DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Grace Fox, NP Chairperson Tina Colarossi, NP Member Sylvia Douglas Public Member Lalitha Poonasamy Public Member Kimberly Wagg, RPN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) JOSEPH BERGER for ) College of Nurses of Ontario
- and - )
VIVIANE ETIENNE ) JEAN CLAUDE DUBUISSON for Registration No. 0450197 ) Viviane Etienne ) KIMBERLEY ISHMAEL ) Independent Legal Counsel
Heard: November 22, 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 November 22, 2024, by videoconference.
The Allegations
The allegations against Viviane Etienne (the “Member”) as stated in the Notice of Hearing dated October 3, 2024 are as follows:
IT IS ALLEGED THAT:
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 Nurse at Centre d’accueil Champlain, in Ottawa, Ontario (the “Facility”), you contravened a standard or practice of the profession or failed to meet the standards of practice of the profession, and specifically, on or about November 17, 2021, you submitted a fraudulent COVID-19 vaccine receipt to the Facility, indicating that you had received a COVID-19 vaccine on November 12, 2021, when you had not; and/or
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(15) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Facility, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, and specifically, on or about November 17, 2021, you submitted a fraudulent COVID-19 vaccine receipt to the Facility, indicating that you had received a COVID-19 vaccine on November 12, 2021, when you had not; and/or
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 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, on or about November 17, 2021, you submitted a fraudulent COVID-19 vaccine receipt to the Facility, indicating that you had received a COVID-19 vaccine on November 12, 2021, when you had not.
Member’s Plea
The Member admitted the allegations set out in paragraphs #1, #2 and #3 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
Viviane Etienne (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on August 26, 1999, and then as a Registered Nurse (“RN”) on December 16, 2003. The Member officially resigned her RPN certificate on December 30, 2005. She remains currently registered as a RN.
The Member has no prior disciplinary findings with the CNO.
THE MEMBER’S EMPLOYMENT AT THE FACILITY
The Member worked as a Quality Improvement RN at the City of Ottawa - Centre d’accueil Champlain (“the Facility”) from December 17, 2015, until February 24, 2022, when her employment was terminated.
The Facility is one of four municipal long-term care home homes in Ottawa and is the only Francophone residence.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
In June 2021, the Facility instituted a COVID-19 vaccination policy requiring all staff either provide proof of vaccination against COVID-19 or receive approval from the Facility for a medical exemption from receiving a COVID-19 vaccine. The Facility set a final deadline of November 15, 2021 for staff to submit proof of vaccination or be granted a medical exemption.
The Member submitted two medical exemption requests to the facility, first on July 31, 2021 and then on October 6, 2021. Both exemption requests were denied.
The Member did not provide proof of COVID-19 vaccination to the Facility by November 15, 2021, and was placed on unpaid leave for failing to comply with the Facility’s vaccination policy.
On November 17, 2021, the Member submitted a fraudulent COVID-19 vaccine receipt to the Facility. The vaccine receipt submitted by the Member indicated that she had received a (Pfizer) COVID-19 vaccine at 4:21 PM on November 12, 2021, from a Walmart pharmacy on Innes Road in Orleans, Ontario. The receipt indicated that the vaccine had been administered by a nursing student who was identified only by her first name and last name initial.
The vaccine receipt was flagged as suspicious because the lot number associated with the vaccine listed on the receipt looked unusual in terms of its formatting. Additionally, the nursing student’s name listed as administering the vaccine was incomplete (did not contain a full last name).
The Facility looked up the vaccine lot number listed on the receipt provided by the Member. The Facility determined that the lot number format listed on the Member’s COVID-19 vaccine receipt was not consistent with the format of Pfizer vaccine lot numbers and that the lot number listed on the Member’s vaccine receipt did not, in fact, exist.
On several occasions from December 2021 to February 2022, the Facility discussed their concerns surrounding the Member’s vaccine receipt with the Member. On every occasion, the Member insisted to the Facility that she had received a COVID-19 vaccine at the Walmart pharmacy on Innes Road, in Orleans on November 12 2021. The Member was ultimately unable to provide an explanation for why the vaccine receipt she had submitted to the Facility contained an invalid lot number.
On December 30, 2021, the Member emailed the Facility a COVAX Ontario proof of vaccination form indicating that she had received COVID-19 vaccines on December 6, 2021, and December 27, 2021. The proof of vaccination form did not indicate that the Member had received a COVID-19 vaccine on November 12, 2021.
Walmart has no record of the Member receiving the COVID-19 vaccination at the Innes Road location in Orleans. Walmart confirmed that no nursing students were working at the pharmacy on November 12, 2021.
There is no record in the COVaxON system of the Member having received a COVID-19 vaccine on November 12, 2021.
The Facility terminated the Member’s employment on February 24, 2022 for submitting a fraudulent COVID-19 vaccine receipt.
The Member admits that she did not receive a COVID-19 vaccine receipt on November 12, 2021. The Member admits that she submitted a fraudulent vaccine receipt to the Facility on November 17, 2021.
CNO STANDARDS
- CNO’s Code of Conduct is a standard of practice describing the accountabilities all nurses in Ontario 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 act with integrity to maintain patients’ trust.
Nurses maintain public confidence in the nursing profession.
- Regarding the principle requiring nurses to maintain patients' trust by providing
safe and competent care, the Code of Conduct provides that nurses must seek and use the best available evidence to inform their practice, and nurses are required to use their knowledge, skill, and judgment when giving nursing care.
Regarding the principle of requiring nurses to work respectfully with the health care team to meet clients’ needs, CNO’s Code of Conduct provides that nurses contribute to a safe organizational culture.
Regarding the principle requiring nurses to act with integrity to maintain patients’ trust, the Code of Conduct provides that nurses place their professional responsibilities ahead of their personal gain and are truthful in their professional practice.
Regarding the principle requiring nurses to maintain public confidence in the nursing profession, the Code of Conduct provides that nurses are accountable for their own actions and decisions.
Attached as Exhibit “A” is a copy of the CNO’s Code of Conduct which was in force at the relevant time.
Professional Standards
CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by the CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.
The Professional Standards provide, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the 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 actions such as ensuring their practice is consistent with the CNO’s standards of practice and guidelines as well as legislation.
The Professional Standards provide, in relation to the ethics standard, that nurses are accountable for understanding, upholding, and promoting the values and beliefs described in the CNO’s Ethics practice standard. Ethical nursing care means promoting values including, among other things, respectful truthfulness and acting with integrity, honesty, and professionalism in all dealings with client and other health care team members. Nurses demonstrate this standard by actions such as identifying personal values and ensuring that they do not conflict with professional practice, and creating environments that promote and support safe, effective, and ethical practice.
CNO’s Professional Standards provide, 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. The leadership expectation is not limited to nurses in formal leadership positions and all nurses, regardless of their position, have opportunities for leadership. Nurses demonstrate this standard by actions such as role-modelling professional values, beliefs and attributes.
Attached as Exhibit “B” is a copy of the CNO’s Professional Standards which was in force at the relevant time.
Ethics
CNO’s Ethics Standard describes ethical values that are important to the nursing profession in Ontario including patient well-being, patient choice, privacy and confidentiality, respect for life, maintaining commitments, truthfulness and fairness.
The Ethics Standard provides, in relation to maintaining commitments, that nurses have a commitment to the nursing profession and being a member of the profession brings with it the respect and trust of the public. To continue to deserve this respect, nurses have a duty to uphold the standards of the profession, conduct themselves in a manner that reflects well on the profession, and to participate in and promote the growth of the profession.
The Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive.
Attached as Exhibit “C” is a copy of the CNO’s Ethics standard which was in force at the relevant time
The Member admits and acknowledges that she contravened the CNO’s Code of Conduct, Professional Standards and Ethics Standard.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing, as described in paragraphs 8 to 32 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, as described in paragraphs 8 to 16 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 8 to 32 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, #2 and #3 of the Notice of Hearing. As to allegation #3, 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.
Allegation #1 in the Notice of Hearing is supported by paragraphs 8 to 33 in the Agreed Statement of Facts. The Member admitted that while working as a Registered Nurse (“RN”) at Centre d’accueil Champlain (the “Facility”) she committed an act of professional misconduct when she contravened a standard of practice of the profession by submitting a fraudulent COVID-19 vaccine receipt to the Facility on November 17, 2021. The Member contravened the College’s Code of Conduct, and in particular, the principle requiring nurses to maintain public confidence in the nursing profession. The Code of Conduct provides that nurses are accountable for their own actions and decisions. The Member was accountable for her own actions and decisions when she submitted a fraudulent vaccine receipt to the Facility. The Member contravened the College’s Professional Standards in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring that 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 actions such as ensuring their practice is consistent with the College’s standards of practice and guidelines as well as legislation. In June 2021, the Facility instituted a COVID-19 vaccination policy requiring all staff either to provide proof of vaccination against COVID-19 or receive approval from the Facility for a medical exemption from receiving a COVID-19 vaccine. The Member contravened this standard of practice of the profession when she submitted a fraudulent vaccine receipt to the Facility. The Member contravened the College’s Ethics Standard in relation to truthfulness, which provides that truthfulness means speaking and acting without intending to deceive. The Member contravened this standard of practice of the profession when she submitted a fraudulent vaccine receipt to the Facility. The Member admitted and acknowledged that she contravened the College’s Code of Conduct, Professional Standards and Ethics Standard.
Allegation #2 in the Notice of Hearing is supported by paragraphs 8 to 16 and 34 in the Agreed Statement of Facts. The Member admitted that she committed an act of professional misconduct when she signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement by submitting a fraudulent COVID-19 vaccine receipt to the Facility on November 17, 2021. On several occasions from December 2021 to February 2022, the Facility discussed their concerns surrounding the Member’s vaccine receipt with the Member. On every occasion, the Member insisted to the Facility that she had received a COVID-19 vaccine at the Walmart pharmacy on Innes Road, in Orleans on November 12, 2021. The Member admitted that she did not receive a COVID-19 vaccine on November 12, 2021. The Member admitted that she submitted a fraudulent vaccine receipt to the Facility on November 17, 2021.
Allegation #3 in the Notice of Hearing is supported by paragraphs 8 to 32 and 35 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in contravening the Code of Conduct, the Professional Standards and the Ethics Standard. The Member admitted that she submitted a fraudulent COVID-19 vaccine receipt to the Facility on November 17, 2021. By submitting a fraudulent vaccine receipt, she may have placed vulnerable patients at risk for COVID-19.
The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through submitting a fraudulent COVID-19 vaccine receipt to the Facility on November 17, 2021. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional.
Penalty
College Counsel and the Member’s Counsel advised that a Joint Submission on Order had been agreed upon and requested that the Panel make the following order:
Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
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.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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 Practice Reflection Worksheets, online learning modules and decision tools (where applicable):
- Code of Conduct
iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Practice Reflection Worksheets;
v. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;
vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;
b) For a period of 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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 College submitted that the aggravating factors in this case were the seriousness of the misconduct and breach of employer’s trust bringing discredit to the profession. Also, the potential of putting vulnerable patients at risk.
The College submitted that the mitigating factors were that the Member does not have any prior discipline history with the College. Also, the Member accepted responsibility and admitted to the professional misconduct, sparing the College the expense and inconvenience of a contested hearing.
The College submitted that the proposed order satisfies the overall goals of penalty as follows.
The oral reprimand and the 2-month suspension of the Member’s certificate of registration achieve specific deterrence by demonstrating to the Member that the profession will not tolerate this type of conduct. The 2-month suspension of the Member’s certificate of registration also provides for general deterrence, as well as public protection, because the Member is restricted from practicing nursing until remedial steps are completed. A minimum of 2 meetings with a Regulatory Expert are intended to improve the Member’s practice and foster insight into her conduct.
The 12 months of employer notification also protects the public because there will be oversight and supervision of the Member’s practice. The terms, conditions and limitations imposed on the Member’s certificate of registration, should foster public confidence in the profession’s ability to regulate itself.
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. College Counsel pointed out that he was unable to find another case where the Member submitted a false COVID–19 vaccination receipt.
CNO v. Thomas (Discipline Committee, 2023): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The allegations included the member submitting false claims to the facility’s employee group benefit plan. The penalty included an oral reprimand, a 2-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification. The similarities to the case before this Panel were that the submission to the benefit plan was false and had an element of dishonesty. However, the member in the case stood to benefit financially which differs from the case before this Panel. In the case before this Panel there was a potential risk to patients. The mitigating factors in the case were similar to those in the case before this Panel as the member did not have any prior discipline history with the College and accepted responsibility and admitted to the professional misconduct, sparing the College the expense and inconvenience of a contested hearing.
CNO v. Olalere (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member provided false or misleading information in connection to four employment applications made over three years. The penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, a minimum of 1 meeting with a Regulatory Expert and 18 months of employer notification. The similarities to the case before this Panel are the element of false information. In this case, one of the aggravating factors was that the conduct was repeated four times in three years, which was not the factor in the case before this Panel. The penalty in this case was more severe than the penalty proposed in the case before this Panel.
CNO v. Farrokhbakht (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member provided false or misleading information in her professional capacity and provided misleading information that she was employed by a doctor for 6 years, when she was not. The penalty included an oral reprimand, a 2-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 18 months of employer notification. This case had an element of direct patient harm, which the case before this Panel did not. However, in the case before this Panel, there was the potential for patient harm. The penalty in this case was more severe than the penalty proposed in the case before this Panel.
Member’s Submissions on Penalty
The Member’s Counsel agreed with the College’s submissions on penalty and explained that the Agreed Statement of Facts and Joint Submission on Order were crafted together.
The Member’s Counsel submitted that the Member did end up receiving two doses of a COVID-19 vaccine. The Member’s Counsel submitted that the Member was remorseful for her actions. The Member’s Counsel asked the Panel to reduce the two-month suspension to two weeks or one month because the Member is a single mother of three children and also has her 80-year-old mother and 80-year-old father living with her and she supports them all. The Member’s Counsel also expressed concern that the employer notification might cause the Member not to get the same nursing position as she had previously.
College Reply Submissions
College Counsel replied to Member’s Counsel’s submissions and reiterated that the Panel should accept the Joint Submission on Order negotiated between the parties without any modification, or terms altered as proposed by Member’s Counsel, unless it finds the terms proposed in the Joint Submission on Order meet the high threshold of being contrary to the public interest or would bring the administration of justice into disrepute.
Penalty Decision
The Panel accepted the Joint Submission on Order and made the order requested.
Reasons for Penalty Decision
There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.
The Panel concluded that the proposed penalty is not contrary to the public interest and does not bring the administration of justice into disrepute.
The Panel concluded that the proposed penalty is reasonable and in the public interest. It promotes public confidence in the ability of the College to regulate nurses.
The Panel finds that the proposed penalty satisfies the penalty goals of specific and general deterrence, rehabilitation and remediation, and public protection.
The proposed penalty provides for general deterrence through the oral reprimand and the 2-month suspension of the Member’s certificate of registration, which communicates to the profession as a whole that professional misconduct has serious consequences.
The proposed penalty provides for specific deterrence through the oral reprimand and the 2-month suspension of the Member’s certificate of registration, which sends a clear message to the Member that this type of conduct will not be tolerated.
The proposed penalty provides for remediation and rehabilitation through a minimum of 2 meetings with a Regulatory Expert, which will give the Member the opportunity to review appropriate standards of the profession and gain insight into her misconduct ensuring that it will not be repeated. The penalty protects the public through the 12 months of employer notification.
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, 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.