College of Nurses of Ontario v. Elena Visan, 2024 CanLII 131473

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Morgan Krauter, NP Chairperson Lynn Hall, RN Member Sandra Larmour Public Member Donna May, RPN Member

BETWEEN:

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

• and -

ELENA VISAN Registration No. AJ778385 MICHELLE GIBBS for Elena Visan

KIMBERLEY ISHMAEL Independent Legal Counsel

Heard: April 25, 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 April 25, 2024, via videoconference.

The Allegations

The allegations against Elena Visan (the “Member”) as stated in the Notice of Hearing dated November 22, 2023 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 as a Registered Practical Nurse with the College of Nurses, you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for Quality Assurance assessment in 2021 and/or failed to complete all Quality Assurance assessment requirements in or around 2021 and/or 2022.

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, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while registered as a Registered Practical Nurse with the College of Nurses, 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 failed to participate after being selected by the Quality Assurance Committee for Quality Assurance assessment in 2021 and/or failed to complete all Quality Assurance assessment requirements in or around 2021 and/or 2022.

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, as follows:

The Member

1. Elena Visan (the “Member”) registered with the College of Nurses of Ontario (the “CNO”) as a Registered Practical Nurse (“RPN”) on November 29, 2010 and is currently entitled to practice nursing.

2. The Member has been employed as an RPN at Devonshire Retirement Residence, in Windsor, Ontario, since 2015.

3. The Member has no prior disciplinary history with CNO.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

CNO’s Quality Assurance Program

4. 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”).

5. 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.

6. 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 2021 and/ or 2022 QA Program

7. On September 13, 2021, the Member was selected for Practice Assessment as part of CNO’s Quality Assurance program. The Member was contacted via electronic communication and advised that she was required to submit a learning plan and complete Practice Assessment activities by October 20, 2021. The Member failed to do so.

8. On December 16, 2021, CNO wrote to the Member, via electronic communication, to provide a second chance to complete the Practice Assessment activities, with a new deadline of January 17, 2022. The Member failed to complete the Practice Assessment activities by the January deadline.

9. On February 17, 2022, CNO wrote to the Member, via electronic communication, to provide a third chance to complete the Practice Assessment activities, with a new deadline of March 17, 2022. The Member failed to complete the Practice Assessment activities by the March deadline.

10. On May 3, 2022, CNO wrote to the Member, via electronic communication, to provide a fourth and final chance to complete the Practice Assessment activities, with a new deadline of May 19, 2022. The Member failed to complete the Practice Assessment activities by this final deadline.

11. On June 15, 2022, the QA Committee referred the Member’s failure to complete the QA Assessment activities to CNO’s Inquiries, Complaints and Reports Committee.

12. On October 7, 2022, CNO sent correspondence to the Member by regular mail regarding CNO’s investigation into the Member’s failure to participate in the QA Program.

13. On October 19, 2022 the Member submitted the Practice Assessments activities as requested by the QA Committee.

14. If the Member were to testify, she would say that until October 2022, when she received correspondence from CNO via regular mail, she was unaware that she had been selected to participate in CNO’s QA Program.

15. The Member would further testify that she considers herself an unsophisticated user when it comes to navigating the computer, emails, and other electronic communications. The Member relies upon her family to assist her with technology, including advising her when it is safe to open links and/or input her credentials.

16. The Member admits that she saw some of the emails from CNO but did not open the secure file links for fear of downloading a computer virus. The Member acknowledges that she was accountable, as a member of a regulated health profession, for following up with CNO to assess the legitimacy of the communications from CNO, instead of ignoring the communications. The Member further acknowledges she had a professional obligation to participate in the QA Program, and to respond to communications from CNO.

17. If the Member were to testify, she would state that she is remorseful for failing to follow up with CNO and complete the QA Program requirements in a timely manner and wishes to assure CNO that she will be more responsive and proactive going forward.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

18. 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 2021 and/or 2022, as described in paragraphs 7-17 above.

19. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, and in particular, that her conduct was unprofessional, as described in paragraphs 7-17 above.

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 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 7-18 in the Agreed Statement of Facts. The Member admitted that she committed the acts of professional misconduct in 2021 and 2022 when she failed to cooperate on multiple occasions with the Quality Assurance Committee (“QA Committee”) and participate in the Quality Assurance Program (“QA Program”) by submitting a learning plan and completing practice assessment activities required by the QA Committee.

Allegation #2 in the Notice of Hearing is supported by paragraphs 7-17 and 19 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in failing to participate in the QA Program was relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

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 1 month. 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 a minimum of 1 meeting 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 second session is required, the Expert will advise CNO, and both sessions shall be completed within 9 months from the date 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;

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 date(s) 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;

4. 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.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

• The length of time of the Member’s misconduct which involved ignoring or not responding to correspondence from the College for over a year;

• The Member received numerous communications via email from the College and was offered multiple opportunities to comply with her obligations; and

• The Member knew or ought to have known that when she received emails from the College, she should have followed up on the reason she was being contacted by the College.

The mitigating factors in this case were:

• The Member eventually completed the practice assessment activities;

• The Member has cooperated with the College’s proceedings;

• The Member has admitted to the allegations and has accepted responsibility for her actions by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and

• The Member has no prior disciplinary history with the College.

The proposed penalty provides for general deterrence through the oral reprimand and the 1-month suspension of the Member’s certificate of registration, which sends a clear message to members of the College that this type of conduct will not be tolerated.

The proposed penalty provides for specific deterrence through the oral reprimand and the 1-month suspension of the Member’s certificate of registration, which sends a strong message to the Member that professional misconduct is not acceptable and must not be repeated.

The proposed penalty provides for remediation and rehabilitation through a minimum of 1 meeting with a Regulatory Expert.

Overall, the public is protected because the penalty reminds nurses that continuing competence is a fundamental requirement of the profession.

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. Parker (Discipline Committee, 2016): In this case, which proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order, the member failed to participate in the Quality Assurance Program. The member received written notifications by mail and verbal communication by phone informing her she had an obligation to participate in the Quality Assurance Program. The penalty included an oral reprimand, a 1-month suspension of the member’s certificate of registration, 2 meetings with a Nursing Expert and to participate in the College’s 2017 Quality Assurance Program or the next available cycle.

CNO v. Agyekum (Discipline Committee, 2012): In this case, which proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order, the member failed to appear before a panel of the Inquiries, Complaints and Reports Committee to be orally cautioned. The member failed to participate in her obligations to the College. The penalty included an oral reprimand, a 1-month suspension of the member’s certificate of registration, 2 meetings with a Nursing Expert and the Member was required to attend and receive an oral caution with the Inquiries, Complaints and Reports Committee.

CNO v. Carter (Discipline Committee, 2021): In this case, which proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order, the member failed to complete Quality Assurance activities. The member was selected at 2 separate times to complete Quality Assurance activities and did not in both instances. The penalty included an oral reprimand, a 2-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and to participate in the College’s next available Quality Assurance program cycle. The increase in suspension was related to the member having 2 separate incidents.

Submissions were made by the Member’s Counsel.

The Member’s Counsel submitted that the Joint Submission on Order meets the key objectives of penalty, including specific and general deterrence, remediation and rehabilitation, and the goal of public protection. The Member’s Counsel submitted that the Member has the utmost respect for the College and its role, was remorseful and asked the Panel to make an order in accordance with the joint submission.

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 1 month. 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 a minimum of 1 meeting 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 second session is required, the Expert will advise CNO, and both sessions shall be completed within 9 months from the date 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;

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 date(s) 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;

4. 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.

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 and general deterrence are met through the oral reprimand and the 1-month suspension of the Member’s certificate of registration, allowing members of the profession to see that the College takes such conduct very seriously and members are required to comply with the requirements of the QA Program.

Rehabilitation and remediation are met through a minimum of 1 meeting with a Regulatory Expert. Public protection is met when nurses are committed to continuing competence and when they comply with their professional accountabilities for quality assurance.

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, Morgan Krauter, 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.