College of Nurses of Ontario v. Mark Lenders, 2024 CanLII 145650

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Lalitha Poonasamy Public Member, Chairperson Sandra Larmour Public Member Donna May, RPN Member Emilija Stojsavljevic, RPN Member Michael Schroder, NP Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

• and - )

MARK LENDERS ) NIITI SIMMONDS for Registration No. 08344053 ) Mark Lenders

) CHRISTOPHER WIRTH ) Independent Legal Counsel

) Heard: December 10, 2024, via videoconference

DECISION AND REASONS ON PENALTY

Publication Ban

By Order of the Discipline Panel dated December 18, 2023, pursuant to subsection s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, no one shall publish or broadcast the names of the patients or colleagues, or any information that could disclose the identities of the patients or colleagues, referred to orally or in any documents presented at the Discipline hearing of Mark Lenders.

In its Decision and Reasons on Liability released on August 15, 2024, this panel of the Discipline Committee (the “Panel”) made findings of professional misconduct against Mark Lenders (the “Member”). In particular, the Panel found that the Member committed acts of professional misconduct as alleged in paragraphs #1(a), (b), (e), (f) and #2(a), (b), (e) and (f) in the Notice of Hearing. As to allegations #2(a), (b), (e) and (f), the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

The Panel did not find that the Member committed acts of professional misconduct as alleged in paragraphs #1(d) and #2(d) and therefore dismissed these allegations.

The Panel granted the College’s request to withdraw allegations #1(c) and #2(c) in the Notice of Hearing.

The Panel reconvened on December 10, 2024 for the penalty hearing. The Panel’s decision and reasons on penalty are set out below.

Penalty Submissions

College Counsel’s Submissions on Penalty

College Counsel made submissions which included the following.

College Counsel advised that the parties had agreed to a Joint Submission on Order which provides:

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 this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense and within 6 months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by 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 Partial Agreed Statement of Facts,

4. a copy of the Panel’s Decision and Reasons on liability,

5. this Joint Submission on Order, and

6. if available, a copy of the Panel’s Decision and Reasons on penalty;

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. 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;

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 Partial Agreed Statement of Facts,

4. a copy of the Panel’s Decision and Reasons on liability,

5. this Joint Submission on Order, and

6. a copy of the Panel’s Decision and Reasons on penalty, once available;

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

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

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

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

College Counsel submitted that the Panel made findings on some, but not all of the allegations contained in the Notice of Hearing. The findings were based partly on admissions by the Member and partly based on allegations contested by the Member, whereby the Panel made findings of unprofessional conduct by the Member regarding his interactions with two colleagues in the workplace. Although the Notice of Hearing contained allegations pertaining to sexual harassment, the Panel did not make findings that the Member sexually harassed his colleagues, but rather the Panel found that the Member behaved unprofessionally toward two of his colleagues. Not all of the particular acts as alleged were found by the Panel to have occurred. The two allegations admitted to by the Member involved failing to notify a physician about a patient’s low urine output and administering intravenous fluids boluses to a patient without an order or authorizing mechanism.

The mitigating factors in this case were:

• The Member accepted responsibility for his conduct in regard to practicing out of scope; and

• The Member accepted responsibility for his conduct by entering into a Joint Submission on Order with the College.

The Joint Submission on Order provides for specific deterrence through the oral reprimand and the four-month suspension of the Member’s certificate of registration. The oral reprimand will assist the Member to understand how his conduct is perceived by the public and members of the profession. The four-month suspension of the Member’s certificate of registration will deter the Member from repeating this misconduct in the future.

The Joint Submission on Order provides for general deterrence through the four-month suspension of the Member’s certificate of registration and the 18 months of employer notification, which will send a message to the profession that there are serious consequences for this type of misconduct.

The Joint Submission on Order provides for rehabilitation and remediation through a minimum of two meetings with a Regulatory Expert and the review of the College’s publications, which will assist the Member with reflection and gaining insight into his misconduct. This will aid the Member with meeting the standards on his return to nursing practice.

Overall, the public is protected through the 18 months of employer notification, which will provide a heightened level of employer mentorship and oversight on the Member’s return to nursing practice.

Overall, the Joint Submission on Order will maintain the public’s confidence in the College’s ability to regulate the profession.

College Counsel submitted that there is a high threshold for departing from a Joint Submission on Order established in R. v. Anthony-Cook, 2016 SCC 43. The Panel must accept the Joint Submission on Order unless the Panel finds that it would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

College Counsel submitted the following cases to the Panel to demonstrate that the Joint Submission on Order fell within the range of similar cases from this Discipline Committee:

CNO v. Russon (Discipline Committee, 2018): This case proceeded on a contested basis as the member was not present nor represented. The case involved allegations of performing a controlled act without authorization and failing to ensure assessment of the two different clients. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 24 months of employer notification.

CNO v. Robichaud (Discipline Committee, 2016): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The case involved allegations of sexual harassment toward colleagues in the workplace. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, two meetings with a Nursing Expert and 12 months of employer notification.

CNO v. Phillips (Discipline Committee, 2016): This case proceeded on a contested basis as the member was not present nor represented. The case involved allegations of sexual harassment toward colleagues in the workplace. The penalty included an oral reprimand, a five-month suspension of the member’s certificate of registration, two meetings with a Nursing Expert and 12 months of employer notification.

The Member’s Counsel’s Submissions on Penalty

The Member’s Counsel made submissions which included the following.

The mitigating factors in this case were:

• The Member admitted to the clinical allegations;

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

• The allegations are now between five to seven years old, and the Member has been working successfully in a hospital and other clinical settings with no concerns raised regarding his professionalism with colleagues or his clinical practice; and

• The Member has cooperated with the College by entering into a Joint Submission on Order.

Remediation and rehabilitation are provided for through a minimum of two meetings with a Regulatory Expert, which will allow the Member to reflect on his practice and his professional standards.

General deterrence and specific deterrence are achieved through the four-month suspension of the Member’s certificate of registration.

The public is protected through the four-month suspension of the Member’s certificate of registration and through the 18 months of employer notification.

The Member’s Counsel submitted the following cases to the Panel to demonstrate that the Joint Submission on Order fell within the range of similar cases from this Discipline Committee:

CNO v. Rainville (Discipline Committee, 2019): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The case involved allegations of the member failing to advise the client to seek alternate care when there was a matter beyond the member’s scope of practice, discontinuing wound therapy without orders, and failing to document. The penalty included an oral reprimand, a two-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 12 months of employer notification.

CNO v. Harper (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The case involved allegations of unprofessional conduct toward the client, administering medications without authorization and failing to document. The penalty included an oral reprimand, a three-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 18 months of employer notification.

CNO v. Ward (Discipline Committee, 2023): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The case involved allegations of the member discussing his sex life with colleagues, providing his phone number to a patient and showing a tattoo in his groin area to a colleague. The penalty included an oral reprimand, a three-month suspension of the member’s certificate of registration, a minimum of two meetings with a Regulatory Expert and 18 months of employer notification.

CNO v. Walschots (Discipline Committee, 2006): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The case involved allegations of the member administering medications inconsistent with the standard and unprofessional conduct towards a student nurse. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, a meeting with the Director of Investigations and Hearings, and 18 months of employer notification.

The Member’s Counsel submitted that the Panel must not depart from a Joint Submission on Order unless the Panel finds that it would bring the administration of justice into disrepute or be contrary to the public interest.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

1. Mark Lenders (the “Member”) is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 4 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 practising class.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense and within 6 months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by 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 Partial Agreed Statement of Facts,

4. a copy of the Panel’s Decision and Reasons on liability,

5. this Joint Submission on Order, and

6. if available, a copy of the Panel’s Decision and Reasons on penalty;

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

1. Code of Conduct, and

2. 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;

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 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 Partial Agreed Statement of Facts,

4. a copy of the Panel’s Decision and Reasons on liability;

5. this Joint Submission on Order, and

6. a copy of the Panel’s Decision and Reasons on penalty, once available;

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

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

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

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

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 Joint Submission on Order would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Panel concluded that the Joint Submission on Order 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 four-month suspension of the Member’s certificate of registration. This will send a strong message to the profession that this type of misconduct will not be tolerated.

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

The proposed penalty provides for remediation and rehabilitation through a minimum of two meetings with a Regulatory Expert and the review of the College’s publications. This will allow the Member an opportunity to reflect on his misconduct and make appropriate changes so that his practice meets the standards on his return to practice.

Overall, the public is protected through the 18 months of employer notification. This will allow for a heightened level of employer oversight on the Member’s return to nursing practice.

The penalty sends a strong message to the Member, and the membership as a whole, that behaving unprofessionally towards colleagues and engaging in controlled acts without a physician’s order or authorizing mechanism will not be tolerated. The public’s confidence in the nursing profession will be strengthened by this message.

The Panel acknowledges that the Member has co-operated with the College and, by agreeing to the facts and a Joint Submission on Order, has accepted responsibility, which is a mitigating factor.

The penalty is also in line with what has been ordered in previous cases in similar circumstances as demonstrated by the cases submitted and referred to by College Counsel and the Member’s Counsel.

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