College of Nurses of Ontario v. Benito, 2024 CanLII 139303

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Sherry Szucsko-Bedard, RN Chairperson Lynn Hall, RN Member Morgan Krauter, NP Member Sandra Larmour Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO Douglas Montgomery for College of Nurses of Ontario

• and -

MARINA BENITO Registration No. 06102335 No Representation for Marina Benito

Kimberley Ishmael, Independent Legal Counsel

Heard: August 7, 2024, via videoconference

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 August 7, 2024.

The Member's Non-Attendance at the Hearing

As Marina Benito (the "Member") was not present at the start time of the hearing, the hearing recessed for fifteen minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was still not in attendance.

College Counsel provided the Panel with evidence, by way of an affidavit from Madison Archer, Prosecutions Clerk affirmed July 25, 2024, confirming that they sent correspondence, which included the Notice of Hearing, on July 3, 2024, to the Member's last known home and email addresses which the Member had provided to the College.

Pursuant to College By-law 44.2, members of the College are required to complete annually and return to the College, a form containing information including the member's home address, primary telephone number and primary email address checked personally by the member on a regular basis.

The Panel was satisfied that the Member had received adequate notice of the time, place and purpose of the hearing and of the fact that if she did not attend, the hearing may proceed in her absence. The Member did not attend the videoconference hearing and did not request an in-person hearing. Accordingly, the Panel decided to proceed with the hearing in the Member's absence under the authority of sections 6(5)(d) and 7(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the "SPPA"). The Panel notes that the videoconference line remained open until the end of the hearing and the Member did not join the hearing before its conclusion.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated June 26, 2024, 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 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 and/or failed to complete all Quality Assurance assessment requirements in or around 2022 and/or 2023.

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 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 and/or failed to complete all Quality Assurance assessment requirements in or around 2022 and/or 2023.

Member's Plea

Given that the Member was not present and was not represented, she was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member is a Registered Nurse ("RN") who was randomly selected to participate in the 2022 Quality Assurance Assessment ("QA Assessment") process as part of the College's Quality Assurance Program. In September 2022, the Member was notified of the random selection and provided with the particulars of the QA Assessment. At the time of this hearing, the Member had not completed any components of the QA Assessment despite subsequent reminders and notifications from the College.

The issues are as follows:

(a) Did the Member commit professional misconduct by failing to cooperate with the Quality Assurance Committee, by failing to participate after being selected by the Quality Assurance Committee and/or failing to complete all QA Assessment requirements?

(b) Did the Member commit professional misconduct by engaging in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in failing to participate in the QA Assessment requirements?

The Panel heard testimony from two witnesses and received 19 exhibits. The Panel found that the Member committed professional misconduct by failing to participate in a QA Assessment after being selected by the Quality Assurance Committee in 2022 and by engaging in conduct that would be regarded by members of the profession to be dishonourable and unprofessional.

The Evidence

The Panel received 19 exhibits from the College and heard testimony from the following two witnesses.

Witness #1: Amanda Laird ("Ms. Laird")

Ms. Laird is a team leader for the Practice Quality Team and is the practice support to the Quality Assurance Program at the College. She is a Registered Nurse who has been on the Practice Quality Team in the role of team leader for three and a half years. Ms. Laird testified that the objective of the Quality Assurance Program is to ensure continuation of learning by members of the College. Ms. Laird testified that all College members, on an annual basis, are to do a self-assessment and reflection to identify areas of improvement and to develop a learning plan to enhance their knowledge. She went on to explain that every year members are randomly selected to submit their learning plan to the Quality Assurance Program. The random selection takes place twice a year, with 40% as truly random and 60% as risk based. She also explained the process once a member is randomly selected, including the number of attempts that will be made to contact that member.

Ms. Laird identified a letter sent to the Member on September 12, 2022 (Exhibit #3) from the College. The letter was sent by email (Exhibit #8) and advised the Member that she had been selected to participate in the 2022 QA Assessment process. It outlined the resources available, contacts for support if needed and what was required to be completed by the deadline of Monday, October 24, 2022.

Ms. Laird identified an email from the College dated October 12, 2022 (Exhibit #9) reminding the Member that the deadline date to complete her submission was October 24, 2022.

Ms. Laird identified an email from the College dated November 2, 2022 (Exhibit #10) stating the Member had been selected to participate in the QA Assessment and that the submissions were now overdue. The email stated that there was an attempt to contact the Member by phone but that they were unable to leave a message. The email provided a one-time extension until November 22, 2022, to complete the QA Assessment activities.

Ms. Laird identified an email from the College dated November 25, 2022 (Exhibit #11) after the courtesy extension, stating that the Member's submissions were now past due. Attachments were included on guides to completing the QA Assessment.

Ms. Laird identified a letter sent to the Member on December 12, 2022 (Exhibit #6) from the College as a follow-up to the previous letter. The follow-up letter documented that the Member did not meet the initial deadline of October 24, 2022, and provided a four-week courtesy extension, and a second opportunity for the Member to submit her outstanding QA Assessment activities, which included a Learning Plan and Code of Conduct Practice Activity, by January 23, 2023.

Ms. Laird identified an email from the College dated January 12, 2023 (Exhibit #12) following a voicemail message from the College, providing information on accessing SharePoint to upload the QA Assessment activities. Information was included, if the Member was having difficulty completing the work through SharePoint and required help from the College.

Ms. Laird identified an email from the College dated January 20, 2023 (Exhibit #13) reminding the Member of an upcoming deadline to submit the QA Assessment activities.

Ms. Laird identified a letter sent to the Member on February 17, 2023 (Exhibit #7) from the College, advising the Member that she did not meet the initial opportunity to submit her QA Assessment activities by October 24, 2023 and the four-week extension and second opportunity to submit her QA Assessment activities by January 23, 2023. The letter indicated that the Quality Assurance Committee had met on February 15, 2023, to review the Member's lack of cooperation. The Quality Assurance Committee provided the Member with a third and final opportunity to submit her QA Assessment activities by March 22, 2023. The College also informed the Member in this letter that if she did not complete the QA Assessment activities by the deadline, the Committee would refer the Member's name to the Inquiries, Complaints and Reports Committee ("ICRC") for lack of co-operation with the Quality Assurance Committee. The letter also stated that the Member still had the opportunity to make a written submission to the Quality Assurance Committee's decision within 14 days from the date of the letter. Contact information was available in the letter in the event the Member wanted to contact the College with any questions.

Ms. Laird was asked by College Counsel if the Member ever completed the 2022 Quality Assurance Program to which she responded that the Member had not. The Member was automatically referred to the ICRC.

Ms. Laird identified a call log that listed dates, times and information regarding voice mail messages or attempts to leave a voice mail message with the Member (Exhibit #14). The call log captured attempts made to call the Member's phone number between October 27, 2022, and March 16, 2023. Ms. Laird testified that the phone numbers, addresses, including email addresses, used to contact the Member were from the information provided by the Member as part of her annual renewal of registration.

Ms. Laird was asked if the Member returned any phone calls to which she responded that the Member did not respond to the voice messages left.

Witness #2: Julie Rumantir ("Ms. Rumantir")

Ms. Rumantir is a Registered Nurse and has been an investigator with the College for two and a half to three years.

Ms. Rumantir identified a letter dated April 25, 2023 (Exhibit #15) from the College notifying the Member that an investigation into her practice had been approved by the ICRC. The letter provided information on preparing a response and a due date to receive a response of May 25, 2023. The letter was sent electronically and by courier. The address it was sent to was obtained from the Member's annual renewal of registration form for 2023 dated December 27, 2022 (Exhibit #16). The package had a tracking number and was tracked (Exhibit #17).

Ms. Rumantir identified a memorandum dated June 9, 2023 that showed results of a Skip Trace that failed to identify a current address for the Member (Exhibit #18). Inquiries were made with utilities, local cable providers, Canada411, and against the Member's valid Ontario driver's licence.

Ms. Rumantir identified the Member's completed 2024 Renewal form with a confirmed completion date of December 31, 2023 (Exhibit #19).

Final Submissions

College Counsel submitted that Ms. Laird and Ms. Rumantir's testimonies and the documentary evidence clearly demonstrated the Member's lack of regard for participating in the Quality Assurance Program, which is a professional obligation. College Counsel submitted that the Member's repeated failure to comply with the Quality Assurance Committee contravenes section 82(1)(e) of the Code and constitutes professional misconduct as defined in subsection 51(1)(b.0.1). College Counsel submitted that completing the Quality Assurance Program is a mandatory requirement and that the persistent failure of the Member to do so, despite repeated opportunities, shows a disregard for her professional obligations. The Member failed to complete the 2022 QA Assessment activities and did not reach out for support that was offered by the College to assist with these activities. The Member's lack of response fell below the professional standards and this marked departure makes the conduct unprofessional. The Member knew or ought to have known that her conduct fell below the standards of the profession, as the standard was explicitly communicated through statute and through the attempts to secure the Member's participation in the Quality Assurance Program. This makes the conduct dishonourable as well.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1 and #2 of the Notice of Hearing. With respect to allegation #2, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

The Panel found the witnesses to be credible. Ms. Laird has been with the College for three and a half years providing support to the Quality Assurance Program. Ms. Laird's testimony was clear and concise. She provided written documents to confirm her testimony about letters and emails sent to the Member regarding the Member's random selection to participate in the QA Assessment. Ms. Laird had no interest in the outcome of the decision.

Ms. Rumantir has been with the College for 2.5-3 years as an investigator. Ms. Rumantir's testimony was clear and concise. She provided written documents to confirm the times that the College tried to communicate with the Member. Ms. Rumantir had no interest in the outcome of the decision.

The documentary evidence, as well as the evidence of the witnesses, demonstrates that the Member was randomly selected for participation in the 2022 Quality Assurance Program and despite multiple opportunities, she chose not to participate.

The Member's repeated failure to comply with the Quality Assurance Committee contravenes section 82(1)(e) of the Code and constitutes professional misconduct as defined in subsection 51(1)(b.0.1) of the Code.

Completing the Quality Assurance Program is a mandatory requirement and part of every member's professional obligation. The Member's lack of response to a statutory committee of the College shows a total disregard for her professional obligations and as a result, her behavior is both unprofessional and dishonourable. It demonstrates a serious and persistent disregard for her professional obligations, as she knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional.

Penalty

Penalty Submissions

College Counsel submitted that, in view of the Panel's findings of professional misconduct, it should make an Order as follows:

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

2. Directing the Executive Director to suspend the Member's certificate of registration for four 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) The Member will attend two meetings with a Regulatory Expert (the "Expert"), at her own expense and within six 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 the Director of Professional Conduct (the "Director") in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel's Order
2. the Notice of Hearing, and
3. 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, decision tools and online participation forms (where applicable):

1. Code of Conduct

iv. 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;

v. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her reports to the Director, 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 her behavior;

vi. if the Member does not comply with any 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 her certificate of registration;

b) The Member shall successfully complete Quality Assurance Program requirements by the dates and deadlines that will be communicated by the Quality Assurance Committee.

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 Counsel submitted that the aggravating factors in this case were:

• The Member had multiple communications from the College asking her to complete the 2022 Quality Assurance Program, which she ignored;
• The Member did not complete the 2022 Quality Assurance Program;
• The Member ignored an order from a statutory committee of the College displaying a lack of governability; and
• The Member did not participate in the discipline process.

Due to the Member not attending the hearing or being represented the only mitigating factor that was identified was:

• The Member had no previous findings before the Discipline Committee.

The proposed penalty provides for specific and general deterrence through:

• The four-month suspension of the Member's certificate of registration; and
• The oral reprimand.

The proposed penalty provides for remediation and rehabilitation through:

• The terms, conditions and limitations placed on the Member's certificate of registration, including two meetings with a Regulatory Expert which will allow the Member to reflect on the professional standards and their requirements. Completing her Quality Assurance Program will also be part of the remediation and rehabilitation of the Member.

Overall, the public is protected because the proposed penalty sends a strong signal to the public and other members that there are serious consequences for failing to complete the Quality Assurance obligations.

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. Greenshields (Discipline Committee, 2014): The member was not in attendance at the hearing nor was she represented. In this case, the member committed an act of professional misconduct as she failed to cooperate with the Quality Assurance Committee when she did not take part in the Quality Assurance Program after being selected by the Quality Assurance Committee. The penalty included an oral reprimand, a three-month suspension of the member's certificate of registration, one meeting with a Nursing Expert and a requirement to participate in the College's 2015 Quality Assurance program.

CNO v. Carreiro (Discipline Committee, 2020): The member was not in attendance at the hearing nor was she represented. In this case, the member committed an act of professional misconduct as she failed to cooperate with the Quality Assurance Committee when she failed to take part in the Quality Assurance Program after being selected by the Quality Assurance Committee. The penalty included an oral reprimand, a four-month suspension of the member's certificate of registration, two meetings with a Regulatory Expert and a requirement to participate in the next available Quality Assurance program cycle.

Penalty Decision

The Panel accepts the College's Submission on Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member's certificate of registration for four months. This suspension is to 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 two meetings with a Regulatory Expert (the "Expert"), at her own expense and within six 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 the Director of Professional Conduct (the "Director") in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel's Order,
2. the Notice of Hearing, and
3. 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, decision tools and online participation forms (where applicable):

1. Code of Conduct

iv. 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;

v. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, 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 her behavior;

vi. if the Member does not comply with any 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 her certificate of registration;

b) The Member shall successfully complete Quality Assurance Program requirements by the dates and deadlines that will be communicated by the Quality Assurance Committee.

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.

Reasons for Penalty Decision

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 Panel finds that the repeated disregard for the Quality Assurance Program is a serious concern and demonstrates a degree of ungovernability. The Member ignored multiple communications from the College that governs her, which in turn shows a lack of respect for the profession. The Panel considers that the four-month suspension of the Member's certificate of registration is necessary as it provides for specific and general deterrence. It is also in line with penalties ordered in previous, similar cases. The terms, conditions and limitations including the two meetings with a Regulatory Expert allow for remediation and rehabilitation and the requirement that the Member engage in and successfully complete the Quality Assurance Program, will also protect the public.

I, Sherry Szucsko-Bedard, 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.