College of Nurses of Ontario v. Moguche, 2024 CanLII 139300

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Susan Roger, RN Chairperson Lynda Carpenter Public Member Sylvia Douglas Public Member Ramona Dunn, RN Member Mary MacNeil, RN Member

BETWEEN:

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

• and - )

IRENE MOGUCHE ) NO REPRESENTATION for Registration No. AA801614 ) Irene Moguche

) PATRICIA HARPER ) Independent Legal Counsel

) Heard: May 13, 2024 via videoconference

DECISION AND REASONS

Publication Ban

By Order of the Discipline Panel dated May 13, 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 names of the patients or their family members, or any information that could disclose the identities of the patients or their family members, referred to orally or in any documents presented at the Discipline hearing of Irene Moguche.

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on May 13, 2024.

The Allegations

The allegations against Irene Moguche (the “Member”) as stated in the Notice of Hearing dated April 1, 2024 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 working as a Registered Practical Nurse at Paramed Home Health Care, in London, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and specifically, on or about April 2022, you accepted and deposited a money order for $16,000 from [Patient A], and/or accepted and deposited a cheque for $1000 from [Patient A].

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 working 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 as disgraceful, dishonourable or unprofessional, and specifically, in or about April 2022, you accepted and deposited a money order for $16,000 from [Patient A], and/or accepted and deposited a cheque for $1000 from [Patient A].

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 advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited and without the exhibits referenced therein, as follows:

THE MEMBER

1. Irene Moguche (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse on August 10, 2011. The Member was administratively suspended on February 15, 2024 and she returned to current status on the same date.

2. The Member was employed by Paramed Home Health Care, in London, Ontario (the “Facility”) from November 3, 2021 until her termination on May 9, 2022. The Facility provides home health care services to patients, including personal care and nursing services.

PATIENT A

3. At the time of the incidents described below, [ ] (“Patient A”) was 86-years-old and had been experiencing cognitive decline and symptoms of dementia.

4. In December 2021, Patient A’s wife passed away, following which Patient A had experienced isolation, depression and poor mental health.

5. Patient A underwent a partial hip replacement surgery in February 2022. After his release from hospital in March 2022, Patient A was prescribed injections of daily blood thinner medication for 35 days.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

6. From March 12, 2022 to April 15, 2022, Patient A hired the Facility to provide nurses to administer his daily blood thinner injection. The Facility nurses typically spent 5 to 10 minutes per day at Patient A’s home to provide his injection.

7. The Member was one of multiple nurses employed by the Facility who administered injections to Patient A between March 12, 2022 and April 15, 2022. During this time, the Member was the Facility-employed nurse who attended to Patient A’s home the most frequently.

8. Patient A did not have any prior relationship with the Member.

9. Starting on April 7, 2022, Patient A began telling his daughters that Member was sharing details about her personal life with him including that she needed money to send her daughter to university, and that she was working long hours to support her family.

10. On or about April 19, 2022, after Patient A was no longer receiving homecare from the Facility, he wrote a cheque to the Member in the amount of $1,000. On the same day, Patient A took out a bank draft in the amount of $16,000 with the Member listed as the payee.

11. On or about April 20, 2022, the Member deposited both the $1,000 cheque and the $16,000 bank draft from Patient A (totalling $17,000) into her personal bank account.

12. On or about April 24, 2022, Patient A’s daughters discovered the receipt for the $16,000 bank draft written by Patient A (with the Member listed as the payee). On April 25, 2022, one of Patient A’s daughters wrote to the Member and demanded that she return the $16,000 bank from Patient A draft no later than April 26, 2022.

13. On April 26, 2022 the Member wrote a cheque in the amount of $16,000 to Patient A, which was deposited back into Patient A’s account on April 26, 2022.

14. On or about April 27, 2022, Patient A’s daughters filed a report with the London Police Services raising concerns about the Member’s conduct. In the course of the investigation, the London Police Services determined that the Member had also received and deposited the cheque for $1,000. The Member advised police that the cheque for $1,000 was a gift for her birthday from Patient A.

15. On or about April 27 or April 28, 2022, Patient A’s daughters discovered that Patient A had written the Member the cheque in the amount of $1,000 on April 19, 2022.

16. On April 28, 2022, the Member wrote a cheque in the amount of $1,000 to Patient A. This cheque was deposited back into Patient A’s account on June 8, 2022.

17. Following an investigation, the London Police Services concluded that Patient A had voluntarily gifted $17,000 to the Member, which was subsequently returned in full. The London Police Services found there was no fraud component to the Member’s conduct and no charges were laid.

18. If the Member were to testify, she would state that in the last week of providing treatment to Patient A, Patient A had asked the Member for her home address with the stated intent of inviting the Member to a memorial for Patient A’s late wife. The Member would testify that she provided Patient A with her home address for this purpose.

19. If the Member were to testify, she would state that on April 19, 2022, she arrived home and found an envelope by the side of her door which contained an invitation to the memorial, a $16,000 bank draft and a cheque in the amount of $1,000 from Patient A. The Member would further testify that she immediately called Patient A to ask why the money had been left at her door. The Member would testify that Patient A advised that the cheque and bank draft were thank you gifts for the care the Member had provided. The Member would testify that she told Patient A that she wanted to return his money however Patient A told her that he would not accept it, and “it would break his heart” if she returned it.

20. If the Member were to testify, she would state that she never solicited or requested money from Patient A.

21. The Member admits that she deposited the bank draft and cheque from Patient A, totalling $17,000 into her personal bank account. The Member admits and acknowledges that she should not have accepted this money from Patient A.

CNO STANDARDS

Code of Conduct

22. 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.

23. CNO’s Code of Conduct provides, in relation to the principle requiring nurses to act with integrity to maintain patients’ trust, that:

• Nurses do not accept gifts from patients, unless it harms the professional relationship with patients; and

• Nurses maintain professional boundaries with patients.

24. CNO’s Code of Conduct defines boundaries as:

The points when a relationship changes from professional and therapeutic to unprofessional and personal. Therapeutic nurse-patient relationships put patients’ needs first. Crossing a boundary means a nurse is misusing their power and trust in the relationship to meet personal needs, or behaving in an unprofessional manner with the patient. Crossing a boundary can be intentional or unintentional

25. 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.

26. 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

27. 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.

28. CNO’s Professional Standards provides, in relation to the accountability standard statement, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standards 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 their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.

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

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

31. In addition, CNO’s Professional Standards provides, in relation to the relationship standard statement and the therapeutic nurse-patient relationship, that the patient’s needs are the focus of the relationship, which is based on trust, respect intimacy and the appropriate use of power. CNO’s Professional Standards also provides that nurses demonstrate empathy and caring in all relationships with patients, families and significant others and it is the responsibility of the nurse to establish and maintain the therapeutic relationship. Nurses demonstrates this standard by:

• maintaining boundaries between professional therapeutic relationships and non-professional personal relationships;

• ensuring [patient’s] needs remain the focus of nurse-[patient] relationships; and

• ensuring that her/his personal needs are met outside of therapeutic nurse-[patient] relationships.

32. 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.

Therapeutic Nurse-Client Relationship

33. CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) contains four standard statements, with accompanying indicators, which describe nurses’ accountabilities with respect to therapeutic communication, patient-centred care, maintaining boundaries and protecting the patient from abuse. The TNCR Standard provides that the nurse-patient relationship is built on trust, respect, empathy, professional intimacy and requires the appropriate use of power inherent in the care provider’s role.

34. CNO’s TNCR Standard provides, in relation to the therapeutic communication standard statement, that nurses use a wide range of effective communication strategies and interpersonal skills to appropriately establish, maintain, re-establish and terminate the nurse-patient relationship. Nurses meet the standard by refraining from self-disclosure unless it meets a specific, identified therapeutic patient need, rather than the nurse’s need.

35. CNO’s TNCR Standard provides, in relation to the patient-centred care standard statement, that nurses work with the patient to ensure that all professional behaviours and actions meet the therapeutic needs of the patient. Nurses meet the standard by recognizing that the patient’s well-being is affected by the nurse’s ability to effectively establish and maintain a therapeutic relationship.

36. CNO’s TNCR Standard defines a boundary as:

A boundary in the nurse-[patient] relationship is the point at which the relationship changes from professional and therapeutic to unprofessional and personal. Crossing a boundary means that the care provider is misusing the power in the relationship to meet her/his personal needs, rather than the needs of the [patient], or behaving in an unprofessional manner with the [patient]. The misuse of power does not have to be intentional to be considered a boundary crossing.

37. CNO’s TNCR Standard provides, in relation to the maintaining boundaries standard statement, that nurses are responsible for effectively establishing and maintaining the limits or boundaries in the therapeutic nurse-patient relationship. Nurses meet the standard by:

• setting and maintaining the appropriate boundaries within the relationship, and helping [patients] understand when their requests are beyond the limits of the therapeutic relationship;

• recognizing that there may be an increased need for vigilance in maintaining professionalism and boundaries in certain practice settings (for example, when care is provided in a [patient’s] home, a nurse may become involved in the family’s private life and needs to recognize when her/his behaviour is crossing the boundaries of the nurse-patient relationship);

• abstaining from disclosing personal information, unless it meets an articulated therapeutic need of the [patient] (for example, disclosing a personal problem may make the [patient] feel as if his/her problems/feelings are being diminished or that the [patient] needs to help the nurse);

• continually clarifying her/his role in the therapeutic relationship, especially in situations in which the [patient] may become unclear about the boundaries and limits of the relationship (for example, when an identified part of a nurse’s role includes accompanying a [patient] to a funeral to provide care);

• abstaining from engaging in financial transactions unrelated to the provision of care and services with the [patient] or the [patient’s] family/significant other;

• consulting with colleagues and/or the manager in any situation in which it is unclear whether a behaviour may cross a boundary of the therapeutic relationship, especially circumstances that include self-disclosure or giving a gift to or accepting a gift from a [patient];

• ensuring that the nurse-[patient] relationship and nursing strategies are developed for the purpose of promoting the health and well-being of the [patient] and not to meet the needs of the nurse, especially when considering self-disclosure, giving a gift to or accepting a gift from a [patient];

• documenting [patient]-specific information in the [patient’s] record regarding instances in which it was necessary to consult with a colleague/manager about an uncertain situation (non-[patient] related information, such as a letter of summary or incident report, should be documented on the appropriate confidential form).

38. In addition, CNO’s TNCR Standard provides in relation to giving and accepting gifts that nurses meet the standard by:

• abstaining from accepting individual gifts unless, in rare instances, the refusal will harm the nurse-[patient] relationship. If the refusal could be harmful, consult with a manager and document the consultation before accepting the gift; and

• accepting a team gift or an individual gift if the refusal of which has been determined to be harmful to the therapeutic relationship, only after considering:

o that the gift was not solicited by the nurse,

o that the [patient] is mentally competent,

o the [patient’s] intent and expectation in offering the gift (that is, will the [patient] expect anything in return, or will the nurse feel a special obligation to that [patient] over others?),

o the appropriateness of the timing (for example, on discharge versus Valentine’s Day),

o the potential for negative feelings on the part of other [patients] who may not be able to, or choose not to, give gifts, and

o the monetary value and appropriateness of the gift.

39. Attached as Exhibit “C” is a copy of CNO’s TNCR Standard which was in force at the time of the incidents.

40. The Member admits and acknowledges that she contravened CNO’s Code of Conduct, Professional Standards and TNCR Standard in April 2022 when she:

• accepted and deposited a money order for $16,000 from Patient A; and

• accepted and deposited a cheque for $1000 from Patient A.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

41. 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 6 to 40 above.

42. 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 disgraceful, dishonourable and unprofessional, as described in paragraphs 6 to 40 above.

College’s Submissions on Liability

College Counsel asked the Panel to accept the Agreed Statement of Facts as well as the Member’s admissions to the allegations set out in the Notice of Hearing. College Counsel submitted that the Panel had taken the Member’s plea, conducted a verbal plea inquiry, and received a written plea inquiry which confirmed that the plea was voluntary and informed. College Counsel submitted that the Member’s plea, in addition to the facts and admissions set out in the Agreed Statement of Facts, provided the Panel with adequate evidence to determine that the Member had committed professional misconduct as alleged in the Notice of Hearing.

Regarding allegation #1, the Agreed Statement of Facts includes as exhibits the relevant College standards (the Code of Conduct, the Professional Standards and the TNCR). The Member admitted that she failed to meet the standards of practice in April 2022 when she accepted and deposited a money order from Patient A for $16,000 and a cheque for $1000.

Regarding allegation #2, College Counsel submitted that the Member's conduct was relevant to the practice of nursing. The Member had no prior relationship with Patient A, and the relationship was based on nursing care being provided in the Patient’s home for prescribed therapeutic reasons. The Member was employed as a nurse by an organization that had been retained to provide home care services to Patient A. The evidence before the Panel is that the Member provided nursing care to Patient A and in fact, of all the nurses at the facility, provided the most care to Patient A. In College Counsel’s submission, the Member’s conduct in accepting monetary gifts from Patient A strikes at the heart of the nurse-client relationship.

College Counsel submitted that unprofessional conduct is generally viewed as less severe. Conduct that is dishonourable and disgraceful usually connotes dishonesty or some other moral failing in a member’s conduct. Disgraceful is reserved for the most serious misconduct. The Member admitted that her conduct was relevant to the practice of nursing and that her conduct was disgraceful, dishonorable and unprofessional.

In this case, the Member’s conduct merits the most serious characterization because she accepted a significant sum of money from an 86-year-old widower experiencing isolation, depression and suffering from dementia. The Member’s conduct involved an element of moral failing as she knew or ought to have known that accepting the money was wrong. By accepting the money, the Member showed a fundamental abuse of the nurse-client relationship. College Counsel submitted that inherent in the nurse-client relationship is a certain degree of power imbalance. Patient A was exceptionally vulnerable, and an inordinate power imbalance existed in the relationship. The amount of money the Member accepted, a total of $17,000, is also an issue. College Counsel submitted that the Member is a professional, entrusted to care for extremely vulnerable individuals. Her conduct would shock the public and calls into question her integrity and brings disrepute to the profession. College Counsel submitted that the Member’s conduct was not only unprofessional and dishonorable but also disgraceful and urged the Panel to make findings accordingly.

Member’s Submissions on Liability

The Member submitted that in her ten years of practice, she never crossed the boundaries of a therapeutic relationship with her patients but rather tried to uphold her professional obligations and be a good nurse. The Member submitted that she did not share personal information to elicit financial help from Patient A. Rather, the Member submitted that Patient A asked questions about her family, as many patients do, and she answered Patient A truthfully.

The Member also submitted that when Patient A asked for her home address it was to be used to invite her to the memorial, and that she never asked to attend. The Member submitted that when she received the cheque from Patient A, she called Patient A and told him it was too much. The Member stated that she realized she should not have accepted the money and has regretted accepting it. While the Member is glad to have cared for Patient A, she submitted that it was painful to have her conduct with Patient A characterized as dishonorable. The Member stated that Patient A asked the Member to dinner multiple times but that she told him she could not accept his invitation as it was not professional. The Member stated that she never solicited for the money. The Member apologized for her conduct stating she has learned from it.

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. The Panel found the Member’s conduct to be disgraceful, dishonorable 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 6 - 41 in the Agreed Statement of Facts. Patient A was an 86-year-old patient experiencing cognitive decline and dementia. Following hip surgery in February 2022 and once released home, the Member was one of several nurses providing daily medication injections to Patient A. While caring for Patient A, the Member shared personal financial information resulting in two financial gifts from Patient A. In April 2022, the Member deposited a bank draft ($16,000) as well as a cheque ($1,000) into her bank account within 24 hours of receiving the gift. Patient A’s daughter discovered the transaction and reported the incident to the London Police Service. An investigation was conducted; criminal charges were not laid. Following the investigation, the Member returned the money in full to Patient A.

The Panel heard from the Member that she shared personal financial information with Patient A as part of normal casual conversation and there was no intent to solicit money. The TNCR Standard addresses intent, saying “the misuse of power [in the nurse-patient relationship] does not have to be intentional to be considered a boundary crossing”. The TNCR Standard also directs nurses to abstain from sharing personal information unless there is a therapeutic benefit to the patient. By accepting money from Patient A, the Member crossed a boundary and violated his trust and that of his family to act with integrity and honesty. The Member should have acknowledged and understood that Patient A was vulnerable due to cognitive decline and dementia. The Member should have realised the Patient’s illness added to the inherent power imbalance, and it was her duty, not Patient A’s, to ensure an appropriate professional boundary was maintained. Once received, the money should have been immediately returned to Patient A with full disclosure to his family and the Member’s manager at the facility. The Member’s conduct breached the TNCR Standard, the Professional Standards and the Code of Conduct in that she failed to act with integrity, honesty and act responsibly in her professional role.

Allegation #2 in the Notice of Hearing is supported by paragraphs 6-40 and 42 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was relevant to her practice as she was the nurse caring for Patient A and had a therapeutic relationship with him. The Panel also finds that the Member’s conduct would reasonably be regarded by members of the profession to be unprofessional as it demonstrated a serious and persistent disregard for her professional obligation. The Panel also finds that the Member’s conduct was dishonourable. Depositing the money without either returning it immediately and/or discussing it with her manager, demonstrated an element of dishonesty, deceit and moral failing. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional. Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. Taking money from a vulnerable patient casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member 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 5 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

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

a) Within 12 months from the date that this Order becomes final, or a longer timeframe if approved by CNO, the Member shall successfully complete at the Member’s own expense the PROBE: Ethics & Boundaries Program offered through Center for Personalized Education for Professionals (the “PROBE Program”). To successfully complete the PROBE Program, the Member must:

i. Receive a grade of “unconditional pass”; and

ii. Provide proof of the Member’s grade to CNO;

b) 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

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

1. Code of Conduct, and

2. Therapeutic Nurse-Client Relationship;

iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at the Member’s own expense, including the self-directed Nurses’ Workbook;

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 and Nurses’ Workbook;

vi. 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;

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:

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;

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;

c) 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.

d) 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’s Submissions on Penalty

College Counsel submitted that the proposed penalty meets the goals of public protection and enhances public confidence in the College’s ability to regulate its members. The oral reprimand and 5-month suspension on the Member’s certificate of registration serve the goals of specific and general deterrence. The oral reprimand will help the Member understand how her actions are perceived by the public and members of the profession. This should ensure that similar conduct will not be repeated in the future and thereby further protects the public. The 5-month suspension sends a strong message to members of the profession that this type of misconduct is unacceptable and will be met with serious consequences. The proposed penalty also provides the Member with an opportunity for rehabilitation and remediation through participation and successful completion of the PROBE course. Meetings with a Regulatory Expert and a review of the College’s standards will prepare the Member to return to ethical practice once she has served her suspension. Restriction on the Member’s independent practice coupled with an 18-month employer notification is designed to provide some oversight of the Member’s practice and to alert the Member’s nursing employer about her previous misconduct. The 18-month employer oversight will provide additional public protection. College Counsel submitted that the penalty also considers the aggravating and mitigating factors in the case.

The aggravating factors in this case are:

• The Member’s conduct was a fundamental breach of the therapeutic nurse client relationship;

• The patient was exceptionally vulnerable both emotionally and psychologically. He was an 86-year-old widower suffering from isolation, depression and dementia;

• The money taken from Patient A was a high quantum totalling $17, 000;

• The Member deposited all the money at issue into her bank account. The Panel can conclude that the Member would likely have kept the money if her misconduct had not been uncovered;

• The Member knew or ought to have known her conduct was wrong; and

• The Member’s conduct led to personal financial benefit.

The mitigating factors are:

• The Member returned the money to Patient A and therefore did not financially benefit because of her misconduct, albeit this occurred only after a police investigation and the family demanding repayment;

• The Member took responsibility for her actions by admitting her misconduct, demonstrating remorse and by entering into an Agreed Statement of Facts and a Joint submission on Order with the College. This saved the College time and associated expenses that would have been incurred with a contested hearing.

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

CNO v Clouse (Discipline Committee, 2002): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member in Clouse faced similar allegations in that the member accepted $4,400 from the wife of an elderly client. The client had comorbidities requiring nursing care and both he and his wife were elderly. The penalty included an oral reprimand, a 1-month suspension of the member’s certificate of registration, and a meeting with a College Practice Consultant to review the relevant standard. The suspension in the case was considerably lower compared to the suspension proposed in the case before this Panel but the amount of money at issue in the Clouse case was also less ($4,400 vs. $17,000). The additional penalty components sought in the case before this Panel provides an extra layer of protection and is appropriate considering the severity of the misconduct.

CNO v MacLeod (Discipline Committee, 2013): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member faced several allegations related to inappropriate sharing of personal health information, failing to appropriately maintain a narcotic system and accepting $700 from a client, a lesser amount than at issue in the case before this Panel. The penalty included an oral reprimand, a 4-month suspension of the member’s certificate of registration, 2 meetings with a Nursing Expert, 12 months of employer notification and restrictions on independent practice. The penalty is similar to what is being proposed to the Panel in this case, with the addition of the PROBE course, a longer suspension and a longer time limiting independent practice. The more serious penalty is appropriate in the case before this Panel because of the significant quantum of money taken from a vulnerable patient. There were differences in the allegations that contributed to the penalty imposed in MacLeod.

CNO v Halawani (Discipline Committee, 2009): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. There were five allegations against the member with six underlying acts of misconduct. Some of the allegations were withdrawn and the panel did not make findings on others. The panel in Halawani found that the member stole money and cashed cheques from patients and also provided a patient’s credit card to a friend who used it to make purchases. The patients involved were vulnerable, suffering from Alzheimer’s or mild dementia. The total amount taken from the patients was $10,223.83. The member was arrested and charged criminally, which was an aggravating factor. The penalty in Halawani included an oral reprimand, a 6-month suspension of the member’s certificate of registration, a meeting with the Director of Investigations, 2 meetings with a Regulatory Expert, restrictions on independent practice, an order to refrain from practicing in a nursing home or setting with people over 60 years of age for 8 months from when the order is made and a 24-month employer notification.

In the case before this Panel, there was a police investigation, but charges were not laid as the police concluded that there was no fraud. The penalty proposed in the case before this Panel has the additional requirement that the Member pass the PROBE course at her expense, an additional remedial term not included in the other cases put before the Panel. The suspension is also shorter than in the Halawani case as the Halawani case involved criminal charges, an aggravating factor absent from this case.

College Counsel submitted that the cases above are not binding on the Panel but demonstrate that the proposed penalty falls within the range of orders made by the Discipline Committee for similar misconduct. Given the nature of the misconduct in this case, a penalty at the higher end of the range is appropriate in the circumstances.

Member’s Submissions on Penalty

The Member provided no additional submissions.

Penalty Decision

The Panel accepted the Joint Submission on Order and makes an order accordingly.

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 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 general deterrence through the 5-month suspension of the Member’s certificate of registration, which is a lengthy suspension and conveys to members of the profession that conduct of this nature will have serious consequences.

The proposed penalty provides for specific deterrence through the oral reprimand and the 5-month suspension of the Member’s certificate of registration.

The proposed penalty provides for remediation and rehabilitation through the requirement that the Member successfully complete the PROBE course, and a minimum of 2 meetings with a Regulatory Expert allowing the Member to gain insight into her conduct and learn from her mistakes. The 18-month employer notification period will ensure that the public is protected.

Overall, the public is protected because the Member will be provided the opportunity to learn from the terms ordered, members of the profession will be deterred from similar conduct and there will be employer oversight, including limits on independent practice on the Member’s 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, which is a mitigating factor.

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

I, Susan Roger, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.