DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Grace Fox, NP Chairperson
Eloisa Busto, RPN Member
Jean-Laurent Domingue, RN Member
Lalitha Poonasamy Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) GLYNNIS HAWE for
) College of Nurses of Ontario
- and - )
GERARD PETER MURPHY ) CHRISTOPHER BRYDEN for
REGISTRATION NO. 8701724 ) Gerard Peter Murphy
) CHRISTOPHER WIRTH
) Independent Legal Counsel
) Heard: February 21, 2024
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 February 21, 2024, 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, personal health information or any information that could disclose the identities of the patients or personal health information referred to orally or in any documents presented at the Discipline hearing of Gerard Peter Murphy.
The Panel has considered the submissions of the parties and has decided that there be an order preventing public disclosure and banning the publication or broadcasting of the names of the patients, personal health information or any information that could disclose the identities of the patients, referred to orally or in any documents presented at the Discipline hearing of Gerard Peter Murphy.
The Allegations
The allegations against Gerard Peter Murphy (the "Member") as stated in the Notice of Hearing dated January 2, 2024 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 working as a Registered Nurse at London Health Sciences Centre, in London, Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession in that you accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information and/or used personal health information for an unauthorized purpose, the specifics of which are set out in the attached Appendix "A".
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 employed as a Registered Nurse at London Health Sciences Centre, in London, 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 in that you accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information and/or used personal health information for an unauthorized purpose, the specifics of which are set out in the attached Appendix "A".
Appendix "A"
DATE
PATIENT
DESCRIPTION
October 15, 2020
10 occasions
Accessed the electronic list of Emergency Department patients, which contained personal health information including patient name, age, gender and reason for admission without consent or other authorization and/or failed to ensure confidentiality of personal health information and, on one or more occasions, used personal health information for an unauthorized purpose
October 20, 2020
[Patient A]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 20, 2020
[Patient B]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 20 and 21, 2020
[Patient C]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 21, 2020
[Patient D]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 21, 2020
[Patient E]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 21, 2020
12 occasions
Accessed electronic list of Emergency Department patients, which contained personal health information including patient name, age, gender and reason for admission without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 22, 2020
[Patient F]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 22, 2020
[Patient G]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 22, 2020
[Patient H]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 22, 2020
[Patient I]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 22, 2020
[Patient J]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 22, 2020
[Patient K]
Accessed personal health information without consent or other authorization and/or failed to ensure confidentiality of personal health information
October 22, 2020
14 occasions
Accessed electronic list of Emergency Department patients, which contained personal health information including patient name, age, gender and reason for admission without consent or other authorization and/or failed to ensure confidentiality of personal health information
Member's Plea
The Member admitted the allegations set out in paragraphs 1 and 2 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 as amended reads, unedited, and without the lettered exhibits mentioned therein as follows:
THE MEMBER
Gerard Peter Murphy (the "Member") registered with the College of Nurses of Ontario ("CNO") as a Registered Nurse on August 7, 1986.
The Member was employed at London Health Sciences Centre in London, Ontario (the "Facility") from June 2014 until January 2021, when he was terminated as a result of the incidents described below. The Member worked at the Facility in a casual capacity and primarily worked the night shift.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
When a patient attends the Emergency Department ("ED") at the Facility two lists are compiled. The first is a list of patients who have presented at the ED for assessment. The second is a list of patients who have been admitted to a mental health unit but are waiting for a bed (the "powerchart list"). The powerchart list includes the patient's name, age, gender, and the reason for admission. The patient's electronic health records ("EHR") are also available through the powerchart list.
On October 20, 2020, a resident in the ED observed that the Member had accessed the EHR of a patient in the ED who was also an employee of the Facility. On this date, the Member was working on an adult mental health unit at the Facility and there was no clinical reason for the Member to access the powerchart list or the EHRs of patients in the ED. If the Member were to testify, he would state that he does not recall accessing the chart, the employee in question was not known to him, he did not access the chart intentionally, nor did he do so in order to improperly review the employee's personal health information. Nevertheless, the Member admits and acknowledges that his electronic user profile accessed the EHR of this patient on October 20, 2020 and that he did not have consent or authorization to do so.
Facility management subsequently conducted an audit of all the Member's EHR accesses on October 20, 2020. The audit revealed that the Member's electronic user profile accessed the EHRs of Patients [A], [B], and [C], without consent or authorization. These were patients in the ED who were not in the Member's circle of care. The Member accessed clinical notes, discharge summaries and medication records.
The Member had no legitimate reason to access the records of the patients in the ED. Even if an ED patient had been admitted to an inpatient mental health unit, until the patient had a bed and was moved to the mental health unit, they were still an ED patient. In addition, none of the ED patients were assigned to be cared for by the Member in any capacity after they obtained a bed in a mental health unit.
On November 17, 2020, the Facility met with the Member. The Member denied that he had accessed any ED patient records and, if he had, that he did not recall doing so. The Member acknowledged that he was not in the circle of care for ED patients.
As a result of the Member's denial of having accessed the ED patient records on October 20, 2020, the Facility conducted additional audits for October 15, 21, and 22, 2020. The audits revealed that:
On October 15, 2020, the Member's electronic user profile accessed the EHR of two patients in the ED for whom he was not in their circle of care. The Member and/or his electronic user profile also accessed the powerchart list on 10 occasions;
On October 21, 2020, the Member's electronic user profile accessed the EHR of three patients in the ED for whom he was not in their circle of care, Patients [C], [D], and [E]. The Member's electronic user profile also accessed the powerchart list on 12 occasions; and
On October 22, 2020, the Member's electronic user profile accessed the EHRs of patients in the ED for whom he was not in their circle of care, Patients [F], [G], [H], [I], [J] and [K]. The Member's electronic user profile also accessed the powerchart list on 12 occasions.
The Member had no legitimate reason to access the ED patients' EHRs or the powerchart on those dates, and admits he did not have consent or authorization to do so.
On December 3, 2020, the Facility held a second meeting with the Member. The Member stated that he accessed the powerchart list on October 15, 2020 because he was looking for specific people. He explained that he was unit lead for patients at Parkwood, a London health care facility that offers complex care, rehabilitation, and specialized services for older adults, veterans care, and mental health care. The Member further explained that he would track down outpatients who were late for service or on community treatment orders to see if they had been admitted to a facility or were in shelters. The Member acknowledged that using the Facility's powerchart lists to track down Parkwood patients was a privacy breach. The Member also indicated he was familiar with the Facility's privacy policy and that it would be a breach of the policy to access ED patient EHRs.
If the Member were to testify, he would state that he looked up Parkwood patients out of genuine concern, and only to ascertain if they been admitted to the ER. Nevertheless, the Member admits and acknowledges it was a privacy breach to do so.
On January 5, 2021, the Facility terminated the Member's employment as a result of the privacy breaches.
If the Member were to testify, he would state that other than the powerchart access on October 15, 2020 the patients were not persons that were known to him personally and, to his knowledge, were not public figures.
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 maintain patients' trust by providing safe and competent care, that nurses are accountable to, and practice under, relevant laws and CNO's standards of practice.
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.
CNO's Code of Conduct also provides, in relation to the principle requiring nurses to maintain public confidence in the nursing profession, that nurses are accountable for their own actions and decisions.
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 and indicators that illustrate how the standard may be demonstrated pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.
[ ]
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 provides, in relation to the leadership standard, that leadership requires self-knowledge (understanding one's beliefs and values and being aware of how one's behaviour affects others), respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. Nurses demonstrate their leadership by providing, facilitating and promoting the best possible care/service to the public and by 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;
Collecting only information that is needed to provide care;
Accessing information for her/his [patients] only and not accessing information for which there is no professional purpose; and
Safeguarding the security of computerized, printed or electronically displayed or stored information against theft, loss, unauthorized access or use, disclosure, copying, modification or disposal.
Attached as Exhibit "C" is a copy of CNO's Privacy 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:
Accessed personal health information without consent or other authorization;
Failed to ensure confidentiality of personal health information; and
Used personal health information for an unauthorized purpose.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1 and Appendix "A" 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 26 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 2 and Appendix "A" of the Notice of Hearing, and in particular his conduct was dishonourable and unprofessional, as described in paragraphs 3 to 26 above.
Submissions on Liability
College Counsel's Submissions
College Counsel submitted that the Panel should accept the Agreed Statement of Facts, as well as the Member's admissions of professional misconduct, and make findings on both allegations. The Member's admissions were voluntary and informed.
In relation to allegation #1, College Counsel submitted that the relevant College standards in force at the time of the allegations are provided to the Panel in the appendices of the Agreed Statement of Facts. These College standards along with the Member's admissions, provide the Panel with the evidence to make findings that the Member breached the College standards.
In relation to allegation #2, College Counsel submitted that the parties agreed that the Member's conduct was relevant to the practice of nursing and that it would be considered by other members of the College to be unprofessional and dishonourable. The conduct is relevant to the practice of nursing because it took place during his practice as a Registered Nurse ("RN"). Without this employment, the Member would not have had access to the clinical information that he consulted without authorization or the consent of the patients. Other members of the profession would consider the Member's conduct as being unprofessional and dishonourable. The Member's conduct was unprofessional as it demonstrated a complete disregard for his professional obligations. College Counsel submitted that the protection of patient confidentiality is a basic and important responsibility of any nurse, and that the Member should have known that his conduct was contrary to his professional obligations. College Counsel submitted that the Member's conduct was also dishonourable because it included an element of moral failing. He should have known that his conduct fell well below what is expected from a nursing professional.
The Member's Counsel's Submissions
The Member's Counsel submitted that the Panel should accept the Agreed Statement of Facts, as well as the Member's admissions to both allegations in the Notice of Hearing. The Member's Counsel submitted that the Member was a long service nurse and that he had been a nurse since 1986. The Member has no other disciplinary history in more than 30 years of nursing. The Member was cooperative with his employer and with the College during the investigations and the disciplinary process. The Member's Counsel submitted that the Member regrets the circumstances that led to the incidents. The Member's Counsel also submitted that there was no maliciousness in the Member's conduct, nor did the Member gain personally from his conduct. As described in the Agreed Statement of Facts, if the Member were to testify, he would testify that some of these incidents took place when he left his computer open. Nevertheless, the Member's Counsel submitted that the Member has admitted to the incidents that took place on October 15, 2020, but that these incidents were not done out of maliciousness.
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 of the Notice of Hearing. As to allegation #2, 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.
Allegation #1 in the Notice of Hearing is supported by paragraphs 3 to 26 and 27 in the Agreed Statement of Facts. To make its finding of professional misconduct, the Panel had to distinguish the Member's conduct during each of the incidents.
Incidents that took place on or around October 15, 2020
The Member admitted that while employed at London Health Sciences Centre (the "Facility") on or around October 15, 2020, he accessed the powerchart list to track down Parkwood outpatients who were late for service or on community treatment orders to see if they had been admitted to a facility or were in shelters. The Member acknowledged that using the Facility's powerchart lists to track down Parkwood patients was a privacy breach.
The Member contravened the College's Code of Conduct, which provides that, to uphold this standard, members must act with integrity to maintain patients' trust, and that nurses protect the privacy and confidentiality of patients' personal health information. The Panel finds that by accessing the personal health information of patients on the powerchart list, regardless of the underlying reason for such a confidentiality breach, the Member contravened the College's Code of Conduct.
The Member contravened the College's Professional Standards, and particularly the ethics and leadership standards. The ethics standard of the College's Professional Standards provides that members must respect patient choice and assure privacy and confidentiality. The leadership standard of the College's Professional Standards provides that leadership requires self-knowledge, respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. Members demonstrate their leadership by providing, facilitating and promoting the best possible care/service to the public and by role-modelling professional values, beliefs and attributes. The Panel finds that by accessing the personal health information of patients on the powerchart list, the Member failed to assure the privacy and confidentiality of patient information and failed to role-model professional nursing values and thus contravened the College's Professional Standards.
The Member contravened the College's Confidentiality and Privacy - Personal Health Information Standard ("Privacy Standard"), which provides that, to uphold this standard, members must not access information for which there is no professional purpose. The Panel finds that by accessing the personal health information of Parkwood outpatients on the powerchart list, the Member accessed information for which there was no professional purpose in his role as an Emergency Department ("ED") RN at the Facility. Therefore, the Panel finds that the Member breached the College's Privacy Standard.
Incidents that took place on or around October 20, 21 and 22, 2020
The Member admitted and acknowledged that his electronic user profile accessed the powerchart list and the electronic health records ("EHR") of many patients on or around October 20, 21 and 22, 2020. The Member admitted that he had no legitimate reason to access the ED patients' EHRs or the powerchart on those dates, and that he did not have consent or authorization to do so. Although the Member did not admit to actively accessing the powerchart list or the EHRs of patients, the Panel finds that the Member contravened the College's Privacy Standard in that he failed to ensure confidentiality of personal health information when his electronic user profile was used to access, on multiple occasions, confidential patient personal health information. The College's Privacy Standard provides that nurses have ethical and legal responsibilities to maintain the confidentiality and privacy of patient health information obtained while providing care. To uphold the Privacy Standard, nurses must safeguard the security of computerized or electronically displayed information against unauthorized access or use. By failing to safeguard the privacy of his electronic user profile, which was subsequently used to access the personal health information of patients, the Panel found that the Member contravened the Privacy Standard.
Allegation #2 in the Notice of Hearing is supported by paragraphs 3 to 26 and 28 in the Agreed Statement of Facts. The Panel finds that the Member's conduct in repeatedly accessing personal health information of patients without authorization or consent was relevant to the practice of nursing. It was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in breaching the College's Code of Conduct, the Professional Standards and the Privacy Standard.
The Panel also finds that the Member's conduct was dishonourable. It demonstrated an element of dishonesty and deceit through its repeated nature and the fact that the Member knew or ought to have known that his conduct fell well below the standards and what would be expected of a nursing professional.
Penalty
College Counsel and the Member's Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:
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 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.
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 that this Order becomes final. 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 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
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
College Counsel's Submissions
College Counsel submitted that the Panel should accept the Joint Submission on Order and make an order in accordance with its terms as it is a product of negotiations between two experienced Counsel. College Counsel submitted that the Panel is generally expected to accept the Joint Submission on Order unless it believes it is contrary to public interest or that it would bring the administration of justice into disrepute. College Counsel submitted that the Joint Submission on Order is appropriate for three reasons: (1) it reflects the aggravating and mitigating factors of the case; (2) it meets the goals of penalty; and (3) it is consistent with prior decisions of the College's Discipline Committee.
The aggravating factors in this case were:
The Member's conduct constituted a breach of trust;
Patients engage in the health care system with the understanding that nursing professionals would not make an inappropriate use of their personal health information; and
Some of the Member's accesses to patient personal health information were deliberate and the Member knew or ought to have known that doing so was inappropriate.
The mitigating factors in this case were:
The Member has taken responsibility for his actions;
The Member has cooperated with the College throughout the investigation and disciplinary processes and entered into an Agreed Statement of Facts and a Joint Submission on Order with the College; and
The Member has no discipline history with the College. He has been a member of the College for a number of years, and this is the first instance of conduct that is problematic.
The proposed penalty provides for general deterrence through the 3-month suspension of the Member's certificate of registration, which makes a statement to the other members of the profession that such conduct is unacceptable and comes with serious consequences.
The proposed penalty provides for specific deterrence through an oral reprimand, which demonstrates to the Member that their conduct is perceived to be problematic by other members of the profession and by the public. The 3-month suspension of the Member's certificate of registration also provides for specific deterrence, in that it will incentivize the Member to abstain from engaging in similar conduct in the future.
The proposed penalty provides for remediation and rehabilitation through a minimum of 2 meetings with a Regulatory Expert and review of the College's Code of Conduct and Privacy Standard to help the Member reflect and learn about his conduct. The 12 months of employer notification provision also provides for remediation and rehabilitation as it will ensure that the Member's future employers can provide oversight and support regarding his conduct.
Overall, the public is protected through the cumulative effects of the provisions included within the proposed penalty.
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. Twance (Discipline Committee, 2021): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member accessed health records without consent or clinical purpose on 10 distinct dates for a single patient. The panel made findings of professional misconduct in that the member breached the College's standards of practice and that her conduct was unprofessional and dishonourable. The penalty included an oral reprimand, a 2-month suspension of the member's certificate of registration, 1 meeting with a Regulatory Expert, and 12 months of employer notification. The Panel found that this penalty was appropriate considering the mitigating factors, which are similar to the case before this Panel.
In Twance, although the cases were repeated, they only related to a single patient. In the case before this Panel, there are multiple occasions where the Member breached patient confidentiality and multiple patients involved. Further, in Twance, the Member had taken remedial action before the discipline hearing. College Counsel submitted that in the present case before this Panel, the penalty includes one additional month of suspension, and one additional meeting with a Regulatory Expert, thus demonstrating that the proposed penalty falls within the range of acceptable penalties.
CNO v. Fazzari (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 accessed the health records of 57 patients for no clinical purposes. The panel made findings of professional misconduct in that the member breached the College's Professional Standards and that her conduct was dishonourable and unprofessional. In Fazzari, the member knew some of the patients whose confidential health records she accessed. The panel accepted the Agreed Statement of Facts and made findings on both allegations. The panel also accepted the aggravating and mitigating factors in the Fazzari case, which were similar to the case before this Panel in the present hearing, including repeated access to confidential health records and a significant breach of trust. In Fazzari, the member cooperated with the College, and she did not have a previous discipline history with the College. The penalty included an oral reprimand, a 3-month suspension of the member's certificate of registration, 2 meetings with a Regulatory Expert, 18 months of employer notification, and 3 random spot audits of the member's EHR accesses over a course of 12 months.
CNO v. Ogier (Discipline Committee, 2022): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. Over a 4-month period and while on sick leave, the member accessed health records of 18 patients without their authorization or consent, and for reasons that were other than clinical. The panel made findings of professional misconduct in that the member breached the standards and that her conduct was dishonourable and unprofessional. There was no evidence that the member had relationships with the patients. The aggravating and mitigating factors in the Ogier case were similar to the ones in the case before this Panel, including a pattern of misconduct, conduct that was intentional, and a breach of patient trust. In the Ogier case, the member was experienced, had no discipline history and cooperated with the College during the investigation and disciplinary processes. The penalty included an oral reprimand, a 3-month suspension of the member's certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.
College Counsel submitted that the Panel should accept the proposed Joint Submission on Order because it meets the goals of penalty, it reflects the circumstances of the case, and it is consistent with prior decisions of the Discipline Committee.
The Member's Counsel's Submissions
The Member's Counsel submitted that the Panel should adopt the Joint Submission on Order and that it should consider, as a mitigating factor, the fact that the Member is a long serving nurse without a disciplinary history with the College and that he has cooperated with the College throughout the various investigation and disciplinary processes.
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 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.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member's certificate of registration:
a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the "Expert") at the Member's own expense and within 6 months from the date that this Order becomes final. 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 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
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.
Reasons for Penalty Decision
There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.
The Panel accepted the Joint Submission on Order because it is not contrary to the public interest and does not bring the administration of justice into disrepute. The Panel concluded that the proposed penalty is reasonable. 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, as submitted by both College Counsel and the Member's Counsel.
General deterrence is provided through the 3-month suspension of the Member's certificate of registration, which makes a statement to other members of the profession that such conduct is unacceptable and comes with serious consequences.
Specific deterrence is provided through an oral reprimand, which demonstrates to the Member that his conduct is perceived to be problematic by other members of the profession and by the public. The 3-month suspension of the Member's certificate of registration also provides for specific deterrence, in that it will incentivize the Member to abstain from engaging in similar conduct in the future.
Remediation and rehabilitation is provided through a minimum of 2 meetings with a Regulatory Expert and review of the College's Code of Conduct and Privacy Standard to help the Member reflect and learn about his conduct. The 12 months of employer notification provision also provides for remediation and rehabilitation as it will ensure that the Member's future employers can provide oversight and support regarding his conduct.
Overall, the public is protected through the cumulative effects of the provisions included within the proposed penalty.
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, Grace Fox, NP, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.