College of Nurses of Ontario v. Soper, 2006 ONCNO 81781

PANEL: Deanne Barber, RPN Chairperson Karen Breen-Reid, RN Member George Fieber, RN Member Bill Weichel Public Member David Bishop Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MARIE HENEIN for College of Nurses of Ontario

-and-

LINDA SOPER Registration No. HI06216 NO REPRESENTATION for Linda Soper

BRIAN GOVER Independent Legal Counsel

Heard: May 29 and 30, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 29th and 30th, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Linda Dianne Soper (the “Member”) as stated in the Notice of Hearing dated February 14, 2006, are as follows:

You have committed an act or 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 subsection 1(1) of the Ontario Regulation 799/93, in that between March 24, 2003 and March 30, 2003 while working as a Registered Practical Nurse at [the facility], you contravened a standard or practice of the profession or failed to meet the standard of practice of the profession with respect to your care, and treatment and/or communication with clients in that you:

(i) failed to accurately assess the heel ulcer of [the client]; and/or

(ii) failed to document the assessment of heel ulcer of [the client] in the client’s health record.

You have committed an act or 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 subsection 1(19) of the Ontario Regulation 799/93, in that between April 24, 2003 and March 1, 2004 while working as a Registered Practical Nurse at [the facility], you contravened a provision or provisions of the Nursing Act, and/or the Regulated Health Professions Act and or the regulations under either of those Acts in that you:

(i) contravened section 11(1) of the Nursing Act in that you used the title “nurse” while being suspended by the College of Nurses for non-payment of fees; and/or

(ii) contravened section 11(5) of the Nursing Act in that you held yourself out as a nurse while being suspended from the College of Nurses for non-payment of fees; and/or

(iii) contravened section 27(1) of the Health Professions Procedural Code in that you performed controlled acts as defined in sections 4 and 5 of the Nursing Act while being suspended from the College of Nurses for non-payment of fees.

You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(37) of the Ontario Regulation 799/93, in that between March 24, 2003 and March 1, 2004 while working as a Registered Practical Nurse at [the facility] in [ ] , Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that you:

(i) failed to accurately assess the heel ulcer of [the client]; and/or

(ii) failed to document the assessment of heel ulcer of [the client] in the client’s health record; and/or

(iii) engaged in the practice of nursing as a Registered Practical Nurse while your certificate of registration was suspended by the College of Nurses for the non-payment of fees.

Member’s Plea

The Member was not present at the hearing, nor represented by counsel. We were satisfied that the Member was properly served with the Notice of Hearing, and were advised by College counsel that the Member did not wish to participate in the hearing. The panel notes that the hearing had been scheduled to proceed at 9:00 a.m., but did not start until 10:15 a.m. Therefore, the panel proceeded on the basis that the Member denied the allegations.

Overview

The Member had been registered with the College of Nurses of Ontario since 1989. In 2004 she was employed at [the facility]. While employed there, she failed to accurately assess and document the foot ulcer of [the client]. In addition, from April 2003 to March 2004, the Member continued to work as an RPN at [the facility] while suspended for non-payment of fees.

The Evidence

Counsel for the College requested that an omission be corrected in the Notice of Nearing in that the year 2004 was not inserted after March 1 in paragraph 3. The panel agreed to the correction.

Counsel for the College presented evidence in Exhibits 1 to 5 which verified the Member had been duly sent and served the Notice of Hearing by mail, process server and courier on four occasions. The Member received a letter dated April 24, 2003 from the College (Exhibit 6O) stating her “membership has been suspended effective Thursday, April 24, 2003” for failure to pay the prescribed fee.” The letter also stated, “while your membership is suspended you may not use the title of practical nurse, RPN, or hold yourself out as a Registered Practical Nurse in providing service. You may not undertake any controlled acts authorized to nursing in the province of Ontario.”

The first witness for the College was [Witness #1 ], Manager of Resident Services at [the facility]. She testified to the following:

The policy and practice at [the facility] was that all Registered Nurses and Registered Practical Nurses shall have a current certificate of competence issued by the College of Nurses of Ontario. Annually by the 15th of January all Registered Nurses and Registered Practical Nurses shall provide to the Manager of Resident Services, proof of their current Certificate of Registration.
She contacted the College of Nurses and was informed that the Member had been suspended for non-payment of fees since April 24, 2003.
By mid February, the Member had failed to submit her original registration as required, (Exhibit 6M) despite several attempts to contact the member by phone, written messages, and notices on pay stubs. On February 24, 2004 the Member advised [the Resident Services Manager] that she “had all her paperwork” and was on her way to bring it in. The witness stayed late until 6 pm to meet with the Member to obtain her certificate. The Member did not appear.
The Member had worked in various part-time and temporary full-time RPN positions at [the facility] and had been offered and accepted a full-time position as a Registered Practical Nurse effective September 4, 2003. The Member’s signature was verified on the letter that she accepted the terms and conditions on the offer of employment. (Exhibit 6C)
The Member’s last shift worked was February 24, 2004.
[The Resident Services Manager] received a letter of resignation from the Member effective March 1, 2004 (Exhibit 6D).
[the Resident Services Manager] identified the Member’s signature with RPN designation in documentation on February 9, 23, 24, 2004 (Exhibit 6I) and confirmed the Member used the designation throughout her suspension effective April 24, 2003.

The testimony of this witness was found by the panel to be clear and concise.

Witness #2 was [the Unit Manager], who was employed at [the facility] since 1977 and was Unit Manager at the time of the incident. She testified to the following:

She confirmed the process for reminding registered staff of annual renewal requirements.
She stated there were reminders to staff during shift changes, monthly unit meetings as well as posting of a memo on bulletin boards near staff schedules.
She confirmed that the Member worked as an RPN on units at [the facility] under her direct supervision.
The client [ ] was a resident on the secured unit, managed by the witness, and frequently cared for by the Member. [The client] required a high level of care, was wheelchair bound, and had what was described as an open ulcer on her heel.
Her expectation was that the member as an RPN would be able to assess the wound, treat the wound as per physician’s orders, and document the assessment and treatment.

The panel found the evidence of this witness confirmed the evidence of witness #1.

Witness #3 was [the RN]. She had been a Registered Nurse since 1969 and employed at [the facility] since 1979. At the time of the incident she functioned in a supervisory role mainly on weekends and evenings. She testified:

She was familiar with the client [ ] and confirmed the level of care she required. She indicated she personally did not see the heel ulcer.
She worked with the Member on several occasions when the Member was assigned to her units.
On March 24, 2003, the Member was assigned to the unit under the supervision of the witness. The Member was assigned to the care of [the client] which included the need to assess, treat and document the care of the heel ulcer. The Member advised her when asked about the ulcer, “there is nothing to see – it’s all cleared up”. The witness requested a description and the Member added, it was “slightly pinkish area, 1 x 1½ cm, no discharge, skin intact”. The witness reminded the Member to document on the treatment record and in the progress notes.
On March 28, 2003, the Member was again working under the supervision of the witness, and the witness noted no documentation as to the condition of the ulcer. The Member indicated she had forgotten and would take care of it.
On March 30, 2003 (7 am to 3 pm shift), the witness passed on the information she had received from the Member to another nurse, [the RPN], that the ulcer was healed and did not require treatment. [The RPN] expressed surprise and went to assess the ulcer, herself. [The RPN] reported back to the witness and documented her findings that the wound continued to drain, was very inflamed and the skin was not intact and there was no dressing.

The panel found the testimony of this witness to be clear and convincing.

Witness #4 was [the RPN]. She has been registered with the College as a Registered Practical Nurse since 1971 and worked at [the facility] as an RPN for 23 years. She testified that:

She and the Member worked together for approximately 2 weeks out of each month, for about a year.
While working with the Member, she observed her performing the duties of an RPN.
She was familiar with [the client] and provided care for her on numerous occasions, included assessment and treatment of the heel ulcer, specifically on March 24, 25, 26, 2003 (Exhibit 6K).
She described the wound on the left heel as having a black necrotic blister with some drainage and obviously open around the edges.
She next saw the wound on March 30, 2003 after hearing in report that the wound was pink, healed with no discharge. She needed to check herself as she was surprised that it could have healed so quickly.
She found the wound had greenish yellow, bloody discharge, still had open necrotic area, around it was reddened. She treated the wound and documented in the patient chart (Exhibit, 6K).

The panel found the testimony of this witness to be convincing, informed, and forthright.

Decision

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed an act of professional misconduct as alleged in paragraphs 1, 2, and 3 of the Notice of Hearing.

Specifically, the Member committed an act or acts of professional misconduct by (1) contravening a standard of practice of the profession or failing to meet the standard of practice of the profession, (2) contravening provisions of both the Nursing Act and the Regulated Health Professions Act, and (3) engaging in conduct or an act, relevant to the practice of nursing, that would reasonably be regarded by members as dishonourable and unprofessional.

In connection with the first allegation, that between March 24, 2003 and March 30, 2003 while working as a Registered Practical Nurse at [the facility], the Member contravened a standard or practice of the profession or failed to meet the standard of practice of the profession with respect to her care, and treatment and/or communication with clients, the panel finds that the Member:

(i) failed to accurately assess the heel ulcer of [the client]; and

(ii) failed to document the assessment of heel ulcer of [the client] in the client’s health record.

In connection with the second allegation, that between April 24, 2003 and March 1, 2004 while working as a Registered Practical Nurse at [the facility], the Member contravened a provision or provisions of the Nursing Act, and/or the Regulated Health Professions Act and or the regulations under either of those Acts, the panel finds that the Member:

(i) contravened section 11(1) of the Nursing Act in that she used the title “nurse” while being suspended by the College of Nurses for non-payment of fees;

(ii) contravened section 11(5) of the Nursing Act in that she held herself out as a nurse while being suspended from the College of Nurses for non-payment of fees; and

(iii) contravened section 27(1) of the Health Professions Procedural Code in that she performed controlled acts as defined in sections 4 and 5 of the Nursing Act while being suspended from the College of Nurses for non-payment of fees.

In connection with the third allegation, that between March 24, 2003 and March 1, 2004 while working as a Registered Practical Nurse at [the facility], the Member 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, dishonourable and unprofessional in that the Member:

(i) failed to accurately assess the heel ulcer of [the client];

(ii) failed to document the assessment of heel ulcer of [the client] in the client’s health record; and

(iii) engaged in the practice of nursing as a Registered Practical Nurse while your certificate of registration was suspended by the College of Nurses for the non-payment of fees.

Reasons for Decision

In the absence of any defence on behalf of the Member, the panel accepted the clear, cogent evidence led by the College. None of the witnesses had any personal interest in the outcome of the hearing. The clarity of the College’s evidence, as well as the credible and forthright manner of the witnesses, supports the findings of professional misconduct as alleged in the Notice of Hearing.

Penalty

College counsel requested that the panel to impose a penalty order including the following elements:

Requiring the Member to appear before a Panel of the Discipline Committee to be reprimanded at a date to be arranged but, in any event, within three months following the date that the Member reinstates her registration with the College.
Directing the Executive Director to suspend the Member’s certificate of registration for a period of six (6) months commencing on the date the Member reinstates her membership with the College. The suspension shall run continuously so long as the Member maintains a current registration. In the event that the Member fails to maintain a current registration, any portion of the suspension which has not yet been served, shall be served commencing on the day that the registration is renewed.
Directing the Executive Director to impose the following terms, conditions and limitation on the Member’s certificate of registration;

i. The Member shall meet with the Director of Investigations and Hearings (“the Director”), or the Director’s designate at a date to be arranged, but, in any event, within three months following the date that the Member reinstates her registration with the College to discuss:

a. The conduct for which she was found to have committed professional misconduct;

b. The potential consequences of that conduct to her clients, her colleagues, her profession, and herself; and

c. The importance of maintaining a current registration in a self-regulated profession.

ii. Prior to the Member’s attendance at the meeting referred to in paragraph 3(i), above, the member shall review the College fact sheets entitled “What is CNO and registration?”, as well as the Professional Standards focusing on the Ethics and Accountability sections and shall reflect upon, and be prepared to discuss, the application of these documents to the actions for which she was found to have committed professional misconduct.

iii. For the first thirty-six (36) months after the Member reinstates her registration and resumes the practice of nursing, the Member shall only work for an employer who:

a. Agrees to receive from the member a copy of the decision and reasons of this Panel; and

b. Agrees to confirm, in writing, to the Director, within fourteen (14) days of the Member commencing or resuming the practice of nursing, receipt of a copy of the Panel’s decisions and reasons.

The Member is to pay $1500.00 to the College towards the costs of the hearing.

Penalty Decision

After deliberation, and in the interests of the public and the profession, the panel concluded that it should accept the majority of what College counsel submitted was appropriately included in the penalty order, departing from what was proposed only by increasing the period of suspension of the Member’s certificate of registration. Consequently, the panel imposed the following penalty order:

The Member shall appear before a Panel of the Discipline Committee to be reprimanded at a date to be arranged but, in any event, within three months following the date that the Member reinstates her registration with the College.
The Executive Director is directed to suspend the Member’s certificate of registration for a period of nine (9) months commencing on the date the Member reinstates her membership with the College. The suspension shall run continuously so long as the Member maintains a current registration. In the event that the Member fails to maintain a current registration, any portion of the suspension which has not yet been served, shall be served commencing on the day that the registration is renewed.
The Executive Director is directed to impose the following terms, conditions and limitation on the Member’s certificate of registration;

a. The conduct for which she was found to have committed professional misconduct;

b. The potential consequences of that conduct to her clients, her colleagues, her profession, and herself; and

c. The importance of maintaining a current registration in a self-regulated profession.

iii. For the first thirty-six (36) months after the Member reinstates her registration and resumes the practice of nursing, the Member shall only work for an employer who:

a. Agrees to receive from the member a copy of the decision and reasons of this Panel; and

b. Agrees to confirm, in writing, to the Director, within fourteen (14) days of the Member commencing or resuming the practice of nursing, receipt of a copy of the Panel’s decisions and reasons.

The Member is ordered to pay $1500.00 to the College towards the costs of the hearing.

Reasons for Penalty Decision

The Member failed to adequately treat and document [the client’s] heal ulcer. She lied to her supervisor about her observations putting the client at risk due to lack of appropriate treatment for several days.

The Member continued to work as a nurse and hold herself out as a nurse for almost a year, despite the suspension of her registration. She misrepresented her registration status to her employer.

The Member was not present at the hearing and there was no evidence that the Member was remorseful or accountable for her actions. The panel had serious concerns about her governability.

The penalty provides a specific deterrent for the Member and a general deterrent for the membership. The penalty is justified in that it serves to protect the public.

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:

Karen Breen-Reid, RN George Feiber, RN Bill Weichel, Public Member David Bishop, Public Member