College of Nurses of Ontario v. Member A, 2001 CanLII 62569

FULL-TEXT DECISION

Note: This is the full text of the decision of the Discipline panel in this matter. Any information identifying clients, witnesses or facilities has been removed [ ]. The member's name is omitted if allegations have been dismissed or if the results are not placed on the public portion of the Register.

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Panel:

Marsha Taylor, RPN Chairperson, RPN

Judy Robinson, RN Member, RN

Barbara Hood, RN Member, RN

Sandra Millar Public Representative

Antony Cunningham Public Representative

BETWEEN

COLLEGE OF NURSES OF ONTARIO

Legal COUNSEL for College of Nurses of Ontario

• and -

Member A, RN

for [Member A], RN

Heard: October 10 and 11, 2000 and, in 2001, on January 15, 17, 18, 19, and on February 12, 13, 14, 28, and on March 1 and 2.

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 10 and 11, 2000 and, in 2001, on January 15, 17, 18, 19, and on February 12, 13, 14, 28, and on March 1 and 2 at the College of Nurses of Ontario at Toronto.

The Allegations

The allegations against [Member A], RN (the Member) as stated in the Notice of Hearing dated May 11, 2000, are as follows:

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(1) of Ontario Regulation 799/93, in that on or about February 20, 1997, while working as a Registered Nurse at the [facility] in the [city], 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 and treatment of a client and in particular, you straddled a client and/or posed for photographs while she was on the operating table during a surgical procedure; 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(7) of Ontario Regulation 799/93, in that on or about February 20, 1997, while working as a Registered Nurse at the [facility] in the [city], in the Province of Ontario, you abused a client physically, and in particular, you straddled the client while she was on the operating table during a surgical procedure; and/or
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(7) of Ontario Regulation 799/93, in that on or about February 20, 1997, while working as a Registered Nurse at the [facility] in [the city], Province of Ontario, you abused a client emotionally, and in particular, you straddled the client and/or posed for photographs while she was on the operating table during a surgical procedure; 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(37) of Ontario Regulation 799/93, in that on or about February 20, 1997, while working as a Registered Nurse at the [facility], in the [city], 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, in that you straddled the client and/or posed for photographs while she was on the operating table during a surgical procedure.

Counsel for the College advised that the College was not calling any evidence and would not be seeking a finding with respect to the allegations against [Member A], RN as set out in paragraph 2 of the Notice of Hearing.

Publication Ban

Identity of the Client

Counsel for the College brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Regulated Health Professions Act, to the panel for an order banning the publication and broadcasting of the name of the Client.

The panel considered the submission of College counsel and made an Order for a Publication Ban effective as of October 10, 2000 of the publication or broadcasting of the identity of the client or any information that could disclose her identity.

The panel based its decision on the balance of probability that the witness testified to matters of a personal nature and that these and the witness's identity needed to be protected.

Current and Former Home and Business Addresses and Telephone Numbers of [Member B] and [Member A] and of Any Other Information Which May Identify Their Current and Former Home and Business Addresses and Telephone Numbers

Counsel for the Defense brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Regulated Health Professions Act, to the panel for an order banning the publication and broadcasting of the current and former home and business addresses and telephone numbers of [Member B] and [Member A] and of any other information which may identify their current and former home and business addresses and telephone numbers.

Counsel for defense submitted several copies of pictures and printed materials received by the Members and information regarding verbal inquiries and harassment to which the Members and their neighbours had been subjected.

Upon review of the submissions, the panel made an order preventing public disclosure and a ban on the publication or broadcasting of the current and former home and business addresses and telephone numbers of [Member B] and [Member A] and of any other information which may identify their current and former home and business addresses and telephone numbers.

The panel based its decision on the balance of probability that the security and safety of the Members' home and business addresses and phone numbers may be jeopardized.

Names, Home and Business Addresses or Telephone Numbers of any Female Expert Witnesses at the Hearing or any other Information Which May Serve to Identify Them or Their Home and Business Addresses or Telephone Numbers

Defense counsel requested a motion for a publication or broadcasting ban to include all female witnesses testifying at the hearing for personal security reasons pursuant to s.45(3) of the Health Professions Procedural Code of the Regulated Health Professions Act.

The panel deliberated and made the order to ban the publication and broadcasting of the names, home and business addresses or telephone numbers of any female expert witnesses at the hearing or any other information which may serve to identify them or their home and business addresses or telephone numbers.

The panel based their decision on the balance of probability that to identify expert witnesses by name, addresses or phone numbers would jeopardize their personal matters and safety.

Submissions of Counsel in Support of a Motion Heard January 15, 2001 for a Publication Ban and the Evidence Filed in Support of the Motion (Exhibits A, B and C)

Counsel for the Defense sought an order for a publication and broadcasting ban of the submissions of counsel in support of a motion heard January 15, 2001 for a publication ban and the evidence filed in support of the motion (Exhibits A, B and C).

Upon examination of Exhibits A, B and C, the panel, pursuant to s. 45(3) of the Code, made an order to ban the publication and broadcasting of the submissions of counsel in support of a motion heard January 15, 2001 for a publication ban and the evidence filed in support of the motion (Exhibits A, B and C).

The panel concluded the avoidance of public disclosure of the submissions of counsel in support of a motion heard January 15, 2001 for a publication ban and the evidence filed in support of the motion (Exhibits A, B and C) greatly outweighed the desirability of adhering to the principle that hearings should be open to the public. The panel further concluded the safety of persons in the exhibits would be jeopardized.

Member's Plea

[Member A], RN (publication ban) denied the allegations set out in the Notice of Hearing and entered a plea of Not Guilty.

Overview

The Member, [Member A], is a Registered Nurse and, at the time of the alleged incidents referred to in the Notice of Hearing, was employed as a nurse at the (publication ban), a private, cosmetic and laser surgery clinic located at (publication ban). Her employer was [the doctor] (publication ban).

On February 20th 1997, Client A (the client) attended the clinic for the purpose of undergoing a full facial laser resurfacing. The surgery was performed by [the doctor]. The Member was acting as circulating nurse. [Member B], RN, (publication ban) also a Member, was acting as scrub nurse.

Client A was given local and neuroleptic anaesthesia. While Client A was on the operating room (OR) table, [the doctor] took two photographs showing [Member B] astride the patient on the OR table and [Member A] at the head of the OR table. The photographs were later obtained by a newspaper which showed them to the client before first publishing them in 1998.

Subsequently, the client brought a complaint (later withdrawn) to the College of Nurses against the Member and against [Member B], RN. The College proceeded with the complaint. It alleged that the conduct of the Member failed to meet the standards of practice of the profession, that it constituted physical and emotional abuse of the client and, in other ways, that it also constituted professional misconduct and conduct that was otherwise disgraceful, dishonourable, and unprofessional.

The issues examined by the panel are as follows:

• Did the position and/or facial expressions of [Member A], as apparent in the photographs, and described by the College as being "posed" or as "posing", constitute by definition a failure to meet standards of practice of the profession, and did it constitute by definition a physical and/or emotional abuse of the client?
• Did the position and/or facial expression of [Member A], as apparent in the photographs, constitute, by definition or by degree, professional misconduct and conduct that was otherwise disgraceful, dishonourable, and unprofessional?
• Did [Member A] fail to chart and/or inform the client of the incident and/or the photographs and did such failure constitute professional misconduct?

An inventory of the evidence led at the hearing is found at Appendix "A".

The following procedural and evidentiary matters arose during the course of the hearing:

1. A publication ban was imposed with respect to the name and address of the client;
2. A publication ban was imposed with respect to the home and business address and telephone numbers of the Members;
3. A publication ban was imposed with respect to the name and home and business address and telephone numbers of any female expert witness;
4. A publication ban was imposed in relation to evidence and testimony with regard to Exhibits A, B and C;
5. A Voir Dire was held with respect to admissibility of Exhibit #15 (the Videotape); and
6. Several objections were raised and ruled on throughout the hearing.

Opening Statements

Counsel for the College introduced the Notices of Hearing as Exhibit #1 ([Member B]) and Exhibit #2 ([Member A]).

NOTE: The College then sought and was granted a publication ban on the name and other identification of its first witness, the client.

Counsel for the College advised the panel that the College and the Defence were content to address the matters as one.

Counsel for the College outlined the Allegations against the Members and noted that the Allegation #2 of straddling against [Member A] was made before it was ascertained that it was [Member B], not [Member A], who is depicted as astride the client in photographic evidence to be entered.

Counsel for the Defence stated that the College case was built largely on unfortunate impressions generated by photographs which were not a true representation of a sequence of events in which the Members had little control and in which, in fact, they behaved professionally. Counsel stated that an operation which took almost an hour could not be encapsulated (by a photograph taken) in a moment of time.

For the College:

Counsel entered Exhibit #3: tab 1 (Notices of Hearing), tab 2 (Photographs), and tab 3 (Health Records re the client provided by consent). Counsel stated that both parties agreed that the fact of the publication of the photographs was not an issue relevant to the Allegations against the Members. Counsel entered Exhibit #4 (newspaper pages bearing the photographs).

Witness #1C - The Client

The witness verified the documentation and events outlined by the Health Record submitted as Exhibit #3, tab 3.

The witness acknowledged that a photograph was taken prior to the surgery and that she had signed consents to the taking and to the medical and/or non-medical use of photographs as noted.

However, she testified that she believed that it was only photographs of her face that would be taken and that she had discussed this with [Member B] both before and after the surgery. Although she had signed the consent, she believed that she had qualified her consent in those conversations and stated that she wouldn't have agreed to her surgery if she knew that photographs would be taken during the procedure.

The witness testified that she had no recollection of the surgery and that she had not been informed by anyone at the clinic, either immediately post-operative or at a subsequent follow-up consult, that anything unusual had happened during her surgery.

The witness testified that she had been shocked when first shown the photographs by a person other than clinic personnel and that she was still disgusted by them. She stated that she had paid for a professional service and felt that she hadn't received it.

She stated that she had then filed a civil suit against [the doctor] and the Members and a complaint against the Members with the College. She acknowledged that the civil suit had been settled and that, as a result, she was not willing to proceed with her complaint against the Members. She acknowledged that she was present under a Witness Summons.

Under cross-examination, the witness admitted that she had made a complaint to the College of Physicians and Surgeons (CPSO) against [the doctor]. She admitted that her complaints against the doctor and the Members, and the civil action, were resolved by [the doctor] and his lawyers and herself and her lawyers. She also admitted that the settlement in the civil suit contained a secrecy provision and that the Members' signatures were not on any settlement documents.

The witness acknowledged that she had consented to restraint and that she would have wanted the staff to protect her if necessary during surgery. She acknowledged that she had not suffered any physical injuries and that, until shown the photographs, she had no complaints against the nurses and had, in fact, referred others to the clinic.

The witness testified in a consistent manner, although exhibiting some reticence under cross-examination.

Witness #2C (publication ban)

The College tendered this witness as an expert in the role of an OR nurse in cosmetic surgery, including full facial laser skin resurfacing ("FFLSR") under neuroleptic and local anaesthesia, and in restraint procedures. The panel accepted the witness' qualifications. Counsel led evidence from the witness on Exhibit #6, Exhibit #7 (the enlarged photographs), Exhibit #8 (Assumptions: an assumed scenario of an unusual event occurring during surgery), and Exhibit #3 (Document Brief).

Based on her own experience, the witness testified that clients do struggle under anaesthesia but that she had never seen them break free of a lap restraint fastened by Velcro or fall off or almost fall off the table. She said that she would prefer to use a feet-on-the-floor, cross-body ("cross-body") restraint in those circumstances and that she had never seen, used or read about a "straddle" (or "four-point") restraint in the OR. She said that a competent nurse would not use this method of restraint.

The witness testified that the noise of equipment used in the OR was not such that one could not hear above it.

With reference to the photographs, the witness stated that the straddle position could be construed as suggestive and that there was no need to sit on the client. She also stated that she had never seen photographs taken during FFLSR, that they were usually taken in an office before and after the surgery, and that intra-operation photographs were only taken for teaching purposes and that they were taken of the client's face and not of the OR staff.

The witness testified in a forthright manner.

Under cross-examination, the witness admitted that only 5% to 10% of her experience in cosmetic surgery practice had been with laser surgery. She conceded that a client could get free of a wrist restraint. She conceded that embarrassment would have to be a secondary consideration to safety. She also conceded that, while she has a preferred form of restraint (cross-body), she was not suggesting that it was the only one that could be acceptable or effective under the assumed circumstances (Exhibit #8) or that it would always be effective in protecting the site of an intravenous canula ("IV site").

In summary, the witness agreed that her testimony consisted of four elements; one, that the four-point or straddle restraint was not effective; two, that it involved the use of excessive force; three, that it compromised the safety of the client and the nurse; and four, that it is embarrassing to place oneself over the client's body.

The witness again conceded that she had never used the four-point restraint astride a patient. She had no practical or personal experience in its use, nor had she seen or read anything on its use either inside or outside the OR. She stated that she based her opinion on safety on her assumption as to the dimensions of the table.

Her opinion on excessive force was based on her assumption that the nurse was sitting on the patient and that, as the photograph showed that the lap belt was secured, there was no need for her to be in that position.

The witness admitted that her own sense of personal embarrassment was a relevant factor in her opinion on the appropriateness of the restraint position.

Under cross-examination, this witness sometimes did not respond directly to questions based on the Assumptions that had been entered by the College (Exhibit #8) but, in general, she addressed the cross-examination in a consistent manner.

On questions from the panel, the witness confirmed that she had not ever been in a situation where she personally had documented incidents of clients struggling while emerging from anaesthesia and that it was not standard practice to do so. Furthermore, she could not tell from the Anaesthetic Record in the client's Health Record (Exhibit #3, tab 3) whether or not such an event ("emergency") had occurred.

NOTE: at this point, pursuant to the Notice of Motion (Exhibit A) and the accompanying affidavits (Exhibits B and C) the panel imposed a ban on the publication of the home and business address and telephone numbers of the Members and on the name and home and business address and telephone numbers of any female expert witness and on the materials filed with respect to the motion. The panel determined that the safety of the subjects might be jeopardised by such publication.

Witness #3C - Dr. [Name removed]

The College tendered this witness as an expert witness in the field of plastic surgery, including FFLSR, and in the restraint of clients undergoing surgery. The panel qualified the witness as an expert on the basis that he possessed greater knowledge of the subject than did the triers of fact. Counsel led evidence from the witness on Exhibit #6 (the enlarged colour photograph), Exhibit #8 (Assumptions: an assumed scenario of an unusual event occurring during surgery), and Exhibit #3 (Document Brief).

Based on his own experience, the witness testified that, during surgery, it was commonplace for clients to make some kind of movement under anaesthesia but that he had never seen them break free of a lap restraint fastened by Velcro as it had a very high sheer force. He said that he had seen them roll or turn but in a sense that was non-violent.

With reference to the "Assumptions" (Exhibit #8), the witness felt that a nurse in the position described on an OR table could be easily knocked off or become unbalanced. Further, he said that if the client is straddled or pinned, she may feel threatened and fight back violently; putting weight on her might interfere with breathing and basic functions.

The witness stated that, in the event that a client did move vigorously or violently during surgery, he would expect to see an entry on the Anaesthetic Record or on the Operative Report put there by the surgeon.

In reviewing the Health Record (Exhibit #3, tab 3), the witness stated that there was no evidence that the patient had made a sudden, vigorous or violent movement while under neuroleptic anaesthesia during surgery, nor of any emergency, physical restraint or problems.

Under cross-examination, defence conducted a review of the witness's experience with IV medication during surgery and the possible response of the client.

The witness acknowledged that he knew of no single restraint that could both control the patient and protect the IV site at one and the same time. He also acknowledged that, if there was a choice to be made, then the health professional must bring best judgement to bear and modify the response accordingly.

The witness conceded that he had no personal experience of a circumstance in cosmetic laser surgery under neuroleptic anaesthesia where the patient had moved suddenly and vigorously, nor had he any experience of the four-point or straddle restraint; and that, therefore, all his opinion on the matters was entirely theoretical.

NOTE: at this point, the panel overruled an objection by College and allowed this line of cross-examination to continue. However, the panel noted that expertise could be built on both theory and practice.

Based on the "Assumptions" in Exhibit #8, and on the assumption that a test pulse might cause pain, the witness agreed that it would be appropriate for a nurse to remain poised to re-apply an effective restraint if needed but that she would not necessarily still be applying it.

The witness also acknowledged that, under certain circumstances, the medical record might not show any pharmacological intervention in the case of client movement or seizure.

This witness addressed the cross-examination in a forthright and co-operative manner.

On questions from the panel, the witness stated that he felt that a straddle would be very threatening to the patient psychologically, whereas a restraint applied while standing beside the patient could be less threatening.

In reference to his testimony on the medication administered to the client and, in particular, his lack of familiarity with Brietol (he described it as "Valium-like" in its effects), the witness also stated that he had not heard of or seen a client present a paradoxical psychotic reaction to Valium (also administered to the client), other than during withdrawal from chronic use.

For the Defence:

Witness #1D - [Member B], RN

Counsel established that [Member B] had worked as a Registered Massage Therapist (RMT) and, at the time of the matters alleged, was a Registered Nurse (registered with CNO in 1995) who had done a pre-graduation placement in a psychiatric setting. She had also completed St. John's Ambulance and cardio-pulmonary resuscitation (CPR) training, during which she had been taught the use of the straddle position. She also stated that she had seen it used during her pre-grad placement.

[Member B] stated that she had never received any training on the use of restraints during her formal nursing education.

[Member B] referred to Exhibits #12 and #13 as being reputable medical publications showing the straddle position in use. Based on her observation in a psychiatric setting, the witness concluded that the restraint was effective and appropriate.

[Member B] had worked at the clinic from the summer of 1995 (just over eighteen months before the matters alleged). She started as an office nurse. She was a Certified Collagen Injector. Her primary duties were in client education in pre- and post-operative situations. She also worked as a circulating and, on occasion, as a scrub nurse.

[Member B] testified that she had first met the client in February 1997. After running through the customary educational material with her ([Member B]), the client met the doctor and signed the registration form (Exhibit #3, tab 3). Following that, several photographs were taken for post-surgery comparison. [Member B] noted that, in all, the client attended some ninety minutes to two hours of pre-surgery consultation and counselling.

On the matter of the client's having signed the release for photography, [Member B] testified that she encouraged clients to cross out any part of that release with which they didn't feel comfortable. When asked if she recalled any apprehension on the client's part at that point, the [Member B] testified that she couldn't recall any. As there were no markings on the page and as the document was signed by the client and witnessed by herself, she could only assume that there wasn't any.

On the day of the matters alleged, [Member B] testified that she was working as the scrub nurse and that [Member A] was working as the circulating nurse. She verified that the patient was fit and well and that the surgical booking work was complete. She recorded a preliminary set of vital signs and reviewed the client's consents. No objections were raised. The doctor then marked the client's face and took a photograph which the client signed in agreement to surgery being performed on those areas. The client was then taken into the OR, settled on the table and restrained, at lap and wrists. Anaesthesia was administered as recorded (Exhibit #3, tab 3) and the surgery proceeded without incident until, approximately 15 minutes from conclusion.

NOTE: From this point, in essence, [Member B] testified to a sequence of events that corresponds with or is identical to that outlined as "Assumptions" (Exhibit #8).

VOIR DIRE: On resumption of the Hearing on January 18, and with Independent Legal Counsel (ILC) for the panel in attendance, Counsel for the Defence requested a Voir Dire to consider the admissibility of a videotape that they had produced in the clinic. College counsel argued against its admission, submitting that the panel did not need to view the tape in order to make a ruling. Following deliberation and consultation with ILC, the panel declared that it would view the tape before making a ruling on its admissibility. The panel ruled that the videotape was admissible: It contained relevant information and its probative value outweighed any prejudicial effect. The panel found no basis on which it could support an exclusionary ruling. Nor did the panel find the video to be a prior consistent statement. It was entered into evidence (Exhibit #15). The panel noted that the videotape was not intended to be nor was it being accepted as a reconstruction of events on the day of the matters alleged.

When the hearing resumed, Counsel for the Defence played the videotape and led [Member B] on extensive testimony on the physical aspects of the clinic, the noise levels and operation of equipment in the OR, and comparison with events on the day of the matters alleged.

[Member B] then testified generally on the recording of vital signs and on the local and neuroleptic medication administered. She further stated that she had not discussed the incident with the patient in the recovery room or thereafter and that she had no idea what was done with the photographs afterwards. She first saw them when they were published by a newspaper in 1998. She continued to work part-time for [the doctor] until December 1999.

[Member B] stated that she was not party to the settlement between [the doctor] and the client and that she did not know the terms of it.

[Member B] testified that several aspects of the photographs supported her statement that an incident had occurred. These included the client being out of position, down the table, and with her head out of the headrest, the arms being off the arm-rests, the blood pressure cuff and sheet being untucked and the sheet being up under the client's chin, the arm restraint being out of position, the pad under the IV arm being bunched up rather than folded neatly, and the flexure of the IV hand.

[Member B] denied strongly that she had posed for either of the photographs. She expressed her remorse that any harm had come to the client and stated that she had never had any intention of hurting her. In hindsight, she wished that she had told her about the photographs. She felt that she had done the best job under the circumstances, especially given that she was the only nurse present for most of the time.

[Member B] testified in a forthright and consistent manner.

Under cross-examination, after a recapitulation of [Member B]'s employment history at the clinic to some months beyond the matters alleged, Counsel for the College questioned [Member B's] use of the term "four-point restraint", usually used in a psychiatric setting to describe mechanical restraints at the wrists and ankles, to describe the straddle position. [Member B] testified that she was interpolating the basic similarity of "four points of contact on a body".

Counsel reviewed logistical aspects of the pre-surgical preparation, including [Member B's] experience as a scrub nurse, and the working condition and correct application of the Velcro restraints. Counsel then elicited agreement from [Member B] that she had not contacted the client post-surgery to inform her of the incident. [Member B] stated that, as the client had not reported any physical problems and that as the client was unaware of the incident, she saw no reason to inform the client. She said that she believed that it was the doctor's role to do that if necessary.

Using the photographs as a reference, counsel then led [Member B] through the logistics of the surgery, who stood where and who did what, and then into a narrative of a sequence of events that parallel or are identical to those outlined as Assumptions (Exhibit #8). [Member B] restated that she was the only person restraining the client on the table during the incident, that the doctor did not assist her in that, and that he was otherwise engaged with the laser arm, the IV site and with the administration of additional medication.

In response to further questions, [Member B] confirmed that she maintained the restraint until two series of test pulses were completed, one on each side of the client's face. She became aware of a camera flash from behind her after the first series. Believing her restraint to have been both appropriate and effective, [Member B] testified that she stayed in place at the doctor's request until it appeared that the client had not reacted unfavourably to the second set of test pulses. She then heard the doctor attract her attention, at which point he took the second photograph. She stated that she then got off the table and secured the lap-belt.

[Member B] confirmed that she did not see the photographs at that time or thereafter until after they were published. She saw no reason to make note of them or consider them further as there was no negative physical outcome to the patient. In reviewing the client's Health Record, counsel elicited the response that this was also the reason [Member B] saw no need to inform the patient of or to chart what she perceived to have been a positive outcome to an admittedly significant event. [Member B] also confirmed that she, not [Member A], had written "Brietol 28" on the Anaesthetic Record and that it was entered following the surgical time-line because it was only a record of the total amount given by continuous infusion during the surgery, in addition to the total of 10 given as bolus from time to time.

Counsel challenged [Member B] as to whether she had responded fully to a series of letters from the College while it was investigating the client's complaint. [Member B] agreed that she had not written a "blow-by-blow" account, but denied the implication that she was being evasive, and noted that her response to the College (Exhibit #16) invited the investigator to question her further. [Member B] referred to extracts of correspondence (Exhibit #18 and #19) and her then-counsel's opinion that the follow-up questions from the College departed from the grounds of the original enquiry and that that they were not germane to the complaints against her.

Counsel for the College concluded her cross-examination with a series of accusatory questions based on the College's position that there was no incident, no need for [Member B] to be on the OR table, no need for [Member B] to restrain the client by straddling her, and no need to take any photographs. Further, the College contended that the reason for lack of documentation was that nothing had happened except that the Members were "fooling around" in the OR and that they had posed for the photographs. [Member B] steadfastly denied the implications raised.

As noted, [Member B] addressed the cross-examination in a forthright and consistent manner.

On re-direct examination by her counsel, [Member B] acknowledged that, together with the letter outlining the client's complaint, she had received documentation (Exhibit #20) from the College advising her that, by law, she was not required to respond in writing to the College's enquiries; but that she had done so to the extent that she felt was adequate at the time.

Witness #2D [Initials removed]

The Defence tendered this witness as an expert in the use of lasers and medications in facial cosmetic surgery and in the medical application by nurses of manual restraints. The panel qualified the witness as tendered.

The witness testified that it was common knowledge and also her experience that patients under neuroleptic anaesthesia would move suddenly and vigorously during surgery on a frequency of at least one incident a month, and that they could also come free of Velcro restraints. She noted the need to maintain a secure IV site and that safety of the patient was the guiding principle in the use of manual restraints.

Counsel asked the witness to consider a "Summary of Facts" (Exhibit #22) which was essentially identical in its time-line and major incidents to the "Assumptions" entered earlier as Exhibit #8.

The witness testified that, based on her reading of the "Summary", the conduct of the nurse was appropriate to the situation.

The witness testified that the anaesthetic record gave her some suspicion that something might have happened to trigger a dose of Versed so close to the end of the procedure. It was not usual to administer this dosage, an amount sufficient to render the client "very calm", at this point in the surgery.

The witnessed testified that it would not be usual practice for the doctor to make post-operative notes on restraint, either manual or chemical, for an incident as common as patient movement under neuroleptic anaesthesia as described.

The witness testified in forthright and consistent manner.

Under cross-examination, the witness qualified her testimony on client movement under neuroleptic anaesthesia to clarify that, during the five or six FFLSR procedures she had performed in this way (without general anaesthetic), there had been no significant movement. Her testimony was based on common professional knowledge and on her experience with neuroleptic anaesthesia in other equally painful facial procedures.

The witness confirmed that the primary issue in using manual restraints is patient safety. As long as the patient has been stabilised and is under control, there is no further need for such restraint. The witness agreed that she was not testifying not as a nurse but as someone who had considerable experience of working with OR nurses as part of a team. As noted above, however, expertise can be founded on either or both of theory and practice.

The witness testified that a client who is moving suddenly and vigorously under neuroleptic anaesthesia might well continue to do so under an applied straddle. She stated that the manual restraint would have to be supplemented by chemical restraint. Following further questions from Counsel regarding the administration of a late dose of Versed, the witness then noted from the Anaesthetic Record another questionable administration of narcotic, this time Fentanyl. She stated that she could not speculate as to the reason for this administration other than in response to an expression of pain.

The witness agreed that, if the "Summary" was found not to be factual, then she could not imagine a circumstance that would lead to an on-table straddle being appropriate.

The witness addressed the cross-examination in a forthright and consistent manner.

On re-direct examination, the witness affirmed that, in the OR, in a contest between patient safety and a patient's perception of her own dignity, safety would always come first.

The witness also noted that Diprivan, a medication in current use, was not part of the anaesthetic "cocktail" used during the events under scrutiny. She testified that Diprivan had "tremendously" reduced the incidence of patient movement.

Witness #3D - [Member A], RN

Counsel established that the Member had worked as an Aesthetician and at the time of the matters alleged was a Registered Nurse working at [the doctor]'s cosmetic centre.

Counsel led the Member through the videotape (Exhibit #15) and elicited information on the lay-out and equipment in and around the OR. The OR table was described as very stable and the Member testified that it was easy for [Member B] to get on and off the table. Frames showed [Member B] on the table astride the witness.

The Member testified to the events on the day of the matters alleged and, referring to the colour photograph (Exhibit #3, tab 2), noted aspects of the scene that demonstrated to her that the patient was clearly out of the position in which she should have been during a routine surgery free of incident.

NOTE: From this point, in essence, the Member testified to a sequence of events that corresponds with or is identical to that outlined in "Assumptions" (Exhibit #8) and "Summary of Facts" (Exhibit #22). The Member testified that she was not surprised that [the doctor] took a photograph as (publication ban - a major television station's) cameras came in on a regular basis and the doctor used photography as "a big part of his practice".

The Member testified that the Anaesthetic Record showed applications of Fentanyl and Versed near or at the end of the procedure that, to her, were not in keeping with [the doctor's] usual practice.

The Member testified that she admitted the client to the recovery room, assessed that she was stable and normal, and saw her again on follow-up a week later for assessment and teaching before the client consulted alone with [the doctor]. She did not discuss the incident with the client. She saw the photographs from time to time in a frosted-front file log in a drawer in the prep room.

The Member testified that she thought that [Member B] had applied a safe and effective restraint on the client when working relatively on her own. She said she was proud of [Member B] for doing a good job in the circumstances.

The Member denied that she had posed for the photographs. She said that they were taken in a split-second of time. She stated that she did not pose.

Under cross-examination, counsel for the College took the Member through an extensive review of her testimony. The Member admitted that some charting of the incident would have been helpful to her case but insisted that there was no clinical reason for making such a notation. The Member resisted Counsel's suggestion that the colour photograph showed no indication of an untoward event and repeated her assertion that the photograph showed the OR table and other aspects of the procedure in disarray.

As with [Member B], Counsel for the College concluded her cross-examination with a series of accusatory questions based on the College's position that there was no incident, no need for [Member B] to be on the OR table, no need for [Member B] to restrain the client by straddling her, and no need to take any photographs. Further, the College contended that the reason for lack of documentation was that nothing had happened except that the Members were "fooling around" in the OR, and that they had posed for the photographs. The Member steadfastly denied the implications raised.

The Member testified in a forthright and consistent manner, both in examination in-chief and during cross-examination.

Witness #4D [Initials removed] (publication ban)

The Defence tendered this witness as an expert with experience in full facial laser skin resurfacing ("FFLSR") and other cosmetic procedures performed in a clinic setting under IV sedation (including all the drugs used in the client's "cocktail", with the exception of Brietol) and in the nursing policies and practices in that regard. She was also tendered as an expert in the use of the "Sharplan Silk Touch Laser" (as used by [the doctor] on the day of the matters alleged) in such procedures, in patient reaction under IV sedation, and in the restraint of patients. After hearing some testimony from the witness and the submissions of counsel, the panel ruled that the witness was qualified to give expert opinion evidence of which she was tendered.

The witness testified to seeing sudden and violent movements by patients under neuroleptic anaesthesia that required five or six people to restrain an "average housewife" who had come free of restraints during cosmetic surgery. She noted that the incident was not documented, nor did she mention it to the patient. It is not the duty of a circulating nurse to document this type of incident. An anaesthetist might. The doctor would not note it as his operative record does not usually include information on patient behaviour; rather, it contains technical details.

The witness saw no need to distress that patient by telling her of something about which she had no recollection.

The witness testified that she used the straddle restraint effectively on a large, knife-wielding male in hospital ward setting. She agreed that she had never seen it used on an OR table.

The witness testified that, in her experience, each patient is very unique in their response to medication and she noted two cases where a female patient needed sedation almost double the dosage given to a male patient more than twice her weight and one foot taller.

Counsel led the witness through the "Summary" (Exhibit #22). The witness testified that she thought the actions of [Member B] were appropriate in that [Member B] had attempted lesser restraint, that she had put the patient's safety before dignity, especially in the privacy of the OR, and that she had successfully prevented injury to the patient.

The witness testified in a forthright and consistent manner.

Under cross-examination, counsel for the College elicited the witness' agreement that, where there existed photographic evidence of an incident that might cause distress to the patient, it might be better to inform the patient of the incident before she saw the photographs. The witness maintained that it was the doctor's responsibility to do this, and also restated that it was not the nurse's responsibility to inform a patient of adverse reactions under anaesthesia.

The witness acknowledged that a straddle on the OR table would only be appropriate if there was danger to the patient. She resisted Counsel's suggestions that the straddle, used as a restraint, could cause injury to the nurse or the patient.

On the assumption that the Members had neither taken nor requested the photographs, the witness resisted Counsel's suggestion that they were not acting with respect for the patient's dignity. She further resisted Counsel's suggestion that a smile implied an element of posing. She stated that she had photographs taken in the OR and that no one had posed for them, as in purposely positioning themselves in a premeditated way.

The witness addressed the cross-examination in a forthright and consistent manner.

On questions from the panel the witness repeatedly confirmed that there were appropriate clinical reasons for a nurse to test-pulse a laser on the patient's skin, especially with a doctor present in the OR. She had not done this herself but had worked with a nurse who had done so.

Witness #5D - Dr. [Name removed]

Defence tendered this witness as an expert generally in the application of manual restraints by nurses and doctors on patients who were engaging in violent or disruptive behaviour and as a person having expertise in the application of a straddle restraint in those same circumstances. After hearing some testimony from the witness and counsel's submissions, the panel ruled that the witness was qualified to give expert opinion evidence sought of him.

Counsel led the witness through a review of his experience or knowledge of physical, manual and chemical restraints in a variety of settings, none of which were in an OR or a cosmetic surgery clinic. The witness testified that he had been responsible for the drafting and publication of initial standards governing manual restraint in a mental health setting. He differentiated between longer-term physical restraints (applied by belts and straps and the like) and shorter-term manual restraints and testified that written procedures for the latter are problematical due to the great variety of circumstances that might present. This really required guidelines and principles as opposed to policies and procedures.

The witness reviewed a publication (Exhibit #25) showing manual restraint being used on a mental health patient on the floor and on a bench-type seat in a vehicle and stated that although there is a possibility that the restrainer may be injured through motion of the vehicle, the primary concern is the containment of a person who needs to be contained.

The witness testified that dignity is always a concern, provided that the principle of patient safety is paramount and that, where practical, dignity and respect must always be considered.

The witness testified that he had observed the straddle restraint being applied, that he had read incident reports on its application, and that he had concluded that it was a very effective form of manual restraint both in outcome and in terms of its application being able to control the amount of force applied and keeping it to a minimum.

Counsel led the witness through the "Summary" (Exhibit #22). Despite some difficulty envisaging the circumstances presented ever happening within his experience, the witness testified that, if the nurse had tried two prior cross-body restraint mechanisms and if no one else had come to her assistance, then the straddle was entirely appropriate and necessary. Under cross-examination, the witness again acknowledged that he had no experience of manual restraints in general surgery or cosmetic surgery settings and further stated that, in a mental health setting, Velcro is not strong enough to be used alone as a closure mechanism for physical restraint.

Both in examination in-chief and during cross-examination, the witness testified in a forthright and consistent manner.

Closing Submissions

For the College:

Counsel for the College noted that responsibility for the publication of the photographs is not an issue in the hearing. Counsel then submitted the following points and argument:

1. The photographs:
   1. the photographs provide no explanation of why, when or how [Member B] got onto the OR table;
   2. in the absence of imminent harm, straddling a patient on an OR table cannot be justified and, further, that the photographs show no movement, risk, harm or emergency;
   3. the photographs show the patient in a normal position as during surgery;
   4. the demeanour of the Members is inconsistent with the patient being at risk;
   5. "common sense" dictates that the photographs are not catching the Members by surprise during the course of their duties and their smiles constitute proof of posing, which Counsel defined as "to put into or assume a desired position for a portrait or photograph"; and
   6. finally, Counsel stated, "The position of the College very simply is that on their face, the photographs make out the case for the College. They make out the allegations in respect of the nurses" (the Members).
2. The explanation for the straddle position and for the Members' smiles is not credible and should be rejected entirely:
   1. no diagnostic work-up was done by the doctor when the patient "yanked" her head to the right side; the doctor and [Member B] apparently didn't see the patient "whip" her left arm out of the restraint; and only after the third movement, the patient raising up her shoulder, of these "three, separate and distinct movements" (Counsel's words), did [Member B] attempt a restraint;
   2. the circumstances in a) do not fit with Witness #2D 's expert testimony on how an OR nurse in attendance would be responding; and
   3. [Member B] asserted that she had to work alone and that [the doctor] busied himself with something else - she implied that it was with the laser. [Witness #3C] testified that he would simply release the foot pedal and let go the laser hand-piece, which would remain suspended in mid-air. It is the position of the College that it makes no sense that an experienced laser surgeon would be having difficulty with the laser. [Member A] has no explanation why she didn't hear calls for her help and it doesn't make common sense for a circulating nurse to put herself out of hearing range during surgery.
3. How could it be possible for the patient start to roll to the left when she's already being restrained by [Member B] across the OR table?
4. How could [Member B] get up on the table while holding onto the patient? If the patient could be held, why get up at all?
5. There is discrepancy between the testimony of the members in that [Member B] testified that the restraint was effective virtually immediately, while [Member A] testified that she noticed that the patient was "heaving up at the shoulders", trying to free her IV arm, and jerking her head about.
6. It defies common sense that there is this "constellation" of unfortunate circumstances;
   1. sudden and vigorous movement of the patient, outside the experience of either Member, when the circulating nurse is out of the room;
   2. an experienced doctor inferred as having trouble with the laser and, again unique, the lap belt giving way;
   3. the patient getting free of an arm restraint without the Member or, apparently, the doctor noticing it; the doctor being unable to secure the arm; and the patient is able to roll to one side; and
   4. a doctor who "just happens to have a camera handy" in a cupboard in the OR.
7. After [the doctor] apparently gave more medication to the patient;
   1. he directed the nurse to apply a very painful stimulus that could cause the patient to react with further movement;
   2. [Witness #3C] testified that pinching or stroking the patient's cheek might be a less troublesome way of checking facial sensation, so it doesn't make sense for the nurse to test-pulse on the patient's cheeks;
   3. it is another "coincidence" that [Member B] has access to the smoke evacuator while straddling the patient; and
   4. [Member B] had tucked the smoke evacuator into the arm board when the "emergency" began and it might question why she would have "taken the time" to do this when it, being plastic, could simply have been dropped to the floor.
8. It didn't make sense that [the doctor] took the time to take photographs when a nurse was still restraining a patient and there might have been a need for further restraint. It was the College's position that this highlights the lack of credibility in the Members' account of events.
9. The reason for the Members' smiles is relief that the emergency has been dealt with, but this, by their own testimony, is not correct. The test pulses weren't finished. Why would either Member turn away from the patient and face the camera with a smile? This, it was submitted, defies common sense.
10. The lack of documentation is not a standards issue, rather it is a piece of circumstantial evidence that serves to indicate that the Members' account is not credible:
    1. the Members testified that this situation was unique in their experience, that it was an "emergency", therefore it is precisely the kind of incident that should be documented somewhere;
    2. [Witness #5D] testified that incident reports are normal in psychiatric settings when manual restraints are applied; and
    3. the suggestion that the photographs document the events doesn't make sense because, it was submitted, "the photographs tell you absolutely nothing about what went on. They don't document any kind of emergency occurring."
11. The Members never discussed the events with the patient, nor did they ask the doctor whether he had done so. Again, this is not a standards issue, but a piece of circumstantial evidence that challenges the credibility of the Members' account.
12. The Members testified that the photographs show things out of place. Counsel submitted that the patient's head was in place, the cuff was still on her arm, the monitors were apparently all hooked up, the arm was still on the arm board, and the lap belt appeared to be intact.
13. Witness #2D testified that it would be speculation to say, by looking at the Anaesthetic Record, that some sort of vigorous, sudden movement had occurred. [Witness #3C] and Witness #4D testified that some patients require larger amounts of sedatives than do others and [Witness #3C] said that some doctors may decide to give more sedation or anaesthetic towards the end of the procedure.
14. The Members' written response to the College (Exhibit #16) is the basis of the "Assumptions" (Exhibit #8) and it lacks the detail of their testimony before the hearing. The assertion that the Members were providing "all of the surrounding background information" is not correct. Important aspects that are central to [Member B's] rationale for getting onto the OR table are omitted, namely:
    1. there is no mention of the "three distinct, obvious and separate movements" that occurred before the "roll", no mention of the patient "yanking" her head to the side, no mention that she "whipped" her arm out of the restraint, and no mention of raising her shoulders;
    2. the letter states "after unsuccessfully attempting to secure the client . . . . ." but makes no reference to two unsuccessful attempts at restraint or what they were; and
    3. the letter doesn't mention [the doctor] being too busy to assist [Member B] or that the lap belt started to give way. In view of these omissions, College counsel asked, "How could the Complaints Committee possibly assess the importance of the Members' actions absent these important aspects of the account?"
15. In summary, Counsel counsel submitted:
    1. expert testimony holds that it is unacceptable for a nurse to straddle a patient in the OR unless as protection from harm in unusual circumstances;
    2. the photographs show no such risk of imminent harm; they show a patient in position for surgery, being straddled by one nurse with another nurse present and "both smiling for the camera";
    3. the Members' explanation should be rejected because it doesn't have the "ring of truth to it"; and
    4. if it is rejected, then the panel is left with photographs of a straddle and of the Members smiling in unexplained circumstances. That is unacceptable conduct.
16. Regarding the straddle, it was the submission of College counsel that:
    1. none of the expert testimony spoke to ever having been seen a straddle used in the OR;
    2. it cannot be suggested to members of the profession that straddling a patient is an accepted method of restraint in the OR;
    3. it would have to be a very unusual and rare situation to justify use of a straddle as an acceptable restraint in the OR;
    4. even if the panel accepts that a straddle can be used in unusual circumstances, it can become inappropriate if kept in place any longer than absolutely necessary. This restraint became inappropriate as soon as [Member A] entered the OR and once [the doctor] administered more medication; and
    5. it was unnecessary for [Member B] to remain in the straddle while photographs were taken which had no medical purpose.
17. As to the possible findings in the matter, College counsel submitted:
    1. the panel can find in respect of [Member A] only that she posed and not that she straddled;
    2. the panel can find failure to maintain standards of practice based on the expectation that nurses will adhere to certain minimum standards of practice in carrying out their professional responsibilities;
    3. the panel can find physical abuse with respect to both Members;
    4. the panel can find emotional abuse with respect to both Members as "abusive conduct may consist of non-physical, verbal or non-verbal behaviour towards the client. It includes conduct that may be perceived by the client or others to be of a sexual or otherwise demeaning, exploitative, derogatory or humiliating nature;" and
    5. the panel can find that this conduct feel within the "basket clause" as set out in subsection 1(3&0 of Ontario Regulation 799/93 in that the evidence warranted a conclusion that the Members' conduct manifested a lack of integrity, dishonesty, abuse of power, access and authority, or disregard to the welfare and safety of members of the public.

For the Defence:

1. During a cosmetic surgery, [Member B] prevented the patient from falling off the OR table and also prevented the patient from suffering any injury. She did so by applying a straddle restraint to the client on the OR table. She maintained that position until the doctor had administered further sedation and had determined that no further chemical restraint was necessary. The patient suffered no injuries from the straddle restraint and the incident was documented by two photographs.
2. Counsel reviewed the College's allegations and the College's theory that, in fact, no emergency had occurred in the OR that day and that the Members were just "fooling around". Counsel stated that this theory held that, in the middle of a normal surgical procedure, [Member B] suddenly got onto the OR table for her own amusement and that the doctor participated by taking photographs of the nurses "fooling around". This, Counsel submitted, had "no common sense appeal".
3. Counsel submitted that it was incredible that the panel was being asked to determine whether or not the College's theory was hypothetically plausible. The panel is required to make findings on evidence, not hypotheses. The College must prove on the basis of evidence brought to the Hearing. There must be a presumption of innocence.
4. The burden of proof remains with the College. The Members do not have to prove that they are innocent. The standard of proof is the civil standard - a preponderance of evidence on a balance of probabilities. In determining the degree of evidence required within the standards, case law makes it clear that that the more serious the allegations, the heavier is the burden of proof. The allegation of "fooling around" is particularly serious because it connotes more blameworthiness than would be present than if the application of the restraint somehow fell below the standards of practice. Counsel referred to case law in Bernstein v College of Physicians and Surgeons of Ontario and in Denys v College of Nurses of Ontario.
5. Counsel noted that, as College Counsel herself had noted, [Witness #3C] and Witness #4D essentially confirmed that the photographs by themselves tell us nothing. Indeed, one could make multiple inferences from the photographs if viewed solely in isolation.
6. In reviewing the evidence as to patient movement, the Members' counsel made the following submissions:
   1. Theory that there was no patient movement requiring restraint to be particularly damning. She held that the client could not recall because she had been under amnesic anaesthesia, a fact confirmed by College and Defence witnesses;
   2. [Member B] provided direct testimony on the matter and none of the experts denied that this could have happened. All witnesses acknowledged that FFLSR was painful and that patient movement was plausible and/or common, movement that ranged from sudden twitching to sudden, violent and vigorous;
   3. Witness #2D testified that patients can suffer paradoxical effects to medication and instead of becoming sedated can become very agitated, violent, disassociated, and irrational. While there may be warning signs, there may not, but they did not predict the eventual outcome;
   4. All the expert witnesses agreed that patients could break free of Velcro restraints.
   5. Counsel submitted that the College had submitted "absolutely no evidence" that a patient couldn't react in the manner described by [Member B]. On the contrary, there was evidence that they could and did;
   6. As to the College's claim that there were inconsistencies between the Members' written response and their testimony, counsel submitted that there were in fact no inconsistencies, only differences in the level of detail. Most importantly, the letter was not a response to the specific allegations set before the Hearing. [Member B's] testimony in regard to the events was uncontradicted; and
   7. Counsel submitted that, contrary to the College's contention, the photographs did show evidence of movement. [Member B's] uncontradicted testimony as to that was, in fact, indirectly supported by Witness #2C who testified as to the "usual" position of arm restraints. In short, uncontradicted testimony identifies important details in the photographs which are entirely consistent with patient movement.
7. In reviewing the matter of the alleged failure to document or discuss patient movement, the Members' counsel submitted:
   1. There were no allegations as to either a failure to document or a failure to keep the patient informed, and all the testimony held that the "nurses and doctors simply don't document such behaviour, nor do they tell the patient;"
   2. The evidence, and particularly the Anaesthetic Record does not support the College theory of no movement. The Defence submission is that the College has failed to establish that there was no sudden vigorous movement by the patient which required restraint; and
   3. There was no principle at law which suggested that respondents in disciplinary hearings are somehow assumed to be any less >credible than any other witness and stated that [Member B] was credible and that her testimony was uncontradicted.
8. In reviewing the matter of the application of the straddle restraint, the Members' counsel submitted:
   1. There was no dispute among the experts that, if the patient was moving on the OR table, a nurse should take action to protect the patient and restrain as necessary;
   2. [Witness #5D] noted that, with the number of variables, you have to leave it to professional judgement within guidelines;
   3. As to the College's evidence that [Member B's] use of the straddle was unnecessary, and Witness #2C's four criticisms - that this restraint was ineffective and involved more force than needed, precarious position, and embarrassment - counsel noted that Witness #2C had made two erroneous assumptions (that the patient was still secured by lap and wrist restraints at the time of the "roll", and that [Member B's] initial restraints were not similar to Witness #2C's preferred cross-body position but somehow were simply pressing down on the patient in an ineffective way). Counsel noted that the fastening of the lap belt is not clearly evident in the photographs; that [Member A] had testified that she re-secured the wrist restraint, and that [Member B] testified that she re-secured the lap-belt when she dismounted;
   4. The photographs provided no evidence of what was happening before they were taken and that the errors on which Witness #2C's opinions were based should result in her criticisms being given little weight by the panel;
   5. With respect to the amount of force applied by the straddle, [Member B] had effectively only replaced the restraints which had failed. [Witness #5D] testified that the straddle allowed a very effective control of force and that he regarded it as superior to some other manual restraints. Counsel noted that the straddle does not involve pressure on the chest, unlike the cross body;
   6. With respect to the precariousness of the position on the OR table, Witness #2D noted that she had witnessed the straddle being used on an ER gurney;
   7. On the matter of risk to the patient, as raised by [Witness #3C] it was a question of the greater risk of the patient falling to the floor. [Witness #3C] conceded that a patient might be equally combative under a cross-body restraint;
   8. Witness #2C conceded that the embarrassment factor was her own and conceded that patient safety had to be the primary concern; and
   9. Both Witness #4D and Witness #2D , unlike Witness #2C and [Witness #3C], were experienced in the straddle restraint and both approved of [Member B's] actions as represented in the "Summary" (Exhibit #22).
9. In reviewing the length of time the restraint had been applied, counsel noted:
   1. [Member B] had remained poised to reapply the restraint but had not been applying the full, four-point effect; and
   2. [Witness #3C], a College expert witness, had testified that being "poised to restrain" was not unreasonable.
10. With regard to the issue of excessive force, the Members' counsel made these submissions:
    1. There was nothing so sacred about a private cosmetic clinic that precluded a nurse from using a restraint that was routinely used by nurses in another setting or context;
    2. Expert testimony established the effectiveness of that restraint. There was no bruising, no injury. It was an alternative form of restraint that was much more temporal and limited than what was contemplated in the consent form signed by the patient. It was a substitute at a moment in time when the physical restraint consented to appeared to be insufficient; and
    3. The issue of excessive force was a "red herring".
11. With regard to posing, the Members' counsel submitted as follows:
    1. The Members, as fact witnesses, denied posing and noted that people don't normally pose with their back to the camera. Both Members had testified that they were focussed on the patient and only realised that [the doctor] was taking photographs at the split second he was doing so;
    2. A smile does not, under any definition, constitute a pose, nor is it an action which could constitute a breach of standards, mental abuse, or disgraceful or dishonourable conduct. A smile is just a smile;
    3. The only testimony as to the smile was from the Members, as fact witnesses, who had testified that they were relieved that the crisis was over;
    4. The Members' testimony was not contradicted as it related to test-pulsing or being photographed and it withstood cross-examination. They had referred to these actions in their letter to the College and had been asked no further questions about them during the College investigation;
    5. Given the evidence in its entirety with regard to posing, there is no clear, cogent evidence that either Member posed; and
    6. Several witnesses testified as to the wearing of protective equipment and the manner of holding the laser all with a view to supporting the accusation of posing. Counsel held that there was no preponderance of clear, cogent evidence that would support such a leap in logic that would confirm posing by what protective equipment the Members were or were not wearing or how [Member A] was holding the laser. Evidence was given by fact witnesses, and was uncontradicted, that their clothing and hand position were usual to the clinic. Expert testimony was to the effect that standards varied.

NOTE: At this point Counsel for the College advised the panel that she would be seeking a ruling preventing the Defence from making duplicate submissions. College counsel anticipated that the submissions about to be made by [one legal counsel of the Members] would duplicate those made by [another legal counsel of the Members]. If the submissions were supplemental, there would be no problem, but if they covered previous ground, College would object.

(Following adjournment for the evening, and upon resumption of Defence submissions, College Counsel did object on the grounds previously stated.)

Defence counsel submitted that fairness and natural justice held that the Defence be allowed to argue its case as best it could and that the flow of its submissions not be subject to interruption. To deny that right was to deny the right to defence. There was nothing in law that prevented counsel from touching on facts in general and later exploring them specifically in detail if necessary. If the panel felt that Defence was being prolix, it could make the appropriate admonition.

Following consultation with ILC, the panel noted the College's objection but directed Defence to continue.

1. With regard to the College's theory or allegation of "fooling around", the Members' counsel submitted:
   1. By reference to Bernstein, the burden of proof as to theories or inferences is the same as to its application to the case overall; and
   2. Bernstein makes it very clear that the degree of proof should be tailored to the gravity of the charges and the consequences to the Members.
2. In examining the allegation of posing in relation to the alleged contravention of or failure to meet the Standards of Practice (the "Standards"), the Members' counsel submitted:
   1. No reference to posing could be found under any definition in the Standards. Counsel also noted the absence of any history regarding posing within the College precedents;
   2. Just because something happens as defined in a dictionary, doesn't mean that it contravenes the Standards and that, for the panel to find that "posing" is, by definition, a contravention of the Standards is to move into uncharted waters;
   3. Smiling does not constitute posing by any definition and that, even if it does, it certainly doesn't constitute posing in a manner that can be considered abusive; and
   4. If the panel finds for "posing", then the panel finds that the Member, for no reason other than to amuse herself, has jumped onto an OR table to fool around on top of a patient. If the panel can accept that leap in logic, it must then consider the probability that the Member had such disgraceful, disreputable and dishonourable conduct photographed and retained as evidence for some disgruntled employee to provide to the press.
3. With reference to the fourteen points of the College submission:
   1. Counsel addressed the College's submission that the Members' explanation for the straddle was not credible and should be rejected entirely by submitting in turn that:
      1. The College was parsing the Members' actions and slowing down the narrative of a crisis to the point that it became unrealistic; that [the doctor]'s alleged "pause" was not evidence against the Members;
      2. The Members had offered direct evidence of the crisis that remained uncontradicted;
      3. The College assertion that [Member B] didn't have to "act alone" should be rejected. He noted that College's assertion of [the doctor] "busying himself" was emotive language based on testimony from [Witness #3C] who was, at that point, giving expert evidence on a matter on which he had not been qualified as an expert (Sharplan lasers). Even if the doctor was "fussing", that does not diminish the probability of the Members' testimony; and
      4. The College's emotive version of testimony that [Member A] had "made herself inaccessible" should also be rejected. He submitted that [Member A]'s testimony that she didn't hear a call for help was no evidence on which to declare her whole testimony a lie.
   2. With regard to Witness #2C's testimony that her preferred cross-body restraint "always" works and that, therefore, there was no need to straddle, Counsel offered Witness #2D 's testimony to the contrary.
   3. Counsel submitted that there was little discrepancy between the testimony of the Members as fact witnesses. Such differences as existed were that of degree or detail and were well within the normal range for such "eyewitness" testimony.
   4. Counsel disputed the College's argument that the panel must either accept all or reject each of the eight so-called "constellation of unfortunate circumstances". Any one of the eight, by itself, was hardly unusual in terms of the overall event. Fracturing their sequence and adding them up differently does not make them more illogical.
   5. Where the College contends that [Witness #3C] would apply a different method of test-pulsing, counsel submitted that a difference in practice between [the doctor] and [Witness #3C] is not evidence that the Members were lying about events. He noted that Witness #4D testified that she had seen others test-pulse on the cheek. This supported the probability of the Members' testimony.
   6. As to the use of the smoke evacuator, counsel submitted that College's contention that she took the time to place it in the arm-rest rather than drop it is hardly evidence that her testimony is not to be believed.
   7. As to the photographs, counsel submitted that, throughout the hearing, there had been an attempt to associate the Members with the taking of the photographs - an unfortunate occurrence in that they were published. Counsel noted that the Members did not get up on the OR table to take these photographs, that they were not behaving unprofessionally, and that there was absolutely nothing in the record to support this kind of horrendous inference.
   8. Counsel rejected College's submission that the Members' facial expression "didn't make sense." Counsel submitted that the situation doesn't relate to common sense, it is fact-specific. It is uniquely related to the individual, how they react, how they feel in a particular situation. If the Members felt relief at that point, and it's only [Member A] at that point because [Member B]'s back is to the camera, they can't be held guilty of smiling prematurely.
   9. Counsel rejected the College's contention that the lack of documentation speaks to credibility by submitting that:
      1. The weight of testimony is that such an event would go unrecorded, especially by nurses. If it was to be documented, it would be by the anaesthetist or doctor. The documentation of it in a psychiatric setting is irrelevant; and
      2. If there was proof that documentation was a standards issue, then the panel might be justified in drawing the inference that lack of documentation could suggest that the event didn't happen - but it's not a standards issue and it's hardly an irresistible inference.
   10. Counsel also rejected the College's contention that the Members' failure to discuss the reaction with the doctor spoke to credibility. To draw an inference there has to be some basis for believing that the absence of a discussion is probative. But where there are no standards, when it is fact-specific, no inference can or should be drawn.
   11. With regard to College counsel's contention that the photographs showed nothing extraordinary, counsel referred to the Members' testimony and noted that no inference can be drawn from College Counsel's interpretation of a piece of demonstrative evidence.
   12. Counsel noted that the expert testimony on inferences to be drawn from the Anaesthetic Record did not move the balance and should not be used to destroy the reputation of the Members.
   13. Counsel submitted that College had mis-characterised the Members' written response by suggesting that it was a "word by word" account of events, noting that:
   14. It was an explanation consistent with their testimony and that one could not expect the same level of detail in a response to the general nature of the first letter as opposed to the specific nature of the formal allegations ("charges");
   15. The refusal to reply further was triggered specifically by the questions in the second letter which the Members' then counsel deemed to deal with matters beyond the Members' control;
   16. Parsing a letter, where there is no obligation even to write it, should not be the thread by which to destroy reputations. How can you find it logical to provide everything in a situation where there is no obligation to provide anything? Giving less, however appropriate, cannot make everything else said to be a lie; and
   17. The Members offered a letter and an interview but that it was the College that took a different tack and did not ask further about the straddle.
   18. In dealing with College's summary, the Members' counsel submitted:
   19. The College's submission that the photographs show no harm is a temporal issue;
   20. The College's submission that the Members' testimony didn't ring true should be rejected, noting that the College had called no evidence on what occurred in the OR. The only inferences drawn by the College were through a parsing of the Members' testimony which does not make a case;
   21. As College Counsel stated, absent the Members' explanation, the panel is left with the straddle and a smile in an unexplained photograph; a photograph which the Members didn't take, didn't store, didn't steal, and didn't publish; and
   22. It would be unjust to associate the Members with the photograph based on their facial expressions, to hold that the Members should pay because something untoward (the publishing of the photographs) has happened.
4. Counsel for the Defence submitted that the onus of proof was with the College at the start, and remains with the College at the end, and that:
   1. If the panel rejects the argument of "fooling around", then the panel must reject all of the allegations;
   2. The use of the restraint in the circumstances described is a matter of expertise and common sense, supported by the weight of evidence; and
   3. If the panel agrees with this evidence then the panel must recognise that nurses use their initiative and common sense, judgement and skills to make decisions about their actions. If nurses are criticised for this process wherein a successful outcome is achieved, then this does not serve the interests of the profession.

For the College In Reply

1. Counsel for the College reminded the panel that any testimony from the Members as to [the doctor]'s view of their behaviour is hearsay and inadmissible.
2. Counsel assured the panel that, assuming that the photographs had been brought to its attention, the College would have taken the same position that it has whether the photographs were published or not.
3. Counsel submitted that, had the Defence chosen not to call evidence, the panel would have no evidence for [Member B] being in the straddle position on the OR table. That would have left the expert testimony as sufficient to establish the inappropriateness of the behaviour, absent an unusual emergency.
4. Counsel submitted that the Members' fact evidence should be given no more weight than that of any other witness when determining the weight to be assigned to expert evidence on which it is based. If the explanation is incredible, then it is the same as if no explanation was tendered, and this must affect the weight to be given to the expert evidence.
5. Counsel submitted that it doesn't matter whether the behaviour is called "fooling around"; if the panel rejects the testimony of the Members that [Member B] was acting to restrain the patient in an emergency, then the panel is left with an unjustified straddle of a patient.
6. Counsel submitted that the Defence case on restraint holds that it is appropriate to treat patients in a cosmetic surgery in the same manner as patients in a psychiatric facility, but, this is not the case; these are two entirely different settings.
7. Counsel submitted that no witness testified that they had ever seen any educational material instructing nurses on the use of the straddle restraint in the OR.
8. Counsel acknowledged that the assumptions in the Summary of Facts and the testimony of the Members are consistent. She noted that Witness #2C's erroneous assumptions were made independently, based on the photographs.
9. Counsel submitted that it is not a strange position that [Member A] should have advocated for the patient (by urging another form of restraint before assessing fully the situation). She stated that precedent had been articulated in previous decisions of the Discipline Committee.
10. Counsel agreed that "posing" is not addressed in the regulations or Standards but that the panel should look at the surrounding circumstances of particular items of behaviour and assess that behaviour in light of those circumstances to evaluate whether professional misconduct has occurred.
11. Counsel reminded the panel that the video was not a reconstruction of events on the day of the matters alleged and submitted that expert testimony established that the surgical team members could communicate above the noise.
12. With regard to movement, Counsel submitted that the fact a moving patient could be straddled in a psychiatric ward did not justify doing this in different circumstances on an OR table.
13. Counsel reminded the panel that the Member's testimony was that the restraint was still necessary (note: [Member B] testified that she was instructed to remain in position and poised ready to reapply the pressure, not to keep applying the restraint itself). However, she noted that Defence counsel accepted that the crisis was over and submitted that this supported the College's position that the restraint was no longer necessary and that, therefore, it was inappropriate to remain on the table and to pose for photographs.
14. Counsel submitted that the panel had to weigh the case on the evidence that it had heard and seen and not on perceptions or concerns about whether or not the discipline process is fair or unfair or whether or not a reputation may be damaged by its findings. The panel should make its decision with regard to the evidence, with regard to the allegations in the Notice of Hearing, with regard to the law, and with regard to the fact that its decisions do serve to inform other members of the profession and members of the public as to what is and is not appropriate behaviour for nurses.

Decision

The panel holds that the College bears the onus of proving the Allegations in accordance with the principles with which the panel is familiar, set out in Re: Bernstein and College of Physicians and Surgeons of Ontario (1977) 15 O.R. (2d) 477. The standard of proof applied by the panel, in accordance with the Bernstein decision, was a balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel. The panel also recognised that the more serious the allegation to be proved, the more cogent must be the evidence.

Having considered the evidence and the onus and standard of proof, the panel finds unanimously that the Member, [Member A], did not commit an act of professional misconduct as alleged in Allegations 1, 2, 3 or 4 of the Notice of Hearing.

Reasons for Decision

1. With regard to Allegation #1:
   1. "Straddled": The panel noted the College's acknowledgement that the Member was not the Member shown astride the client in the photographs. The panel noted that no evidence was brought forward to suggest that the Member straddled the client at any time. The panel noted College Counsel's admonition that it could find only that the Member posed and not that she straddled the client.
   2. "Posed":
      1. The panel found that the College had failed to prove that the whole incident was "simply clowning around or fooling around", a contention that would lead to the logical conclusion that the photographs were posed, and that the client was abused to the personal amusement of the Members. The case for the College in this respect can be summarized as follows:
         1. [Witness #3C] testified that there was no evidence from the Health Record that the patient had made a sudden, vigorous or violent movement while under neuroleptic anaesthesia, nor of any emergency, physical restraint or problems. He testified that he would expect to see a notation to such an event in an anaesthetic or operative report. He testified that he had never seen a Velcro lap restraint give way. He further stated that he would not test-pulse a laser on a patient's face.
         2. Witness #2C testified that she couldn't tell from the Anaesthetic Record or the photographs whether or not such an event had occurred. She also testified that she had always been able to restrain a patient by a cross-body restraint. She further testified that she had never seen photographs taken in an OR or of OR staff, and that she had never seen a patient breaking free of a lap restraint fastened by Velcro and looking like they were going to fall off the OR table.
         3. The College contended that the lack of documentation of the incident and the fact that the Member had not informed VC of the incident spoke to the credibility of the Member's explanation and was, therefore, evidence that the incident had not happened.
         4. The College contended that there was no emergency - as evidenced by [Member B] taking the time to "tuck the smoke evacuator" into the arm-rest, and by the fact that [the doctor] "took the time" to take photographs, actions the College claimed that highlighted the lack of credibility in the Members' account of events.
         5. The College contended that the photographs make the case for the College that they show that the patient is in a normal position as during surgery; further that the facial expressions of the Members constitute proof of posing and that their demeanour is inconsistent with the patient being at risk.
      2. In comparison, the panel found that the Defence had presented a clear and credible explanation by direct fact testimony, through cross-examination, and with the support of a cogent body of expert testimony to support its contention that an incident had in fact occurred:
         1. [Witness #3C] admitted that all his opinion on the matters of sudden and vigorous movement under neuroleptic anaesthesia was theoretical. He also admitted that, under certain circumstances, the medical record might not show any pharmacological intervention in the case of client movement or seizure. The Member testified that the applications of Fentanyl and Versed so near the end of a procedure were not in keeping with [the doctor's] usual practice. Witness #2D stated that the anaesthetic record did give her some suspicion that something might have happened to trigger an unusual or questionable dose of Versed and of Fentanyl so close to the end of a procedure. Witness #2D testified that it was common knowledge and her personal experience that patients under neuroleptic anaesthesia would move suddenly and vigorously on a frequency of at least one incident per month and that they would also come free of Velcro restraints.
         2. Witness #2C did admit that clients struggled under anaesthesia and the panel noted that her testimony that she couldn't tell from the anaesthetic record or the photographs whether or not such an event had occurred did not move the balance of proof one way or the other. [Member B] testified that the incident as described had occurred and demonstrated that several aspects of the photograph showed that the patient was not in a position usual to this procedure and that she had moved down the OR table to a noticeable degree. Witness #4D testified to seeing sudden and violent movement under neuroleptic anaesthesia to the point that it took five or six people to restrain an "average housewife" who had come free of restraints during cosmetic surgery. She also stated that each patient is unique and noted a case where a female had needed sedation double the dosage given to a male twice her weight.
         3. Witness #2C stated that she had not documented incidents of clients struggling while emerging from anaesthesia and that it was not standard practice to do so. This testimony was echoed by every other witness with the exception of [Witness #5D] who restricted his testimony on documenting restraint to that in a psychiatric setting.
      3. the panel found that the photographs showed the Member, [Member A], either in the act of or immediately preceding or immediately following the act of test-pulsing the laser on the client's cheeks to assess for pain. The panel also found that the photographs showed the Member, [Member B], in the act of applying, maintaining, or removing her hand from the patient's IV site, and in the act of applying, maintaining or removing the smoke evacuator from the proximity of the laser, close to or at an area unarguably on which the cosmetic surgery had been or was being performed. The panel noted that the first photograph showed only [Member B's] back, an aspect not normally associated with "posing" of the sort alleged, and that the sequence of the photographs was consistent with testimony as to the position and actions of [the doctor] and the normal location of the OR camera. The panel found that the photographs show disarray inconsistent with the orderly or usual conduct of a surgery. The panel found that the photographs do not show that the lap-belt is fastened. Therefore, the panel holds that the photographs each capture a split second in time that depicts an event or events in progress and not an artificially contrived tableau.
      4. the panel found that the College presented no cogent evidence to indicate that the facial expression of the Member was inappropriate to the OR or to events within the OR; nor did the College present any cogent evidence to support its contention that a smile, by definition, proved posing, a cessation of care, or a breach of the Standards of Practice. In contrast, the panel found that the Defence brought a weight of expert testimony to the fact that taking photographs and sharing humour are not uncommon to the OR.
2. With regard to Allegation #2: The panel noted the College's acknowledgement that the Member was not the Member shown astride the client in the photographs. The panel noted that no evidence was brought forward to suggest that the Member straddled the client at any time. The panel noted College Counsel's admonition that it could find only that the Member posed and not that she straddled.
3. With regard to Allegation #3:
   1. "Emotionally Abused": Notwithstanding the fact that the client withdrew her complaint against the Member following a civil settlement between her and her lawyers and [the doctor] and his lawyers, to which the Member was not a signatory, the panel agreed unanimously that to find oneself the subject of such photographs published in the popular press or to find oneself the subject of such photographs without credible explanation would in reasonable probability be the cause of emotional distress. One question before the panel distilled to the essence of "By whom was such distress caused - by the Member or by a party or parties outwith the jurisdiction of the panel?" Another question that presented itself was to the issue of whether or not the Member could be held to have emotionally abused the Client A by failing to prevent inappropriate actions by others or by failing to prevent the shock inherent in the client unexpectedly finding herself the subject of such photographs.
      1. Given that the panel had already found that the Member did not "pose" or "straddle"; given that the College and the Defence agreed that the Members were not responsible for the publication of the photographs and that such publication was not an issue before the panel; the panel found that any emotional abuse suffered by the client did not come at the direct action of the Member but, at least in part, as the result of actions by a party or parties beyond the jurisdiction of the panel;
      2. The panel noted that while the issue of failing to discuss or document and, thus, perhaps lessening the shock value of the photographs was raised by the College, it was done so not as a standards issue but as an issue speaking to the credibility of the Member's explanation of events on the day of the matters alleged, in particular, whether or not an incident took place; and
      3. Although the panel had already rejected the College's argument as to credibility by finding that an incident did take place, the question still remained before the panel - "Did the Member, by her inaction, indirectly allow the client to suffer emotional abuse which could have been prevented by informed discussion with the client about the incident and the photographs?" The body of evidence presented was to the effect that such incidents were rarely if ever documented in a cosmetic OR or discussed with patients later except perhaps by the doctor or anaesthetist after diagnosis of the underlying cause. As noted before, Witness #2C stated that she had not documented incidents of clients struggling while emerging from anaesthesia and that it was not standard practice to do so. This testimony was echoed by every other witness with the exception of [Witness #5D] who restricted his testimony on documenting restraint to that in a psychiatric setting.
   2. "In particular - Straddled": The panel noted the College's acknowledgement that the Member was not shown astride the client in the photographs. The panel noted that no evidence was brought forward to suggest that the Member straddled the client at any time. The panel noted College Counsel's admonition that it could find only that the Member posed and not that she straddled. Given that the panel had already found that the Member did not straddle the patient, the panel could not find that the Member emotionally abused the patient by straddling her.
   3. "In particular - Posed": Given that the panel had already found under Allegation #1 that the Member had not posed, the panel could not find that the Member had emotionally abused the patient by posing.
4. With regard to Allegation #4: Given that the panel had already found under Allegation #1 and under Allegation #3 that the Member had neither straddled nor posed; therefore, the panel did not find that the Member had 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, in that she straddled the client and/or posed for photographs while she was on the operating table during a surgical procedure.

I, Marsha Taylor, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members or the Discipline panel as listed.