COLLEGE OF NURSES OF ONTARIO CNO DEFENCE AND DISCIPLINE LAWYER
The Firm regularly defends Doctors, Nurses and members of the Health Care industry facing regulatory complaints and criminal charges. Generally as part of the investigation, the patient’s personal health information will be obtained along with other evidence related to the investigation. The Firm defends Nurses facing allegations of sexual abuse and sexual exploitation against their patients which are often vigorously prosecuted by the College in Toronto. Other allegations the Firm handles include violations with respect to record management, incompetence and dishonorable conduct, sexual impropriety with patients, substance abuse at work, conduct unbecoming, unauthorized access of patient records, verbal and physical abuse allegations and other forms of misconduct. The Firm has appeared on Global News to discuss the implications of Nurses facing allegations of misconduct.
The Firm’s exceptional background in criminal defence pretrial resolution and litigation often resolves proceedings without any formal disciplinary action or sanctions by the regulatory body. The Firm has successfully defended Doctors, Dentists, Lawyers, Paralegals, Law Society Discipline Investigators, Nurses, Accountants, Real Estate Agents, Health Care Professionals, Teachers, Financial Service Sector Employees, City of Toronto and Provincial Government Employees, Police Officers and Canada Boarder Service Officers, Canada Revenue Agency Auditors and many other professionals belonging to regulatory bodies and facing prosecution or criminal charges.
Nurses, like many professionals in Canada, must be adequately educated, licensed and regulated by the province in which they practice. Each province regulates their professionals in their own way. In the Firm’s Case No. 75053 it defended a Nurse approaching retirement facing allegations associated with improper disposal of medication and non-compliance with Professional, Medication and Documentation Standards. These allegations can often include non-compliance with a patient’s Care Plan. The matter was resolved entirely without a finding of professional misconduct. The College of Nurses may appoint an investigator to determine the scope of the alleged misconduct or request to meet with you in person.
Frequently Asked Questions
Who Regulates Nurses in Ontario?
Each province in Canada is responsible for regulating the professionals working within that province. In Ontario, the College of Nurses of Ontario is responsible for regulating the practice of nursing. The goal of the College of Nurses of Ontario is to ensure all members practicing nursing are held to the highest professional standards of knowledge and integrity to ensure the highest quality of care. The College of Nurses of Ontario is responsible for enforcing the Nurses Act 1991, which is discussed in more detail below. They ensure that nurses have received the proper education from an accredited institution prior to beginning practice, that practicing members keep up to date with any necessary on-going education and that all members abide by all the regulations laid out in the Nursing Act 1991 and in other relevant statutes such as the Regulated Health Professionals Act 1991, which is applicable to all health care professionals. The main goal is to protect the public from professional misconduct. As such, the College of Nurses of Ontario also accepts formal complaints regarding licensed members and investigates as necessary. If professional misconduct is discovered, the College of Nurses of Ontario will also be the regulating body responsible for punishing the offending nurse.
How are Nurses Regulated?
Nurses in Ontario are regulated by the Nursing Act 1991 which is enforced by the College of Nurses of Ontario. This statute is composed of two sections; the first containing general regulations and the second dealing with professional misconduct. The section dealing with general regulation’s outlines all of the qualifications and requirements necessary to be a registered nurse in Ontario. This includes educational, training and experience requirements. It also outlines the regulations associated with resignation, suspension, termination from the nursing profession and reinstatement. The section goes on to outline which ‘controlled acts’ or medical procedures and treatments nurses may legally carry out. This includes the dispensing and prescribing medications to patients. Finally, the section concludes with a subsection on quality assurance regulations aimed at ensuring patients are provided with the highest quality of care consistently.
The next section of the Nurses Act 1991 outlines various acts or omissions that have been deemed to amount to professional misconduct by the College. This section lists thirty-seven enumerated acts or omissions which if committed by a member of the College of Nurses of Ontario, will be considered professional misconduct and will be grounds for discipline. Some examples include; practicing the profession while the member’s ability to do so is impaired by any substance, abusing a client verbally, physically or emotionally, failing to keep records as required, falsifying records relating to the member’s practice, charging a fee that is excessive in relation to the service for which it was charged and/or engaging in conduct or performing 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. Committing any of the acts or omission’s listed in the professional misconduct regulations of the Nursing Act 1991 could lead to very serious consequences. If a formal complaint has been filed with the College of Nurses of Ontario it is important to contact qualified legal counsel as soon as possible.
The Complaint Process
Nurses, like any professional, owe a duty of care to their patients. Failure to discharge this duty of care may result in a formal complaint being filed with the College of Nurses of Ontario against the practicing nurse. Virtually any member of the public can file a formal complaint against a nurse. Formal complaints can be filled with the College of Nurses of Ontario directly either by mail or email. The complaint must be made in writing or recorded (audio or video) and should include a concise statement outlining the complaint with as much detail as possible, the full legal name of the nurse as well as any other nurses, health care professionals or other persons who may have relevant information and the contact information of the complainant. There is no time limit on when a complaint can be filed.
What Happens when a Complaint is Filed?
Once the College of Nurses of Ontario has received a formal complaint in writing or via recording, they will write a letter to the complainant confirming receipt of the complaint and indicating that an investigation has begun. The letter may also request other necessary information. The College will gather evidence from all relevant sources including interviewing the complainant and other witnesses if necessary. Once all of the necessary information has been compiled by the College, they will send a copy of it to the nurse being accused. The nurse will then have a thirty day period to provide a written response to the complaint. The response will include background information about the nurse including their education, experience and accomplishments. It will also include a response to all of the allegations made in the complaint. Once the College has received the nurses response in writing, they will review it and carry out any necessary further investigation. The nurse will then be given another chance to respond to any new evidence that has been uncovered. Once the investigation is complete the file will be forwarded to the Inquiries, Complaints and Reports Committee for review.
The Inquiries, Complaints and Reports is comprised of experienced nurses, members of the public and is chaired by a representative from the College Council. The Council will review all of the evidence, analyze the seriousness of the allegations and also consider past decisions of the Council regarding the nurse who is the subject of the complaint. Based on all of this evidence the Council will make a decision on whether or not the nurse is guilty of professional misconduct. The Council has several options available to them regarding how they may handle a complaint. If, upon review the Council finds that no misconduct has occurred, they may close the file without any further action. If the Council finds that misconduct has or may have occurred but does not warrant formal discipline, they may offer formal advice to the nurse regarding how he or she could improve their practice, require the nurse to appear in front of the Council to be formally cautioned about their behaviour or require the nurse to complete a Remediation Program. Finally, if the Council determines that professional misconduct has occurred and is serious enough to warrant discipline, they may forward the file to the Discipline Committee for further review. If the file is forwarded to the Discipline Committee the nurse will be required to appear in front of that Committee for a discipline hearing. Whatever the outcome, the nurse will receive a full copy of the Councils decision and their reasoning behind it.
It is important to note that a finding of professional misconduct can have very serious implications on a nurses ability to practice. Once a member becomes aware that a complaint has been filed, they are advised to contact qualified legal counsel as soon as possible. All members of the College or Nurses of Ontario are entitled to have legal counsel present during all stages of the complaint process. Our Firm can help guide you through this process to ensure you receive the best possible outcome in your case.
What Happens at a Discipline Hearing?
If a complaint investigation has been sent to the Discipline Committee, the nurse who has been accused will be required to appear at a public discipline hearing. This hearing operates in much the same way as a court of law. The hearing is open to members of the public and will have a panel of fact finders much the same way a court of law would have a judge. The panel may in some cases ask the complainant to testify at the hearing. After all of the evidence has been presented at the hearing the panel will come to a decision. There are several courses of action the Committee may take including; requiring the nurse to complete remedial education, requiring the nurse to appear in person before the Committee for formal reprimand, requiring the nurse to pay a fine to the government of Ontario, placing conditions on the nurses practice or suspending or revoking the nurses license to practice. Whatever the outcome of the hearing, the Committee’s decision along with their reasoning will be made available to the public through the College of Nurses of Ontario website.
What Types of Acts or Omissions Give Rise to Professional Misconduct Complaints?
There are many different reasons a patient may wish to file a formal complaint against their nurse. Some examples include; practicing the profession while the member’s ability to do so is impaired by any substance, abusing a client verbally, physically or emotionally, failing to keep records as required, falsifying records relating to the member’s practice, charging a fee that is excessive in relation to the service for which it was charged and/or engaging in conduct or performing 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.
What Penalties can Nurses Face as a Result of a Complaint?
As noted in previous sections, there are several courses of action the Committee may take including; requiring the nurse to complete remedial education, requiring the nurse to appear in person before the Committee for formal reprimand, requiring them to pay a fine to the government of Ontario, placing conditions on the nurses practice or suspending or revoking the nurses license to practice. Whatever the outcome of the hearing, the Committee’s decision along with their reasoning will be made available to the public through the College of Nurses of Ontario website.
When does the College of Nurses of Ontario Not have the Ability to Act on a Complaint?
The College of Nurses of Ontario has a statutory obligation to review all complaints it receives, however it does not have the legal authority to act on all of those complaints. There are several situations in which the College could offer no remedy for the complaint that was filed. Examples include; in situations where another organization is already handling the complaint, where the complaint is not about the nurses professional conduct (for example a complaint about the nurse personally), the complaint is about the care facility that employs the nurse and not specifically the nurse, the complaint is made in bad faith (for example a claim filed maliciously) and finally when the complaint has not been signed by the complainant (for example when a complaint is made anonymously).
How to Defend a Formal Complaint made to the College of Nurses of Ontario
As with any legal matter, the best defence will depend largely on the allegations being made and the facts surrounding the case. It is important to contact qualified legal counsel immediately upon receiving notice that a formal complaint has been filed. In some cases, the allegations against the nurse will be unfounded, or simply will not amount to professional misconduct. In these situations the nurse may state that they have not violated any of the rules or regulations surrounding the proper practice of nursing on Ontario. In situations where a more substantive response is required, a common way to defend a professional misconduct allegation is to argue that the nurse did not deviate from the applicable standard of care and that by doing so they sufficiently discharged their duty of care to the patient. This essentially means that the nurse did everything that was necessary and appropriate in the circumstances and as a result have not committed professional misconduct. In any case, the best plan of defence is to contact qualified legal counsel as soon as possible to assist in drafting a response to the particular complaint that has been filed against you.
The Resolution Process
In addition to the formal complaint process, the College of Nurses of Ontario also utilize an alternative dispute resolution process which allows for disputes to be dealt with more quickly. All parties must agree to participate in the process and if everyone is agreeable the College will determine whether or not the dispute is appropriate for the alternative dispute resolution process. Agreement to participate in the process does not mean the nurse has admitted to any wrong doing. The process is not meant to punish the nurse or lay blame, rather it is focused on finding the best possible outcome for everyone involved. A College facilitator will review the complaint with the nurse, identify any issues and then discuss how to best remedy those issues. The College facilitator may pinpoint areas of practice that could be improved upon and indicate how that improvement could take place. The possible remedies will be discussed with the complainant and the nurse in an attempt to come to agreement between the parties. Once an agreement is reached a confidential resolution agreement will be created reflecting the agreement between the College facilitator, the nurse and the complainant.