Discipline Committee Of The College Of Nurses Of Ontario 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 I. CUMMINGS # HF-1210-3

REASONS FOR DECISION

NO REPRESENTATION for Barbara Ida Cummings

Heard: January 10-11, 2001

A panel of the Discipline Committee of the College of Nurses of Ontario met in Toronto on January 10 and 11, 2000 to hear evidence of the following allegations against Barbara Ida Cummings. The Member was not present, nor was she represented by counsel. The College was informed by the Member that she would not be attending the hearing. Counsel presented an Affidavit of Service and requested that the panel note that the Member was duly served with the Notice of Hearing. The hearing was adjourned for one half hour to give the Member the opportunity to appear. Counsel for the College presented the Notice of Hearing (Exhibit #1).

The Allegations

The allegations against Barbara Ida Cummings as stated in the Notice of Hearing dated October 27, 2000, are as follows:

NOTICE OF HEARING

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 defined in subsection 1(1) of Ontario Regulation 799/93, in that, on or about [date], 1999, while employed as a Registered Practical Nurse at [institution], in the City of Ottawa, in the Province of Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to your care of the Client; and/or

2. 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 defined in subsection 1(7) of Ontario Regulation 799/93, in that, on or about [date], 1999, while

employed as a Registered Practical Nurse at [institution], in the City of Ottawa, in the Province of Ontario, you abused verbally, physically, or emotionally the Client; and/or

3. 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 defined in subsection 1(37) of Ontario Regulation 799/93, in that, on or about [date], 1999, while employed as a Registered Practical Nurse at [institution], in the City of Ottawa, in the Province of Ontario, 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 as disgraceful, dishonourable, or unprofessional with respect to your care of the Client.

Member’s Plea

The Member was not present at the hearing although she was given adequate notice. The panel therefore proceeded on the basis that the Member denied the allegations as set out in the Notice of Hearing.

Overview

The Member, Barbara Ida Cummings, was a Registered Practical Nurse (RPN) employed at the [institution], [Unit], from 1988 to January 19, 2000. The [institution] is a multi-site facility. The Member was employed as a full-time permanent evening RPN. The unit housed 51 residents who required complex continuing care due to a variety of serious physical and mental disabilities.

The issues are as follows:

Did the Member fail to meet the standards of practice by not following the client-specific Behaviours Management Guidelines?

Did the Member verbally, physically or emotional abuse the Client by her comments and actions?

The Evidence

The panel heard evidence from three witnesses.

Witness #1

Witness #1, RN, since 1968, was employed by the [institution] from 1991 to 1994. Witness #1 continued her employment with the [institution] of Ottawa at the [site] working on Level # 5 from 1995 to 1997. Since 1997 she has been the Director of Patient Care (DOC) on Level 4 of the [site].

Witness #1 testified that as DOC, she is responsible for overseeing the care of 51 residents who require complex continuing care, with a variety of physical and mental disabilities. The unit was staffed by Registered Nurses (RNs), Registered Practical Nurses (RPNs) and nurse’s aides. The RN responsibilities included client care and co-ordination of the unit. The RPN responsibilities included providing client care and reporting to the RN. The care delivery was a modular system in which assigned staff rotated through the modules of the unit. The witness testified that she was away on vacation when the incident occurred and was only informed of it by the Member on her return from vacation the following Tuesday.

Witness #1 verified that Exhibit #9, the floor plan of the unit, was accurate. She also stated that the “D” wing of Level 4 of the [site] provided a clear view of the entire corridor and positioning of the nursing station, the pillar and the DOC’s office.

Witness #1 knew the Member and had regular contact with her. She testified that Barbara Cummings

was an employee on Level 4 of the [site] from 1988 to January 2000, when she was suspended pending an investigation by the College of Nurses (CNO), due to this incident. She also stated that the Member was informed that a formal complaint would be made to the CNO. The witness verified, through the Attendance Record, Exhibit #5, that the Member was on duty on the evening of [date], 1999; however the Client was not assigned to the Member’s care.

Witness #1 knew the Client, who had been on the unit since 1996. She described the Client as having a diagnosis of Lennox-Gastaut Syndrome. Exhibit #6, a consultation letter of [physician], M.D., from Royal Ottawa Hospital, clearly outlines manifestation of the disease, Lennnox-Gastaut Syndrome contributing to the Client’s frequent seizure activity, and significant difficulties with behaviours that are highly ritualistic and characterized by a purposeful manner. The witness confirmed that if the Client was not interested in being compliant and if forced into compliance he would strike out. The client often refused to take his medication, however, if he was distracted he would often comply. This behavioural information was well documented in the Behaviour Management Guidelines, Exhibit #7. Several meetings were held to inform staff of the Guidelines and to reinforce the importance of consistency in adhering to the guidelines in order to achieve compliance from the Client Witness #1 could not recall whether the Member was ever in attendance at the meetings.

The witness testified that the Member was a caring nurse but was often bossy and stern in her approach with clients. It was a practice expectation of the institution that the nurse would review the Behaviour Management Guidelines of her client assignment on a regular basis.

The witness testified when she returned to work following her vacation on [date of incident plus 5 days], she was informed by the Member that an incident involving the Member and the Client had occurred on [date] on the evening shift. On [date of incident plus 6 days], Witness #1 received a telephone call from Witness #2, a visitor, who witnessed the incident. Witness #2 informed Witness #1 that she had left a letter at the bedside of her daughter, which described the incident in question. The letter (Exhibit # 8B translation) was retrieved and reviewed by Witness #1 at which time she immediately went to the Human Resources Department.

The Member was suspended by the [site], Level 4 pending an investigation. In addition, remedial action outlined in a communication to Barbara Cummings (Exhibit # 10) was proposed by Witness #1 at a meeting attended by the Member and the Advance Practice Resource Nurse. The Member was asked to review the CNO Professional Standards, complete the learning program of the ‘One is One too Many Abuse Prevention from CNO and to complete a reflective practice exercise by January 7, 2000. Further communication (Exhibit #11) details the meeting of January the 7, 2000. The meeting was attended by Witness #1, the Advance Practice Resource Nurse, the union representative, and the Member. During that meeting, the Member was asked a number of questions regarding her ability to understand her role in the Therapeutic Nurse Client Relationship and abuse prevention. Witness #1 and the Advance Practice Resource Nurse continued to have concerns that the Member did not understand her responsibilities as a nurse and what constitutes abuse in the nurse/client relationship. On January 14, 2000 Witness #1 and the Advance Practice Resource Nurse took additional steps to provide the Member with further education. However, after questioning the Member on January 17, 2000 they continued to have concerns about the Member’s concepts of what constituted abusive behaviour. On January 19, 2000 a further meeting was set up with the Member to follow up on her remediation. Before they could discuss the ongoing concerns the Member tendered her resignation (Exhibit #13) on her own volition.

Witness # 2

Witness #2 testified that her daughter had been a resident on Level 4 of the [site] since July 1996. She visited her daughter from approximately 1630 to 2100 hours Monday to Friday and from approximately 1330 to 2100 hrs on Saturdays and Sundays. Witness #2’s daughter is wheelchair-bound. During her visits at the [site], the witness assisted her daughter through supper, took her out in a wheelchair, and bathed and settled her for the night.

Witness #2 knew the Member prior to [date], 1999. The Member provided care to her daughter on a few occasions when she rotated to the “B” module. Witness #2 testified they had a good relationship, in fact they often chatted. The Member would often come to talk with her, even when she was working on another wing.

Witness #2 knew the Client and was aware of his behavioural problems and seizure activity. The witness testified at 1810 hours on the shift of [date], 1999, as she was walking down “B” wing corridor (Exhibit # 4), she witnessed the Client fall to the floor as he was coming from behind D 6 by the nursing station (Exhibit #4). Witness #2 went to the Client to check to see if he was all right.

Another nurse arrived on the scene. The nurse assessed him and then together they assisted the Client to an upright position. Then Witness #2 left to get her supper and to have a cigarette. On her return to the unit, she took her daughter, for a ride in her wheelchair to [site], which is another part of the facility. On their return to the unit at approximately 1920 to 1940 hrs. they encountered Witness #3, RPN. They stopped in the hallway to chat. While they were standing in the corridor chatting, the Client came out of Room [#] walking very fast. Witness #3 had told Witness #2 that the Client had refused to take his medication. At that point Witness #2 saw Barbara Cummings standing at the union of Corridor E & D (Exhibit # 4) with her hands on her hips. When the Client turned to go back towards the nursing station, the Member started walking down the corridor very quickly. The witness testified Witness #3 was standing with her back against the wall on the same side as the nursing station and she was leaning against the wall on the other side opposite Room # 437 (Exhibit #4).

Witness #2 testified that she had an unobstructed view of the nursing station and witnessed Barbara Cummings with her back towards the counter. She saw the Member take hold of the Client’s shirt front with both her hands and looked straight into his eyes in a challenging manner, while standing very close to him. The Client raised his arm as though to protect himself and Witness #2 witnessed the Member slap the Client on the left side of his face. Witness #2 noticed a flush on the left side of his face. The witness then saw the Member attempt to push the Client towards a blue chair located inside the nursing station, in an attempt to make him sit in the chair. Witness #2 testified that she began walking toward the Client when Witness #3, RPN, came to the Client's assistance. Witness #2 heard the Member say to Witness #3, “He is not my client and if he ever he dies I don’t give a God dam shit about him”. Witness #2 took her daughter to her room where she encountered another nurse. Witness #2 told her about the incident she had just witnessed.

The Member asked to speak with Witness #2 and said to Witness #2, “You know it will go to [Witness #1's] office”. When Witness #2 confronted the Member about the incident, the Member denied slapping the Client. Witness #2 told the Member she would not “stand a client being slapped, that he was sick and his behaviour was not his fault”.

Witness #2 testified that she went to check on the Client. He was in his room resting on a mattress on the floor. She checked his face for evidence of the slap and found nothing. She rubbed his back and left.

After arriving at her home Witness #2 had written an account of what she had witnessed (Exhibit # 8 A&B). When she returned to the [site], she placed the letter concerning the incident she had witnessed into her daughter’s closet, under her clothes. Witness #2 called Witness #1 on [date - 5 days after incident], to ask her about the incident. Witness #1 told Witness #2 that she could do nothing about it without documentation about the incident. Witness #2 informed Witness #1 of the location of her letter in her daughter’s room.

Witness #2 was clear and concise in her testimony. She had good recollection of the incident and was obviously very troubled over what she had witnessed. The panel found Witness #2 a credible witness.

Witness # 3

Witness #3, RN, was employed at [site] as a part-time RPN from July 1991 to January 2000. During her employment at [site], Level 4, she was engaged in further education and obtained her B.Sc.N. from University de Quebec at Hull in October 1999. She is presently employed in Winnipeg, Manitoba. The witness knew the Member since 1991 and had worked with her on a number of occasions including the evening of [date], 1999.

Witness #3 knew the Client and was familiar with his behaviour problems and his difficulty taking his medication. The Client was assigned to Witness #3 on the evening in question. The witness testified that the staff was aware that using force with the Client had a negative effect on him, in that it could make him more aggressive. The nurse would be more successful delivering care to the Client to use diversion to some activity he enjoyed when he was being difficult. When Witness #3 was unsuccessful in administering the Client’s medication she asked the Member to try to give him his medication.

Witness #3 testified that she did in fact meet Witness #2 and her daughter in the corridor and they did in fact chat briefly. Witness #3 testified that as she was walking behind the nursing station she noticed the Member holding the Client’s hands with her hands and that she was attempting to push him into the chair outside the nurses station. Witness #3 testified that she asked the Member “to leave him alone, because he would only get worse”. Witness #3 testified that when the Member let go of the Client's hands, the Client tried to hit her. The Member said to the Client, “if you hit me I’ll hit you back”. She was shouting at him saying, “if he’s going to behave like that I don’t want him in my group”.

Witness #3 testified she was standing with the Client when the Member was shouting at him. The witness took the Client to his room to lie down. Witness #3 told the panel that she was approached by a nurse who asked her about the incident. They went to the Client's room to have a look at his face but saw no injury. She never asked the Client about the slap.

Witness #3 vaguely remembered the incident and did answer counsel’s questions to the best of her ability.

Decision

College counsel outlined for the panel that the onus of proof lies clearly with the “College” and is proof on a balance of probabilities based on clear, convincing and cogent evidence as set out in Re: Bernstein and College of Physicians and Surgeons of Ont.(1977)15 O.R. (2d) 477 (Div. Ct.)

The panel deliberated and after considering the evidence, unanimously agreed that the Member committed an act of professional misconduct as alleged in paragraph #1, #2, and #3 of the Notice Of Hearing.

In particular the Member

grabbed, slapped and pushed the Client thereby committing physical abuse screamed at the Client thereby committing verbal and emotional abuse

failed to familiarise herself with the Client’s Behaviour Management Program which resulted in escalation of the Client’s behaviour.

Reason for Decision

The panel believed the testimony of Witness #2. Her testimony was clear and similar to her written letter which she made immediately following the incident. The incident obviously upset Witness #2 and she wanted assurance that the behaviour demonstrated by the Member would not continue.

Penalty

College counsel presented submissions on penalty based on: rehabilitation of the Member

deterrence to the Member and the Membership

the message to the public that such conduct is viewed very serious and will not be tolerated.

College counsel pointed out that the panel was not made aware of any mitigating factors in this case. The Member did not attend the hearing and did not offer any reasons for her behaviour. Neither did she offer any sign of remorse for her actions. Witness #1’s efforts to rehabilitate the Member were not successful. Based on these factors, the panel’s only choice was to emphasise the deterrent rather than a rehabilitative aspect when determining the appropriate penalty for this Member.

Submissions on penalty

The College submits that the appropriate penalty in this case is for the Discipline Committee to make the following order:

1. Directing the Executive Director to suspend the Member’s certificate of registration for a period of four months from the date the Member is issued an annual payment card which allows her to practice nursing;

2. Requiring the Member to appear before the panel to be reprimanded prior to her return to nursing practice;

3. Directing the Executive Director to impose the following specified terms, conditions and limitations on the Member’s certificate of registration:

a. Prior to her return to nursing practice, the Member shall complete the “One is One Too Many” workbook and meet with a Practice Consultant from the College to review the incident of client abuse giving rise to these proceedings;

b. Upon her return to nursing practice, for a period of one year, the Member shall:

i. Provide to the Director of Investigations and Hearings (the Director) written notification of the address of each and every place of employment at which the Member is engaged in the practice of nursing;

ii. Provide a copy of the Decision and Reasons of the panel of the Discipline Committee to her employers and have her practice monitored and evaluated at each and every place of employment by a Member of the profession registered with CNO; and

iii. Require the employer to provide to the Director with written performance reports regarding the Member’s practice every six months.

Penalty Decision

After deliberation on the proposed penalty the panel unanimously ruled that the penalty was appropriate, in that, in this case it served as a specific deterrent to the Member and the Membership and send a strong message to the public that such conduct would not be tolerated.

I, [chairperson], RPN, 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, Chairperson, Discipline Panel

MEMBER, RN

Member, Discipline Panel

MEMBER, RPN

Member, Discipline Panel

PUBLIC MEMBER

Member, Discipline Panel

PUBLIC MEMBER

Member, Discipline Panel