College of Nurses of Ontario v. Cocchio, 2006 ONCNO 81741

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Glenda Hayward, RN Chairperson Karen Breen-Reid, RN Member Catherine Genereux Public Member David Bishop Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MEGAN SHORTREED for College of Nurses of Ontario

• and -

PETER COCCHIO Registration No. 8817553 DAVID MATHESON for Peter Cocchio

BRIAN GOVER, Independent Legal Counsel

Heard: January 16, 2006

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on January 16, 2006 at the College of Nurses of Ontario (the “College”) at Toronto. The panel was advised that Cheryl McMaster, RPN, who had been assigned to the panel, was unable to attend due to weather conditions. Independent Legal Counsel advised the panel that it had a quorum and the hearing proceeded.

The Allegations

The panel was advised that certain allegations in the Notice of Hearing dated April 18, 2002 (Exhibit #1) had been withdrawn. On November 17, 2004, allegations 4a, 6a, and 7a were withdrawn by the Executive Committee (Exhibit #2). On February 17, 2005, a Discipline panel ordered the withdrawal of allegations 1 and 2 (Exhibit #3). In addition, counsel for the College advised the panel that the College was not calling any evidence with respect to the allegations set out in paragraphs 5 a, b, c; 6 b; 7 b, c, d, e, g.

The hearing proceeded on the remaining allegations against Peter Cocchio (the “Member”).

1. You have committed an act of professional misconduct as provided by subsection 85(3)(c) of the Health Disciplines Act, R.S.O. 1990, c. H.4, as amended, and defined in subsection 21(b) of Ontario Regulation 549, R.R.O. 1990, in that while working as a Registered Nurse at [the Hospital], you failed to maintain the standards of practice of the profession as follows:

a) on or about October 9, 1993, you bathed [the client] in cold water because you were angry with [client A]; and/or

2. You have committed an act of professional misconduct as provided by subsection 85(3)(c) of the Health Disciplines Act, R.S.O. 1990, c. H.4, as amended, and defined in subsection 21(n) of Ontario Regulation 549, R.R.O. 1990, in that while working as a Registered Nurse at [the Hospital], you engaged in conduct or performed an act, relevant to the performance of nursing services that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional as follows:

a) on or about October 9, 1993, you bathed [client A] in cold water because you were angry with [client A]; and/or

b) on or about October 9, 1993, you made inappropriate comments to another nurse about [client A]; 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(1) of Ontario Regulation 799/93, in that while working as a Registered Nurse at [the Hospital], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:

a) in or about January, February or March, 1998, you prepared to bathe [client B] in cold water because you were angry with [client B]; and/or

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while working as a Registered Nurse at [the Hospital], 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 as follows:

a) in or about January, February or March, 1998, you prepared to bathe [client B] in cold water because you were angry with [client B];

Member’s Plea

Peter Cocchio admitted the allegations set out in paragraphs numbered 3a, 4b, 4c, 5d, and 7f. The panel conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal. A signed plea inquiry was entered as Exhibit #4.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts (Exhibit #5) which provided as follows:

THE MEMBER

1. Peter Cocchio, (the “Member”) has been registered as a Registered Nurse with the College of Nurses of Ontario since 1988. His certificate of registration was suspended from September 25, 2001 until November 17, 2004, as a result of the allegations set out in the Notice of Hearing dated April 18, 2002. The Member’s certificate of registration was reinstated on June 30, 2005.
2. The Member was employed by [the Hospital] from June 18, 1990 until December 20, 2000, when he was terminated. Throughout his employment at the Hospital, he was assigned to [the Unit]. He was initially a part-time member of staff, but held a temporary full-time position from January 31, 2000 until the date of his termination. The Member worked 12-hour day shifts.

THE UNIT

3. The [Unit] is part of the Hospital’s Cardio-Respiratory Health Service. At the time of the incidents, the unit had approximately 17 beds. The average length of stay for a patient in [the Unit] was 4.4 days, although the actual length of stays ranged from hours to one year. The patient-nurse ratio on the unit was either 1:1 or 2:1.

1993 INCIDENT

4. On October 9, 1993, the Member was assigned to care for [client A] during the day shift. This patient was a 61-year-old depressed [person] who had ingested [a poisonous liquid] that morning. [Client A] was intubated and ventilated, but fully conscious.
5. At the end of his shift, the Member gave a report to the oncoming night shift nurse, [ ]. [The night shift nurse] made a written report of the Member’s conduct to her manager the next day, as follows: In the presence of the patient, the Member said to [the night shift nurse]: “You don’t have to worry about bathing [client A], I did that already. [Client A] was pissing me off so I washed [client A] in cold water.” [The night shift nurse] told the Member that she thought that this was disgusting. The Member responded by saying: “Oh, I don’t care. They piss me off, that’s what they get.” [The night shift nurse] found the Member’s attitude to be very disturbing.
6. The Member does not recall the specifics of what he said to [the night shift nurse], because Hospital management did not raise the issue with him at the time. However, the Member admits that he made inappropriate comments to [the night shift nurse] about bathing the patient in cold water.

1998 INCIDENT

7. Between January and March of 1998, the Member was assigned to care for [client B]. Another nurse, [nurse B], came into the patient’s room to help the Member give the patient a bed bath. When [nurse B] put her hand in the wash basin which the Member had prepared, she found that the water was icy cold and advised the Member of this.
8. The Member’s response to [nurse B] indicated that the Member had prepared to bathe the patient in cold water intentionally because he was angry with [client B]. [Nurse B] would testify that she told the Member that this was inappropriate and that she would report him to the College of Nurses if he ever did this again.

STANDARD OF CARE FOR BATHING PATIENTS

9. The College and the Member agree that it is not appropriate to bathe a patient using cold water. Cold water seriously compromises both patient comfort and safety which are fundamental principles underlying bathing technique. Cold water causes chilling and a sudden loss of body heat. The shock and discomfort of cold water can cause client stress and anxiety. It follows that a client’s vital signs may also be altered. Changes in vital signs may have serious implications for a frail and medically unstable client.

ADMISSIONS

10. The College leads no evidence with respect to allegations 5(a), 5(b), 5(c), 6(b), 7(b), 7(c), 7(d), 7(e) or 7(g) in the Notice of Hearing.
11. The Member acknowledges that he committed acts of professional misconduct as set out in allegations 3(a) and 5(d) of the Notice of Hearing, in that he failed to maintain the standards of practice of the profession as follows:

a) on or about October 9, 1993, he bathed [client A] in cold water because he was angry with [client A]; and

b) in or about January, February or March, 1998, he prepared to bathe [client B] in cold water because he was angry with [client B].

12. The Member acknowledges that he committed acts of professional misconduct as set out in allegations 4(b), 4(c) and 7(f) of the Notice of Hearing, in that he 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 unprofessional, as follows:

a) on or about October 9, 1993, he bathed [client A] in cold water because he was angry with [client A];

b) on or about October 9, 1993, he made inappropriate comments to another nurse about [client A]; and

c) in or about January, February or March, 1998, he prepared to bathe [client B] in cold water because he was angry with [client B].

Decision

The panel considered the Agreed Statement of Fact and finds that the facts support a finding of professional misconduct. The Member failed to meet the standards of practice and performed acts that would be regarded as unprofessional by members of the profession. In particular, the panel finds that the Member committed acts of professional misconduct as alleged in the Notice of Hearing in that he:

• bathed a patient in cold water because he was angry with [client A];

• made inappropriate comments about this patient to another nurse; and

• prepared to bathe [client B] in cold water because he was angry with [client B].

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty (Exhibit #6) had been agreed upon. The Joint Submission as to Penalty provided as follows:

Joint Submission on Penalty

Peter Cocchio (the “Member”) and the College of Nurses of Ontario respectfully submit that, in view of the circumstances set out in the Agreed Statement of Fact and the Member’s admissions of professional misconduct, the Panel of the Discipline Committee (“the Panel”) should make an Order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded, at a date to be arranged, but in any event within three months of the date of this Order.
2. Directing the Executive Director to suspend the Member's Certificate of Registration for three months.
3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member's Certificate of Registration:

a) Before returning to the practice of nursing, the Member shall enroll in and successfully complete a course in patient focussed care acceptable to the Director of Investigations & Hearings (the “Director”), at the Member’s expense, and shall provide to the Director proof of enrolment and completion of such course in a form satisfactory to the Director; and

b) Before returning to the practice of nursing, the Member shall purchase and complete the College’s self-directed abuse prevention programme, “One is One Too Many”, and meet with a College Practice Consultant to review his understanding of the programme and to discuss the incidents from which the findings of professional misconduct arose.

Counsel for the College submitted that the penalty should address three objectives. These are remediation, specific deterrence to the Member and general deterrence to the profession. In this instance, the penalty has been tailored to meet these three objectives with a main focus on remediation.

Counsel submitted that the aggravating factors in this case were:

• the serious element to the two incidents;

• in both cases there was a risk or potential risk to the patient;

• the comments showed callous disregard for the client’s wellbeing; and

• the actions were seen as retaliatory in nature.

Counsel for the College further submitted that the mitigating factors to be considered included:

• the Member’s registration was suspended for three years while other allegations related to the Notice of Hearing were being dealt with through criminal court proceedings. The suspension was lifted when the Member was found innocent of all charges;

• the incidents dated from 1993 and 1998 and had not been reported to the College until 2001; and

• the Member had cooperated with the College therefore avoiding a long hearing.

Counsel for the Member agreed with College counsel that the penalty was appropriate in this case. Counsel provided the panel with information related to the criminal charges and subsequent acquittal of the Member. Counsel submitted that the Member had experienced significant financial and stress related issues.

Penalty Decision

The panel accepts the Joint Submission as to Penalty and accordingly orders:

1. The Member to appear before the Panel to be reprimanded, at a date to be arranged, but in any event within three months of the date of this Order.
2. The Executive Director to suspend the Member's Certificate of Registration for three months.
3. The Executive Director to impose the following terms, conditions and limitations on the Member's Certificate of Registration:

a) Before returning to the practice of nursing, the Member shall enrol in and successfully complete a course in patient focussed care acceptable to the Director of Investigations & Hearings (the “Director”), at the Member’s expense, and shall provide to the Director proof of enrolment and completion of such course in a form satisfactory to the Director; and

b) Before returning to the practice of nursing, the Member shall purchase and complete the College’s self-directed abuse prevention programme, “One is One Too Many”, and meet with a College Practice Consultant to review his understanding of the programme and to discuss the incidents from which the findings of professional misconduct arose.

Reason for Penalty

The panel concluded that the proposed penalty is reasonable and in the public interest. It meets the objectives of 1) remediation of the Member’s practice prior to his re-entry into the profession, 2) specific deterrence for the Member, and 3) general deterrence for the profession at large, by sending a message that such behaviour is not to be tolerated. It has been tailored to deal with the specific behaviour exhibited by the Member.

I, GLENDA HAYWARD, RN, sign this Decision and Reasons for the decision as Chairperson of the panel in this matter, and on behalf of the members of the Discipline panel as listed below:

Discipline Committee Chairperson Date

Panel Members:

Karen Breen-Reid, RN

David Bishop, Public Member

Catherine Genereux, Public Member