College of Nurses of Ontario v. Anita Bepat, 2023 CanLII 69925

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Mary MacNeil, RN Chairperson

Sandra Larmour Public Member

Donna May, RPN Member

Ian McKinnon Public Member

Ingrid Wiltshire-Stoby, NP Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) GLYNNIS HAWE for

) College of Nurses of Ontario

• and - )

ANITA BEPAT ) CHRISTOPHER BRYDEN for

Registration No. 9412073 ) Anita Bepat

) KIMBERLEY ISHMAEL

) Independent Legal Counsel

) Heard: April 25, 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 April 25, 2023, via videoconference.

The Allegations

The allegations against Anita Bepat (the “Member”) as stated in the Notice of Hearing dated November 1, 2022 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that while registered with CNO as Registered Nurse, you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to satisfactorily complete the Practice Assessment requirements after being selected by the Quality Assurance Committee for practice assessment in 2019;

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, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while registered with CNO as a Registered Nurse, 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, in that:

a) you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to satisfactorily complete the Practice Assessment requirements after being selected by the Quality Assurance Committee for practice assessment in 2019.

Member’s Plea

The Member admitted the allegations set out in paragraphs #1 and #2(a) 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. Anita Bepat (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on January 19, 1994.

2. The Member is currently entitled to practise nursing in Ontario without restrictions.

3. The Member is not currently employed in a nursing role.

PRIOR HISTORY

4. On March 30, 2022, the Inquiries, Complaints and Reports Committee (“ICRC”) directed that the Member appear before a panel of the ICRC to be cautioned with respect to the following standards and guidelines:

• Code of Conduct
• Conflict Prevention and Management
• Documentation
• Medication
• Professional Standards
• Therapeutic Nurse-Client Relationship Standard

5. The ICRC also required that the Member complete remedial activities with respect to the same set of standards and guidelines, which included meeting with an approved nursing expert to discuss insights and learnings gained from completing a series of reflection questionnaires and exercises.

6. The Member has twice been found to have committed professional misconduct by CNO’s Discipline Committee.

7. On September 9, 2004, the Member admitted to and was found to have committed professional misconduct when she claimed sick leave and/or sick benefits from one employer while she continued to work for another employer on approximately six occasions. The Member received an oral reprimand, was ordered to pay a fine of $1,000, and was required to comply with an undertaking in which the Member agreed to a 12-month employer notification period, in addition to other requirements.

8. On February 17, 2012, the Member admitted to and was found to have committed professional misconduct for providing inadequate patient care, incomplete or inaccurate documentation, engaging in inappropriate and unprofessional communications with co-workers, and attending work when her ability to practice was impaired by alcohol. The Member was ordered to meet with a regulatory nursing expert twice to discuss six CNO practice standards and guidelines, including Documentation, Therapeutic Nurse-Client Relationship, Professional Standards, and Conflict Prevention and Management, in addition to completing an online learning module about appropriate communication with patients. The Member’s certificate of registration was suspended for one month. She also received an oral reprimand and was required to complete a specified continuing education or remedial program (SCERP).

CNO’s Quality Assurance Program

9. CNO is required by the Health Professions Procedural Code to establish a quality assurance program. CNO’s Quality Assurance Committee (“QA Committee”) is responsible for administering CNO’s Quality Assurance Program (the “QA Program”).

10. The QA Program helps nurses engage in activities that foster lifelong learning and helps nurses maintain and improve their professional competence. Participation in the QA Program is a professional requirement.

11. The QA Program includes three kinds of assessment: self, peer, and practice assessment.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Member Failed to Participate in the 2019 QA Program

12. On January 18, 2019, the Member was selected for Practice Assessment as part of CNO’s Quality Assurance program. The Member was required to submit a learning plan and take objective tests by March 6, 2019. The Member failed to do so.

13. On March 25, 2019, CNO wrote to the Member with a second chance to complete the Practice Assessment activities, with a new deadline of April 14, 2019. The Member failed to complete the Practice Assessment activities.

14. On April 23, 2019, CNO wrote to the Member again, requesting that she complete the Practice Assessment activities by May 9, 2019.

15. On April 30, 2019, before CNO’s third deadline had passed, a CNO Practice Consultant contacted the Member by phone. The Member indicated that she did not have access to a computer at home and that she was off work on a sick leave.

16. The CNO Practice Consultant explained that the Member could request to defer the QA process and offered to send the Member a deferral form. The Member refused.

17. The CNO Practice Consultant offered the Member an onsite meeting at CNO so she could use a computer. The Member refused.

18. On May 9, 2019, the Member spoke again with the CNO Practice Consultant. The Member stated again that she did not have access to a computer and was unable to complete the QA requirements. The CNO Practice Consultant invited her again to use a computer at CNO. The Member refused.

19. After the Member’s May 9, 2019 call, the Member submitted a learning plan but did not complete the objective tests. The Member’s learning plan was assessed by the QA Committee as unsatisfactory.

20. On May 24, 2019, CNO wrote to the Member to inform her that her learning plan was assessed as unsatisfactory and that she was required to revise and resubmit it by June 10, 2019, and also that she was required to complete the objective tests by that same date. The letter also warned the Member that if she failed to complete the activities by this fourth deadline, the QA Committee may direct the Executive Director to impose terms, conditions or limitations (“TCLs”) on the Member’s certificate of registration to prohibit her from clinical practice.

21. On June 6, 2019, the Member attended an onsite meeting at CNO where the CNO Practice Consultant assisted the Member in accessing the QA portal on CNO’s website. The Member completed both objective tests. The CNO Practice Consultant also encouraged the Member to revise her learning plan while onsite. The Member advised that she would complete the learning plan at home and fax it to CNO.

22. The Member’s objective tests were assessed by the QA Committee as unsatisfactory. The Member did not submit a revised learning plan.

23. On June 18, 2019, the QA Committee imposed TCLs on the Member’s certificate of registration, prohibiting her from engaging in any form of clinical practice until she satisfactorily completed the QA Practice Assessment requirements as directed by the QA Committee.

24. On June 19, 2019, a CNO Monitoring Administrator contacted the Member by phone and left her a voicemail with the details of the QA Committee’s decision. The Member was also informed of the restrictions on her certificate of registration by mail on June 19 and 20, 2019. CNO’s June 19, 2019 letter informed the Member that she had failed to satisfactorily complete both practice assessment activities and that she was restricted from clinical practice until she had done so.

25. On June 28, 2019, the Member submitted a learning plan. The Member did not make a further attempt at the online objective tests.

26. On June 4, 2020, the Member called CNO to inquire about the TCLs on her certificate of registration. She stated that she had not received the QA Committee’s June 2019 letters and claimed to not know that there were limitations on her practice.

27. On July 9, 2020, Chartwell Woodhaven, a long-term care facility in Markham, Ontario, reported to CNO that the Member had been employed at the facility since May 14, 2018, and that the Member had been engaged in clinical practice throughout that time. Chartwell Woodhaven also reported that it had terminated the Member’s employment on June 23, 2020 because it had discovered the TCLs placed on the Member’s certificate of registration which prohibited her from clinical practice. The Member had not disclosed the restrictions on her practice to the facility.

28. The Member eventually completed both practice assessment activities, and on December 16, 2020, the QA Committee deemed the Member to have satisfied the QA requirements and removed the TCLs on her certificate of registration.

29. If the Member were to testify, she would say that a series of personal circumstances, including personal health issues, led to her failure to participate in the 2019 QA Program. Nevertheless, the Member acknowledges that, despite any circumstances impacting her personal life, she had a professional obligation to participate in the QA Program, and to respond to communications from CNO.

30. If the Member were to further testify, she would state that she understands the importance of accountability to CNO as a member of a regulatory body and regrets her lack of responsiveness to her regulator given that it was her professional duty to participate in the statutorily mandated QA Program.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

31. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that she failed to cooperate with the QA Committee or any assessor appointed by that Committee, and in particular, she failed to participate after being selected by the QA Committee for practice assessment in 2019, as described in paragraphs 12-30 above.

32. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2(a) of the Notice of Hearing, and in particular, that her conduct was unprofessional, as described in paragraphs 12-30 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 31-32 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 written and verbal plea, which 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, the Member failed to cooperate with the requirements of the Quality Assurance Committee (“QA Committee”) of the College. The Panel has evidence in the Agreed Statement of Facts that the Member failed to cooperate on a number of occasions. The Panel has also been provided with the Member’s admissions, contained in paragraphs 31 and 32 of the Agreed Statement of Facts.

With regard to allegation #2(a), the Quality Assurance Program (“QA Program”) is a requirement established by the Health Professions Procedural Code (the “Code”) and all nurses are required to participate. This requirement, established by the Code, makes the Member’s conduct relevant to the act of nursing. The Member has also admitted that her conduct was unprofessional as it showed a serious disregard for her professional obligations and as defined by statute.

Submissions were made by the Member’s Counsel.

The Member’s Counsel submitted that the Member admitted to the allegations and wishes to cooperate with the College and comply with her professional obligations.

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 and #2(a) of the Notice of Hearing. With respect to allegation #2(a), 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.

Allegation #1 in the Notice of Hearing is supported by paragraphs 12-31 in the Agreed Statement of Facts. The Member admitted to her professional misconduct. On January 18, 2019, the Member was selected by the QA Committee for Practice Assessment as part of the College’s QA Program. The Member was required to submit a learning plan and complete the objective tests by March 6, 2019. The Member failed to do so. The College wrote to the Member twice, extending the deadline. Before the third deadline had passed, the Member was contacted by a College Practice Consultant by phone and the Member indicated that she did not have a computer and was on sick leave. The College Practice Consultant made several attempts to accommodate the Member, including offering her an onsite meeting at the College so she could use a computer, as well as offering to send the Member a deferral form, which the Member refused. The Member did eventually submit a learning plan but did not complete the objective tests, the learning plan was assessed by the QA Committee as unsatisfactory. On May 24, 2019, the College sent a letter to the Member to complete the required activities by the fourth deadline, otherwise terms, conditions or limitations (“TCLs”) to prohibit her from clinical practice may be imposed on her certificate of registration. On June 6, 2019, the Member attended an onsite meeting at the College and completed both objective tests but chose not to revise her learning plan, stating that she would do so at home and fax it to the College. The Member’s objective tests were deemed unsatisfactory by the QA Committee and the Member did not submit a revised learning plan. On June 19, 2019, the Member was informed of the TCLs on her certificate of registration by mail and the College’s Monitoring Administrator left her a voicemail with the details of the QA Committee’s decision.

The Member continued to engage in clinical practice and was subsequently terminated by her place of employment in June 2020 due to the TCLs placed on her certificate of registration which was not disclosed by the Member to her employer. There is sufficient evidence to demonstrate that the Member was required and failed to cooperate with the QA Committee’s directions on several occasions.

Allegation #2(a) in the Notice of Hearing is supported by paragraphs 12-30 and 32 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in failing to cooperate with the QA Committee and failing to participate in the Practice Assessment as required by the College’s QA Program which is a requirement established by the Code, was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. Nurses maintain and enhance their competence through daily practice reflection, lifelong learning and by integrating that learning into their practice. As practicing nurses, Quality Assurance is integral in ensuring the public receives safe, quality and ethical care.

The Member also continued to engage in clinical practice in spite of the TCLs placed on her certificate of registration prohibiting her from engaging in any form of clinical practice until she satisfactorily completed the Practice Assessment requirements as directed by the QA Committee.

Penalty

College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:

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

2. Directing the Executive Director to suspend the Member’s certificate of registration for 3 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

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

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

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

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

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

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

1. Code of Conduct, and

2. Professional Standards;

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;

1. 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

b) The Member shall participate in CNO’s next available Quality Assurance program cycle, within 24 months from the date this Order becomes final.

4. All documents delivered by the Member to CNO and the Expert will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

• The Member repeatedly disregarded opportunities and offers of extensions to participate in the QA Program;
• When the Member did participate, the activities were unsatisfactory;
• The Member failed to abide with clear directions and assistance from the College;
• The Member also continued to engage in clinical practice for a year in spite of the TCLs placed on her certificate of registration prohibiting her from engaging in any form of clinical practice; and
• The Member has prior discipline history on two occasions with the College and a prior order from the Inquiries, Complaints and Reports Committee (“ICRC”). This demonstrates a pattern of professional misconduct and a disregard for her professional obligations.

The mitigating factors in this case were:

• The Member cooperated with the College; and
• The Member accepted responsibility and entered into an Agreed Statement of Facts and a Joint Submission on Order with the College.

Both parties agreed that the Joint Submission on Order meets the goals of penalty. The goal of penalty is to protect the public and ensure the future competency by participants engaging in the QA Program. This is achieved by a penalty that addresses specific deterrence, general deterrence and rehabilitation and remediation of the Member allowing her to return to practice.

The proposed penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration, which deters members of the profession from engaging in this misconduct.

The proposed penalty provides for specific deterrence through the oral reprimand and the 3-month suspension of the Member’s certificate of registration, which signals to the Member the disapproval of her conduct and that this type of misconduct is taken seriously.

The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the Professional Standards and the Code of Conduct. The penalty is aimed at ensuring future competency by learning from this experience, gaining insight and engaging in the College’s next available Quality Assurance program cycle, within 24 months from the date the Order became final.

Overall, the public is protected as this process will assist the Member in gaining additional knowledge and insight into her practice.

College Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:

CNO v. Bridge (Discipline Committee, 2021): The allegations in this case were similar to the case before this Panel as the member failed to participate in two separate Quality Assurance dates. This case proceeded on an uncontested basis by way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty included an oral reprimand, a 2-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and participation in the next Quality Assurance program cycle.

CNO v. Dockery (Discipline Committee, 2020): The allegations in this case were similar to the case before this Panel as the member failed to participate in two separate Quality Assurance dates. This case proceeded on an uncontested basis by way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty included an oral reprimand, a 2-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and participation in the next Quality Assurance program cycle.

In both these cases, the members had no prior history of discipline and did not practice in contravention of TCLs placed on their certificate of registration and these higher aggravating circumstances warrant a one month higher suspension of 3 months in the case before this Panel.

The Member’s Counsel submitted that the Member wishes to cooperate and comply with her professional obligations and with the obligations as set out in the penalty ordered by 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 3 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

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

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

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

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

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

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

1. Code of Conduct, and

2. Professional Standards;

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;

1. 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

b) The Member shall participate in CNO’s next available Quality Assurance program cycle, within 24 months from the date this Order becomes final.

4. All documents delivered by the Member to CNO and the Expert 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 3-month suspension of the Member’s certificate of registration. General deterrence is achieved through the 3-month suspension of the Member’s certificate of registration. Rehabilitation and remediation is achieved through the 2 meetings with a Regulatory Expert and participation in the next available Quality Assurance program cycle.

The penalty is also in line with what has been ordered in previous cases in similar circumstances.

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.