College of Nurses of Ontario v. Beal, 2023 ONCNO 149381 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Mary MacNeil, RN Chairperson Lynn Hall, RN Member Sandra Larmour Public Member Kimberly Wagg, RPN Member

BETWEEN:

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

and -

BRETT NICHOLAS BEAL Registration No. AE095362 (NO REPRESENTATION for Brett Nicholas Beal)

KIMBERLEY ISHMAEL Independent Legal Counsel

Heard: November 2, 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 November 2, 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 publication or broadcasting of the name of the patient, or any information that could disclose the identity of the patient referred to orally or in any documents presented in the Discipline hearing of Brett Nicholas Beal.

The Panel considered the submissions of College Counsel and the Member and decided that there be an order preventing public disclosure and banning publication or broadcasting of the name of the patient, or any information that could disclose the identity of the patient referred to orally or in any documents presented in the Discipline hearing of Brett Nicholas Beal.

The Allegations

The allegations against Brett Nicholas Beal (the “Member”) as stated in the Notice of Hearing dated September 21, 2023 are as follows:

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while you were registered with the College of Nurses of Ontario as a Registered Practical Nurse and/or employed at GreeneStone Muskoka in Bala, Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession on or around December 3 and 20, 2019, when you:

(a) advised individuals at [the Patient]’s workplace that you knew [the Patient] from his treatment at a “rehab centre” and/or GreeneStone Muskoka, a rehabilitation facility, or words to that effect; and/or

(b) disclosed personal health information about [the Patient] to individuals at [the Patient]’s workplace;

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(10) of Ontario Regulation 799/93, in that, while you were registered with the College of Nurses of Ontario as a Registered Practical Nurse and/or employed at GreeneStone Muskoka in Bala, Ontario, you gave information about a patient to a person other than the patient or his or her authorized representative, without the consent of the patient or his or her authorized representative or as required or allowed by law on or around December 3 and 20, 2019, when you:

(b) disclosed personal health information about [the Patient] to individuals at [the Patient]’s workplace; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while you were registered with the College of Nurses of Ontario as a Registered Practical Nurse and/or employed at GreeneStone Muskoka in Bala, Ontario, 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 on or around December 3 and 20, 2019, when you:

(b) disclosed personal health information about [the Patient] to individuals at [the Patient]’s workplace.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), (b), 2(a), (b) and 3(a) and (b) 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 advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, and without the exhibits referenced therein, as follows:

THE MEMBER

Brett Nicholas Beal (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse on March 10, 2015. The Member was administratively suspended from February 16, 2023, until March 20, 2023, when his certificate of registration expired.
The Member was employed as a full-time nurse with Canadian Addiction Treatment Centres and, at the time of the incidents, he worked at GreeneStone Muskoka in Bala, Ontario, a rehabilitation centre (the “Facility”). The Member’s employment was terminated on January 22, 2020, following the incidents described below.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

(the “Patient”) first attended the Facility in 2019 and was in and out of treatment for one year. Staff at the Facility, including the Member, were aware that the Patient owned a [ ] shop. The Member met the Patient at the Facility.
On December 3 and 20, 2019, the Member attended the Patient’s [ ] shop. The Patient’s family members work at the [ ] shop.
While the Member was at the [ ] shop, the Member spoke about his place of work and that he knew the Patient from there, including that the Patient was receiving treatment from the “rehab centre”. The Patient’s wife and stepson were present.
During his conversation with the Patient’s stepson, the Member also disclosed that the Patient was having an affair with another patient at the Facility. The Patient’s wife overheard this conversation and later followed up with the Patient’s stepson to confirm what she overheard. As a result of the disclosure of the affair, the Patient and his wife are separated.
On January 20, 2020, the Patient submitted a complaint by email to the Facility regarding the Member’s conduct. In the email, the Patient stated that the Member’s disclosure caused a huge amount of turmoil and suffering within his family unit and resulted in him not feeling that GreeneStone is a safe place anymore. The Patient also expressed that this is the closest he has come to using in a long time.
The Facility conducted an investigation into the Member’s conduct. At the outset of the investigation, the Facility asked the Member not to engage with anyone about the investigation, and the Member was required to sign a confidentiality agreement. Despite this, the Member texted the Patient’s stepson and asked if they could speak. The Facility called the Member to remind him of his responsibility and the signed agreement. Nevertheless, the Member texted the Patient’s stepson again indicating it was important that they speak, and the Patient’s stepson subsequently blocked the Member’s number. If the Member were to testify, he would state that after the Facility called him, he texted the Patient’s stepson something along the lines of “never mind, forget it”. The Member would further testify that he contacted the Patient’s stepson due to safety concerns as he wanted the Patient’s stepson to remove his information, which included his home address, from the [ ] shop’s records.
The Facility interviewed the Member during its investigation. The Member confirmed that he knew the shop was owned by the Patient and that he visited it on December 3 and 20, 2019. The Member also admitted to speaking with the Patient’s stepson at the shop. The Member stated that he acknowledged that he knew the Patient, but said he knew him from the gym. The Member also stated that the Patient’s stepson told the Member he was concerned about the Patient and the Member told the Patient’s stepson that he worked at the Facility in rehab with mental health and addiction and gave him some general advice but did not give any specific information about the Patient. The Member claimed that he did not initiate any conversations about the Patient and did not expressly advise that the Patient was a patient of the Facility. The Member also stated it seemed that the Patient’s stepson was trying to get information out of the Member.
On January 22, 2020, following the conclusion of the Facility’s investigation, the Facility terminated the Member’s employment with cause.
If the Member were to testify, he would state that if he was faced with this situation again, he would avoid putting himself in the situation altogether by being more attentive to patients’ business and community connections, insisting on maintaining confidentiality should discussions arise, and removing himself immediately from interactions when there is an agenda of information seeking. If the Member were to testify, he would also state he would bring the incidents to the attention of his managers or relevant and appropriate parties within the patient’s circle of care immediately.

CNO STANDARDS

Code of Conduct

CNO’s Code of Conduct is a standard of practice describing the accountabilities all Ontario nurses have to the public. The Code of Conduct consists of six principles including:

Nurses respect the dignity of patients and treat them as individuals;
Nurses work together to promote patient well-being;
Nurses maintain patients’ trust by providing safe and competent care;
Nurses work respectfully with colleagues to best meet patients’ needs;
Nurses act with integrity to maintain patients’ trust; and
Nurses maintain public confidence in the nursing profession.

CNO’s Code of Conduct provides, in relation to the principle requiring nurses to act with integrity to maintain patients’ trust, that nurses protect the privacy and confidentiality of patients’ personal health information.
Attached as Exhibit “A” is a copy of CNO’s Code of Conduct which was in force at the time of the incidents.

Professional Standards

CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.
CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standards of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.
CNO’s Professional Standards further provides, in relation to the ethics standard, that ethical nursing care means promoting the values of patient well-being, respecting patient choice, assuring privacy and confidentiality, respecting the sanctity and quality of life, maintaining commitments, respecting truthfulness and ensuring fairness in the use of resources.
In addition, CNO’s Professional Standards further provides, in relation to the leadership standard, that a nurse demonstrates leadership by actions such as role-modelling professional values, beliefs and attributes.
Attached as Exhibit “B” is a copy of CNO’s Professional Standards which was in force at the time of the incidents and has since been retired.

Confidentiality and Privacy: Personal Health Information

CNO’s Confidentiality and Privacy: Personal Health Information standard (“Privacy Standard”) largely incorporates the Personal Health Information Protection Act, 2004. The Privacy Standard provides that nurses have ethical and legal responsibilities to maintain the confidentiality and privacy of patient health information obtained while providing care. It requires that personal health information be kept confidential and secure. Nurses comply with the Privacy Standard by:

Seeking information about issues of privacy and confidentiality of personal health information;
Maintaining confidentiality of [patients’] personal health information with members of the healthcare team, who are also required to maintain confidentiality, including information that is documented or stored electronically;
Maintaining confidentiality after the professional relationship has ended, an obligation that continues indefinitely when the nurse is no longer caring for a [patient] or after a [patient’s] death; and
Obtaining the [patient’s] express consent before disclosing his/her information outside the health team (e.g., to family members or friends of the [patient]).

In addition, as referenced in the Privacy Standard, one of the definitions of professional misconduct in the Nursing Act, 1991, is “giving information about a [patient] to a person other than the [patient] or his or her authorized representative, except with the consent of the [patient] or his or her representative, or as required or allowed by law.”
Attached as Exhibit “C” is a copy of CNO’s Confidentiality and Privacy: Personal Health Information standard which was in force at the time of the incidents.
The Member admits and acknowledges that he contravened CNO’s Code of Conduct, Professional Standards and Privacy Standard when he:

advised individuals at the Patient’s workplace that he knew the Patient from the Patient’s treatment at a “rehab centre” and/or GreeneStone Muskoka, a rehabilitation facility; and
disclosed personal health information about the Patient to individuals at the Patient’s workplace.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1(a) and (b) of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as described in paragraphs 3 to 10 and 12 to 23 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2(a) and (b) of the Notice of Hearing in that he gave information about a patient to a person other than the patient or his or her authorized representative, without the consent of the patient or his or her authorized representative or as required or allowed by law, as described in paragraphs 3 to 10 and 21 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3 (a) and (b) of the Notice of Hearing, and in particular his conduct was dishonourable and unprofessional, as described in paragraphs 3 to 10 and 12 to 23 above.

Submissions on liability were made by College Counsel.

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 24-26 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 and informed. 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(a), (b), #2(a), (b) and #3(a) and (b) with the Panel. With regard to allegations #1(a) and (b), College Counsel submitted that these allegations are supported by the Agreed Statement of Facts, which contained evidence of the relevant College standards of the profession in effect at the time of the incidents, as well as the Member’s admissions that those standards were breached. College Counsel submitted that the Member disclosed personal health information about [the Patient] to individuals at [the Patient]’s workplace when he advised them that he knew [the Patient] from his treatment at the rehab centre and did so within earshot of [the Patient]’s family members. This was a clear breach of the standards that state that trust, confidence and confidentiality are cornerstones of the nursing profession as well as the therapeutic nurse-client relationship.

With regard to allegations #2(a) and (b), College Counsel submitted that the Member’s conduct involved sharing personal health information about [the Patient] outside of the circle of care and without authorization from [the Patient]. The Agreed Statement of Facts, particularly paragraphs 6 and 7 also provide insight on how this disclosure impacted [the Patient] and his family.

With regard to allegations #3(a) and (b), College Counsel submitted that the Member’s conduct is relevant to the practice of nursing as it directly related to confidential patient information that he obtained due to his employment as a Registered Practical Nurse (“RPN”) at GreeneStone Muskoka (the “Facility”) and in his capacity as an RPN to [the Patient]. The Member would not have had access to the information he shared without having been employed at the Facility as an RPN to [the Patient]. College Counsel submitted that the parties agreed that the Member’s conduct would reasonably be regarded by members of the profession to be dishonourable and unprofessional. College Counsel submitted that a finding of disgraceful conduct is reserved for the most extreme and egregious acts of professional misconduct and that the Member’s conduct does not rise to that level. The Member’s conduct is unprofessional as it constitutes a serious and persistent disregard for his professional obligations. The Member’s conduct is also dishonourable as he knew or ought to have known that revealing personal health information to [the Patient]’s family member fell below the standards of the profession. By doing something the Member knew or ought to have known was wrong, he demonstrated an element of moral failing which raised the misconduct from not only unprofessional but also to dishonourable.

College Counsel submitted the following cases to the Panel for consideration:

CNO v. McFarlane (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts. In this case, while the member was off duty and visiting a family member in a long-term care home, she spoke to a nurse who had previously worked with the member and the patient at the facility where the member worked and the patient was admitted and disclosed personal health information about the patient to the former colleague without authorization or consent, and for no clinical purpose. The panel found that the member contravened a standard of practice of the profession or failed to meet the standards of practice of the profession and the Health Professions Procedural Code and that her conduct was dishonourable and unprofessional.

CNO v. Anderson (Discipline Committee, 2022): In this case, which proceeded by way of an Agreed Statement of Facts, the member among other things disclosed personal health information about a patient to another patient without consent or authorization. The panel found that the member contravened the standards of practice of the profession and the Health Professions Procedural Code and that her conduct was unprofessional, dishonourable and disgraceful.

CNO v. Hamilton (Discipline Committee, 2019): In this case, which proceeded by way of an Agreed Statement of Facts, a client’s child posted a message on Facebook expressing concern about the care her mother was receiving at the facility. The member who worked at that facility and provided care to the client posted several comments in response to that Facebook message and disclosed personal health information about the client. The member’s response was inappropriate and unprofessional. The panel found that the member contravened a standard of practice of the profession or failed to meet the standards of practice of the profession and that her conduct was dishonourable and unprofessional.

College Counsel submitted that the allegations are supported by the evidence set out in the Agreed Statement of Facts, as well as the Member’s admissions to all the allegations and requested that the Panel make findings of professional misconduct on all of the allegations.

The Member made no 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(a), (b), 2(a), (b) and 3(a) and (b) of the Notice of Hearing. As to allegations #3(a) and (b), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

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

Allegations #1(a) and (b) in the Notice of Hearing are supported by paragraphs 3-10 and 12-24 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he disclosed the personal health information of [the Patient] without consent or authorization and/or for no clinical purpose. The Member attended a [ ] shop, on December 3, 2019, which he knew was owned by [the Patient], where he spoke about his place of work and that he knew [the Patient] from there, including that [the Patient] was receiving treatment from the rehab center and also disclosed to [the Patient]’s stepson that [the Patient] was having an affair with another patient at the Facility. The Member breached the College’s Code of Conduct by failing to act with integrity to maintain [the Patient]’s trust and thereby compromising the public’s confidence in the nursing profession. The Agreed Statement of Facts indicated the Member’s disclosure of [the Patient]’s personal health information caused turmoil and suffering and resulted in [the Patient] feeling that the Facility was not a safe place anymore. The College’s Confidentiality and Privacy: Personal Health Information Standard provides that “Nurses have ethical and legal responsibilities to maintain the confidentiality and privacy of client health information obtained while providing care”. The Member ignored these responsibilities by providing information to others without [the Patient]’s consent. As well, the Member did not demonstrate leadership through role-modelling professional values, beliefs and attributes, which contravenes the Professional Standards.

Allegations #2(a) and (b) in the Notice of Hearing are supported by paragraphs 3-10, 21 and 25 in the Agreed Statement of Facts. The Member admitted that he discussed information about [the Patient] with members of [the Patient]’s family, without his consent or authorization. The Member disclosed that [the Patient] was receiving treatment from the rehab centre he worked at and that [the Patient] was having an affair with another patient at the Facility.

Allegations #3(a) and (b) in the Notice of Hearing are supported by paragraphs 3-10, 12-23 and 26 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in disclosing personal health information about [the Patient] without consent or authorization was clearly relevant to the practice of nursing as it was only because of his employment as an RPN at the Facility that he had the personal health information about [the Patient] As an RPN he was therefore professionally obligated to not share this information without [the Patient]’s consent.

The Member admitted and acknowledged that he disclosed the personal health information of [the Patient] without authorization or consent. Nurses are accountable to the public and responsible for ensuring their practice and conduct meets legislative requirements and the standards of the profession. Nursing standards are expectations that contribute to public protection and inform nurses of their accountabilities and the public of what to expect of nurses. These standards apply to all nurses regardless of their role, job description or area of practice. The Panel finds that the Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in contravening the College’s Code of Conduct, the Professional Standards, and the Confidentiality and Privacy: Personal Health Information Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty, deceit and moral failing through knowingly going into the [ ] shop that was owned by [the Patient] and sharing personal health information with individuals not in [the Patient]’s circle of care. The Member breached [the Patient]’s trust, causing undue stress and harm. The Member knew or ought to have known that his conduct was unacceptable and fell below the standards of a professional. The College’s Ethics Standard states that “Nurses demonstrate regard for privacy and confidentiality by: keeping all personal and health information confidential within the obligations of the law and standards of practice; and protecting clients’ physical and emotional privacy.”

Penalty

College Counsel and the Member 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 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.
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 and 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:

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
Confidentiality and Privacy – Personal Health Information;

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

v. 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;

vi. 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;

vii. 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;

viii. 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 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

College Counsel submitted that the Joint Submission on Order is the product of negotiation between the College and the Member and asked the Panel to accept it as it is in the public interest, is appropriate, reflects the aggravating and mitigating factors, meets the goals of penalty and is consistent with prior decisions of this Discipline Committee.

The aggravating factors in this case were:

The Member attending [the Patient]’s workplace and disclosing personal health information about [the Patient] without consent was a serious, obvious breach of trust and confidentiality;
The nature of the breach created real harm to [the Patient]’s family unit resulting in the breakup of his marriage and likely impact on the relationship with his stepson;
The Member breaching a signed confidentiality agreement that was required during the investigation; and
The discredit the Member’s conduct brought to the profession by showing an obvious disregard for his professional obligations.

The mitigating factors in this case were:

The Member accepted responsibility for his conduct by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College;
The Member has no prior disciplinary history with the College;
The Member participated in an uncontested hearing and by signing the Agreed Statement of Facts and a Joint Submission on Order saved time and expense to the College; and
There was evidence of remorse by the Member.

The proposed penalty provides for general deterrence through the 2-month suspension of the Member’s certificate of registration, which demonstrates to members of the profession that there are consequences for those that engage in this type of conduct.

The proposed penalty provides for specific deterrence through the oral reprimand and the 2-month suspension of the Member’s certificate of registration, should he decide to regain an active certificate of registration. The oral reprimand will help the Member understand how his conduct is perceived by the public and by members of the profession. The 2-month suspension of the Member’s certificate of registration will deter the Member from committing this type of conduct in the future.

The proposed penalty provides for rehabilitation and remediation through a minimum of 2 meetings with a Regulatory Expert and the review of the College’s Code of Conduct and the Confidentiality and Privacy: Personal Health Information Standard, which will assist the Member with the tools that he may need to meet the requirements of nursing practise.

Overall, the public is protected through the Joint Submission on Order, in its totality, as it is geared toward public protection and through the 12 months of employer notification, it will provide a heightened level of employer oversight on the Member’s return to nursing practice. It sends a message to nurses that there are consequences for their behavior and to the public of the profession's ability to self-regulate.

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. McFarlane (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 failed to meet the standards of practice of the profession when she disclosed the personal health information of a patient to a person other than the patient, without the patient’s consent or other authorization while she was off duty and outside of the facility. The penalty included an oral reprimand, a 1-month suspension of the member’s certificate of registration, a minimum of 1 meeting with a Regulatory Expert and 12 months of employer notification.

CNO v. Hamilton (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 failed to meet the standards of practice of the profession when she posted several comments in response to a Facebook message and disclosed personal health information about a client without the client's consent. The member also made inappropriate and unprofessional comments directed towards the client’s grandchildren. The penalty included an oral reprimand, a three-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 12 months of employer notification.

The Member agreed with College Counsel’s submissions.

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

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
Confidentiality and Privacy – Personal Health Information;

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

v. 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;

vi. 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;

vii. 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;

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 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

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

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

The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. General deterrence is met through the 2-month suspension of the Member’s certificate of registration. Specific deterrence is met through the oral reprimand and the 2-month suspension of the Member’s certificate of registration. Rehabilitation and remediation are met through a minimum of 2 meetings with a Regulatory Expert and the review of the College's Code of Conduct and the Confidentiality and Privacy: Personal Health Information Standard. Overall, the public is protected through the 12 months of employer notification.

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, Mary MacNeil, 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.