College of Nurses of Ontario v. [the Member], 2001 CanLII 62573

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

Janise Johnson, RN Member

Christine Barber, RPN Member

Tom Clifford Public Representative

Veronica Kerr Public Representative

BETWEEN

COLLEGE OF NURSES OF ONTARIO

Nick Coleman for College of Nurses of Ontario

• and -

[the Member]

Mia London for [the Member]

Heard: April 18, 2001

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on April 18, 2001 at the College of Nurses of Ontario at Toronto. The Member was present and represented by legal counsel.

The Allegations

The allegations against [the Member] as stated in the Notice of Hearing dated March 8, 2001, are as follows:

1. You have committed an act of professional misconduct as provided by subsection 51(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, on August 6, 1999 and August 10, 1999, while employed as a Registered Practical Nurse, by the [home care agency, hereinafter referred to as “the agency”] in the [city], 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 failure to provide care to your clients; and/or
2. You have committed an act of professional misconduct as provided by subsection 51(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(5) of Ontario Regulation 799/93, in that, on August 6, 1999 and August 10, 1999, while employed as a Registered Practical Nurse, by the [agency], in the [city], Province of Ontario, you discontinued professional services that were needed without arranging alternative or replacement services or providing the clients with reasonable opportunity to arrange alternative or replacement services; and/or
3. You have committed an act of professional misconduct as provided by subsection 51(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, on August 6, 1999 and August 10, 1999, while employed as a Registered Practical Nurse, by the [agency] in the [city], Province of Ontario, you engaged in conduct or performed an act or acts, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to your failure to provide care for your clients and with respect to your statement that you had provided care to one client, [Client “A”] on August 10, 1999 when you had not provided such care.

Counsel for the College informed the panel that the hearing would proceed by way of an Agreed Statement of Fact and a Joint Submission on Penalty. Counsel for the College informed the panel that the College was not calling any evidence with respect to the allegations set out in paragraphs #2 and #3 of the Notice of Hearing.

Member’s Plea

The Member admitted to allegation #1 of the Notice of Hearing. The panel conducted a plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

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

1. [Name removed] (“the Member”) has been registered with the College of Nurses of Ontario (“the College”) as a Registered Nurse [Registration number removed] since January 1, 2001. Prior to that, she was registered as a Registered Practical Nurse [Registration number removed] with the College from 1981 to December 31, 1999.
2. The Member began employment as a casual visiting nurse (RPN) at the [city] Branch of the [agency] on May 13, 1997, and remained in that role until August 12, 1999. The primary work of a visiting nurse is to make visits to provide care to clients in their homes.
3. The [agency] applies different scheduling procedures to casual and full-time staff. The monthly schedule is posted one month in advance, as required by the collective agreement. Casual employees indicate their availability and are listed on the monthly schedule on the days they are available. If the casual nurse is required to work on a date which she has indicated she is available, the [agency] contacts her the afternoon before to provide the assignment of client visits. For regular staff, the monthly schedule lists all days that they are required to work. The nurse is expected to call in for the client assignment the afternoon before the scheduled shift of home visits. For the full-time staff, the [agency] does not call to confirm scheduled days of work.
4. The Member applied for a temporary full-time position as a visiting nurse for the period June 22, 1999 to January 22, 2000 to replace a full-time employee on maternity leave. As the applicant with the longest term of service, she was awarded the position, by operation of the collective agreement.
5. Prior to accepting the full-time position, the Member was counselled regarding the need for reliability in completing her client visits. The Member was offered advice and assistance regarding management of her caseload.
6. The Member was scheduled to work on various dates in August, 1999, including Tuesday, August 6, 1999 and Friday, August 10, 1999. The schedule was posted in advance in accordance with the collective agreement.
7. The [agency] received a call from the [access centre] regarding an incident on August 6, 1999. An elderly client had not been seen by the [agency] nurse scheduled to see her to provide an enema. The client had waited all day before the family contacted the [access centre] to complain about the lack of care.
8. The [agency] determined that the Member was the nurse scheduled to see the client in question on August 6, 1999. When contacted, the Member stated that she was unaware that she had been scheduled to work on August 6, 1999. The Member was reminded of her responsibilities with respect to client visits. The Member was also asked to contact the [agency] Night Manager to confirm the evening before each scheduled day of work that she would attend to her scheduled assignments for the following day.
9. The Member did call the [agency] Customer Service Representative in the evening of August 9, 1999 regarding her assignments on August 10, 1999. If the Member testified, she would state that she attempted to reach the Night Manager but could not reach her.
10. The [agency]contacted clients and the Member to determine if she was making her visits on August 10, 1999. The [agency] understood the Member to have stated that she had visited a particular client when the client had just advised the [agency] that the Member had not yet made the visit. When informed of the client’s statement, the Member confirmed that she had not yet made the visit to the client.
11. The Member made home visits to only 5 of the 10 clients she was scheduled to visit on August 10, 1999. If she testified, the Member would state that she encountered problems with a flat tire which caused a delay in starting her assignment, and the heavy rain that day caused further delays with traffic.
12. The Member did not report the failure to see 5 of her clients scheduled for August 10, 1999 until the next day. She left a telephone message for the Customer Service Representative on August 11, 1999 advising that she had not seen 5 of her scheduled clients on August 10, 1999.
13. The [agency]terminated the employment of the Member following the incidents on August 6, 1999 and August 10, 1999. In the course of negotiating a settlement of her grievance with respect to the dismissal, the Member tendered her resignation in January, 2000 for other reasons.
14. The Member admits that she committed acts of professional misconduct by contravening or failing to meet the standards of practice of the profession as alleged in paragraph 1 of the Notice of Hearing with respect to the incidents described above, in that she failed to confirm her schedule of appointments on August 6, 1999, failed to provide care to all of her assigned patients on August 10, 1999, and failed to communicate accurately, clearly, and in a timely fashion with respect to the clients she had seen or not seen on August 10, 1999.
15. The College tenders no evidence with respect to the allegations set out in paragraph 2 and paragraph 3 of the Notice of Hearing.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct. In particular, the panel finds that the Member committed an act of professional misconduct as alleged in paragraph #1 of the Notice of Hearing. The Member admits that she committed an act of professional misconduct by contravening or failing to meet the standards of practice of the profession as alleged in paragraph 1 of the Notice of Hearing with respect to the incidents described above, in that she failed to confirm her schedule of appointments on August 6, 1999. Further, on August 10, 1999 the Member failed to provide care to all of her assigned clients and failed to communicate accurately and clearly with her employer in a timely fashion with respect to the clients she had or not seen.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty had been agreed upon. The Joint Submission as to Penalty provides as follows:

[Member’s name removed] (“the Member”) and The College of Nurses of Ontario (“the College”) respectfully submit that, in view of the facts set out in the Agreed Statement of Fact, the admission of professional misconduct made by the Member, and the Member’s Undertaking, a copy of which is attached as Exhibit A, the panel should make an order to:

1. Require the Member to appear before the panel to be reprimanded.

Exhibit “A”

UNDERTAKING

BETWEEN

COLLEGE OF NURSES OF ONTARIO (hereinafter referred to as “the College”)

• and -

[the Member] (hereinafter referred to as the “Member”)

WHEREAS the Member’s former Manager at the [city] Branch of the [home care agency] registered a complaint with the College concerning the Member’s conduct on September 16, 1999;

AND WHEREAS the Complaints Committee of the College of Nurses of Ontario (the “College”) caused an investigation to be made in respect of the Member’s conduct pursuant to s. 25 of the Health Professions Procedural Code (the “Code”), of the Nursing Act, 1991, S.O. 1991, c.32, as amended (the “Nursing Act, 1991”);

AND WHEREAS the Complaints Committee of the College referred allegations that the Member had committed professional misconduct to the Discipline Committee;

AND WHEREAS the Member has admitted to committing professional misconduct by contravening, or failing to adhere to the standards of practice in respect of the certain incidents considered by the Complaints Committee;

AND WHEREAS the Member has agreed to submit to the panel of the Discipline Committee hearing her case that it should order her to appear before it to be reprimanded;

AND WHEREAS the Member is willing to comply with certain steps to remediate her practice and have her practice monitored by the College;

NOW WITNESSETH THAT IN CONSIDERATION of the mutual covenants contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Member undertakes as follows:

1. By or before May 18, 2001, The Member will review the College’s Ethical Framework and will meet with a College Practice Consultant to discuss its application to her practice, the conduct for which she was found to have committed professional misconduct by the Discipline Committee, the consequences of that conduct to her clients, her colleagues, herself and her profession.
2. For the period of two years following April 18, 2001, the Member will provide the College with the name, addresses, and phone numbers of all the employers for whom she is employed as a nurse.
3. If the Member returns to community care nursing at any time during the two-year period following April 18, 2001, the Member will deliver to the College, within two weeks of her return to community care nursing, proof that she has requested that her employer deliver one performance appraisal for each six-month period in which she is employed as a community care nurse for a maximum period of twelve months of employment.
4. The performance appraisals and information regarding names, addresses etc, of the Member’s employers described in paragraphs 2 and 3, above, are to be sent to:

[ ] Discipline Co-ordinator College of Nurses of Ontario 101 Davenport Road Toronto, Ontario M5R 3P1 Tel: [ ] Fax: [ ]

A failure to meet the terms of this Undertaking could result in the Executive Committee referring allegations of professional misconduct to the Discipline Committee of the College.

The Member confirms that she has obtained independent legal advice and that the terms of this Undertaking/Agreement as well as the consequences of a failure to comply with the Undertaking has been fully explained to her

The Counsel for the College advised the panel that the penalty struck an appropriate balance between deterrence and rehabilitation for this Member. The performance appraisals required, upon the Member’s possible return to community nursing, serves as a protection for the public. The outcome of the Undertaking provides sufficient deterrence for both this Member and members of the profession.

The Defense Counsel agreed to the appropriateness of the penalty. Defense Counsel informed the panel that the Member had practiced nursing for over 30 years with an unblemished record and that the Member had recently upgraded from R.P.N. to a R.N.

Penalty Decision

The panel accepts the Joint Submission as to Penalty with the attached Undertaking (Exhibit A) and accordingly ordered the Member to appear before the panel to be reprimanded.

Reasons for Decision

A review of the College’s Ethical Framework and meeting with a College Practice Consultant will further assist the Member to understand appropriate behaviour and the importance of accountability and responsibility to her clients.

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College, by agreeing to the facts and a proposed penalty and has accepted responsibility for her actions.

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