DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Transcription

1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO This decision was followed by an appeal, the results of which can be found at the end of this document. PANEL: Sarah Corkey, RN Chairperson Susan Roger, RN Member Mary MacMillan-Gilkinson Public Member Chuck Williams Public Member BETWEEN: COLLEGE OF NURSES OF ONTARIO EMILY LAWRENCE for College of Nurses of Ontario - and - MARK DUMCHIN NO REPRESENTATION for Registration No Mark Dumchin LUISA RITACCA Independent Legal Counsel Heard: March 5, 2015 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on March 5, 2015, at the College of Nurses of Ontario ( the College at Toronto. The Allegations The allegations against Mark Dumchin (the Member as stated in the Notice of Hearing dated November 25, 2014, are as follows.

2 IT IS ALLEGED THAT: 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 on or about November 16, 2012, in the Ontario Superior Court of Justice in [], Ontario, you were found guilty of an offence relevant to your suitability to practise, and in particular, you were found guilty of the following: Member s Plea a on or about the 19 th day of November in the year 2010 [ ], you did without lawful excuse, possess child pornography in the form of files, contrary to section 163.1(4 of the Criminal Code of Canada; and/or b on or about the 19 th day of November in the year 2010 [ ], you did without lawful excuse, make available child pornography in the form of a video file, contrary to section 163.1(3 of the Criminal Code of Canada. The Member admitted the acts of professional misconduct as alleged in paragraphs 1(a and 1(b of the Notice of Hearing. Overview The Member was licensed as a registered nurse from March 9, 2004 until February 4, On that date, he resigned his registration with the College. In November 2010, the Member was charged with possessing child pornography in the form of a file and further making available child pornography in the form of a video file. The Member pleaded and was found guilty of these charges on November 16, Subsequently, he was sentenced to 90 days intermittent incarceration, 18 months probation, which included mandated counselling, and restrictions on being alone with children. The panel was advised that the restrictions with regard to his own children were eventually lifted. The panel received certified court transcripts, in addition to letters of support for the Member, professional accomplishments including his curriculum vitae and two reports from the Member s counsellors. The College took the position that despite these letters of support and the Member s professional accomplishments, the panel ought to make a finding of professional misconduct in light of the Member s criminal convictions for conduct relevant to his suitability to practi[s]e. As set out below, the panel found the Member committed professional misconduct in light of his criminal convictions for offences relevant to his suitability to practi[s]e. The Evidence

3 The panel accepted the affidavit evidence of [an individual] who is employed at the College in the position of Prosecution Administrator. Her evidence confirmed delivery of the Notice of Hearing, as did the Member s presence for and participation at the hearing. The College Register s report was admitted into evidence confirming the Member s resignation date (February 4, 2013 and noting that hearing pending for this matter, which was referred to the Discipline Committee, April 30, Partial court transcripts dated November 16, 2012, were admitted and reveal that the Member pleaded guilty in Provincial Court on the charges described above. The Member s court hearing was resolved through an Agreed Statement of Facts. Certified copies of the Member s criminal charges, court appearances and the outcome of criminal proceedings were filed with the panel. The certified court documents confirmed that the Member was found guilty of without lawful excuse, possess child pornography in the form of a file and make available child pornography in the form of a video file. The Member was sentenced for these offences by order dated May 6, The Member received a sentence that included the requirement for counsel[l]ing, a 90-day[ ] intermittent incarceration order, 18 months probation, a DNA order, and a prohibition order restricting his contact with children, including his own. The order also provided for the forfeiture of any items used in the commission of these offences. The Panel received copies of two counsel[l]ing consultations regarding the Member s history and prior conduct. A comprehensive report identified as having been prepared by [Dr. A], Forensic Psychiatrist, dated April 19, 2013, summarized the Member s risks and prognosis. The Panel was asked to note that the Member s offending only occurred in a short time period of high stress and that the Member s risk to reoffend in a similar manner [was] low [ ]. A report from [Dr. B], Counselling and Assessment Services, dated April 12, 2013, was also admitted to evidence. The Panel was asked to consider [Dr. B] s summary that the Member stated that his decision to plead guilty to his charges was a statement of personal responsibility and further added was necessary to protect his family from harm [ ]. The Panel received two documents outlining the Member s desire to avoid a discipline hearing and all associated costs. A letter dated January 20, 2014 [ ] was admitted into evidence, as was an , dated January 17, 2015, from the Member to College Counsel, which further outlined the Member s desire to avoid a contested hearing before the Discipline Committee. The Member s curriculum vitae, ten pages of professional accomplishments, three personal letters of reference and the Interview Summary from the College Investigator [of] the Member s previous employer were accepted into evidence by the Panel. These documents summarized the Member s progressive, professional career as a staff nurse and clinical educator. Final Submissions

4 College Counsel summarized the College s position by reviewing the certified court documents, together with the transcripts filed. The College submitted that given the seriousness of the Member s criminal conduct, this Panel should find it to be highly relevant to his suitability to practi[s]e, even though the offences were committed outside of the nursing context. Counsel reminded the Panel that while the Member has now resigned from the College, pursuant to section 14(1 of the Health Professions Procedure Code ( Code, the College has continuing jurisdiction over the Member for matters referable to a time when he was a member of the College. The Member was found guilty of criminal offences on November 16, 2012, and subsequently resigned his registration on February 4, [ ] [The] College has continuing jurisdiction for professional misconduct over former members for acts that occurred while they were a member. The Member shared the personal and professional impacts of his behavior with the Panel. He described aspects of significant emotional distress, feeling stigmatized and [feeling] guilt and shame for his actions. The Member resigned his registration with the College and left behind future career opportunities and had to subject his family to financial loss due to periods of unemployment. The Member stated that he has taken full responsibility for his actions with regard to the criminal matters and had made attempts to avoid a contested hearing with the College here. The Member contended that this hearing was unwarranted and prejudice-based. While he agreed that section 14(1 of the Code provides for continuing jurisdiction over members who have resigned, he argued that section 13(2, which provides that a person whose certificate of registration is suspended is not a member is inconsistent with the notion that the College can proceed against a member who has resigned. The Member alleged that, despite having no previous concerns with his professional past and no future concerns due to his resignation, the College has proceeded to this hearing without legal grounds. The Member stated that this unwarranted hearing would not be seen to be favourable in the eyes of the public. The Member referred the Panel to his professional accomplishments and letters of reference from previous employers, students and counsel[l]ors. The Member used these exhibits to confirm his commitment to provide compassionate and ethical care to my patients. The Member told the Panel that he had resigned his registration with the College to avoid further impact and prejudice towards his family. He apologized to the Panel for the stain he had caused the College. Prior to the conclusion of Final Submissions, the Member was given an opportunity to clarify his plea. The Member confirmed that he was guilty of the allegations set out in the Notice of Hearing and that he accepted that his conduct amounted to professional misconduct, having committed an offence relevant to his suitability to practi[s]e.

5 Decision Having considered the certified copies of the court proceedings and the Member s admission of guilt, the Panel finds that the Member committed acts of professional misconduct as alleged in Paragraphs 1 (a and 1 (b of the Notice of Hearing. Reasons for Decision The Panel agrees that the facts related to the child pornography convictions are clear and uncontested and have been admitted by the Member in criminal court and during this College hearing. The Panel further agrees that possessing and making available child pornography is relevant to the practice of nursing as this type of behavior is inconsistent with the College s mandate to protect the public. The Panel agreed that exploitation of children in this manner would be wholly contrary to the profession's reputation and the public's perception of the integrity of nursing. Penalty Penalty Submissions Counsel for the College made submissions with respect to penalty, and submitted that the Member be required to appear for an oral reprimand and further submitted that this Panel ought to revoke the Member s certificate of registration effective from the date the Member obtains an active certificate of registration, should that ever occur in the future. College Counsel argued that while the Member is by his own election no longer a member, he is able to seek re-registration and so an order from this panel revoking any such future certificate is warranted. Counsel stated that while the practical effect to protect the public is similar with either resignation or revocation, the specific components are not the same: resignation is voluntary as it is up to the member to decide to no longer be registered. A revocation is a decision made by this Committee effectively removing the member from the practice of nursing. An order revoking the member ensures that the public is adequately protected and further maintains the public confidence in this College. College Counsel presented an alternative penalty order for the Panel s consideration that included a reprimand, suspension for 12 months following reinstatement, remediation, employer notification and limitations to a practice environment that does not include clients under the age of 18. This alternative acknowledges mitigating and aggravating factors: the Member has participated in the College processes and admitted his conduct; he has sought treatment and the experts believe that he is at low risk of re-offending; the Member has no past disciplinary history with the College; and there are no findings that the Member sexually abused any children. Aggravating factors were identified by College Counsel and include: this behavior is odious and inconsistent with the practice of nursing; child pornography exploits a vulnerable group; and possessing and making available child pornography further victimizes children. The Member submitted that there is no mandatory minimum penalty in his circumstances. He argued that revocation is not appropriate as he has resigned. He asked the Panel to have regard

6 for his unblemished nursing career, his willingness to participate in this hearing and his attempts to mitigate costs associated with these proceedings. The Member requested a publication ban on the College Register to [avoid] potential prejudice and [protect] the privacy of his family. He argued that sections 23(2.7 and (11 of the Code apply [in] this instance and further preserve[ ] the integrity of the profession. College Counsel countered that section 23(2.7 is within the jurisdiction of the Registrar and does not fall into this Panel s jurisdiction. Independent Legal Counsel (ILC advised a The Panel does not have the jurisdiction under s. 51(2 of the Code to order the Registrar to revoke, suspend and/or impose terms, conditions or limitations because the Member does not have a current certificate of registration. To do so would be to impose a prospective penalty. The panel does have the jurisdiction to order the Member to be reprimanded. b If the Member seeks to return to the practice of nursing, he will be required to apply to the Registration Committee for reinstatement. The Registration Committee will have information regarding this Panel s findings of professional misconduct. The Registration Committee is the appropriate venue to determine if the Member should be permitted to return to the practice of nursing and that Committee may impose terms and conditions as appropriate. c The Panel has the jurisdiction and power to comment on the appropriate penalty order that this Panel would have imposed if it had the jurisdiction to do so. In light of our ILC s advice, the parties were provided with time after the end of the oral hearing to deliver written submissions on the issue of the Panel s jurisdiction to order a revocation in the circumstances. College Counsel argued that section 51(2 of the Code provides broad jurisdiction to make orders after it makes findings of professional misconduct, including directing the Registrar to revoke, suspend, and/or impose terms, conditions and limitations on a member s certificate, to be effective if and once that member obtains an active certificate of registration. College Counsel argued that provisions found in s.14 of the Code provid[ing] the College with continuing jurisdiction over resigned or revoked members for instances of professional misconduct that occurred when the person was a member, must be read to include the power of this Committee to impose penalties. Process continuation should be considered to follow if a resigned member is responsible for conduct while they held an active certificate of registration, [and] penalty orders should also apply. College Counsel further argued that the interpretation proposed by Independent Legal Counsel would limit the College s and the Discipline Committee s ability to regulate its members as resignation is a voluntary act by the member. College Counsel defends their position by extending similar circumstances to a matter of sexual abuse (where revocation is mandatory in that Independent Legal Counsel s advice would

7 prevent a panel of the Discipline Committee from imposing this mandatory sanction on a resigned or revoked member. As acknowledged by Independent Legal Counsel, resignation does not have the same deterrent effect as revocation or suspension, nor does it have the same public protection role as the imposition of terms, conditions and limitations. In response to Independent Legal Counsel s advice that this Panel cannot make a forwardlooking order that directs the processes of the Registrar and Registration Committee, College Counsel submitted that the Registration Committee has a different mandate and sets standards for access to the profession; the Discipline Committee identifies and sanctions misconduct. College Counsel added that the Registration Committee has the authority to decline registration or impose its own terms, limitations and/ or conditions in order to meet its mandate. In his written submissions, the Member agreed that section 14(1 of the Code speaks to continuing jurisdiction over a person whose certificate of registration is revoked or expired or who resigns as a member continues to be subject to the jurisdiction of the College for professional misconduct. [However, he] adds that s.13 (2 states that a person [whose] certificate of registration is suspended is not a member. The Member asserts that the legislation clearly points out that certificate of membership not only has to be issued by the Registrar, but also has to be active in order to comply with the panel jurisdiction to impose sanctions. The Member contends that this aspect of the legislation is intended to prevent the panel from imposing the same penalty twice or, in this case, a prospective or protective penalty. In addition, the Member requested consideration to direct the Registrar not to include any identifying information on the Registry. The Member once again directed the Panel to section 23 (11(a of the Code, which provides in part that the Registrar shall refuse to disclose on the College s website information required [by] paragraph 7 of section (2 if (a a finding of professional misconduct [was made] against the member and the order made was only a reprimand or only a fine. The Member asked for this consideration to avert potential prejudice towards family members. College Counsel replied to the Member s request that the Panel make an order directing the Registrar not to place any information regarding the finding of professional misconduct and/ or penalty imposed on the Register, under his name. College Counsel submitted that the Panel does not have the jurisdiction to make either of these orders. Section 23(2.7 requires that a synopsis of every disciplinary proceeding including the result will be published, unless the panel makes no findings. The College further submitted that section 23 (4 of the Code permits the Panel to specify information that is to be included in the register in addition to the information required. That section does not authorize the Panel to limit the information that is required by statute. Finally, College Counsel referred the Panel to s.23 (11 of the Code and argued that these provisions must be taken in their entirety and therefore read together as preconditions for public disclosure and resulting publication by the Registrar. Penalty Decision The Panel finds that in light of the serious nature of the Member s professional misconduct, the appropriate order in this case would have been revocation. Had the Member had an active

8 certificate of registration at the time of the Panel s findings, this panel would have ordered that his certificate be revoked. Revocation, in this instance, is considered by the Panel to be only one component of penalty and the Member is further ordered to appear before the Panel to be reprimanded within three months of the date this Order becomes final. Reasons for Penalty Decision The Panel reviewed the cases submitted by the College, and the Code, and deliberated on the submissions of College Counsel and the Member. In considering the matter of jurisdiction to set terms, limitations and/ or conditions on an inactive member s certificate of registration, the Panel referred to s.15 (1 and (2 and the processes described to guide the actions of the Registrar and the Registration Committee. The Code specifies that the Registrar shall register the applicant directly or refer the application to the Registration Committee if there are concerns regarding the applicant s registration requirements, [if the Registrar] believes terms, conditions or limitations should be applied to the application or directly upon a certificate (if the applicant does not agree or if the Registrar proposes to refuse the application. Without binding the hands of the Registrar or the Registration Committee, this Panel recognizes that they are unable to impose limitations on re-registration and trusts the judgment and authority of those decision-making bodies within the College. The Panel considered College Counsel s argument that continuing jurisdiction when a member has resigned is clearly provided for in the Code, and must by implication include the jurisdiction to impose a penalty (even revocation on a non-existent certificate. The Panel does not agree that the continuing jurisdiction to investigate and adjudicate on matters referable to a time when a person was a member of the College extends the Discipline Committee s jurisdiction to impose revocation on a non-existent certificate. The Panel agrees with the College s position with regard to the publication requirements set out in section 23 of the Code. The Member s reliance on section 23(11 is misplaced: all of the preconditions set out [therein] must be met before the Registrar can withhold information from the public. Those preconditions have not been met here. The Panel has no authority under section 23(11 to direct the Registrar to withhold any information about this matter. The Panel agrees that it is important for the protection of the public and for public transparency, that this decision and the panel s reasons be recorded and available on the Register in the usual manner. The Panel recognized that an oral reprimand may seem superfluous when revocation would have been recommended for a member with an active certificate of registration. In this instance of a resigned member, the Panel agreed that an oral reprimand, applied in the present time, would act as a general deterrent to the membership and as a specific deterrent to the Member. I, Sarah Corkey, 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:

9 Chairperson Date Panel Members: Susan Roger, RN Mary MacMillan-Gilkinson, Public Member Chuck Williams, Public Member Appeal On April 4, 2016, the Ontario Superior Court of Justice, Divisional Court released its decision. It found that the Panel s conclusion that it lacked jurisdiction to impose revocation, a suspension and/or conditions on a certificate of registration of a member of the College who has resigned, was unreasonable. The Court noted that the legal scheme provides the College with continuing jurisdiction to investigate a member who has resigned, for misconduct that occurred while he or she was still a member. The purpose of this continuing jurisdiction is to ensure that members are held accountable to their regulator for the prime objective of protection of the public. The Court found that the Panel s interpretation was unreasonable as it did not give effect to this purpose. It would allow members to resign to avoid the consequences of their misconduct, which is antithetical to the overarching public protection aims of the disciplinary process. As a result, the Court set aside the Panel s decision and replaced it with an order revoking the Member s certificate of registration.