College of Nurses of Ontario v. Lois Ann Copley, 2006 ONCNO 81754

PANEL: Deanne Barber, RPN Chairperson Monica Seawright, RPN Member Dawn Norling, RPN Member Faira Bari Public Member Linda Bracken Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO NICK COLEMAN for College of Nurses of Ontario

and -

LOIS ANN COPLEY Registration No. GC20666 NO REPRESENTATION for Lois Ann Copley

BRIAN GOVER Independent Legal Counsel

Heard: April 17, 2006

This matter came on for hearing before a panel of the Discipline Committee on April 17, 2006 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Lois Ann Copley (“the Member”) as stated in the Notice of Hearing dated January 19, 2006 are as follows:

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 as a Registered Practical Nurse at [the nursing home], you contravened a standard of practice of the profession or failed to maintain the standard of practice of the profession with respect to slapping the patient, [Resident A], while attempting to assist him/her from bed on or about October 8, 2004.
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(7) of Ontario Regulation 799/93, in that, while employed as a Registered Practical Nurse at [the nursing home], you abused a patient verbally, physically and/or emotionally with respect to slapping the patient, [Resident A], while attempting to assist him/her from bed on or about October 8, 2004.
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 as a Registered Practical Nurse at [the nursing home], you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to the all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to slapping the patient, [Resident A], while attempting to assist him/her from bed on or about October 8, 2004.

Preliminary Matter

Council for the College advised the panel that two pieces of correspondence had been received with regards to this hearing. The letters raised concerns as to whether this hearing should proceed. The member clearly stated in her letter that she wanted the hearing to proceed, and did not wish to have the hearing postponed. Health issues were raised in the letters. Council for the College made submissions with regards to these issues, Independent Legal Council was consulted and advised the panel. The panel deliberated and carefully considered the submissions, and decided to proceed with the hearing.

Member’s Plea

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

Overview

The Member had been registered with the College of Nurses as a Registered Practical Nurse since 1973. She was employed at [the nursing home] at the time of the incident. It was alleged that she verbally abused and slapped a patient.

The Evidence

Council for the College presented a brief of documents to the panel which contained exhibits 1-11.

Witness #1 [ ], RN, Administrator of [the Nursing Home]

[The Administrator] identified the following exhibits:

· Exhibit # 3 the floor plan of the unit where the incident occurred.

· Exhibit #4 RPN job description

· Exhibit #5 PCW job description

· Exhibit #6 staff schedule for the day in question.

· Exhibit # 7-a Resident Abuse Policy

· 7-b signed confirmation that the Member had read and understood the policy.

· Exhibit #8 Selections from Patient A’s chart

[The Administrator] then made the following statements:

The incident was reported to her on October 9th
She went to the facility on October 10th to speak with Resident A regarding the incident
She observed that Resident A was still upset about what had happened
She spoke with the son of Resident A, and a witness, [the PCW]
A meeting was held with the member and a union representative at which the Member stated very little, but did deny the incident occurred.
At the same meeting the Member stated that she had read the abuse policy for [the nursing home]
As a result of the investigation the Member was terminated.

The panel found the witness presented her testimony in a straightforward, confident and credible manner.

Witness #2 - [The PCW]

[The PCW] made the following statements:

She has been employed at [the nursing home] since August 2004.
She was working on the unit the day of the incident.
She had not worked with the member prior to the incident, and did not know her in any other capacity

With regards to the incident [the PCW] testified that:

She walked into the room of Resident A and observed the member at the bedside
She was 8-10 feet away from Resident A and could see everything clearly
She saw the member slap Resident A twice on the leg with the back of her hand at the same time hearing the sound of the resident being slapped.
She heard the member tell the resident in a loud, frustrated voice “wake up”
She was shocked by the incident
She observed a frightened expression on Resident A’s face

The panel found the testimony of this witness to be forthright, convincing and credible. The witness has no interest in the outcome of these proceedings.

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.

The panel finds that the Member committed an act of professional misconduct as alleged in paragraphs 1, 2 & 3 of the Notice of Hearing. In particular the member committed an act of professional misconduct and contravened the standard of practise by physically and verbally abusing a resident on October 8, 2004.

Reasons for Decision

Having considered the evidence and the onus and standard of proof the panel found that the incident did occur. The testimony of [the PCW] was instrumental in the panel’s decision. Her testimony was clear, cogent and convincing. She clearly observed the event and was consistent in her testimony.

Penalty

Council for the College submitted a proposed penalty that would provide for specific and general deterrence, rehabilitation for the member and protection of the public. This is a serious incident, however it is the only incident encountered. It takes into account the Member’s interest in that she will have a second chance in the profession. It sends a clear message that such misconduct by members of the profession is not acceptable.

Requiring the Member to appear before the panel to be reprimanded on a date to be arranged between the Member and the panel, within three months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for a period of two months, to commence on the date that this Order becomes final or the date the Member renews her membership in the College, whichever date is later.
Directing the Executive Director to impose the following terms, conditions, and limitations on the Member’s certificate of registration:

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

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

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

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

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

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

(i) agrees to receive a copy of the panel’s Decisions and Reasons, and

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

Penalty Decision

The panel makes the following order as to penalty:

the Member to appear before the panel to be reprimanded on a date to be arranged between the Member and the panel, within six months of the date that this Order becomes final.
the Executive Director to suspend the Member’s certificate of registration for a period of four months, to commence on the date that this Order becomes final or the date the Member renews her membership in the College, whichever date is later.
the Executive Director to impose the following terms, conditions, and limitations on the Member’s certificate of registration:

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

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

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

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

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

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

(i) agrees to receive a copy of the panel’s Penalty Order with attached Notice of Hearing, Agreed Statement of Facts, and Joint Submission on Penalty, or, if available, a copy of the panel’s Decisions and Reasons, and

Reasons for Penalty Decision

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

I, Deanne Barber, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Monica Seawright, RPN

Dawn Norling, RPN

Faira Bari, Public Member

Linda Bracken, Public Member