DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Monica Seawright, RPN Chairperson Sheila Pendock, RN Member Kendra O Bryan, RPN Member Catherine Genereux Public Member Eric Howe Public Member BETWEEN: COLLEGE OF NURSES OF ONTARIO ANIL KAPOOR for College of Nurses of Ontario - and - MICHAEL WAYNE WEEKS NO REPRESENTATION for Registration No. II07734 Michael Wayne Weeks Heard: April 22, 2005 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on April 22, 2005 at the College of Nurses of Ontario ( the College at Toronto. The hearing commenced at 9:08 a.m. The Member was not present and was not represented by counsel. The Panel recessed to see if the Member or his representative would attend. The hearing reconvened at The Member did not appear. Counsel for the College presented a Notice of Hearing and an Affidavit of Service (Exhibit #1. The Panel found that the Member had received reasonable notice of the time and place of the Discipline Hearing. The Allegations The allegations against Michael Wayne Weeks ( the Member as stated in the Notice of Hearing dated April 22, 2005, Exhibit #1, are as follows:

2 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(20 of the Ontario Regulations 799/93 in that: Member s Plea a On or about January 28, 2004 you failed to appear before a panel of the Complaints Committee to be cautioned. Counsel for the College indicated that the Member likely would not appear before the Discipline Committee. The Member was not present at the Hearing, and was not represented by counsel. The Panel was informed that the College had made numerous attempts to contact the Member. In the absence of the Member, the Hearing proceeded on the basis that the Member would have denied the allegations as set out in the Notice of Hearing. Overview The Member, Michael Wayne Weeks, RPN, finished his nursing training in 1992, and first registered with the College of Nurses of Ontario in The Member s registration has been under suspension since April 24, 2003 for non-payment of fees. The Member failed to appear before the Complaints Committee on December 17, He was required to attend before the Complaints Committee to receive an Oral Caution. He was unable to do so, and the [attendance] was re-scheduled to January 28, Although the Member was aware of the [new date], he failed to attend. The Evidence Witness #1 The College s first Witness was [ ], Complaints Committee Administrator. [The CC Administrator] has been employed with the College of Nurses for 14 years. She testified that she sent a letter to the Member notifying him that the Complaints Committee had made its decision with regard to the complaints lodged against him (Exhibit #2. The Complaints Committee panel s decision was to issue a Letter of Caution to the Member and require him to appear before a panel of the Complaints Committee. A Notice of Meeting was attached to the letter informing the Member that the Caution was scheduled to take place on Wednesday, December 17, 2003 at 1300 hours at the College of Nurses. The Notice included a request to acknowledge receipt of the Notice of Meeting, and undertake to be present by signing, dating and returning the Notice to the College (Exhibit #2.

3 The witness testified she left a voic for the Member on December 4, 2003 indicating that she had not heard from him nor received acknowledgement of the Notice of Meeting. [The CC Administrator] received a voice mail message from the Member later, on December 4, He said that he wanted to come to the meeting but was unable to do so due to work commitments. He indicated that he was working as a Personal Support Worker (PSW and had not renewed his nursing license. On December 5, 2003, [the CC Administrator] sent a further letter and Notice of Meeting informing the Member that a new date for the Oral Caution was set for January 28, 2004 at 1300 hours (Exhibit #3. [The CC Administrator] testified that she left a voic message January 15, 2004 regarding the letter of December 5, 2003, and requesting a response. No reply was received. The Member did not attend the scheduled meeting of January 28, The meeting went forward in the Member s absence. At the end of the day, a fax was received from the Member indicating that he had been unable to attend, citing poor roads and visibility in the [ ] area. The Member requested a meeting via teleconference for his Oral Caution (Exhibit #4. Witness #2 [Prosecution Administrator] [The Prosecution Administrator] has worked for the College of Nurses for 8 years as a Prosecution Administrator. She testified that she was asked by [ ], Hearings Manager for the College of Nurses, to obtain a weather report for the [ ] area for January 27 and January 28, She testified that she spoke with [ ], a representative from Environment Canada, who informed her that she, [the Environment Canada Representative], could provide a certified copy of an official weather record for the dates concerned. [The Prosecution Administrator] testified that she received the weather reports (Exhibit #5. The weather record indicated no weather event on the date prior to the meeting, or the date of the meeting, with the exception of light snow late in the evening following the meeting. The witness verified that the Member has not renewed his registration which expired December 31, The Panel was provided with a Registration Inquiry Screen dated April 22, 2005 at 0857, showing his Registration has been suspended since April 24, 2003 for non-payment of fees (Exhibit #6. Decision The onus is on the College to prove the allegations against a Member on a balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel. (See generally in Re: Bernstein and College of Physicians and Surgeons of Ontario ( O.R. (2d 477 Having considered the evidence and the onus and standard of proof, the panel found that the Member had committed professional misconduct as alleged in allegation #1(a of the Notice of

4 Hearing in that the Member on or about January 28, 2004 failed to appear before a panel of the Complaints Committee to be cautioned. Reasons for Decision In the absence of any defence on behalf of the Member, the panel was impressed with the clear, cogent, and convincing evidence led by the College. Neither witness had any personal interest in the outcome of the hearing. The clarity of the College s evidence, as well as the panel s finding that both College witnesses were credible and forthright, could lead only to one conclusion: a finding of professional misconduct as set out in the Notice of Hearing. While there is no requirement for the Member to be present at his hearing, a responsible member would appear. Self-regulation is based on members being governable and accountable for their actions. Counsel for the College submitted that the Member is ungovernable, and given the evidence, the panel agreed. Penalty The panel heard the following submissions on penalty from Counsel for the College: i the Executive Director to impose a four month suspension on the Member s certificate of registration, to commence at the time the Member re-registers; ii the Member to appear before the Discipline Panel for an oral reprimand within the suspension period; iii the Member to meet with the Complaints Committee to receive the original Oral Caution within the suspension period; iv the Member to meet with the Director of Investigation and Hearings or the Director s designate, prior to returning to the practice of nursing, to: (a discuss the original conduct that brought him before the Complaints Committee and (b review the Member s role and responsibilities in a self-regulated profession and; v Prior to the Member s attendance at the meeting referred to in the preceding paragraph, the Member shall review any and all College publications as required by the Director, or the Director s designate, and be prepared to discuss the application of these documents to the conduct for which he was found to have committed professional misconduct. Penalty Decision The Panel deliberated and was unanimous in accepting the proposed penalty in that it met all of the objectives of deterrence to the member and the membership, rehabilitation to the member and protection of the public. Accordingly, the panel orders:

5 i the Executive Director to impose a four month suspension on the Member s certificate of registration, to commence at the time the Member re-registers; ii the Member to appear before the Discipline Panel for an oral reprimand within the suspension period; iii the Member to meet with the Complaints Committee to receive the original Oral Caution within the suspension period; iv the Member to meet with the Director of Investigation and Hearings ( the Director or the Director s designate, prior to returning to the practice of nursing, to : (a discuss the original conduct that brought him before the Complaints Committee and (b review the Member s role and responsibilities in a self-regulated profession and; v Prior to the Member s attendance at the meeting referred to in the preceding paragraph, the Member shall review any and all College publications as required by the Director, or the Director s designate, and be prepared to discuss the application of these documents to the conduct for which he was found to have committed professional misconduct. Reasons for Penalty Decision The Panel deliberated and noted that the Member chose not to appear at the hearing and that there was no evidence that the Member was remorseful or accountable for his actions. While there is no requirement for the Member to be present at a hearing, a responsible member would appear. Self-regulation is based on members being responsible and accountable for their actions. This Member has shown that he is not accountable for his actions, is not remorseful and is, in fact, ungovernable. Chairperson Date Panel members: Kendra O Bryan, RPN Sheila Pendock, RN Eric Howe, Public Member Catherine Genereux, Public Member