College of Nurses of Ontario v. Kylie Southwell, 2024 ONCNO 139305

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Mary MacNeil, RN Chairperson Sylvia Douglas Public Member Emilija Stojsavljevic, RPN Member Kimberly Wagg, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ALYSHA SHORE for College of Nurses of Ontario

• and -

KYLIE SOUTHWELL Registration No. BA355347 ADA JEFFREY for Kylie Southwell

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: May 28, 2024, via videoconference

DECISION AND REASONS

Publication Ban

By Order of the Discipline Panel dated May 28, 2024, pursuant to subsection s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, no one shall publish or broadcast the name of the patient, or any information that could disclose their identity, referred to orally or in any documents presented at the Discipline hearing of Kylie Southwell.

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

The Allegations

The allegations against Kylie Southwell (the “Member”) as stated in the Notice of Hearing dated April 9, 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 you were employed as a Registered Practical Nurse at Cambridge Memorial Hospital in Cambridge, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when you:

(a) accessed and/or reviewed the personal health information in Patient [A]’s electronic medical record without consent, authorization or clinical purpose, on or around July 16, 2021; and/or

(b) told at least one colleague between, on or around July 15 to July 24, 2021, that Patient [A], who was a colleague at Cambridge Memorial Hospital, had been admitted to the hospital’s mental health unit and/or was a formed patient;

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Act, and defined in subsection 1(10) of Ontario Regulation 799/93, in that, while you were employed as a Registered Practical Nurse at Cambridge Memorial Hospital in Cambridge, Ontario, you gave information about a client to a person other than the client or his or her authorized representative, without the consent of the client or his or her authorized representative, and without any requirement under the law, when you shared personal health information about Patient [A] with at least one other colleague at the hospital between, on or around July 15 to July 24, 2021;

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(37) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at Cambridge Memorial Hospital in Cambridge, Ontario, you engaged in conduct relevant to the practice of nursing that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, when you:

(a) accessed and/or reviewed the personal health information in Patient [A]’s electronic medical record without consent, authorization or clinical purpose, on or around July 16, 2021; and/or

(b) told at least one colleague between, on or around July 15 to July 24, 2021, that Patient [A], who was a colleague at Cambridge Memorial Hospital, had been admitted to the hospital’s mental health unit and/or was a formed patient.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 1(b), 2, 3(a) and 3(b) 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. Kylie Southwell (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on January 3, 2021.

2. The Member has no prior CNO disciplinary history.

THE FACILITY

3. The Member was employed as a part-time nurse at Cambridge Memorial Hospital located in Cambridge, Ontario (the “Facility”) from March 1, 2021, until her termination on August 13, 2021.

4. The Member worked on a medicine unit.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Facility’s Electronic Medical Record (EMR) Database

5. The Facility uses electronic medical records (“EMRs”) for all patients.

6. The Facility’s system tracks who access EMRs and what parts of an individual EMR are accessed.

Unauthorized Access to Patient A’s Medical Record

7. Patient A is an employee of the Facility. She was admitted to the Facility’s Emergency Department (“ED”) on or around July 16, 2021.

8. After receiving a report that the Member accessed Patient A’s EMR and shared information with other staff on the unit, the Facility conducted an audit of accesses made to Patient A’s EMR.

9. The audit revealed that the Member accessed Patient A’s EMR on July 16, 2021, at 0300 hours for less than one minute. In particular, the Member accessed Patient A’s status board and patient snapshot, which would have included the location of Patient A within the Facility and the reason for admission.

10. According to another staff member on the unit, when the Member accessed Patient A’s EMR, she gasped and said something to the effect of “oh my god, [Patient A] is admitted to mental health” and/or “Patient A was admitted on a form.”

11. If the Member were to testify, she would state that on the night in question, she typed the word “medicine” into the Facility’s system to access the unit status board and accidently clicked on the “mental health” tab. Upon doing so, she saw her colleague, Patient A’s name, and tried to exit but unintentionally clicked on Patient A’s record. The Member was surprised by the information regarding Patient A and reacted vocally. One of her colleagues was present at the time and heard her comment. The Member exited Patient A’s record quickly.

12. There was no clinical reason for the Member to be in Patient A’s EMR.

13. The Member cooperated with CNO throughout its investigation. She admits and acknowledges that she had no clinical reason to access Patient A’s EMR and did not have consent or authorization to do so. As a result, the Member admits that she breached Patient A’s privacy by inappropriately accessing her EMR.

14. The Member admits that she made a comment about Patient A’s admission that was heard by a colleague. If the Member were to testify, she would say that this comment was unintentional in that she did not intend to share the information with other staff members.

15. The Member has taken proactive steps to educate herself since the incident occurred. In particular, she voluntarily engaged in proactive coaching with an ethics coach in July 2022, completed CNO’s Ethics learning module and CNO’s Privacy and Confidentiality webcast, as well as CNO’s QA Everyday program, in addition to self-study of CNO’s relevant standards of practice.

16. The Member is committed to maintaining a reflective and accountable practice that meets the standards of the profession.

CNO STANDARDS

Code of Conduct

17. 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:

a. Nurses respect the dignity of patients and treat them as individuals;

b. Nurses work together to promote patient well-being;

c. Nurses maintain patients’ trust by providing safe and competent care;

d. Nurses work respectfully with colleagues to best meet patients’ needs;

e. Nurses act with integrity to maintain patients’ trust; and

f. Nurses maintain public confidence in the nursing profession.

18. CNO’s Code of Conduct provides, in relation to the principle requiring nurses to maintain patients’ trust by providing safe and competent care, that nurses are accountable to, and practice under, relevant laws and CNO’s standards of practice.

19. CNO’s Code of Conduct provides, in relation to the principle requiring nurses to act with integrity to maintain patients’ trust, that nurses protect the privacy and confidentiality of patients’ personal health information.

20. CNO’s Code of Conduct also provides, in relation to the principle requiring nurses to maintain public confidence in the nursing profession, that nurses are accountable for their own actions and decisions.

21. 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

22. 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.

23. CNO’s Professional Standards further provides, in relation to the ethics standard, that ethical nursing care means promoting the values of patient well-being, respecting patient choice, assuring privacy and confidentiality, respecting the sanctity and quality of life, maintaining commitments, respecting truthfulness and ensuring fairness in the use of resources.

24. In addition, CNO’s Professional Standards provides, in relation to the leadership standard, that leadership requires self-knowledge (understanding one’s beliefs and values and being aware of how one’s behaviour affects others), respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. Nurses demonstrate their leadership by providing, facilitating and promoting the best possible care/service to the public and by role-modelling professional values, beliefs and attributes.

25. 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.

Confidentiality and Privacy: Personal Health Information

26. CNO’s Confidentiality and Privacy - Personal Health Information standard (“Privacy Standard”) largely incorporates the Personal Health Information Protection Act, 2004. The Privacy Standard provides that nurses have ethical and legal responsibilities to maintain the confidentiality and privacy of patient health information obtained while providing care. It requires that personal health information be kept confidential and secure. Nurses comply with the Privacy Standard by:

a. Seeking information about issues of privacy and confidentiality of personal health information;

b. Maintaining confidentiality of [patients’] personal health information with members of the healthcare team, who are also required to maintain confidentiality, including information that is documented or stored electronically;

c. Collecting only information that is needed to provide care;

d. Accessing information for her/his [patients] only and not accessing information for which there is no professional purpose; and

e. Safeguarding the security of computerized, printed or electronically displayed or stored information against theft, loss, unauthorized access or use, disclosure, copying, modification or disposal.

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

28. The Member admits and acknowledges that she contravened CNO’s Code of Conduct, Professional Standards and Privacy Standard when she:

a. Accessed Patient A’s personal health information without consent or other authorization; and

b. Failed to ensure confidentiality of Patient A’s personal health information.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

29. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing and that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as described in paragraphs 9 to 28 above.

30. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing and that she gave information about Patient A to a person other than the patient or her authorized representative and without consent or authorization, or as required by law, as described in paragraphs 9 to 28 above.

31. The Member admits that she 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 dishonourable and unprofessional, as alleged in paragraph 3 in the Notice of Hearing and as described in paragraphs 9 to 28 above.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 2, 3(a) and 3(b) of the Notice of Hearing. As to allegations #3(a) and #3(b), 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 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.

Allegations #1(a) and #1(b) in the Notice of Hearing are supported by paragraphs 9 to 29 in the Agreed Statement of Facts. The Member admitted, and the Panel finds, that while employed as a Registered Practical Nurse (“RPN”) at Cambridge Memorial Hospital (the “Facility”) she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when she accessed Patient A’s electronic medical record (“EMR”) and stated out loud in front of a colleague words to the effect of “oh my god, [Patient A] is admitted to mental health” and/or “Patient A was admitted on a form.” Patient A is an employee of the Facility and was admitted to the Facility’s Emergency Department on or around July 16, 2021.

The Member’s conduct breached the College’s Code of Conduct which provides that: “Nurses act with integrity to maintain patients’ trust”; “Nurses maintain public confidence in the nursing profession”; and “Nurses protect the privacy and confidentiality of patients’ personal health information”. The Member did not act with integrity or maintain public confidence in the nursing profession when she failed to protect the privacy and confidentiality of Patient A by accessing Patient A’s personal health information without consent or other authorization.

The Member’s conduct breached the College’s Professional Standards which provides that: “Each nurse understands, upholds and promotes the values and beliefs described in CNO’s Ethics practice standard”; and “Ethical nursing care means promoting the values of client well-being, respecting client choice, assuring privacy and confidentiality.” The Member failed to uphold the values and beliefs in the Ethics practice standard and failed to assure privacy and confidentiality when she accessed Patient A’s personal health information and voiced this personal health information in front of a colleague. Although the Agreed Statement of Facts states that if the Member were to testify, she would state that she accessed this information by accident, the fact that she shared it is a breach of Patient A’s privacy.

The Member’s conduct breached the College’s Confidentiality and Privacy – Personal Health Information Standard (“Privacy Standard”) which provides that: “Nurses’ have ethical and legal responsibilities to maintain the confidentiality and privacy of client health information obtained while providing care”; and “accessing information for her/his clients only and not accessing information for which there is no professional purpose.” As Patient A was not within the Member’s circle of care there was no professional purpose for her to have accessed Patient A’s personal health information.

The Member’s conduct specific to the above breached standards demonstrated a serious disregard for Patient A’s personal health information and a breach of confidentiality in sharing such information. In as much as she was a relatively new graduate, the Panel agreed that the Member should have been aware of the Professional Standards required within the profession of nursing and conducted herself according to those standards.

Allegation #2 in the Notice of Hearing is supported by paragraphs 9 to 28 and 30 in the Agreed Statement of Facts. The Member admitted, and the Panel finds, that she gave information about Patient A to a person other than the patient or her authorized representative and without consent or authorization, or as required by law when she commented out loud about Patient A’s personal health information that was heard by at least one other colleague at the Facility.

Allegations #3(a) and #3(b) in the Notice of Hearing are supported by paragraphs 9 to 28 and 31 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in accessing the personal health information of Patient A who was outside of her circle of care and doing so without clinical purpose was clearly relevant to the practice of nursing as it was through her employment at the Facility that she had access to that information. It was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations by breaching the Code of Conduct, the Professional Standards and the Privacy Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit by the member when she accessed the confidential information of Patient A who was not in her circle of care and commented out loud in front of a colleague about Patient A. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a nursing 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 2 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 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 the 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. Confidentiality and Privacy – Personal Health Information;

iv. Before the first meeting, the Member reviews Circle of Care: Sharing Personal Health Information for Health-Care Purposes, as released by the Information and Privacy Commissioner of Ontario;

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;

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;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s 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.

3. 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

College Counsel made submissions which included the following:

The aggravating factors in this case were:

• The Member committed a breach of trust, particularly a disregard for Patient A’s mental health and vulnerability when she accessed private information that she had no reason to be accessing as she was not within Patient A’s circle of care;

• The Member committed a breach of privacy when the information she found was shared; and

• The Member disregarded the confidentiality of Patient A’s personal health information.

The mitigating factors in this case were:

• The Member has no previous discipline history with the College;

• This was an isolated incident that occurred in her first year of practice;

• The Member took responsibility and accountability by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and

• The Member entered into remediation prior to the hearing.

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. McFarlane (Discipline Committee, 2022): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member disclosed a patient’s personal health information without consent to another nurse who was not in the patient’s circle of care and for no clinical purpose. The penalty included an oral reprimand, a one-month suspension of the member’s certificate of registration, a minimum of 1 meeting with a Regulatory Expert and 12 months of employer notification.

CNO v. Ogier (Discipline Committee, 2022): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member accessed the personal health information of 18 patients without authorization, consent or a clinical purpose. The penalty included an oral reprimand, a three-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.

CNO v. Trudel (Discipline Committee, 2018): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member accessed the personal health information of at least 63 patients who were not in her circle of care and without authorization. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, 2 meetings with a Nursing Expert and 12 months of employer notification. The difference between this case and the case before this Panel was the number of patients whose personal health information was accessed.

Member’s Submissions on Penalty

The Member’s Counsel and the Member indicated that they agreed with the College’s submissions.

Penalty Decision

The Panel accepted the Joint Submission on Order and made the order requested.

Reasons for Penalty Decision

There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Panel concluded that the proposed penalty is not contrary to the public interest and does not bring the administration of justice into disrepute.

The Panel concluded that the proposed penalty is reasonable and in the public interest. It promotes public confidence in the ability of the College to regulate nurses.

The Panel finds that the proposed penalty satisfies the penalty goals of specific and general deterrence, rehabilitation, remediation, and public protection.

The proposed penalty provides for general deterrence through the 2-month suspension of the Member’s certificate of registration and the 12 months of employer notification, which sends a message to the nursing profession and the public that this type of behaviour will not be tolerated.

The proposed penalty provides for specific deterrence to the Member by way of the oral reprimand, the 2-month suspension of the Member’s certificate of registration and the 12 months of employer notification.

The proposed penalty provides for remediation and rehabilitation through a minimum of 2 meetings with a Regulatory Expert.

Overall, the public is protected through the 2-month suspension of the Member’s certificate of registration, the 12 months of employer notification and the 2 meetings with a Regulatory Expert which are designed to support the Member upon her return to the profession of nursing.

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 as demonstrated by the cases submitted and referred to by College Counsel.

I, Mary MacNeil, 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.