DISCIPLINE COMMITTEE OF THE PRIVATE COLLEGE OF NURSES OF ONTARIO

Panel:

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

BETWEEN

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

• and -

Edna Hannigan (Ayres) #74-3568-8

DECISION AND REASONS

COUNSEL for Edna Hannigan (Ayres)

Heard: June 26, 2000

A panel of the Discipline Committee was convened on June 26, 2000 to hear allegations brought before it by the College of Nurses against Edna Hannigan (Ayres), RN as outlined below in the Notice of Hearing, received as Exhibit #1. The Member was present as was her defense counsel.

The panel was advised that the hearing would proceed by way of Agreed Statement of Facts and Joint Submission on Penalty.

NOTICE OF HEARING

1. 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 defined in subsection 1(24) of Ontario Regulation 799/93, in that in or about April through November, 1998 while you were subject to a written undertaking to the College executed by you on March 25, 1997 (the “Undertaking”), you failed to abide by the Undertaking with respect to the following incidents:

a. Your change of nursing employment on or about April 27, 1998 when you commenced work with St. Elizabeth’s Health Care without prior or any notification to the College as required by s. 4(ii) of the Undertaking; and/or

b. Your change of nursing employment on or about November 16, 1998 when you commenced work with St. Elizabeth Visiting Nurses (SEN) without prior or any notification to the College as required by s. 4(ii) of the Undertaking; and/or

c. Your failure to provide the College with a letter from either of the above named employers confirming that the employers were aware of your mental health condition, and other

information as required by s. 4(iii) of the Undertaking; and/or

d. Your failure to provide the College with copies of any appraisals or evaluations of your nursing practice and performance or with any notice of your employer in order to allow the College to obtain same, as required by s. 4(iv) of the Undertaking; and/or

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 defined in subsection 1(37) of Ontario Regulation 799/93, in that in or about March through December, 1998 while applying for employment as a Registered Nurse with St. Elizabeth Health Care and SEN you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:

a. Your alteration of two police Clearance Certificates dated November 23 and November 30, 1998; and/or

b. Your breach of the Undertaking as set out in Allegation 1(a) through (d) above; and/or

c. Your misrepresentation by omission of all facts relating to your employment history on or about March 19, 1998 on a St. Elizabeth Health Care Application for Employment.

3. 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 defined in subsection 1(24) of Ontario Regulation 799/93, in that in or about March, 1998 through February, 1999 while you were subject to an written undertaking to the College, executed by you on March 25, 1997 (the “Undertaking”), you failed to abide by the Undertaking with respect to the following incidents:

a. Your change of nursing employment in or about March, 1998 when you commenced work with Olsten Health Services without prior or any notification to the College as required by

s. 4(ii) of the Undertaking; and/or

b. Your failure to provide the College with a letter from the above named employer confirming that the employer was aware of your mental health condition, and other information as required by s. 4(iii) of the Undertaking; and/or

c. Your failure to provide the College with copies of any appraisals or evaluations of your nursing practice and performance or with any notice of your employer in order to allow the College to obtain same, as required by s. 4(iv) of the Undertaking; and/or

4. 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 defined in subsection 1(1) of Ontario Regulation 799/93, in that in or about December, 1998 and January, 1999 while working as a Registered Nurse with Olsten Health Service you contravened a standard or practice of the profession or failed to meet the standards of practice of the profession with respect to the following incidents:

a. Your failure to properly record your initials on the Medication Administration Record for the administration of Dilaudid to Client #1 at 2400 and 0400 on December 23, 1998; and/or

b. Your failure to properly record your initials on the Medication Administration Record for an administration of Dilaudid to Client #2 at 2200 on January 1, 1999;

c. Your failure to properly record or account for the amount of Dilaudid administered to Client #2 at 2200 on January 1, 1999 on the Narcotic Count Sheet; and/or

d. Your failure to properly record your signature on the Narcotic Count Sheet for the administration of Dilaudid to Client #2 at 0200 and 0600 on January 6, 1999; and/or

5. 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 defined in subsection 1(13) of Ontario Regulation 799/93, in that in or about December, 1998 and January, 1999 while working as a Registered Nurse with Olsten Health Service you failed to keep proper records as required with respect to the following incidents:

a. Your failure to properly record your initials on the Medication Administration Record for the administration of Dilaudid to Client #1 at 2400 and 0400 on December 23, 1998; and/or

b. Your failure to properly record your initials on the Medication Administration Record for an administration of Dilaudid to Client #2 at 2200 on January 1, 1999;

c. Your failure to properly record or account for the amount of Dilaudid administered to Client #2 at 2200 on January 1, 1999 on the Narcotic Count Sheet; and/or

d. Your failure to properly record your signature on the Narcotic Count Sheet for the administration of Dilaudid to Client #2 at 0200 and 0600 on January 6, 1999; and/or

6. 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 defined in subsection 1(37) of Ontario Regulation 799/93, in that in or about March, 1998 through February, 1999 while applying for a position with and working as a Registered Nurse with Olsten Health Service you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:

a. Your breach of the Undertaking as set out in Allegation 1(a) through (c) above.

7. 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 defined in subsection 1(1) of Ontario Regulation 799/93, in that in or about December, 1998 and/or January, 1999 while working as a Registered Nurse with Olsten Health Service you contravened a standard or practice of the profession or failed to meet the standards of practice of the profession with respect to the following incidents:

a. You were sleeping while you were required to provide one-to-one nursing care to Client #1 on or about December 22-23, 1998; and/or

b. You were sleeping while you were required to provide one-to-one nursing care to Client #3 on or about December 14, 1998; and/or

c. You were sleeping while required to provide one-to-one nursing care for Client #2 in the first week of January, 1999.

8. 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 defined in subsection 1(37) of Ontario Regulation 799/93, in that in or about December, 1998 and January, 1999 while applying for a position with and working as a Registered Nurse with Olsten Health Service you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:

a. You were sleeping while you were required to provide one-to-one nursing care to Client #1 on or about December 22-23, 1998; and/or

b. You were sleeping while you were required to provide one-to-one nursing care to Client #3 on or about December 14, 1998; and/or

c. You were sleeping while you were required to provide one-to-one nursing care for Client #2 in the first week of January, 1999.

MEMBER'S PLEA

At the outset of the hearing, counsel for the College withdrew the allegations set out in paragraphs 4, 6, and 8 in the Notice of Hearing.

The Member admitted that she had committed acts of professional misconduct as set out in paragraphs 1, 2, 3, 5, and 7 of the Notice of Hearing.

AGREED STATEMENT OF FACTS

An Agreed Statement of Facts was and entered as Exhibit #2 and provided as follows:

Background

1. Edna Ayres (Hannigan), #74-3568-8, ("the Member") has been registered as a Registered Nurse with the College of Nurse of Ontario ("the College") since 1974.

2. In response to a report concerning the Member from Port Colborne General Hospital, the Executive Committee ordered an investigation into the Member's nursing practice on April 25, 1996. Subsequent to the investigation, the Executive Committee appointed a Board of Inquiry to determine whether the Member's health was interfering with her ability to practice nursing. The Board of Inquiry appointed a psychiatrist to conduct an independent health assessment of the Member.

3. In his assessment dated December 27, 1996, the psychiatrist determined that the Member had a diagnosis of Major Depressive Episode, in partial remission. A copy of the assessment is attached as Appendix “A”.

4. The Member agreed to address the Executive Committee’s concerns regarding her ability to practice nursing by entering into an undertaking dated March 25, 1997 ("the Undertaking"). The Undertaking was in effect from March 25, 1997 to March 25, 1999. A copy of the Undertaking is attached as Appendix "B".

5. At the time the Member signed the Undertaking, she was working as a Registered Nurse for the Victorian Order of Nurses, Niagara Branch ("the VON").

6. On September 29, 1997, the VON wrote to the College to report the termination of the Member as a result of several incidents. After investigating the incidents, the Executive Committee issued the Member a Letter of Concern on March 27, 1998. The Committee also directed the Member to meet with the College's Director of the Investigations & Hearings on April 23, 1998 to discuss the issues raised by the College's investigation. A copy of the Letter of Concern is attached at Appendix "C". A copy of a letter summarising the discussion between the Director of the Investigations & Hearings Department at the April 23, 1998 meeting is attached as Appendix "D".

Breaches of Undertaking

7. In clause 4. ii) of the Undertaking, the Member undertook as follows:

. . . to continue in my current nursing employment at VON, Niagara. In the event that I should wish to change nursing employment I shall advise the College of my intentions thirty (30) days prior to changing nursing employment. If this change in employment is a return to active duty nursing in a hospital setting, I agree to undergo an independent health assessment. When an assessment is required, it shall be done at the College's expense and I shall receive a copy of the assessor's report. (emphasis added)

8. During the period in which the Undertaking was in effect the Member worked as a Registered Nurse for the following employers: VON Niagara, Medcare, St. Elizabeth Health Care, St. Elizabeth’s Health Visiting Nurses (SEN) and Olsten Health Services.

9. Despite clause 4. ii) of the Member's Undertaking, above, the Member

a. commenced working as a Registered Nurse with St. Elizabeth's Health Care in St. Catherines, Ontario, on April 27, 1998 without any notification to the College;

b. commenced working as a Registered Nurse with SEN in Hamilton, Ontario on November 16, 1998 without any notification to the College; and

c. commenced working as a Registered Nurse with the St. Catherines and Hamilton branches of Olsten Health Services in March of 1998 without any notification to the College.

10. In clause 4. iv) of the Undertaking, the Member undertook to:

. . . provide the College with copies of any appraisals or evaluations of my nursing practice and performance for the duration of this Undertaking.

11. In April of 1998, the Member provided the College with a performance appraisal from Medcare dated March 16, 1998. However, in breach of the Member's Undertaking, she failed to provide the College with a copy of any performance appraisals or evaluations from VON Niagara, St. Elizabeth Health Care, SEN, or Olsten Health Services.

12. The Member therefore acknowledges that she is guilty of professional misconduct as set out in paragraphs 1 and 3 of the Notice of Hearing.

Falsificaton Of Police Clearance Certificates And Misrepresentations Regarding Employment History

13. The Member was employed as a visiting RN with SEN from November 16, 1998 until her termination on January 4, 1998. During the application process, the Member supplied SEN with two Clearance Certificates originally provided to her by the Niagara Regional Police Service.

14. The Member acknowledges that she falsified the Clearance Certificates. In particular, the Member altered both certificates to represent that she had “no known criminal record on file with any agency” when in fact the original Clearance Certificate provided to her by the police indicated that she had been convicted of theft over $200.00 contrary to the Criminal Code, and been given a conditional discharge and 12 months probation. The Member also failed to provide SEN with a copy of the Record Sheet that described the conviction. A copy of the original November 23, 1998 Clearance Certificate, and attached Record Sheet are attached as Appendix "E1". A copy of the altered November 23, 1998 Clearance Certificate is attached as Appendix "E2". A copy of the original November 30, 1998 Clearance Certificate and attached Record Sheet are attached as Appendix "E3". A copy of the original November 30, 1998 Clearance Certificate is attached as Appendix "E4". The clearance process was finally completed and as of April 7, 1999, a record search confirmed that Ms Ayres has no criminal record.

15. The Member applied to St. Elizabeth Health Care for work as a Registered Nurse on March 19, 1998. In her application, the Member failed to list the VON in her employment history, and failed to indicate that she had been terminated by the VON, although she had been employed at the VON from September 1996 until her resignation from in September 1997 pursuant to an agreement with the VON. The Member did not appreciate that she was not obliged to list all previous employers on her application for employment.

16. The Member therefore acknowledges that she is guilty of professional misconduct as set out in paragraph 2 of the Notice of Hearing.

Failure To Record Administration Of Narcotics

17. On December 23, 1998, the Member was working for Olsten Health Services in the home of Client #1, a woman dying of throat cancer.

18. Client #1's physician had ordered that the client receive Dilaudid 2-5 mg sq q4hr. She was scheduled to receive a dose of Dilaudid at 2400 hrs that day, and at 0400 hrs the next morning.

19. The Member recorded administration of 5 mg of Dilaudid at 2400 hrs and at 0400 hrs in Client #1's Progress Notes, and recorded the withdrawal of the Dilaudid in the Narcotic/Controlled Substance Record. However, she failed to properly record her initials on the Medication Administration Record (MAR) for an administration of the two doses of Dilaudid in Client #1's MAR.

20. On January 1, 1998, the Member was working for Olsten Heath Services providing care to Client #2 in her home. Client #2 had Alzheimer's Disease and was dying from metastasized cancer.

21. Client #2's physician had ordered that the client receive Dilaudid 1mg/ml 2 ml q4h p.o. Client #2 was due to receive a dose of Dilaudid at 2200 hr that day.

22. The Member failed to record her initials on the Medication Administration Record (MAR) for an administration of Dilaudid to Client #2 at 2200 hr in the client's MAR.

23. The Member recorded a withdrawal of 2 ml of Dilaudid on Client #2's Narcotic Count Sheet for Client #2's 2200-hr dose. However, the Member recorded a resulting balance of Dilaudid of 197 ml, 2.5 ml less than the 199.5 ml balance recorded by the nurse who had recorded the previous withdrawal for Client #2's 1800 hr dose - a discrepancy of 0.5 ml.

24. On January 6, 2000, the Member was also working in the home of Client #2 During her shift, the Member recorded administrations of Dilaudid at 0200 and 0600 hrs in the Client's MAR, and recorded the withdrawals of the two doses on Client #2's Narcotic Count Sheet. However, she failed to sign her name or initials on the Narcotic Count Sheet for either withdrawal.

25. The Member therefore acknowledges that she is guilty of professional misconduct as set out in

paragraphs 5 of the Notice of Hearing.

Sleeping While On Duty

26. The Member acknowledges that while employed by Olsten Healthcare Services she slept while providing one-to-one nursing care to the following clients in their homes under the following circumstances:

a. On December 23, 1998, while caring for a terminally ill cancer client, the Member was woken by the Client's spouse at 4 a.m., after sleeping for at least two hours, because the Member failed to give the Client a scheduled dose of Dilaudid.

b. In December 1998, while caring for a client with terminal lung cancer, the Member was found sleeping on three separate occasions. On one occasion, the Member failed to hear a request for assistance from the Client.

c. In January 1999, while caring for a client with Alzheimer's Disease and terminal metastasized cancer, the Member was found asleep by the client's daughter.

d. The Member therefore acknowledges that she is guilty of professional misconduct as set out in Paragraph 7 of the Notice of Hearing.

27. The College withdraws the allegations set out in paragraphs 4, 6 and 8 in the Notice of Hearing.

PLEA INQUIRY

In order to ensure that the Member's admission of professional misconduct was made freely and voluntarily, the panel asked the Member the following questions:

1. Do you understand the nature of the allegations(s) that has (have) been made against you?

a. Are you aware of the date(s), location(s), and particulars of the allegations(s) made against you?

b. Do you have any questions with respect to the allegation(s) made against you?

2. Do you understand that by admitting the allegation(s), you are waiving the right to require the prosecution to prove the case against you and the right to have a hearing?

3. Do you understand the consequences of admitting to the allegation(s) made against you?

a. Are you aware that there will be a record of your admission and a penalty imposed?

b. Are you aware that the penalty could include a fine, suspension or revocation of your certificate of registration?

c. Are you aware that the results of this proceeding will be available to the public from the College's register and that the College must publish the panel's decision and a summary of its reasons in Communique, including your name, subject to the ability of this panel to order otherwise in certain limited circumstances?

4. Did you voluntarily decide to admit the allegation(s) against you?

a. Were you pressured in any way be a person in authority to admit the allegation(s)?

b. Were you offered any inducement or promised any reward to admit to the allegation(s)?

5. Do you understand that the agreement between the prosecution and the defence counsel with respect to the penalty proposed does not bind the Discipline Panel?

The Member answered in the affirmative to the questions in paragraph 1, 2, 3, and 5 and in the negative to questions in paragraph 4 of the Plea Inquiry. The panel concluded that the Member's admissions of professional misconduct were voluntary, informed and unequivocal.

FINDINGS OF PROFESSIONAL MISCONDUCT

The panel accepted the Agreed Statement of Facts. The panel found that the Member committed an act of professional misconduct as set out in paragraphs 1, 2, 3, 5, and 7 of the Notice of Hearing.

JOINT SUBMISSION ON PENALTY

Counsel for the College presented to the panel a supporting letter (on behalf of the Member) from the Member's psychotherapist for over fifteen years. The letter was entered as Exhibit #3.

Counsel for the College also presented to the panel a Joint Submission on Penalty (Exhibit #4) which provided as follows:

THE MEMBER AND THE COLLEGE JOINTLY SUBMIT that the appropriate penalty in this case is for the Discipline Committee to make the following Order:

1. requiring the Member to appear before the Panel of the Discipline Committee to be reprimanded;

2. directing the Director of the Investigations & Hearings Department of the College (the “Director”) to suspend the Member's Certificate of Registration for a period of three months. The suspension shall commence to run on the date on which the Order becomes final and shall run without interruption;

3. directing the Director to impose the following terms, conditions and limitations (the "Conditions") on the Member's Certificate of Registration, namely:

a. the Member shall continue in ongoing, regular therapy with her psychotherapist, at such frequency as her psychotherapist considers appropriate for a minimum period of two years following the Member's return to the full time practice of nursing as defined in subparagraph (h) below, or such further period as may be recommended by her psychotherapist.

b. the Member shall follow the treatment and monitoring advice of her psychotherapist, including use of prescription medication and attending for treatment or counselling in stress management and relaxation therapy as her psychotherapist considers appropriate.

c. the Member shall provide her family physician with a copy of this Decision.

d. the Member shall obtain and deliver to the College within 30 days of this Order becoming final, a letter signed by her psychotherapist in which the psychotherapist:

i. confirms receipt of the information referred to in paragraph 3 hereof;

ii. agrees to immediately notify, in writing, the Director if in her opinion, the Member's health may interfere with her ability to practice nursing or if she has failed to comply with any of the Conditions; and

iii. agrees to co-operate with the College to provide such information as the Director shall require in order to ensure that the Member is complying with the Conditions and in particular, shall provide quarterly reports to the Director with respect to the Member's current state of health and compliance with the Conditions.

e. the Member shall not substitute her psychotherapist without first obtaining the agreement of the Director, or failing agreement, an Order of a Panel of the Discipline Committee. Where such substitution is made, the substituted psychotherapist must be a psychiatrist, clinical psychologist, or physician who practices psychotherapy. Furthermore, where such substitution is made, these Conditions shall be amended to substitute the name of the replacement psychotherapist for the Member's current psychotherapist and the Member's obligation in paragraph 3 (d) hereof shall be fulfilled within 30 days of the date of the substitution.

f. the Member shall not return to the practice of nursing until she has obtained and filed with the Director a written report signed by her psychotherapist, which report shall be prepared no earlier than April 1, 2000 in which she confirms:

i. that she has consulted with the Member and obtained up-to-date information respecting the Member's status prior to writing the report; and

ii. that in her opinion, the Member's recovery has progressed to the point where she can safely return to the practice of nursing so long as she complies with the Conditions.

g. the Member shall limit her practice to part-time employment not to exceed 16 hours per

week unless and until she files with the Director the written recommendation of her psychotherapist to increase the number of hours in which she can engage in nursing, in which event this restriction shall be varied in accordance with her psychotherapist's written recommendation so long as the Member does not return to full-time nursing (35 or more hours/week) until she has practiced part-time nursing for at least six months.

h. the Member shall not engage in the practice of nursing through an agency or otherwise and shall only engage in the practice of nursing where another member (the "Monitor") is available to monitor her practice. Each Monitor who monitors the Member's practice hereunder shall:

i. be registered with the College as a Registered Nurse and be employed at the same facility and is in the facility when the Member is working;

ii. confirm in writing to the College receipt of a copy of this Decision and agree to maintain its confidentiality;

iii. agree with the College to immediately notify, in writing, the Director if, in the Monitor's opinion, the Member's health is affecting her ability to practice nursing or if she has failed to comply with the Conditions;

iv. agree to co-operate with the College including providing such information as it shall require to ensure that the Member is complying with the Conditions.

i. the Member shall advise the Director immediately, in writing, upon her obtaining employment in nursing and of any subsequent changes in employment in nursing, including the name and address of all her Employers. The Member shall also advise the Director of the name of any Monitor who is responsible for monitoring her practice.

PENALTY DECISION

The panel deliberated and invited submissions from counsel concerning the following two amendments to the Joint Submission of Penalty:

3 h (i ) be registered with the College as a Registered Nurse in good standing and be employed at the same facility and is in the facility when the Member is working.

3 (j) the Member shall provide any employer with a copy of this decision.

The panel's suggested amendments were accepted by both counsel and incorporated into the Joint Submission on Penalty.

The panel accepted the Amended Joint Submission on Penalty.

REASONS FOR DECISION

Given the impact of the Member's history of mental illness on her nursing practice, the panel gave careful consideration to both counsels’ submissions. The Member admitted to the allegations, was cooperative, showed remorse and was sincere in her desire to be rehabilitated.

The panel shared the confidence of both counsel that the public would be protected by the very restrictive reintegration of the Member into nursing practice. The panel was reassured by the strong commitment of the Member's psychiatrist to guide the Member through rehabilitation and her willingness to immediately report to the Director if she believes the Member's health would interfere with her ability to practice or if the Member fails to comply with any of the conditions.

The panel felt that the Penalty would ensure protection of the public while allowing the Member an opportunity for rehabilitation.

At the conclusion of the hearing, an oral reprimand was administered.