DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Susan Roger, RN Chairperson
Tina Colarossi, NP Member Sandra Larmour Public Member
Kimberly Wagg, RPN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) DOUGLAS MONTGOMERY for
) College of Nurses of Ontario
- and - )
SAMIR BESADA ) MICHELLE GIBBS for
Registration No. AE105093 ) Samir Besada
) CHRISTOPHER WIRTH
) Independent Legal Counsel
) Heard: August 4, 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 August 4, 2023, via videoconference.
Publication Ban
College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing public disclosure and banning the publication or broadcasting of the names of the patients, or any information that could disclose their identities, referred to orally or in any documents presented at the Discipline hearing of Samir Besada.
The Panel considered the submissions of College Counsel and the Member’s Counsel and decided that there be an order preventing public disclosure and banning the publication or broadcasting of the names of the patients, or any information that could disclose their identities, referred to orally or in any documents presented at the Discipline hearing of Samir Besada.
The Allegations
College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 3(a), (b), (c), 4 and 5(b)(i), (ii) (iii) and (c) in the Notice of Hearing dated March 21, 2023. The Panel granted this request. The remaining allegations against Samir Besada (the “Member”) 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 practicing as a Registered Practical Nurse at Sam MedSpa in Mississauga, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, in that you maintained inadequate documentation with respect to the care you provided to patients on various dates as set out in Table “A”, including but not limited to the following:
(a) you did not ensure the documentation was a complete record of nursing care provided to the patient;
(b) you did not provide your full signature and/or initials, and professional designation, with all documentation with respect to the patient;
(c) you did not clearly identify the individual performing the assessment and/or intervention with respect to the patient; and/or
(d) you failed to ensure that relevant patient care information was captured in a permanent record.
- 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(13) of Ontario Regulation 799/93, in that, while practicing as a Registered Practical Nurse at Sam MedSpa in Mississauga, Ontario, you failed to keep records as required with respect to patients on various dates as set out in Table “A”, including but not limited to the following:
(a) you did not ensure the documentation was a complete record of nursing care provided to the patient;
(b) you did not provide your full signature and/or initials, and professional designation, with all documentation with respect to the patient;
(c) you did not clearly identify the individual performing the assessment and/or intervention with respect to the patient; and/or
(d) you failed to ensure that relevant patient care information was captured in a permanent record.
[withdrawn].
[withdrawn].
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 practicing as a Registered Practical Nurse, you engaged in conduct relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows:
a. you maintained inadequate documentation with respect to the care you provided to patients on various dates as set out in Table “A”, including but not limited to the following:
i. you did not ensure the documentation was a complete record of nursing care provided to the patient;
ii. you did not provide your full signature and/or initials, and professional designation, with all documentation with respect to the patient;
iii. you did not clearly identify the individual performing the assessment and/or intervention with respect to the patient; and/or
iv. you failed to ensure that relevant patient care information was captured in a permanent record;
b. [withdrawn].
c. [withdrawn].
Table “A”
Patient
Date(s) (on or about)
[Patient A]
September 4, 2020
[Patient B]
June 26, 2021 July 10, 2021 July 24, 2021
[Patient C]
February 1, 2020 July 11, 2020
[Patient D]
June 28, 2021 July 10, 2021
[Patient E]
September 15, 2019
[Patient F]
January 9, 2021
[Patient G]
August 31, 2020
[Patient H]
November 7, 2020 December 31, 2020 April 10, 2021,
[Patient I]
August 28, 2020 August 31, 2020 September 10, 2020 August 2, 2021
[Patient J]
October 3, 2018 October 31, 2018 January 7, 2019 March 3, 2019 April 10, 2019 May 30, 2019 June 5, 2019 September 9, 2019 November 15, 2019 December 20, 2019 January 30, 2020 May 26, 2020 July 10, 2020 October 19, 2020 March 4, 2021 June 11, 2021
[Patient K]
November 2, 2020 March 29, 2021 September 15, 2021
[Patient L]
August 15, 2020 March 6, 2021
[Patient M]
February 28, 2017 January 18, 2018 February 8, 2018 May 26, 2018 September 15, 2019 December 16, 2019 January 30, 2020 November 26, 2020 February 25, 2021 June 4, 2021 July 20, 2021
[Patient N]
March 2, 2020
[Patient O]
October 24, 2020 November 21, 2020
[Patient P]
October 23, 2020 November 26, 2020 January 9, 2021
April 17, 2021
Member’s Plea
The Member admitted the allegations set out in paragraphs 1(a), (b), (c), (d), 2(a), (b), (c), (d) and 5(a)(i), (ii), (iii) and (iv) 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 admissions were 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, without exhibits as follows:
THE MEMBER
Samir Besada (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) in the Temporary Class on May 21, 2015. The Member registered as a RPN in the General Class on July 2, 2015.
The Member works at Sam MedSpa in Mississauga, Ontario (the “Facility”). The Member is also the owner of the Facility. The Facility specializes in cosmetic injections, such as injections of Botox and dermal fillers.
At the time of the incidents described below, Dr. Dimitrios Giannoulias, a physician registered with the College of Physicians and Surgeons of Ontario, was the medical director of the Facility.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
A CNO-appointed investigator attended the Facility and obtained copies of 16 random patient records from the Facility. The 16 patient records revealed deficiencies in the Member’s documentation with respect to the authority for treatment, the treatment performed, and informed consent.
In particular, the Member maintained inadequate documentation with respect to the care he provided to 16 patients on the dates listed below:
Patient [A]: September 4, 2020
Patient [B]: June 26, 2021, July 10, 2021 and July 24, 2021
Patient [C]: February 1, 2020 and July 11, 2020
Patient [D]: June 28, 2021 and July 10, 2021
Patient [E]: September 15, 2019
Patient [F]: January 9, 2021
Patient [G]: August 31, 2020
Patient [H]: November 7, 2020, December 31, 2020 and April 10, 2021
Patient [I]: August 28, 2020, August 31, 2020, September 10, 2020 and August 2, 2021
Patient [J]: October 3, 2018, October 31, 2018, January 7, 2019, March 3, 2019, April 10, 2019, May 30, 2019, June 5, 2019, September 9, 2019, November 15, 2019, December 20, 2019, January 30, 2020, May 26, 2020, July 10, 2020, October 19, 2020, March 4, 2021 and June 11, 2021
Patient [K]: November 2, 2020, March 29, 2021 and September 15, 2021
Patient [L]: August 15, 2020 and March 6, 2021
Patient [M]: February 28, 2017, January 18, 2018, February 8, 2018, May 26, 2018, September 15, 2019, December 16, 2019, January 30, 2020, November 26, 2020, February 25, 2021, June 4, 2021 and July 20, 2021
Patient [N]: March 2, 2020
Patient [O]: October 24, 2020 and November 21, 2020
Patient [P]: October 23, 2020, November 26, 2020, January 9, 2021 and April 17, 2021
- All of the 16 patient records contained the following deficiencies:
The Member’s signature and professional designation did not appear anywhere in the documentation of treatment provided;
Though in most cases assessments appear to have been documented to some extent, the patient records did not specify whether the assessment was performed by the Member or the physician, nor did the patient records specify whether the Member conducted a nursing assessment prior to implementing the physician’s order;
Though the Member obtained physician’s orders to perform the treatment recorded in the patient records, the records did not contain documentation as to how the physician’s orders were communicated (for example verbally or by text message);
Though physician consultations occurred by video on occasion, the patient records did not reflect that; and
Though most of the patients completed informed consent forms, those forms did not state that the patients provided consent for the Member to specifically provide the services, and the Member’s signature and professional designation did not appear on the informed consent forms signed by the patients, though there is a specific space for “RPN signature”.
- If the Member were to testify, he would state that as the only nurse delivering treatment at the Facility, he did not believe at the time that any omission on his part to include his signature and professional designation in his nursing documentation would cause confusion as to the identity of the person performing the assessment or treatment. However, the Member now understands and acknowledges that his nursing documentation should have included his signature and professional designation as per, inter alia, the Documentation standard (described below).
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 standard 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 further provides, in relation to the leadership standard, that nurses demonstrate their leadership by providing, facilitating and promoting the best possible care/service to the public. In addition, a nurse demonstrates the standard by role-modelling professional values, beliefs and attributes.
Attached as Exhibit “A” are copies of CNO’s Professional Standards which was in force at the time of the incidents and have since been retired.
Documentation
CNO’s Documentation Standard explains the regulatory and legislative requirements for nursing documentation. It includes three standard statements and indicators pertaining to communication, accountability and security which describe a nurse’s accountabilities when documenting.
CNO’s Documentation standard provides in relation to communication, that nurses ensure that documentation presents an accurate, clear and comprehensive picture of the patient’s needs, the nurse’s interventions and the patient’s outcomes. A nurse meets the standard by:
Ensuring documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessment, planning, intervention (independent and collaborative) and evaluation;
Documenting both objective and subjective data;
Providing a full signature or initials, and professional designation (RPN, RPN[Temp], RN, RN[Temp] or NP) with all documentation.
Providing full signature, initials and designation on a master list when initialling documentation; and
Documenting informed consent when the nurse initiates a treatment or intervention authorized in legislation.
- CNO’s Documentation standard further provides, in relation to accountability, that nurses are accountable for ensuring their documentation of patient care is accurate, timely and complete. A nurse meets the standards by:
Documenting in a timely manner and completing documentation during, or as soon as possible after, the care or event; and
Documenting the date and time that care was provided and when it was recorded; and
Clearly identifying the individual performing the assessment and/or intervention when documenting.
CNO’s Documentation standard also provides, in relation to security, that nurses safeguard patient health information by maintaining confidentiality and acting in accordance with information retention and destruction policies and procedures that are consistent with the standard(s) and legislation. A nurse meets the standard by ensuring that relevant patient care information is captured in a permanent record.
Attached as Exhibit “B” are copies of CNO’s Documentation Standard which were in force at the time of the incidents.
Code of Conduct
CNO’s Code of Conduct came into effect on February 4, 2019, and also provided that nurses are required to maintain complete, accurate and timely documentation in their practice and that nurses are accountable to, and practice under, relevant laws and CNO’s standards of practice.
Attached as Exhibit “C” is a copy of CNO’s Code of Conduct which was in force at the time of the incidents that occurred after February 4, 2019.
The Member admits and acknowledges that he breached CNO’s Professional Standards and Documentation Standard and/or the Code of Conduct when he maintained inadequate documentation on various dates with respect to the care he provided to patients [A], [B], [C], [D], [E], [F], [G], [H], [I], [J], [K], [L], [M], [N], [O] and [P].
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1 (a), (b), (c) and (d) of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 4 to 19 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2 (a), (b), (c) and (d) of the Notice of Hearing in that he failed to keep records as required, as described in paragraphs 4 to 7 and 12 to 19 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 5 (a) of the Notice of Hearing, and in particular his conduct was unprofessional, as described in paragraphs 4 to 19 above.
OTHER
- With the leave of the Panel of the Discipline Committee, CNO withdraws the remaining allegations in the Notice of Hearing, which are as follows:
Paragraphs 3 (a), (b) and (c);
Paragraph 4; and
Paragraphs 5 (b) and (c).
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(a), (b), (c), (d), 2(a), (b), (c), (d) and 5(a)(i), (ii), (iii) and (iv) of the Notice of Hearing. As to allegations #5(a)(i), (ii), (iii) and (iv), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be 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.
Allegations #1(a), (b), (c) and (d) in the Notice of Hearing are supported by paragraphs 4 to 20 in the Agreed Statement of Facts. The Member contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he failed to maintain adequate documentation for 16 patients. In paragraph 19 of the Agreed Statement of Facts, the Member admitted to breaching the College’s Professional Standards, the Documentation Standard and the Code of Conduct when he maintained inadequate documentation on various dates with respect to the care he provided to patients.
Allegations #2(a), (b), (c) and (d) in the Notice of Hearing are supported by paragraphs 4 to 7, 12 to 19 and 21 in the Agreed Statement of Facts. The Member failed to keep records as required. The College’s Documentation Standard provides, in relation to accountability, that nurses are accountable for ensuring their documentation of patient care is accurate, timely and complete. The Member failed to ensure that relevant patient care information was captured in a permanent record. The College’s Code of Conduct provides, that nurses are required to maintain complete, accurate and timely documentation in their practice. The Member admitted that he maintained inadequate documentation on various dates with respect to the care he provided to 16 patients and as such, failed to keep records as required.
Allegations 5(a)(i), (ii), (iii) and (iv) in the Notice of Hearing are supported by paragraphs 4 to 19 and 22 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was relevant to the practice of nursing and having regard to all the circumstances, would reasonably be regarded by members of the profession to be unprofessional. The parties have agreed that the conduct is relevant to the practice of nursing and is unprofessional. Nurses are responsible for ensuring that their documentation is timely and complete. Members of the profession would regard the Member’s conduct to be unprofessional.
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 2 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, and
Documentation;
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) If the Member is employed by an employer, 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. Subject to subparagraph 3(c) below, only practice nursing for an employer who agrees to, and does, forward a report to CNO within 14 days of the commencement or resumption of the Member’s employment in any nursing position, confirming:
that they received a copy of the required documents,
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession, and
that they agree to perform 4 random spot audits of the Member’s practice and documentation at the following intervals and provide a report to CNO regarding the Member’s practice after each audit:
a. the first audit shall take place within 3 months from the date the Member begins or resumes employment with the employer,
b. the second audit shall take place within 6 months from the date the Member begins or resumes employment with the employer,
c. the third audit shall take place within 9 months from the date the Member begins or resumes employment with the employer,
d. the fourth audit shall take place within 12 months from the date the Member begins or resumes employment with the employer;
v. The audits shall, on each occasion, involve reviewing a random selection of 3 of the Member’s patient records to ensure they meet both CNO and employer standards, including but not limited to:
Ensuring the documentation is a complete record of nursing care provided to the patient,
Ensuring the Member included his full signature and/or initials, and professional designation, with all documentation with respect to the patient,
Ensuring the Member clearly identified the individual performing the assessment and/or intervention with respect to the patient, and
Ensuring that relevant patient care information was captured in a permanent record.
c) If the Member is self-employed (which term includes employment by a corporation owned by the Member), for a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify the regulated health professional(s) who authorize the Member to perform controlled acts (the “Authorizing Professional(s)”) of the decision. To comply, the Member is required to:
i. Inform any Authorizing Professional of the decision prior to commencing or prior to resuming the self-employed practice of nursing;
ii. Ensure that CNO is notified of the name, address, and telephone number of all Authorizing Professional(s) within 14 days of commencing or resuming the self-employed practice of nursing;
iii. Provide the Member’s Authorizing Professional(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. Only practice nursing with an Authorizing Professional who agrees to, and does, forward a report to CNO within 14 days of the commencement or resumption of the Member’s self-employed practice of nursing, confirming:
that they received a copy of the required documents,
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession, and
that they agree to perform 4 random spot audits of the Member’s practice and documentation at the following intervals and provide a report to CNO regarding the Member’s practice after each audit:
a. the first audit shall take place within 3 months from the date the Member begins or resumes the self-employed practice of nursing,
b. the second audit shall take place within 6 months from the date the Member begins or resumes the self-employed practice of nursing,
c. the third audit shall take place within 9 months from the date the Member begins or resumes the self-employed practice of nursing,
d. the fourth audit shall take place within 12 months from the date the Member begins or resumes the self-employed practice of nursing;
v. The audits shall, on each occasion, involve reviewing a random selection of 3 of the Member’s patient records to ensure they meet CNO standards, including but not limited to:
Ensuring the documentation is a complete record of nursing care provided to the patient,
Ensuring the Member included his full signature and/or initials, and professional designation, with all documentation with respect to the patient,
Ensuring the Member clearly identified the individual performing the assessment and/or intervention with respect to the patient, and
Ensuring that relevant patient care information was captured in a permanent record.
All documents delivered by the Member to CNO, the Expert, the employer(s) or Authorizing Professional(s) will be delivered by verifiable method, the proof of which the Member will retain.
Penalty Submissions
Submissions were made by College Counsel.
College Counsel asked the Panel to accept the Joint Submission on Order and reviewed the principles concerning them. The three key components are an oral reprimand, a 2-month suspension of the Member’s certificate of registration, and terms, conditions and limitations on the Member’s certificate of registration.
College Counsel further submitted that the aggravating factor in this case was:
- The persistent of the deficiencies in the patient records since they were found in all 16 patient records.
The mitigating factors in this case were:
The Member’s conduct does not reflect moral failing or malicious intent;
The Member does not have any prior discipline history with the College; and
The Member has accepted responsibility by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College.
The proposed penalty provides for general deterrence through the 2-month suspension of the Member’s certificate of registration, which sends a strong signal to members of the profession that lapses in documentation standards are unacceptable.
The proposed penalty provides for specific deterrence through the oral reprimand and the 2-month suspension of the Member’s certificate of registration. The oral reprimand will give the Member a greater understanding of how his actions are perceived by both the profession and the public. The 2-month suspension of the Member’s certificate of registration sends a strong signal to the Member that these documentation deficiencies are serious.
The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the College’s publications, which will prepare the Member to return to practice and meet the standards expected.
Overall, the public is protected through the 12 months of employer or regulated health professional notification and the 4 random spot audits of the Member’s practice and documentation, which will provide additional oversight by the authorized physician 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. The conduct of the members in these cases are not identical to the conduct of the Member in the case before this Panel, but do contain some similarities and differences which were highlighted by College Counsel:
CNO v. Rainville (Discipline Committee, 2019): This hearing proceeded by a way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member failed to document important aspects of her care in respect to two patients, which is similar to the case before this Panel. The difference in this case is that the member was alleged to have discontinued a physician’s order without obtaining advice from the physician. The member’s conduct was found to be a breach of the standards as the member failed to keep records and was conduct that would reasonably be regarded as unprofessional. The penalty included an oral reprimand, a 2-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert, 12 months of employer notification and 12 months of no independent practice in the community. Although the discontinuing of a physician’s order is different than in the case before this Panel, the allegations of failing to document are the same except for the number of patients involved, in this case it was two and in the case before this Panel it was 16, which makes it more significant regarding documentation lapses. This case establishes that a 2-month suspension for unprofessional conduct is reasonable.
CNO v. Li (Discipline Committee, 2022): This hearing proceeded by a way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member failed to properly assess patients or provide appropriate interventions, which is different from the case before this Panel, but the documentation allegations are similar. However, in this case the member was alleged to have falsified records, which is not the same as in the case before this Panel. The member’s conduct was found to be unprofessional and dishonourable and the penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert, 18 months of employer notification and three random spot audits of the member’s documentation. This case involved similar clinical issues around documentation, but also dishonesty. The type of intentional dishonesty in this case increased the suspension of the member’s certificate of registration to 3 months making the proposed 2-month suspension in the case before this Panel appropriate.
CNO v. Ozueh (Discipline Committee, 2017): This hearing proceeded by a way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member administered Botox and dermal fillers without properly documenting any pre-treatment assessment, client contact or medical history information. The member performed these procedures without physician authorization which is not the situation in the case before this Panel. The member’s conduct was found to be unprofessional and dishonourable. The penalty included an oral reprimand, a three-month suspension of the member’s certificate of registration, two meetings with a Nursing Expert, 18 months of mentor notification and five chart audits of ten randomly selected clients. This suspension is higher than the suspension in the case before this Panel, but is justified considering the lack of physician authorization.
Submissions were made by the Member’s Counsel.
The Member’s Counsel submitted that she agreed with College Counsel’s submissions and that the Joint Submission on Order is reasonable and should be accepted by the Panel as it meets the objects of penalty and the goals of public protection.
The Member’s Counsel submitted the following mitigating factors:
The Member has taken responsibility for his actions by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College, which has saved the College time and money and stress for the witnesses;
The Member cooperated with the College;
This is not a case about the Member’s honesty or mistreatment of patients, this is about his professionalism around his documentation in 16 patient files that were the subject of this case;
The Member has demonstrated his accountability, respect for the College and is remorseful for his actions; and
The Member has been registered with the College since 2015 and has no prior discipline history with the College.
The Member’s Counsel submitted that the Joint Submission on Order is fitting to the misconduct, is consistent with past decisions, appropriate and is in keeping with the public interest.
The Member’s Counsel further submitted that the three cases submitted by College Counsel are useful to demonstrate an appropriate range as to the documentation issue. However, all of the cases had patient care elements, intervention elements, falsification of records and authority to treat, whereas the case before this Panel does not have any of those components and is a documentation issue only and not a case of poor patient care or dishonesty.
The Member’s Counsel submitted that the penalty is appropriate and reasonable in all aspects and asked the Panel to make an order in accordance with the Joint Submission on Order.
Penalty Decision
The Panel accepts the Joint Submission on Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 2 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, and
Documentation;
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) If the Member is employed by an employer, 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. Subject to subparagraph 3(c) below, only practice nursing for an employer who agrees to, and does, forward a report to CNO within 14 days of the commencement or resumption of the Member’s employment in any nursing position, confirming:
that they received a copy of the required documents,
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession, and
that they agree to perform 4 random spot audits of the Member’s practice and documentation at the following intervals and provide a report to CNO regarding the Member’s practice after each audit:
a. the first audit shall take place within 3 months from the date the Member begins or resumes employment with the employer,
b. the second audit shall take place within 6 months from the date the Member begins or resumes employment with the employer,
c. the third audit shall take place within 9 months from the date the Member begins or resumes employment with the employer,
d. the fourth audit shall take place within 12 months from the date the Member begins or resumes employment with the employer;
v. The audits shall, on each occasion, involve reviewing a random selection of 3 of the Member’s patient records to ensure they meet both CNO and employer standards, including but not limited to:
Ensuring the documentation is a complete record of nursing care provided to the patient,
Ensuring the Member included his full signature and/or initials, and professional designation, with all documentation with respect to the patient,
Ensuring the Member clearly identified the individual performing the assessment and/or intervention with respect to the patient, and
Ensuring that relevant patient care information was captured in a permanent record.
c) If the Member is self-employed (which term includes employment by a corporation owned by the Member), for a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify the regulated health professional(s) who authorize the Member to perform controlled acts (the “Authorizing Professional(s)”) of the decision. To comply, the Member is required to:
i. Inform any Authorizing Professional of the decision prior to commencing or prior to resuming the self-employed practice of nursing;
ii. Ensure that CNO is notified of the name, address, and telephone number of all Authorizing Professional(s) within 14 days of commencing or resuming the self-employed practice of nursing;
iii. Provide the Member’s Authorizing Professional(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. Only practice nursing with an Authorizing Professional who agrees to, and does, forward a report to CNO within 14 days of the commencement or resumption of the Member’s self-employed practice of nursing, confirming:
that they received a copy of the required documents,
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession, and
that they agree to perform 4 random spot audits of the Member’s practice and documentation at the following intervals and provide a report to CNO regarding the Member’s practice after each audit:
a. the first audit shall take place within 3 months from the date the Member begins or resumes the self-employed practice of nursing,
b. the second audit shall take place within 6 months from the date the Member begins or resumes the self-employed practice of nursing,
c. the third audit shall take place within 9 months from the date the Member begins or resumes the self-employed practice of nursing,
d. the fourth audit shall take place within 12 months from the date the Member begins or resumes the self-employed practice of nursing;
v. The audits shall, on each occasion, involve reviewing a random selection of 3 of the Member’s patient records to ensure they meet CNO standards, including but not limited to:
Ensuring the documentation is a complete record of nursing care provided to the patient,
Ensuring the Member included his full signature and/or initials, and professional designation, with all documentation with respect to the patient,
Ensuring the Member clearly identified the individual performing the assessment and/or intervention with respect to the patient, and
Ensuring that relevant patient care information was captured in a permanent record.
All documents delivered by the Member to CNO, the Expert, the employer(s) or Authorizing Professional(s) will be delivered by verifiable method, the proof of which the Member will retain.
Reasons for Penalty Decision
The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.
The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility.
The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specific deterrence is achieved through the oral reprimand and the 2-month suspension of the Member's certificate of registration, which will send a clear message to the Member that lapses in documentation will not be tolerated. General deterrence is achieved through the 2-month suspension of the Member’s certificate of registration, which sends a strong signal to members of the profession that this type of conduct is unacceptable.
Rehabilitation and remediation will be achieved through the 2 meetings with a Regulatory Expert, which will give the Member the opportunity to review appropriate standards of the profession and gain insight into his misconduct ensuring that it will not be repeated again. The public will be protected through the 12 months of employer or regulated health professional notification and the 4 random spot audits of the Member’s practice and documentation, which will provide for the appropriate monitoring on the Member's return to practice.
The penalty is also in line with what has been ordered in previous cases in similar circumstances as demonstrated by the cases submitted and referred to by College Counsel.
I, Susan Roger, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.