DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: TAMMY HEDGE, RPN Chairperson GRACE FOX, NP Member LINA KISKUNAS, RN Member MARY MCMILLAN-GILKINSON Public Member DEVINDER WALIA Public Member BRTWEEN: COLLEGE OF NURSES OF ONTARIO. NICK COLEMAN for College of Nurses of Ontario and (MEGAN SHORTREED for College of Nurses of Ontario MANDY GAYLE EDGERTON (formerly Reid) Reg. No, 0215129 ROBERT STEPHENSON for Mandy Gayle Edgerton ‘The Torento Star DANIEL GIRLANDO for Peterborough Regional Health Centre d d d ) ) ) ) ) > ) IRIS FISCHER for ) d ) ) ) ) JOHANNA BRADEN & BRIAN GOVER } Independent Legal Counsel ) ) Heard: April 29, 2015; June 18-19, 2015; August 13,2015, DECISION AND REASONS ON MOTION ‘The heating into allegations regarding Mandy Edgerton, formerly Reid, (the “Member”) began April 29, 2015. Before the panel could review the Notice of Hearing and tke the Member’ ple, various pre= hearing matters arse. 1. Counsel forthe College requested for an order banning the public disclosure of the names of clients and any personal health information of cliens disclosed at the hearing and/or in any exhibits. The Toronto Star opposes the College's request:o prevent the public disclosure of personal health information. 2. Counsel for the Member requested an order closing the hearing tothe public altogether. This is ‘opposed by both the College and the Toronto Siar.Decision on Motion Be: Mandy Edgerton (formerly Reid 3. Finally, the Toronto Star sought access to exhibits which, accorditg to the Guidelines ofthe Discipline Committee, equires a motion on notice tothe patie as well as to persons having a propriety interest inthe exhibits (which includes the Peterborough Regional Health Centre). The Toronto Star requests access tothe exhibits from the discipline hearing in their entirety and ‘without limitation, including the right to make copies of and publish exhibits, but with patient ‘names inthe exhibits replaced by anonymous, unique identifiers (e.g. Patient A, Patient B) and subject to publication ban on patent names and information that could disclose patient names ‘The hearing was adjourned until June 18, 2015 so that the parties and other interested persons could prepare their motion materials. Argument of the motions took three day. ‘The Evidence on the Mot All parties except the Peterborough Regional Health Cente (the “Facility’ filed evidence on the ‘motions. (@) The College's Evidence ‘The College's evidence consisted of an affidavit from Leanna Yue (the Prosecutions Coordinator with the Professional Conduct department of the College) which identified the allegations and the anticipated evidence and information that could identify clients. Briefly, the allegations are thatthe Mernber inappropriately accessed the personal health information of approximately 300 clients of the Facility. Two clients (identified in the Notice of Hearing as CM and IH) are complainants in this matter, The others are not complainants, but the alleged breach of thei privacy was apparently uncovered through an audit. The Member denies ihe allegations made against her and intends to defend against ther. According to the Yue Affidavit, the College anticipates introducing into evidence documents that 8) the identities of clients whose personal health information is aleged to have been accessed by the Member without consent or ther authorization; b) information relating to the personal circumstances of certain clients; ©) information that could lead or contribute to the identification of clients whose personal health information is alleged to have been accessed by the Member without consent or authorization; and ) personal health information of these clients. ‘These documents include (a) an audit report identifying details related to the Members alleged unauthorized access of exhibits. ILCs advice was that if exhibits can reasonably and fuirly be redacted to comply with whatever order the pane! might make about banning public disclosure of information, then the ‘Toronto Star should be granted access to those redacted exhibits. If there is a particular exhibit that contains nothing or close to nothing other then information over which the panel has made ‘an order prohibiting publie disclosure, then it may be wiser to deny access to those exhibits. ‘+ ILC advised thatthe issue of acess to exhibits may have to be evaluated as the hearing progresses. The panel will become the custodian of personal health information. The Supreme Court of Canada in Vickery v. Nova Scotia Supreme Court (Prothonotary), {1991} 1 SCR 671 establishes that where access to exhibits is sought, as custodian ofthe exhibits, a court or ritual {is bound t inquire into the use to be made of them and is Fully entitled to regulate that use. ' The panel may not be able o determine which exhibits willbe given to members ofthe public until after the exhibit has been entered atthe hearing and marked a8 an exhibit. Neither ILC nor the panel know right now whether some or all ofthe exhibits are going o be entered on corsent ‘of the partes as one joint document brief atthe beginning of the hearing, or whether there will be disputes between the partes as 1o the admissibility of exhibits. I is also not known how easy it will be to redact each exhibit in order to comply with whatever order the panel might make. ‘Some may be easy fo redaet, others may be practically impossible to redact. Steps will als have tbe taken to protect the integrity of exhibits. ‘+ In sum, on the issue of exhibits, the advice of ILC was to focus first on the issue of access 10 the hearing. I the hearing is closed hearing entirely, then the issue of access to exhibits becomes ‘moot. There will be no access. Ifthe hearing is not closed but instead there isa ban on putlic sisclosute of certain information, then ILC's advice was thatthe panel's decision should indicate that access to exhibits willbe provided in a manner consistent withthe panel's ordet on public disclosure, to be determined more specifically as the hearing progresses and pethaps on an exhibit-by-exhibit bass De Having considered the evidence, the submissions and the onus and standard of proof, the panel makes the following order. 1. ‘The hearing will remain open. Page 17 of 20Decision on Mation et Mandy Edger rt 2. The panel orders a ban on any disclosure outside the hearing room, including aban on the publication or broadcasting, of the following information. b. ‘The names of any clients; Personal details about any ofthe clients that could reasonably lead or contribute to theit identification; ‘The client numbers used to identify clients inthe Facility's computer system, as these ‘numbers could be used by any person having sccess to the Facility's computer system to identity clients; Personal heath information that is sufficiently unique that could reasonably lead to or Contribute tothe identification of clients; Information related tothe specific personal circumstances of clients wh have been identified in media reports about this matter; Information related tothe specific personal circumstances of clients who are identified by their initials inthe Amended Notice of Hearing inthis matter; and Information about the details of the clients’ visits, such asthe date and time ofthe visit that could reasonably lead or contribute to thei identification 3. ‘The panel will further decide on a ease-by case-basis if asked to do so, for any additional guidance that may be necessary with respect to any particular information. 4. The Toronto Star shall not have access ta any exhibits containing the information described above. Ifexhibits do not contain such information, or can be reasonably redacted to remove such information, then the Toronto Star may have access to the exhibits. This shall be ‘determined on an exhibit-by-exhibit basis as the hearing progresses, in a manner determined by the panel. Reasons for Decision ‘The Panel was tasked with balancing the protection of the public while maintaining transparency and ‘openness of the hearing process. (a) The Hearing Will Remain Open ‘The presumption is that hearings at the College are open. This is essential to ensuring public confidence in the administration of justice Page 18 0f 20Decision on Motion ‘Re: Mand» Egerton (fonnerty Reid ‘The panel considered the grounds enumerated in subsection 45(2)(b) of the Code. The evidence from the ‘Member was not sufficient for the pane to find thatthe hearing should be closed because of one of these grounds. The panel does not have information ofthe type of evidence tobe presented other than there ‘ay be sensitive personal health information. The Member worked in the esis unt of the Mental Health department at the Facility, and information about her clients may be introduced as the College proves its case and the Member defends herself. This isthe kindof information the Discipline ‘Commitee deals with regularly, and closing the hearing is not necessary, ‘The Member raised the possibility ofthe application ofthe Mental Health Act. The Mental Health Act itself has a process to follow and the rights of ths vulnerable population are strictly set out in that act. IF the Meuul Healt Act becomes an isu, we expect the parties to ablde by those specific requirements ‘That isnot something the panel needs to decide at this point. Applying the Dagenais/Mentuck test, the panel doesnot find that closing the hearing entirely is consistent with the case law. While some protections are necessary to protect cients’ personal health information, the panel does not Find that closing the hearing is necessary as it can make orders banning the public disclosure of identifying information. The panel considers these o be enforceable according to section 93 of the Code. ‘As to the Member's argument under subsection 45(2Xc) ofthe Code, that a person involved ina civil suit may be prejudiced, the panel understands the Member is concerned that the plaintiffs in the civil ‘ease may use testimony inthis hearing to impeach her credibility, following on the Nedelcu case. The ‘panel cannot predict potential prejudice inthe class proceeding. Itis speculative. ‘As to the personal safety ofthe Member, the panel is committed to ensuring the safety of people within the hearing. The concems about the Member's safety (or any other person's safety) were not articulated ja way that would justify closing the hearing tothe public The hearing will remain open. The expectation ofthe pane i that all persons inside the hearing room will adhere tothe publication and disclosure ban as the consequences are laid out in s 93 of the Code. (©) Ban on Public Disclosure of Certain Information ‘The College and the Toronto Sta did nt disagree on most aspecs of this oréer. The panel wants to ensure that no clients can reasonably be identified outside ofthe hearing foom, including through a “mostic effect". The order sets out what is covered by the ban on public disclosure. The media can ‘report on general information about the kinds of treatment being sought by the affected client, and the general nature of the documents and information allegedly accessed by the Member. However, neither the media nor anyone else can disclose information that would identify cients, including specific personal health information about individual clients that would identify them in combination with other publicly available information, ‘This is necessary to protect clients from being identified ina case that specifically deals with an alleged bresch of private health information, (©) Exhibits Page 19 of 20Decision on Motion ‘Be: Mandy Edgerton formerly Reid) ‘The panel recognizes that it will become an additional custodian of personal health information during this hearing and as such is required by PHIPA to protect the data as well as any identifying information as defined by PHIPA. I wil not grant access to exhibits unless the exhibits can reasonably be redacted to exclude such data, ‘The Star requested exhibits in ther entirety with redacted identifying elements. As te allegation itself is ‘an issue of access to records and nota breach of standards, the content ofthe exhibits for the most partis inrelevan othe issue at hand. Therefore exhibits will not be given tothe Toronto Stat unless they do ‘not contain the information covered by the panel's order. If the exhibits can reasonably and practically be redacted to exclude the information covered by the panel's order, the Toronto Star will be permitted access once those redactions have been made. ‘The pane finds that this order fairly balances the protection ofthe public interest, the importance of| ‘openness and transparency ofthe discipline process, and the Member's right to fair hearing. I, TAMMY HEDGE, RPN, sign this decision and reasons for the decision as Chairperson ofthis Discipline pane! and on behalf of the members of the Discipline panel as listed below: Ci-#00 =aen ary 3 AOlla Graierson Panel members: GRACE FOX, NP LINA KISKUNA, RN DEVINDER WALIA, Public Member MARY MCMILLAN-GILKINSON, Public Member Page 20 of 20