College of Nurses of Ontario v. Anfossi, 2006 ONCNO 81744

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Lori McInerney, RN Chairperson Kris Guty, RN Member Joanne Furletti, RN Member Linda Bracken Public Member Faira Bari Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO GLYNNIS BURT for College of Nurses of Ontario

• and -

MARY A. ANFOSSI Registration No. 6827646 ROBERT & CAROL STEPHENSON for Mary A. Anfossi CHRIS WIRTH Independent Legal Counsel

Heard: November 6, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on November 6, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

Procedural Issues

The hearing was scheduled for five days as a contested hearing. At 9:00 a.m. when the hearing was convened, the panel was notified that neither Counsel was ready to proceed as negotiations were in progress. After several updates the hearing reconvened at 1:30 p.m., at which time the panel was notified that the hearing would proceed as an uncontested hearing with an Agreed Statement of Facts and a Joint Submission on Penalty.

The Allegations

College counsel informed the panel that allegation #1(c), 1(d), 1(e), and all of allegation #2 as set out in the Notice of Hearing dated September 27, 2006 (the “Notice of Hearing”) were withdrawn. The remaining allegations against Mary Aaltje Anfossi, RN (the “Member”) were as follows:

1. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.1 of Ontario Regulation 799/93, in that on or about July 19, 2003, while you were working as a registered nurse at [the facility], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, in that you:

(a) failed or neglected to assess [the client], a resident of [the facility], at the outset of your shift; and/or

(b) failed or neglected to assess [the client] during the course of your shift.

Member’s Plea

Mary Aaltje Anfossi, RN admitted the allegations set out in paragraphs 1(a) and 1(b) of the Notice of Hearing. The panel received a written plea inquiry and conducted a verbal plea inquiry. The panel was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

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

THE MEMBER

1. The Member, Mary Anfossi, is a registered nurse and has been registered with the College of Nurses of Ontario since 1968.

2. Ms. Anfossi has worked at [the facility] as a registered nurse since November 1987. She initially commenced work on a part-time basis. Ms. Anfossi stopped working at [the facility] in May of 2006.

3. Ms. Anfossi has no prior history of discipline or other complaints at the College of Nurses of Ontario.

4. The incident described in the Agreed Statement of Facts took place at [the facility]. [The facility] is a long-term care facility which at the relevant time was owned and operated by [ ]. [The facility] was and is licensed for 97 beds. At the relevant time, [the facility] had four wings. One of those wings was [wing 1]. [Wing 1] was a locked wing and had 23 beds. The residents on [wing 1] suffered from dementia and Alzheimer’s disease.

5. At the relevant time, the day shift complement on the weekend at [the facility] pertaining to residents on [wing 1] was as follows: one Registered Nurse (“R.N.”); one Registered Practical Nurse (“R.P.N.”); and two Health Care Aides or Personal Support Workers who were specifically assigned to [wing 1]. The R.N. and the R.P.N. were responsible for all of the residents at [the facility]. Thus, Ms. Anfossi was responsible for all of the residents in [the facility] and was the only registered nurse in the facility on July 19, 2003.

6. The responsibilities of the R.N. on a day shift at [the facility] at the relevant time are set out in the attached “Position Description” and “Charge Nurse Responsibilities, Day Shift”, marked as “Exhibits ‘A’ and ‘B’”, respectively. These responsibilities included checking all residents at the beginning of each shift, “especially ones with noted problems first”. If she were to testify, Ms. Anfossi would say that she was not aware of this policy at the relevant time.

7. If [the Director], the Director of Care at [the facility], were to testify, she would say that Ms. Anfossi ought to have been aware of the above documents and requirements. The document entitled “Charge Nurse Responsibilities, Day Shift” was revised in August 2001 and was then discussed at a staff meeting at [the facility]. It is not clear whether Ms. Anfossi attended the staff meeting. It was also posted in the medication room for the review of all staff members.

THE CLIENT

8. [The client] was admitted to [the facility] on or about June 9, 2003. She was admitted to [the facility] because she was no longer able to care for herself, and because she was becoming confused. A few days prior to the incident at issue in this matter, [the client] was transferred to [wing 1] from one of the other wings of [the facility] because she was becoming increasingly confused.

9. At the time of her transfer to [wing 1], [the client] suffered from the following medical conditions: congestive heart failure; chronic obstructive pulmonary disease; hypothyroidism; chronic pain syndrome; anxiety; and depression.

JULY 19, 2003

10. Ms. Anfossi worked the day shift at [the facility] on Saturday, July 19, 2003. Normally, this shift would end at 3:00 p.m. On this date, however, Ms. Anfossi had agreed to work late in order to accommodate the late arrival of her on-coming colleague, [RN A]. No concerns were raised about [the client’s] condition at report when Ms. Anfossi started on July 19, 2003, nor was anything of concern noted on her chart.

11. One of the Health Care Aides who worked on [the wing] during the day on July 19, 2003, was [HCA A]. If [HCA A] were to testify, she would say that at the morning break she advised Ms. Anfossi that she and [HCA B] the other Health Care Aide who was working on [the wing] that day, had had difficulty attaching [the client’s] dentures, and that [HCA B] was with [the client] who was weak and winded. [The client] was always winded.

12. If [HCA B] were to testify, she would say that during the day on July 19, 2003, she advised Ms. Anfossi of [the client’s] blood pressure (in the normal range), that [the client] was very weak and that it had taken two people to get [the client] to the toilet, and that [the client] had not eaten much for breakfast or lunch. At lunch, Ms. Anfossi was told that [the client] took 100cc of her drink and ate a bowl of pudding, which was charted as being good for her.

13. [RPN A] is the Registered Practical Nurse who worked at [the facility] during the day on July 19, 2003. [RPN A] was responsible for medication administration to the residents at [the facility]. If [RPN A] were to testify, she would say that at approximately 10:30 to 11:00 a.m. she advised Ms. Anfossi that [RPN A] did not look well.

14. If Ms. Anfossi were to testify she would state that she does not recall being told about [the client] being in a weakened or unwell condition. She would testify that, while in the dining room [RPN A] overheard her saying that [the client’s] SATs and weight were due that day. [RPN A] responded that she had done [the client’s] SATs that morning. Ms. Anfossi asked why and [RPN A] responded that [the client] was short of breath. [RPN A] advised Ms. Anfossi that O2 SATs were 95-100%, which Ms. Anfossi stated were normal.

15. [ ]. If [the client’s daughter and son-in-law] were to testify, they would say that at approximately 3:30 p.m. they arrived to see [the client]. Upon finding [the client] in her room at [wing 1], [the daughter] was extremely concerned about her mother’s condition, which had changed markedly from the week before. [The daughter] would say that she expressed her concern to Ms. Anfossi at the nursing station, and was directed to speak with someone on [wing 1]. [The daughter] would also say that it was only after [the client’s daughter] spoke with Ms. Anfossi for the second time and had left [the facility] to seek the assistance of her brother in getting help for her mother that anyone went to assess her mother.

16. If Ms. Anfossi were to testify, she would say that [the daughter] first approached her and asked for a nurse. No concern was expressed abut [the client’s] condition at that time. [The daughter] attended a second time with her husband, at which point he advised Ms. Anfossi that [the client] looked “comatosed”. Ms. Anfossi would say that this conversation took place as [RN A] came on shift as the evening registered nurse. Accordingly, [RN A] agreed to go and assess [the client] immediately.

17. [RN A] immediately assessed [the client] and charted a note which was timed 4:00 p.m. If [RN A] were to testify, she would state that [the client] had a decreased level of consciousness but was able to respond to [RN A’s] inquiries. [RN A] nonetheless determined that [the client] should be assessed at hospital. [RN A] immediately telephoned [the client’s] son ([the daughter’s] brother) and obtained consent to send [the client] to hospital.

18. [The client] was sent to hospital on July 19, 2003, following [RN A’s] assessment. [The client] died the following day as a result of congestive heart failure. [The client’s] potassium level was 7.2.

ADMISSIONS

19. If she were to testify, Ms. Anfossi would admit:

a. that she did not see [the client] at anytime over the course of her shift on Saturday, July 19, 2003; and

b. that her failure to see and assess [the client] during her shift on Saturday, July 19, 2003, was a breach of the standards expected of her as a nurse in all the circumstances.

EXPERT OPINION

20. This matter has been reviewed by [the expert], R.N., B.N., B.A., M.Ed. [The expert] obtained her Diploma as a Registered Nurse from the [ ] in 1965, and her Bachelor of Nursing from the University of [ ] in 1987. In the period 1995 to 2005, [the expert] was the Manager of Resident Care at [ ], a long-term care facility in [ ]. In the period 1990-1995, [the expert] was the Nursing Director of [a hospital]. [The expert] was the Nursing Coordinator at the [ ] from 1987 to 1990, and worked as a registered nurse in various capacities and for various employers in the period 1966 to 1987.

21. If [the expert] were to testify she would say that Ms. Anfossi’s failure or neglect to see and assess [the client] in all of the circumstances, namely, where concerns about [the client’s] condition were brought to her attention, then Ms. Anfossi breached the standard of care expected of her. As an R.N. in a long-term care facility – and particularly where she was the only R.N. on duty at the relevant time – the Member is expected to check on all residents (as set out in the facility’s documentation) and to respond promptly to any concerns about patients that are brought to her attention by other staff members, including RPNs, health care aides and personal support workers. It is substandard practice to ignore staff members’ concerns about a resident. Failure to respond to such expressed concerns reveals a failure to work in a collaborative and team fashion, and puts the health of residents at risk.

ADMISSION OF PROFESSIONAL MISCONDUCT

22. The Member admits that she committed acts 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 paragraph 1.1 of Ontario Regulation 799/93, in that on Saturday, July 19, 2003, while employed as a nurse at [the facility], she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that she failed or neglected to see or assess [the client] at any time on July 19, 2003.

23. The College seeks leave of the Discipline Committee to withdraw allegations #1(c), 1(d), 1(e) and #2, as set out in the Notice of Hearing.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct. In particular, the Member failed or neglected to assess [the client] at the outset and during the course of her shift as alleged in paragraphs 1 (a) and (b) in the Notice of Hearing. Additionally, the panel accepts withdrawal of allegations #1 (c), (d), (e) and all of allegation #2 in the Notice of Hearing.

Penalty

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

Ms. Anfossi and the College jointly submit that, in view of the circumstances set out in the Agreed Statement of Facts and Ms. Anfossi’s admission of professional misconduct, the Panel of the Discipline Committee (“the Panel”) should make an Order as follows:

1. Requiring Ms. Anfossi to appear before the Panel today to be reprimanded. Ms. Anfossi hereby waives her right of Appeal;

2. Directing the Executive Director to suspend Ms. Anfossi’s Certificate of Registration for a period of three weeks, said suspension to commence immediately;

3. Directing the Executive Director to impose the following terms, conditions and limitations on Ms. Anfossi’s Certificate of Registration:

a. Requiring Ms. Anfossi, prior to any return to clinical practice as a nurse, to meet with a Practice Consultant of the College of Nurses of Ontario to review and discuss the allegations resulting in the finding of professional misconduct, and to prepare any material specified by the Practice Consultant for that meeting; and

b. Requiring Ms. Anfossi, upon any return to clinical practice as a nurse, and for a period of one year following any return to clinical practice as a nurse, to only practice for an employer or employers who has/have received a copy of the Panel’s Decision and Reasons in this matter, and who agree to write to the Director of the College’s Investigations and Hearing Department within 15 days of the commencement of the Member’s employment confirming receipt of the Decision and Reasons.

Submissions by Counsel Regarding Penalty

Counsel for the College submitted that the proposed penalty provided a general deterrence to members of the profession as a whole (suspension), provided for remediation (meeting with a practice consultant) and served to protect the public interest (imposed conditions and limitations). Counsel for the Member agreed with the submissions made by the College.

The panel then requested submissions from Counsel for the College and the Member with respect to Rule #6 of the College of Nurses of Ontario’s Discipline Committee Rules regarding Late Notification of Case Settlement. Counsel for the College and the Member both submitted that neither party was responsible for the late notification of settlement and, therefore, Rule #6 is inappropriate, that is, the Member should not be required to pay costs associated with the late notification of settlement.

The panel recessed and sought the advice of Independent Legal Counsel. Mr. Wirth advised the panel that given the fact that Counsel for the College had not requested Rule #6 be invoked, and given the lack of jurisdiction the panel has with respect to awarding costs against the College for late notification of settlement, consistent with Section 53 of the Regulated Health Professions Act the panel could not contemplate Rule #6 in the penalty decision.

The advice of Mr. Wirth was then reiterated via telephone conferencing on the record. Counsel for the College and the Member both submitted that they agreed with the advice of Independent Legal Counsel.

Penalty Decision

After deliberating, the panel accepts the Joint Submission on Penalty and accordingly orders:

1. Ms. Anfossi appear before the Panel to be reprimanded.

2. The Executive Director to suspend Ms. Anfossi’s Certificate of Registration for a period of three weeks, said suspension to commence immediately;

3. The Executive Director to impose the following terms, conditions and limitations on Ms. Anfossi’s Certificate of Registration:

a. Requiring Ms. Anfossi, prior to any return to clinical practice as a nurse, to meet with a Practice Consultant of the College of Nurses of Ontario to review and discuss the allegations resulting in the finding of professional misconduct, and to prepare any material specified by the Practice Consultant for that meeting; and

b. Requiring Ms. Anfossi, upon any return to clinical practice as a nurse, and for a period of one year following any return to clinical practice as a nurse, to only practice for an employer or employers who has/have received a copy of the Panel’s Decision and Reasons on this matter, and who agree to write to the Director of the College’s Investigations and Hearing Department within 15 days of the commencement of the Member’s employment confirming receipt of the Decision and Reasons.

Reasons for Penalty Decision

The Panel considered the Joint Submission on Penalty and concluded it is reasonable and in the public interest. The Member has practised for 38 years as a registered nurse with no prior history of discipline or other complaints at the College of Nurses of Ontario. The oral reprimand and the suspension provides for a specific deterrent while the conditions and limitations provide for a general deterrent to Members of the profession as a whole and serves to protect the public interest. Furthermore, the Member agreed to the facts and took responsibility for her actions by agreeing to the penalty.

I, Lori McInerney, 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:

Kris Guty, RN Joanne Furletti, RN Linda Bracken, Public Member Faira Bari, Public Member