Panel:

Chairperson, RPN
Member, RN
Member, RPN
Public Representative
Public Representative

BETWEEN

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

and -

BARBARA O’CONNELL # FE-1289-0

REASONS FOR DECISION

COUNSEL for Barbara O’Connell

Heard: NOVEMBER 17, 2000

A panel of the Discipline Committee of the College of Nurses of Ontario (“the College”) convened in Toronto on November 17, 2000 to commence a hearing concerning allegations brought by the College of Nurses against the Member, Barbara A. O’Connell. The Member was present and represented by Counsel.

The Allegations

The allegations against the Member, Barbara A. O’Connell, as stated in the Notice of Hearing dated November 3, 2000, are as follows:

c. You have committed an act of professional misconduct as provided by clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(7) of the Ontario Regulation 799/93, in that on or about [date], 1999, while employed as a Registered Practical Nurse at the Cassellholme Home For The Aged, East Nipissing District, you abused a client verbally or emotionally, the particulars of which are set out in Appendix A.

d. You have committed an act of professional misconduct as provided by clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(37) of Ontario Regulation 799/93, in that on or about [date], 1999, while employed as a Registered Practical Nurse at the Cassellholme Home For The Aged, East Nipissing District, 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 to Specified Allegation

When a resident of Cassellholme Home For The Aged asked you for assistance with a treatment, you responded by saying words to the effect that, “if you can wipe your own ass, you can put cream on your own feet” or “if you can wipe your ass you can do your feet”.

Members Plea

Barbara O’Connell admitted to the allegations set out in paragraphs 1 and 2 of the Notice of Hearing with respect to the client. The panel made its usual “plea inquiry” and Decision and Reasons

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, (Exhibit 2) which provided as follows:

AGREED STATEMENT OF FACTS

BACKGROUND

c. Barbara O’Connell, registration number FE-1289-0 (“the Member”) has been registered as a Registered Nursing Assistant or Registered Practical Nurse with the College of Nurse of Ontario (“the College”) since 1965.

d. Since 1990 she has been employed as a Registered Practical Nurse at Cassellholme Home for the Aged in North Bay, Ontario (“Cassellholme”). Cassellholme is a 240-bed facility serving the district of Nippissing.

e. The Member was initially hired on a part-time basis, and transferred to full-time in July 1990. For the last five years, the Member was employed on the second floor in the 2-West, and the 2-North Units. The 2-West Unit, has 36 beds, 18 of which are allocated to clients with Alzheimer’s Disease, and similar conditions, and are at risk of wandering. The remaining beds are for residents that require light to moderate nursing care. The 2-North Unit has 38 beds that are generally occupied by clients requiring heavy care.

THE INCIDENT

f. [The Client] . The Client . She is

g. The Client has been prescribed an anti-fungal medication in a cream to be applied to her feet twice a day. In practice, the cream was applied to her feet on a prn [as needed] basis as her feet bothered her. The Client applied the cream herself, from time to time. However, since she could not be relied upon to do so, the practice was for the nurses on the unit to apply it for her.

h. On [date], 1999, the member was assigned to work from 1500-2300 hrs on unit 2-West. At approximately 2100 to 2130 h, the Member was standing outside the nursing station on unit 2- North. Two Health Care Aids and two nurses were in the area, but there were no visitors, or clients, other than the Client.

i. The Client approached the Member and asked her if she would apply the medicated cream to her feet. The Member replied, “If you can wipe your own ass, you can put cream on your own feet.” The Member laughed after making the comment.

j. Following the Member’s comment, the Client lowered her head and walked away.

k. After the incident was investigated, the Member’s employment was terminated.

ADMISSION OF PROFESSIONAL MISCONDUCT

l. The Member admits that, in response to the Client’s request for assistance with a treatment, as described in Appendix A of the Notice of Hearing, she has committed an act of professional misconduct, as set out in paragraph 1 of the Notice of Hearing, by verbally abusing the Client when she responded:. “If you can wipe your own ass, you can do your own feet”.

PREVIOUS INCIDENTS INVOLVING THE MEMBER

m. On [date], 1997, the Complaints Committee of the College of Nurses issued a letter of caution to the Member in connection with a complaint about the Member telling a resident of Casellholme to “Fuck off”. A copy of the Committee’s decision, and letter of caution are Exhibits A* and B*, respectively.

n. As is referred to on the first page of the Committee’s Decision, under the heading “Background Information”, the Committee was aware that Cassellholme had issued the Member a written warning in [date], 1995, and a 3-day suspension in [date] 1991, for speaking inappropriately to clients, as is described in paragraphs 15 and 17, respectively, below.

o. Before the Committee issued the letter of concern, it accepted an undertaking from the Member, a copy of which undertaking is Exhibit C*, in which the Member agreed to:

a. review the video from the Abuse Prevention Package “One is One Too Many”, and review the College’s Guidelines for Professional Behaviour;

b. undergo a course of stress or anger management;

c. provide the Director of Investigations & Hearings Department with a written statement describing the insights she has gained from the above and how they will affect her behaviour in the future.

p. In [month] of 1996, Cassellholme suspended the Member for three days for verbal abuse in connection with comment for which she received the letter of caution from the Complaints Committee, as described in paragraph 11, above. The Member unsuccessfully grieved the suspension.

q. In [month] of 1995, the Member received a letter of warning from Cassellholme after Cassellholme had investigated two incidents, the first of which the Member denied, and the second of which – saying that a client was “faking” and referring to a client as “Ma Mere” – the Member did not deny. A copy of the letter or warning is Exhibit D*.

r. On [date], 1992, the Member received a memorandum from the Head Nurse at Cassellholme, concerning a discussion with her in which the Member was informed that Casellholme had concerns regarding her poor communication skills in her interactions with clients and staff. A copy of that memorandum is Exhibit E.*

s. In [month] of 1991, the Member was suspended by Cassellholme for 3 days in connection with the Member being verbally abusive and physically rough with an elderly client who was incontinent. The Member grieved the suspension, and although the grievance was denied, the suspension was reduced to two days. Copies of the following are Exhibits:

a. a letter dated [date], 1991 to the Member, advising her of the denial of her grievance,

Exhibit F;*

b. a memorandum dated [date], 1991 to the Member advising her that her employment will be suspended for three days, Exhibit G;*

c. a memorandum dated [date], 1990 to file concerning the incident, Exhibit H;*

d. a memorandum dated [date], 1991 to the Director of Nursing, concerning the incident Exhibit I.*

Exhibits to the Agreed Statement of Facts (exhibit #2--A-I on the hearing) have not been appended to the panel’s Decision and Reasons. They are available for viewing at the College.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing in respect to the Client . The Member, or about [date], 1999, abused the Client verbally and emotionally as stated in Appendix A of the Notice of Hearing, and in so doing engaged in conduct relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, and unprofessional.

Reasons for Decision

The Member admitted to allegations #1 and #2, as set out in the Notice of Hearing.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty, Exhibit #3, had been agreed upon.

JOINT SUBMISSION ON PENALTY

Counsel for the College made a correction to paragraph 3 in that the word “restrictions” was changed to the word “conditions”. The panel accepted the change.

c. Requiring the Member to appear before the panel to be reprimanded.

d. Directing the Executive Director to suspend the Member’s certificate of registration for 60 consecutive days, such suspension to commence on the day the panel’s order becomes final.

e. Directing the Executive Director to impose the following terms, limitations and conditions on the Member’s certificate of registration for the period of two consecutive years, such period to commence on the day the panel’s order becomes final: The Member may only practice nursing in a setting, or settings, where:

a. another member of the College is present at all times to monitor the Member’s practice;

b. the Member’s employer has been provided a copy of the decision and reasons of the panel in this matter;

c. the employer agrees to immediately notify the Director of the Investigations and Hearings Department if any reasonable information comes to the employer’s attention that indicates the Member has interacted with clients in an inappropriate or unprofessional manner;

d. the employer has written to the College’s Director of Investigations and Hearings within 15 days of resuming any current employment, or within 15 days of starting any and all new employment, indicating that:

the employer undertakes to ensure that another member of the College will be present at all to monitor the Member’s practice,
the employer has received a copy of the decision and reasons of the panel in this matter,
the employer agrees to immediately notify the Director of Investigations and Hearings if any reasonable information comes to her or his attention that indicates the Member has interacted with clients in an inappropriate or unprofessional manner.

The panel deliberated and unanimously did not accept the Joint Submission on Penalty. Both counsel were invited to make further submissions regarding the Member’s practice, in particular:

a. the monitoring of the Member’s practice; in particular what was meant/entailed by the phrase “present at all times” in paragraph 3(a) of the Joint Submission on Penalty required further clarification;

b. that there was no rehabilitative component for the Member. The panel suggested the Member revisit/review the College’s abuse prevention package, “One is One Too Many”, and consult with the College’s Practice Consultant.

Counsel deliberated and presented the panel with a Revised Joint Submission on Penalty (Exhibit 4).

REVISED JOINT SUBMISSION ON PENALTY

Barbara O’Connell, registration number FE-1289-0 (“the Member”) and the College of Nurses of Ontario (“the College”) jointly submit that, in view of the professional misconduct admitted to by the Member in the Agreed Statement of Fact, the circumstances set out in the Agreed Statement of Fact, and the Member’s undertaking to complete the College’s abuse prevention package, One is One Too Many, and review her understanding of the package with a College Practice Consultant, a copy of which is attached as Exhibit A, the panel of the Discipline Committee should make the following order:

Requiring the Member to appear before the panel to be reprimanded.
Directing the Executive Director to suspend the Member’s certificate of registration for 60 consecutive days, such suspension to commence on the day the panel’s order becomes final.

f. Directing the Executive Director to impose the following terms, limitations and conditions on the Member’s certificate of registration for the period of two consecutive years, such period to commence on the day the panel’s order becomes final:

The Member may only practice nursing in a setting, or settings, where:

c. another member of the College is present in the workplace and, during the same shift, is in professional contact with the same group of clients as the Member, in order to monitor the Member’s practice;

d. the Member’s employer has been provided a copy of the decision and reasons of the panel in this matter;

e. the employer agrees to immediately notify the Director of the Investigations and Hearings Department if any reasonable information comes to the employer’s attention that indicates the Member has interacted with clients in an inappropriate or unprofessional manner;

f. the employer has written to the College’s Director of Investigations and Hearings within 15 days of resuming any current employment, or within 15 days of starting any and all new employment, indicating that:

the employer undertakes to ensure that another member of the College will be present in the workplace and, during the same shift, is in professional contact with the same group of clients as the Member, in order to monitor the Member’s practice,
the employer has received a copy of the decision and reasons of the panel in this matter,
the employer agrees to immediately notify the Director of Investigations and Hearings if any reasonable information comes to her or his attention that indicates the Member has interacted with clients in an inappropriate or unprofessional manner.

The parties hereto undertake as follows:

that the Member complete the College’s abuse prevention package One is One Too Many by viewing the video and completing the workbook.
that the Member discuss her understanding of the One is One Too Many program and its application to her practice with a College Practice Consultant by telephone before the period of her suspension is completed.

Penalty Decision

The Revised Joint Submissions on Penalty as submitted by both counsel was accepted by the panel.

The panel concluded that the proposed penalty is reasonable and will serve the purpose of specific deterrence of the Member and general deterrence to the professional membership, and is in the public interest. The penalty addresses the panel’s concern regarding the monitoring of the Member’s practice and includes a rehabilitative component. The Member has accepted responsibility for her actions and co-operated with the College and the Revised Penalty, and in particular, the “Undertaking” in appendix “A” of the Revised Joint Submission on Penalty.

, RPN, Chair, Discipline Panel

Date

Member, RN

Member, Discipline Panel Member, RPN

Member, Discipline Panel PUBLIC MEMBER

Member, Discipline Panel

College of Nurses of Ontario v. O'Connell, 2000 ONCNO 50737

Case Summary