DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Grace Isgro-Topping Chairperson Spencer Dickson, RN Member Megan Sloan, RPN Member Angela Verrier, RPN Member John Bald Public Member BETWEEN: ) COLLEGE OF NURSES OF ONTARIO ) MATTHEW SAMMON for ) College of Nurses of Ontario - and - ) ) CARMAN TUGWOOD ) RONALD TRACHY for Registration No. ID04914 ) Carman Tugwood ) ) BRIAN GOVER ) Independent Legal Counsel ) ) Heard: July 30, 2010 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on July 30, 2010 at the College of Nurses of Ontario ( the College ) at Toronto. The Allegations The allegations against Carman Tugwood (the Member ) as stated in the Notice of Hearing dated February 23 rd, 2010 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.C. 1991, c.32, as amended, in that, in March 2007, you were found guilty of offences that are relevant to your suitability to practi[s]e, namely: (a) (b) Assault, contrary to Section 266 of the Criminal Code of Canada; Assault, contrary to Section 266 of the Criminal Code of Canada;

2 (c) (d) Commit Mischief under $5,000, contrary to Section 430(4) of the Criminal Code of Canada; and/or Utter a threat to kill an animal, contrary to Section 264.1(1)(c) of the Criminal Code of Canada. 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 paragraph 1(15) of Ontario Regulation 799/93, in that you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, in that you failed to disclose your criminal convictions in your 2008 Annual Membership Renewal Form. 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 paragraph 1(37) of Ontario Regulation 799/93, in you have engaged in conduct or performed acts relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that you failed to disclose your criminal convictions in your 2008 Annual Membership Renewal Form. The panel noted that the original hearing date in the Notice of Hearing was May 07, Member s Plea The Member admitted the allegations set out in paragraphs # 1(a),(b),(c),(d) and # 2 in the Notice of Hearing. With respect to allegation #3, the Member admitted his conduct was unprofessional only. The panel conducted an oral plea inquiry and was satisfied that the Member s admission was voluntary, informed and unequivocal. Publication Ban College Counsel advised that since the court transcripts from the Member s criminal trial would be entered into evidence, the panel was bound by the publication Ban under section 486 of the Criminal Code, invoked during criminal proceedings to protect the identity of the complainant in that proceeding. Both parties agreed. The panel granted the request for the publication ban. Agreed Statement of Facts Counsel for the College advised the panel that no formal written Agreed Statement of Facts would be submitted. The Member admitted to the allegations in the Notice of Hearing, allowing the panel to make findings on his admissions.

3 Overview The Member, Carman Tugwood, was initially registered as an RPN with the College in March 1994 and was a member until he resigned in Evidence shows that in 2007, the Member was convicted of a number of criminal offences for which he was sentenced to jail time and probation. The Member had failed to disclose his criminal convictions to the College and was given an opportunity to give oral evidence as to his fraudulent behaviour. Although admissions were made by the Member on all three allegations in the Notice of Hearing, the panel requested submissions from both parties with respect to the Member s conduct in allegation #3, which alleged that the Member s conduct had been disgraceful, dishonourable or unprofessional. The Member was not prepared to admit that his actions would reasonably be considered by members of the profession as disgraceful or dishonourable, only unprofessional, since his actions had not involved treatment of clients. The College asked for a finding that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable and unprofessional. Upon hearing the evidence and submissions, the panel found the Member had committed acts of professional misconduct as set out in allegations # 1 and # 2 in the Notice of Hearing. The panel also found that the Member s conduct in allegation # 3 was disgraceful, dishonourable and unprofessional. The Evidence The only allegation in dispute was allegation #3 with respect to the Member s level of misconduct (ie. disgraceful, dishonourable or unprofessional). College counsel submitted into evidence a package containing court information and transcripts [ ] relating to the Member s criminal convictions. He also entered into evidence the Member s Annual Membership Renewal Forms for 2007 and 2008, [ ] which showed the Member s attempt to mislead the College by not disclosing his criminal convictions. The panel also heard oral evidence from the Member, and [ ] the Customer Service Manager at the College. Witness #1 Carman Tugwood (the Member) The Member testified that [after the termination of a personal relationship in 1994,] he began suffering from depression [ ]. [Four years later,] he was hospitalized after his depression had become severe and he became suicidal. He reached out [ ] for counselling and treatment. The Member testified that he became an RPN in 1993 and was a Member in good standing with the College until the incident in March He resigned his membership in 2009 since he had been unable to work as a nurse because of his criminal convictions. The Member admitted to not disclosing his criminal convictions to the College. He testified that he did not disclose because he was under the assumption that his criminal convictions were not related to nursing and thus were not relevant. He also informed the panel that he came to this conclusion after a discussion in 1998, with a social worker, who was not a nurse and whose name he could not recall. The Member could not explain why he had the conversation or the circumstances; the only thing he could offer was that he was so messed up at that time. The Member admitted that in late 2007

4 and early 2008 he had been hospitalized for his mental illness and was not thinking properly. No medical evidence was presented to substantiate the Member s mental health claims. It was pointed out by College Counsel that in 1998 the College did not have a self-reporting obligation and that disclosing a criminal conviction had not been mandatory and did not appear on the renewal form until The Member did not seek any assistance when completing the 2007 and 2008 renewal forms. Although he was not clear on his self-reporting obligation, the Member rationalized his answer by claiming that it wasn t significant since he knew he wasn t going to be working as a nurse because he could not obtain employment due to his criminal convictions. The Member stated he wanted to maintain his nursing license since it was the only thing he had left to hold on to. In assessing the Member s credibility, the panel found the Member had difficulty recalling events that [led] to his completing the Annual Renewal Forms and found the Member s testimony was filled with discrepancies and inconsistencies. The panel did not find the Member to be a credible witness. Witness #2 [ ] [Witness #2] has been the Customer Service Manager at the College since October Her department is responsible for the renewal process for all Members. She confirmed that the selfreporting obligation was instituted on the Annual Membership Renewal Forms in She also confirmed that this question did not appear on the forms in 1998 or 1999 and there was no obligation to report criminal offences at that time. Since [Witness #2] was not with the College prior to 2005, she confirmed that she had an opportunity to review the Member s renewal forms from 1998 onwards. [Witness #2] only provided factual information and was found by the panel to be credible. Final Submissions College Counsel College Counsel submitted that by failing to disclose his criminal convictions, the Member s actions were equal to disgraceful, dishonourable and unprofessional conduct. The Member s actions must cast a serious doubt on his morals. His actions were deceitful and shamed both himself and the profession. College Counsel suggested that the panel take into account the seriousness of the criminal convictions, the relevance of the criminal convictions to his suitability to practi[s]e and the proximity of his criminal convictions to the reporting obligation. The Member s evidence that he received advice from a social worker in 1998, ten years prior to the alleged incident, is not credible. Counsel asked the panel to consider why the Member would seek this advice in 1998 when the self-reporting obligation would not be instituted until The Member did not seek advice once the self-reporting obligation was implemented.

5 The Member s rationalization that he wanted to hold on to his licen[c]e does not justify the deception that was intended to mislead the College. The Member knew that by disclosing his criminal convictions, his licen[c]e would be threatened. His actions were dishonourable and rising to disgraceful, given the seriousness of the criminal convictions and his failure to report them. The Member gave viva voce evidence regarding his medical conditions and his disclosure of his criminal convictions on his job applications. However, the panel was not presented with any evidence to support these statements. College Counsel advised the panel that they should not consider whether the criminal convictions constituted disgraceful, dishonourable and unprofessional conduct, but whether the failure to disclose them constituted disgraceful, dishonourable and unprofessional conduct. The question for the panel to answer is whether the public would expect members to disclose past serious convictions, and would a failure to do so cast serious doubt on a member s moral fitness. College Counsel stated that the College depends on the integrity of its [m]embers for the protection of the public. The Member s actions in this incident represented a danger to the public. Legal Agent Submissions Mr. Trachy stated that the Member had, and continues to have, a history of mental health issues. The Member admitted to being hospitalized in 2007 and He submitted that the Member did not believe that the criminal convictions applied to his renewal application as the offences were not related to his nursing activities. The Member had relied on the information provided to him from the social worker in He stated that the turmoil of the Member s life [ ] was the mitigating factor for his actions and the reasons for his behaviour. Mr. Trachy submitted that it would be inappropriate to look at the nature of the criminal convictions as nothing in the criminal allegations [was] relevant to the Member s practi[c]e of nursing. The Member s conduct was outside the nursing profession. The panel should focus solely on the Member s failure to disclose his offence, which the Member freely admitted. Mr. Trachy submitted that he could see how the panel might find the Member s actions to be dishonourable, however, to suggest that the Member s conduct was disgraceful would be an error. The conduct was not elevated to that level as was there was no evidence, or admission, that the Member traumatized or abused a client in his duties. Mr. Trachy stated that the only conclusion the panel could find is that the Member s conduct was unprofessional. There was no evidence of a cover up. The Member did not try to hide his criminal convictions on job applications. The Member voluntarily resigned his membership from the College.

6 Decision Having considered the Member s admissions, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1(a),(b)(c) and (d), and #2 of the Notice of Hearing. With respect to allegation #3, the panel considered the evidence and the onus and standard of proof, and found the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional by failing to disclose his past criminal convictions to the College. Reasons for Decision Although an Agreed Statement of Facts was not presented, the panel was able to make findings on the Member s admissions and on the evidence presented. With regard to allegation #1(a),(b),(c) and (d) and #2 in the Notice of Hearing, the panel made findings that the Member committed acts of Professional Misconduct when he failed to disclose his criminal convictions to the College and by committing offences that pertained to his suitability to practise. The panel found that the Member s criminal convictions were relevant to his suitability to practise as they were serious in nature, involving violence and occurred in the context of his ongoing substance abuse and mental health issues. The College is required to monitor nurses when they pose a danger to the public. Nursing is a self-regulated profession and relies on Members to self report criminal convictions. With regard to allegation #3, the panel found that the Member s conduct was disgraceful, dishonourable and unprofessional. The overriding factor in assessing the Member s credibility was that he was deceitful when he completed his Annual Membership Renewal form. The Member admitted to completing, signing and submitting the form to the College, knowing it contained false information. The panel did not find credible the Member s evidence that he acted on advice he received from a social worker in 1998, four years prior to the self-reporting obligation. The Member claimed that because of the stresses in his life he did not know what he was doing. He also stated that he held his nursing licen[c]e in high regard and that is was all he had left to hold on to. The panel found that it was more probable that the Member wanted to remain in good standing with the College and did not lend any credence to his claim that because of emotional turmoil he did not know what he was doing. The panel found that the criminal convictions were not historical events and the convictions would have been in the forefront of the Member s mind. Failure to report them was deceptive and therefore disgraceful. In reaching its decision, the panel considered the public s expectation that a [m]ember would disclose criminal convictions that are this serious. Penalty Counsel for the College advised the panel that a Submission as to Order had been agreed upon by both parties. The parties jointly requested that the panel make an order as follows.

7 1. Requiring the Member to appear before the Panel to be reprimanded on a date to be arranged but, in any event, within three (3) months of the date of the Order. 2. Directing the Executive Director to suspend the Member s certificate of registration for a period of seven (7) months. If the Member s certificate of registration is reinstated, then the suspension shall take effect from the date on which the Member s certificate of registration is reinstated and shall continue to run without interruption so long as the Member remits his annual membership fees on time. In the event that the Member fails to pay his annual fees and his certificate of registration becomes suspended for non-payment of fees, any portion of this suspension which has not yet been served shall be served commencing on the day that the Member obtains a new certificate of registration. 3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member s certificate of registration: (a) The Member shall, at his own expense, attend a remedial program (the Remedial Program ) with a Nursing Expert ( Expert ) that has expertise with self-regulation and College standards (the Expert ) as approved by the Director of Professional Conduct (the Director ). The Member shall attend three (3) sessions with the Expert. The first session shall be completed within two (2) months of the date of reinstatement of his certificate of registration. The second and third sessions shall be completed between two (2) and seven (7) months from the date of reinstatement of his certificate of registration. (b) Prior to the commencement of the meetings with the Expert referred to in subparagraph 3 (a) above, the Member shall: (i) Provide the Expert with a copy of the Discipline Panel s Order, the Notice of Hearing, and, if available, a copy of the Panel s Decision and Reasons. If the Panel s Decision and Reasons are not available prior to the Member s first meeting with the Expert, the Member shall deliver to the Expert a copy of the Panel s Decision and Reasons within fourteen (14) days of it becoming available. (ii) Review the following College publications: i. Fact Sheet: Mandatory Reporting: A Process Guide For Employers, Facility Operators and Nurses;

8 ii. Practice Standard: Professional Standards (Revised 2002); and iii. Reference Document: Professional Conduct: Professional Misconduct. The Member shall complete a Reflective Questionnaire for each publication and bring the completed Reflective Questionnaires to his sessions with the Expert. (iii) Complete the College s Professional Standards online learning module and complete the relevant online participation form. The Member shall print and bring a copy of the completed online participation form to his sessions with the Expert. (c) The materials referred to in 3 (b) (i) to (iii) above shall be delivered to the Expert at least seven (7) days prior to his first session with the Expert. If the materials referred to in 3 (b) (i) to (iii) above are not received by the Expert, the Expert can cancel the first session as scheduled. (d) The subject of the sessions with the Expert shall include the following: (i) The conduct for which the Member was found to have committed professional misconduct; (ii) An in-depth review of the materials referred to in sub-paragraphs 3 (b) (ii) and (iii) above; (iii) The Member s understanding of the materials referred to in sub-paragraphs 3 (b) (ii) and (iii) above and in particular the materials outlining the obligation to selfreport to the College and the materials outlining the relevance of criminal convictions to suitability to practi[s]e; (iv) The potential consequences of that conduct to his clients, colleagues, profession and himself; (v) Strategies for preventing the unprofessional conduct from occurring again; and, (vi) The development of a learning plan.

9 (e) During the first session with the Expert, the Member shall develop a learning plan in consultation with the Expert to address the subject of the meetings as set out in subparagraphs 3 (d) (i) to (vi) above. (f) During the second and third sessions with the Expert, the Member and the Expert shall further discuss the subject of the meetings as set out in sub-paragraphs 3 (d) (i) to (vi) above and the implementation of the learning plan. (g) Once the Member has completed all of the sessions with the Expert the Member shall ensure that the Director receives a report from the Expert within forty-five (45) days of the last session: (i) confirming that the Expert received and reviewed the documents referred to in subparagraph 3 (b) (i) to (iii) above; (ii) outlining the dates of the Member s participation in the sessions; (iii) outlining the Member s successful completion of the Remedial Program and the fact of his completion of the sessions; and (iv) outlining the Expert s assessment of the Member s insight into his behaviour. (h) The Member shall not practi[s]e independently in the community until the College has received the Expert report referred to in sub-paragraph 3 (g) above. (i) For a period of twenty-four (24) months following the date upon which the Member returns to the practice of nursing, the Member shall: (i) Notify the Director of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position; (ii) Provide his employer(s) with a copy of the Panel s Order, Notice of Hearing and the Panel s written Decision and Reasons, together with any attachments. If the Decision and Reasons are not available on the day the Member returns to nursing practice, the Member shall provide his employer(s) with a copy of the Decision and Reasons within fourteen (14) days of it becoming available;

10 (iii) Only practi[s]e for an employer who agrees to, and does, write to the Director, within fourteen (14) days of the commencement or resumption of the Member s employment in any nursing position to provide the Director with the following: (a) Confirmation that the employer has received a copy of the documents referred to in sub-paragraph 3 (i) (ii) above; and (b) Confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of practice of the profession. All deliveries and notifications to be given by or on behalf of the Member to the College, the Expert and the employer(s) pursuant to these terms are to be made by verifiable method of delivery, the proof of which the Member shall retain. Penalty Submissions College Counsel Although the Member has resigned, any penalty order assigned would take effect if and when the Member renews his registration with the College. The panel should take into account that the Member appeared before the panel, expressed remorse and freely admitted to all of allegations #1 and #2, as well as admitting to unprofessional conduct in allegation #3. In considering general deterrence and public protection the penalty sends a message to its [m]embers that criminal convictions of a violent nature will be punished, and non-disclosure of the convictions will not be tolerated. With regards to specific deterrence, College Counsel states the remedial terms of the penalty will help promote insight for the Member and prevent recurrence of this behaviour. The remediation and monitoring is appropriate for both specific deterrence and protection of the public, as the Member will be monitored for a two-year period following his reintegration to practi[c]e. College Counsel presented two previous cases to the panel to show the penalty ranges for this type of misconduct. Legal Agent for the Member The Member s Legal Agent agreed with the proposed Order, but had no comments to make with respect to it. Penalty Decision

11 The panel accepts the Submission as to Order as presented by College Counsel and agreed to by the Member, and accordingly orders as follows. 1. The Member is ordered to appear before the Panel to be reprimanded on a date to be arranged but, in any event, within three (3) months of the date of the Order. 2. The panel directs the Executive Director to suspend the Member s certificate of registration for a period of seven (7) months. If the Member s certificate of registration is reinstated, then the suspension shall take effect from the date on which the Member s certificate of registration is reinstated and shall continue to run without interruption so long as the Member remits his annual membership fees on time. In the event that the Member fails to pay his annual fees and his certificate of registration becomes suspended for non-payment of fees, any portion of this suspension which has not yet been served shall be served commencing on the day that the Member obtains a new certificate of registration. 3. The panel directs the Executive Director to impose the following terms, conditions and limitations on the Member s certificate of registration: (a) (b) The Member shall, at his own expense, attend a remedial program (the Remedial Program ) with a Nursing Expert ( Expert ) that has expertise with self-regulation and College standards (the Expert ) as approved by the Director of Professional Conduct (the Director ). The Member shall attend three (3) sessions with the Expert. The first session shall be completed within two (2) months of the date of reinstatement of his certificate of registration. The second and third sessions shall be completed between two (2) and seven (7) months from the date of reinstatement of his certificate of registration. Prior to the commencement of the meetings with the Expert referred to in subparagraph 3 (a) above, the Member shall: (i)provide the Expert with a copy of the Discipline Panel s Order, the Notice of Hearing, and, if available, a copy of the Panel s Decision and Reasons. If the Panel s Decision and Reasons are not available prior to the Member s first meeting with the Expert, the Member shall deliver to the Expert a copy of the Panel s Decision and Reasons within fourteen (14) days of it becoming available. (ii)review the following College publications: (i)fact Sheet: Mandatory Reporting: A Process Guide For Employers, Facility Operators and Nurses; (ii)practice Standard: Professional Standards (Revised 2002); and

12 (iii)reference Document: Professional Conduct: Professional Misconduct. The Member shall complete a Reflective Questionnaire for each publication and bring the completed Reflective Questionnaires to his sessions with the Expert. (iii)complete the College s Professional Standards online learning module and complete the relevant online participation form. The Member shall print and bring a copy of the completed online participation form to his sessions with the Expert. (c) (d) The materials referred to in 3 (b) (i) to (iii) above shall be delivered to the Expert at least seven (7) days prior to his first session with the Expert. If the materials referred to in 3 (b) (i) to (iii) above are not received by the Expert, the Expert can cancel the first session as scheduled. The subject of the sessions with the Expert shall include the following: (i) (ii) (iii) (iv) (v) (vi) The conduct for which the Member was found to have committed professional misconduct; An in-depth review of the materials referred to in sub-paragraphs 3 (b) (ii) and (iii) above; The Member s understanding of the materials referred to in sub-paragraphs 3 (b) (ii) and (iii) above and in particular the materials outlining the obligation to selfreport to the College and the materials outlining the relevance of criminal convictions to suitability to practi[s]e; The potential consequences of that conduct to his clients, colleagues, profession and himself; Strategies for preventing the unprofessional conduct from occurring again; and, The development of a learning plan. (e) (f) During the first session with the Expert, the Member shall develop a learning plan in consultation with the Expert to address the subject of the meetings as set out in subparagraphs 3 (d) (i) to (vi) above. During the second and third sessions with the Expert, the Member and the Expert shall further discuss the subject of the meetings as set out in sub-paragraphs 3 (d) (i) to (vi) above and the implementation of the learning plan.

13 (g) Once the Member has completed all of the sessions with the Expert the Member shall ensure that the Director receives a report from the Expert within forty-five (45) days of the last session: (i) (ii) (iii) (iv) confirming that the Expert received and reviewed the documents referred to in subparagraph 3 (b) (i) to (iii) above; outlining the dates of the Member s participation in the sessions; outlining the Member s successful completion of the Remedial Program and the fact of his completion of the sessions; and outlining the Expert s assessment of the Member s insight into his behaviour. (h) (i) The Member shall not practi[s]e independently in the community until the College has received the Expert report referred to in sub-paragraph 3 (g) above. For a period of twenty-four (24) months following the date upon which the Member returns to the practice of nursing, the Member shall: (i) (ii) (iii) Notify the Director of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position; Provide his employer(s) with a copy of the Panel s Order, Notice of Hearing and the Panel s written Decision and Reasons, together with any attachments. If the Decision and Reasons are not available on the day the Member returns to nursing practice, the Member shall provide his employer(s) with a copy of the Decision and Reasons within fourteen (14) days of it becoming available; Only practi[s]e for an employer who agrees to, and does, write to the Director, within fourteen (14) days of the commencement or resumption of the Member s employment in any nursing position, to provide the Director with the following: (a)confirmation that the employer has received a copy of the documents referred to in sub-paragraph 3 (i) (ii) above; and (b)confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of practice of the profession. 4. All deliveries and notifications to be given by or on behalf of the Member to the College, the Expert and the employer(s) pursuant to these terms are to be made by verifiable method of delivery, the proof of which the Member shall retain.

14 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 his actions. The panel found that the penalty was fair to the Member and sent the right message to the membership and to the public. It allows for specific deterrence of the Member in that it provides for an oral reprimand, a lengthy suspension, rehabilitation and remediation should the Member renew his registration. The penalty also provides for general deterrence in that it sends a clear message to the membership that these actions and behaviours will not be tolerated. As far as public protection, the panel finds that this penalty order is sufficient in that it provides for both remediation and a two-year monitoring period following the Member s reintegration to practice. I, Grace Isgro-Topping, 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: Spencer Dickson, RN Megan Sloan, RPN Angela Verrier, RPN John Bald, Public Member