College of Nurses of Ontario v. Schutt, 2006 ONCNO 81730

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Denise Dietrich, RPN Chairperson Kendra O’Bryan, RPN Member

Marcia Taylor, RN Member

Linda Bracken Public Member

Grace Isgro-Topping Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for

) College of Nurses of Ontario

• and - ) NO REPRESENTATION for

) Shannon Schutt

SHANNON SCHUTT ) PAUL LEVAY

Registration No. 0201392 ) Independent Legal Counsel

) Heard: June 20-21, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 20, 21, 2006 at the College of Nurses of Ontario (“the College”) at Toronto.

The hearing convened at 0910 hours on June 20, 2006. The Member was not present, nor was she represented by legal counsel. The panel adjourned to allow the Member time to arrive. The panel reconvened at 0932 hours. Counsel for the College entered into evidence Exhibit #1, a Notice of Hearing dated February 23, 2006 together with Exhibit #2 – Certificate of Service of Process dated May 9, 2006 indicating that the Member had been served with the Notice of Hearing on April 5, 2006. The panel was satisfied that the Member had been duly notified of these proceedings.

The Allegations

The allegations against Shannon Schutt (“the Member”) as stated in the Notice of Hearing dated February 23, 2006, 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, and defined in subsection 1(1) of Ontario Regulation 799/93 as amended, in that, while employed as a Registered Nurse at [Facility A] in [ ], Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to your conduct in relation to the patient, [Client A], on or about January 28, 2004.

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, and defined in subsection 1(7) of Ontario Regulation 799/93 as amended, in that, while employed as a Registered Nurse at [Facility A] in [ ], Ontario, you abused a client verbally, physically or emotionally with respect to your conduct in relation to the patient, [Client A], on or about January 28, 2004.

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, and defined in subsection 1(8) of Ontario Regulation 799/93 as amended, in that, while employed as a Registered Nurse at [Facility A] in [ ], Ontario, you misappropriated property from a workplace with respect to claiming sick leave and being paid sick benefits for a shift at [Facility A] while you worked a shift at [Facility B] on or about January 16, 2004.

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, and defined in subsection 1(37) of Ontario Regulation 799/93 as amended, in that, while employed as a Registered Nurse at [Facility A] in [ ], Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by Members as disgraceful, dishonourable or unprofessional with respect to the following incidents:

a) your conduct in relation to the patient, [Client A], on or about January 28, 2004; and/or

b) claiming sick leave and being paid sick benefits for a shift at [Facility A] while you worked a shift at [Facility B] on or about January 16, 2004.

Member’s Plea

The Member was not present at the hearing, nor represented by Legal Counsel. The hearing proceeded on the basis that the Member denied the allegations.

Overview

The Member is a registered nurse and in January 2004, she was employed as a Resident Care Co-ordinator at [Facility A] in [ ], Ontario. Concurrent with working at [Facility A] the Member was also employed on a part-time basis at [Facility B]. Two separate incidents led to this hearing. The first incident relates to the evening of January 28, 2004, when the Member was working at [Facility A] in []. On this occasion, she is alleged to have abused [Client A] physically, verbally and emotionally. The second incident relates to an evening shift that the Member was scheduled to work on January 16, 2004. On that date the Member is alleged to have collected sick pay from [Facility A] despite the fact that she worked a 12-hour day shift at [Facility B].

The issues are as follows:

(a) Did the Member physically, verbally and emotionally abuse [Client A] on January 28, 2004?

(b) Did the Member misappropriate property from [Facility A] through collecting pay for absence due to illness when in fact the Member was not ill, as she was able to work a 12-hour shift at [Facility B]?

The Evidence

Counsel for the College presented a brief of documents to the panel, which contained exhibits #1 to #18.

Counsel for the College called four witnesses who provided testimony as follows:

Witness #1 – [Director of Care], RN, Director of Nursing, [Facility A]

Testified that she was the Director of Care at [Facility A] in [ ] at the time of the events in question. She remains in that position today. She testified that she [h]as worked at [Facility A] for 23 years and had been the Director of Care for the past 19 years. She reviewed for the panel that [Client A] was a resident at [Facility A] in [ ]. His diagnosis included Cerebral Palsy, Anger with Aggression, Schizophrenia, Paranoid Ideation and Delusional Behaviour. The client was also Mentally Challenged and []. The [Director of Care] stated that [Client A] could be disruptive and angry. She reviewed the care plan for [Client A] (exhibit #8) which included nursing responses to behaviours that were sometimes exhibited by the client. [Director of Care] reported that the Resident Care Co-ordinator would be aware of the care plan for [Client A].

[Director of Care] testified that she was contacted at her home by Personal Support Worker [PSW A], the evening of January 28, 2004. [PSW A] advised the [Director of Care] of the incident involving [Client A]. [Director of Care] stated that she contacted the nursing home later that same evening and asked another RN to check on [Client A] and to make a note in the resident’s chart. [Director of Care] testified that she was involved in the follow up investigation of the incident, which involved responding to questions posed by the compliance advisor for the facility.

[Director of Care] also testified that the Member had been scheduled to work an evening shift at [Facility A] but called the facility to report that she was ill and unable to work. [Director of Care] later learned that the Member had worked a 12-hour day shift at [Facility B] on January 16, 2004. [Director of Care] provided testimony that management staff at [Facility A] was provided full salary when sick.

The panel found that [Director of Care] was credible and responded to questions in a clear and forthright manner.

Witness #2 – [PSW A]

[PSW A] testified that she had been employed at [Facility A] since December 2001. She testified that prior to the incident of January 28, 2004 she had a working relationship with the Member that she described as “fine with no stress between either of us”.

[PSW A] testified that she was in a patient room giving nourishments on the evening of January 28, 2004. At approximately 1900 hours, she stated that she could hear [Client A] yelling and she went out into the hall. There she saw the Member pushing [Client A] rapidly down the hallway. [Client A] was holding onto the wheels of the wheelchair resisting the Member’s efforts to push his chair. [PSW A] reported that the Member threatened [Client A] with an injection and said that she would send him to the “psych ward”. She followed the Member and [Client A] into [Client A]’s room where the Member proceeded to tip the wheelchair forward repeatedly trying to get [Client A] out of the wheelchair and into his bed. She stated that the Member’s tone of voice was very loud and that she was shaking. The Member was saying to [Client A] “get out of the chair, get out of the chair”. The Member asked the witness to help her remove [Client A] from the wheelchair. [PSW A] refused and told the Member, “I am not going to help with this abuse”.

[PSW A] then left [Client A]’s room and the Member followed her. [PSW A] stated that she was upset with the Member and a heated exchange occurred between the witness and the Member. [PSW A] admitted that she had used an inappropriate expletive during her conversation with the Member but advised the panel that she was upset with what she had witnessed. [PSW A] stated that she advised the Member that she was going to report the Member’s behaviour.

Later that evening the Member approached [PSW A] and told her that she intended to report [PSW A] for not following proper dining room procedures.

Panel noted several inconsistencies with the testimony of [PSW A] as compared to the testimony of the other witnesses. As an example, [PSW A] testified that [Director of Care] had asked to speak to the RN on duty when contacted on the evening of January 28, 2004 although the panel had heard testimony from [Director of Care] that she took some time after being notified of the incident and th[e]n she called back to the nursing home to speak with one of the RNs. Additionally, the panel noted that although [PSW A] had good recall of some of the events of the evening she was unable to recall whether [Client A] was in bed when she left the room following the alleged abuse. The panel noted that [PSW A] had an interest in the outcome as based on her testimony the Member had threatened to report [PSW A] for not following proper dining room protocol. The panel noted that the Member gave testimony in a hurried manner but was able to respond to the questions posed by Counsel for the College.

Witness #3 – [PSW B] working 14 years as a Personal Support Worker at [Facility A]. [PSW B] was in [Client A]’s room attending to another patient, with the curtain drawn, when the alleged incident occurred. She testified that she could not see the events of that evening but could hear the exchange between the Member, [Client A] and [PSW A]. [PSW B] testified that she heard the Member say in a loud and aggressive tone that she would give the client a needle or send him to the psych hospital. She also heard [PSW A] tell the Member that her actions were not appropriate. The panel noted that [PSW B] did not have an interest in the outcome, as she was not directly involved in the conflict with the Member. In addition, she readily admitted that she only heard and did not observe the events that occurred.

Witness #4 – [ ] Manager of Human Resources, [Facility B].

[Manager of Human Resources] presented evidence from the Member’s secondary employer in a factual manner. Her evidence established that the Member, on January16, 2004, worked a 12-hour Day shift in the [ ] Unit at [Facility B]. Exhibit #15 payroll records indicated that the Member received payment for the shift.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof which the panel is familiar with, 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 recognized 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 that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2, 3 and 4 of the Notice of Hearing. In particular, the Member (a) contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to conduct in relation to the patient, [Client A], on or about January 28, 2004; (b) abused a client verbally, and emotionally with respect to [her] conduct in relation to the patient, [Client A], on or about January 28, 2004; (c) misappropriated property from a workplace with respect to claiming sick leave and being paid sick benefits for a shift at [Facility A] while [she] worked a shift at [Facility B] on or about January 16, 2004; and (d) 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 and unprofessional with respect to the following incidents: a) [her] conduct in relation to the patient, [Client A], on or about January 28, 2004; and b) claiming sick leave and being paid sick benefits for a shift at [Facility A] while [she] worked a shift at [Facility B] on or about January 16, 2004.

Reasons for Decision

The panel deliberated and considered the evidence presented. The panel noted that the evidence in relation to the allegation of physical abuse was contingent on the testimony of witness #2 exclusively. Based on this witness’ testimony the panel did not find that the evidence met the definition of clear, cogent and convincing. In particular, witness #2 had an interest in the outcome of this decision as the Member had threatened to report her on another matter. Concerning the allegations of verbal and emotional abuse the panel relied on the testimony of witness #3 who had good recall of the events of January 28, 2004 and in particular heard the Member threaten [Client A] in a loud and aggressive tone with an injection and that she would send him to a psych hospital.

The panel found that the evidence presented by witnesses 1 & 4 clearly established that the Member worked a 12-hour shift on January 16, 2004 at [Facility B] and also received pay for a shift at [Facility A] that she did not work due to illness. The panel agreed that this evidence supported a finding of misappropriation of property as alleged in the Notice of Hearing.

Penalty

Counsel for the College submitted a proposed penalty that would provide for specific and general deterrents, rehabilitation for the Member and protection of the public. It sends a clear message that such misconduct by Members of the profession is not acceptable. Counsel for the College reviewed findings and penalties from previous decisions and noted that the proposed penalty was consistent with penalties in similar decisions.

Counsel for the College also advised the Panel that this case would be an appropriate case for costs to be awarded. He noted that costs are separate from a penalty order and that they could involve all or part of the costs of investigation, hearing costs and legal fees. In this case, Counsel proposed a cost award of $1500, which he stated, was a fraction of the legal costs alone. He reviewed that in order to award costs there must be a finding of professional misconduct and that in this circumstance the test had been met. He further submitted that in the awarding of costs the cost incurred in conducting the hearing were far more than usual. In this case, the Member was given notice and took no action. She put the College to the trouble of calling witnesses but did not trouble herself to show up. He stated that when a Member takes no steps and subsequently forces a hearing, that they then do not attend, that this is an appropriate case for costs to be awarded.

The Discipline panel has made the following findings of professional misconduct:

• Professional misconduct in relation to allegation(s) #1, #2, #3, #4 (a) and (b) as set out in the Notice of Hearing attached as Appendix “A”

The Discipline panel makes the following Order:

Penalty

1. Requiring the Member to appear before the panel to be reprimanded on a date to be arranged between the Member and the panel, within six months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for a period of 4 months, to commence on the date that this Order becomes final or the date the Member renews her membership with the College, whichever date is later.

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

a) within three months of the date this Order becomes final, the Member shall purchase and complete the College’s self-directed learning package, One is One Too Many;

b) within six months of the date this Order becomes final and after the Member has completed the One is One Too Many package, as outlined in 3(a), above, the Member shall meet with a College Practice Consultant, at the Consultant’s convenience, to discuss the One is One Too Many abuse prevention program as it relates to the conduct for which the Member was found to have committed professional misconduct and to discuss, with the Member, how to prevent such conduct from occurring in the future;

c) for a period of 1 (one) year following the Member’s return to practice following the period of suspension, the Member shall:

i. communicate to the Director of the Investigations and Hearings Department of the College (the “Director”), in writing, the names and addresses of any employer or employers for whom the Member is employed as a nurse within 14 days from the date the Member commences employment, to be delivered by verifiable means such as courier or registered letter and the Member shall retain proof of the College’s receipt of the communication; and

ii. advise any employer or prospective employer of the monitoring conditions set out in subparagraph (d), prior to commencing practice with the employer; and

d) for a period of 1 (one) year following the Member’s return to practice following the period of suspension, the Member shall only work for an employer who:

i. agrees to receive a copy of the panel’s Penalty Order with attached Notice of Hearing, or, if available, a copy of the panel’s Decisions and Reasons, and

ii. agrees to advise the Director in writing within 14 days of the date the Member commences employment that the employer has received a copy of the documents referred to in sub-paragraph 3(d)(i), and agrees to notify the Director immediately upon receipt of any reasonable information that the Member has engaged in any professional misconduct.

Costs

1. Requiring the Member to pay to the College its costs in the amount of $1,500.00, within 3 months of the date that this Order becomes final.

Reasons for Penalty Decision

The panel must set out its reasons for coming to the conclusion that it did with respect to penalty. The principles set out in s. 10-12 of the Handbook should be of assistance.

The panel determined that this penalty meets the principles of both specific and general deterrence while also providing rehabilitation to the Member. The penalty is reasonable and in the public interest. The profession will not tolerate this type of behaviour.

In regards to the awarding of costs, the panel considered the submissions of Counsel for the College and agreed that the awarding of costs [was] appropriate in this case. The panel noted that costs of $1500 were a small portion of the actual costs incurred by the College. The panel feels it is appropriate to award costs when a Member fails to respond to the College and address the allegations.

I, Denise Dietrich, 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

Panel Members:

Kendra O’Bryan, RPN Marcia Taylor, RN

Linda Bracken, Public Member

Grace Isgro-Topping, Public Member