College of Nurses of Ontario v. Melissa Dore, 2024 CanLII 146152

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Lynn Hall, RN Member Sandra Larmour Public Member

BETWEEN:

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

• and - )

MELISSA DORE ) NO REPRESENTATION for Registration No. 0000257 ) Melissa Dore

) PATRICIA HARPER ) Independent Legal Counsel

) Heard: January 8, 12, 15, 22, 29, ) May 8 and 14, 2024

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”), commencing on January 8, 2024, via videoconference.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing public disclosure and banning publication or broadcasting of the names of the patients, or any information that could disclose the identities of the patients referred to orally or in any documents presented in the Discipline hearing of Melissa Dore. The Member did not object to the College’s motion for a Publication Ban.

The Panel considered the submissions of College Counsel and the Member and decided that there be an order preventing public disclosure and banning publication or broadcasting of the names of the patients, or any information that could disclose the identities of the patients referred to orally or in any documents presented in the Discipline hearing of Melissa Dore.

The Allegations

The allegations against Melissa Dore (the “Member”) as stated in the Notice of Hearing dated August 15, 2023 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 you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, and in particular:

(a) you issued medical exemption letters in relation to vaccines for COVID-19 when such an exemption was not indicated and/or appropriate for some, or all, of the patients listed in Appendix “A” in or around 2021 and/or 2022; and/or

(b) you issued medical exemption letters in relation to vaccines for COVID-19 without appropriately assessing some, or all, of the patients listed in Appendix “A” in or around 2021 and/or 2022.

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(30) of Ontario Regulation 799/93, in that you charged a fee that is excessive in relation to the service for which it is charged, and in particular you charged some, or all, of the patients listed in Appendix “B” a fee for writing and/or distributing exemption letters in relation to vaccines for COVID-19 that was excessive for the services provided in or around 2021 and/or 2022.

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 you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular:

(a) you issued medical exemption letters in relation to vaccines for COVID-19 when such an exemption was not indicated and/or appropriate for some, or all, of the patients listed in Appendix “A” in or around 2021 and/or 2022;

(b) you issued medical exemption letters in relation to vaccines for COVID-19 without appropriately assessing some, or all, of the patients listed in Appendix “A” in or around 2021 and/or 2022; and/or

(c) you charged some, or all, of the patients listed in Appendix “B” a fee for writing and/or distributing exemption letters in relation to vaccines for COVID-19 that was excessive for the services provided in or around 2021 and/or 2022.

Member’s Plea

The Member denied the allegations set out in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member is a Nurse Practitioner (“NP”), registered with the College since 1999. At the material time the Member was working independently. This hearing pertains to the Member’s conduct during the COVID-19 pandemic. Specifically, the allegations are with respect to alleged exemption letters to patients for COVID-19 vaccines between September 2021 and February 2022, the assessments she performed in relation to those exemptions, and the fees she charged.

The issues for the Panel to decide were:

• Were all or most of the exemption letters provided by the Member medical exemptions?

• If so, did the Member issue medical exemption letters in relation to vaccines for COVID-19 when such an exemption was not indicated and/or appropriate for some, or all, of the patients listed in Appendix “A”?

• If so, did the Member issue medical exemption letters in relation to vaccines for COVID-19 without appropriately assessing some, or all, of the patients listed in Appendix “A” in or around 2021 and/or 2022?

• Did the Member charge the patients listed at Appendix “B” a fee that is excessive in relation to the service for which it is charged, for writing and/or distributing exemption letters in relation to vaccines for COVID-19?

The Panel heard evidence from one expert witness on behalf of the College. The Member testified on her own behalf. The Panel received a total of 41 exhibits to consider.

Having considered the evidence and the onus and standard of proof, and for the reasons set out below, the Panel found the Member committed professional misconduct further to allegations 1(a) and 1(b) by failing to meet the standards of practice. The Panel also found that the Member engaged in conduct that would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional regarding allegations #3(a) and (b).

The Panel found that the College did not prove allegations #2 or #3(c) on the balance of probabilities and those allegations are dismissed.

Evidence

The Parties tendered a Joint Book of Evidence which contained the following:

Directive 6 Resource Guide, Version 1 (Exhibit #19)

Directive 6 Resource Guide, Version 2 (Exhibit #20)

Chief Medical Officer of Health (CMOH) Directive 6 (Exhibit #21)

CMOH Directive 6 (Exhibit #22)

Code of Conduct (Exhibit #23)

Nurse Practitioner Standard (Exhibit #24)

Independent Practice Guideline (Exhibit #25)

Therapeutic Nurse-Client Relationship Standard (Exhibit #27)

Directive 6 and the Resource Guide to Directive 6 explained that Directive 6 was meant for covered organizations, those being Public Hospitals, Service Providers with the Home Care and Community Services Act, Local Health Integration Networks, and Ambulance Services. Directive 6 is a directive to any covered health care organization and is to be followed by such organizations to protect the public’s health. The CMOH provided direction that:

1. All Covered Organizations must establish, implement and ensure compliance with a COVID-19 vaccination policy that requires its employees, staff, contractors, volunteers and students to provide:

a. Proof of full vaccination against COVID-19; or

b. Written proof of a medical reason, provided by a physician or registered nurse in the extended class that sets out: (i) a documented medical reason for not being fully vaccinated against COVID-19, and (ii) the effective time period for the medical reason; or

c. Proof of completing an educational session approved by the Covered Organization about the benefits of COVID-19 vaccination prior to declining vaccination for any reason other than a medical reason. The approved session must, at a minimum address:

i. How COVID-19 vaccines work;

ii. Vaccine safety related to the development of the COVID-19 vaccines;

iii. The benefits of vaccination against COVID-19;

iv. Risks of not being vaccinated against COVID-19; and

v. Possible side effects of COVID-19 vaccination

Directive 6 provides direction to the organizations when employees are not vaccinated as required by 1(a).

As will be set out further below, the parties had different positions on the applicability and interpretation of Directive 6.

College Evidence

In addition to the Exhibits in the Joint Book of Evidence, College Counsel entered 24 documents as exhibits.

Key Exhibits

College Counsel submitted into evidence Exhibit #2 Copies of Exemption Forms. The 396 forms were letters that were provided to patients and/or family members by the Member, upon request from patients.[i] The letters were provided to the clients and/or their family members as exemptions from receiving the COVID-19 vaccine.

College Counsel submitted into evidence Exhibit #4, Patient Records. Most Patient Records have no evidence of patient identifiers, such as birth dates, OHIP numbers or emergency numbers. When an exemption letter was provided for medical or informed consent reasons, there was no evidence of a completed patient assessment, no medical history in most cases, and no contact with or referral to other medical practitioners when necessary, such as an allergist or health care professional with an expertise in mental health.

College Counsel entered into evidence, Exhibit #5, Correspondence with patients, which included email correspondence between clients and the Member. The email correspondence contained requests from clients for an exemption letter for themselves and/or others and a response from the Member with a copy of the exemption letter(s) attached.

College Counsel entered into evidence, Exhibit #7, Education Session Slide Deck. The Member designed and created an online slide show/course that the Member presented to patients who requested exemptions from the COVID-19 vaccine. The education session developed by the Member was not approved by a covered organization to which Directive 6 applied.

The Member provided an exemption letter when a client emailed to state they watched some or all of the presentation. The evidence demonstrated that the Member did not capture attendance and was not able to prove who attended the sessions prior to issuing the exemption letters.

College Counsel entered into evidence, Exhibit #13, Medical Exemptions to COVID-19 V.1, Exhibit #14, MOH Medical Exemptions to COVID-19 V.2, and Exhibit #15, MOH Medical Exemptions to COVID-19 V.3. The Medical Exemptions to COVID-19 documents were intended to assist physicians/specialists and nurse practitioners in evaluating contraindications or precautions to COVID-19 vaccination that might warrant a medical exemption.

Dr. Michelle Acorn (“Dr. Acorn”), Expert Witness

Dr. Acorn was called to testify by the College and was qualified by the Panel as an expert on the Standards of Practice.

Dr. Acorn testified to Nurse Practitioners’ (or “NPs”) professional obligations and accountability when issuing exemptions for COVID-19 vaccinations. An exemption for the COVID-19 vaccination might be indicated in limited specific circumstances. According to Dr. Acorn, Nurse Practitioners need to be aware of the very few acceptable reasons to issuing a medical exemption for the COVID-19 vaccine, such as, for example, the patient has a confirmed severe allergy or an adverse (anaphylactic) reaction to a previous COVID-19 vaccine or to any of its components that cannot be mitigated and/or the patient has a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine. Resources were available to ensure the prescriber of the exemption letter had the most up-to-date information regarding Medical Exemptions to COVID-19 Vaccination (Version 1.0, September 14, 2021, Version 2.0, December 24, 2021, Version 3, January 12, 2022), the CNO website, and the Ministry of Health COVID-19 website.

Dr. Acorn identified the obligations and accountabilities of Nurse Practitioners prior to issuing exemptions for COVID-19 vaccinations. The required obligations and accountabilities included the establishment of a therapeutic nurse-client relationship wherein the Nurse Practitioner would assess the patient and determine what treatment or care is appropriate in each individual’s particular circumstances. She further testified that evidence-based tools are used for assessing whether an exemption is indicated. At the relevant time the available tools included the Ministry of Health’s Guidelines to assist physicians/specialists and NPs in evaluating contraindications to COVID-19 vaccination that could warrant medical exemption. Full health assessments (including any follow up and care coordination to complete) are required before concluding that exemptions are indicated. The specific tool that was available to Nurse Practitioners with respect to COVID-19 was the Ministry of Health Guidelines that inform the standard of practice and specific assessments expected of an NP issuing exemptions for the COVID-19 vaccination. The Guidelines provide reliable information using scientific tables developed with input from the World Health Organization and specialists with great expertise in the subject area. An appropriate assessment would include taking patient histories and engaging in an exploration of each individual patient’s presenting concern(s) and documentation of all the above in a complete, securely stored record.

Dr. Acorn explained that if a patient requested an exemption from an NP, the NP is professionally obliged to probe and explore the request with the patient, given the potential benefits of the vaccine. The NP’s responsibilities include educating the patient on the topic and providing information on the benefits and risks of vaccination. NPs are obliged to protect the public and minimize risk of harm, particularly with respect to clinical decisions relating to public health matters. All inquiries and the complete assessment must be documented in the patient’s chart.

Dr. Acorn explained that Directive 6, a Resource Guide issued by Ontario’s Chief Medical Officer of Health, was specifically intended to provide information to hospitals and home and community health organizations to support these organizations in developing COVID-19 vaccination policies.

Dr. Acorn testified that the Member failed to establish therapeutic relationships with each patient, failed to offer objective evidence-informed information about the service requested, and failed to consider the context in which the patients intended to use the exemption letters. For each patient, the Member was obliged to conduct a health assessment and document the discussion with the patient to demonstrate that she provided sufficient information for the patient to provide informed consent to declining the treatment. Such an assessment and documentation occurs after the initiation of a therapeutic nurse-client relationship. Without the therapeutic nurse-client relationship there was no ability to weigh the requested exemption against public protection. For example, there was no way to determine if the client was working in high-risk areas or other vulnerable settings and/or whether they have access to protective equipment. All of these inquiries were required to have been adequately assessed and documented in the Member’s patient records and the Member did not do so.

In Dr. Acorn’s view, the Member’s records did not reflect that she engaged in appropriate assessments or completed discussions when educating patients when the patient had hesitancy surrounding COVID-19 vaccines or was requesting an exemption from the COVID-19 vaccine. The Member did not meet or speak to several of the people for whom she wrote exemptions. Her communication with these individuals was restricted to emails.

Dr. Acorn indicated that Exhibit #5, Patient Records, had examples of not meeting the standards.

By way of example, a patient who experienced symptoms post first vaccine injection ([A]) required mandatory second dose of vaccine by their employer. The patient was assessed by allergists who refused to provide an exemption letter. The Member provided medical exemption letters to the patient without investigation or discussion with the patient’s health care providers who had denied an exemption letter. Furthermore, there was no documentation of consequences of the first dose experience, the Member’s documentation lacked information, including what prior vaccination the patient had received, the names of the allergist who refused to give the medical exemption, why the allergist refused to give the exemption, and whether there were alternatives provided to the patient. The records documented by the Member with respect to patient [A] lacked a completed assessment.

The Member also provided exemption letters to individuals that she did not communicate with directly when she provided exemption letters for several family members upon request of one family member. An example of which was patient [B] at Exhibit #4.

Furthermore, there was no evidence that the Member reviewed clients’ medical records. In the Nurse Practitioner Standard, the NP integrates an evidence-informed knowledge base with advanced assessment skills to obtain the information necessary for identifying client diagnoses, strengths and needs.

Dr. Acorn testified that the Telepractice factsheet, which reflects requirements of CNO Practice Guideline - Telepractice, outlines principles to ensure nurses are accountable for their actions when using virtual settings, such as ensuring a therapeutic relationship has been formed, that the individuals are actively engaged and understanding the information, and that there are no visual deficits or hearing issues.

In Dr. Acorn’s view, the Member did not tailor the information she provided to clients appropriately, as she provided all of her clients the same slide deck presentation via Zoom, without documenting any further questions or discussions, and without considering health literacy and/or facility for English to ensure understanding of the presentation. The Member did not document taking any steps to ensure that the patients understood the content of the presentation, the benefits and risks of vaccination, and the benefits and risks of not receiving a vaccination.

In Dr. Acorn’s view, the Member did not meet her professional obligations regarding documentation. Most of the medical records at Exhibit #4 did not include the dates and times of the interactions with the patients, name of the patient being discussed where applicable, reason for the interaction, information provided/received, patient information provided/received, advice or information given/received, any follow-up required/provided, any agreement/consensus about the plan of care and the documenting nurse’s signature and designation. The Member did not collect OHIP numbers or verify that the sessions were only being provided to Ontario residents. Several documents suggested that the patients were out of province in Quebec and Nunavut. An example of which is information regarding patient [C] Exhibit #5.

Dr. Acorn testified that the Member did not appropriately store health records. There was no documentation to establish that the Member ensured that the videoconference was secure, or that any steps were taken to maintain patients’ privacy. Practitioners need to ensure that the information they are sending by email is clear, secure, neutral and understood. The Member communicated using Gmail and there is no documentation of the steps taken to maintain the security of the data.

Furthermore, some communications by the Member were not value-neutral, such as where the Member repeatedly wrote to patients whom she provided COVID-19 vaccine exemptions, “Congratulations on thinking for yourself………” and “kudos to you all for thinking independently and stay strong!!” and “Congrats to you and your family for thinking for yourselves as there are not too many of us left out there” (Exhibit #5).

In most cases the Member described the exemption letters as being based on “informed consent”. In Dr. Acorn’s opinion regarding the exemption letters based on “informed consent”, the Member was providing a service (the exemption letter) and the patient was declining a treatment (COVID-19 vaccination). The Member was obliged to conduct a health assessment and document the discussion with the patient to demonstrate that she provided sufficient information for the patient to provide informed consent to declining the treatment. The Member was required to establish a therapeutic relationship with each patient, consider the context in which the patient intended to use the exemption letters and adequately document in the patient’s record. Every individual patient would need to give informed consent, and the education and interactions between the Member and the patients as documented did not meet a Nurse Practitioner’s requirement to obtain informed consent prior to providing a letter of exemption for the patient from vaccination. There is no documentation that the Member’s patients had an opportunity to ask questions or that the Member took steps to ensure that her patients understood the information she provided, and/or risks and benefits of the COVID-19 vaccination intervention.

A small number of exemption letters issued by the Member were specifically referred to as “medical exemptions” by the Member. Patient [D], for example, attended an in-person assessment and it was not clear where this assessment took place. The Member did not record any identifying information for [Patient D], such as their birthdate or OHIP number. [Patient D] complained of increased stress and anxiety, palpitations, difficulty sleeping, and an inability to concentrate. There were no documented vital signs, or a completed health history, and no documentation of any follow-up or referrals to ensure [Patient D]’s mental health and well-being. The Member was unaccountable and did not respond appropriately to [Patient D]’s medical concerns. (Exhibit #5).

In Dr. Acorn’s view the Member’s charge for the service she provided was not extremely excessive on its face. Dr. Acorn did note that the Member used templates for the exemption letters and the Member charged patients on an individual basis for exemption letters based on an education presentation that was delivered to group.

Dr. Acorn concluded that the Documentation Standard, Professional Standards, Ethics Standard and TNCR Standard were breached

Member’s Evidence

The Member testified that she relied on the Resource Guide to Directive 6 that stated proof of attending an educational sessional was an option to be able to receive or provide an exemption for the COVID-19 vaccine.

The Member utilized the Moderna product monograph and Pfizer-Biontech product monograph to help inform her presentation. Individuals attended her Zoom presentation and then they could be provided an exemption letter upon the Member receiving the request.

It was the Member’s evidence that Directive 6 stated attendance at an education session was required from an employer, and the Member felt that the education she provided would meet the same standards as those set out in Directive 6.

The Member stated she provided 393 exemption letters and less than 5% of the exemption letters were for medical exemptions. The remaining letters were for informed consent exemptions. The Member stated there were no identifiers on her records, as she allowed the patients to pick the identifiers that were on the letter to maintain their privacy. The Member testified that she did not see most clients as patients, nor did the patients see her as their primary health provider, so no medical records were initiated. The Member saw her role as ensuring the patients were informed, and that was through education, and therefore no physical assessments were required. The Member provided individuals with exemptions when other professionals, such as allergists, would not.

The Member testified that she was ensuring client choice and that the client can decide what they want. The Member testified that she was respecting client choice and that she felt that making vaccines mandatory with no long-term safety data was unethical.

The Member stated that the charge of $100.00 was not excessive. The Member testified she had no administrative assistance in the preparation and administration of the education sessions or delivery of the exemption letters. The Member stated she would receive an email from a patient, she would respond to patients by email, provide the Zoom link to the patient to receive the education and then provide the exemption letters following receipt of an email that the individual attended the session and was requesting an exemption letter. The Member would also provide exemptions for family members of those who attended the session, if requested. The Member stated that each letter was tailored to each patient, including patient demographics.

Following a Motion heard on January 29, 2024, the Panel provided the parties a decision with reasons, granting the College’s motion to quash the Member’s summons to witness to Dr. Kieran Moore. Accordingly, the Panel did not hear evidence from Dr. Moore.

Final Submissions

College Counsel

College Counsel submitted that the College bears the onus, on a balance of probabilities, of proving that the Member committed the allegations set out in the Notice of Hearing. College Counsel reviewed each of the factual allegations and submitted that the College met the burden of proof for each.

College Counsel stated the Member fundamentally misunderstood what the Directive said and for whom it was intended. Directive 6 was set out for Public Hospitals, service providers within Home Care and Community Services, providers within the Local Health Integration Networks and Ambulance Services.

As to the distinction between the two versions of Directive 6, College Counsel submitted that the only addition to Exhibit #22 compared to Exhibit #21, was that a patient could be exempt from the COVID-19 vaccine if the individual had documentation that confirmed current participation in a COVID-19 vaccine clinical trial authorized by Health Canada.

With respect to allegation #1(a), College Counsel submitted that the Member issued medical exemption letters in relation to vaccines for COVID-19 when such an exemption was not indicated and/or appropriate for some, or all, of the patients listed in Appendix “A” in or around 2021 and/or 2022. College Counsel submitted that the 396 exemption letters for 393 unique patients were evidence in support of this allegation. In some cases, there were two letters for the same client. College Counsel submitted that the Member was transparent in that anyone that wanted an exemption letter should have one for whatever reason. College Counsel submitted that the Member issued medical exemptions that had no documentation that indicated the client met some or all the criteria for a medical exemption. The documentation completed by the Member was insufficient, and assessments were not completed on clients requesting the exemption letters. The documentation provided no demographics, such as birth dates, medical histories, consults or referrals to other health care providers, or the Member’s designation. Failure to document components of the assessment breached the Telehealth Standard, Nurse Practitioner Standard, Documentation Standard, Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) and the Code of Conduct. College Counsel submitted that, notwithstanding that the College had requested that the Member provide all of her records, by the Member’s own admission, the patient records she has produced were not even the actual records. Rather, they were transcriptions of patient records from a notebook.

With regard to allegation #1(b), College Counsel submitted that while the Member stated only a few letters were for medical exemptions, several exemption forms stated “medical exemption” or words to that affect. The Member failed to complete medical assessments to be able to provide medical exemptions. With respect to providing medical exemption letters the Member was aware of acceptable reasons. The Member admitted that, until CNO sent an email to NPs regarding providing medical exemptions, she used her clinical judgment when issuing an exemption.

College Counsel submitted that, per the Member’s process, the Member would receive emails from patients requesting an exemption letter. The Member provided a Zoom link to the patients to observe an education session. Following the session the patient emailed the Member to request the exemption letter for themselves and family members, if required. College Counsel submitted that the Member did not capture attendance at the Zoom sessions and could not confirm that the patient(s) attended the information session.

College Counsel submitted that the intention was for the exemption letters to look like medical exemptions.

The Member wrote the majority of exemption letters in bulk, breaching the obligations in the TNCR Standard where no therapeutic relationships were established between the Member or the patient. The College submitted there was no evidence of assessments completed by the Member on patients prior to providing the exemption letters. The evidence given by the expert witness Dr. Acorn was that Nurse Practitioners must complete an assessment and document the assessment, prior to providing a medical exemption. Dr. Acorn stated that a therapeutic nurse-client relationship is established on an individual basis and is unique to the context of each patient.

The Member breached the Documentation Standard, Nurse Practitioner Standard, Professional Standards, Ethics Standard, TNCR Standard, and Code of Conduct, along with Telehealth guidelines. The Member did not enter into a therapeutic nurse-client relationship with the clients, no assessments were completed and there was no documentation of referrals for situations outside her scope.

With regard to allegation #2, College Counsel submitted that the Member charged excessive fees for the medical exemption letters. The Member charged most but not all patients. Patients paid for a service that was delivered over 30-60 minutes on zoom. The patients paid for the exemption letter that was being provided. Each letter was copied, pasted and most of the exemption letters were mostly identical.

With regard to allegations #3(a), (b) and (c), College Counsel submitted that the Member’s conduct was relevant to nursing. The Member was unprofessional as she showed a serious and persistent disregard to meet the standards of practice.

The Member’s conduct was dishonourable. It was dishonest in that she intentionally used her professional designation and worked around the instructions provided by the Chief Medical Officer of Health. The Member put her patients and others at risk by providing the exemption letters that were not indicated. Further, the Member charged $100.00 and thus financially benefitted herself.

The Member’s conduct was disgraceful in that she abused her credentials of NP, and in her willingness to issue letters when no other professional would. The Member used her knowledge, developed an education session that was delivered over Zoom, and provided exemption letters to patients in her capacity as a Nurse Practitioner. The Member intentionally used her professional designation and worked around the instructions provided by the CMOH. The Member misled members of the public in the midst of a public crisis. The Member put her patients and others at risk and the Member received a financial benefit.

The Member

The Member’s final submission was that she was committed to patient autonomy and providing the information for her clients to make an informed decision. The Member supports people with their right to decline medical procedures that have no safety data and are experimental. The Member used her clinical judgement with regard to requests for vaccine exemptions. The Member submitted that if people did not want the vaccine, it is not ethical to force them to take it. She further submitted that she relied on the Ethics Standard for the principle that nurses must use clients’ views as a starting point for their care and the Member supported her clients in their decisions.

The Member’s position was that the informed consent exemptions were not medical exemptions. The Member was ensuring patients were receiving unbiased and up-to-date information. The Member’s position was that there was no safety data, that the vaccines were experimental, and she was informing her patients. It was her position that there is a difference between informing patients and providing medical exemptions.

The Member submitted that the fee was not excessive. The process was labor intensive, and all clerical work was completed by the Member. The services included reading the individual email requests and ensuring the right information was provided to each patient. The fee covered both the education and the exemption letter.

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),(b); #3(a) and (b), as set out in the Notice of Hearing. As to allegations #3(a) and (b), the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable and unprofessional.

The Panel dismissed allegations #2 and #3(c) in the Notice if Hearing as it found that the College did not prove those allegations on a balance of probabilities.

Reasons for Decision

Expert Evidence of Dr. Acorn

In coming to its decision, the Panel considered the expert evidence of Dr. Acorn. The Panel found Dr. Acorn’s evidence to be credible and reliable and accepted her expertise and testimony on the standards of practice.

Although the Panel accepted the expertise of Dr. Acorn, not all of her testimony was directly relevant to the allegations in the Notice of Hearing. For example, part of Dr. Acorn’s evidence was that the Member did not appropriately store health records. While this may be true, there is no allegation against the Member about improper storage of records and so the Panel makes no finding in that regard. The Panel’s findings are strictly with respect to the allegations set out in the Notice of Hearing.

Findings Pertaining to Allegations #1(a) and #1(b)

The Panel considered the evidence and finds that it supports findings of professional misconduct as alleged in the Notice of Hearing with respect to allegations #1(a) and #1(b).

In order to make findings with respect to allegations #1(a) and #1(b), the Panel first had to determine the applicability of Directive 6 to this case, as well as determine whether the exemption letters issued were medical exemptions.

Directive 6

The Panel finds that Directive 6 was not applicable to NPs working independently in the community as it was issued to “Covered Organizations” which is clearly defined within the document, namely Public Hospitals, Service Providers with the Home Care and Community Services Act, Local Health Integration Networks, and Ambulance Services. The Member did not have the authority to issue educational exemptions as the Member is not a covered organization. Even if the Member was covered by Directive 6, which she was not, the Member did not meet the requirement of offering a program approved by a covered organization.

The Exemption Letters Issued Were or Purported to Be Medical Exemptions

The Panel finds that the 396 exemption letters that were provided to clients and or clients’ family members were or purported to be medical exemptions.

As set out in Exhibit #2, the Member provided one of two types of exemption letters to the majority of clients.

The wording of one exemption letter provided stated, “This document is to serve as the above-named written exemption from taking the COVID-19 vaccine. After learning and reviewing the above information, the patient is ineligible for taking the COVID-19 vaccine due to current medical circumstances, and informed consent.”

The wording of the other letter that was provided to clients read, “This document is intended to serve as the above-named patient’s medical exemption from taking the COVID-19 vaccine. They have been advised against taking this vaccine as a result of their medical history.”

While the vast majority of the letters fall into the 2 categories described above, in September and early October 2021 there are some letters that provide an exemption based on education alone, without reference to a medical exemption or informed consent. Those letters indicate that proof of completing an education session meets the qualification of vaccine exemption. For example, the letter provided by the Member to AG (Exhibit #2) served as proof that the client had attended an educational session outlining the benefits of COVID-19 vaccination prior to declining the vaccine and attending that educational session met the qualification for vaccine exemption.

Furthermore, the Member signed the exemptions in her capacity as an NP.

Accordingly, the Panel finds that the letters at issue were medical exemption letters.

Allegation #1(a)

Allegation #1(a) is that the Member issued medical exemption letters in relation to vaccines for COVID-19 when such an exemption was not indicated and/or appropriate for some, or all, of the patients listed in Appendix “A” in or around 2021 and/or 2022.

The medical exemptions issued by the Member were not indicated and/or appropriate.

The Member was an independent practitioner at the relevant time. The Documentation Standard requires that documentation presents an accurate, clear and comprehensive picture of the client’s needs, the nurse’s interventions and the client’s outcomes. There was no evidence in the records the Member produced that reflected the nursing care provided including assessment, planning, intervention and evaluation. The Member stated that she kept information in a book and transcribed information later into a medical record. The book was not entered into evidence.

The Member did not provide her professional designation (NP) with her documentation. An example is SNV at Exhibit #4. The medical records submitted into evidence did not contain patient identifiers such as date of birth and the documentation did not provide date and time that care was provided and/or did not indicate the entry was late when she transcribed information from the book as required.

As an example of the lack of documentation, in one circumstance, the Member provided exemption letters to all family members when only one family member (EA, Exhibit #4) had any communication with the Member. No medical records were produced for EA’s wife and 2 children to indicate that exemption letters were completed (Exhibit #2).

With respect to documentation, the records of the Member did not meet the Documentation Standard and did not contain sufficient information to indicate vaccine exemptions.

In addition to the medical exemptions not being supported by documentation, the Member did not develop the nurse-client relationship that is required to conclude a medical exemption is indicated or appropriate.

The establishment of a therapeutic nurse-client relationship with the Member’s patients was not evident. Because the therapeutic nurse-client relationship was not developed, the Member did not establish that the exemption was indicated or appropriate for the patients.

The evidence demonstrates the Member did not treat each patient as individuals in that she did not tailor the education sessions to meet the patients’ language or communication needs, or ensure patients were followed or referred to other health care practitioners when their issues were outside the scope of the Member’s practice. This constituted a breach of the Code of Conduct. Because the Code of Conduct was breached the Member did not establish that the exemption was indicated or appropriate for the patients.

The Member only relied on the CMOH Directive 6, Directive 6 Resource Guide, Version 1 and 2. Each nurse is accountable to the public and responsible for ensuring that their practice and conduct meets legislative requirements, the standards of the profession and that they are continually improving the application of professional knowledge. In regard to knowledge application each nurse continually improves the application of professional knowledge, and this is demonstrated by a Nurse Practitioner by analyzing and applying a wide range of information. The Member only relied on her understanding of the CMOH Directive 6 and the Directive 6 Resource Guide, Version 1 and Version 2. As noted above, Directive 6 is not applicable to the Member.

Without a nurse-client relationship, the nurse cannot conclude that a medical exemption is indicated or appropriate. The Member did not ensure her practice was consistent with the College’s standards of practice and guidelines, or legislation when the Member breached various standards such as the Documentation Standard, the TNCR Standard, the Code of Conduct, and Nurse Practitioner Standard.

Allegation #1(b)

The Panels finds that the Member issued medical exemption letters in relation to vaccines for COVID-19 without appropriately assessing some, or all, of the patients listed in Appendix “A” in or around 2021 and/or 2022.

The lack of documentation was a breach of the Documentation Standard. Documentation is a central part of a nurse’s assessment. Because the Documentation Standard was breached due to the lack of documentation, the Member did not appropriately assess some, or all, of the patients.

The therapeutic nurse-client relationship is essential to develop a plan of care. The interactions with patients were through email and group presentations. With the lack of the development of a nurse-client relationship, the Member did not appropriately assess the patients prior to providing the exemption letters.

In addition to failing to document assessments for medial exemptions, the Member failed to conduct assessments as required by the TNCR Standard, the Telepractice guidelines, and the Nurse Practitioner Standard.

The therapeutic nurse-client relationship is the starting point of a relationship with a patient as stated by Dr. Acorn, the Expert Witness for the College. Nurse Practitioners are accountable for establishing and maintaining therapeutic relationships with individuals to whom they provide treatment or service, including when issuing exemptions for COVID-19 vaccinations. When providing exemption letters for EA’s family the Member did not meet or develop a therapeutic nurse-client relationship. Patient ER’s medical record states the Member received an email outlining patient’s health history including anaphylactic food allergy, previous adverse reactions to vaccines, pulmonary challenges, medical history of multiple episodes of septicemia as well as other health challenges. It also states that the patient shared that she has done extensive research about the COVID-19 vaccines and the Member documented that “As I am a Clinician who respects a client's right to choose which therapies to take and not to take I issued a Medical exemption to this patient in an attempt to support her right to choose.” The one email with no further assessment or follow up showed a lack of accountability in the establishment of a nurse-client relationship.

The Telepractice factsheet addresses when patients are to be referred to the appropriate health care professionals when the client’s needs exceed the nurse’s knowledge, skill and judgement. There was no evidence of the establishment of a therapeutic nurse-client relationship and for patients that were experiencing a medical issue, there was no evidence of referral to another health care practitioner or peer to peer discussions. Breaching the therapeutic nurse-client relationship and Telepractice guidelines, the Member did not appropriately assess the patients prior to providing the exemption letters.

The Nurse Practitioner Standard was breached with the lack of assessment findings, diagnosis and evidence-informed practice. There was no evidence of an appropriate plan of care for the patient to optimize their health or appropriate follow-up and monitoring. In the Member’s response to the College dated February 24, 2022, the Member wrote that she “trusted that those requesting my services were being honest and forthright when providing their health history, and trusted that they and all family members were 12 and over, attended the online session when documents expressing their wish to decline COVID-19 vaccination were requested”. For example, Patient IA requested a letter of exemption for her and her 4 children, after observing part of the Zoom presentation. Exemption letters were provided without appropriately assessing the patients.

The Member’s trust in patients is not a substitute for the requirement to conduct assessments.

The Nurse Practitioner Standard also was breached in that, with respect to Patient [D], no collaboration, consultation or referrals were made when the patient could have benefited from the expertise of another health care professional.

The Member breached the TNCR Standard, Nurse Practitioner Standard, and the CNO Practice Guideline - Telepractice in that the Member did not appropriately assess the patients prior to providing the exemption letters.

Allegation #2

The Panel does not find that the Member charged excessive fees to some or all of the patients listed in Appendix “B”.

The evidence before the Panel was the Member charged a fee of $100.00 to certain patients. It was the Member’s evidence that she did not have a record of whether all of the patients that were charged the $100.00 fee in fact paid the fee.

The Panel did not have any evidence before it with respect to what an appropriate fee might be.

The Panel did not receive convincing evidence that the fee charged was excessive in relation to the service provided.

In the Panel’s view, Dr. Acorn’s evidence on this point was ambivalent. Dr. Acorn noted that on its face, the amount did not represent an extremely high rate, but since the Member used templates for exemption letters and charged patients on an individual basis for sessions that were delivered as group education it could be considered high. Dr. Acorn did not conclusively suggest that the fees charged by the Member were excessive.

As a result, the Panel finds that the College did not establish on a balance of probabilities that the fees charged were excessive. Accordingly, the Panel dismisses allegation #2.

Allegations #3(a) and (b)

The Panel found that the Member engaged in conduct related to the practice of nursing that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.

The Panel finds that the Member’s conduct was unprofessional as she failed to meet the standards expected of the profession by demonstrating a serious and persistent disregard for her professional obligations by issuing medical exemptions for COVID-19 vaccines where there was no assessment, appropriate documentation and/or clinical reason according to the guidelines for such exemptions to be issued.

The Panel also finds that the Member’s conduct was dishonourable in that she demonstrated an element of moral failing and knew or ought to have known that her conduct fell well below the standards of a professional. The Member did not follow the College standards. The Member’s lack of documentation and assessments fell below the standard that is expected of a Nurse Practitioner in issuing exemption letters. The Member did not follow the guidelines set by the Ministry of Health. The Member used her professional designation on the exemption letters when assessments were not completed. She provided exemption letters that were not indicated. Her conduct demonstrated an element of moral failing.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s actions put the public at risk by not assessing the clients as to where they work, completing assessments and or referring clients to other health care professionals when required prior to providing exemption letters. The Member’s actions put her clients at risk without the complete assessment or referring patients to other health care providers that had the expertise in dealing with their medical and or mental health concerns.

Allegation #3(c)

The Panel did not find that the Member charged an excessive fee further to allegation #2, and therefore the Panel dismisses allegation #3(c).

Resumption of Hearing for Penalty

Given the Panel’s findings on liability made in this matter, the Hearings Administrator will contact the parties to schedule a date on which the hearing will resume to address the issue of penalty.

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

[i] The terms client and patients are used interchangeably throughout this Decision and Reasons, unless noted otherwise.