Akinlade, Babawale

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

FULL-TEXT DECISION

Note: This is the full text of the decision of the Discipline panel in this matter. Any information identifying clients, witnesses or facilities has been removed [ ]. The member's name is omitted if the allegations have been dismissed or if the results are not placed on the public portion of the Register.

Panel:

KIM PEDERSON, RPN Chairperson
DAWN NORLING, RPN Member
ARLENE GRANT, RN Member
ANGUS TAYLOR Public Representative
BRENDA NOBLE Public Representative

BETWEEN:

Heard: MARCH 24-27, 2003

DECISION AND REASONS FOR DECISION

A panel of the Discipline Committee was convened on March 24, 2003 at the College of Nurses of Ontario ("College" or "CNO") at Toronto to hear allegations of professional misconduct against Babawale Akinlade, the Member.

The Member was not present, nor was he represented by counsel. Prior to proceeding with the hearing, the panel recessed for the grace period of 30 minutes, to allow the Member to appear.

The Allegations

The allegations against Babawale Akinlade R.P.N. as stated in the Notice of Hearing dated February 5, 2003 are as follows:

1. You have committed an act of professional misconduct as provided by Subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.5 of Ontario Regulation 799/93, in that during the period between January 1, 2001 and February 26, 2001, you discontinued professional services needed by a client, the particulars of which are set out in Appendix A.
2. You have committed an act of professional misconduct as provided by Subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.8 of Ontario Regulation 799/93, in that during the period between January 1, 2001 and February 26, 2001, you misappropriated property from a client or workplace, the particulars of which are set out in Appendix A.
3. You have committed an act of professional misconduct as provided by Subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.14 of Ontario Regulation 799/93, in that during the period between January 1, 2001 and February 26, 2001, you falsified a record relating to your practice, particulars of which are set out in Appendix A.
4. You have committed an act of professional misconduct as provided by Subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.15 of Ontario Regulation 799/93, in that during the period between January 1, 2001 and February 26,2001, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, the particulars of which are set out in Appendix A.
5. You have committed an act of professional misconduct as provided by Subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.28 of Ontario Regulation 799/93, in that during the period between January 1, 2001 and February 26, 2001, you submitted an account or charge for services that you knew was false and misleading, the particulars of which are set out in Appendix A.
6. You have committed an act of professional misconduct as provided by Subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.37 of Ontario Regulation 799/93, in that during the period between January 1, 2001 and February 26, 2001, you engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, the particulars of which are set out in Appendix A.

Appendix A

Particulars re: Babawale Akinlade

1. At all material times the Member was employed by [the Agency] as a Registered Practical Nurse.
2. On or about January and February 2001, the Member was assigned as a nurse for the following clients:
   1. [client "A"]
   2. [client "B"]
   3. [client "C"]
   4. [client "D"]
   5. [client "E"]
   6. [client "F"]
   7. [client "G"]
   8. [client "H"]
   9. [client "I"]
   10. [client "J"]
   11. [client "K"]
3. In or about January and February 2001, the Member failed to attend for visits to one or more of the clients listed above, as required.
4. In or about January and February 2001, the Member failed to maintain proper nursing records with respect to his care of one or more of the clients listed above.
5. In or about January and February 2001, the Member submitted time records for billing purposes which were false, in that they suggested that visits had been made by the Member and/or other persons to one or more of the clients listed above, when in fact such visits had not been made.
6. In or about January and February 2001, the Member sought and received payment of amounts of money related to attending on one or more of the clients listed above, when the Member did not in fact attend on the client or clients.
7. From in or about April 2000 to February 2001, the Member failed to properly assess, develop and update care plans, maintain adequate records for clients, including [clients "C", "L", "M" and "N"].

Member's Plea

Because the Member was neither present nor represented by counsel, the panel proceeded on the basis that the Member denied the allegations.

Overview

In addition to the Notice of Hearing (Exhibit #1) dated February 5, 2003, counsel for the College presented the panel with an Affidavit of Service (Exhibit # 3) showing that on February 10 and 18, 2003 attempts to serve the Member with the Notice of Hearing were unsuccessful. Subsequent attempts by the College to effect service of the Notice of Hearing also proved to be unsuccessful, as can be seen in Exhibits #4 through #12. The panel was satisfied that all reasonable attempts had been made to provide notice to the Member. The panel accepted College counsel's submission that it was appropriate to proceed in the Member's absence.

Publication Ban

The panel ordered a publication ban on March 24, 2003 with respect to the use of clients' full names, thereby allowing the use of clients' initials only. This order is made pursuant to s. 45 of the Health Professions Procedural Code.

The Member

The Member, Babawale Akinlade, R.P.N., was registered with the College of Nurses of Ontario. At the time of the alleged allegations he was employed by [the Agency].

The issues in this case that were to be considered are as follows:

1. Did the Member discontinue professional services needed by a client?
2. Did the Member misappropriate property from a client or workplace?
3. Did the Member falsify a record relating to his practice?
4. Did the Member sign or issue, in his professional capacity, a document that he knew or ought to have known, contained a false or misleading statement?
5. Did the Member submit an account or charge for services that he knew was false or misleading?
6. Did the Member engage in conduct or perform an act or 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?

THE EVIDENCE

The College introduced evidence from seven witnesses, the testimony of one, [client "A"], being placed before us by means of audio-visual tape.

Witness #1-[Hearings Administrator]

[ ], Hearings Administrator, at the College of Nurses of Ontario, testified that her responsibility was to ensure the Member was served with the Notice of Hearing. Her testimony described several reasonable, but unsuccessful, attempts to serve the Notice of Hearing, Exhibit #1, as illustrated in Exhibits #2 through #12.

The panel found [the Hearings Administrator] to be credible, and accepted her evidence.

Witness # 2- [Prosecution Case Co-ordinator]

[ ], Prosecution Case Co-ordinator with the College, testified to his unsuccessful attempt to contact the Member to reschedule the Pre-Hearing Conference as illustrated through the 2002 Payment Form (Exhibit # 4).

The panel found this witness to be credible, and accepted his evidence.

Witness # 3- [RN "A"]

[RN "A"], was the Program Manager with [the Agency] during the time period of the alleged allegations. [RN "A"] testified her responsibilities included ensuring that program services were provided according to the standards of the profession. [RN "A"] testified that she also received referrals from a number of sources including [the Referring Agency].

[RN "A"] testified that client care requirements are defined in the written referral. A client co-ordinator assigns clients to qualified staff according to the skills required for the care of these clients. A registered nurse is assigned as primary care nurse and does the initial three visits performing patient assessment and developing a nursing care plan. Responsibility for determining the frequency of visits is ordered by the physician, subject to change based on the assessment of the client by the nursing care team.

[RN "A"] testified that the Member was known to her because he was an employee of [the Agency] working under her supervision. [RN "A"] testified as to the process [Agency] employees follow when billing for client visits and the rate of pay for each category of nurse.

[RN "A"] also testified that the Member's employment was terminated as a result of an investigation of a high-risk occurrence, i.e. a complaint that had potential for injury to a client or potential for litigation. She received the complaint from a District Coordinator of [the Agency], who left a voice-phone message stating that the son of [client "A"] had phoned and stated his concern that his father had not been seen by a nurse in three weeks. [RN "A"] identified the nurse as Babawale Akinlade. [RN "A"] testified as to the protocol followed by [the Agency] when investigating a complaint. A supervisor was to assess the client, verify the complaint and do a chart audit. [RN "A"] then arranged for [ RN "B"], Nursing Supervisor, to assess [client "A"], verify the complaint, and conduct a chart audit.

[RN "A"] testified to having had a discussion with the Member on February 19, 2001 regarding the allegations. The witness testified that in this discussion, the Member stated he had visited [client "A"] only once a week, and telephoned twice a week. He then stated that he billed [the Agency] for three visits a week, because he felt that the two phone calls made to the client's wife regarding her husband's wound status and dressing changes constituted nursing visits. [RN "A"] testified that she reminded the Member that a visit required physical presence, performance of a task, and proper nursing documentation of the event, as indicated in his employment orientation.

[RN "A"] identified the "Time Slip Record for Home Care" slips submitted by the Member, (Exhibit # 14), illustrating the frequency of visits planned by the Member and the history of the Member's visits to his clients. A "Service Charges Slip" from [the Agency] (Exhibit #15) shows the number of client visits for which the Member billed. [RN "A"] testified the Nursing Supervisor reported that she found no client chart in the home when she attempted to do a chart audit.

The witness testified that the Member admitted to her that there was no chart for [client "A"], as the Member thought the client would soon be discharged from [the Agency].

The witness testified that she then advised the Member at their meeting on February 19, 2001, that he was being suspended with pay during the investigation.

By reference to a handwritten memorandum (Exhibit #16), [RN "A"] testified about reassigning Mr. Akinlade's case load during his suspension from [the Agency] and the requirements for his re- orientation session on documentation.

[RN "A"] called to confirm with [client "A's" wife] that the Member had not visited [client "A"]. During the conversation [client "A's" wife] said the Member taught her to do the dressings, and that she was running out of dressing supplies. [RN "A"] inquired about the phone calls made by the Member, and [client "A's" wife] denied receiving any phone calls from the Member. Following the conversation with [client "A's" wife], [RN "A"] filled out a "High Risk Occurrence Investigation Report" (Exhibit #17 ).

Upon receiving the in-home chart auditing summary (Exhibit #18), Summary of Supervision & In Home Chart Auditing, [RN "A"] testified that it clearly showed several areas of concern, including nursing documentation, communication and actual competence. Therefore, [RN "A"] terminated the Member's employment with [the Agency].

The witness then testified about [the Agency's] policy and procedures, as shown in "Guideline for RN/RPN Communication in a Nursing Program" (Exhibit #19), "Guideline for Recording" (Exhibit #20) and "The Nursing Visit" (Exhibit #21). The "Medical Confirmation Form"s (Exhibit # 22) illustrates the original physician's order regarding frequency of the dressing changes.

[RN "A"] testified to billing submitted and received by the Member in respect to the visits to [client "A"] and improper use of the initials of the co-worker, [RPN "A"]. In doing so, [RN "A"] referred to [the Agency's] "Time Slip Record for Home Care Visiting Nurse/Therapy Program" for the week ending January 7, 2001(Exhibit #13), "Time Slip Record for Home Care Visiting Nurse/Therapy Program week" for the week ending January 28, 2001 (Exhibit #14), "Transmission Report Payroll Data" for the week ending January 7, 2001 (Exhibit # 23), "Transmission Report Detailed Billing Data" for the week ending January 7, 2001 (Exhibit # 24) and "Client Billing Detailed Report" (Exhibit #25).

[RN "A"] testified that the Member's co-worker, [RPN "A"], informed her that he never made any of the visits reflected on time slips that had been initialled by the Member. Therefore,
she concluded Mr. Akinlade was not telling the truth and used [RPN "A's"] initials to be compensated for working more than 44 hours, without his supervisor's permission.

[RN "A"] characterized the "Summary of Investigation re: High Risk Occurrence" (Exhibit #26) as a signed admission by the Member in connection with the facts established in the course
of [the Agency's] investigation of circumstances surrounding the Member's care of [client "A"]. The Member had signed this on February 26, 2001.

The panel found this witness to be credible, and accepted her evidence.

Witness #4 - [Registration Administrator]

[ ], Registration Administrator for the College of Nurses of Ontario, testified that the Member was registered with the CNO at the time of the alleged allegations and was not under suspension.

The panel found this witness to be credible, and accepted her evidence.

Witness #5- [Client "A's" Wife]

Counsel for the College sought to introduce an audio-visual tape ("the tape") of [client "A's" wife's] testimony, as she was unable to attend the hearing due to health reasons. Counsel cited Rule 5 of the Discipline Committee Rules as authority for introducing the tape.

The panel recessed to deliberate on the admissibility of the tape and to weigh any potential for prejudicial effect to the Member. After doing so, the panel unanimously agreed to view and hear the tape testimony of [client "A's" wife].

A Portuguese interpreter was used to facilitate the testimony of [client "A's" wife] because she was not fluent in English.

The tape was filed as Exhibit #28.

The witness, [client "A's" wife], testified that a male nurse visited her husband three times in the month of January and never returned. The witness also testified that the Member was supposed to come every second day and as he didn't show up, she continued to do the dressing on her husband's feet herself. As her dressing supplies were running out, a call was made to [the Referring Agency] by her son expressing his concerns that the male nurse had not visited his father in three weeks and he requested a replacement supply of dressings. The nurse on the phone asked if the male nurse had been coming to visit her husband and she replied in the negative. On the same day her son called to [the Agency], the male nurse came back looking very sad and the witness testified that the male nurse also said he was in big trouble and it was her fault because she had called [the Agency]. She also testified that the male nurse never told her that he was decreasing the visits. She was doing the dressings every day. The male nurse had not phoned between visits. There was no chart at the house.

The panel found this witness to be forthright, credible, and responsive to the questions, eliciting information within her limited knowledge. The panel also took into account her difficulty with the English language and her ability to recall relevant events.

Witness #6 - [RPN "A"]

This witness, an RPN, was a graduate of [ ] College, and was employed as a casual worker by [the Agency] during the relevant time. [RPN "A"] stated that he worked approximately 10 to 15 hours a week. He met the Member while employed by [the Agency].

This witness testified that he had could not recall the client, [client "A"], nor was he ever asked to visit this client.

This witness testified that he spoke with [RN "A"] in April, 2001, concerning the fact that his initials appeared on a time slip regarding [client "A"] approximately 3-4 times. The witness testified that the Member requested reimbursement of less than $100.00, after explaining why [RPN "A's"] initials were improperly put on the time slip.

The panel finds this witness had limited credibility because of his involvement in the events.

Witness #7 [RN "B"]

[RN "B"], a 1971 graduate from [ ] and has been registered with the College of Nurses of Ontario since 1978. This witness has held a variety of nursing positions and is presently a nursing supervisor with [the Agency]. Her responsibilities include follow-up with the field nurses, nursing evaluations, assisting with problems, and ensuring quality assurance.

The witness testified that she knew the Member as part of [the Agency's] nursing staff. She also knew [client "A"] as he was a client of [the Agency] and because the witness had visited during the investigation of a complaint.

The witness testified that she received a request from [RN "A"] to follow-up on a complaint. As a result of this follow-up, the witness did a field visit to check on the condition of the client. The witness testified that she was told and observed that there was no chart in the home and there had never been one there. The witness further testified that she spoke to [client "A's"] son, reassuring him that [client "A"] would be seen by a nurse 3 or 4 times a week and that supplies would be made available.

The witness testified that she performed 5 chart audits, including one on the chart of [client "A"]. Her "Summary of Supervision and In-Home Chart Audits" (Exhibit #18) includes the remaining four audits. The charts related to [clients "C", "L", "M" and "N"].

During the testimony, the witness referred to the:

Professional Progress notes (Exhibit #29),
Communication Administration Form (Exhibit # 30),
Client Chart of [client "C"] (Exhibit # 31),
[Referring Agency] Medical Referral (Exhibit #32),
Client Chart for [client "L"] (Exhibit #33), and
Client Chart for [client "M"] (Exhibit #34).

The witness utilised these exhibits to support her In-Home Chart Audit (Exhibit #18).

With respect to the alleged failure to update a care plan to keep it current, the witness referred to Summary of Supervision and In-Home Chart Audits (Exhibit # 18, item 1-c). As to failure to maintain accurate patient progress notes, the witness referred to said Exhibit #18 item 1-a. With respect to the absence of notes to support to the activities and assessment for each visit, progress of the client and achievement of goal, the witness referred to Exhibit #18, item 1-b. As to the absence of notes to support activities and assessment for each visit, in relation to [client "C"], the witness referred to the details in (Exhibit #31) the Client Chart of [client "C"].

As to failure to document any interventions on any visit, the witness referred to the Summary of Supervision and In-Home Chart Auditing (Exhibit #18) and item 2-d relating to [client "L"], with detail in "Client Chart" for [client "L"] (Exhibit #33).

With respect to incomplete nursing assessment and the use of wrong sheets for documentation, the witness referred to the Summary of Supervision and In-Home Auditing (Exhibit 18) items 3-c and 3-d on [client "M"], with details in the "Client Chart" for [client "M"] (Exhibit #34).

As to the Member's failure to have a client initially assessed by a Registered Nurse, the witness referred to a summary of "Supervision In-Home Chart Auditing" (Exhibit #18-4-b), with details in professional progress notes (Exhibit #29).

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof which the panel is familiar with, set out in Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 477. The standard of proof applied by the panel, in accordance with the Bernstein decision, was a balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel. The panel also recognized that the more serious the allegation to be proved, the more cogent must be the evidence.

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed an act of professional misconduct as alleged in paragraphs 1 through 6 of the Notice of Hearing, the particulars of which are set out in Appendix A. The Member committed acts of professional misconduct as proven by the credible evidence of the witnesses. The panel
deliberated and finds that the conduct alleged in paragraph 3 through 7 of Appendix A to the Notice of Hearing (Exhibit #1) clearly establishes that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional.
Reasons for Decision

The panel made its decision based on the evidence referred to above, which it found to be clear, cogent and convincing.

Penalty

Counsel for the College made the following submissions as to the appropriate penalty in this case:

The College of Nurses of Ontario ("the College") respectfully submits that, in view of the panel's finding of professional misconduct on the part of Babawale Akinlade #JJ-0355-8 ("the Member), and the circumstances in which that professional misconduct occurred, the panel of the Discipline Committee should make an order as follows:

1. Requiring the Member to appear before a panel to be reprimanded.
2. Directing the Executive Director to suspend the Member's certificate of registration for 210 days, where the suspension is to begin on the day the panel's order becomes final through the expiry or exhaustion of the Member's rights of appeal.
3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration:
   1. following the completion of the period of suspension referred to in paragraph 2, above, the Member:\
      1. may not resume practice as a nurse until he has appeared before a panel of the Discipline Committee to be reprimanded.
      2. shall not practice independently in the community for a full 52 weeks of practice thereafter, but shall, for that period, only practice in a facility where other Members of the College are also engaged in practice;
      3. shall only practice nursing where, before commencing or resuming practice and for a full 52 weeks of practice thereafter, he has provided his employer's chief nursing officer or equivalent with a copy of the Discipline Committee's penalty order, (including its appendices) or, if available the Committee's decision and reasons, and the employer has agreed to write to the Director within 14 days of the commencement or resumption of practice confirming:
         1. receipt of the penalty order or decision and reasons; and
         2. that it agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of the profession with respect to his honesty, truthfulness and reliability, his documentation (whether clinical or administrative), or his professional interaction with
            clients and/or their families.
      4. shall notify the Director of the name, address, phone number, and department, if applicable, of all facilities at which he is directly employed to practice nursing within 14 days of commencing or resuming practice for the facility until the Member has completed 52 full weeks of practice, and such notification must be in writing and sent by a verifiable form of delivery, such as a courier, and the Member must retain proof of delivery.

Decision

After a recess for further consideration on penalty, the panel indicated that it would accede to College counsel's submission as to penalty, but suggested that in addition, the Member should be required to meet with a practice consultant with regard to documentation and related legal and ethical issues. Counsel for the College requested a recess to consider the panel's suggestion. Upon return, College Counsel informed the panel that the Discipline panel lacks jurisdiction to order a third party to provide a course, and that no documentation course was available. College Counsel further informed the panel over the legal concern that Discipline panels have no jurisdiction over the College of Nurses or its resources and therefore has no jurisdiction to order the College to provide a course. College Counsel further proposed the insertion of clause 3-a-ii into the penalty submission as follows:

• the Member shall arrive for reprimand with written analysis of his failures with respect to documentation as determined by reference to CNO's documentation standards for RN/RPN, and with conclusions regarding what would have been appropriate conduct, all on the facts of this case, and shall be prepared to discuss same with the panel of the Discipline Committee that imposes the reprimand.

The panel recessed to deliberate further and upon reconvening, accepted College counsel's submission as to penalty, with the addition of clause 3-a-ii.

The panel therefore makes an Order:

1. Requiring the Member to appear before a panel to be reprimanded.
2. Directing the Executive Director to suspend the Member's certificate of registration for 210 days, where the suspension is to begin on the day the panel's order becomes final through the expiry or exhaustion of the Member's rights of appeal.
3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration:
   1. Following the completion of the period of suspension referred to in paragraph 2, above, the Member:
      1. may not resume practice as a nurse until he has appeared before a panel of the Discipline Committee to be reprimanded;
      2. shall arrive for his reprimand with a written analysis of his failures with respect to documentation as determined by reference to the College of Nurses of Ontario's publication Nursing Documentation Standards (Revised 2002), and with conclusions regarding what would have been appropriate conduct, all on the facts of this case, and shall be prepared to discuss same with the Panel of the Discipline Committee that imposes the reprimand;
      3. shall not practice independently in the community for a full 52 weeks of practice after completion of the period of suspension referred to in paragraph 2, above, but shall, for that period, only practice in a facility where other Members of the College are also engaged in practice;
      4. shall only practice nursing where, before commencing or resuming practice and for a full 52 weeks of practice thereafter, he has provided his employer's chief nursing officer or equivalent with a copy of the Discipline Committee's penalty order (including its appendices) or, if available, the Committee's decision and reasons, and the employer has agreed to write to the College's Director of the Investigation and Hearings Program ("the Director") within 14 days of the commencement or resumption of practice confirming:
         1. receipt of the penalty order or decision and reasons; and
         2. that it agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of the profession with respect to his honesty, truthfulness and reliability, his documentation (whether clinical or administrative),or his professional interaction with clients and/or their families.
      5. shall notify the Director of the name, address, phone number, and department, if applicable, of all facilities at which he is directly employed to practice nursing within 14 days of commencing or resuming practice for the facility until the Member has completed 52 full weeks of practice, and such notification must be in writing and sent by a verifiable form of delivery, such as a courier, and the Member must retain proof of delivery.

Reasons for Penalty Decision

The Panel consider that this penalty imposed will provide a sufficient specific deterrent to the Member.

It will also serve to act as a general deterrent to the members of the profession at large, reminding them that this type of behaviour will not be tolerated. The terms, conditions and limitations imposed on the Member's certificate of registration will ensure the protection of the public. The panel has provided for remediation through the anticipated remedial education that the penalty directs the Member to acquire as set out by clause 3-a-ii. The only mitigating factor in this case was that there was no prior complaint made to the College against the Member. The aggravating factors were that the Member avoided all attempts to be served, did not personally or by representation participate in the hearing and made no response to the allegations. This called into question his governability by the College and the Discipline Committee.

I, Kim Pederson, 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:

Discipline Panel

ARLENE GRANT, RN
DAWN NORLING, RPN
ANGUS TAYLOR, PUBLIC MEMBER
BRENDA NOBLE, PUBLIC MEMBER