacceptable. General deterrence is achieved through the 5-month suspension of the Member’s certificate of registration, which sends a strong signal to other members of the profession that this type of conduct is unacceptable. The penalty provides for remediation and rehabilitation through a minimum of two meetings with a Regulatory Expert and the review of the College’s Code of Conduct. These meetings will ensure that the Member meets the College’s Professional Standards should she return to the practice of nursing.

Overall, the public is protected through the 24 months of employer notification and the 18 months of no independent practice in the community. This will provide an additional layer of oversight over the Member’s practice upon her return to the practice of nursing.

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 and the Member’s Counsel.

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