College of Nurses of Ontario v. McClinton, 2006 CanLII 81735

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Lori McInerney, RN Chairperson

Dennis Curry, RN Member David Bishop Public Member

Bill Weichel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MEGAN SHORTREED for

) College of Nurses of Ontario

• and - )

) NO REPRESENTATION for

) M. Colleen McClinton

M. COLLEEN MCCLINTON )

Registration No.7313240 )

) CHRIS WIRTH and

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: May 1-4, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 1 through 4, 2006 [ ].

Colleen McClinton (the “Member”) was not represented nor was she in attendance. Counsel for the College of Nurses (the “College”) indicated that she believed that the Member had planned to attend. The panel recessed for 30 minutes to give the Member opportunity to appear before the hearing. The panel reconvened, noting that neither the Member nor a representative was present. Counsel for the College informed the panel that unsuccessful attempts were made to contact the Member by telephone and that a message was left on the Member’s answering machine. College Counsel then filed an Affidavit of Service, which demonstrated that the Notice of Hearing was served on the Member on February 24, 2006. The panel was satisfied that the Member had received notice of the proceedings. Accordingly, the panel continued with the hearing in the Member’s absence.

The Allegations

The Allegations

College Counsel presented the Notice of Hearing (Exhibit # 1) indicating that she was submitting a number of amendments. Counsel advised that under section 40 of the Health Professions Procedural Code, amendments are permitted if minor, such as amendments to correct typographical errors. Counsel submitted that allegations 1(a) (xxii), (xxiii), (xxiv) and (xxv) and 2(a) (xxii), (xxiii,) (xxiv) and (xxv) should be amended so that they would refer to 2001 rather than 2002. Counsel advised the panel that the Member had been notified of these changes during a pre-hearing conference in 2004. Additionally, College Counsel sought amendment of allegations 1(b) (v) and (vi), and 2(b) (v) and (vi), such that the date referred to would be changed from June 6, 2002 to June 9, 2002. Counsel advised the panel that the Member had been notified of these specific changes by letter.

The panel permitted amendment of the Notice of Hearing in the manner requested by College Counsel.

The allegations against Colleen McClinton as stated in the Notice of Hearing of November 28, 2005 and amended 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 while employed by [the agency] as Nurse in Charge at [the Nursing Station], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, in that:

a) On one or more of the following occasions, you wasted narcotics without a witness:

Date Amount Wasted Client

i. Nov. 19, 2001 25 mg [Client A]

ii. June 24, 2002 150 mg [Client B]

iii. June 30, 2002 150 mg [Client B]

iv. Oct. 30, 2001 25 mg [Client C]

v. Oct. 30, 2001 25 mg [Client C]

vi. Feb. 23, 2001 25 mg [Client D]

vii. Feb. 23, 2001 25 mg [Client D]

viii. April 18, 2001 25 mg [Client E]

ix. April 19, 2001 25 mg [Client F]

x. April 29, 2001 50 mg [Client G]

xi. May 3, 2001 25 mg [Client H]

xii. May 5, 2001 25 mg [Client I]

xiii. May 5, 2001 25 mg [Client J]

xiv. Aug. 24, 2001 25 mg [Client K]

xv. Sept. 28, 2001 25 mg [Client D]

xvi. Jan. 7, 2002 100 mg unknown

xvii. Feb. 7, 2002 25 mg [Client D]

xviii. March 11, 2002 25 mg [Client D]

xix. March 11, 2002 25 mg [Client D]

xx. March 18, 2002 50 mg [Client G]

xxi. May 22, 2002 50 mg [Client L]

xxii. Nov. 9, 2001 25 mg [Client M]

xxiii. Nov. 12, 2001 25 mg [Client M]

xxiv. Nov. 20, 2001 25 mg [Client A]

xxv. Nov. 22, 2001 25 mg [Client N]; and/or

b) On one or more of the following occasions, you administered a narcotic to a client without a physician’s order and without contacting a physician or recording contact with a physician in the client’s health record:

Date Amount Administered Client

i. June 30, 2002 75 mg [Client O]

ii. June 30, 2002 75 mg [Client O]

iii. June 30, 2002 25 mg [Client O]

iv. June 29, 2002 100 mg [Client B]

v. June 9, 2002 75 mg [Client D]

vi. June 9, 2002 75 mg [Client D];

and/or

c) On one or more of the following occasions, you removed narcotics from the Nursing Station’s supply and failed to properly record the administration or disposal of those narcotics:

Date Amount Unaccounted Client

i. June 30, 2002 25 mg [Client O]

ii. June 30, 2002 25 mg [Client O]

iii. June 30, 2002 25 mg [Client O]

iv. June 24, 2002 25 mg [Client B]

v. June 28, 2002 50 mg [Client B]

vi. June 29, 2002 50 mg [Client B]

vii. Oct. 30, 2001 75 mg [Client C]

viii. Oct. 30, 2001 75 mg [Client C]

ix. June 1, 2002 25 mg [Client D]

x. June 1, 2002 25 mg [Client D]

xi. June 9, 2002 25 mg [Client D]

xii. June 9, 2002 25 mg [Client D]

xiii. Oct. 28, 2001 100 mg [Client P]

xiv. Oct. 30, 2001 100 mg [Client R]

xv. Jan. 9, 2002 25 mg [Client Q]

xvi. Jan. 10, 2002 25 mg [Client D]

xvii. Jan. 11, 2002 25 mg [Client S]

xviii. Jan. 12, 2002 25 mg [Client H]

xix. Jan. 12, 2002 25 mg [Client H]

xx. Feb. 10, 2002 25 mg [Client F]

xxi. Feb. 10, 2002 25 mg [Client F]

xxii. Feb. 10, 2002 25 mg [Client F]

xxiii. June 3, 2002 25 mg [Client H]

xxiv. June 4, 2002 25 mg [Client H]

xxv. June 4, 2002 25 mg [Client T]

xxvi. June 7, 2002 25 mg [Client S]

xxvii. June 7, 2002 25 mg [Client S];

and/or

d) Between May, 2001 and June, 2002, you failed to maintain appropriate systems for the control, storage, access, security and/or monitoring of narcotics within the Nursing Station; 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(13) of Ontario Regulation 799/93, in that while employed by [the agency] as Nurse in Charge at the Nursing Station, you failed to keep records as required, in that:

a) On one or more of the following occasions, you wasted narcotics without having a witness co-sign the Narcotics Register:

Date Amount Wasted Client

i. Nov. 19, 2001 25 mg [Client A]

ii. June 24, 2002 150 mg [Client B]

iii. June 30, 2002 150 mg [Client B]

iv. Oct. 30, 2001 25 mg [Client C]

v. Oct. 30, 2001 25 mg [Client C]

vi. Feb. 23, 2001 25 mg [Client D]

vii. Feb. 23, 2001 25 mg [Client D]

viii. April 18, 2001 25 mg [Client E]

ix. April 19, 2001 25 mg [Client F]

x. April 29, 2001 50 mg [Client G]

xi. May 3, 2001 25 mg [Client H]

xii. May 5, 2001 25 mg [Client I]

xiii. May 5, 2001 25 mg [Client J]

xiv. Aug. 24, 2001 25 mg [Client K]

xv. Sept. 28, 2001 25 mg [Client D]

xvi. Jan. 7, 2002 100 mg unknown

xvii. Feb. 7, 2002 25 mg [Client D]

xviii. March 11, 2002 25 mg [Client D]

xix. March 11, 2002 25 mg [Client D]

xx. March 18, 2002 50 mg [Client G]

xxi. May 22, 2002 50 mg [Client L]

xxii. Nov. 9, 2001 25 mg [Client M]

xxiii. Nov. 12, 2001 25 mg [Client M]

xxiv. Nov. 20, 2001 25 mg [Client A]

xxv. Nov. 22, 2001 25 mg [Client N]; and/or

b) On one or more of the following occasions, you administered a narcotic to a client without recording contact with a physician in the client’s health record:

Date Amount Administered Client

i. June 30, 2002 75 mg [Client O]

ii. June 30, 2002 75 mg [Client O]

iii. June 30, 2002 25 mg [Client O]

iv. June 29, 2002 100 mg [Client B]

v. June 9, 2002 75 mg [Client D]

vi. June 9, 2002 75 mg [Client D]; and/or

c) On one or more of the following occasions, you removed narcotics from the Nursing Station’s supply and failed to properly record the administration or disposal of those narcotics:

Date Amount Unaccounted Client

i. June 30, 2002 25 mg [Client O]

ii. June 30, 2002 25 mg [Client O]

iii. June 30, 2002 25 mg [Client O]

iv. June 24, 2002 25 mg [Client B]

v. June 28, 2002 50 mg [Client B]

vi. June 29, 2002 50 mg [Client B]

vii. Oct. 30, 2001 75 mg [Client C]

viii. Oct. 30, 2001 75 mg [Client C]

ix. June 1, 2002 25 mg [Client D]

x. June 1, 2002 25 mg [Client D]

xi. June 9, 2002 25 mg [Client D]

xii. June 9, 2002 25 mg [Client D]

xiii. Oct. 28, 2001 100 mg [Client P]

xiv. Oct. 30, 2001 100 mg [Client R]

xv. Jan. 9, 2002 25 mg [Client Q]

xvi. Jan. 10, 2002 25 mg [Client D]

xvii. Jan. 11, 2002 25 mg [Client S]

xviii. Jan. 12, 2002 25 mg [Client H]

xix. Jan. 12, 2002 25 mg [Client H]

xx. Feb. 10, 2002 25 mg [Client F]

xxi. Feb. 10, 2002 25 mg [Client F]

xxii. Feb. 10, 2002 25 mg [Client F]

xxiii. June 3, 2002 25 mg [Client H]

xxiv. June 4, 2002 25 mg [Client H]

xxv. June 4, 2002 25 mg [Client T]

xxvi. June 7, 2002 25 mg [Client S]

xxvii. June 7, 2002 25 mg [Client S]; and/or

d) Between May, 2001 and June, 2002, you failed to maintain appropriate records respecting the control, storage, access, security and/or monitoring of narcotics within the Nursing Station; 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(37) of Ontario Regulation 799/93, in that while employed by [the agency] as Nurse in Charge at the Nursing Station, 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:

a) Between May, 2001 and June, 2002, you failed to maintain appropriate systems for the control, storage, access, security and/or monitoring of narcotics within the Nursing Station.

Member’s Plea

Member’s Plea

Given that the Member was neither present nor represented, she was deemed to have denied the allegations in the Amended Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations against the Member.

Overview

Overview

[The Nursing Station provides health care to First Nations peoples in an isolated community].

Nurses [ ] practice in an expanded role, different from the Extended Class Nurse, recognized by the College. Nurses working in this expanded role are expected to practice within the College’s and Health Canada’s [ ] Branch standards of practice. This includes the administration, documentation and wastage of narcotics. This expanded role allows nurses to dispense medications, including narcotics as a first dose in emergency situations, without first consulting a physician.

Nurses working in the Nurse In Charge (“NIC”) role are responsible for the control, storage, access, and security and/or monitoring of narcotics in the nursing station. The Member was one of a number of nurses who worked at the [Nursing Station], later accepting the acting NIC position.

During the hearing, 61 exhibits were referenced by 11 witnesses presented by College Counsel.

The panel made findings of professional misconduct against the Member for failing to meet the standards of practice by:

• wasting narcotics without a witness and failing to keep records by not having a witness co-sign the narcotics register;

• administering narcotics as a second or third dose in the same visit without obtaining a physician’s consultation or order;

• removing narcotics from the nursing station supply and failing to properly record the administration or disposal of these narcotics; and

• failing to maintain appropriate systems for control, storage, access, security and monitoring of narcotics within the nursing station.

The panel also found that the Member engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional for failing to maintain appropriate systems for control, storage, access, security and monitoring of narcotics within the nursing station.

The panel ordered revocation of the Member’s certificate of registration, imposed a fine of $10,000.00 and ordered that the Member pay costs to the College in the amount of $10,000.00.

Issues

Issues

The panel identified four issues to be determined in consideration of the allegations. Each arises from the Members practice as an RN and as the NIC at the [Nursing Station]. Specifically, did the Member engage in:

1. Wasting of narcotics without a witness and failing to keep records by not having a witness co-sign the Narcotics Register;

2. Administration of a narcotic without a physician’s order and without contacting a physician or recording contact with a physician in clients’ records;

3. Removing narcotics from the nursing station supply and failing to properly record the administration or disposal of these narcotics; and/or

4. Failing to maintain appropriate systems for control, storage, access, security and monitoring of narcotics within the nursing station?

Procedural History

Procedural History

Perceived Conflict of Interest/Reasonable Apprehension of Bias/Quorum Issue

Perceived Conflict of Interest/Reasonable Apprehension of Bias/Quorum Issue

Shortly after College Counsel began making her opening statement to the panel, a panel member, [ ], notified the panel chair that the information presented sounded very familiar. The hearing was recessed in order to investigate if this panel member had prior knowledge of the case due to having previously served on the College’s Executive Committee. After checking the files in Toronto, it became clear that this panel member had prior knowledge of this case. The panel found that this panel member could therefore be perceived to have a conflict of interest. Consequently, [the panel member] recused herself from the panel.

Independent Legal Counsel (“ILC”) [ ] was contacted concerning quorum requirements, as [the panel member] was the only panel member who was both a member of the council and a member of the College. [ILC] advised the panel in session by telephone that under section 38 of the Code, the panel would maintain quorum with the four remaining panel members, one of whom had been appointed to the council by the Lieutenant Governor General.

Possible Perceived Conflict of Interest/Reasonable Apprehension of Bias

Possible Perceived Conflict of Interest/Reasonable Apprehension of Bias

Soon after College Counsel began her examination of [RN A], the panel chair, [ ], disclosed that there might be a perceived conflict. [Panel chair] explained that she might have worked with this witness [at a hospital]. The witness confirmed this was the case. College Counsel asked the witness if she had had any contact with the panel chair since leaving [the hospital] in 1991 and if she had discussed this case with the Chair. The witness responded “no” to both questions.

College Counsel submitted as follows:

• she had no objection to the panel chair continuing as a member of this panel;

• just knowing a witness does not constitute a reasonable apprehension of bias;

• a working relationship 15 years ago does not necessarily create a conflict, causing disqualification;

• she was not concerned that the chair would not be able to fairly deliberate; but

• the decision would be left to the panel chair.

Counsel did not believe that it was appropriate for [panel chair] to remove herself from this panel.

The panel contacted [ ], ILC for advice. [ILC] advised the panel in session by telephone that:

• in these circumstances there is not a reasonable apprehension of bias;

• nursing is a self-regulated profession, therefore members are judged by a jury of peers;

• the working lives of panel members and witnesses may overlap as it is a small world therefore there would not be an automatic disqualification;

• if the Member were present, her concerns would be considered as well as College Counsel’s submission that she is not concerned about [panel chair’s] impartiality;

• if the panel chair and College Counsel are not concerned about a perceived lack of impartiality arising in this case, the courts would not likely interfere with a decision for the panel chair to remain on this panel; and

• if the panel chair is satisfied that she can adjudicate impartially, then she could continue as a panel member.

[Panel chair] indicated that she believed she would be able to adjudicate this case in a fair and impartial manner. The panel considered College Counsel’s submissions and ILC’s advice. Based on the fact that [pane chair’s] previous working relationship with this witness was over 15 years ago and that she had not discussed this case with the witness, the panel found that there was not a reasonable apprehension of bias, and therefore [panel chair] continued as the panel chair.

Possible Perceived Conflict of Interest/Reasonable Apprehension of Bias

Possible Perceived Conflict of Interest/Reasonable Apprehension of Bias (Expert Witness)

When College Counsel tendered [ ] as an expert witness, it was disclosed that this witness had some brief, minor involvement in this case while working as acting Assistant Zone Nursing Officer (“AZNO”). This involvement included:

• hearing the Member’s name when on call as a relief acting AZNO during a two week period in March 2002;

• receiving a call from the Member regarding a loss of narcotics at the [Nursing Station];

• reporting the loss of narcotics as indicated by the Member to [ ] the pharmacist at the [Hospital] and [ ], Regional Nursing Officer with [the Agency];

• writing a memo to [RN A], acting Zone Nursing Officer (“ZNO”); and

• seeing an occurrence report, which involved the Member.

Additionally, College Counsel submitted that:

• this witness was not involved in the investigation regarding the Member and had no other involvement in the case;

• the panel should consider the difficulty in obtaining an expert witness with her specific knowledge and background who would be able to provide an opinion in the very unique circumstances of this case; and

• the panel could consider the involvement of this witness and place the appropriate weight on the evidence.

The panel contacted [ ] ILC, requesting his advice. [ILC] advised the panel in session by telephone that it should consider the following propositions:

• generally, it is preferable that the witness testifying not have any prior involvement or contact with the Member, but that this is not an absolute rule;

• if the witness’s involvement with the Member is significant enough not to be able to provide objective opinion evidence;

• whether College Counsel would be able to secure another witness with sufficient expertise in the area sought;

• there may be few individuals with this expertise therefore difficult to secure a witness with no prior contact;

• whether to accept that this witness is an expert is at the discretion of the panel; and

• if the panel does accept this witness as an expert, the panel will have to decide what weight it should give to [the expert witness’s] evidence.

Furthermore, College Counsel submitted that the report made by this witness did not relate to any of the allegations that the panel is considering. Counsel concurred with the advice given by ILC and asked that the panel qualify this witness as an expert, leaving the weight to give to evidence as a consideration to be addressed during the panel’s deliberations.

The panel deliberated and found that this witness had had involvement in this case in a minor capacity, but that it was not enough to cast serious doubt on her objectivity or impartiality. The panel decided to consider this information when considering the weight to be applied to her evidence.

The Evidence

The Evidence

Issue # 1 Wasting of narcotics without a witness and wasting of narcotics without having a witness co-sign the narcotics register.

Issue # 1: Wasting of narcotics without a witness

[The Regional Nursing Officer] testified that he entered the nursing profession with a diploma in nursing and has been registered with the College since 1975. He has since obtained his Bachelor of Health Science Administration. From 1990 until 2003, [The Regional Nursing Officer] was a Regional Nursing Officer with [a First Nations Branch]. [The Regional Nursing Officer] testified that [the Branch] deals with the health issues of First Nations peoples including 130 reserves in Ontario. Nursing stations are located in isolated and remote communities to ensure access to health care.

[ ] is an isolated community, a one-hour flight from [ ]. In 2002, there were approximately 500 residents of which approximately 99% were First Nations people.

The [Nursing Station] was staffed with 3 full-time nurses whose residence was located in the station. One of the nurses was designated the NIC. Nurses were responsible for providing emergency care as well as delivery of public health programs such as immunization and school programs. Nurses provided care in the station during clinic hours (during the day) as well as in the evening and night by a nurse on call. Physicians would visit the station once a month and were available on call 24 hours a day, 7 days a week by phone. Clients needing additional care would be transferred by air to [the hospital], weather permitting. Generally, nurses clinically assessed clients, making judgements whether to consult with another nurse at the station or with a physician by phone.

[The Regional Nursing Officer] testified that nurses were expected to be familiar with a number of documents used to direct and guide their practice including the:

• College’s Standards of Practice;

• [The agency’s] Medical Services Branch, Scope of Practice document;

• [Branch] Nurses’ Drug Classification System Guidelines for Primary Care;

• [Branch]’s Pharmacy Standards of Practice;

• [Branch]’s Ontario Regional Nursing Policy and Practice manual;

• Desk Reference Manual; and

• Formulary.

Specifically, nurses practising in nursing stations were expected to provide and document care and administer and waste medications in accordance with the College’s standards of practice, as well as the other above named documents. These documents were reviewed with new staff during orientation.

All nurses were expected to have narcotic wastages witnessed and signed as wasted by another nurse on the narcotics register. Working in a nursing station sometimes placed nurses in unique circumstances. There was not always another nurse immediately available to witness and document wastage of a narcotic. This would most likely occur in the [Nursing Station] when the on-call nurse needed to give a part dose on the evening or night shift when the other two nurses were off duty.

The narcotics policy indicates that two RNs must sign narcotic wastages, if available. Disposal of a partial dose without a witness may be carried out if a second nurse is not available. This should be the exception. Whenever possible, nurses were expected to have the wastage witnessed by a second nurse. [The Regional Nursing Officer] testified that it would be a rare circumstance where a nurse could not obtain a witness for the wastage. During the evening and night shift, the on-call nurse was expected to leave the portion of narcotic not given in the narcotics lock-up and then, during the day shift, to show it to another nurse so that the wastage could be witnessed and documented.

[RN A] testified she has been an RN since 1976, and is now an Extended Class RN with the College. [RN A] had worked in the [Nursing Station] as NIC from 1979 to 1981. June 2000 until June 2002 she held the position of [ ] AZNO. The witness testified that she had provided a two-week orientation to the Member when the Member was hired to work at the [Nursing Station]. Additionally, the Member received at least two more weeks’ orientation at the [Nursing Station]. [RN A] testified during the Member’s orientation, she reviewed the documents identified by [The Regional Nursing Officer], making specific references to the standards of practice and narcotics policies. Moreover, these documents were available to the Member at the station for reference. She stated that the Member was told in her orientation that nurses working in the stations were expected to practice within their scope of practice, specifically, the College’s standards of practice and of the standards required by their employer. She testified the pharmacist would have reviewed specifics relating to pharmacy and narcotic administration during the Member’s orientation.

[The pharmacist] testified that he obtained his Bachelor of Science in Pharmacy from the University of [ ] and has been a member of the College of Pharmacists of Ontario since 1997. He held the position of Director of Pharmacy at the [the hospital] from 1998 until 2003. In this position, he was responsible for drug delivery and pharmacy operations for the hospital and the nursing stations.

[The pharmacist] testified that he provided orientation to new station nurses. In addition to a review of the narcotics policy including procedures, the orientation included the following specific directions to nurses:

• narcotics dispensed was to be recorded on the narcotic register;

• any wastage was to be indicated on the register, including quantity wasted;

• a second nurse was required to witness the wastage of the narcotic and sign on the register that she had done so; and

• nurses were expected to follow these policies and practices, within the College’s and the employer’s standards of practice.

[The] security expert, was asked by [The Regional Nursing Officer] to go to the [Nursing Station] in July 2002 to investigate narcotic thefts. [The security expert] testified that his career has included positions with the RCMP and the army. He has worked with [the Agency] since September 2001 with Regional Security. [The security expert] testified that the Member told him:

• she was reluctant to follow standard procedures such as obtaining a second signature to confirm wasting or spoilage of narcotics because it was too inconvenient and a waste of time; and

• these practices were meant for larger hospitals and were not suitable for nursing stations.

[RN B] testified she has been an RN since 1973. She worked at [the hospital] for 12 years and at the [Nursing Station] beginning in March 2002. Since November 2003, she has been the NIC at the [Nursing Station]. In March 2002, the Member was the Acting NIC. [RN B] recalled an incident in June 2002 where the Member had assessed a client in the middle of the night. The client returned the next afternoon with the police. The Member had charted that the client received Tylenol #3 x 15 to go. The client told her there were no medications dispensed. The witness asked the Member about the Tylenol #3s and was told that she had dropped them on the floor and asked the witness to sign for the waste not seen.

[RN B] also testified that after the tampering of narcotics was discovered on June 21, 2002 and had been reported there were additional restrictions placed on staff regarding the dispensing and handling of narcotics. Two nurses were required when drawing up, giving and wasting narcotics. The witness testified that the Member was upset with the two-nurse rule and said she was not going to comply with it.

Concerns were raised regarding the loss of narcotics at the [Nursing Station] on a number of occasions. [The Regional Nursing Officer] made a visit to the [Nursing Station] to investigate in August 2002. The Member, upon learning of this visit had returned to the station during her annual leave. [The Regional Nursing Officer] and [the ZNO] reviewed and audited a number of clients’ charts, as well as the narcotics register. It was noted at this time that there were numerous occurrences in which the Member had signed out a drug indicating a partial dose or complete wastage without obtaining another nurse to witness or document the wastage.

Upon completion of the audits, [the Regional Nursing Officer] testified that he and [the ZNO] met with the Member to discuss their concerns. Several times the Member attributed the discrepancies to her “sloppy practice”. The Member offered no reasonable explanations relating to the discrepancies. At the conclusion of the interview, the Member was asked if she had any further comments to add. The Member indicated that she intended to resign immediately. She did not report to work for her next shift. The Member immediately packed and left the station, submitting a letter of resignation.

[The ZNO] had been an RN with the College since 1974. From 1991 until 2002 she was the Director of Patient Care at [the hospital]. In May 2002 she became the ZNO. [The ZNO] stated that nurses working at the stations were expected to practice within the College’s standards of practice. When [the ZNO] visited the [Nursing Station] to investigate the loss of narcotics in August 2002, she noted that copies of the College’s standards of practice were available on site, as well as the other guidance documents that were described in the testimony of [the Regional Nursing Officer].

[The ZNO] testified that she reviewed [the security expert’s] report. Additionally, she reviewed a memo from [the pharmacist] where he provided a listing of narcotics issues for the previous 12 months. On August 13 and 14, 2002, she and [the Regional Nursing Officer] visited the [Nursing Station]. They inspected the station, including the physical layout as well as procedures. They had not expected to meet with the Member. The Member told them that she had returned to the station to be there while the investigation was being conducted. While there, they audited client charts, cross-referencing the charts with the station’s narcotic register as well as the client log sheet. Clients were contacted by phone and meetings were held with the community leadership. [The ZNO] and [the Regional Nursing Officer] reviewed the narcotics register. Their findings included:

• a large number of narcotics were sent to the [Nursing Station];

• 120 ampoules of Demerol and 57 ampoules of Morphine were either broken or missing;

• the Member had administered most of the narcotics; and

• many of the drugs administered were partial doses, without a witness signing to confirm the wastage.

[The ZNO] testified the standards of practice were not met when narcotics were wasted without a witness.

[The ZNO] recalled meeting with the Member and [the Regional Nursing Officer] at the [Nursing Station] after the audits had been completed. When questioned regarding specific narcotic discrepancies, the Member generally offered no explanations and appeared not to be concerned. The Member notified them of her intention to resign. [The ZNO] received the Member’s letter of resignation on August 14, 2002.

[The ZNO] reviewed copies of the narcotics register indicating that in the circumstances referred to in allegations 1(a)(i) to (xxv) and 2(a)(i) to (xxv), narcotics were wasted without a witness and without having a witness co-sign the narcotics register.

[The expert witness] was tendered as an expert witness regarding the standards of practice with respect to narcotics and control drugs in remote northern communities. [The expert witness] reviewed her curriculum vitae, testifying that she has been an RN since 1966. She graduated with her diploma in nursing and has since obtained her Bachelor of Nursing degree. She has almost completed (short one course) a nurse practitioner program with [ ] University and is continuing her studies to obtain her masters degree [ ]. She has participated in a one-year community health program and a 5-month training program for delivery of patient care in Northern and isolated communities in an expanded nursing role with [the Branch]. [The expert witness] has worked in both the hospital and community settings for the past 23 years [ ]. [The expert witness] worked [ ] as a Community Health Nurse in a number of stations including [ ], and in 2001 as Acting AZNO. Positions held in her career include NIC, Regional Nursing Officer, Director of Patient Services, Senior Nursing Officer, Nursing Director, ZNO and presently Director of Physician and Dental Services in [ ].

The panel deliberated and qualified [the expert witness] as an expert witness. The panel advised that they would apply the appropriate weight to her evidence, considering her involvement in this case as previously described.

[The expert witness] testified that all nurses must document any and all wastage of a narcotic in the narcotics register, which must be co-signed by the nurse who witnessed the wastage. This is no different for nurses who practice in northern communities, except where a second nurse is not available in the community. When another nurse is available but simply off duty, the standards require the wastage to be witnessed and co-signed by another nurse. It is not uncommon in northern communities for the second nurse not to be immediately available by reason of being off shift, on break or sleeping. In these circumstances, the portion of the narcotic to be wasted should be kept in the vial or syringe and kept under double lock until a second nurse is available to witness and co-sign.

[The expert witness] was given an assumed set of facts including:

• over a period of approximately 17 months the Member was responsible for over 90 % of the administration and wastage of narcotics (Demerol and Morphine) at the nursing station;

• on 30 or more occasions during that period, the Member wasted a partial dose without having another nurse witness or co-sign the wastage on the narcotics register;

• of all the times the Member recorded wastage on the narcotics register, she only twice had another nurse co-sign the wastage;

• the Demerol supplied to the station came in a 50mg/ml concentration;

• almost without exception, the Member administered a 25mg or 75mg dose;

• if more than one dose was administered to a client in a single visit, the Member would typically draw up the subsequent dose from a new vial, resulting in a further wastage of 25mg; and

• similarly, on many occasions the Member administered 5mg of Morphine, which was supplied in 10mg/ml vials resulting in 5mg wastage.

[The expert witness] testified it was her opinion that the Member did not meet the standards of practice in 2001 – 2002 with respect to wastage of narcotics and documentation of the wastage.

Issue # 2 Administration of a narcotic without a physician’s order, without contacting a physician, or recording contact with a physician in clients’ records.

Issue # 2: Administration of a narcotic without a physician's order

[The Regional Nursing Officer] testified that all nurses working in nursing stations should be familiar with the scope of practice document published by [the agency’s] Medical Services Branch. This would have been reviewed with the Member during her orientation. The scope of practice for nurses working with [the agency and the Branch] is not the same as the Extended Class with the College. Nurses receive special training [ ]. Care management for station nurses includes prescribing drug therapy for certain medications under specific conditions. Nurses are guided using [the Branch’s] Nurses’ Drug Classification System Guidelines for Primary Care. This document would have been reviewed with the Member during her orientation. It ensures that drugs dispensed by nurses are limited in nature and guides them as to the process. The four drug classifications are as follows:

• “A” nurse can initiate;

• “B” physician must initiate;

• “C” nurse may initiate one course; and

• “D” nurse may initiate one dose.

Class “D” includes narcotics. In Emergency situations, a nurse may initiate a dose without physicians order for stabilization and then call a physician to consult.

[The Regional Nursing Officer] testified that when clients came to the station for assessment and treatment their names were logged into a register that indicated the date, demographic information, assessment and treatment provided and whether narcotics were administered. [The Regional Nursing Officer] and [the ZNO] visited the [Nursing Station] in August 2002, completing a chart and drug register audit. They noted that the Member had given second and third doses of narcotics during the same visit without consulting a physician or obtaining an order. He and [the ZNO] also completed a chart audit at [the hospital] and found that the Member had not consulted a physician or received an order.

[ ], Director of Health Information and Privacy at [the hospital], testified that when a physician is consulted by phone and an order is given, the consulting physician documents the consultation, which is kept in the client’s health record at [the hospital].

[The pharmacist] testified that class “D” medications are drugs that include narcotics. These may be given in a single dose before contact with a physician is established in emergency situations. An example of a situation warranting this would be a client in an acute condition like trauma. [The hospital] formulary is located in all nursing stations and provides guidance regarding medication administration. This formulary narrows the national classification list. [The pharmacist] testified that nurses were expected to comply with the policies of the employer and within the standards of practice of the profession when dispensing medications.

[RN A] testified that under the classification system, nurses were able to give a first dose of narcotics but were required to call a physician for orders for any further doses. [RN A] stated that if a client was sick enough to require a narcotic, then the nurse should consult with a physician. During the Member’s orientation, the Member was told that there were no circumstances in which a nurse could give a second dose of narcotic without an order.

[The ZNO] testified that within the drug classification system, for Class “D” drugs, nurses might initiate one dose of narcotic. This would be used in “real emergency situations” on rare occasions to relieve pain without prior consultation with a physician. Nurses would still need to consult a physician even if the pain was relieved. Physicians are contracted by the Federal Government to be available for consultation 24 hours a day, 7 days a week.

College Counsel asked [the ZNO] to review the copies of the narcotics register, and the clients’ charts listed in allegations 1(b) and 2(b). [The ZNO] testified that on June 30, 2002, [Client O] had received three doses of Demerol from the Member, for dental pain. The Member did not consult a physician or receive orders for any of the doses given. [The ZNO] testified in review of [client O’s] complaint, it would have been appropriate to call a physician for an order for the first dose. It was not an emergency, but definitely a consultation should have been obtained for the second and third doses.

[The ZNO] identified the Member’s charting in [client B’s] chart. The Member had administered 75mg of Demerol on June 29, 2002 for perineal pain. The Member later charted that the pain did not resolve, administering an additional dose of Demerol 25mg. She testified the Member did not chart a consultation with a physician or orders received for either dose given. [Client B] was not listed on the client register as having attended the station as a client on June 29, 2002.

On June 9, 2002 the Member charted giving [client D] two doses of Demerol 75mg for bowel pain. The Member did not consult with a physician or receive orders for either dose.

[The expert witness] testified that according to the [Branch] classification system, a nurse might administer a single dose of a class “D” narcotic to a patient. The rationale for this policy is that there are emergency situations in isolated communities where the nurse does not have immediate access to a physician. Nurses should not make a regular use of this exception. [The expert witness] testified that on the occasion when a dose of narcotic is necessary for a serious situation, the nurse should consult with a physician. She testified a single dose is not two injections over a period of time. The nurse must have a physician’s order before she gives a second dose.

[The expert witness] was asked to assume that on at least 4 occasions over a one month period the Member administered a second or third dose of narcotic during a single visit without first contacting a physician. [The expert witness] testified it was her opinion that if a nurse administers two or more doses of narcotic to a patient during the course of one visit without obtaining a physician’s order, that nurse has failed to meet the standards of practice.

Issue #3 Removing narcotics from the nursing station supply and failing to properly record the administration or disposal of these narcotics.

Issue # 3: Removing narcotics from the nursing station supply

In relation to what the panel has characterized as Issue # 1, [the Regional Nursing Officer], [RN A] and [the pharmacist] testified the Member’s orientation included review of the College’s standards and practice and her employer’s standards regarding administration, wastage, disposal and documentation of medications. The Member was expected to practice within these standards. [The ZNO] testified that the Member had access to these documents at the [Nursing Station] for review.

Both [the Regional Nursing Officer] and [the ZNO] testified that during the audit they conducted at the [Nursing Station] in August 2002, they noted many examples of narcotics dispensed by the Member from the narcotics cupboard, which did not match with the doses given in the client charts. This left narcotic part doses unaccounted for.

In relation to each of the circumstances referred to in allegations 1(c) (i) to (xxvii) and 2(c) (i) to (xxvii), and by reference to the narcotics register and the clients’ charts, [the ZNO] identified instances in which the dosages given did not match the amount of narcotics removed from the stock. [The ZNO] testified that in each instance there were doses of narcotics that were unaccounted for. In addition, where a wastage or disposal of a narcotic was indicated, no signature was obtained from another nurse.

[The expert witness] testified that under the standards of practice, every nurse was expected to document any administration of medications, and in particular narcotics. Each nurse must record in the narcotics register every vial removed, noting the remaining balance of the particular narcotic. Once the nurse has administered the narcotic to a client, the nurse must then document administration of the narcotic to the client in the client’s chart. Because of the potential harm that can be caused by narcotics it is critical that there be clarity regarding the amount of narcotic that has been administered to a client.

[The expert witness] was asked to assume the following set of facts:

• on more than 40 occasions over an 8-month period, the Member removed a dose of narcotics from the supply (eg: 100mg);

• the Member noted the removed dose (e.g. 2 ampoules) on the narcotics register, but only recorded the administration of a partial dose on the narcotics register (e.g. 75mg); and

• the Member did not record any wastage as having been witnessed and co-signed.

[The expert witness] testified that the Member did not meet the standards of practice when she removed narcotics from the central supply and failed to record the administration on the patient’s chart or disposal or wastage on the narcotics register.

Issue # 4 Failing to maintain appropriate systems for control, storage, access, security and monitoring of narcotics within the nursing station.

Issue # 4: Failing to maintain appropriate systems

[The Regional Nursing Officer] testified that the responsibilities of the NIC as indicated in the [Branch] policies included:

• storage, control and access of medications and holding of the narcotic cupboard keys on the day shift;

• supply and medication ordering;

• administrative duties of the nursing station;

• immediate, written notification of any discrepancy in the drug inventory to the ZNO;

• orientation of new staff and maintaining staff schedules; and

• ensuring manuals were available for reference and that zone regulations were correctly applied.

The policy specific to storage, control and access to narcotics indicated that the NIC was responsible to ensure that:

• narcotic keys were kept with the NIC on days and the on call nurse after hours;

• keys would never be left unattended;

• each time a narcotic was dispensed, an RN was required to sign them out on the drug register, identifying the drug and client;

• narcotic counts must occur at least once a week or when a nurse enters or leaves a station and when the station is visited by the ZNO; and

• discrepancies were reported to the ZNO and pharmacist immediately.

[The ZNO] testified that the NIC at each station was responsible for the distribution and storage of drugs. Drugs should be located in a secure locked area. Narcotics should be under double lock with the keys never left unattended. Any discrepancies should be reported by the NIC within 24 hours by phone and an incident report within 7 days.

[The pharmacist] testified that the NIC was responsible for the ordering of narcotics, checking station supplies and faxing monthly a copy of the narcotics register to the [the hospital] pharmacy. During his orientation with new staff, he stressed the importance of immediately reporting discrepancies.

[The Regional Nursing Officer] testified there were a number of incidents of narcotic loss, theft or tampering at the [Nursing Station] including:

• narcotics were found broken or frozen in transport on two occasions,;

• theft of drugs from the locked narcotics cupboard with no evidence of forced entry occurred on May 14, 2001, the drugs in question consisting of Ativan 4mg x 5 vials, Ativan 1mg tabs x 24, Tylenol #3 tabs x 75, Tylenol #2 tabs x 60, Tylenol #3 tabs x 44 (4 patients meds), Tylenol #3 tabs x 18 (3 patients meds), Demerol 50mg/ml ampoules x 17, Morphine 10 mg/ml ampoules x 7, Diazepam 5 mg tabs x 100 and Oxazepam 15mg tabs x 100;

• theft of drugs from the locked narcotics cupboard with no sign of forced entry to the lock system occurred again on May 25, 2001, the stolen drugs including Ativan 1mg tabs x 88, Tylenol #3 tabs x 25, Tylenol #2 tabs x 50, Demerol 50mg/ml ampoules x 10, Morphine 10mg/ml ampoules x 10, Oxazepam 15mg tabs x 100 and Diazepam liquid x 8 vials; and

• theft of drugs from the locked narcotics cupboard with no sign of forced entry to the lock system occurred yet again on June 6, 2001, the drugs stolen on that occasion including Diazepam 1 vial, Morphine 10 ampoules and Tylenol #3 x 12.

After the incident of June 6, 2001, security cameras and an alarm system were installed at the [Nursing Station].

[The pharmacist] testified that in 2001, a pharmacy technician noted an increased use of narcotics at the [Nursing Station], specifically Demerol and injectable Morphine. A review of the narcotics register for Morphine 10mg/ml in the month of October disclosed a closing balance of 10. The balance on the new sheet for November was an opening balance of 8. [The pharmacist] concluded that two of the Morphine 10mg/ml vials were unaccounted for. He sent a memorandum to [ ], the ZNO, and copied to the Member, indicating his findings and concerns. [The pharmacist] testified that upon preparing for this hearing, it came to his attention that the copy of the register that the College had in its possession did not match the one he and his staff reviewed. In the College’s copy, there were two new entries for October 2001 following the final one reflected on his copy. One was dated for October 28, 2001 for 10mg given to [client J]. The second dose was dated for October 30, 2001 for 5 mg Morphine given and 5 mg wasted for [client C]. [The pharmacist] concluded that these entries were added to the Narcotics Register at a later date.

On November 6, 2001, the Member and another nurse documented as expired and removed 8 Morphine ampoules from the stock. These were not returned to the [the hospital] pharmacy. In his investigation of this incident, he received a different version from each nurse involved. One stated that there had been an accident and that the ampoules were destroyed and the other stated that the ampoules had been wasted. [The pharmacist] testified it was the practice that drugs that were expected to expire within a short time period would not be sent to the nursing stations.

[The pharmacist] testified that a shipment of Morphine 10mg/ml had been broken in transport and not entered into the count. He testified that it was unusual that all the ampoules were broken, but if so, they should have been documented in the count as having been received at the station. He spoke with the nurses involved, one indicating the ampoules were found broken in the narcotics cupboard and the other stating that they were dropped during the a narcotics count.

As a result of these incidents and his concerns [the pharmacist] initiated a conference call with [the ZNO] and the Member. [The pharmacist] believed that the Member seemed surprised by his concern regarding the gravity of the situation. She indicated that a “big deal was being made” and that this was normal nursing practice. In this conversation, [the pharmacist] stressed the importance of recordkeeping and reviewed policy and procedures regarding narcotics including:

• narcotic keys were to be kept with the nurse at all times;

• narcotic counts were to be done weekly or when there was a change of staff;

• all narcotics sent to the community were to be documented as received in the register;

• expired narcotics are to be returned to the pharmacy at the [the hospital]; and

• any incidents involving narcotics must be documented and immediately reported.

After this conversation, [the pharmacist] met the Member at an educational event. The Member voiced surprise regarding his concerns with narcotics recordkeeping.

Upon learning of another narcotic theft at the [nursing station] on March 24, 2002, [the Regional Nursing Officer] ordered an investigation to be done. This theft included Codeine 30mg tabs x 25, Codeine 5mg/ml syrup x 94.5ml, Demerol 50mg/ml ampoules x 39, Demerol 50mg tabs x 35, Morphine 10mg/ml ampoules x 10, Tylenol #2 tabs x 25 tabs, and Tylenol #3 tabs x 15, Phenobarb 30mg tabs x 25, Phenobarb 30mg/ml ampoules x 10, Lorazepam 1mg tables (unknown quantity), Diazepam 10mg/2ml ampoules x 5, Diazepam 5mg tabs (unknown quantity) and 3 other patient prescriptions including Space Tabs, Tylenol #2s and Tylenol #3s.

[The pharmacist] testified that he received a report from the Member concerning this theft. It was noted that the medication cupboard was found unlocked and open with all the narcotics missing. The video and alarm systems had been shut off. Changes made as a result of this theft included:

• only a minimum number of narcotics would be supplied to the [nursing station];

• the locks were changed to the narcotics cupboard;

• an additional lock was added to the cupboard door; and

• access to the video equipment was to be limited by securing it with a lock.

[The security expert] testified his investigation included a visit to the [nursing station] from July 8 to July 11, 2002. He inspected the facility and interviewed the [nursing station] staff, including the Member, both formally and informally.

[The security expert] testified he had interviewed the Member. The Member stated to [the security expert] that she was reluctant to follow standard procedures like:

• handing over of the keys to the oncoming nurse in person;

• obtaining a second signature to confirm wasting or spoilage of narcotics; and

• complying with the interim measure that she was the only nurse to carry the narcotic keys.

The Member told [the security expert] that these procedures would be too inconvenient, a waste of time and practices meant for larger hospitals that were not suitable for nursing stations. [The security expert] testified that the Member would become hostile in conversations regarding the narcotic losses and security issues.

[The security expert] testified that he stayed at the station conducting his investigation. It was while he was doing this that on either July 9 or 10; he found the narcotic cupboard keys hanging unattended on a knob in the staircase leading up to the nurses’ residence. This occurred at a time when the Member had been given the responsibility for carrying the keys at all times.

Meetings with the [ ] Police Services and the Chief of the Band Council indicated that there was not a narcotic abuse problem in the community [ ].

[The security expertly] concluded that:

• there were more than adequate locks and doors within the facility;

• the locks at the facility were of the type that were not easily picked and that there were few people in Canada who could accomplish this;

• there was no evidence of manipulation of the locks or hinges;

• there were no signs of forced entry;

• as the acting NIC, the Member had not followed protocols for key control leaving opportunity for the narcotics to be taken on a repeated basis;

• they may never determine who committed these thefts;

• the Member did little to correct the problem; and

• other security measures such as a more complex camera and alarm could be installed to help prevent these losses.

[The Regional Nursing Officer] testified he became aware of another theft of narcotics, which occurred on June 21, 2002. This theft was not reported by the Member in writing until July 3, over a week after it had occurred. The Member reported there had been tampering with ampoules and substitution of tablets in the narcotics cupboard. Drugs tampered with or substituted included Demerol 50mg/ml ampoules x 16, Demerol 50 mg tabs x 25, Morphine 10mg/ml ampoules x 6, Codeine 30mg tabs x 25 and Codeine elixir 5mg/ml x 50 ml.

[The pharmacist] testified that he became aware of this theft in early July when the Member called him requesting more stock as a result of the tampering incident. [The pharmacist] was very unhappy with the delay in reporting this loss.

[The ZNO] described as “unbelievable” the 12-day delay in reporting the tampering incident on June 21, 2002.

Having reviewed [the security expert’s] report and considered his concerns, [the Regional Nursing Officer] decided to make a site visit to the [nursing station] with [the ZNO]. [The Regional Nursing Officer] wanted to further investigate.

[The AZNO] has been an RN since 1981. She has worked with [the agency] since 1986. She testified that in June 2002, she had assumed the position of acting AZNO. Initially, she held this position for summer relief, but it became a permanent position. In her position as AZNO, she was responsible for supervising the nursing stations NIC, including the Member at the [Nursing Station]. She had not visited the [Nursing Station] but was in frequent contact with the Member by phone. She recorded her conversations in written notes, which were then typed. On June 26, she spoke with the Member regarding staffing issues. At no time in this conversation did the Member report to [the AZNO] the tampering with narcotics that occurred on June 21. On June 27, [the AZNO] again spoke with the Member regarding concerns about narcotic key security. The Member reported to her that one set of keys was kept with the nurse on duty and that after hours, it was held by the nurse on call. Again, the Member did not disclose the tampering with and theft of narcotics that had occurred on June 21. [The AZNO] testified that on July 2she received a call from [the pharmacist] regarding incidents of tampering with medications at the [Nursing Station]. She called the Member and asked what had happened and why this had not been reported. The Member told her that she did not immediately report this incident so she could investigate, which she had been able to do between June 28 and July 1. [The AZNO] told the Member that it was her responsibility as acting NIC to report this loss within 24 hours as per the policy, and that it was not the Member’s responsibility to investigate. The Member was told in a subsequent conversation that only she was to carry the keys and that there was to be no further use of narcotics other than Tylenol #2s and Tylenol #3s. Any dispensing of these medications required two nurses. [The AZNO] testified that the Member told her that she did not want to be disturbed by the oncall nurse if the oncall nurse needed the keys. The Member was then offered oncall pay when she was required to carry the keys when she was scheduled to be off duty.

A conference call was held with [the pharmacist], [ ] (a consulting physician for the [Nursing Station]), and three [Nursing Station] nurses, including the Member. Nurses, including the Member, voiced concerns that clients were not able to receive appropriate treatment for pain control with the then existing restrictions. A new action plan was formulated, which included:

• a nurse named [ ] who was not present at the station during the loss would carry the narcotic keys in the day;

• the nurse on call would hold the keys in the evening and night;

• nurses would sign for receipt of the keys;

• narcotic counts were to be done every morning and evening; and

• two nurses were to dispense and sign for narcotics given.

[The AZNO] testified that she received a call from [the pharmacist] stating that he had received a call from the Member demanding that narcotics be sent to the [Nursing Station]. [The AZNO] testified that she felt that the nurses did not appreciate the risks that clients may have been placed in as a result of not receiving the appropriate medications. The nurses seemed only to be concerned that narcotics be available. [The pharmacist] sent a letter to the [Nursing Station] with interim changes. These included:

• narcotics counts were to be done twice a day;

• minimal stock to be kept;

• keys are to be kept with one nurse on each shift;

• narcotics could only be dispensed when two nurses were present;

• any dispensing of Demerol, Morphine, Tylenol #2 or Tylenol #3 required a physicians order; and

• narcotics register sheets were to be faxed to the zone office weekly.

[The AZNO] spoke to the Member after this letter was issued. The Member was distressed with the restrictions and indicated that she would not follow the directions given.

[The AZNO] received a report from [the security expert] who stated that during his visit to the [Nursing Station] he noted that the narcotic keys were left in the staircase unattended and that the Member had not taken the security of the pharmacy seriously.

[The AZNO] called the Member, who confirmed that she had left the keys in the staircase outside the door so she would not have to get up in the morning (and therefore not disturb her sleep) before she had to return to work at 1000 hours.

[The AZNO] testified she was extremely frustrated and that she told the Member this was unacceptable.

[RN B] testified the Member orientated her to the [Nursing Station] without advising her of any special procedures or circumstances. While working at the [Nursing Station] with the Member, she noted that on many occasions, the narcotic keys were left out unattended. She stated that the Member would leave the narcotic keys in the staircase outside the apartment door.

[RN B] testified that when she was putting away a new stock of Morphine that had been received at the [Nursing Station] on Friday night June 21, 2002, she noted that the necks of the vials in the old stock looked like they had been opened and had been glued back on. The next morning she showed the vials to another nurse, [RN C]. Both concluded that the vials had been tampered with. The Member had been sick with the flu, so they waited until Sunday or early Monday to tell the Member. Upon notification, the Member told them she would look after this issue. The witness assumed this meant contacting the ZNO and initiating a report. On June 25, the Member asked [RN B] to complete an occurrence report regarding the tampering. She had dated the report June 25. The Member asked her to change the date to June 21, which she did. [RN B] also testified that the Member was upset with the new two-nurse rule for drawing up, giving and wasting narcotics, stating she was not going to comply with this rule.

[RN C] has been an RN since 1984. During her career, she has provided care in a hospital, a women’s shelter and a home care setting. In 2002, she began working with [the Branch]. She testified that in either March or April 2002, she began working at the [Nursing Station]. The Member was the acting NIC but was on vacation when she arrived there. She testified that the acting NIC, [ ] told her that the narcotic keys were kept in the staircase for the morning nurse to pick up. She stated she did not think it was appropriate but participated in this practice as that was the way things were done there. This practice continued when the Member returned back from vacation.

[RN C] testified that [RN B] had alerted her to concerns regarding the narcotics stock on June 21. She testified that they reported this finding to the Member on the night of Sunday, June 23. The Member responded by saying “Oh no, not again”. [RN C] did not understand what she meant by this, as she was not aware of the previous thefts. At the Members request, she completed an occurrence report on June 25, expecting it to be sent to the ZNO immediately.

[The pharmacist] testified that on July 10, 2002 he received a call from a pharmacy located in [another location]. The pharmacist voiced concerns about an order placed by the [Nursing Station] for 200 Tylenol #1 tablets and 100 Gravol tablets. This request was highly irregular, as local pharmacies do not ship medications to nursing stations. He advised the pharmacist not to fill this request.

[The pharmacist] told the panel that he worked at the [the hospital] until 2003. He reported there have not been any pharmacy concerns with the [Nursing Station] since the Member left.

[The AZNO] testified that on July 11, 2002, she became aware that a small stock of narcotics sent to the [Nursing Station] were found to contain ampoules that were crushed. There was a timely report relating to this incident.

During [the Regional Nursing Officer’s] visit to the [Nursing Station] in August 2002 with [the ZNO], an audit of a number of client charts was conducted. During this audit, narcotic administration and documentation were reviewed. The narcotics register and client log sheet were also cross-audited.

[The Regional Nursing Officer] and [the ZNO] testified conclusions reached as a result of this audit included:

• there were a large number of narcotics administered to the relatively small population served by the station;

• a large number of narcotics administered were given by the Member;

• clients received large doses with repeated doses in the same day;

• counts were sporadic, sometimes with only one nurse present; and

• narcotics indicated as having been given on the drug register were either poorly recorded or not recorded at all in clients’ charts.

[The expert witness] testified that a nursing station is governed by the same standards of practice as other locations that store narcotics. These standards are important, as narcotics are potentially very dangerous and addictive and are therefore strictly regulated. Both government rules and the standards of practice for various medical professions require that access to narcotics be strictly controlled. In a remote nursing station in the north, the responsibility for maintaining control of narcotics rests with all nurses, but in particular with the NIC. Pharmacists in charge of dispensing for nursing stations delegate the responsibility for dispensing to nurses employed by [the Branch] working in isolated areas. These responsibilities are delegated with a set of standards, which the nurse must follow which include:

• narcotics must be kept in a double locked cupboard (2 different locks with 2 different keys);

• the double locked cupboard must be located in a medication room with a locked door;

• both the double locked cupboard and the door to the room must be kept closed and locked except when the nurse is accessing drugs inside;

• the on duty nurse or the nurse on-call would carry the keys for the narcotic cupboard;

• narcotic should be monitored through regular narcotic counts by two nurses; and

• narcotic counts should be done when nurses enter and leave a station.

The standards would not be met if the keys were left unattended. This might allow unauthorized access to the narcotics.

In circumstances where there have been incidents of missing narcotics, it is even more important that the nurse on-call maintain tight control over the keys and that the NIC set up, improve and vigilantly monitor systems to ensure that the narcotics are secure.

The frequency of narcotic counts depends on the activity at each station. In a quieter station, a once per week count is sufficient. In a busier station or where concerns have been raised regarding missing narcotics, daily counts would be required. The NIC is responsible for ensuring that counts are done regularly and that they are accurate.

[The expert witness] was asked to assume a set of facts including the following:

• on May 14, 2001, the nursing staff reported a loss or theft of drugs including narcotics from the station. The theft was detected when the Member and another nurse conducted a routine count. There were no signs of forced entry or missing keys. The lock was not damaged;

• a new stock of narcotics was received in the station on May 23. On May 25, the nursing staff reported another loss of drugs, including narcotics. The Member and another nurse found this loss when a count was conducted. There were no signs of forced entry, the keys were not missing and the lock was not damaged;

• two weeks later on June 6, during a count done by the Member and another nurse, it was noted that there had been a further loss of drugs, including narcotics;

• again there were no signs of forced entry and the lock on the cupboard was not damaged; and

• all three thefts were all reported by the Acting NIC (not the Member) to HC [Health Canada] on the date of discovery. The thefts were never solved.

The following measures were taken at the station to improve security:

• a high security lock using a key that could not be duplicated was installed on the narcotics cupboard,;

• locks were changed on the external doors and the medication room;

• a night security guard was put on duty; and

• video camera surveillance was installed.

After the Member became NIC she reported that:

• a theft of narcotics had occurred on March 24, 2002;

• she had conducted a count of Demerol and Morphine on that date without a witness;

• the medication room and the narcotics cupboard doors were found open with all the medications missing;

• the security system had been turned off;

• one external door to the station was unlocked;

• no signs of forced entry to the building or the narcotics cupboard were found; and

• the theft investigated by the local police remained unsolved.

On the evening of Friday, June 21, 2002, two other nurses at the station noted that several vials of Demerol and Morphine appeared to have been tampered with. They reported this information to the Member as NIC on Sunday June 23. The Member:

• asked each nurse to fill out an occurrence report on Tuesday June 25;

• removed the suspicious looking vials from the central supply on or about Friday June 28; and

• did not submit a formal report about the tampered vials to the ZNO or pharmacy until July 2.

The local police investigated this incident but were unable to solve it.

During an [agency] inquiry into the thefts and tampering, the Member admitted that:

• she refused to do more frequent or regular counts because they were too long and too hard; and

• when she was going off duty at night she would hang the medication room and narcotic cupboard keys unattended on the stair post and she continued to do so even after the June 2002 incident.

According to the narcotics policy in force at the station, the NIC is responsible for the narcotic cupboard keys. After hours, the keys are to be carried by the nurse on-call.

Even after there had been break and enter at the [Nursing Station] and theft of narcotics, the Member continued to leave the medication room door open and to leave the keys on the stair post.

[The expert witness] testified that in her opinion, in these circumstances the nurse did not meet the standards of practice of the profession. Leaving the keys unattended is unacceptable and the acting NIC further fell below the standards when the acting NIC became aware that there had been repeated thefts with no signs of forced entry. The acting NIC has a duty to ensure increased vigilance in narcotics control and to lead by example. Narcotics counts performed by two nurses ought to become more regular and frequent after an unexplained incident of loss or theft.

[The expert witness] testified that in her opinion, this behaviour would be regarded by members of profession as disgraceful, dishonourable and unprofessional.

Final Submissions

Final Submissions

In her final submissions, College Counsel reviewed the evidence supporting the allegations.

Counsel then requested that the panel not to make a finding of professional misconduct in relation to allegations 1(b) (i) and (v) in that these referred to first doses of narcotics. Technically, the Member was allowed to give a first dose of a narcotic without an order under [the Branch’s] Nurses’ Drug Classification System Guidelines for Primary Care, Class “D”. Counsel submitted that [the ZNO’s] evidence demonstrated that these doses were given when the situation was not an emergency. In [the expert witness’s] opinion, the Member should have called a physician. Counsel submitted that the evidence relating to allegation 1(b) (i) and (v) is not clear, cogent and convincing.

College Counsel also requested that the panel not to make a finding in relation to allegation 2(b). The Member failed to obtain an order or contact a physician therefore fell below the standards of practice. However, there was no evidence provided that the Member failed to record contact with a physician as alleged in allegation 2(b).

Counsel submitted that the Member knowingly contravened the standards of practice, failed to keep records as required and that all of her conduct would be considered by members of the profession to be disgraceful, dishonourable and unprofessional. The evidence presented is clear, cogent and convincing in accordance with the Bernstein decision.

Counsel also stated that the College was not alleging the Member was responsible for theft, misappropriation or losses of narcotics at the [Nursing Station]. Instead, the College was alleging the Member blatantly and knowingly had disregard for the standards of practice of the profession and the employer’s policies, and had therefore facilitated the losses of narcotics.

Counsel suggested that the panel make findings of professional misconduct for the remaining allegations.

As the Member was neither present nor represented, she provided no evidence or submissions to contradict the evidence and submissions presented by College Counsel.

Decision

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(a), 1(b) (ii), (iii), (iv), (vi), 1(c,) 1(d), 2(a), 2(c), 2(d) and 3(a) of the Notice of Hearing. Specifically, the panel finds that the Member:

• failed to meet the standards of practice of the profession and failed to keep records as required, in that the Member wasted narcotics without a witness;

• failed to meet the standards of practice of the profession and failed to keep records as required, in that the Member administered a narcotics to clients without contacting a physician or obtaining a physician’s order;

• failed to meet the standards of practice of the profession and failed to keep records as required, in that the Member failed to properly record the administration or disposal of narcotics; and

• failed to meet the standards of practice of the profession, failed to keep records as required and engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, in that the Member failed to maintain appropriate systems for the control, storage, access, security and/or monitoring of narcotics within the Nursing Station between May, 2001 and June, 2002.

The panel did not make findings of professional misconduct relating to allegations 1(b) (i) and (v) and 2 (b).

Reasons for Decision

Reasons for Decision

Issue #1 Wasting narcotics without a witness and failing to have a witness co-sign the narcotics register.

Issue #1: Wasting narcotics without a witness

The testimony of [the Regional Nursing Officer], [RN A] and [the pharmacist] clearly demonstrated to the panel what standards the Member was required and expected to maintain regarding the administration and wastage of narcotics. These expectations were reviewed with the Member during her orientation when she was hired. Additionally, she had access to documentation at the [Nursing Station] if she was unsure of the appropriate standards of practice. Even after being cautioned that her practice did not meet the standards of practice, she continued to allow her practice to fall below the standards.

[The ZNO’s] testimony specifically demonstrated the Member’s violation of the standards in allegations 1(a) (failure to maintain standards of practice) and 2(a) (failure to keep records as required). The panel was able to view copies of the narcotics registers as [the ZNO] reviewed each allegation. In each case, narcotics were dispensed in partial doses without having the remaining wastage witnessed and co-signed.

On a number of occasions, the Member told witnesses of her disagreement with policy, procedure and the standards. The Member told [the security expert] she was reluctant to follow policy and procedures including obtaining a witness to co-sign wastage of narcotics. She told him that doing so was a waste of time, inconvenient and a practice not suitable for a nursing station.

The Member was given an opportunity to explain how the errors and omissions arose to [the Regional Nursing Officer] and [the ZNO] when they visited the station to investigate. The Member offered no reasonable explanations.

The testimony of [the expert witness] demonstrated to the panel that indeed the Member had failed to meet the standards of practice. The panel accepted the expert’s opinion testimony.

By not attending the hearing or sending representation, the Member offered no evidence or submissions for the panel to consider.

Issue #2 Administration of a narcotic without a physician’s order, without contacting a physician, or recording contact with a physician in client’s records.

Issue #2: Administration of a narcotic without a physician's order

The testimony of [the Regional Nursing Officer], [RN A] and [the pharmacist] provided a basis for the panel to understand when and under what circumstances narcotics could be administered without a physician’s order.

The Member was provided with this information in her orientation. She also had resources available at the station to which she could refer if she was unsure when she had the authority to dispense narcotics without an order.

[The ZNO] reviewed copies of client charts listed in allegations 1(b) and 2(b) as well as copies of the narcotics registers. The panel was able to view these copies and saw that on four occasions, the Member documented that she administered a second or third dose of narcotic without a physician’s order or without contacting a physician.

Given the opportunity to explain, the Member offered no reasonable explanation why second and third doses of narcotics were administered without a physician’s order or contacting a physician.

[The expert witness]’s testimony was clear that given the circumstances provided in the assumed set of facts that mirrored the facts of this case, the Member would have failed to meet the standards of practice. The panel accepted this expert’s opinion.

By not attending the hearing or sending representation, the Member offered no evidence or submissions for the panel to consider.

The panel agreed with College Counsel’s submission that the evidence relating to allegation 1(b) (i) and (v) was not clear, cogent and convincing. In addition, there was no evidence that the Member failed to record contact with a physician as alleged in allegation 2(b). Therefore the panel did not make findings of professional misconduct relating to allegations 1(b) (i) and (v) and 2(b).

Issue #3 Removing narcotics from the nursing station supply and failing to properly record the administration or disposal of these narcotics.

Issue #3: Removing narcotics from the nursing station supply

As in Issue # 1, the testimony of [the Regional Nursing Officer], [RN A] and [the pharmacist] clearly demonstrated to the panel the standards that the Member was required and expected to maintain when removing narcotics from the nursing station supply, and recording the administration or disposal of narcotics. Expectations were reviewed with the Member during her orientation when hired. Additionally, she had access to documentation at the [Nursing Station] if she was unsure of the applicable standards.

[The ZNO] reviewed each of the allegations enumerated in paragraphs 1(c) and 2(c) of the Notice of Hearing, cross-referencing client charts and the drug register. The panel was able to view copies of the narcotics registers and client charts.

For each allegation listed, the panel concluded that the amount of narcotic dispensed by the Member did not match with the amount of narcotic administered. In each allegation there was an amount of narcotic unaccounted for.

The panel accepted the expert opinion evidence of [the expert witness], concluding that the Member failed to meet the standards of practice.

By not attending the hearing or sending representation, The Member offered no evidence or submissions for the panel to consider.

Issue #4 Failing to maintain appropriate systems for control, storage, access, security and monitoring of narcotics within the nursing station.

Issue #4: Failing to maintain appropriate systems

The testimony of [the Regional Nursing Officer] and [the pharmacist] provided the panel with a clear understanding of the responsibilities of the NIC relating to the control, storage, access, and security and monitoring issues pertaining to narcotics in the [Nursing Station].

Based on testimony provided by numerous witnesses, the panel concluded that the Member, as acting NIC, blatantly disregarded these responsibilities. Even after thefts had occurred, the Member continued to disregard policy, including the policy that required the narcotic cupboard keys to be kept with a nurse at all times. The Member left the keys hanging unattended, on a staircase post outside the apartment door.

The Member voiced reluctance to [the security expert] about following procedure. The Member told [RN B] she was not going to follow the new two-nurse rule for dispensing of narcotics. The Member demonstrated disregard for the losses of narcotics by telling [the pharmacist] that “a big deal was being made”. In conversation with [the AZNO] regarding the narcotics thefts, the Member indicated she did not intend to follow direction given.

The panel concluded the Member demonstrated contempt for process by not immediately reporting the loss of narcotics on June 21, 2001. The Member had an opportunity to tell [the AZNO] about this when she spoke to her in a telephone conversation on June 26 and 27. But the Member chose not to do so.

The Member facilitated the theft of narcotics from the [Nursing Station] by not accepting and implementing the changes initiated to prevent further losses. As acting NIC, the Member showed lack of leadership to the staff at the [Nursing Station] by not ensuring that all policies and procedures were followed in order to prevent further loss of narcotics and controlled substances.

The panel accepted the expert testimony of [the expert witness] in that the Member’s practice fell below the standards of practice of the nursing profession. The panel also concluded that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional. By not attending the hearing or sending representation, the Member offered no evidence or submissions for the panel to consider.

Credibility

Credibility

[The Regional Nursing Officer] as Regional Nursing Officer with [the Branch] offered testimony relating to the practice expectations for nurses working with [the Branch]. He conveyed broad knowledge of the scope of practice for nurses working with [the Branch]. In addition, he participated in an on-site investigation at the [Nursing Station], having opportunity to directly observe and investigate. [The Regional Nursing Officer’s] testimony was clear and he had an excellent recollection of events. [The Regional Nursing Officer’s] testimony was reasonable and consistent with the testimony of other witnesses. The panel accepted [the Regional Nursing Officer] as a credible witness.

[RN A] was the AZNO who orientated the Member to her position with [the Branch]. The witness conveyed to the panel an extensive knowledge of the standards of practise and practice expectations for nurses working with [the Branch]. Her testimony was believed to be honest with good recollection of events. She readily indicated when she could not directly recall information requested. [RN A] demonstrated no interest in the outcome of the hearing. Her testimony was consistent with the testimony of other witnesses. The panel found [RN A] to be a credible witness.

[The pharmacist] provided testimony that demonstrated a conscientious effort to try to rectify the issues at the [Nursing Station]. He had an excellent recollection of events that was supported by documentation written at or near the time of the events. His testimony was reasonable and consistent with testimony of other witnesses. The panel believed that [the pharmacist] had no interest in outcome of the hearing and found that he was honest in giving his testimony.

[The security expert] a security expert who conducted an investigation of the [Nursing Station] for [the agency]. He provided precise, clear testimony. His testimony was supported by his own written documentation from his investigation. The panel found him to be very believable and not to have any interest in outcome of this case. [The security expert’s] testimony was consistent with the testimony of other witnesses. [The security expert] was considered to be a credible witness by the panel.

[RN B] was a nurse who worked with the Member at the [Nursing Station]. Her testimony was believed to be honest by the panel. She was able to provide direct testimony regarding the narcotics loss of June 21, 2002 supported by the occurrence report she completed. The witness was able to testify as to the Member’s response to the loss. [RN B’s] testimony was mainly consistent with the testimony of [RN C], the exception being that her testimony was inconsistent with that of [RN C] regarding when[RN B] notified [RN C] and the Member regarding the drug loss of June 21. In each case, [RN B’s] recollection was that this occurred within a day or two of when [RN C] recalled becoming aware of the drug loss and when the Member was notified about it. The panel did not feel that this inconsistency with [RN C’s] evidence enough to discredit [RN B’s] testimony, especially when the panel considered that four years have passed since this occurred. [RN B] was able to report what she saw and heard. The panel found this witness to be credible.

[The ZNO] accompanied [the Regional Nursing Officer] to the [Nursing Station] to investigate the loss of narcotics. [The ZNO] participated in an on-site investigation at the [Nursing Station], having opportunity to directly observe and investigate and then report those findings to the panel. The witness testified with easy recall and referred to records made at or near the time of the visit. The panel believed her testimony to be honest. She demonstrated a good memory of the events. If unsure of an answer, she readily admitted this fact. Her testimony was supported by the testimony of other witnesses. The panel found [the ZNO] to be a credible witness.

[The expert witness] was the expert witness called by College Counsel. Keeping in mind her contact with the Member, the panel applied appropriate weight to her testimony. Her testimony was clear regarding the standards of practice, given the facts she was asked to consider. Other witnesses supported her opinions. The panel found her to be a credible witness.

[The information director’s] testimony was limited to the practices regarding documentation of nurse/physician consultations. She testified clearly as to the procedure that a nurse or physician was expected to use when documenting a consultation and orders. Other witnesses supported her testimony. The panel found the testimony of [the information director] to be credible.

[The AZNO] was the acting AZNO in June 2002. The witness testified regarding her telephone conversations with the Member. [The AZNO’s] testimony was supported by notes of complete and accurate observations made shortly after the conversations. She had a good recollection of events. She easily provided clear testimony indicating when she was unsure of an answer. She reported what she heard and saw. [The AZNO’s] testimony was consistent with testimony of other witnesses. The witness had no interest in outcome. The panel found [the AZNO] to be credible.

[RN C] was a nurse who worked with the Member at the [Nursing Station]. The panel found her testimony to be honest and believable. She disclosed in her testimony that although she did not think it was appropriate to keep the narcotic keys in the staircase, she participated in this practice because it was the way things were done. Her testimony was accurate and complete and reflected [RN C]’s opportunity to directly observe the Member’s practice. The witness’s testimony was largely supported by the testimony of [RN B] except for the inconsistency regarding when she became aware of the loss of June 21 and when it was reported to the Member. Again the panel did not believe that this inconsistency was sufficiently important to discredit the testimony of this witness, taking into account that four years have passed. The occurrence report she completed supported her testimony. The panel found [RN C] to be a credible witness.

Evidence and Submission as to Penalty

Evidence and Submission as to Penalty

College Counsel called [the Prosecution Administrator] as a witness. [The Prosecution Administrator] is an employee of the College as a Prosecution Administrator. [The Prosecution Administrator] testified that she is familiar with the McClinton case. She testified that the Member has been registered with the College since 1972 and that since May 1, 2006 the Member’s registration has been under suspension for non-payment of fees. In addition, the Member last paid fees in December 2002. Therefore if the Member paid her fees, her certificate of registration would be renewed. [The Prosecution Administrator] had been in contact with the Member. She was found to be [out of Ontario] and currently registered as an RN [there].

The Member told [the Prosecution Administrator] that her main residence is in [ ]. [The Prosecution Administrator] testified that correspondence had been sent to this address. The Member requested that the hearing be conducted in [ ]. The hearing date was scheduled around the Member’s availability (vacation) so that she could attend the hearing.

Although [the Prosecution Administrator] could be believed to have an interest in the outcome as a member of the prosecution team, the panel did not find this to be the case. The panel had no difficulty in accepting [the Prosecution Administrator’s] testimony.

When the Member did not attend at the start of the hearing, messages were left for her at her [ ] residence, with no response.

College Counsel submitted that penalty is at the discretion of the panel. It should be appropriate, given the Member’s conduct and panel’s findings. Principles of penalty incorporate remediation where possible. Other goals of penalty include:

• general deterrence (sending a message to the College’s membership that similar misconduct will not be tolerated);

• specific deterrence (sending a message to the Member that in the future, she should not engage in similar misconduct); and

• protection of the public, this being the overriding concern.

Under subsection 51(2) of the Health Professions Procedural Code (“Code”), a panel may order one or a combination of the following penalties:

• revocation of the Member’s certificate of registration;

• suspension of the Member’s certificate of registration;

• imposition of terms, conditions and limitations on the Member’s certificate of registration;

• oral reprimand; and/or

• a fine of up to $35,000.

Under subsection 53(1) of the Code, a panel may order the Member to pay the College’s legal cost and expenses, including investigation and hearing costs.

College Counsel submitted that the panel must decide the appropriate range of penalty. Aggravating and mitigating factors are to be considered when deciding penalty.

College Counsel requested revocation of the Member’s certificate of registration. In making this submission, College Counsel pointed out that in other cases involving narcotic irregularities and documentation errors where suspension of a members’ certificates of registration have been ordered (with terms including monitoring and supervision), the members have co-operated with the College, showing understanding of their errors and omissions. The members in those cases indicated an interest in remediation such as courses in documentation and ethics.

Other cases have less to do with the type of professional misconduct and more to do with the members’ ability or willingness to be governed. Members’ certificates of registration have been revoked even when the misconduct was, in relative terms, not very serious but where those members did not demonstrate willingness to:

• attend the hearing;

• explain the circumstances;

• remediate;

• express remorse for their conduct; and

• be governed by this self-regulating profession.

Provincial legislation allows for self-regulation and provides a basis for which both members of the profession and the public will govern each nurse.

The Member failed to attend the hearing, therefore has not demonstrated a willingness to be governed. The Member’s right to continue practising as an RN should be forfeited.

The Member did not demonstrate a willingness to be governed by her employer, [ ]. The panel has no idea what [the agency] would have done as the Member quit before the employers had the opportunity to deal with its concerns.

Specifically, considering the professional misconduct the Member has been found to have committed regarding documentation and administration errors, the panel makes two observations:

• the documentation and administration errors were serious in nature; and

• numerous occurrences continued even though the Member had been cautioned frequently.

All of the evidence shows that the Member knew that her practices were deficient, was reminded of the applicable standards and still continued to fail to meet the standards of practice.

This Member should no longer be able to practice nursing in Ontario should she decide to pay her fees to the College. The panel should order revocation of her certificate. The risks are apparent if the panel does not order revocation. The Member may return to Ontario, placing clients at risk related to the administration of narcotics.

The panel has the jurisdiction under subsection 53(1) of the Code to order costs. Discipline panels of each of the 21 colleges governed by the Regulated Health Professions Act usually limit the application of this to cases where the College has been put to added or unusual expenses. It is for the panel to decide if this is an appropriate case to order costs and to decide how much.

The Member requested the hearing be held in [ ] to accommodate her needs. Generally, hearings are held in Toronto. [ ] was not convenient for the College, the panel or the witnesses who had to travel to [ ] from [Northern Ontario].

The Member requested the hearing be held in [ ], indicating that she would be defending herself. The hearing was booked around the Member’s vacation time, as she indicated she usually worked long stretches. This hearing would have been held during the Fall of 2005 had it not been for the Member’s request to delay it until May 2006, when she would be available. As it turns out, this was an unwarranted delay of justice for the public. Had the hearing been held in the Fall of 2005 and if a panel had ordered revocation of her certificate of registration, the revocation would have been ordered 6 months earlier than the revocation that this panel should direct. In addition, the College would have notified the [other] board of the decision and penalty.

The Member led the College to believe that she would be attending and participating, and therefore the College expected her to be here when the hearing began. The Member did not show courtesy when she failed to advise the College that she no longer intended to attend the hearing.

Hearing costs provide for some restitution of money spent. Costs are not a penalty. A fine would be a penalty. Members of the College pay for costs of hearings through annual fees. In this case, this Member should own some responsibility regarding the additional costs related to holding the hearing in Ottawa.

The Notice of Hearing states costs can be ordered for legal, investigation and hearing costs and expenses. The College is requesting costs for legal costs and expenses. These expenses include fees to College lawyers for disclosure, pre-hearing, preparation of witnesses, preparation of argument and attendance at the hearing. As of May 3, 2006 the costs were greater than $55,000.00. In civil litigation, costs are usually awarded on the basis of 50% – 60 % of the actual costs.

The College is asking for $10,000.00 for costs. This is believed to be a meaningful contribution and what the College believes the Member is able to pay. College Counsel submitted that because the Member provided no defence, the hearing was shorter than expected and there were no frivolous motion presented.

Penalty Decision

Penalty Decision

The panel carefully deliberated and orders:

1. The Executive Director to revoke the Members certificate of registration effective immediately.

2. The Member to pay a fine of $10,000.00 payable to the Minister of Finance of Ontario.

In addition, the Member is ordered to pay $10,000.00 to the College for legal costs and expenses.

Reasons for Penalty Decision

Reasons for Penalty Decision

The panel wishes is sending a strong message to the profession and the public that we will not tolerate disregard of the standards of practice. Each member has a responsibility to be governed through self-regulation. The public must be protected from this Member and the risk she would pose if allowed to continue to practice as a Registered Nurse.

I, Lori McInerney, RN, 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:

Dennis Curry, RN

David Bishop, Public Member

Bill Weichel, Public Member