College of Nurses of Ontario v. Perry, 2000 ONCNO 50752

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Panel:

Sheila Richardson, RN

Chairperson

Christine Barber, RPN

Member

Veronica Kerr

Public Representative

B E T W E E N:

COLLEGE OF NURSES ) NICK COLEMAN OF ONTARIO ) for College of Nurses ) of Ontario

• and - )

PATRICK PERRY ) DAN RAFFERTY #77-1298-7 ) for Patrick Perry ) Heard: May 2, 2000

DECISION AND REASONS

A panel of the Discipline Committee of the College of Nurses of Ontario was convened to hear allegations against the Member, Mr. Patrick Perry, RN. The hearing convened on May 2, 2000, at the JCR Mediation Place, 3rd floor, 390 Bay Street, Toronto, Ontario.

The Member was present and was represented by counsel, Mr. Dan Rafferty.

NOTICE OF HEARING

The allegations against Mr. Patrick Perry (the “Member”), as contained in the Notice of Hearing [ ] were as follows:

1. You have committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and section 1(1) of Ontario Regulation 799/93, in that during the year 1998, while employed as a Registered Nurse at [the Facility in] Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to comments you made to [Client A], on or about April 6, 1998, and [Client B], on or about November 5, 1998.

2. You have committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and section 1(7) of Ontario Regulation 799/93, in that during the year 1998, while employed as a Registered Nurse at [the Facility], you abused a client verbally or emotionally with respect to your comments to [Client A], on or about April 6, 1998 and [Client B], on or about November 5, 1998.

3. You have committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and section 1(37) of Ontario Regulation 799/93, in that during the year 1998, while employed as a Registered Nurse at [the Facility], you engaged in conduct or performed an act or acts relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded as disgraceful, dishonourable or unprofessional with respect to your comments to [Client A], on or about April 6, 1998 and [Client B], on or about November 5, 1998.

MEMBER’S PLEA

The Member admitted the allegations contained in the Notice of Hearing dated April 10, 2000.

PLEA INQUIRY

The Chairperson conducted a Plea Inquiry in which the Member affirmed that he understood and voluntarily admitted Allegations #1, #2 and #3 as stated in the Notice of Hearing. The Member’s responses to the Plea Inquiry indicated he was not pressured or offered any inducements to admit the allegations. The Member also indicated that he understood that the agreement reached between himself and the College of Nurses was not binding on this panel. [ ]

AGREED STATEMENT OF FACTS

An Agreed Statement of Facts was filed. This document provides as follows:

The Member

1. The Member obtained his diploma in nursing [ ] in 1976.

2. The Member has been employed [ ] on a variety of units at [the Facility] since 1981. The incidents described below occurred on Unit 2 [the Unit] at [the Facility].

The Facility and the Unit

3. [The Facility] is a multi-level [forensic mental health facility]. [The Facility] provides mental health services [ ].

4. [The Unit] is an 82-bed unit situated in two separate buildings [ ]. The Unit offers [mental health services]. The Unit also provides a residential sex offender program.

The April 6, 199[8] Incident

5. [Client A] was a [ ] male client with a diagnosis of aggressive antisocial personality disorder.

6. [Client A] had recently undergone a circumcision. He had been expressing concern about the progress of healing following the surgery, and in particular, was concerned about a “lump” on his penis.

7. [Client A] expressed concerns about the status of his penis to [RPN A], an RPN working with the Member. The RPN agreed that the client could accompany him to the back office of the Unit to discuss the matter further. Present in the back office were the Member and another RPN, [RPN B].

8. The client indicated to [RPN A] that if nothing were done about his situation, he would cut his penis himself.

9. The Member intervened and said to the client something to the effect of, “If you’re going to cut yourself, make sure you use a sharp razor and cut deep.” The client responded in an aggressive manner and had to be returned to his cell by one of the RPNs.

10. The Member received a fifteen-day suspension without pay from his employer for this incident.

11. The Member admits that his conduct, as described above, constitutes an act of professional misconduct as set out in the Notice of Hearing.

The November 5, 1998 incident

12. [Client B] was a [ ] male with a diagnosis of schizophrenia, multiple personality disorder and depression.

13. [Client B] was speaking with another nurse regarding his involvement in attempting to help other clients develop computer skills so that they would be better prepared when they were released into the community. The client had asked the nurse for feedback regarding a letter he had written to the Executive Director about computers. The client remarked that he wished he had been able to assist a previous client who had recently been released.

14. The Member interrupted the conversation between the nurse and the client and said something to the effect of, “Don’t fucking worry about that guy, he will never amount to anything and will probably end up back here. You’re just wasting your fucking time worrying about him.”

15. The client and the nurse were speechless and very uncomfortable with the Member’s comments.

16. The Member received a seven-day suspension without pay from his employer for this incident.

17. The Member admits that his conduct, as described above, constitutes an act of professional misconduct as set out in the Notice of Hearing.

The Member’s past performance and personal factors

18. At the direction of his employer, the Member has not been working in a nursing capacity since February 1999.

19. Over the past ten years, the Member has been disciplined by his employer for similar incidents involving inappropriate comments to clients and other staff.

20. In August 1996, the Member was sent home without pay and issued a letter of reprimand for [another concern].

21. Since 1995, the Member has been under medical care and treatment, [ ].

FINDING OF PROFESSIONAL MISCONDUCT

The panel accepted the Agreed Statement of Facts and found the Member, Mr. Perry, guilty of professional misconduct in relation to Allegations #1, #2 and #3 as stated in the Notice of Hearing. In doing so, the panel applied the standard of proof on a balance of probabilities, based on clear, cogent and convincing evidence.

The panel, in making this decision, reviewed the following College of Nurses publications:

(a) Explanation of Professional Misconduct, specifically the following section on page 6 and page 7:

“ 111. Abusive Conduct

Any abusive conduct by a nurse toward a client is inconsistent with the Fundamental professional obligations of the nurse. Such conduct is not tolerated by the public, by CNO or by the profession.

7. Abusing a client verbally, physically or emotionally.

Discussion:

Abusive conduct is interpreted broadly to include acts or omissions which cause or may cause physically or emotional harm to a client. Abusive conduct may consist of physical, non-physical, verbal, or non-verbal behaviour towards a client; it includes neglect and conduct that may be reasonably perceived by the client or others to be of a sexual or otherwise demeaning, exploitative, derogatory or humiliating nature. Such behaviour or remarks include, but are not limited to, sarcasm, swearing, racial slurs, teasing, and the use of inappropriate tone of voice. In addition, the nurse must not behave in a manner which demonstrates disrespect for the client and

which is perceived by the client or others to be emotionally abusive. Such behaviour includes, but is not limited to sarcasm, retaliation, intimidation, manipulation, teasing or taunting, insensitivity to the client’s culture, and insensitivity to the client’s preferences with respect to sexual orientation and family dynamics.

It is important to note that the definition of abusive conduct does not require that a nurse has an intent to harm the client. Where the actions of a nurse are abusive, whether or not she or he intended them to be so, the conduct is still considered abusive”.

(b) The Standard for the Therapeutic Nurse-Client Relationship, specifically the following sections on page 16:

“(1) Abuse of Clients

The abuse of clients is always unacceptable. It breaches the trust and respect in the relationship and crosses the boundaries of acceptable care. Verbal, physical, emotional and sexual abuse is prohibited by regulations under the Nurses Act, 1991. CNO is committed to the prevention of all types of abuse that might occur within the therapeutic nurse-client relationship.

(a) Emotional/Verbal Abuse

The nurse must not use verbal and non-verbal behaviours that demonstrates disrespect for the client and which are perceived by the client or others to be abusive. Such verbal and non-verbal behaviours include but are not limited to:

• Sarcasm;

• Retaliation;

• Intimidation, including threatening gestures/actions;

• Manipulation;

• Teasing or taunting;

• Insensitivity to the client’s preferences with respect to sex and family dynamics;

• Swearing;

• Cultural slurs; and

• Inappropriate tone of voice such as expressing impatience.”

The panel unanimously found that the remarks made by the Member to clients on both April 6, 1998 and November 5, 1998 were a contravention of the standards of practice and involved verbal abuse that included swearing and comments that were of a derogatory, demeaning and sarcastic nature, all of which would be reasonably regarded by the members of the profession to be disgraceful, dishonourable and unprofessional.

JOINT SUBMISSION ON PENALTY

The Member and the College jointly submitted that the appropriate penalty in this matter was for the panel to make the following order:

1. Requiring the Member to appear before the panel to be reprimanded;

2. Directing the Executive Director to suspend the Member’s certificate of registration for a period of one month, all of which would be suspended on condition that the Member comply with the remaining terms of this order;

3. Directing the Executive Director to impose the following specified terms, conditions and limitations (“conditions”) on the Member’s certificate of registration and requiring the Member to complete the conditions described in subparagraphs (a), (b) and (c) prior to resuming direct client care:

(a) The Member shall review the video and complete the workbook entitled “One is One Too Many” and meet with a Practice Consultant to discuss his inappropriate communications with clients and staff;

(b) The Member shall enrol in and successfully complete anger management and/or stress management counselling with a professional or paraprofessional acceptable to the Director, Investigations & Hearings (the Director) and shall provide proof of completion of such counselling to the Director. It is understood that resumption of direct client care may begin upon enrolment, all other conditions having been satisfied;

(c) The Member shall undergo an assessment [regarding his personal health] with a professional acceptable to the Director. The expert shall receive information regarding this matter prior to his or her assessment of the Member and will provide a copy of the assessment to the Director. [ ] and

(d) For the next twelve months from the date of this order, the Member shall submit performance appraisals of employment in nursing with the current employer or any subsequent employer, to be completed at six-month intervals by a supervisor who is a member of the College. The Executive Committee may take further action with respect to substantial problems disclosed in the performance appraisals that may result in further allegations of professional misconduct.

4. The Member acknowledges that the decision of the Discipline Committee and its reasons, or a summary of its reasons, will be published by the College, identifying the Member by name.

DECISION

The panel deliberated and unanimously accepted the Joint Submission on Penalty in its entirety, taking into account the Member’s [health history].

The panel found that the Joint Submission on Penalty was sufficiently tailored to Mr. Perry’s

individual situation such that the rehabilitative nature will assist the Member in dealing with any underlying conditions or issues that may have contributed to the incidents of professional misconduct, while at the same time upholding the public interest by providing a sufficient deterrent both to the Member individually and to other members of the profession that this type of behaviour will not be tolerated.

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

I, Sheila Richardson, RN, 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

Christine Barber, RPN

Veronica Kerr, Public Representative