DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO. PANEL: Lori McInerney, RN, Chairperson Karen Breen-Reid, RN Member

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1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Lori McInerney, RN, Chairperson Karen Breen-Reid, RN Member Kris Guty, RN Member Bill Dowson Public Member Faira Bari Public Member BETWEEN: ) MEGAN SHORTREED for COLLEGE OF NURSES OF ONTARIO ) College of Nurses of Ontario ) - and - ) NO REPRESENTATION for ) Mark Donald Besharah ) ) ) BRIAN GOVER MARK DONALD BESHARAH ) Independent Legal Counsel: Registration Nos & IB13166 ) ) ) Heard: September 8 & 22, 2006 and ) January 18, 2007 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on September 8, 2006, September 22, 2006 and January 18, 2007 at the College of Nurses of Ontario (the College ) at Toronto. The Allegations The allegations against Mark Donald Besharah (the Member ) as stated in the Notice of Hearing dated June 29, 2006 [ ] are as follows: 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, in that: a. on February 13, 2003, in the Ontario Court of Justice in [ ], Ontario, you were found guilty of an offence relevant to your suitability to practise, and in particular,

2 you were convicted of a charge that you did steal a sum of money of a value exceeding five thousand dollars, the property of [Company A], contrary to s. 334(a) of the Criminal Code of Canada; and/or b. on January 9, 2003, in the Ontario Court of Justice in [ ], Ontario, you were found guilty of an offence relevant to your suitability to practise, and in particular, you were convicted of a charge that you did, between the 26 th of April, 1998 and the 11 th of October, 2000, willfully fail to inform the [Workplace Safety and Insurance] Board of a material change in circumstances in connection with your entitlement to benefits within 10 days after the change occurred, contrary to s. 149(2) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, as amended. Member s Plea The Member admitted to having been found guilty of the criminal offences referred to in allegations 1(a) and 1(b) in the Notice of Hearing but denied the allegations of professional misconduct. Overview The Member is a Registered Nurse and, in 2003, was found guilty of fraud and theft exceeding $ The theft conviction involved activities when the Member was acting as a manager of a [ ] business at the request of a friend who was the owner of the company. While taking on this job, the Member diverted funds from the company for his personal use and had pay cheques made out in the name of [a relative] to hide his income. The conviction of fraud occurred as a result of not reporting to the Workplace Safety and Insurance Board ( WSIB ) a change in his financial status. While receiving financial support from WSIB for lost income and educational upgrading through a baccalaureate nursing degree program, the Member was also gainfully employed by [Company A]. The Member obtained WSIB payments of almost $200, The question before the panel was whether the criminal convictions were relevant to the Member s suitability to practise nursing such that they constituted professional misconduct. The panel made findings of professional misconduct relating to the Member s suitability to practise. The Member breached the trust of a friend in need, and was involved in theft and fraud of a nature that could affect the public s trust in the profession. The panel ordered revocation of the Member s certificate of registration and levied a fine of $2, The Panel ordered the Member to pay costs to the College totalling $ Procedural History Motion for adjournment

3 Upon completion of the College s evidence, the Member indicated confusion as to the proceedings of the hearing. The Member made a motion to adjourn the proceedings to seek legal assistance. The College opposed the motion. The College presented evidence that it communicated with the Member on several occasions leading up to this hearing and recommended he obtain legal counsel. The Member retained and then dismissed legal counsel prior to the start of the hearing. The panel sought advice from independent legal counsel ( ILC ). By telephone on the record, Mr. Brian Gover advised the panel: the Member cannot question the validity of the guilty findings; the issue for the panel to determine is whether the conduct is relevant to the Member s suitability to practise; the law does not say what to do, rather it sets out what should be considered; the panel may choose to refuse the motion; the panel may grant the motion considering the potential outcome and likely penalty; the Member should be afforded all aspects of fairness; there is no right or wrong answer; and the panel may attach conditions to an adjournment such as requiring that the Member undertake not to practise nursing until the completion of the hearing and setting specific dates that the Member must report to the College regarding his attempts to retain counsel. The panel deliberated and granted the Member s motion to adjourn with the following stipulations: that the Member undertake to not practise nursing until the hearing is complete; that the Member meet with the Chair of the panel within two weeks to establish the process and new date of the hearing with the same panel hearing the case; and that the hearing reconvene within 4 months of the date of the adjournment to continue at the point in the proceedings where the hearing adjourned. Counsel for the College reserved the College s right to seek costs from the Member. Reconvening the Hearing by Teleconference On September 22, 2006, the Member, the chair of the panel, College counsel and a court reporter participated in a teleconference. The Member indicated he had obtained a lawyer and would contact the College by September 29, 2006 to arrange the hearing for the earliest possible date. The Member subsequently contacted the College indicating he may not continue to fight this. The hearing was set for the earliest possible date of January 18, Reconvening the Hearing in the Absence of the Member On January 18, 2007, the hearing reconvened at 9:10 AM. The Member was not present nor was he represented by Counsel. The panel recessed to give the Member opportunity to appear before

4 the hearing. The hearing reconvened at 9:30 AM. Counsel for the College led evidence that the Member was adequately served with notice of the hearing date, time and location. Counsel for the College called as its witness [Witness A], a Prosecution Administrator with the College. [Witness A] confirmed that the Member was sent notice of continuation of the hearing at his last known address by courier and mail. A process server was not successful in serving papers to the Member. The letter sent by mail had not been returned to the College as undeliverable. The witness was clear and had accurate knowledge of the processes undertaken by the College to notify the member of the hearing. The panel found the witness to be credible. Having heard the evidence regarding the College s communication with the Member and the attempts made by the College to provide notice of the continuation of the hearing, the panel determined that it was appropriate in all the circumstances to proceed with the hearing in the Member s absence. The Evidence The panel identified two issues to be determined in consideration of the allegations. Each arises from the Member s criminal record arising from conduct outside the practice of nursing. 1. Professional misconduct 2. Suitability to practise Issue #1 Professional Misconduct Council for the College presented several documents that recorded the criminal charges and convictions of theft and fraud against the Member. The College introduced the court record of a finding of guilty to theft over $ [ ] as well as a transcript of the guilty plea for the theft over charge dated October 2, 2002 [ ] and the restitution order made in connection with the theft charge. The panel found that the Member was found guilty of theft over. Between April 1998 and October 2000, the Member was asked by his friend, [Mr. A], to manage [Company A] while [Mr. A] was rehabilitating from a medical problem. The Member worked for the company in a number of capacities, including Manager of the company. The Member advised his employer that he was receiving benefits from the Workplace Safety and Insurance Board so he arranged to have his cheques made out to [a relative]. The Member also used a [Company A] company credit card to pay for personal expenses, altered company records in an attempt to cover up his theft, and misled the company accountant when questioned about expenses. The Member was found guilty of the charges of theft over $5000 and paid restitution to [Mr. A] in the sum of $ as penalty. From April 1998 to October 2000, the Member was receiving WSIB benefits after suffering a back injury while working for a construction company in December The WSIB benefits received by the Member including payments and support to enter a labour market re-entry

5 program, which included attendance at a baccalaureate nursing program. The rationale of the labour market re-entry program was to allow the Member to upgrade his qualifications from diploma to degree so that he might secure a nursing position that required less physical labour. The College estimated that the Member obtained just under $200, in benefits. The Member did not disclose to WSIB that he was working for [Company A] while receiving these benefits. He pled guilty to the charges and paid a fine of $5000. Issue #2 Suitability to Practise Neither of the criminal activities set out above occurred during the Member s practice of nursing. However, Counsel for the College presented as evidence The Ethical Framework for Registered Nurses and Registered Practice Nurses in Ontario, dated CNO 1999, [ ] and specifically highlighted the section on Truthfulness where Truthfulness means speaking or acting without intending to deceive. (p.15). The College also entered as evidence, Explanation of Professional Misconduct for Registered Nurses and Registered Practice Nurses in Ontario, dated CNO 1999, in which criminal convictions are discussed. This document states: Criminal conduct that is relevant to the nurse s suitability to practise is behaviour that is considered harmful to the public, places the public s safety in jeopardy or threatens the trust the public needs to have in a nurse. [ ] A panel of the Discipline Committee may rely completely on the findings of the criminal courts in proving the criminal conviction. [ ] CNO is not concerned with the purely private life or extra-professional activities of a nurse that do not bring into question the nurse s professional integrity or competence. College Counsel called as witness, [Witness B]. She [is] an employee of the College of Nurses of Ontario [ ] and is the Registration Committee Administrator. [Witness B] testified that all members of the College have been required to declare on their annual registration form any criminal convictions or medical limitations since Even though the Member was an RPN registered with the College and had a criminal record prior to 1993, it was not until he applied to write the RN exam upon completion of his RN education in 1995 that he was required to report his criminal record. [Witness B] explained that the process to exempt someone from the registration requirement in the Nursing Act is extensive and rigorous. In her experience [ ], the Registration Committee would consider the Member s criminal record serious as it involved eight prior convictions. The witness was knowledgeable regarding the registration process since She was clear and concise, and although an employee of the College, did not have an interest in the outcome. The panel found this witness to be credible. The Member wrote a lengthy Personal Statement dated March 13, 1995 [ ] to the Registration Department at the time outlining his personal story and rehabilitation. He concluded, I am a good nurse with lots to offer the profession I believe I can fulfil my obligations to the College of Nurses with pride, responsibility and accountability. The Registration Committee decided to exempt the Member from the criminal offence requirement and, in light of his disclosure of [an illness], instead reviewed his case under the

6 registration requirement that an applicant must not suffer from a physical or mental illness that makes it desirable in the public interest that he or she not practise nursing. The Registration Committee reviewed the Member s case in May of The College granted an exemption. In the letter to the Member, dated July 17, 1995 the College cautioned the Member that he is accountable for his actions and provided him with a copy of the Ethical Guidelines for Registered Nurses. As the Member was neither present nor represented, he provided no evidence or submissions to contradict the evidence and submissions presented by College counsel. Decision The College bears the onus of proving the allegations in accordance with the standard of proof which the panel is familiar with, set out in Re Bernstein and College of Physicians and Surgeons of Ontario (1977) 15 O.R. (2d) 447. The standard of proof applied by the panel, in accordance with the Bernstein decision, was a balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel. The panel also recognized that the more serious the allegation to be proved, the more cogent must be the evidence. Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed an act of professional misconduct as alleged in paragraphs 1(a) and 1(b) of the Notice of Hearing and engaged in acts that were relevant to his suitability to practise. Reasons for Decision The panel considered two issues when making their decision; professional misconduct and suitability to practise. The Member was convicted of illegal activity including theft and making false statements for personal financial gain even after indicating to the College in 1995 that he was responsible and accountable. He was dishonest to those who trusted him and to authorities. The Member used funds gained dishonestly to further his nursing career. Although the Member s criminal activities were not directly related to the practice of nursing, they bring into question his integrity as a nurse. The Member requested an extension of the hearing and then did not attend the second day that he requested, nor send representation. He brings to question his ability to be governed by the College. The panel finds the Member poses a risk to public safety and cannot be trusted. Penalty Counsel for the College sought revocation of the Member s registration to practise and submitted that the Member: indicated in his statement to the Registration Committee in 1995 that he had turned his life around and nursing allowed him to become a better person. continued to be involved in criminal behaviour, including both theft and fraud.

7 took advantage of a friend in need of assistance when he took money from [Company A] which brings to question his honesty and trustworthiness. took advantage of WSIB to obtain his nursing degree by fraudulent means as he worked during that time and did not declare earnings but hid them by having payments made to [a relative]. WSIB is a government funding agency designed to assist injured workers to obtain financial support during rehabilitation and to assist with educational upgrading to obtain employment that they can accomplish within their physical limitations. did not fulfil all the commitments he made to the College and Courts concerning his desire to reform again bringing to question his integrity and the ability to trust him as a member of the nursing profession. requested an adjournment to obtain counsel causing a delay in the proceedings and then upon continuation of the hearing did not appear or send representation thus demonstrating ungovernability. No mitigating circumstances were presented as the Member was not in attendance nor was he represented by counsel. Penalty Decision The panel orders: the Executive Director to revoke the Member s certification of registration. the Member to pay a fine of $2, to the Minister of Finance. In addition, the panel orders the Member to pay costs to the College for costs in the sum of $ Reasons for Penalty Decision The panel concluded that the proposed penalty of revocation, although severe, is reasonable and in the public interest. The Member has demonstrated that he is ungovernable due to the repetitive nature of his offences even after indicating that he would not repeat criminal offences. His behaviour has been demonstrated to be disgraceful, dishonourable, and unprofessional. This penalty sends a clear and strong message to the membership that such behaviour is not tolerated. This penalty ensures that the public trust in the profession is maintained and is a specific deterrent to the Member in that he will be prevented from practising nursing. I, Lori McInerney, RN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below: Chairperson Date

8 Panel Members: Karen Breen-Reid, RN Kris Guty, RN Bill Dowson, Public Member Faira Bari, Public Member