DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Michael Hogard, RPN Chairperson
Simon-Matthew Bate, NP Member
Sylvia Douglas Public Member
Susan Roger, RN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) DOUGLAS MONTGOMERY for
) College of Nurses of Ontario
- and - )
SONIA RODRIGUEZ VARGAS ) MARIA KOTSOPOULOS for
Registration No. AD065441 ) Sonia Rodriguez Vargas
) CHRISTOPHER WIRTH
) Independent Legal Counsel
) Heard: July 30, 2024 via videoconference
DECISION AND REASONS
Publication Ban
By Order of the Discipline Panel dated July 30, 2024, pursuant to subsection s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, no one shall publish or broadcast the name(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented at the Discipline hearing of Sonia Rodriguez Vargas.
This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on July 30, 2024.
The Allegations
The allegations against Sonia Rodriguez Vargas (the “Member”) as stated in the Notice of Hearing dated June 18, 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 the Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at the Chatham-Kent Health Alliance – Public General Hospital Campus in Chatham, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to accessing personal health information without consent or other proper authorization, for one or more of the following clients on or about the dates indicated below:
Client Name
Date of Access
[A]
March 29, 2020 at 12:12-12:15 hours April 10, 2020 at 03:21 hours
[B]
March 29, 2020 at 12:14 hours
[C]
May 24, 2020 at 12:06 hours
[D]
March 29, 2020 at 12:14-12:15 hours
[E]
April 4, 2020 at 04:49 hours April 5, 2020 at 05:15 hours
[F]
April 4, 2020 at 04:49 hours
[G]
April 10, 2020 at 03:21 hours
[H]
March 29, 2020 at 12:14 hours
[I]
April 10, 2020 at 03:22 hours
[J]
April 10, 2020 at 03:21 hours April 11, 2020 at 04:31 hours
[K]
March 29, 2020 at 12:14 hours
[L]
April 5, 2020 at 05:16 hours
[M]
April 10, 2020 at 03:22 hours
[N]
April 5, 2020 at 05:16 hours
[O]
April 10, 2020 at 03:22 hours
[P]
April 10, 2020 at 03:21 hours
[Q]
March 24, 2020 at 18:39-18:40 hours
[R]
May 19, 2020 at 18:21 hours
[S]
April 4, 2020 at 04:49 hours
[T]
March 29, 2020 at 12:14 hours
[U]
April 5, 2020 at 05:15 hours
[V]
May 24, 2020 at 12:06 hours
[W]
April 4, 2020 at 04:49 hours April 5, 2020 at 05:15 hours
[X]
April 5, 2020 at 05:15 hours
[Y]
May 24, 2020 at 12:06 hours
[Z]
April 10, 2020 at 03:21 hours April 11, 2020 at 04:31-04:32 hours
[AA]
May 19, 2020 at 18:21 hours
[BB]
April 10, 2020 at 03:21 hours
[CC]
April 5, 2020 at 05:16 hours
[DD]
April 5, 2020 at 03:09 and 22:24 hours
[EE]
April 4, 2020 at 04:49 hours April 5, 2020 at 05:15 hours
[FF]
April 10, 2020 at 03:21 hours
[GG]
May 24, 2020 at 12:06 hours
[HH]
March 24, 2020 at 18:39 hours
[II]
April 10, 2020 at 03:22 hours
[JJ]
March 24, 2020 at 18:40-18:42 hours
[KK]
April 4, 2020 at 04:50 hours
[LL]
February 24, 2020 at 00:29 hours March 24, 2020 at 18:39-18:40 hours April 10, 2020 at 03:21 hours
[MM]
April 10, 2020 at 03:21 hours
[NN]
March 29, 2020 at 12:12-12:15 hours
[OO]
March 24, 2020 at 18:42-18:45 hours
[PP]
March 29, 2020 at 12:13 hours
[QQ]
May 24, 2020 at 12:06 hours
- 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 Practical Nurse at the Facility, 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 of the profession as disgraceful, dishonourable or unprofessional with respect to:
(a) accessing personal health information without consent or proper authorization, for one or more of the following clients on or about the dates indicated below:
Client Name
Date of Access
[A]
March 29, 2020 at 12:12-12:15 hours April 10, 2020 at 03:21 hours
[B]
March 29, 2020 at 12:14 hours
[C]
May 24, 2020 at 12:06 hours
[D]
March 29, 2020 at 12:14-12:15 hours
[E]
April 4, 2020 at 04:49 hours April 5, 2020 at 05:15 hours
[F]
April 4, 2020 at 04:49 hours
[G]
April 10, 2020 at 03:21 hours
[H]
March 29, 2020 at 12:14 hours
[I]
April 10, 2020 at 03:22 hours
[J]
April 10, 2020 at 03:21 hours April 11, 2020 at 04:31 hours
[K]
March 29, 2020 at 12:14 hours
[L]
April 5, 2020 at 05:16 hours
[M]
April 10, 2020 at 03:22 hours
[N]
April 5, 2020 at 05:16 hours
[O]
April 10, 2020 at 03:22 hours
[P]
April 10, 2020 at 03:21 hours
[Q]
March 24, 2020 at 18:39-18:40 hours
[R]
May 19, 2020 at 18:21 hours
[S]
April 4, 2020 at 04:49 hours
[T]
March 29, 2020 at 12:14 hours
[U]
April 5, 2020 at 05:15 hours
[V]
May 24, 2020 at 12:06 hours
[W]
April 4, 2020 at 04:49 hours April 5, 2020 at 05:15 hours
[X]
April 5, 2020 at 05:15 hours
[Y]
May 24, 2020 at 12:06 hours
[Z]
April 10, 2020 at 03:21 hours April 11, 2020 at 04:31-04:32 hours
[AA]
May 19, 2020 at 18:21 hours
[BB]
April 10, 2020 at 03:21 hours
[CC]
April 5, 2020 at 05:16 hours
[DD]
April 5, 2020 at 03:09 and 22:24 hours
[EE]
April 4, 2020 at 04:49 hours April 5, 2020 at 05:15 hours
[FF]
April 10, 2020 at 03:21 hours
[GG]
May 24, 2020 at 12:06 hours
[HH]
March 24, 2020 at 18:39 hours
[II]
April 10, 2020 at 03:22 hours
[JJ]
March 24, 2020 at 18:40-18:42 hours
[KK]
April 4, 2020 at 04:50 hours
[LL]
February 24, 2020 at 00:29 hours March 24, 2020 at 18:39-18:40 hours April 10, 2020 at 03:21 hours
[MM]
April 10, 2020 at 03:21 hours
[NN]
March 29, 2020 at 12:12-12:15 hours
[OO]
March 24, 2020 at 18:42-18:45 hours
[PP]
March 29, 2020 at 12:13 hours
[QQ]
May 24, 2020 at 12:06 hours
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 reads, unedited, and without the Appendix and Exhibits mentioned therein as follows:
MEMBER
Sonia Rodriguez Vargas (the “Member”) initially registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on July 31, 2014.
At the time of the incidents described below, the Member was working in the Rehabilitation Unit (the “Unit”) at the Chatham-Kent Health Alliance – Public General Hospital Campus (the “Facility”).
The Member was initially hired at the Facility on July 13, 2015. The Member’s employment at the Facility was terminated on May 29, 2020.
Prior to this proceeding, the Member had no prior history of discipline with the CNO.
BREACH OF PATIENT PRIVACY
In the spring of 2020, the Facility’s Manager of Health Records & Privacy conducted monthly, proactive audits in order to monitor access to the electronic health records of the Facility’s patients who had been hospitalized with COVID.
The general audits revealed that the Member was viewing the profiles of several patients who had been diagnosed or hospitalized with COVID.
On the basis of this information, the Facility’s Manager of Health Records & Privacy conducted a full audit of the Member’s health record access history for the time period between February and May 2020 (the “Audit”).
The Audit revealed that, during this time period, the Member accessed the electronic charts of 43 patients (the “Patients”) even though the Patients were not patients of the Unit, nor had the Patients provided consent or authorization for the Member to access their charts.
The table at Appendix A of the Agreed Statement of Facts details each instance of access that was made without the Patients’ consent, authorization, or any professional purpose.
The Facility met with the Member on May 27, 2020 to discuss the results of the Audit. The Member initially denied having accessed the charts and suggested that someone else may have done so using the Member’s account while the Member’s computer was unlocked.
The Member eventually admitted, however, that she had looked at the Patients’ charts, that none of the Patients whose records she had accessed were her patients or patients of the Unit, and that she had no work-related reason for accessing any of the relevant Patients’ charts.
PROFESSIONAL OBLIGATION TO PROTECT PERSONAL HEALTH INFORMATION
The Member received orientation and training on privacy and personal health information from the Facility.
Prior to commencing her employment at the Facility in July 2015, the Member signed the Facility’s “Confidentiality Agreement” which included an affirmation that she would ensure that she did not inappropriately access confidential information. Moreover, the Member received privacy training on May 31, 2019.
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, Revised 2002 (“Professional Standards”) provides that each nurse is accountable to the public and responsible for ensuring their practice and conduct meets legislative requirements and the standards of the profession. It also states that nurses are responsible for their actions and the consequences of those actions, and they are also accountable for conducting themselves in ways that promote respect for the profession.
CNO’s Professional Standards further provide 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. It also includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members.
A copy of CNO’s Professional Standards, Revised 2002, in force at the relevant time, is attached as Exhibit “B”.
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.
A copy of CNO’s practice standard Confidentiality and Privacy: Personal Health Information, in force at the relevant time, is attached as Exhibit “C”.
The Member admits and acknowledges that accessing the personal health information of patients without consent, authorization or professional purpose was a breach of CNO’s Code of Conduct, Professional Standards and Confidentiality and Privacy: Personal Health Information standard, in force at the relevant time.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing, in that, she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as described in paragraphs 4 - 23 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 4 - 23 above.
Liability submissions
College Counsel submitted that the allegations at issue arose early in the COVID-19 pandemic when the Member reviewed 43 patient records of those patients admitted to her Facility with known COVID. The Member’s admissions and the facts set out in the Agreed Statement of Facts support each allegation. The Member’s conduct is relevant to the practice of nursing in that she would have only been able to view the records in her capacity as an RPN. It was the College’s submission that nurses have an obligation to safeguard patients’ personal health information as set out in the College’s practice standards, and the Member’s conduct should be considered unprofessional and dishonourable.
Member’s Counsel made no further 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 and 2 of the Notice of Hearing. With regard to allegations in paragraph 2, the Panel finds that the Member engaged in conduct relevant to the practice of nursing which would reasonably be regarded by members of the profession to be unprofessional and dishonourable.
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 4 - 23 in the Agreed Statement of Facts. The Member’s conduct was initially identified by her employer as they completed random electronic medical record audits of patients hospitalized with a COVID diagnosis. The Member accessed the records of 43 patients in total. The Member admitted to accessing personal health information of these patients, without being in their circle of care and without proper authorization. As a result, the Panel found that the Member had contravened the CNO Code of Conduct, the Professional Standards and the Confidentiality and Privacy: Personal Health Information standard. All three standards speak to the requirements for nurses to protect patients’ privacy and treat their personal health information confidentially and sensitively. In particular, the Confidentiality and Privacy standard is very clear in directing nurses not to “access information for which there is no professional purpose”.
Allegation #2 in the Notice of Hearing is supported by paragraphs 4 - 23 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in accessing multiple patient records without a clinical purpose or proper authorization was unprofessional. It demonstrated a serious and persistent disregard for her professional obligations, specifically around patient privacy.
The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of deceit and moral failing by accessing patient records without a clinical purpose. This was a marked departure from the standards of nursing. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional.
Penalty
College Counsel and the Member’s Counsel advised that a Joint Submission on Order had been agreed upon and requested that the Panel make the following order:
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 Practice Reflection Worksheets, online learning modules and decision tools (where applicable):
Code of Conduct;
Confidentiality and Privacy – Personal Health Information; and,
Circle of Care: Sharing Personal Health Information for Health-Care Purposes as released by the Information and Privacy Commissioner of Ontario
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 Practice Reflection Worksheets;
v. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;
vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;
b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employer(s) of the decision. To comply, the Member is required to:
i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;
ii. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
iii. Provide the Member’s employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iv. 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.
that they agree to perform 3 random spot audits of the Member’s accesses to electronic health records at the following intervals and provide a report to CNO regarding the Member’s practice after each audit:
a. the first audit shall take place within 4 months from the date the Member begins or resumes employment with the employer,
b. the second audit shall take place within 8 months from the date the Member begins or resumes employment with the employer,
c. the third audit shall take place within 12 months from the date the Member begins or resumes employment with the employer;
- All documents delivered by the Member to CNO, the Expert or the Member’s employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
College Submissions on Penalty
College Counsel made submissions on penalty which included the following.
The Member engaged in a pattern of improper and unauthorized access to the electronic medical records of 43 patients hospitalized at her Facility. She was not in their circle of care and had no clinical purpose in accessing those records. This conduct only ended when she was confronted by her employer with these privacy breaches which occurred over a period of three months. The Member’s conduct involved breaches of both her employer’s and the patient’s trust and must be considered aggravating factors. Mitigating factors included the Member took responsibility for her conduct and entered into a resolution of the matter with the College.
College Counsel submitted that the oral reprimand and suspension of the Member’s certificate of registration met the penalty goals of specific and general deterrence. Specifically, the suspension sends a message to the Member and the profession at large that this type of behaviour will not be tolerated. The terms, conditions and limitations on the Member’s certificate of registration will help to ensure the Member’s return to ethical nursing practice. The terms of employer oversight and spot audits will protect the public by helping to ensure that this conduct is not repeated and will convey that the College can regulate its members.
College Counsel submitted three cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:
CNO v. Fazzari (Discipline Committee, 2022) proceeded by way of Agreed Statement of Facts and Joint Submission on Order. In this case, the member accessed 57 patients records without proper authority. The penalty order included an oral reprimand, a 3-month suspension, 2 meetings with a Regulatory Expert and a period of employer notification.
CNO v. Evoy (Discipline Committee, 2019) proceeded by way of an Agreed Statement of Facts and Joint Submission on Order. In this case, the aggravating factors included that the member accessed their family members’ records and had impersonated family members to gain access to 11 other patient record without clinical purpose or authorization. The member received an oral reprimand, a 3-month suspension, 2 meetings with a Regulatory Expert, a period of employer notification and a requirement for spot audits.
CNO v. Trudel (Discipline Committee, 2018) proceeded by way of an Agreed Statement of Facts and Joint Submission on Order. In this case, the member accessed the medical records of 63 patients records without a professional purpose. The aggravating factors included that the member accessed the medical records of her ex-husband and neighbours and attempted to use the personal health information in nefarious ways. The member received an oral reprimand, a 4-month suspension of her certificate of registration, and similar terms, conditions and limitations.
Member’s Submissions on Penalty
The Member’s Counsel indicated that they agreed with the College’s submissions and made no further submissions.
Penalty Decision
The Panel accepted the Joint Submission on Order and made the order requested.
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 concluded that the proposed penalty 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 and in the public interest. It promotes public confidence in the ability of the College to regulate nurses.
The Panel finds that the proposed penalty satisfies the goals of specific and general deterrence, rehabilitation and remediation, and public protection.
The proposed penalty provides for specific deterrence through the oral reprimand and the 3-month suspension of the Member’s certificate of registration. The suspension also provides for general deterrence.
The proposed penalty provides for remediation and rehabilitation through the meetings with the Regulatory Expert, the period of employer notification and the three spot audits to help ensure that the Member’s conduct is not repeated.
Overall, the public is protected through the period of suspension and subsequent employer notification. These restrictions on the Member’s certificate of registration will provide oversight and help to ensure the Member’s return to ethical practice. The spot audits will reinforce the Member’s ongoing application of the College’s standards.
The Panel acknowledges that the Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility, which is a mitigating factor.
The penalty is in line with the range of what has been ordered in previous similar cases.
I, Michael Hogard, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.