Discipline Committee Of The College Of Nurses Of Ontario Panel:

• Chairperson, RN

• Member, RPN

• Member, RN

• Public Representative

• Public Representative*

• Independent Legal Counsel

BETWEEN

COLLEGE OF NURSES OF ONTARIO COUNSEL for College of Nurses of Ontario

• and -

Ruby Boyd #63-0424-0

COUNSEL for Ruby Boyd

Heard: July 2-5, 1996;December 9, 1996

AMENDED REASONS FOR DECISION

A panel of the Discipline Committee convened a hearing with respect to allegations against Ms. Boyd by the College of Nurses of Ontario.

MOTIONS

Prior to hearing the allegations, counsel for Ms. Boyd brought the following motions before the panel:

1. to adjourn the hearing

2. to compel counsel for the College to call all possible witnesses named in the initial disclosure.

* This Public Representative did not take part in the decision.

3. to compel the panel to call the witnesses not being called by the College.

Counsel for Ms. Boyd submitted that the College failed to provide adequate disclosure according to the section 42 of the Health Professions Procedural Code. He stated that it was at his request he finally received a definitive witness list from counsel for the College on June 24, 1996. Counsel for Ms. Boyd further stated that it was at this time he realised that the College was not calling two witnesses who had assessed one of the patients shortly after one of the alleged incidents involving that patient. Counsel for Ms. Boyd immediately sought confirmation of this witness list which was received June 27, 1996. This was less than the 10 days required under the Health Professions Procedural Code, s.42. 1(c).

Counsel for Ms. Boyd stated that the two witnesses he wanted called were unavailable as of July 2, 1996, and that Ms. Boyd was prevented from exercising her right to prepare an adequate defence and therefore would need an adjournment.

Counsel for Ms. Boyd also submitted that the prosecutor, in exercising his discretion to call witnesses

was influenced by some oblique motive, or by the fact that the material witnesses who are not going to be called, might assist Ms. Boyd in her case. Defence Counsel cited the case of Regina v. Jewell and Wiseman.

The defence also suggested that the panel exercise its power under section 42(2) of the Health Professions Procedural Code and compel prosecuting counsel to call all witnesses involved in the alleged incidents in order to present the entire story before the panel.

Defence counsel impressed upon the panel his right to cross-examine these witnesses and stated that if counsel for the College was not compelled to call them, then the panel could exercise their power and call the witnesses themselves.

Counsel for the College stated that the Notice of Hearing was sent May 16, 1996, and there was a pre- hearing conference with disclosure before that date. Counsel for the College submitted that he was satisfied that section 42 of the Health Professions Procedural Code was implemented because a list of all possible witnesses was included with the disclosure materials which was sent to the defence before the pre-hearing conference. Counsel for the College further stated that the Hearing dates were not set unilaterally, but in consultation with Ms. Boyd and her lawyer, therefore there was no shortage of time for the defence to prepare its case. Counsel for the College also submitted that just because the defence had not contacted the witnesses is no reason to impose the responsibility on to the College to call them. In the disclosure package one gets all information involved -- some people are directly involved and there is also a great deal of hearsay. Counsel for the College also stated that he chose only the witnesses who had direct evidence of what occurred and that the responsibility of the College is to prove the allegations and is not obligated to present every bit of possible evidence. Counsel for the College further stated that the two witnesses the defence wants called did not observe the incident, but if Ms. Boyd's counsel considers these witnesses important then he should call them as his own witnesses. Counsel for the College impressed upon the panel that adjournments are very costly to everyone and should not be abused.

The panel received advice from independent legal counsel on two major issues; (1) the meaning and proper interpretation of section 42 of the Health Professions Procedural Code in relation to the College's obligations; (2) the duty of the prosecution to lead evidence that is somehow relevant, but does not advance the case. The general principles of Regina v. Jewel and Wiseman, the Lemay case and the Cunliffe and Bledsoe v. the Law Society of British Columbia were also explained.

DECISION ON THE MOTIONS

The panel finds that the College has met requirements of Sections 42. 1(a) and 1(c) of the Health Professions Procedural Code. The panel does not agree that the prosecution has a duty to lead all of the evidence that is somehow relevant but does not advance the case. Therefore the panel decided that the Hearing will proceed. The panel also decided that it is willing to consider the possibility of a further motion for an adjournment if and when the defence feels it is needed. The panel will consider the information that has been submitted and any further evidence on the motion at that time.

Reasons for Decision on the Motions

Ms. Boyd and her counsel had the disclosure package, participated in a pre-hearing, and received the Notice of Hearing well in advance of the 10 day requirement. Therefore, the panel determined that the College had met the regulations and Ms. Boyd had received full disclosure.

It is the panel's understanding that the role of the prosecutor is to provide full disclosure to Ms. Boyd and present the available evidence in order to attempt to prove the allegations. The panel holds that each counsel should present their own case as they wish. The panel would encourage both counsel to call

those witnesses they need to advance their individual case. If Ms. Boyd's counsel needs an adjournment prior to starting the defence portion of the case, the panel agreed that it is more than willing to consider a further motion for an adjournment at that time, in order to facilitate the preparation of an adequate defence.

THE HEARING

The hearing reconvened on July 3, 1996. The panel noted that one Member of the panel, namely, Ms Yvonne Slivinski will not be sitting on the panel and that the hearing will continue with four panel Members. Both counsel agreed to continue the hearing with four panel Members.

The following allegations were then presented to the panel and entered into exhibit:

1. You have committed an act of professional misconduct as provided by subsection 51(c) of the Health Professions Procedural Code, of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and subsection 1(7) of Ontario Regulation 799/93 in that between November, 1994 and January, 1995, inclusive, while a Registered Nurse with Providence Centre in the City of Toronto, in the Province of Ontario, you physically, verbally and/or emotionally abused clients on one or more occasions, in that:

a. in or about November, 1994, you forced a client known as “Ms. M. M.” to stand against her will, and/or slapped her buttocks and/or said words to the effect, “If you don’t stand, I will let you drop to the floor”; and/or

b. on or about January 2, 1995, you used inappropriate force to apply a posey restraint to “Ms.

M. M.” and/or took the client’s hand to your mouth and said you were going to bite her.

a. in or about November, 1994, you forced a client known as "Ms. M.M." to stand against her will, and/or slapped her buttocks and/or said words to the effect of, “If you don’t stand, I will let you drop to the floor”; and/or

b. on or about January 2, 1995, you used inappropriate force to apply a posey restraint to “Ms

M. M.” and/or took the client’s hand to your mouth and said you were going to bite her; and /or

c. on or about February 8, 1995, you punched, hit or shoved a client known as “ Mr. G. D.” 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 subsection 1(37) of Ontario Regulation 799/93, in that between November, 1994 and February, 1995, inclusive, while a Registered Nurse with Providence Centre in the City of Toronto, in the Province of Ontario, you engaged in conduct that would reasonably be regarded by Members as disgraceful, dishonourable or unprofessional, with respect to your care and treatment of one or more clients, in that:

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 subsection 1(1) of Ontario Regulation 799/93, in that between November, 1994 and February, 1995, while a Registered Nurse with Providence Centre in the City of Toronto, in the Province of Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, with respect to your care and treatment of one or more clients, in that:

a. in or about November, 1994, you forced a client known as “Ms. M. M.” to stand against her will, and/or slapped her buttocks and/or said words to the effect of, “If you don’t stand, I will let you drop to the floor”; and/or

b. on or about January 2, 1995, you used inappropriate force to apply a posey restraint to “Ms

M. M.” and/or took the client’s hand to your mouth and said you were going to bite her; and/or

c. on or about February 8, 1995, you punched, hit or shoved a client known as “Mr. G. D.”

BACKGROUND INFORMATION

Ms. Boyd was educated in Scotland, has been an RN for 37 years and has been registered with the College of Nurses of Ontario since 1963. All incidents took place on a 32-bed unit of a long term care facility. This unit contained chronic care patients with severe physical and/or mental disabilities (strokes, Alzheimer disease etc.). Ms. Boyd worked on this unit for 6 years. The allegations identified two patients. The first patient, Mrs. M. M. who was allegedly abused, is a 73-year old woman diagnosed with Parkinson disease, depression, osteoarthritis and liver disease. She was mainly in bed or in a lounge chair. The Physiotherapist reported she would not participate in active transfers and didn't want to do anything. The second patient, Mr. G.D. suffered from a Cerebral Vascular Accident (CVA), Insulin Dependent Diabetes Mellitus (IDDM), dementia and hemiplegia. He had a language barrier, spoke little English, was emotionally labile, crying on and off, and aggressive at times. He was confined to a wheelchair and restrained.

The Discipline panel applied the onus of proof as set out in the Divisional Court's decision of Bernstein and the College of Physicians and Surgeons of Ontario (1977), 15 O.R. (d) 447 and in particular, that the onus of proof on the College was that there be "clear, convincing and cogent evidence" accepted by the panel before the Discipline panel could make a finding against Ms. Boyd.

The Discipline panel also applied the criteria to establish the credibility of witnesses as set out in the Divisional Court's decision of Pitts and Director of Family Benefits Branch of Ministry of Community and Social Services (1985), 51 O.R.(d) 302 and in particular, the reasons why a witness was found to be credible or not credible and identified factors considered relevant in its decisions.

ALLEGATION 1(a)

The panel heard from Witness #1 that she has been working as a health care aide since 1989. Witness #1 previously worked as an RN in the Philippines (1978-1988), and as a Graduate Nurse in Canada (1988- 1992). Witness #1 testified that Ms. Boyd asked her to help with Mrs. M. M., on the day of the incident. The patient had just received a shower, was dressed in a patient gown and had been returned to her room via the commode chair when the alleged incident occurred. Witness #1 testified that she witnessed the patient being verbally and physically threatened. Witness #1 stated that Ms. Boyd and herself stood on either side of the patient in order to get her to stand so that diapers could be applied before being transferred to a lounge chair. Witness #1 testified that Mrs. M. M. said she couldn't stand.

Witness #1 further stated that Ms. Boyd took the patient's two hands and made her grab the side rail of the bed and yelled at her to stand up. Witness #1 testified that when the patient began to slump down, Ms. Boyd slapped the patient, Mrs M. M., on the backside, three to four times and threatened to let her fall to the floor. Witness #1 did not report this incident in any manner, but said she did discuss it with a co-worker. Four months later, when the unit administrator was investigating the incident, Witness #1 gave a signed statement about the incident.

Ms. Boyd documented in Mrs. M. M.'s progress notes: (94 11 16) " did not weight bear- up in chair with 2 for transfer", ( 94-11-21) "she required total care and was unable to transfer". The November 18, ‘94, Physiotherapist’s notes stated they were "in the process of doing a transfer assessment, but of course the patient must be willing to participate; PLAN: will persevere with trying to gain M's co-operation". Ms. Boyd testified that she had talked to the physiotherapist who told her Mrs. M. M. was doing well in physiotherapy and had started partial weight bearing. She testified that her knowledge of Mrs. M. M. was that she wouldn't even roll over by herself. Ms. Boyd agreed with Witness #1's general evidence regarding the incident with the exception of the slapping on the backside and the threatening to let her fall. Ms. Boyd acknowledged that Mrs. M. M. didn't want to get up and that the patient was not taking her own weight. She also testified that she put the patient's hands on the bed rail. Ms. Boyd denied slapping and yelling at the patient. She testified she was only trying to encourage the patient, and she was not being harsh.

DECISION

The panel finds Ms. Boyd guilty of professional misconduct in that Ms. Boyd emotionally abused Mrs.

M. M. as outlined in Allegation 1(a). Allegations 2(a) and 3(a) are based on the same set of facts. The panel decided that if Ms. Boyd had not been found guilty of allegation 1(a) the panel would have found her guilty of allegation 2(a) and in the alternative, allegation 3(a).

Reasons for the Decision

The panel found Witness #1's testimony to be plausible, as well as clear, cogent and convincing. Witness #1's overall story was substantiated by Ms. Boyd in that they both stated they stood Mrs. M. M. up at the bedside in order to apply diapers. Witness #1 stated Mrs. M. M. said she couldn't stand and started to slump to the floor. Ms. Boyd admitted the patient could not take her own weight. She also testified that the patient was only partial weight bearing and that neither she nor Witness #1 could have held the patient's weight by themselves. Ms. Boyd's testimony with respect to allegation 1(a) was consistent throughout. Her demeanour was forthright and seemed genuine. Ms. Boyd testified she did not know if her tone of voice to the patient was harsh. She denied threatening the patient and stated she was only trying to encourage the client. However, Ms. Boyd's evidence with regard to "encouraging the patient" was vague and evasive.

The November progress notes of Mrs. M. M. supports that she was unable to transfer. The patient's physiotherapy notes stated they were planing to persevere (with transferring and sitting) by gaining Mrs.

M. M.'s co-operation. Ms. Boyd testified she was on a modified workload due to a previous back problem. The patient was only partial weight bearing, and not receptive to participating in transfers. Neither nurse was strong enough to take on the weight of the client. The panel found that in all probability, that standing and applying diapers was an unsafe and stressful situation.

Consent to treatment is a very important concept in health care. Forcing a patient to do something against her will goes against CNO primary values of client choice. Emotional abuse demonstrates disrespect for the client. The evidence of both witnesses was that the patient was not confused and was being made to do something she did not want to do. Based on the progress records, the testimony of the witness and Ms. Boyd, and the fact that the patient was mentally competent, the panel concludes Mrs M.

M. was not physically able and not mentally prepared to perform this activity. The panel decided that the patient was forced beyond her actual or perceived capabilities. This is considered by the panel to be emotional abuse.

Regarding the allegations of verbal abuse, the panel accepts Witness #1's evidence regarding the harshness of Ms. Boyd's voice toward the patient. The panel holds that the tone and intent of the verbal exchange between Ms. Boyd and the patient was to intimidate the patient. The panel finds Ms. Boyd intimidated the patient to do something which was against her will and therefore confirms a finding of emotional abuse.

Witness #1's evidence regarding the slapping on the buttocks was inconsistent (discrepancy in her testimony on times and force). She did not report the incident at the time. There is no other substantiating testimony. The panel concludes that this portion of her testimony was not as credible. Therefore the panel cannot find Ms. Boyd guilty of physical abuse as alleged in allegation 1(a).

ALLEGATION 1(b)

Witness #2 testified that she has been a Health Care Aide at the centre for six to seven years. Although she became an RN in 1993, she started working on Unit 3A as a HCA in late 1994.

Witness #2 testified that Ms. Boyd asked her to assist in putting on a posey restraint on Mrs. M. M. On entering the room, Mrs. M. M. begged Witness #2 not to put on the restraint and to help her.

Witness #2 testified that during the process, Ms. Boyd put the patient's hand towards her mouth, and threatened that if she did not stop she was going to bite her. Witness #2 further testified that whenshe returned to the Nurses' Station, she told all the RNs and RPNs at the desk what happened because she could not believe the amount of struggle that had taken place and she had never seen anything like this before. Witness #2 stated that she has put restraints on patients on other occasions. She affirmed that Mrs. M. M. was not a confused patient, and not the type to crawl out of bed.

Witness #2 stated that if Mrs. M. M. was a confused patient, they would have assigned more nurses and sedation for the client. Witness #2 testified that she felt that Mrs M. M. was just curious and was sitting up at the side of the bed to see what was going on outside her room. Witness #2 stated she has taken care of this patient a number of times, and never saw any reason for her to be restrained. She also testified that the incident lasted about 10 minutes.

Ms. Boyd testified she observed the patient making several attempts to climb out of bed. Ms. Boyd documented in the progress notes: "(01-01-95) alteration of thought process" and "(01-01-95) obtained Posey Restraint order". She stated that she attempted to apply restraint to the patient by herself but then sought assistance from Witness #2 who helped hold the patient's arms while she put on the posey jacket. Ms. Boyd testified that the patient, Mrs M. M. was "fighting like a tiger." Ms. Boyd stated that she tried applying the restraint a number of times but was unsuccessful as Mrs. M. M. kept pulling it off over her head. Ms. Boyd testified she then suggested switching roles as Witness #2 was more skilled with the procedure. She stated that she held the patient while Witness #2 applied the restraint. She further testified that the whole incident took approximately 5 minutes and that she was absolutely exhausted after finally applying the jacket restraint.

Ms. Boyd testified that she used excessive, but necessary, force in applying the posey restraint. She stated that when the patient bared her teeth and said she would bite, Ms. Boyd admitted that she replied, "I will bite you back". Ms. Boyd admitted to grabbing Mrs. M. M.'s hands in order to pull them away from the posey lapels. In the patient's progress notes on January 5, 1995, Ms. Boyd documented "bruising noted on both hands and arms possibly from struggling against restraints". Ms. Boyd testified that she reported the bruising to the doctor.

DECISION

The panel finds Ms. Boyd guilty of physical, verbal and emotional abuse. Allegations 2(b) and 3(b) are based on the same set of facts. The panel determined that if Ms. Boyd had not been found guilty of 1(b) she would have been found guilty of 2(b) and in the alternative, 3(b).

Reasons for the Decision

The panel found the evidence of Witness #2 to be clear, cogent and convincing. Witness #2's demeanour was natural, genuine and candid. Her testimony was consistent throughout the questioning. The panel found her testimony believable. She was familiar with the client and with the procedure. The panel also found that the evidence given by Witness #2 corroborated the evidence given by the Member with the exception of the degree of force used.

Ms. Boyd's demeanour was genuine and candid about the incident. Her testimony was believable and was consistent with regards to allegation 1(b) and generally compatible with the other witness. Ms.

Boyd admitted using excessive force and admitted threatening to bite the patient. Bruises were found on the client. Ms. Boyd observed, recorded and reported the bruising and that it possibly came from struggling against restraints. The panel found Ms. Boyd's evidence to be clear, cogent and convincing.

CNO defines physical abuse as any behaviour exhibited towards a client which may be perceived by the client, the nurse, or others to be violent or inflict physical harm. Such behaviours include hitting, biting, using force, and handling the client in a rough manner. Considering the amount of energy necessary to apply the restraint, the panel concluded that Mrs. M. M. refused the procedure. Mrs. M. M. had bruises consistent with the alleged action. The panel determined that excessive force was used.

Verbally abusive behaviours include sarcasm, retaliation, and teasing. Ms. Boyd testified that she would bite the patient back. The panel determined that this statement could contain any or all of the above- mentioned behaviours and none are acceptable. The patient was forced to do something against her will, and this goes against CNO’s primary values and Consent to Treatment. Ms. Boyd’s behaviours were disrespectful and intimidated the client. These are emotionally abusive behaviours. Therefore the panel holds that the testimony supports the finding of physical, verbal and emotional abuse.

ALLEGATION 2(C)

Witness #3 testified that she has been an RPN since 1977. She has been employed by the centre since 1986 and worked on 3A since 1987. A summary of her testimony is as follows. On the day of the incident she was the primary care giver for Mr. G. D. Witness #3 testified heard Mr. G. D. cry out. She went into the solarium, saw Ms. Boyd picking up his eye glasses off the floor and then saw Ms. Boyd punch the patient two times on the arm, saying he had poured milk on her. Witness #3 went to the Nurses Station to get an RN and when she returned with Witness #4, Ms. Boyd was no longer in the solarium. Mr. G. D. folded his fist to show a punching motion to his face and then took Witness #4's hand to his cheek and rubbed it up and down. Witness #3 then asked Witness #4 if she thought his cheek was swollen. Witness #4 suggested putting ice on Mr. G. D's cheek but Witness #3 refused to do so stating she wasn't the one who hit Mr. G. D. Witness #3 testified that she reported the incident to the Charge Nurse. Witness #3 testified that when Ms. Boyd came back into the room, she accused the patient of hitting both Ms. Boyd and Witness #3. Witness #3 denied that the patient hit her. On arriving home, Witness #3 stated she left a voice message for her supervisor, saying she wanted to talk to her about a matter. She discussed the matter with her supervisor two days later and then Witness #3 documented the incident, and completed an Incident Report as advised by her supervisor.

Ms. Boyd testified she was a team leader and medication nurse on the day of this incident. At about 2:30 p.m., Ms. Boyd stated that she noticed that Mr. G. D.'s afternoon nourishment had arrived and Witness #3, his nurse, was sitting at the desk doing nothing. Ms. Boyd felt that Mr. G. D. should have his nourishment. She testified she handled this situation by saying she would go and give the nourishment to Mr. G. D. hoping that the Witness #3 would then offer to give it. When this offer did not come, Ms.

Boyd stated she put the muffin in the fridge, the milk in a plastic beaker and went to give it to Mr. G. D. Ms. Boyd testified that Mr. G. D. started to drink the milk too quickly so she took it away from him.

She stated that Mr. G. D. got agitated when she gave him back the glass with the milk, he crushed it, and threw it at her.

Ms. Boyd testified that she was not upset by having the milk thrown at her, and just said something, like "Don't throw it Papa". Ms. Boyd testified that Mr. G. D. then hit her and she pushed the patient away because he pushed her. Ms. Boyd denied striking Mr. G. D.

Ms. Boyd stated that she told Witness #3 that Mr. G. D. had punched her. She stated that she then left the room to go and wipe off her uniform and when she returned to the solarium, Witness #3 and the Charge Nurse were there. Ms. Boyd stated she told them she was going to call the family because he was abusing the staff. Ms. Boyd further testified she changed her mind as she was upset already and it would upset the family. Ms. Boyd testified that later, Mr. G. D. was still upset, so she returned him to the hallway outside of his room. Ms. Boyd agreed that Mr. G. D. was not in the habit of hitting staff.

The defence called Witness #4, RN. Witness #4 testified that she qualified as an RN in the Philippines

in 1971 and became certified in Ontario in 1977. She has been working at the centre for 10 years. Witness #4 testified that Witness #3 came to her in the medication room at almost 3:00 p.m. to report that Ms. Boyd had hit Mr. G. D. Witness #4 went to the solarium to see Mr. G. D. She stated that Mr. G.

D. was crying, his glasses were on the floor and Ms. Boyd was not in theroom. Initially, Witness #4 said she asked Witness #3 to go and get ice. She then testified that she checked Mr G. D., didn't see any redness, then told Witness #3 that if she actually saw Ms. Boyd hit the patient then she should get some ice for his cheek. Witness #4 stated that she did not chart the incident nor suggested to Witness #3 to do so. Witness #4 stated that she did report the incident to the Charge Nurse.

Witness #4 testified that she briefly looked for Ms. Boyd to ask her if she hit the patient but she did not find her. She further testified that when she returned to work two days later, she checked the patient but found nothing abnormal. Witness #4 testified that Mr. G. D. had a temper and if he doesn't like things he drops them on the floor.

DECISION

The panel finds Ms. Boyd guilty of professional misconduct, in that she engaged in conduct that was disgraceful, dishonourable or unprofessional, in that she punched, hit or shoved a client, known as Mr.

G. D. Allegations 2(c) and 3(c) are based on the same set of facts. The panel determined that if Ms. Boyd had not been found guilty of 2(c) she would have been found guilty of 3(c).

Reasons for the Decision

The Panel finds Witness #3's evidence clear, cogent and convincing. Her demeanour was genuine, spontaneous and assertive. The fact that she immediately reported the incident to the two RN's on the unit and later on to the Unit Administrator, demonstrates her concern with this incident. Witness #3 also documented the incident as a late entry, and completed an Incident Report.

It is probable that the reporting and recording enhanced her ability to recall the incident. Witness #3's evidence was congruent and consistent throughout all questioning except for minor details such as what time the nourishment arrived. Witness #3 testified that she never wanted this incident to go this far. She stated that she was just concerned for the patient and only wanted someone to talk to Ms. Boyd.

The panel found Ms. Boyd's demeanour to be natural, candid, but fragile. Her testimony of this incident was generally consistent with the other witnesses but with much less detail. She could not remember much about the patient's behaviour and at one point in cross examination, admitted being very confused. Some of Ms. Boyd's testimony regarding this incident was conflicting. At one point in her testimony, Ms. Boyd stated that she was upset about the incident, at another point she denied being angry or upset, and then again testified that she couldn't remember. The panel finds that Ms. Boyd must have been upset. Leaving this patient, who was obviously upset, to wipe milk off her uniform is incongruent with caring, but congruent with personal distress. Her evidence for giving the nourishment was not consistent. She denied hearing Witness #3 saying that Mr. G. D. did not need his nourishment because he had just finished his lunch. Yet, when asked by the panel why she gave the milk and not the muffin, she responded that he had just finished lunch. This inconsistency could be based on lack of knowledge, regarding diet and insulin, which was evident in her testimony. The panel finds Ms. Boyd's testimony less credible. The panel also finds that Ms. Boyd handled the patient in a rough manner, in that she admitted to pushing him.

Witness #4's demeanour was modest yet hesitant. Her testimony of this incident was generally consistent with that of Witness #3's but with much less detail. The panel found Witness #4's testimony to be less than convincing in that she frequently said she could not recall information. Her evidence was evasive in that she originally testified that she suggested to Witness #3 that she apply ice to the patient's cheek, and then testified to saying that she told Witness #3 if she thought Mr. G. D. had been hit that she

should apply the ice. Witness #4 denied seeing any redness on the patient's cheek, yet still suggested ice. She followed up with notification of the incident to the Charge Nurse, looked for Ms. Boyd to question her and reassessed the patient on her return from days off. It is the panel's view that this behaviour is incongruent behaviour if Witness #4 believed nothing occurred. The panel finds that application of ice without reason is not plausible. Although the evidence regarding hitting the patient on the cheek is quite plausible, it was still circumstantial and without more supporting testimony, there is still an uncertainty for such a serious charge to be proven. But, based on the clear, cogent and convincing evidence of Witness #3 and supported by the general testimony of Ms. Boyd, the panel concludes that the patient was punched, hit or shoved on the arm. This type of conduct by a nurse is considered by the panel to be disgraceful , dishonourable and unprofessional.

PENALTY

The Hearing was reconvened on December 9, 1996, for submission on penalty. Counsel for Ms. Boyd presented two character witnesses.

Witness #5, the charge nurse, educated in Dundee, Scotland as a nurse, immigrated to Canada and began working in 1955. Her varied nursing experiences were outlined. She has worked with Ms. Boyd in this facility for approximately the last seven years. Although they both worked on the same Unit, they were responsible for different teams. In the instances in which Witness #5 observed Ms. Boyd’s nursing care, Witness #5 found Ms. Boyd to be a caring, compassionate and competent nurse. She felt that Ms. Boyd did not need further upgrading in gerontological nursing. When Witness #5 was questioned about anger management education, she stated that Ms. Boyd's needs was no greater than the rest of the staff.

Witness #6, trained in Hong Kong as a nurse, immigrated to Canada, and began working in 1971 as a nurse. She outlined her nursing experience, which included working with Ms. Boyd since 1988, for about 6.5 years. In the instances when she observed Ms. Boyd’s care she found her to be experienced, kind and caring. When asked with regards to further education, she responded that this was not a bad idea for anyone. The Counsel for the College made his submission as to penalty. He stated that Ms.

Boyd has been found guilty of 3 instances of abuse, on 3 separate occasions over a period of 3 months and the Penalty must reflect a deterrent which makes it clear to the public and the profession that this will not be tolerated. The public must remain confident in the competence of the profession through strong deterrent. To support this position, he presented four recent cases of a similar nature and reviewed the respective penalties. Counsel for the College proposed the following penalty:

That the discipline Committee should make an order directing the Executive Director to:

1. Suspend the Member’s Certificate of Registration for a period of six months;

2. Impose the following terms, conditions and limitations on the Member’s Certificate of Registration:

a.

i. The Member shall enroll in and successfully complete the following courses (the “Courses”):

a. a course or courses in anger management and /or stress management; and

b. a course or courses in chronic care nursing and/or geriatric nursing;

ii. The courses must be approved by the Director of Investigations and Hearings (the “Director”) and completed within a year or such period approved by the Director;

iii. The Member must provide proof to the Director of successful completion of the courses;

b. For a two year period in nursing (the “Period”), the Member must:

i. Notify the Director in writing of the names and addresses of all employers;

ii. Provide in writing to the Director written evaluations of the Member’s performance from a College member in a supervisory position every four months indicating that

the Member is meeting the standards of practice of the profession;

iii. Restrict her nursing practice during the period to work in a facility or facilities where she will have ongoing supervision by another member or members of the College;

3. Require the Member to appear before the panel to be reprimanded.

Counsel for the Defence urged the Committee to consider that Ms. Boyd is retired, 61 years of age, and has 37 years of experience without incident. He impressed upon the panel that Ms. Boyd acknowledged all actions of which she was found guilty, and noted that these were not premeditated, but in hindsight, were just examples of poor judgement. They were only isolated incidents within a short period of time. He disagreed with all of the proposed penalty, except for the oral reprimand and publication on the public register. Counsel for Ms. Boyd stated suspension, limitations and further education would serve no useful purpose. Ms. Boyd has suffered immensely throughout these proceedings. He stated that the College and the public need not worry about her doing the same thing again.

PENALTY DECISION

The Panel has decided to impose the penalty as outlined by Counsel for the College with one addition. The completion of approved counselling for stress/anger management shall be considered the equivalent to a course(s) in Anger Management and/or Stress Management. The counsellor shall provide periodic progress reports and completion would confirm Ms. Boyd’s compliance.

Reasons for Penalty Decision

The panel took into consideration Ms. Boyd’s good character, her age, the fact that she is retired, and her admission of her actions during the hearing process.

The panel noted that there were three separate incidents of abuse over a three month period. The vulnerability of the clients, made the misconduct all the more serious. The Panel’s goal is not to punish Ms. Boyd, but to protect the public, maintain high professional standards, and preserve the public confidence in the nursing profession. Ms. Boyd misused power and betrayed the trust and respect of her clients.

The Panel concluded that a suspension of her Certificate of Registration and an oral reprimand would be a sufficient deterrent. The Member and the profession would realize that the College of Nurses has a zero tolerance level to abuse.

In order to provide more flexibility and individualization, the option of stress/anger management counselling was added. The education element and ongoing supervision of any further nursing practice will serve as a rehabilitative function for Ms. Boyd, and protect the public from reoccurrence of the behaviour.

I, Chairperson, 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 Member, RPN

Member, RN

Public Representative