College of Nurses of Ontario v. Jerry Tulod, 2024 CanLII 140480

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Lalitha Poonasamy Public Member, Chairperson Lynn Hall, RN Member Jeffrey Ko, RN Member Sandra Larmour Public Member Shannon Mantha, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DOUGLAS MONTGOMERY for ) College of Nurses of Ontario

• and - )

JERRY TULOD ) NIITI SIMMONDS for Registration No. 0441170 ) Jerry Tulod ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: September 9, 2024, via videoconference

DECISION AND REASONS

Publication Ban

By Order of the Discipline Panel dated September 9, 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 the identity of the patient or their personal health information referred to orally or in any documents presented at the Discipline hearing of Jerry Tulod.

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on September 9, 2024.

The Allegations

The allegations against Jerry Tulod (the “Member”) as stated in the Notice of Hearing dated July 31, 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 employed as a Registered Nurse (“RN”) at Humber River Hospital in North York, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:

a) On or around January 18, 2022, you stole a phone and charger, glasses, a health card, and an ONA bag that belonged to [the Patient]; and/or

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(8) of Ontario Regulation 799/93, in that while employed as an RN at the Facility, you misappropriated property from a client or workplace, as follows:

a) On or around January 18, 2022, you stole a phone and charger, glasses, a health card, and an ONA bag that belonged to [the Patient]; and/or

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 registered as an RN, 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) On or around January 18, 2022, you stole a phone and charger, glasses, a health card, and an ONA bag that belonged to [the Patient].

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(a), #2(a) and #3(a) 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. Jerry Tulod (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on December 2, 2004. He resigned his certificate of registration on December 27, 2022.

2. The Member was employed at Humber River Hospital in North York, Ontario (the “Facility”) from 2007 until February 4, 2022, when the Facility terminated his employment in connection with the incident described below.

3. The Member has no prior CNO disciplinary history.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Incident

4. (the “Patient”) was a pediatric RN at the Facility [ ] who retired from the Facility [ ]. Shortly after her retirement, she became ill and was admitted to the Facility. She passed away at 01:00 hrs on January 18, 2022.

5. At the time that the Patient passed away, the Member was assigned as her secondary nurse.

6. That day, at 06:30 hrs, a porter arrived to transport the deceased Patient to the morgue. Shortly after, the Member stole the Patient’s Samsung Galaxy S21 cell phone, cell phone charger, glasses, health card, and Ontario Nurses’ Association bag. The Patient’s items stolen by the Member had been in the Patient’s personal belongings bag.

7. The Facility had video surveillance cameras. The video surveillance footage captured the Member briefly removing the Patient’s personal belongings bag, before returning with the bag and placing it back in the Patient’s room.

8. On February 2, 2022, the Facility interviewed the Member. At first, he stated that he moved the Patient’s belongings and placed them in the utility room used for storage and then returned the bag to the Patient’s room so that the primary nurse could document it. However, when confronted with evidence regarding the geolocation of the Patient’s phone, the Member then admitted that he took the Patient’s belongings.

9. The Member ultimately returned one of the stolen items, the Patient’s cell phone. The Member advised the Facility that he discarded the Patient’s other belongings.

The Criminal Charge

10. The Member was charged with theft contrary to s. 334(b) of the Criminal Code of Canada as a result of the incident described above.

11. The criminal charge was ultimately withdrawn on October 6, 2023.

The Member’s Health

12. If the Member were to testify, he would state that he was suffering from a mental health crisis at the time he stole the Patient’s belongings. He would further testify that his health condition affected his behaviour and judgment, and that his conduct was a significant lapse in judgment. The Member would state that he has since sought care for his health condition.

13. The Member admits and acknowledges that his conduct was unacceptable, regardless of these circumstances. The Member would testify that he is sincerely remorseful.

CNO STANDARDS OF PRACTICE

Code of Conduct

14. 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:

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

• Nurses work together to promote patient well-being;

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

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

• Nurses act with integrity to maintain patients’ trust; and

• Nurses maintain public confidence in the nursing profession.

15. CNO’s Code of Conduct further provides, in relation to the principle requiring nurses to respect the dignity of patients and treat them as individuals, that nurses take steps to maintain patients’ privacy and dignity in the physical space where they are receiving care.

16. CNO’s Code of Conduct further provides, in relation to the principle requiring nurses to act with integrity to maintain patients’ trust, that nurses maintain professional boundaries with patients and do not use their position to promote personal gain.

17. CNO’s Code of Conduct further provides, in relation to the principle requiring nurses to maintain public confidence in the nursing profession, that nurses are accountable for their own actions and decisions, and that they respect the property of their patients.

18. Attached as Exhibit “A” is a copy of CNO’s Code of Conduct which was in force at the time of the Incident.

Professional Standards

19. 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.

20. CNO’s Professional Standards further provides, 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.

21. CNO’s Professional Standards further provides, in relation to the ethics standard, that ethical nursing means respecting truthfulness and ensuring fairness in the use of resources, and includes acting with integrity, honesty and professionalism in all dealings with the [patient].

22. Attached as Exhibit “B” is a copy of CNO’s Professional Standards which was in force at the time of the incident and has since been retired.

Therapeutic Nurse-Client Relationship Standard

23. CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) provides guidance on establishing and maintaining appropriate nurse-patient boundaries.

24. The TNCR Standard specifies that the nurse is responsible for establishing and maintaining the therapeutic nurse-patient relationship. Therapeutic nursing services “contribute to the [patient’s] health and well-being” and the relationship is based on “trust, respect, empathy and professional intimacy, and requires the appropriate use of power inherent in the care provider’s role.”

25. The TNCR Standard elaborates that therapeutic nursing includes effectively establishing and maintaining the limits or boundaries in the therapeutic nurse-client relationship, and not engaging in activities that could result in monetary, personal or other material benefit, gain or profit for the nurse (other than the appropriate remuneration for nursing care or services), the nurse’s family and/or the nurse’s friends, or result in monetary or personal loss for the client.

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

27. The Member admits and acknowledges that, in engaging in the conduct described above, he breached CNO’s Code of Conduct, the Professional Standards, and the TNCR Standard.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

28. The Member admits that he committed the act of professional misconduct as alleged in paragraph 1 and 1(a) of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 4 - 27 above.

29. The Member admits that he committed the act of professional misconduct as alleged in paragraph 2 and 2(a) of the Notice of Hearing in that he misappropriated property from a client or workplace, as described in paragraphs 4 - 13 above.

30. The Member admits that he committed the act of professional misconduct as alleged in paragraph 3 and 3(a) of the Notice of Hearing in that he 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 and unprofessional, as described in paragraphs 4 - 27 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), #2(a) and #3(a) of the Notice of Hearing. As to allegation #3(a), 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 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(a) in the Notice of Hearing is supported by paragraphs 5-11 and 28 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession when he stole a phone and charger, glasses, a health card, and an ONA bag from [the Patient]. The Member breached [the Patient]’s trust for his own personal gain, and his conduct threatened the trust the public needs to have in nurses when he stole the property belonging to [the Patient]. The College’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) states, “Nurses protect the client from harm by … not engaging in activities that could result in monetary, personal or other material benefit, gain or profit for the nurse (other than the appropriate renumeration for nursing care or services), … or result in monetary or personal loss for the client.” Further, the College’s Professional Standards, state, “Nurses are … accountable for conducting themselves in ways that promote respect for the profession” and the Code of Conduct states, “Nurses do not steal, misuse, abuse or destroy the property of their clients”. The Member’s conduct clearly contravened these standards.

Allegation #2(a) in the Notice of Hearing is supported by paragraphs 5-11 and 29 in the Agreed Statement of Facts. The Member admitted that he misappropriated property from [the Patient] when he stole a phone and charger, glasses, a health card, and an ONA bag that belonged to [the Patient]. The Panel found that the items that the Member stole clearly belonged to [the Patient] and that stealing them amounted to misappropriation of property from a patient.

Allegation #3(a) in the Notice of Hearing is supported by paragraphs 5-11 and 30 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct when he contravened the standards of practice of the profession by misappropriating property that belonged to [the Patient] was relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in contravening the Code of Conduct, the Professional Standards and the TNCR Standard.

The Panel also finds that the Member’s conduct was dishonourable as it demonstrated an element of moral failing, dishonesty and deceit when he stole property from [the Patient]. The Member knew or ought to have known that his conduct was unacceptable and fell below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and, by extension, the profession. The Member stole from [the Patient] contravening the Code of Conduct. Nurses are expected to meet and demonstrate the standards of practice in their practice. By stealing from [the Patient], the Member brought shame on himself and the profession as these expectations were breached. This casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member’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 4 months. This suspension shall take effect from the date that the Member obtains an active certificate of registration in a practicing class 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 2 meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date the Member obtains an active certificate of registration in a practicing class. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

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

1. Code of Conduct, and

2. Therapeutic Nurse-Client Relationship;

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:

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;

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:

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;

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 18 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:

i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;

ii. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

iii. Provide the Member’s employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

c) The Member shall not practice independently in the community for a period of 12 months from the date the Member returns to the practice of nursing.

4. All documents delivered by the Member to CNO, the Expert, or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

College Submissions on Penalty

College Counsel made submissions which included the following.

The aggravating factors in this case were:

• The seriousness of the Member’s professional misconduct as it involved theft;

• The Member’s breach of [the Patient]’s trust which is the foundation of the nurse-client relationship;

• The Member’s conduct was intentional and for his own personal gain; and

• The Member’s misconduct brings discredit to the profession as a whole.

The mitigating factors in this case were:

• The Member had a contributing mental health issue;

• The Member was remorseful;

• The Member had no prior history of discipline with the College; and

• The incident was an isolated incident.

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. Owusu-Afriyie (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member was employed as a Personal Support Worker and misappropriated property from a patient when she accepted money from the patient totalling approximately $2,100.00 to assist her with the financial difficulty she was in. The member was providing care to the patient in a home setting. The penalty included an oral reprimand, a 5-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert, 18 months of employer notification and 18 months of no independent practice in the community.

CNO v. Cuison (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 a Registered Practical Nurse employed at a retirement home stole $85.00 and $40.00 from a patient’s purse. The penalty included an oral reprimand, a 4-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert, 18 months of employer notification and 18 months of no independent practice in the community.

Member’s Submissions on Penalty

The Member’s Counsel submitted that she agreed with the submissions of College Counsel as to the general principles applicable to penalty and asked the Panel to accept the Joint Submission on Order.

The Member’s Counsel further submitted the following mitigating factors:

• The Member admitted to the allegations and accepted responsibility for his conduct;

• The Member has been practicing for 18 years;

• This was a one-time occurrence;

• The Member has sought medical care;

• The Member has taken responsibility for his actions by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and

• The Member has saved the College time and expense by not proceeding with a contested hearing.

Lastly, the Member’s Counsel submitted the following case to the Panel:

CNO v. Lane (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member a Registered Practical Nurse employed at a retirement residence stole two restaurant gift cards valued at $75.00 each from a patient. The penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert, 18 months of employer notification and 12 months of no independent practice in the community.

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 Panel recognizes the seriousness of the Member’s conduct. The Member intentionally stole from [the Patient] for his own personal gain.

The proposed penalty provides for general deterrence through the 4-month suspension of the Member’s certificate of registration, which sends a clear message to the nursing profession that theft from a patient will not be tolerated.

The proposed penalty provides for specific deterrence through the oral reprimand and the 4-month suspension of the Member’s certificate of registration, which will deter the Member from engaging in similar conduct in his future practice.

The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert, which will provide the Member with an opportunity to reflect on and learn from his mistakes upon his return to the profession of nursing, if he chooses to do so.

Overall, the public is protected by the requirements that the Member notify his employers of this decision for 18 months from the date he returns to practice, as well as the 12-month restriction on independent practice once he returns to practice, if he chooses to do so.

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 what has been ordered in previous similar cases as demonstrated by the cases submitted and referred to by Counsel.

I, Lalitha Poonasamy, Public Member, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.