College of Nurses of Ontario v. Lisa Keating, 2024 ONCNO 140475

Discipline Committee of the College of Nurses of Ontario

PANEL: Grace Fox, NP Chairperson Jane Hess, RN Member Tammy Hedge, RPN Member Lynda Carpenter Public Member

BETWEEN:

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

• and -

LISA KEATING Registration No. 0439240 NO REPRESENTATION for Lisa Keating

CHRISTOPHER WIRTH for Independent Legal Counsel

Heard: July 15-16, 2024, via videoconference

DECISION AND REASONS

Publication Ban

By Order of the Discipline Panel dated July 16, 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 any information that could disclose the identities of the patients, referred to orally or in any documents presented at the Discipline hearing of Lisa Keating.

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) commencing on July 15, 2024.

The Member’s Non-Attendance at the Hearing

As Lisa Keating (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 Michelle Mulgrave, Prosecutions Associate affirmed July 14, 2024, confirming that Samantha Harry, Prosecutions Clerk, sent correspondence, which included the Notice of Hearing, on June 11, 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.

Multiple attempts were made by the College to contact the Member regarding the hearing, including instructions on how to access the Notice of Hearing, sent by email.

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 7, 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 of Ontario, you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, in or around 2021 – 2022, you failed to participate in a Quality Assurance assessment as directed by the Quality Assurance Committee, pursuant to an Order of the Discipline Committee dated October 9, 2020.

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(21) of Ontario Regulation 799/93, in that, while registered as a Registered Nurse with the College of Nurses of Ontario, you failed to comply with an Order of the Discipline Committee, and in particular:

a. in or around 2020 – 2021, you failed attend two meetings with a Regulatory Expert, pursuant to an Order of the Discipline Committee dated October, 9, 2020; and/or

b. in or around 2021 – 2022, you failed to participate in a Quality Assurance assessment as directed by the Quality Assurance Committee, pursuant to an Order of the Discipline Committee dated October 9, 2020;

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(19) of Ontario Regulation 799/93, in that, while registered as a Registered Nurse with the College of Nurses of Ontario, you contravened a provision of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts, and in particular, you contravened section 11 of the Nursing Act, 1991, when from on or about February 17, 2022 to March 17, 2022, you practised nursing while your certificate of registration was suspended and/or used the title registered nurse and/or nurse, or a variation thereof, and held yourself out as a person who is qualified to practise nursing in Ontario.

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that 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 of the profession as disgraceful, dishonourable or unprofessional, as follows:

a. in or around 2020 – 2021, you failed attend two meetings with a Regulatory Expert, pursuant to an Order of the Discipline Committee dated October, 9, 2020;

b. In or around 2021 – 2022, you failed to participate in a Quality Assurance assessment as directed by the Quality Assurance Committee, pursuant to an Order of the Discipline Committee dated October 9, 2020;

c. from on or about February 17, 2022, to March 17, 2022, you practised nursing while your certificate of registration was suspended and/or used the title registered nurse and/or nurse, or a variation thereof, and held yourself out as a person who is qualified to practise nursing in Ontario.

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 initially registered with the College in 2002 as a Registered Practical Nurse (“RPN”) and subsequently in 2004 as a Registered Nurse (“RN”). In April 2005 the Member’s RPN certificate of registration was suspended for non-payment of fees until she resigned her certificate of registration in 2013.

The Member’s certificate of registration as an RN has been suspended for a total of four times for non-payment over 15 years.

In addition, the Member also has a prior history with the Discipline Committee in that she failed to complete her Quality Assurance Practice Assessment, despite multiple extensions and attempts to contact her. That matter was heard by a panel of the Discipline Committee on October 9, 2020, which made findings that the Member’s conduct was dishonourable and unprofessional. The Member failed to complete all of the terms, conditions and limitations on her certificate of registration as ordered by the Discipline Committee.

The Member is alleged to have held herself out as an RN and engaged in the practice of nursing while her certificate of registration was suspended for non-payment.

The issues are as follows:

(a) Did the Member commit professional misconduct by practising nursing and holding herself out to be a Nurse while her certificate of registration was suspended?

(b) Did the Member fail to comply with a previous order of the Discipline Committee, in failing to meet with a Regulatory Expert as ordered?

(c) Did the Member fail to participate in a Quality Assurance assessment as directed by the Quality Assurance Committee, pursuant to an order of the Discipline Committee?

(d) In light of the issues above, would the Member’s conduct be considered by members of the profession to be dishonourable, disgraceful and/or unprofessional?

After considering the evidence described below, the Panel found that the Member committed professional misconduct as alleged in the Notice of Hearing.

The Evidence

The Panel received 17 exhibits from the College and heard the testimony of four witnesses.

College Counsel provided the Panel with Exhibit #3, the registration history of the Member which showed the long-standing history of suspensions for non-payment of fees by the Member for both her RN and RPN certificates which clearly sets out the dates that she was ineligible to hold herself out as a nurse or engage in nursing practice.

Witness #1 – Alexandra Peros (“Ms. Peros”)

Ms. Peros is a Registered Nurse and has been employed as an Investigator with the College for six years. Ms. Peros testified that she was made aware that the Member had been practicing without a valid certificate of registration through a telephone call from the Member’s employer. Ms. Peros testified that she investigated the Member’s registration history through the publicly available website “Find a Nurse”. Ms. Peros testified that the registration history demonstrated that the Member was registered in 2002 as a Registered Practical Nurse and then in 2005 was suspended for non-payment of her registration fees, until she resigned her RPN certificate of registration in 2013. The Member registered as a Registered Nurse in November of 2004, and in December 2023 moved into the non-practicing class. Ms. Peros testified that an administrative suspension is a suspension placed on a certificate of registration for non-payment of fees. Ms. Peros testified that the summary of events in terms of renewals and suspensions was accurate. From February 17, 2022, until March 17, 2022, the member was administratively suspended. Ms. Peros walked the Panel through exhibits #5, #6 and #7. Ms. Peros further testified that no documents were received from the Nursing Expert, or the Member confirming the Member’s attendance at the required meetings, and no documentation was received regarding completion of the Quality Assurance program. Ms. Peros testified that she had made several attempts to contact the Member via telephone calls, emails and courier. She had not received any responses from the Member.

Witness #2 – Yvonne Yu (“Ms. Yu”)

Ms. Yu is an Advanced Practice Consultant who has been employed with the College since 2022. Ms. Yu testified that she was aware of the Member and had reviewed the allegations against the Member. Ms. Yu reviewed for the Panel the Quality Assurance Program in place in October 2020. She testified that members were required to submit a learning plan, including two goals and two examples of how these apply to their practice. Ms. Yu testified that the selection process for the program is random. The Panel heard testimony that the program is completed through a shared file platform, faxes or email. Members are provided with instructions on how to access the files. Members selected to participate are provided with a letter to notify them of their selection and provide them with a due date for completion. Ms. Yu walked the Panel through Exhibits #8, #9, #10, #11 and #12, and confirmed that the activities required of the Member were not completed.

Witness #3 – Parth Bhavsar (“Mr. Bhavsar”)

Mr. Bhavsar is a Monitoring Administrator who has been employed with the College since 2019. Mr. Bhavsar testified that the Member failed to complete two meetings with a Regulatory Expert as required. The Member reached out to an expert on May 14, 2021, who responded with a return phone call where she explained the process to the Member. The expert reported to the College that she never heard back from the Member after that, as reflected in Exhibit #13.

Witness #4 – Cindy Roberts (“Ms. Roberts”)

Ms. Roberts retired as a Registered Nurse in April 2023 after 40 years of practice. She knew the Member and worked with her for over a year. The Panel reviewed Exhibit #15, a statement made by Ms. Roberts which indicated that she was alerted to the Member’s suspension when checking annual credentials for the facility using “Find a Nurse” on March 17, 2022. Upon this discovery, the Member was immediately suspended from her place of employment pending an investigation. Ms. Roberts engaged in a text message conversation with the Member in which the Member apologized for her error and provided proof of payment. Ms. Roberts indicated in the texts that the issue was that the Member had been practising as a nurse between February 17, 2022, when her certificate of registration was suspended until that day, March 18, 2022, and had signed documents as an RN.

Exhibit #16 is the Member’s work schedule, which indicates that she was scheduled for 21 shifts between February 17, 2022 and March 17, 2022. During these shifts, she was assigned duties as a nurse that included assessments of cardiac patients. Exhibit #17 clearly shows the Member’s assessment notes of various patients whose care she was involved with, along with the Member’s name and RN designation.

With regard to the Member’s failure to comply with a previous order of a panel of the Discipline Committee, the College referred to Exhibit #4: the panel’s order, which included an oral reprimand, a two-month suspension of her certificate of registration, terms, conditions and limitations requiring that the Member attend two meetings with a Regulatory Expert and requiring the Member to participate in the next Quality Assurance Program cycle.

The Panel was provided with evidence at Exhibit #7 that the Member received the oral reprimand. The Member’s certificate of registration was suspended from October 9, 2020, until December 10, 2020.

Exhibit #13 demonstrated that the Member had the information she required to complete the two meetings with a Regulatory Expert. Three approved names were provided to her, with an option to apply to have a different expert.

Exhibit #5, the Decision and Reasons from another panel of the Discipline Committee following a hearing on Oct 9, 2020, confirmed that the Member did not cooperate with the Quality Assurance Committee.

Exhibit #11, a letter dated March 22, 2022 from the Chair of the Quality Assurance Committee at the College, demonstrated that as of that date, the Member had still failed to complete the Quality Assurance program as required. This letter outlined the numerous attempts made by the College to assist the Member with completion of the requirement including an extension of the deadline for completion.

Final Submissions

College Counsel submitted that in light of all of the evidence provided, the Panel should make findings of professional misconduct on the balance of probabilities. All four allegations in the Notice of Hearing arose from one or more of the three following incidents which have been proven by the evidence tendered during the hearing:

1. The Member failed to attend two meetings with a Regulatory Expert as ordered by a panel of the Discipline Committee in October 2020;

2. The Member failed to participate in the Quality Assurance Program, as directed by the Discipline Committee; and

3. The Member held herself out as and practised as a nurse for approximately a month while her certificate of registration was suspended.

The Member appeared for her oral reprimand on October 9, 2020; however, she failed to complete the two meetings with a Regulatory Expert and submit her Quality Assurance assessment. The Member also practiced as a nurse between February and March 2022, while her certificate of registration was suspended. The Member never disclosed that she was under a suspension and continued to see patients at the facility where she worked. The fact that she was practising without a valid registration was only discovered when the facility ran the annual check on the nursing registrations of staff.

College Counsel submitted that the Panel should find the Member’s conduct to be dishonourable, disgraceful and unprofessional. The Member’s conduct meets all three characterizations as the Member repeatedly disrespected the College’s role in the protection of the public when she refused to complete the Quality Assurance activity for what is now seven years. The Member was disciplined for failing to participate in the program in 2020 and still has not completed the requirements. The Member then ignored two remedial terms as ordered by a panel of the Discipline Committee.

Seven years of non-compliance puts the public at risk. The Member essentially ignored an order from the Discipline Committee and then practiced while suspended demonstrating that the Member’s conduct is shameful and brings disrepute to the profession.

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, #2(a), #2(b), #3, #4(a), #4(b) and #4(c) of the Notice of Hearing. As to allegations #4(a), #4(b) and #4(c), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

The Panel considered and accepted the testimony of the witnesses, the documentary evidence and the submissions from the College and finds that the evidence supports the findings of professional misconduct as alleged in the Notice of Hearing.

The Panel found all four witnesses to be credible, forthright and reliable.

Allegations #1 and #2(a) and #2(b) are supported by the previous order from the Discipline Committee dated October 9, 2020. The Panel heard testimony from Ms. Peros, Ms. Yu and Mr. Bhavsar demonstrating that the Member was fully aware of the expectations, the process she needed to complete and the assistance that was available to her if required. Despite multiple attempts to reach the Member, the Member failed to return calls or letters, reach out for assistance or complete the necessary activities imposed upon her. Exhibits #8 through #13 demonstrated the multiple attempts made by the witnesses to assist the Member in completing the tasks required of her.

Allegation #3 is supported by the oral evidence given by Ms. Roberts, who worked at the facility at which the Member was employed, as well as by Exhibits #14 through #16. The evidence demonstrates that the Member engaged in the practice of nursing while suspended (Exhibit #3).

With regard to allegations #4(a), #4(b) and #4(c), the Panel finds that the Member’s conduct in failing to attend the two meetings with a Regulatory Expert and to participate in a Quality Assurance assessment pursuant to an order of the Discipline Committee and in practising nursing and in holding herself out as a nurse while suspended was relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing as she repeatedly disrespected the College’s privilege to self-regulate by failing to comply with the mandatory Quality Assurance assessment. She then further showed disregard for her obligations when the College was willing to work with her to assist her in completing the requirements, including by giving her multiple extensions and offering assistance. Despite being disciplined for this conduct, the Member continued to show a blatant lack of respect when she failed to comply with the Discipline Committee’s orders.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s conduct in practising nursing while her certificate of registration was suspended was reckless, posed a great danger to the public, put the profession of nursing at risk of falling into disrepute and cast serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

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 3 months of the date that this Order becomes final.

2. Directing the Executive Director to immediately revoke the Member’s certificate of registration.

College Counsel submitted that the only reasonable penalty in this case would be an oral reprimand and revocation of the Member’s certificate of registration. The Member has demonstrated that she is ungovernable, and revocation is the only order capable of advancing the public interest.

College Counsel submitted that there are three considerations when arriving at a penalty decision:

1. Aggravating and mitigating factors;

2. That the three goals of penalty are met; and

3. The penalty is consistent with prior decisions in similar circumstances.

College Counsel submitted that there were no mitigating factors. The Member did not participate at all in order to present mitigating factors or to explain her misconduct over many years.

The aggravating factors in this case were:

• The Member has a history of discipline with the College in 2020 for some (but not all) similar conduct, specifically the issue surrounding the Quality Assurance program completion;

• The Member has been suspended a total of five times over her career for non-payment of fees, and when totalled the amount of time suspended equalled 10 years;

• The Member has failed to complete the Quality Assurance Program for seven years; and

• The College would not be able to function or carry out its mandate to protect the public if such behaviour was allowed to continue.

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. Corey (Discipline Committee, 2006): The member was not present or represented, and the panel proceeded on the basis that the member denied the allegations. The member was alleged to have committed professional misconduct by pre-pouring medications for a future date, failing to check for changes in medications they had pre-poured, administering medications ordered as PRN without proper documentation, discussing personal life with clients, accepting personal gifts from a client and continuing to practice while their certificate of registration was suspended for 17 months. The panel made findings of professional misconduct as alleged and directed the Registrar to revoke the Member’s certificate of registration.

CNO v. Campbell (Discipline Committee, 2012): The member was not present or represented, and the panel proceeded on the basis that the member denied the allegations. The allegations included that the member held themself out as a Nurse, preformed one or more controlled acts, and used the title of Nurse while their certificate of registration was suspended. The member failed to attend an oral reprimand after one was ordered by a panel of the Discipline Committee in a prior discipline hearing The Member also failed to compete the specific terms, conditions and limitations imposed on their certificate of registration. The Panel made findings as alleged and directed the Registrar to revoke the Member’s certificate of registration.

CNO v. Branton (Discipline Committee, 2013): The member was not present or represented and the panel proceeded on the basis that the member denied the allegations. The allegations included that the member failed to comply with terms, conditions and limitations on their certificate of registration as previously order of the Discipline Committee by failing to attend meetings with a nursing expert, failing to complete a prescribed course, and failing to notify their employer of a decision made by the Panel. The member in this case also practised as a Nurse while their certificate of registration was suspended for 17 shifts. The panel made findings on all allegations and ordered the revocation of the Member’s certificate of registration. As the Member’s certificate was already revoked administratively, this order would take effect should the member ever attempt to renew their registration.

CNO v. Hunter (Discipline Committee, 2014): The member was not present or represented and the panel proceeded on the basis that the member denied the allegations. The allegations included that the member failed to comply with an order of the Discipline Committee, specifically that the member failed to attend two meetings with a nursing expert. The panel made findings on the allegations and ordered the revocation of the member’s certificate of registration.

CNO v. Bowles (Discipline Committee, 2019): The member was not present or represented and the panel proceeded on the basis that the member denied the allegations. The allegations against the member included disclosing personal information to clients, misappropriation of narcotics from a patient, theft, falsifying documents and failing to comply with terms, conditions and limitations on the member’s certificate of registration ordered by the Inquiries, Complaints and Reports Committee related to narcotics. The member failed to notify her employer of the restriction. The Panel made findings as alleged and ordered a revocation of the member’s certificate of registration and an oral reprimand.

CNO v. Franklin (Discipline Committee, 2020): While the member was not present at the hearing, she cooperated on an agreed statement of facts with the College and pleaded guilty to the allegations, which related to the member engaging in a personal and sexual relationship with a client. This case was submitted to demonstrate that there are ways to engage with the College’s regulatory process should the process be too strenuous. The panel ordered the revocation of the member’s certificate of registration and an oral reprimand.

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 3 months of the date that this Order becomes final.

2. The Executive Director is directed to immediately revoke the Member’s certificate of registration.

Reasons for Penalty Decision

The Panel finds that the Member is ungovernable. The Member held herself out to be a Registered Nurse while not having a current registration and consistently failed to participate in the Quality Assurance requirements. Checks and balances, including the Quality Assurance program, exist in order to engage nurses in reflection of their own practice. Through the process of self-governance of the profession, nurses that fall below the standards are offered the opportunity for guided reflection and to seek remediation and education. This Member did not care to participate in this process.

The penalty imposed will serve the goals of penalty in a fair and transparent way.

The public is protected by the fact that the Member is unable to engage in the practice of nursing.

Should the Member seek to have her certificate of registration reinstated in Ontario, she will have a number of components to address, including compliance with all of the previous incomplete panel orders.

The goals of specific and general deterrence are met by demonstrating to the Member and the membership that conduct such as this will not be tolerated. Nurses are held accountable for their actions, and showing a lack of respect for the governing body is not acceptable.

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, Grace Fox, NP, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.