DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO. Sarah Corkey, RN April Plumton, RPN

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Margaret Tuomi Sarah Corkey, RN April Plumton, RPN Robert MacKay Chairperson Member Member Public Member BETWEEN: COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario - and - ) ) LINDA D. SMITH ) PAUL BROOKS for Registration. No ) Linda D. Smith ) ) ) ) Heard: October 1, 2015 DECISION AND REASONS This matter came on for hearing before a Panel of the Discipline Committee (the Panel ) on October 1, 2015 at the College of Nurses of Ontario (the College ) at Toronto. The Allegations The Panel considered allegations made against Linda D. Smith (the Member ) as stated in the Notice of Hearing dated July 15, Counsel for the College advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 2 a) and 3 a) of the Notice of Hearing. In addition, Counsel for the College also requested that allegation 3 be amended to include only unprofessional and dishonourable conduct. Mr. Brooks, on behalf of the Member, did not oppose the requests. The Panel granted these requests. The remaining allegations as set out in the Notice of Hearing are as follows.

2 IT IS ALLEGED THAT: 1. You have committed an act of professional misconduct as provided by subsection 51(1)(b) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that you were found to have committed acts of professional misconduct by the governing body of the nursing profession in another jurisdiction, which would be an act of professional misconduct as defined in Ontario Regulation 799/93, as follows: a) on or about July 21, 2010, you were found to have committed acts of professional misconduct by the Board of Nursing for [another jurisdiction], in that you: (i) (ii) (iii) (iv) (v) (vi) engaged in unprofessional conduct; intentionally or negligently caused physical or emotional injury; failed to maintain professional boundaries; failed to take appropriate action to safeguard a [client s] welfare or follow policies and procedures of the nurse s employer designed to safeguard the [client]; assumed [client] care responsibilities that you lacked the education to perform, for which you had failed to maintain nursing competence or that are outside your scope of practice; and practised in any other manner that gives the Board reasonable cause to believe the health of a [client] or the public may be harmed; and/or b) on or about May 21, 2012, you were found to have committed acts of professional misconduct by the Board of Nursing for [another jurisdiction], in that you: (i) (ii) (iii) engaged in conduct or practice that is or might be harmful or dangerous to the health of a [client] or the public; failed to comply with a stipulated agreement, consent agreement or board order; and violated its statute or a rule adopted thereto, and specifically, you failed to advise the Board of Nursing for the [other jurisdiction] of any change in your mailing address within 30 days; 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(18) of Ontario Regulation 799/93, in that you contravened a term, condition or limitation on your certificate of registration, as provided in subsections 1.5(1)1.(iii) and (iv) of O. Reg. 275/94, in that you failed to provide the College with details regarding the following: a) [withdrawn]

3 b) on or about July 21, 2010, you were found to have committed acts of professional misconduct by the Board of Nursing for [another jurisdiction], in that you: (i) (ii) (iii) (iv) (v) (vi) engaged in unprofessional conduct; intentionally or negligently caused physical or emotional injury; failed to maintain professional boundaries; failed to take appropriate action to safeguard a [client s] welfare or follow policies and procedures of the nurse s employer designed to safeguard the [client]; assumed [client] care responsibilities that you lacked the education to perform, for which you had failed to maintain nursing competence or that are outside your scope of practice; practised in any other manner that gives the Board reasonable cause to believe the health of a [client] or the public may be harmed; and/or c) on or about May 21, 2012, you were found to have committed acts of professional misconduct by the Board of Nursing for [another jurisdiction], in that you: i. engaged in conduct or practice that is or might be harmful or dangerous to the health of a [client] or the public; ii. iii. failed to comply with a stipulated agreement, consent agreement or board order; and violated its statute or a rule adopted thereto, and specifically, you failed to advise the Board of Nursing for the [other jurisdiction] of any change in your mailing address within 30 days; 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 that would reasonably be regarded by members of the profession as dishonourable and unprofessional with respect to the following incidents: a) [withdrawn] b) you failed to provide the College with details of the findings of professional misconduct, made against you in each of the following instances: (i) on or about July 21, 2010, you were found to have committed an act of professional misconduct by the Board of Nursing for [another jurisdiction], in that you: 1. engaged in unprofessional conduct; 2. intentionally or negligently caused physical or emotional injury; 3. failed to maintain professional boundaries;

4 4. failed to take appropriate action to safeguard a [client s] welfare or follow policies and procedures of the nurse s employer designed to safeguard the [client]; (ii) 5. assumed [client] care responsibilities that you lacked the education to perform, for which you had failed to maintain nursing competence or that are outside your scope of practice; 6. practised in any other manner that gives the Board reasonable cause to believe the health of a [client] or the public may be harmed; and/or on or about May 21, 2012, you were found to have committed acts of professional misconduct by the Board of Nursing for the [other jurisdiction], in that you: 1. engaged in conduct or practice that is or might be harmful or dangerous to the health of a [client] or the public; 2. failed to comply with a stipulated agreement, consent agreement or board order; and 3. violated its statute or a rule adopted thereto, and specifically, you failed to advise the Board of Nursing for the [other jurisdiction] of any change in your mailing address within 30 days. Member s Plea The Member admitted the allegations set out in paragraphs numbered 1 a), 1 b), 2 b), 2 c), and 3 b), including all subsections contained within the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member s admission was voluntary, informed and unequivocal. Agreed Statement of Facts Counsel for the College advised the Panel that an agreement had been reached on the facts and introduced an Agreed Statement of Facts ( ASF ) which provided as follows (the appendices referred to in the ASF have not been reproduced). THE MEMBER 1. Linda D. Smith (the Member ) obtained a diploma in nursing [ ] in The Member registered with the College of Nurses of Ontario (the College ) as a Registered Nurse ( RN ) on June 6, The Member was suspended for nonpayment of fees between December 31, 1994 and August 24, The Member s certificate of registration has been active since August 24, INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

5 3. The Member was registered as an RN with [another jurisdiction s] Board of Nursing ( [the] Board ) between September 1, 1992 and July 6, 2012, when she was revoked. July 21, 2010 [ ] Board Decision 4. From June 24, 1992 to February 16, 2009, the Member was employed as a staff nurse at [the Facility] in [the other jurisdiction]. On February 13, 2009, [the Facility] received a report from a client alleging that the Member told the client she needed a cleansing and asked her if she talked in tongues. The Member also made reference to the Bible and prayer. 5. The Member was terminated by [the Facility] on February 16, 2009 as a result of the conduct. 6. On July 21, 2010, the Member was found guilty of professional misconduct by the [ ] Board. [ ] 7. The Member did not contest the Board s finding of fact or finding of professional misconduct. She entered into a Consent Agreement with the Board on September 5, 2010, which placed her on probation for a year with terms and conditions. 8. The Member admits that her conduct [ ] does not meet the standards of practice of nursing in Ontario and is unprofessional. 9. As part of the Order, the Member agreed to attend psychological counselling, take a course in ethics, provide employer notification, provide quarterly reports to the [ ] Board by employers or self-report if she was not nursing, to practise only under direct supervision, to not practise more than eighty-four hours in a fourteen-day period, to not practise in homecare or on-call settings and to advise the [ ] Board of any changes in address, among other things. 10. The Order stipulated that if the Member was non-compliant, the Board could revoke her probation and take further disciplinary action. May 21, 2012 [ ] Board Decision 11. The Member failed to comply with the Consent Agreement. She failed to submit quarterly reports, take an ethics course, submit performance evaluations and notify the Board of her change in address when she moved back to Ontario in December On May 21, 2012, the [ ] Board found that the Member committed professional misconduct for breaching the July 21, 2010 Order, which resulted in the revocation of her license. [ ]

6 Failure to Report Findings of Misconduct to the College 13. The Member did not report to the College that she was the subject of an investigation, inquiry and proceeding for professional misconduct in [another jurisdiction] between January 2009 and July On January 4, 2011, the Member completed a Reinstatement Application and submitted it to the College. As part of the form, the Member checked a box stating: You are the subject of any ongoing disciplinary or incapacity proceeding, or have a finding of professional misconduct, incompetence or incapacity, in Ontario or another jurisdiction, in relation to the nursing profession or another health profession. 15. Having checked this box, the Member was required to complete a Self-Reporting form, which was found on the College s website, in which she was to provide additional and specific information to the College regarding the findings against her. 16. The Member did not complete the Self-Reporting form as part of her reinstatement application, and therefore did not report to the College that a finding of professional misconduct had been made against her by the [ ] Board on July 21, After the Member was reinstated to practice, she continued to have a professional and statutory obligation to report any findings of professional misconduct made against her outside Ontario, and made after her reinstatement. 18. The Member was reminded of the obligation to self-report when she renewed her certificate of registration for 2012 in Despite this reminder, the Member failed to self-report the findings of professional misconduct against her made in [the other jurisdiction] on May 21, ADMISSIONS OF PROFESSIONAL MISCONDUCT 20. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 (a)(i), (ii), (iii), (iv), (v) and (vi) and 1(b)(i), (ii) and (iii) of the Notice of Hearing, as described in paragraphs 4 to 11 above, in that she was found guilty of professional misconduct by the [ ] Board for conduct that would be considered professional misconduct as defined in Ontario Regulation 799/ The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(b)(i), (ii), (iii), (iv), (v) and (vi) and (c)(i), (ii) and (iii) of the Notice of Hearing, as described in paragraphs 4 to 18 above, in that she failed to provide the College with details regarding the investigation, inquiry and findings of professional misconduct by the [ ] Board. 22. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(b)(i) and (ii) of the Notice of Hearing, as described in paragraphs 4 to

7 18 above, in that her conduct would reasonably be regarded by members of the profession as dishonourable and unprofessional. Decision The panel considered the ASF and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed professional misconduct as alleged in paragraphs 1 a), 1 b), 2 b), 2 c) and 3 b) including all subsections contained within the Notice of Hearing. The Member was found to have committed acts of professional misconduct by the governing body of the nursing profession in [another jurisdiction] which would also be defined as professional misconduct in Ontario Regulation 799/93. The Member contravened a term, condition or limitation on her certificate of registration by failing to provide details of professional misconduct findings against her made in another jurisdiction to the College at the time of her reinstatement in Ontario and during subsequent registration renewals in Ontario. This conduct would reasonably be regarded by members as dishonourable and unprofessional. Reasons for Decision The ASF included an Appendix A and Appendix B that both parties submitted for the truth of their contents. They substantiated the allegations that the Member had been found guilty of professional misconduct by the [other jurisdiction s] Board of Nursing. The Panel concluded that the conduct underlying the findings of the [ ] Board consisted of unprofessional conduct with a client and failing to comply with the terms of an order made by the Member s governing body. Those actions would also be considered professional misconduct in Ontario. The Panel found that the Member s conduct was both unprofessional and dishonourable as it raises concerns about the integrity and moral fitness of the Member through her concealment of professional misconduct findings from another jurisdiction. Penalty Counsel for the College advised the Panel that a Joint Submission on Order ( JSO ) had been agreed upon. The JSO requests that this Panel make an order as follows: 1. Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final. 2. Directing the Executive Director to suspend the Member s certificate of registration for three 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 the practising class. 3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member s certificate of registration:

8 a) The Member will attend two meetings with a Nursing Expert (the Expert ), at her own expense and within six 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 the Director of Professional Conduct (the Director ) in advance of the meetings; ii. At least seven days before the first meeting, the Member provides the Expert with a copy of: 1. the Panel s Order, 2. the Notice of Hearing, 3. the Agreed Statement of Facts, 4. this Joint Submission on Order, and 5. if available, a copy of the Panel s Decision and Reasons; iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires, online learning modules and online participation forms (where applicable): 1. Professional Standards, iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, [and] online participation forms; 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 clients, 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 his/her report to the Director, 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,

9 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 her 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 her 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 her employers of the decision. To comply, the Member is required to: i. Ensure that the Director 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; ii. Provide her employer(s) with a copy of: 1. the Panel s Order, 2. the Notice of Hearing, 3. the Agreed Statement of Facts, 4. this Joint Submission on Order, and 5. a copy of the Panel s Decision and Reasons, once available; iii. 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 the Director, in which it will confirm: 1. that they received a copy of the required documents, and 2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and c) The Member shall not practise independently in the community for a period of 12 months. 4. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain. Penalty Submissions Counsel for the College submitted that the JSO was negotiated carefully between the College and the Member and that it meets the goals of penalty which are specific and general deterrence,

10 remediation, and protection of the public. College Counsel stated that mitigating factors in this case include that the Member has no past findings at this College, that the Member cooperated with the process, and that the Member has already faced publication of the findings from [the other jurisdiction]. Counsel for the College submitted that the seriousness of the conduct and, in particular, the failure to report was in fact an aggravating factor in this case. Counsel for the Member also submitted that on a spectrum of acts of professional misconduct, these acts were on the less serious end of the spectrum, that this was an aberration and not a pattern of conduct by the Member, and that the Member had achieved almost 20 years of unblemished service in the nursing profession prior to these events. Counsel for the College presented the Panel with two cases for reference when reviewing and considering the appropriateness of the JSO. Labrecque v. CNO (Discipline Committee, 2006): this case proceeded by way of ASF and JSO and in this case the member committed acts of professional misconduct in another jurisdiction but in this case the member did self-report the details of those findings. Finnigan v. CNO (Discipline Committee, 2013): this case proceeded as a contested hearing in the absence of the member. The member had committed acts of professional misconduct in another jurisdiction, and had also committed an act of professional misconduct by forging a letter from her supervisor and explicitly denying her involvement in prior disciplinary actions during a job interview. Penalty Decision The Panel accepted the JSO and accordingly orders: 1. The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final. 2. The Executive Director is directed to suspend the Member s certificate of registration for three 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 the 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 two meetings with a Nursing Expert (the Expert ), at her own expense and within six 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 the Director of Professional Conduct (the Director ) in advance of the meetings;

11 ii. At least seven days before the first meeting, the Member provides the Expert with a copy of: 1. the Panel s Order, 2. the Notice of Hearing, 3. the Agreed Statement of Facts, 4. [the] Joint Submission on Order, and 5. if available, a copy of the Panel s Decision and Reasons; iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires, online learning modules and online participation forms (where applicable): 1. Professional Standards, iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, [and] online participation forms; 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 clients, 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 his/her report to the Director, 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 her 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 her certificate of registration;

12 b. For a period of 18 months from the date the Member returns to the practice of nursing, the Member will notify her employers of the decision. To comply, the Member is required to: i. Ensure that the Director 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; ii. Provide her employer(s) with a copy of: 1. the Panel s Order, 2. the Notice of Hearing, 3. the Agreed Statement of Facts, 4. [the] Joint Submission on Order, and 5. a copy of the Panel s Decision and Reasons, once available; iii. 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 the Director, in which it will confirm: 1. that they received a copy of the required documents, and 2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and c. The Member shall not practise independently in the community for a period of 12 months. 4. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain. Reasons for Penalty Decision The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has cooperated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions. This penalty achieves specific and general deterrence through a three-month suspension which will help to ensure the Member does not engage in this type of conduct in the future. It will also send a message to the membership that this conduct is unacceptable and conveys to them the type of penalty that could await them should they engage in similar conduct. The penalty achieves the goal of remediation through the oral reprimand, which will allow the Member to reflect on her conduct, and the terms, conditions, and limitations which require the Member to fully understand her professional responsibilities and participate in education focused on preventing similar conduct in the future. The penalty as a whole serves the ultimate goal of public protection, specifically through the 18-month employer notification period and the period of 12 months during which she cannot practise independently.

13 I, Margaret Tuomi, Public Member, 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 Panel Members: Sarah Corkey, RN April Plumton, RPN Rob MacKay, Public Member