College of Nurses of Ontario v. Atiyat, 2024 CanLII 139298

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Lalitha Poonasamy, Public Member Chairperson

Tina Colarossi, NP Member

Tomoko Fukushima, RN Member

Dayna Porco, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for

) College of Nurses of Ontario

• and - )

HANI ATIYAT ) PHILIP ABBINK for

Registration No. 14063292 ) Hani Atiyat

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: June 28, 2024

DECISION AND REASONS

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on June 28, 2024 by videoconference.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(b), 2(a) and 4(b) of the Notice of Hearing dated June 25, 2024. The Panel granted this request. The remaining allegations against Hani Atiyat (the “Member”) are as follows:

IT IS ALLEGED THAT:

1. 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 practising as a Registered Nurse at St. Mary’s General Hospital in Kitchener, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet a standard of practice of the profession, and in particular:

a. between about May 6, 2022 and August 3, 2022, you failed to maintain appropriate documentation with respect to medication, including by failing to appropriately document the administration of medication, and/or failing to appropriately documenting the wasting of medication; and/or

b. [Withdrawn];

2. a. [Withdrawn];

3. 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(13) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at St. Mary’s General Hospital in Kitchener, Ontario (the “Facility”), you failed to keep records as required, and in particular:

a. between about May 6, 2022 and August 3, 2022, you failed to maintain appropriate documentation with respect to medication, including by failing to appropriately document the administration of medication, and/or failing to appropriately documenting the wasting of medication;

4. 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 practising as a Registered Nurse at St. Mary’s General Hospital in Kitchener, Ontario (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 as disgraceful, dishonourable or unprofessional, and in particular:

a. between about May 6, 2022 and August 3, 2022, you failed to maintain appropriate documentation with respect to medication, including by failing to appropriately document the administration of medication, and/or failing to appropriately documenting the wasting of medication; and/or

b. [Withdrawn];

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 3(a) and 4(a) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s 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 exhibits mentioned therein, as follows:

THE MEMBER

1. Hani Atiyat (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse on August 27, 2014. The Member resigned his certificate of registration with CNO on August 31, 2023. The Member has also reported a nursing registration in Jordan.

2. The Member was employed by Priority Care Agency (the “Agency”), and through that agency was assigned to work at St. Mary’s General Hospital in Kitchener, Ontario (the “Facility”) from April to August 2022.

PRIOR HISTORY

3. In August 2022, following receipt of two employer reports outlining concerns about the Member’s narcotic safekeeping, medication administration, and documentation, the Inquiries, Complaints and Reports Committee (“ICRC”) directed the Member to attend before the ICRC to be cautioned and to complete remedial activities with respect to the following standards: Professional Standards, Medication, Documentation and Code of Conduct.

4. The Member was required to complete the remedial activities by December 26, 2022, and once the remediation activities were complete the caution would be scheduled. The Member requested an extension to complete the remedial activities due to his health. CNO granted the Member an extension to December 12, 2023.

5. To date, the Member has not completed the remedial activities or attended before the ICRC to be cautioned as directed by the ICRC.

THE FACILITY

6. The Facility is the second-largest acute care hospital in the St. Joseph’s Health System. It has 197 beds and hosts a Regional Cardiac Centre and Regional Chest and Eye Programs.

7. The Member worked primarily in the Cardiac Care Unit at the Facility. He worked shifts as assigned by the Agency, which were a mixture of day and night shifts, on a regular basis.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

8. The Facility uses an Omnicell system to dispense medications. Omnicell machines are located throughout the Facility. Nurses access the machines with a fingerprint or password, and withdraw medication for specific patients.

9. Nurses can only withdraw narcotics from Omnicell when an order is in place for a specific patient for that specific drug.

10. The Facility’s policy on medication administration required that when wasting narcotics, nurses must have a second nurse log in to the Omnicell unit to document witnessing the wasting of the narcotic.

11. The Member successfully completed training on the Facility’s medication and Omnicell policies and procedures.

12. Omnicell generates weekly score reports that identify users who engaged in high narcotic withdrawal activity for the week in question compared to their peers.

13. The Member was identified on several weekly score reports as having engaged in high narcotic withdrawal activity. This prompted the Facility to conduct an audit of his Omnicell activity.

14. The Facility’s audit compared each of the Member’s withdrawals from Omnicell to the amounts documented as administered to the patients in question and the amounts documented as wasted.

15. Between May 6, 2022 and August 3, 2022, the Member failed to account for, by failing to document either wasting or administering, the following total quantities of the following drugs that he withdrew from Omnicell:

• 188.2 milligrams of Hydromorphone 2mg/1mL (a narcotic), equivalent to 94.1 1mL ampoules;

• 600 micrograms of Fentanyl 100mcg/2mL (a narcotic), equivalent to 6 2mL ampoules;

• 3 milligrams of Morphine 2mg/1mL (a narcotic), equivalent to 1.5 1mL ampoules;

• 1 tablet of Atasol 30 (a combination of acetaminophen, caffeine, and codeine (a narcotic); and

• 5 tablets of acetaminophen 325mg.

16. When the Member was asked by the Facility to explain these shortages, he suggested that they were attributable to his poor charting practices, and his difficulty in sometimes finding a second nurse to witness a waste transaction.

17. The unaccounted-for drugs were never recovered by the Facility.

CNO STANDARDS OF PRACTICE

18. CNO has published several practice standard documents describing standards of practice of the profession.

Code of Conduct

19. 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.

20. CNO’s Code of Conduct provides, in relation to the principle requiring nurses to maintain patient’s trust by providing safe and competent care, that:

• Nurses maintain complete, accurate and timely documentation of their practice; and

• Nurses are accountable to, and practice under, relevant laws and CNO’s standards of practice.

21. CNO’s Code of Conduct further 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.

22. 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

23. CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.

24. CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standard of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by:

• ensuring practice is consistent with CNO’s standards of practice and guidelines as well as legislation; and

• taking responsibility for errors when they occur and taking appropriate action to maintain [patient] safety.

25. CNO’s Professional Standards further provides, in relation to the ethics standard, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members. Nurses demonstrates having met this standard by actions such as identifying ethical issues and communicating them to the healthcare team.

26. CNO’s Professional Standards further provides, in relation to the leadership standard, that nurses demonstrate their leadership by providing, facilitating and promoting the best possible care/service to the public. Nurses demonstrate this standard by role-modelling professional values, beliefs and attributes.

27. Attached as Exhibit “B” are copies of CNO’s Professional Standards that were in force at the time of the incidents and have since been retired.

Documentation Standard

28. CNO’s Documentation Standard explains the regulatory and legislative requirements for nursing documentation. It includes three standard statements and indicators pertaining to communication, accountability and security which describe a nurse’s accountabilities when documenting.

29. CNO’s Documentation Standard provides, in relation to communication, that nurses ensure that documentation presents an accurate, clear and comprehensive picture of the patient’s needs, the nurse’s interventions and the patient’s outcomes. Nurses meet the standard by:

• ensuring documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessment, planning, intervention (independent and collaborative) and evaluation; and

• documenting both objective and subjective data.

30. CNO’s Documentation Standard further provides, in relation to accountability, that nurses are accountable for ensuring their documentation of patient care is accurate, timely and complete. Nurses meet the standards by:

• documenting in a timely manner and completing documentation during, or as soon as possible after, the care or event; and

• documenting the date and time that care was provided and when it was recorded.

31. CNO’s Documentation Standard also provides, in relation to security, that nurses safeguard patient health information by maintaining confidentiality and acting in accordance with information retention and destruction policies and procedures that are consistent with the standard(s) and legislation. Nurses meet the standard by ensuring that relevant patient care information is captured in a permanent record.

32. Attached as Exhibit “C” is a copy of CNO’s Documentation Standard that was in force at the time of the incidents.

Medication Standard

33. CNO’s Medication Standard describes nurses’ accountabilities when engaging in medication practices such as administering, dispensing, medication storage, inventory management and disposal. CNO’s Medication standard provides that three principles outline the expectations related to medication practices that promote public protection including authority, competence and safety.

34. CNO’s Medication standard provides, in relation to safety, that nurses promote safe care, and contribute to a culture of safety within their practice environments, when involved in medication practice. It further provides that nurses promote and/or implement the secure and appropriate storage, transportation and disposal of medication.

35. Attached as Exhibit “D” are copies of CNO’s Medication Standard that were in force at the time of the incidents.

36. The Member admits and acknowledges that he contravened CNO’s Code of Conduct, Professional Standards, Documentation Standard and Medication Standard when he failed to maintain appropriate documentation with respect to medication, including by failing to appropriately document the administration of medication, and failing to appropriately document the wasting of medication between May 6, 2022 and August 3, 2022.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

37. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1(a) of the Notice of Hearing, in that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 8 to 36 above.

38. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 3(a) of the Notice of Hearing, in that he failed to keep records as required, as described in paragraphs 8 to 32 and 36 above.

39. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 4(a) of the Notice of Hearing, in that he engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional, as described in paragraphs 8 to 36 above.

OTHER

40. With leave of the Panel of the Discipline Committee, CNO withdraws the remaining allegations in the Notice of Hearing, which are paragraphs 1(b), 2(a), and 4(b) of the Notice of Hearing.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 3(a) and 4(a) in the Notice of Hearing. As to allegation #4(a), the Panel finds the Member engaged in conduct that 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(a) in the Notice of Hearing is supported by paragraphs 8 to 37 of the Agreed Statement of Facts. The Panel finds that the Member committed an act of professional misconduct between about May 6, 2022, and August 3, 2022, when he contravened a standard of practice of the profession by failing to maintain appropriate documentation with respect to medication, including by failing to appropriately document the administration of medication, and/or failing to appropriately document the wasting of medication. The Member admits and the Panel finds that he contravened CNO’s Code of Conduct, Professional Standards, Documentation Standard and Medication Standard.

Allegation #3(a) in the Notice of Hearing is supported by paragraphs 3, 4, 5, 8 to 32, 36 and 38 of the Agreed Statement of Facts. The Panel finds that the Member committed an act of professional misconduct between about May 6, 2022, and August 3, 2022, when he failed to keep records as required. The Member failed to maintain appropriate documentation with respect to medication, including by failing to appropriately document the administration of medication, and/or failing to appropriately document the wasting of medication.

Allegation #4(a) in the Notice of Hearing is supported by paragraphs 3, 4, 5, 8 to 36 and 39 of the Agreed Statement of Facts. The Member failed to maintain appropriate documentation with respect to medication, including by failing to appropriately document the administration of medication, and/or failing to appropriately document the wasting of medication. The Panel finds the Member’s conduct was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through failing to account for either wasting or administering medications between about May 6, 2022, and August 3, 2022. The Member knew or ought to have known that his 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:

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

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

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 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense and within 6 months from the date the Member obtains an active certificate of registration in a practicing class. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date the Member obtains an active certificate of registration in a practicing class. To comply, the Member is required to ensure that:

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

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

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,

2. Medication, and

3. Documentation;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into the Member’s behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;

b) For a period of 18 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

4. 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.

College Submissions on Penalty

The College submitted that the proposed order addresses all the goals of penalty.

The oral reprimand achieves specific deterrence by demonstrating to the Member that the profession will not tolerate this type of conduct. The suspension also provides for specific and general deterrence, as well as protects the public, because the Member is restricted from practicing nursing until remedial steps are completed. The meetings with a regulatory expert are intended to improve the Member's practice and foster insight into his conduct.

The restriction on independent practice also protects the public because there will be oversight and supervision of the Member’s practice. The terms, conditions and limitations imposed on the Member’s certificate of registration, should he return to active practice, foster public confidence in the profession’s ability to regulate itself.

The College submitted that the aggravating factor is that Member has a prior history before the ICRC for similar issues related to documentation. This demonstrates that the conduct at issue in this case is not an isolated departure from the standards of practice but a pattern.

That the Member has accepted responsibility and admitted to the professional misconduct, sparing the College the expense and inconvenience a contested hearing, is a mitigating factor.

College Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range for similar cases from this Discipline Committee.

CNO v. Townend-Kolodziej (Discipline Committee, 2017): This case proceeded by an Agreed Statement of Facts and a Joint Submission on Order. The allegations included removing medication, failing to document and dispose of medications properly. The medications were primarily narcotics and there were numerous incidents over a period of time. The penalty included a 3-month suspension, terms, conditions and limitations on the member’s certificate of registration including 2 meetings with a regulatory expert, and an 18-month employer notification period. College Counsel submitted that the Panel should note that the Townend-Kolodziej case is the most factually similar to this case, and the penalty ordered was almost identical to the penalty proposed by the parties here.

One term that was not ordered in Townend-Kolodziej, but is included in the JSO here, was a restriction on independent practice. College Counsel submitted that penalties evolve to some degree over time, but it was also because the member in Townend-Kolodziej was not responsible for client care and was working in a managerial role where she would withdraw medication for other nurses.

CNO v. Labrosse (Discipline Committee, 2019): The member did not attend the hearing, and was deemed to have denied the allegations. The allegations against the member were similar to those in the case before this Panel but extended over a longer period of time and included that the member had misappropriated opioids. The penalty was more severe, and included an 8-month suspension, 2 meetings with a regulatory expert, 24-month employer notification and 24-month restriction on independent practice. There were no mitigating factors.

CNO v. Robinson (Discipline Committee, 2021). The case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The allegations included failing to meet the standards of practice of the profession by failing to properly document the administration of medications, failing to keep records and falsifying records related to medication administration. The penalty involved an oral reprimand, 4-month suspension, 2 expert meetings, 18 months of employer notification and random spot audits by the employer.

Member’s Submissions on Penalty

The Member’s Counsel agreed with the College’s submissions.

The Member’s Counsel submitted that the mitigating factors were that the Member pleaded to the allegations, which has saved the College the time and expense of proceeding with a contested hearing. The Member’s admissions also establish that he has taken responsibility for his conduct and has demonstrated insight.

The Member’s Counsel made submissions on the cases presented to the Panel by College Counsel. The Townend-Kolodziej case is the most similar as it addressed medication documentation issues and the penalty proposed is similar, except for the restriction on independent practice contained in the JSO before this Panel. The Labrosse case was much more serious and addressed additional allegations. No mitigating factors were present in that case, and it did not deal with only documentation. The Robinson case resulted in a longer suspension of 4 months, but also included failure to document care to clients and failure to document reassessment as well as more severe allegations.

The Member’s Counsel submitted that the penalty proposed in the case before this Panel is within the appropriate range of those ordered in similar cases.

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 penalty 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, which sends a clear message to the Member that this type of conduct will not be tolerated.

The proposed penalty also provides for general deterrence through the oral reprimand and the 3-month suspension of the Member's certificate of registration, which communicates to the profession as a whole that professional misconduct has serious consequences.

The proposed penalty provides for remediation and rehabilitation through the two meetings with a regulatory expert, which will give the Member the opportunity to review the appropriate standards of the profession and gain insight into his misconduct ensuring that it will not be repeated.

The penalty protects the public through the 18-months of employer notification and restriction on the Member’s independent practice should he return to practice.

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.

The penalty is in line with the range of what has been ordered in previous similar cases.

I, Lalitha Poonasamy, Public Member sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.