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:

Lois Vanson, RPN Chairperson Gabrielle Bridle, RPN Member George Rudanycz, RN Member

Bill Weichel Public Representative

Tom Clifford Public Representative

BETWEEN

COLLEGE OF NURSES OF ONTARIO Nick Coleman for College of Nurses of Ontario

• and -

LYNN NENIVAH SETLALEPUO #IF-0357-2

DECISION AND REASONS

David Strashin for Lynn Nenivah Setlalepuo Nancy Spies, Independent Legal Counsel

Heard: April 23-25, 2001 and September 25, 2001

A panel of the Discipline Committee met at the College of Nurses of Ontario (“College”) on April 23, 24, and 25, 2001 to hear allegations of professional misconduct against Lynn Nenivah Setlalepuo. The Member was present, as was her legal counsel. Counsel for the College entered the Notice of Hearing and the attached Appendix A (Exhibit #1) which outlines the allegations of professional misconduct against the member as follows:

1. You have committed an act of professional misconduct as provided by clause 51 (1)(c) of the Health Professions Procedural Code, and defined in paragraph 1(1) of Ontario Regulation 799/93, in that on or about April 6, 2000, while employed as a Registered Practical Nurse at the [facility], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, the particulars of which are set out in Appendix A.

2. You have committed an act of professional misconduct as provided by clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(7) of the Ontario Regulation 799/93, in that on or about April 6, 2000, while employed as a Registered Practical Nurse at the [facility], you abused a client physically, verbally or emotionally, the particulars of which are set out in Appendix A.

3. You have committed an act of professional misconduct as provided by clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(37) of Ontario Regulation 799/93, in that on or about April 6, 2000, while employed as a Registered Practical Nurse at the

[facility], you engaged in conduct or performed an act or acts relevant to the practice of nursing, that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, the particulars of which are set out in Appendix A.

Appendix A

Particulars to Specified Allegation

1. On or about April 6, 2000, you yelled at a client, [Client “A”], to get out of a wheelchair.

2. On or about April 6, 2000, you struck the client, [Client “A”], on the shoulder.

3. On or about April 6, 2000, you failed to respond appropriately to comments by [Client “A”] and instead made comments to [Client “A”] that she was skinny.

4. On or about April 6, 2000 and some time after the incident described in paragraph 1 above, you called [Client “A”] a liar and told her that you would be fired from your job, or would lose your certificate, because of her.

Order Excluding Witnesses

Both counsels agreed to an order to exclude witnesses while other witnesses are testifying.

Member’s Plea

The Member, Ms. Lynn Nenivah Setlalepuo, denied the allegations of professional misconduct as set out in the Notice of Hearing (Exhibit #1).

Overview

The Member has been a Registered Practical Nurse (RPN) since 1976. She was employed at the [facility] as a casual RPN in the North 5 (N5) secured unit. The unit houses patients that suffer from cognitive and physical impairments. Two wings comprise the unit N5 (Exhibit #2): A Wing – rooms N501 to N513, and B Wing – rooms N515 to N523. The nursing station is located at the mid-point of the unit, diagonally across from the T.V lounge – room #511. The unit is staffed with Registered Nurses (RNs), RPNs and Health Care Aides (HCAs). One staff member is assigned as a unit monitor on each shift.

The issues are as follows:

Did the Member yell at [Client “A”] to get out of wheelchair? Did the Member strike [Client “A”] on the shoulder?

Did the Member fail to respond appropriately to comments by [Client “A”]?

Did the Member call [Client “A”] a liar and tell her that she would be fired from her job?

The Evidence

The panel heard evidence from 4 witnesses and the Member.

Witness # 1

[Witness 1] has been an RPN since 1993. [Witness 1] has been employed at [the facility] since 1994 in a part-time capacity working four to eight shifts in a two-week period. Prior to that she worked for [a

homecare agency] for one year and previously worked as a HCA from 1986 to 1993. [Witness 1] is currently enrolled in a part-time diploma-nursing program at [a community college] in [the city], to obtain her RN status, and she expects to graduate in May 2001.

[Witness 1] described the focus of the facility as one of rehabilitation for victims of accidents; however, it also provides care for some chronic clients. She confirmed that the N5 unit is a secure unit. The staffing compliment on the 1500 hrs. to 2300 hrs. (afternoon shift) was made up of two nursing teams. Each team comprises one RN one RPN and care is delivered in a team manner.

[Witness 1] testified that [Client “A”] has been a client on N5 for approximately two years and is routinely assigned to the care of a RPN. The client is on N5 as a result of a diagnosis of dementia [and] seizures […] (Exhibit #3). […] [Witness 1] testified that the client, [Client “A”], is described as being fundamentally aware of person, place and time. [Witness 1] testified that she knew the Member solely in a professional capacity. [Witness 1] told the panel that the Member worked three to four times a week. [Witness 1] testified that the Member was “professional and they didn’t fight or anything” in reference to their working relationship.

[Witness 1] testified that on April 6, 2000, at approximately 1730 hrs., while she was in the hallway on N5 going from client room N501 to N505, she observed [Client “A”] sitting in a wheelchair at the end of a table in the T.V. lounge (N511). [Witness 1] also testified that she observed the Member shaking the wheelchair. At the same time, in a loud and demanding voice, the Member told [Client “A”] “to get out of the chair”. [Witness 1] then told the panel that the Member struck [Client “A”] on the back in the right shoulder blade area. [Witness 1] testified she could not see if the Member’s hand was open or closed in a fist. [Witness 1] testified that she heard [Client “A”] say “Don’t hit me.” [Witness 1] then saw [Client “A”] get up and walk to another chair. [Witness 1] continued on to room N505.

The panel accepted the testimony given by this witness to be reliable and delivered in an unembellished manner. [Witness 1] had good recall of the events of April 6, 2000.

Witness #2

[Witness 2], RN has been employed with the [facility] on the N5 unit since 1979. [Witness 2] confirmed the layout of the N5 unit (Exhibit #2) and confirmed that the care delivery is based on a team concept.

She described the clients as “wanderers and elopers”, some with behavioural problems such as dementia, cognitive challenges and some with multiple complex care needs. [Witness 2] described [Client “A”] as fully ambulatory with some memory problems. However, the client could be redirected in her activities. At the time of the alleged incident [Client “A”] was new to the unit.

[Witness 2] testified she had a professional relationship with the Member. [Witness 2] told the panel she had worked a few shifts with the Member, who was a casual RPN.

On the evening in question, [Witness 2] testified she observed [Client “B”] sliding out of a lounge chair in the T. V. room (N5ll). [Witness 2] testified that she asked the Member to assist her in repositioning [Client “B”]. Together they released the restraint, which secured the client to the wheelchair, and together, they assisted the client to a standing position. [Witness 2] observed that [Client “A”] was sitting in a wheelchair, which was assigned to [Client “B”]. The wheelchair was located at the end of a table partially situated in the T.V. lounge and the hallway. [Witness 2] testified to the panel that while she was supporting [Client “B”] the Member went to get the wheelchair, which was occupied by [Client “A”]. The witness testified that she was not facing [Client “A”]. The witness testified that it was noisy in the T.V. lounge. Nonetheless, she heard [Client “A”] say “Don’t hit me!” [Witness 2] turned towards the Member and saw [Client “A”] standing and the Member was coming towards her with the wheelchair.

[Witness 2] testified that when the Member was speaking to [Client “A”], the client, that the Member

was too fat, to which the Member responded “you are skinny and you should eat more”.

Later in the shift, [Witness 1] reported to [Witness 2], that she saw the Member hit [Client “A”]. [Witness 2] testified that when she questioned [Client “A”] about the incident [Client “A”] answered “Yes I was hit.” [Witness 2] testified she then assessed [Client ‘A”] for injury but found none.

[Witness 1] refused to complete incident report (Exhibit #6). After speaking with [name removed] the nurse manager, the witness completed the incident report herself. The witness spoke with [the nurse manager] who informed the witness to request that the Member go home.

[Witness 2] testified she heard [Witness 4] ask [Client “A”] where she was hit. [Witness 2] heard the Member say “I’m going to lose my job” to which [Client “A”] responded “I’m sorry you are going to lose your job.”

[Witness 2] answered in a clear forthright manner. She appeared to have good recollection of the events and did not embellish the story. In fact, during the cross-examination the witness testified that she had never had any complaints about the Member.

Witness # 3

[Witness 3], HCA has been employed at the [facility] since 1974 and full time since 1975. [Witness 3] testified he commenced on the N5 Unit in 1979. On the evening shift of April 6, 2000, the witness testified that he was assigned as the unit monitor. During his break from 1720 hrs. to 1745 hrs. he was in room N509, which is next to the T.V. lounge (Exhibit #2) he heard screaming and yelling and someone saying “Don’t hit me!” [Witness 3] testified he came out of the room and [Witness 2], said “Oh it’s Lynn and [Client “A”]”. [Witness 3] testified that he recognized the voice of [Client “A”] saying “Don’t hit me!” and the voice of the Member saying, “Get out of the chair!”

[Witness 3] testified that the Member seemed upset because [Client “A”] would not get out of the wheelchair. The witness testified the Member’s voice was “really loud”. Following a panel member’s question about the noise in the unit, [Witness 3] testified that it was unusual to hear raised voices of the nursing staff.

[Witness 3] testified later while in the nursing station he heard [Witness 4] question [Client “A”] “Did she hit you?” [Witness 3] testified he also heard the Member tell [Client “A”] “I’m going to lose my job because of your lie.” Re: Lynn Nenivah Setlalepuo, RPN

[Witness 3] was clear and forthright when giving his testimony. He appeared to have good recall of what he had heard and testified that he clearly had not visibly witnessed the alleged incident.

Witness # 4

[Witness 4], RN, was called as a witness for the Defence. [Witness 4] testified she worked at the [facility] 11 of her 25 years employment as a RN.

On the evening shift of April 6, 2000, [Witness 4] was working on N5 (complex continuing care). [Witness 4] testified that [Witness 1] was the RPN assigned to her team on A wing. The Member and [Witness 2] were assigned to B wing.

At 1645 hrs. [Witness 4] returned from her break at which time she saw the Member and [Witness 2] talking in the conference room, N510 (Exhibit #2). They stopped speaking when [Witness 4] entered the room. [Witness 4] asked what happened and was told that the Member and [Witness 2] had to talk.

When [Witness 4] came out of the conference room she was told that “something had happened”, and that “[Client “A”] had been hit.” [Witness 4] testified she asked, “Who hit who?” and “I’m on duty and

should know what happened.” [Witness 4] said to [Witness 2], “If hit, the RN in charge should call the doctor”.

After the alleged incident, [Witness 4] questioned [Client “A”] as to whether she had been hit. [Client “A”] pointed to her hand and then she reached up to her right upper chest. [Witness 4] testified she assessed the hand of [Client “A”] and the right upper chest and found no evidence of injury. [Witness 4] stated “ [Client “A”] was laughing” during the assessment. [Witness 4] then took [Client “A”] to her room for privacy in order to do a further assessment. [Witness 4] asked her to “disrobe to expose the bare skin”, and again there was no noticeable injury.

In response to a question from the panel about checking the scapula area, for evidence of being struck, [Witness 4] testified “I was shown the front area to look at, I never checked the back area.”

[Witness 4] testified that she and [Witness 1] were working together in N501. The witness denied seeing the Member strike [Client “A”]. [Witness 4] testified that from where she was at N501 she could not see into the TV lounge. [Witness 4] indicated that when delivering evening care, the nurse’s takes a supply cart with them and worked together at all times.

When asked about the Member, [Witness 4] testified that the Member had been there a while, she was always on the unit early, she looked forward to coming to work and was good with the clients.

When questioned by the College Counsel, [Witness 4] testified that during the delivery of evening care the RN and RPN were always working together in the client’s rooms. During this shift [Witness 3] was assigned to be ward monitor. When asked about the position of the table in the TV lounge, N511(Exhibit #2), [Witness 4] testified that the table is usually along the wall of N509 close to the hallway except when Recreation Therapy is there. When questioned about the incident regarding striking the client, [Witness 4] testified that “she did not see anything”. She did not hear the Member tell [Client “A”] to get out of the chair and she did not hear any loud voices between the Member and [Client “A”].

[Witness 4] appeared to be argumentative and unbelievable when she recounted that the two nurses never left each other’s side at any time during the shift. Her testimony was inconsistent with what the other witnesses told us about [Client “A”] regarding where she had been hit and the assessment of the client, [Client “A”]. In fact, [Witness 4] testified that the RN and RPN never left each other’s side while doing evening care. However, her own testimony states that she and the Member went to separate breaks. The panel felt the witness’s testimony was biased in favour of the Member.

Witness #5

Lynn Setlalepuo, RPN, employed at [the facility]. The Member had been there for eight months as of April 6, 2000. The Member testified that she worked three to four shifts per week.

On the evening in question, the Member testified that she worked with [Witness 1], RPN, [Witness 3], HCA, [Witness 2]RN, and [Witness 4], RN (Exhibit #4). The Member described the N5 unit as functioning in a team care delivery system. On April 6, 2000, the Member was working on the B wing (N515 to N523) with [Witness 2].

At 1700 hrs. on April 6, 2000, the Member testified she was in the nurses’ station charting on the progress notes about how the clients ate, at which time she heard someone call “Lynn come help me”. The Member testified that [Client “B”] was slipping out of the lounge chair, which was against the wall of (N509) in the T.V. lounge (N5ll.). The Member testified that she went to assist [Witness 2] to help stand [Client “B”] up. [Witness 2] continued to support [Client “B”] and asked the Member to get the wheelchair. The Member approached [Client “A”] and said “[Client “A”, Client “A”] give me that chair.” The Member added, “I’m not a loud person. I had my hands on the wheelchair. I unlocked the

wheelchair and pulled it back. I asked [Client “A”] to stand up. [Client “A”] did not respond; she only laughed.” The Member said she touched the client’s left shoulder to stimulate her as other nurses had done on the unit. [Client “A”] just laughed and said “Don’t touch me, don’t hit me!” The Member said, “I’m not hitting you.” and proceeded on to room N515. At this time the Member denied raising her voice to berate the client.

The Member denied exchanging insults or name calling with [Client “A”]. [Witness 4] came to the nurses’ station and asked her what break she was on. The Member told [Witness 4] that they were going for their break at 1800 hrs. Upon the Member’s return, [Witness 2] asked the Member to come to the nurses’ station where [Witness 2] asked the Member if she hit [Client “A”] between the shoulders. The Member answered “No.”

At 1900 hrs. [Witness 1] called [the nurse manager]. [Witness 1] was told that Ms Setlalepuo should go home. The Member testified that she spoke with [the nurse manager], who told her to go home because there was a witness to the incident. The Member said goodbye to [Witness 4].

When asked by her counsel, the Member denied that she was frustrated, that she struck [Client “A”] that she called her skinny or a liar and that she ever raised her voice to the client. The Member also denied that there was any urgency to get the wheelchair from [Client “A”].

The Member was aggressive, hostile and argumentative throughout her testimony. The Member’s recall of the events was completely at odds with the other witnesses’ recounting of the events.

Decision

The panel considered the evidence and the fact that the College of Nurses of Ontario bears the onus of proving the allegations in accordance with the standard of proof as sent out in Re: Bernstein and the College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON HCJ), 15 O.R. (2d) 447, namely that the proof must be clear and convincing and based on cogent evidence, and accepted by the panel.

The panel also assessed the credibility of the witnesses using the factors as outlined in Re: Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985) 1985 2053 (ON HCJ), 51 O.R. (2d) 302 by taking into account:

Appearance and demeanour of the witness Opportunity to observe

Capacity to remember

Probability or reasonability of the evidence Internal inconsistency

External consistency Interest in outcome

The panel accepted that the testimony of [Witness 1], [Witness 2], and [Witness 3] was plausible and although their recount of the events was slightly different, they conveyed the same story.

The panel was convinced that [Witness 1] had a clear view of the incident involving the Member and [Client “A”]. [Witness 3] who overheard the Member and [Client “A”], recognising their voices further supports the testimony of [Witness 1] while he was in the lounge. The evidence of [Witness 2] further supports the testimony of [Witness 1] and [Witness 3] neither of whom visually witnessed the incident, however, both [Witness 3] and [Witness 2] heard [Client “A”] say, “Don’t hit me!”

Contrary to the evidence of [Witness 3] and [Witness 2] was the evidence of [Witness 4] who said she didn’t hear or see anything of the alleged incident. [Witness 4] testified that the incident could not have occurred because the RN and RPN worked constantly together going from room to room.

The Member’s testimony showed hostility and she seemed somewhat vague in her answers, when questioned about the particulars to specified allegations. Her testimony did not flow and in fact points that the Member’s nursing practice was far below the expectations for standards of practice of the profession.

Based on the entirety of the evidence, the panel found the Member guilty of professional misconduct as alleged in paragraph #1, #2, and #3 of the Notice of Hearing dated March 6, 2001, from the College of Nurses of Ontario, in that she failed to maintain the standard of practice of the profession and that she abused the client, verbally, physically and emotionally. The members of the profession find that her behaviour was disgraceful, dishonourable and unprofessional.

The testimony of [Witness 4] is entirely at odds with the three other witnesses. Her testimony did not flow with the other witnesses with regards to the actual incidents as laid out in the appendix of the allegations in the Notice of Hearing.

Reasons for Decision

The panel felt that the evidence of the three witnesses: [Witness 1], [Witness 2] and [Witness 3] each of which either saw or heard part of the incident, was clear and each witness was forthright in their testimony. Their recall of the events was similar in nature and did not appear to contrive. They all testified to having had a good working relationship with the Member.

The Member, on the other hand, told the panel there was no urgency to the situation, that she had sufficient time to get the wheelchair, without it being an emergency. The Member, in fact, told the panel that client [Client “B”] wore protective equipment, which included a helmet, and knee/elbow pad, so there was no rush to keep her safe. As well, there was no reason to speak loudly and push the client out of the wheelchair.

The panel recognises that these incidents are not of the most severest nature, however, it is never appropriate to raise one’s voice or yell at a client; to strike or push a client; to respond to a cognitively impaired client in a negative manner (i.e., “you are skinny”) or to tell a client they are “a liar”.

Based on these facts, the panel found that the Member had committed the acts of professional misconduct as outlined in the Notice of Hearing and Appendix “A”.

Penalty

Counsel for the College presented the panel with a submission on penalty, (Exhibit #7), as follows: The College submits that the appropriate penalty in this matter is for the panel of the Discipline

Committee to make the following order, to take effect 30 days from the date of this order or the date any appeal of this order is disposed of or abandoned, whichever date is later:

1. Directing the Executive Director to suspend the Member’s certificate of registration for a period of three months;

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

a. The Member shall review the video and complete the One is One Too Many abuse prevention self-directed package and meet with a Practice Consultant to discuss the incident from which the findings of professional misconduct arose within three months of the date this order. In particular, the meeting with the Practice Consultant shall include a review of the definition of abuse and strategies to deal with cognitively impaired clients; and

b. The Member shall provide the Director, Investigations & Hearings (the Director) with the

name and address of all of her employer(s) for a period of two years of practice. The Member must request of the employer(s), and the Director must receive from the employer(s), written confirmation of receipt of a copy of the panel’s decision and reasons in this matter from the Member. In that/those letter(s), the employer(s) must also agree that the Member’s practice will be monitored from time-to-time by another member of the College, and to immediately notify the Director in the event any information comes to its attention that the Member is breaching the standards of practice in her interaction with clients, and agree to provide all necessary information to the College to allow it to ascertain whether the Member is breaching the standards of practice, and the extent of the breach.

3. Requiring the Member to appear before the panel to be reprimanded within three months of the date this order becomes final.

College counsel submitted a penalty proposal including a suspension of three months, an oral reprimand and terms conditions and limitations were appropriate penalties in this case. College counsel stated that this was not the most serious case of abuse, but not insignificant. No incident of abuse is a trifling matter. CNO counsel pointed out that this penalty addresses appropriate elements of deterrence specific to the Member, general deterrence to the membership and the public message that such conduct will not be tolerated. The penalty addresses rehabilitation of the Member through the education requirement of the abuse prevention program. The two-year period of monitoring addresses the issue of the Member’s practice review by another member of the College.

Counsel for the College pointed out for the panel that there were no mitigating factors apparent in this case. College counsel stated that the Member should not be penalised for not admitting guilt. The Member chose to deny the allegations and caused the College the expense of a full hearing. The Member showed no apparent remorse.

Counsel for the Member stated that no one should be penalised for not acknowledging guilt. However, a mitigating circumstance would be that recognition is the first step of remediation. Defence counsel outlined that the Member had a 20-year history as a health care provider both in Botswana and Canada, with no prior complaints against her nursing practice. A finding of professional misconduct has a devastating effect and is an aberration in this Members otherwise exemplary career. This entire proceeding has had a significant impact on this Member.

Defence counsel indicated that an appropriate penalty in this case would be an oral reprimand. In reply, College counsel stated that there was no doubt these proceedings had an impact on this

Member, however, a reprimand would not provide adequate deterrents. CNO counsel pointed out that

the Member’s length of service could be a double-edged sword, with Member’s experience on one edge and knowledge of appropriate conduct on the other.

To sum up for the panel College counsel once again pointed out that the Member should not be penalised for defending herself against these allegations. The penalty proposed is appropriate in general and specific deterrents and remediation.

Penalty Decision

After a lengthy deliberation the majority of the panel concluded that a one-month suspension would be appropriate in this case. The panel was unanimous in its decision to accept 2 (a) of the penalty submission of the College. The panel amended 2 (b) of the submission of penalty from two years of practice to 900 hours of practice. The panel felt that this penalty appropriately addresses the issues of specific and general deterrents and served the public interest in signalling that such conduct would not be tolerated.

The panel also concluded that there be an oral reprimand of the Member. Accordingly, the panel orders:

1. That the Executive Director suspend the Member’s Certificate of Registration for a period of one month;

2. That the Executive Director impose the following terms, conditions and limitations on the Member’s Certificate of Registration:

a. The Member shall review the video and complete the One is One Too Many abuse prevention self-directed package and meet with a Practice Consultant to discuss the incident from which the findings of professional misconduct arose within three months of the date this order. In particular, the meeting with the Practice Consultant shall include a review of the definition of abuse and strategies to deal with cognitively impaired clients; and

b. The Member shall provide the Director, Investigations & Hearings (the Director) with the name and address of all of her employer(s) for a period of 900 hours of practice. The Member must request of the employer(s), and the Director must receive from the employer(s), written confirmation of receipt of a copy of the panel’s decision and reasons in this matter from the Member. In that/those letter(s), the employer(s) must also agree that the Member’s practice will be monitored from time-to-time by another member of the College, and to immediately notify the Director in the event any information comes to its attention that the Member is breaching the standards of practice in her interaction with clients, and agree to provide all necessary information to the College to allow it to ascertain whether the Member is breaching the standards of practice, and the extent of the breach.

c. The Member is to appear before the panel to be reprimanded within three months of the date this order becomes final.

I, Lois Vanson, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below:

, Chairperson Date Gabrielle Bridle, RPN

George Rudanycz, RN

Bill Weichel, Public Representative Tom Clifford, Public Representative