College of Nurses of Ontario v. Kevin Montero, 2024 ONCNO 142344

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Morgan Krauter, NP Chairperson

Sandra Larmour Public Member

Sarah Louwagie, RPN Member

Jijo Mathew, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for

) College of Nurses of Ontario

• and - )

KEVIN MONTERO ) NO REPRESENTATION for

Registration No. IG03786 ) Kevin Montero

) KIMBERLEY ISHMAEL

) Independent Legal Counsel

) Heard: December 9, 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 December 9, 2024.

The Allegations

The allegations against Kevin Montero (the “Member”) as stated in the Notice of Hearing dated October 23, 2024, are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that you were found guilty of an offence relevant to your suitability to practise, as follows:

a. On or about January 11, 2022, you were found guilty of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code, RSC 1985, c C-46 (the “Criminal Code”);

b. On or about January 11, 2022, you were found guilty of willfully entering falsified records into a computer rendering the computer data meaningless and useless (mischief), contrary to s. 430(5) of the Criminal Code;

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(1) of Ontario Regulation 799/93, in that while practising as a Registered Practical Nurse at Garden Terrace Nursing Home in Kanata, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet a standard of practice of the profession, and in particular:

a. On or about May 16, 2019, you failed to administer medications that had been ordered to be administered to several of your assigned patients;

b. On or about May 16, 2019, you falsely documented having administered medications to several of your assigned patients, when you had not administered their medications;

c. On or about May 16, 2019, you disposed of unused medications for several of your assigned patients in an insecure and inappropriate manner;

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(14) of Ontario Regulation 799/93, in that while practising as a Registered Practical Nurse at Garden Terrace Nursing Home in Kanata, Ontario (the “Facility”), you falsified a record relating to your practice, and in particular, on or about May 16, 2019, you falsely documented having administered medications to several of your assigned patients, when you had not administered their medications;

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(18) of Ontario Regulation 799/93, in that while registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse:

a. you contravened a term, condition or limitation on your certificate of registration, as provided by section 1.5(1)1.(i) of Ontario Regulation 275/94 of the Nursing Act, 1991, in that you failed to report findings of guilt arising in any jurisdiction relating to any offence to CNO, as follows:

i. On or about January 11, 2022, you were found guilty of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code, RSC 1985, c C-46 (the “Criminal Code”);

ii. On or about January 11, 2022, you were found guilty of willfully entering falsified records into a computer rendering the computer data meaningless and useless (mischief), contrary to s. 430(5) of the Criminal Code;

b. you contravened a term, condition or limitation on your certificate of registration, as provided by section 1.5(1)1.(ii) of Ontario Regulation 275/94 of the Nursing Act, 1991, in that you failed to report charges arising in any jurisdiction relating to any offence to CNO, as follows:

i. on or about September 17, 2019, in Ottawa, Ontario, you were charged with the following offences, which you did not report to CNO:

a. willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code;

b. willfully entering falsified records into a computer rendering the computer data meaningless and useless (mischief), contrary to s. 430(5) of the Criminal Code;

ii. on or about February 12, 2020, in Ottawa, Ontario, you were charged with the following offences, which you did not report to CNO:

a. while knowing a document to be forged, causing or attempting to cause any person to use, deal with or act on the document as if it were genuine, contrary to s. 368(1.1) of the Criminal Code;

b. twenty-six counts of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code;

c. twenty-six counts of willfully rendering property ineffective or inoperative (mischief), contrary to s. 430(1)(b) of the Criminal Code;

5. 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 with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse:

a. you contravened a provision of the Nursing Act, 1991, the Regulated Health Professions Act, 1991, or the regulations under either of those Acts, and in particular, section 85.6.1 of the Health Professions Procedural Code, in that you failed to report a finding of guilt of an offence to CNO, as follows:

i. On or about January 11, 2022, you were found guilty of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code, RSC 1985, c C-46 (the “Criminal Code”);

ii. On or about January 11, 2022, you were found guilty of willfully entering falsified records into a computer rendering the computer data meaningless and useless (mischief), contrary to s. 430(5) of the Criminal Code;

b. you contravened a provision of the Nursing Act, 1991, the Regulated Health Professions Act, 1991, or the regulations under either of those Acts, and in particular, section 85.6.4 of the Health Professions Procedural Code, in that you failed to report that you were charged with an offence to CNO, as follows:

i. on or about September 17, 2019, in Ottawa, Ontario, you were charged with the following offences, which you did not report to CNO:

a. willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code;

b. willfully entering falsified records into a computer rendering the computer data meaningless and useless (mischief), contrary to s. 430(5) of the Criminal Code;

ii. on or about February 12, 2020, in Ottawa, Ontario, you were charged with the following offences, which you did not report to CNO:

a. while knowing a document to be forged, causing or attempting to cause any person to use, deal with or act on the document as if it were genuine, contrary to s. 368(1.1) of the Criminal Code;

b. twenty-six counts of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code;

c. twenty-six counts of willfully rendering property ineffective or inoperative (mischief), contrary to s. 430(1)(b) of the Criminal Code;

6. 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 practising as a Registered Practical Nurse at Garden Terrace Nursing Home in Kanata, Ontario (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, as follows:

a. On or about May 16, 2019, you failed to administer medications that had been ordered to be administered to several of your assigned patients;

b. On or about May 16, 2019, you falsely documented having administered medications to several of your assigned patients, when you had not administered their medications;

c. On or about May 16, 2019, you disposed of unused medications for several of your assigned patients in an insecure and inappropriate manner;

d. You failed to report the following charges and/or findings of guilt to CNO as required:

i. on or about September 17, 2019, in Ottawa, Ontario, you were charged with the following offences, which you did not report to CNO:

a. willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code;

b. willfully entering falsified records into a computer rendering the computer data meaningless and useless (mischief), contrary to s. 430(5) of the Criminal Code;

ii. on or about February 12, 2020, in Ottawa, Ontario, you were charged with the following offences, which you did not report to CNO:

a. while knowing a document to be forged, causing or attempting to cause any person to use, deal with or act on the document as if it were genuine, contrary to s. 368(1.1) of the Criminal Code;

b. twenty-six counts of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code;

c. twenty-six counts of willfully rendering property ineffective or inoperative (mischief), contrary to s. 430(1)(b) of the Criminal Code;

iii. On or about January 11, 2022, you were found guilty of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code, RSC 1985, c C-46 (the “Criminal Code”);

iv. On or about January 11, 2022, you were found guilty of willfully entering falsified records into a computer rendering the computer data meaningless and useless (mischief), contrary to s. 430(5) of the Criminal Code;

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(a), #1(b), #2(a), #2(b), #2(c), #3, #4(a)(i), (ii), #4(b)(i)(a), (b), (ii)(a), (b), (c), #5(a)(i), (ii), #5(b)(i)(a), (b), (ii)(a), (b), (c), #6(a), #6(b), #6(c), #(6)(d)(i)(a), (b), (ii)(a), (b), (c), (iii) and (iv) in the Notice of Hearing. The Panel conducted an oral plea inquiry and was satisfied that the Member’s admissions were voluntary, informed and unequivocal. College Counsel advised the Panel that a technical issue had arisen with the written plea inquiry, and that all parties had agreed to proceed with an oral plea only. The Panel was satisfied with this.

Agreed Statement of Facts

College Counsel and the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:

THE MEMBER

1. Kevin Wayne Montero (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on December 18, 1996.

2. The Member was working as a full-time RPN documentation/float nurse at Garden Terrace Long-Term Care in Ottawa, Ontario (the “Facility”) from November 1, 2010, until his resignation on May 16, 2019, in relation to the incidents described below.

3. The Member also worked as a casual RPN with Community Nursing Registry of Ottawa providing home-care palliative nursing from November 1994 until September 2014.

THE FACILITY

4. The Facility is a long-term care residence in Ottawa, Ontario. There are approximately 160 residents living on five floors.

5. Floors 1 and 2 are secure locked-down wings for residents with dementia or residents at risk of wandering. Floors 3, 4 and 5 house residents who have cognitive conditions and/or dementia but do not wander.

6. The Member worked day and evening shifts. Day shifts are from 7 AM to 3 PM and evening shifts are from 3 PM to 11 PM.

7. As the documentation/float nurse, the Member’s job involved being assigned to cover any clinical care shortages at the Facility. When not covering care shortages, the Member entered assessments that had been completed by other nurses in paper format into the Facility’s main computer.

8. When working as the float nurse, the Member was typically assigned to care for approximately 32 residents. He would work alongside regulated and non-regulated health professionals to provide resident care.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Failed to Administer Patient Medications and Falsified Facility Records

9. A personal support worker (PSW) who worked alongside the Member on the morning of May 16, 2019, became concerned that the Member may not have been administering all of the residents’ medication, and brought her observations to management, who investigated the matter.

10. The Facility discovered significant numbers of pills and vitamins in the garbage bag of the medication cart the Member had been using that day.

11. The Facility identified that the Member failed to administer medication to approximately 26-29 residents on May 16, 2019, including the following types of medication: Dilaudid, antinauseants, cholesterol medication, blood clot medication, fluid retention medication, narcotics, insulin, thyroid medications, antipsychotics, antidepressants, diuretics, Synthroid, and blood pressure and general heart medications.

12. The Member falsely documented in each resident’s Medication Administration Record that he had administered all their ordered medications that day.

13. The Facility suspended the Member immediately and called the police.

14. If the Member were to testify, he would say that, with respect to the insulin that he did not administer, he had determined that the resident’s blood sugar was low.

Failed to Report Charges and Findings of Guilt to CNO

15. The police laid multiple criminal charges against the Member relating to his conduct on May 16, 2019:

• willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code;

• willfully entering falsified records into a computer rendering the computer data meaningless and useless (mischief), contrary to s. 430(5) of the Criminal Code;

• while knowing a document to be forged, causing or attempting to cause any person to use, deal with or act on the document as if it were genuine, contrary to s. 368(1.1) of the Criminal Code;

• twenty-six counts of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to s. 430(1)(d) of the Criminal Code; and,

• twenty-six counts of willfully rendering property ineffective or inoperative (mischief), contrary to s. 430(1)(b) of the Criminal Code.

16. The Member did not report any of these criminal charges to CNO.

17. On January 11, 2022, the Member pled guilty to, and was found guilty of, two counts of mischief (one under section 430(1)(d) of the Criminal Code, and one under section 430(5) of the Criminal Code). The remaining 53 charges were withdrawn.

18. On March 29, 2022, the Member was sentenced to a conditional discharge and twelve months’ probation, with conditions that included periodic reporting to his probation officer and 80 hours’ community service.

19. The Member did not report the findings of guilt to CNO.

20. If the Member were to testify, he would say that he did not report his criminal charges or findings of guilt to CNO because he understood that CNO was already aware of them.

CNO STANDARDS OF PRACTICE

21. In the forward to CNO’s Code of Conduct that was in effect at the time of the incidents of professional misconduct, readers are prompted to consider the following question: “What do you expect of Ontario nurses?”

22. The Code of Conduct answers that question by articulating six principles, under which are several elaborative statements, setting out what the public can expect during interactions with members of the profession.

23. An overarching theme in the Code of Conduct is that nurses treat patients with compassion while providing safe, competent care. This requires that nurses identify how personal values may affect their practice and approach to patient interactions. Importantly, nurses recognize and work within the limits of their knowledge, skill, and judgment.

24. Upholding public confidence in the profession is a priority. The Code of Conduct encourages nurses to continuously reflect on how to improve their own practice. However, patient advocacy must never come at the expense of patient welfare and by operating outside the bounds of the law.

25. Nurses do not impose their beliefs and biases on patients by disregarding care plans and operating outside their legislated scope of practise. Nurses show respect for patient autonomy by involving them in making decisions about treatment and know when to consult and collaborate with other regulated healthcare providers, such as physicians.

26. CNO’s Decisions About Procedures and Authority Standard outlines the expectations of nurses when determining if: they have the authority to perform a procedure; it is appropriate for them to perform a particular procedure; and they are competent to perform the procedure. This document indicates a nurse should ensure that client records reflect the procedures that were performed and the rationale for performing the procedure is based on achieving the best outcomes for the client. Nurses have a responsibility to only engage in activities that they have the legislated authority to perform. Nurses cannot decide on their own which medications patients should receive or not based on their own belief about the efficacy of the prescription. Nurses cannot change care plans without consultation and cannot falsify records or charts to cover up their actions.

27. Patients trust that nurses act in their best interest and within the limits of Ontario law. This is a faith in the profession that can be quickly eroded when nurses engage in unilateral, clandestine actions that directly impact patients’ physical health and overall wellbeing.

28. As reinforced in the Therapeutic Nurse-Client Relationship Standard, patients are often in vulnerable states when they interact with nurses. Patients bestow great degrees of trust in nurses. To disregard patients’ care plans is a gross breach of trust.

29. Patients depend on nurses to keep accurate records of their health history, care plans, assessments, and treatments. Inaccurate, tardy and/or incomplete documentation creates extreme risk for adverse outcomes to patients. As discussed at length in the Documentation Standard and Medication Standard, patient safety is jeopardized when medications are not administrated as ordered by a physician or authorized practitioner. When patient records do not reflect the medication regiment being followed, it impedes the ability of the patient’s healthcare team to develop a responsive plan of care.

30. If the Member were to testify, he would acknowledge that by stepping outside his scope of practice, he seriously violated the trust of his patients, their families, and the public, all of whom should be able to expect nurses to provide safe, competent care to their loved ones within the boundaries of the nurse’s scope.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

31. The Member admits that he committed an act of professional misconduct as alleged in paragraphs 1(a) and 1(b) of the Notice of Hearing, in that he was found guilty of an offence relevant to his suitability to practise, and in particular, that he was found guilty of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to section 430(1)(d) of the Criminal Code, as well as being found guilty of willfully entering falsified records into a computer rendering the data meaningless and useless (mischief), contrary to section 430(5) of the Criminal Code, in the Superior Court of Justice in Ottawa, Ontario on January 11, 2022, as described in paragraphs 17-20 above.

32. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2(a), 2(b) and 2(c) 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 9-30 above.

33. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, in that he falsely documented having administrated medication to several of his assigned patients when he had not administrated the medications, as described in paragraphs 9-14 above.

34. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 4(a)(i),(ii) and 4(b)(i)a., b.,(ii)a., b., c. of the Notice of Hearing and, in particular, that he contravened a term, condition or limitation on his certificate when he failed to report criminal charges and findings of guilt to CNO as required by section 1.5(1)1.(i) and (ii) of Ontario Regulation 275/94 of the Nursing Act, 1991, as described in paragraphs 15-20 above.

35. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 5(a)(i), (ii) and 5(b)(i)a.,b.,(ii)a., b., c. of the Notice of Hearing and, in particular, that he failed to report criminal charges and findings of guilt to CNO as required by section 85.6.1 and section 85.6.4 of the Health Professions Procedural Code, as described in paragraphs 15-20 above.

36. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 6(a), 6(b), 6(c) and 6(d)(i) a., b.,(ii)a., b., c. (iii) (iv) of the Notice of Hearing and, in particular, that he engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional, as described in paragraphs 9-20 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(a), #2(b), #2(c), #3, #4(a)(i), (ii), #4(b)(i)(a), (b), (ii)(a), (b), (c), #5(a)(i), (ii), #5(b)(i)(a), (b), (ii)(a), (b), (c), #6(a), #6(b), #6(c), #6(d)(i)(a), (b), (ii)(a), (b), (c), (iii) and (iv) of the Notice of Hearing. With respect to allegations #6(a), #6(b), #6(c), #6(d)(i)(a), (b), (ii)(a), (b), (c), (iii) and (iv), 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.

Allegations #1(a) and #1(b) in the Notice of Hearing are supported by paragraphs 17 - 20 and 31 in the Agreed Statement of Facts. The Panel found and the Member admitted that while working as a Registered Practical Nurse (“RPN”) at Garden Terrace Long-Term Care (the “Facility”), he committed an act of professional misconduct when he was found guilty of an offence relevant to his suitability to practice in that he was found guilty of willfully interfering with the lawful use and enjoyment of property (mischief), contrary to section 430(1)(d) of the Criminal Code. The Member was also found guilty of willfully entering falsified records into a computer rendering the data meaningless and useless (mischief), contrary to section 430(5) of the Criminal Code. These findings of guilt are in relation to an incident that happened at the Facility where the Member was employed as an RPN in the course of his assigned duties.

Allegations #2(a), #2(b) and #2(c) in the Notice of Hearing are supported by paragraphs 8 - 30 and 32 in the Agreed Statement of Facts. The Panel found and the Member admitted that he committed an act of professional misconduct when he contravened a standard of practice, specifically the College’s Code of Conduct and the Decisions About Procedures and Authority Standard in which nurses are obligated to provide the public with compassionate, safe and competent care by working within the limits of their knowledge, skill and judgement and never operating outside the scope of practice within applicable legislation. The TNCR Standard specifies that to disregard a patient’s established plan of care is a gross violation of the trust placed in nurses. The Medication Standard and the Documentation Standard discuss at length how patient safety is jeopardized when medications are not administered as ordered by an authorized prescriber or if medication administration is not accurately reflected through the documentation in the patient record. The Member acted upon his personal belief that residents in the Facility were overmedicated. This was a gross violation of the described standards. The Member then attempted to cover up his actions by falsifying documentation of the medications he had not administered.

Allegation #3 in the Notice of Hearing is supported by paragraphs 7 - 15, 17, 26, 29 and 33 in the Agreed Statement of Facts. The Panel found and the Member admitted that he committed an act of professional misconduct when he falsified a record relating to his practice by falsely documenting that he administered medication to several patients assigned to his care when he had not administered the medications and had disposed of some of the medications in the garbage. This was only brought to light because of the observations of a Personal Support Worker who was concerned enough about the Member’s actions to alert management.

Allegations #4(a)(i), (ii), #4(b)(i)(a), (b), (ii)(a), (b) and (c) in the Notice of Hearing are supported by paragraphs 15 - 24 and 34 in the Agreed Statement of Facts. The Panel found and the Member admitted that he committed an act of professional misconduct when he contravened a term, condition or limitation on his certificate when he failed to report criminal charges and findings of guilt in the Superior Court of Justice in Ottawa, Ontario on January 11, 2022, to the College as required by section 1.5(1)1.(i) and (ii) of Ontario Regulation 275/94 of the Nursing Act, 1991.

Allegations #5(a)(i), (ii), #5(b)(i)(a), (b), (ii)(a), (b) and (c) in the Notice of Hearing are supported by paragraphs 15 - 24 and 35 in the Agreed Statement of Facts. The Panel found and the Member admitted that he committed an act of professional misconduct when he failed to report criminal charges and findings of guilt in the Superior Court of Justice in Ottawa, Ontario on January 11, 2022, to the College as required by section 85.6.1 and section 85.6.4 of the Health Professions Procedural Code.

Allegations #6(a), #6(b), #6(c), #6(d)(i)(a), (b), (ii)(a), (b), (c), (iii) and (iv) are supported by paragraphs 9 - 30 and 36 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in disregarding several patients’ established plans of care as well as failing to accurately document medications in the patients’ records 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 Decisions About Procedures and Authority Standard, the TNCR Standard, the Documentation Standard and the Medication Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through falsifying patient records to cover up that he had not administered patients’ medications as ordered. Had the Personal Support Worker not brought their observations to the attention of management, the Member’s conduct may have gone undetected. The Member knew or ought to have known that his conduct was unacceptable and fell well 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’s lack of regard for the safety of patients in his care, as well as the imposition of his own personal beliefs about over medication upon his patients, 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 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 orally 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 8 months. This suspension shall take effect from the date 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 a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense within 6 months from the date the Member obtains an active certificate of registration in a practicing class. 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 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,

2. Documentation,

3. Medication, and

4. Scope of Practice;

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 [and Nurses’ Workbook];

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) Within 12 months from the date the Member obtains an active certificate of registration in a practicing class , or a longer timeframe if approved by CNO, the Member shall successfully complete at the Member’s own expense the Ethics and Boundaries Program - Canada virtual course offered through CPEP (Center for Personalized Education for Professionals), and shall provide proof to CNO of an “Unconditional Pass” in relation to each portion of the course;

c) To comply with Term 3(b), the Member agrees that CNO will release any relevant information from the investigation and disciplinary proceeding to CPEP to support his learning and engagement with the course, including, but not limited to, Letter(s) of Report, interview summaries, records, the Panel’s Order, the Notice of Hearing, the Agreed Statement of Facts, the Joint Submission on Order, a copy of the Panel’s Decisions and Reasons (once available) and/or other documentation CNO deems appropriate;

d) For a period of 18 months from the date the Member returns to the active practice of nursing, the Member will notify their employer(s) of the outcome of the disciplinary proceeding. To comply, the Member is required to:

i. Provide the Member’s employer(s) with a copy of the following documents at least 14 days prior to commencing employment in any nursing position:

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;

ii. Ensure that CNO is notified of the name, address, and contact information of each employer at least 7 days prior to commencing employment in any nursing position;

iii. Only practice nursing for an employer who agrees to, and does, forward a report to CNO within 14 days of the Member commencing employment in any nursing position, confirming:

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

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, and

3. that they agree to perform random spot audits of the Member’s documentation practices at the following intervals and provide a report to CNO regarding the Member’s practice after each audit:

a. the first audit shall take place within 3 months from the date the Member begins or resumes employment with the employer,

b. the second audit shall take place within 6 months from the date the Member begins or resumes employment with the employer,

c. the third audit shall take place within 9 months from the date the Member begins or resumes employment with the employer, and

d. the fourth audit shall take place within 12 months from the date the Member begins or resumes employment with the employer;

iv. The audits shall be completed by one employer, and are not a shared accountability across several employers;

v. The audits shall, on each occasion, involve the following:

1. reviewing a random selection of at least 10 of the Member’s patient charts and/or electronic medication administration record entries to ensure they meet both CNO and employer standards, and

2. discussing (by telephone or in person), with at least 4 of the Member’s patients to ensure that the Member provided the necessary care to the patients and that his documentation accurately reflects the care provided; and

e) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the active 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 Member’s deliberate and repeated conduct in the care of 26-29 patients in a single episode;

• The element of deception as the Member chose to dispose of many medications and documented them as having been administered, which had the Personal Support Worker not brought to the attention of management would never have been found out; and

• The Member also operated far outside his of scope of practice and the incident resulted in criminal findings of guilt in the Superior Court of Justice, making the conduct serious.

The mitigating factors in this case were:

• The Member’s willingness to cooperate with the College by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College, avoiding the need for a contested hearing;

• The Member’s expressed desire to engage in rehabilitation; and

• The Member has no prior discipline history with the College.

College Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee. College Counsel noted that the circumstances of the case before this Panel are particularly unique and accordingly differ more than is customary from the facts in the cases presented to the Panel. Nevertheless, College Counsel submitted that the following cases are still of assistance to the Panel as precedents demonstrating that the proposed penalty in this case is reasonable:

CNO v. Davis (Discipline Committee, 2020): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member admitted to failing to respond to a patient choking, failing to administer medications while documenting he had on multiple occasions and/or failed to follow up on medications that had not been administered, failing to administer medication according to orders on multiple occasions, failing to appropriately dispose of medication, failing to check a patient’s blood sugar as ordered, knowingly using a forged document for a disability claim and failing to report charges and convictions to the College. The panel made findings of professional misconduct on all allegations. The penalty included an oral reprimand, a 6-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert, 18 months of employer notification, 4 random spot audits of the member’s practice, at least monthly meetings with a mentoring nurse in the member’s workplace for 12 months and 18 months of no independent practice in the community.

CNO v. Willard (Discipline Committee, 2020): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member admitted to driving with a suspended license in the course of her duties, failing to attend to assigned patients but being paid for doing so on multiple occasions, failing to assess or reassess patients as per policy, failing to document care provided on multiple occasions. The panel made findings of professional misconduct on all allegations. The penalty included an oral reprimand, a 12-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert, 24 months of employer notification, 6 random spot audits of the member’s documentation and 24 months of no independent practice in the community.

CNO v. Rubini-Catalano (Discipline Committee, 2020): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member admitted to administering medication contrary to an order and attempting to alter documentation of such, failing to administer medication as ordered on multiple occasions, collecting disability benefits from one employer while still practicing at another employer, administered the incorrect medication to a patient, failing to transcribe new medication orders onto the patient’s record, failing to obtain an order and consent to apply patient restraints and failing to document their use, drawing blood from a patient without an order and or failing to verify the patient’s identity before drawing a blood sample, falsely affirming that they had never been the subject of a College investigation during the course of obtaining nursing employment. The panel made findings of professional misconduct on all allegations. The penalty included an oral reprimand, a 7-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert, 24 months of employer notification, at least monthly meetings with a mentoring nurse in the member’s workplace for 12 months and 24 months of no independent practice in the community.

Member’s Submissions on Penalty

The Member indicated that they agreed with the College’s submissions and asked the Panel to accept the Joint Submission on Order.

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 an 8-month suspension of the Member’s certificate of registration, as well as an oral reprimand, which will communicate to members of the profession that this type of conduct will not be tolerated.

The proposed penalty provides for specific deterrence through the personal consequences of an 8-month suspension of the Member’s certificate of registration, as well as the oral reprimand, which will signal to the Member that this conduct will result in serious consequences.

The proposed penalty provides for remediation and rehabilitation through a minimum of 2 meetings with a Regulatory Expert, completion of an ethics and boundaries education program, as well as 18 months of employer notification and 4 random spot audits of the Member’s documentation. The safeguards will rehabilitate the Member while ensuring he is monitored and supported following his return to practice.

All aspects of the ordered penalty satisfy the overall mandate of the Discipline Committee to ensure the public is protected and by the 18 months of employer notification and 18 months of no independent practice in the community.

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.

I, Morgan Krauter, 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.