DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO. PANEL: April Plumton, RPN Chairperson Joseph Gajasan, RN Member

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: April Plumton, RPN Chairperson Joseph Gajasan, RN Member John Bald Public Member BETWEEN: COLLEGE OF NURSES OF ONTARIO ) MATTHEW SAMMON for ) College of Nurses of Ontario - and - ) ) GARY SHARP ) NO REPRESENTATION for Registration No. IF09959 ) Gary Sharp ) ) ) ) Heard: February 13, 2012 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on February 13, 2012 at the College of Nurses of Ontario ( the College ) at Toronto. The Allegations The allegations against Gary Sharp (the Member ) as stated in the Notice of Hearing dated December 15, 2011, 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 you were found guilty of offences that are relevant to your suitability to practi[s]e, namely: a) Assault (November 25, 1997); and/or b) Possession of a Schedule Substance (November 25, 1997); and/or c) Driving with more than 80 mgs of alcohol in blood (June 10, 1998); and/or d) Possession of a Schedule II Substance, two counts (February 20, 2004); and/or e) Assault, two counts (February 17, 2006); and/or

2 f) Impaired Driving (February 17, 2006); and/or g) Breach of Probation (December 15, 2006); and/or h) Breach of Recognizance (December 15, 2006); and/or i) Possession of a dangerous weapon (April 29, 2008); and/or j) Assault (July 24, 2008). 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(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, with respect to the following incidents: a) You failed to disclose prior convictions in your [initial] application for [registration] which you submitted to the College of Nurses of Ontario in [or] about June 1996; b) You failed to disclose one or more prior conviction(s) in your 2004 Annual Membership Renewal form which you submitted to the College of Nurses. 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 with respect to the following incidents: a) You failed to disclose prior convictions in your [initial] application for [registration] which you submitted to the College of Nurses of Ontario in [or] about June 1996; b) You failed to disclose one or more prior conviction(s) in your 2004 Annual Membership Renewal form which you submitted to the College of Nurses. Member s Plea The Member admitted the allegations set out in paragraphs numbered 1 (a), (b), (c), (d), (e), (f), (g), (h), (i), (j); 2 (a), (b); and 3 (a), (b) in 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 agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows.

3 THE MEMBER 1. Gary Sharp (the Member ) received his nursing diploma [ ] in The Member registered with the College of Nurses of Ontario (the College ) as a Registered Practical Nurse ( RPN ) on June 24, The Member was suspended for non-payment of fees in 1997 and reinstated his membership with the College in The Member resigned on August 18, INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT A. Initial Registration 3. On October 30, 1990, the Member was convicted of three breaches of a recognizance. 4. On February 12, 1991, the Member was convicted of four breaches of a recognizance. 5. On December 9, 1995, the Member submitted his initial application for [registration] with the College. At this time, the Member indicated that he did not have any criminal convictions. However, the Member should have disclosed his 1990 and 1991 convictions. B. Subsequent Offences 6. The Member has been convicted of several criminal offences that are related to his suitability to practise. (i) The Member was convicted of assault and possession of a Schedule[d] substance on November 25, (ii) The Member was convicted of driving with more than 80 mgs of alcohol in blood on June 10, (iii) The Member pled guilty to two counts of possession of a Schedule II substance, namely, marijuana and hash, on February 20, The Member was fined $1,000 per count. 10. The Member failed to report the 2004 conviction on his 2004 annual payment form, which [he] executed on April 23, 2004.

4 (iv) The Member pled guilty to impaired driving and two counts of assault on February 17, The facts regarding these convictions are as follows: a. The Member had driven the vehicle and was sitting behind the wheel when the police were called. The Member was arrested and when his blood/alcohol level was measured one hour after his arrest, it was b. Two months later, the Member got into an argument with a few men outside a liquor store and punched one in the shoulder. He then entered the liquor store and, when the manager requested that he leave, he punched the manager in the chest. c. The Member pled guilty to all three charges. For the impaired driving conviction, he received a fine of $1800, a three year driving prohibition and probation. For the two assaults, he received a suspended sentence and three years of probation. 12. Later in 2006, on December 15, the Member was convicted of breach of probation and failure to comply with an undertaking relating to the convictions from earlier in the year. The Member had failed to report to his probation officer three times. The Member pled guilty and was sentenced to 15 days custody. (v) The Member was convicted of possession of a dangerous weapon on April 29, Police responded to a call and found the Member sitting in front of a printing shop and holding a knife. The police disarmed the Member without incident. The Member pled guilty and was sentenced to 18 months probation. 14. Three months later, the Member was convicted of assault, on July 24, The Member attended at his stepson s house, and pounded and kicked at his door because he was upset that he had skipped school. The Member indicated to the police that he would slap him in the head. The Member pled guilty and was sentenced to a 90-day conditional sentence. C. Member s Comments 15. If the Member were to testify, he would say that he was under significant personal stress at the time of the 2008 convictions. 16. If the Member were to testify, he would say that he has demonstrated remorse for his actions and is actively pursuing treatment. He would say that he has taken steps to reintegrate himself into the community by joining a Men s Group and has become active in his church.

5 ADMISSIONS OF PROFESSIONAL MISCONDUCT 17. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1-3 of the Notice of Hearing, and in particular his conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 3-16 above. Decision The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and in particular, finds that the Member committed [acts] of professional misconduct as alleged in paragraphs: 1 (a), (b), (c), (d), (e), (f), (g), (h), (i), (j); 2 (a), (b); and 3 (a), (b) of the Notice of Hearing. Reasons for Decision The Member had been found guilty of: assault (November 25, 1997); possession of a Schedule substance (November 25, 1997); driving with more than 80 mgs of alcohol in blood (June 10, 1998); possession of a Schedule II substance, two counts (February 20, 2004); assault, two counts (February 17, 2006); impaired driving (February 17, 2006); breach of probation (December 15, 2006); breach of recognizance (December 15, 2006); possession of [a] dangerous weapon (April 29, 2008); and assault (July 24, 2008). These offences are relevant to the Member s suitability to practi[s]e in that they demonstrate behaviours which are definitely not those of a nurse that would encourage public trust in the profession. One of the requirements for registration as a nurse is that the nurse must not have been found guilty of a criminal offence or [an] offence under the Controlled Drugs and Substances Act (Canada) or the Food and Drug Act (Canada). When this has occurred, the panel must look at the nature and severity of the offence, the number of offences and the time elapsed since the last offence. When considering these factors, the panel felt they were relevant to this Member s suitability to practi[s]e. The Member signed or issued in his professional capacity a document that he knew or ought to have known contained a false or misleading statement with respect to the following incidents: His failure to disclose prior convictions in his [initial] application for a [registration] in June 1996; and His failure to disclose prior convictions in his 2004 Annual Membership Renewal form. As to allegation 3, the Member engaged in [ ] conduct that would be reasonably regarded by the profession as disgraceful, dishonourable, and unprofessional with respect to:

6 His failure to disclose prior convictions in his [initial] application for [registration] in June 1996, and His failure to disclose prior convictions in his 2004 Annual Membership Renewal form. Penalty Counsel for the College advised the panel that a Joint Submission as to Order had been agreed upon. The Joint Submission as to Order requests that this panel make an order as follows: 1. Requiring the Member to appear before the Panel to be reprimanded within three (3) months of the date of this Order. 2. Directing the Executive Director to suspend the Member s certificate of registration for four (4) months. This suspension shall take effect from the date that the Member obtains an active 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 will, at his own expense, attend a remedial program (the Remedial Program ) with a Nursing Expert (the Expert ).The number of meetings for the Remedial Program shall be determined by the Expert, based upon the Expert s assessment of whether the Member has gained sufficient insight into the conduct set out in the Agreed Statement of Facts such that similar conduct is unlikely to recur. The first meeting shall be completed within two (2) months from the date the Member obtains an active certificate of registration. If the Expert determines that more than one (1) meeting is required for the successful completion of the Remedial Program, the Expert will advise the Member and write to the Director regarding the total number of meetings that are required and the length of time required to complete the additional meetings, but in any event, all meetings shall be completed within four (4) months from the date the Member obtains an active certificate of registration. To comply, the Member is required to ensure that: i. The Expert has expertise in self-regulation, has been approved by the Director of Professional Conduct (the Director ) in advance of the meeting(s), and has confirmed he/she will provide a report following the session(s); ii. At least [seven] (7) 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;

7 iii. Before the first meeting, the Member reviews the following College publications: 1. Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses; and 2. Reference Document: Professional Conduct: Professional Misconduct iv. Before the first meeting, the Member reviews the Practice Standard: Professional Standards (Revised 2002) and completes the associated Reflective Questionnaire and online learning module. v. At least [seven] (7) days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaire and online participation form; vi. The subject of the session(s) 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; vii. Within 30 days after the Member has completed the last session, the Expert forwards his/her report to the Director, in which the Expert will confirm: 1. the date(s) the Member attended the session(s), 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 his behaviour; viii. If the Member does not comply with any 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 his certificate of registration; b) For a period of 12 months from the date the Member obtains an active certificate of registration, the Member will notify his employers of this decision. To comply, the Member is required to ensure that:

8 (i) (ii) The Director is notified 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: 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) 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 it received a copy of the required documents, and 2. that [it] agrees to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and (iv) All documents delivered by the Member to the College, the Expert or the employer(s) will be made by verifiable method of delivery, the proof of which the Member will retain. Penalty Submissions Counsel for the College advised that the main objective of any penalty is public protection. He stated that the proposed penalty strikes the correct balance, as it has elements of specific deterrence, general deterrence and rehabilitation. The proposed penalty sends a message to nurses that there are serious consequences to this type of behaviour. The rehabilitation component of the proposed penalty protects the public while allowing the Member to return to the profession. Mitigating factors for the panel s consideration were: remorse shown by the Member; the apparent stress of the Member; the fact that he admitted the allegations; the Member s willingness to remediate himself; and the fact that the Member has no prior discipline history with the College or inappropriate nursing practice endangering [clients] or co-workers. Aggravating factors for the panel s consideration were: [ ]; the seriousness and the number of the offences; the Member s failure to disclose prior convictions in the [initial] application for [registration] and [on the] Annual Membership Renewal form. These actions suggest moral failure and dishonesty.

9 Penalty Decision The panel accepts the Joint Submission as to Order and accordingly orders: 1. The Member shall appear before the Panel to be reprimanded within three (3) months of the date of this Order. 2. The Executive Director is directed to suspend the Member s certificate of registration for four (4) months. This suspension shall take effect from the date that the Member obtains an active certificate of registration. 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, at his own expense, attend a remedial program (the Remedial Program ) with a Nursing Expert (the Expert ). The number of meetings for the Remedial Program shall be determined by the Expert, based upon the Expert s assessment of whether the Member has gained sufficient insight into the conduct set out in the Agreed Statement of Facts such that similar conduct is unlikely to recur. The first meeting shall be completed within two (2) months from the date the Member obtains an active certificate of registration. If the Expert determines that more than one (1) meeting is required for the successful completion of the Remedial Program, the Expert will advise the Member and write to the Director regarding the total number of meetings that are required and the length of time required to complete the additional meetings, but in any event, all meetings shall be completed within four (4) months from the date the Member obtains an active certificate of registration. To comply, the Member is required to ensure that: i. The Expert has expertise in self-regulation, has been approved by the Director of Professional Conduct (the Director ) in advance of the meeting(s), and has confirmed he/she will provide a report following the session(s); ii. At least [seven] (7) 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: 1. Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses; and 2. Reference Document: Professional Conduct: Professional Misconduct

10 iv. Before the first meeting, the Member reviews the Practice Standard: Professional Standards (Revised 2002) and completes the associated Reflective Questionnaire and online learning module. v. At least [seven] (7) days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaire and online participation form; vi. The subject of the session(s) 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; vii. Within 30 days after the Member has completed the last session, the Expert forwards his/her report to the Director, in which the Expert will confirm: 1. the date(s) the Member attended the session(s), 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 his behaviour; viii. If the Member does not comply with any 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 his certificate of registration; b) For a period of 12 months from the date the Member obtains an active certificate of registration, the Member will notify his employers of this decision. To comply, the Member is required to ensure that: (i) 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 his 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;

11 (iii) 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 it received a copy of the required documents, and 2. that [it] agrees to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and (iv) All documents delivered by the Member to the College, the Expert or the employer(s) will be made by verifiable method of delivery, the proof of which the Member will retain. Reasons for Penalty Decision The panel concluded that the 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 and has avoided unnecessary expense to the College. The penalty provides for specific deterrence to the Member and general deterrence to the membership and protects the public. I, April Plumton, RPN, 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: Joseph Gajasan, RN John Bald, Public Member