College of Nurses of Ontario v. Sandra D. Hill, 2006 CanLII 81783

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Isgro-Topping, Chairperson Sheila Pendock, RN, Member Rosalie Woods, RPN, Member Claudette Drapeau, RPN, Member Faira Bari, Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO JUNIOR SIRIVAR for College of Nurses of Ontario

• and -

SANDRA D. HILL, RN Registration No. 8621971 NO REPRESENTATION for Sandra D. Hill

SCOTT HUTCHISON Independent Legal Counsel

Heard: December 14 & 15, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on December 14 and 15, 2006, at the College of Nurses of Ontario (the “College”) in Toronto.

The hearing was convened at 0900 hours on December 14, 2006. The Member was not present and subsequently the hearing recessed until 0930 hours to give the Member additional time to appear. The hearing proceeded in the Member’s absence at 0930 hours.

The Allegations

The allegations against Sandra Hill (the Member) as stated in the Notice of Hearing (Exhibit # 1) dated November 10, 2006, are as follows:

1. You have committed an act of professional misconduct as provided by sub-section 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.1 of Ontario Regulation 799/93, in that, while employed as a nurse by [the agency], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that you documented care which you did not perform on a [agency] client, [the client], as follows:

a) on or about December 6, 2003, you documented having taken a blood pressure reading, pulse rate and/or respiration rate when these readings were not taken on that date; and/or

b) on or about December 7, 2003, you documented having taken a blood pressure reading, pulse rate and/or respiration rate when you did not physically examine and/or assess the client, [ ], on this date.

2. [Withdrawn]

3. [Withdrawn]

4. You have committed an act of professional misconduct as provided by sub-section 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.37 of Ontario Regulation 799/93, in that in the period September to and including December 2003, while you were employed as a registered nurse, you engaged in conduct or performed an act or acts 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:

a) on or about September 5, 2003, left your shift early in that you were supposed to work until 07:00 but you swiped out and/or had left [the facility] at or about 06:45; and/or

b) on or about September 5, 2003, while employed at [the facility], performed a count of narcotics at or about 06:45 instead of at the conclusion of your shift at 07:00; and/or

c) on or about September 5, 2003, while employed at [the facility], performed a count of narcotics by yourself before 07:00 and not in the presence of and/or with the on-coming day shift nurse, contrary to the usual practice at [the facility] whereby narcotic drug counts were completed by the night shift and day shift nurse together;

d) on or about September 5, 2003, while employed at [the facility], failed to hand over the keys to the medication carts, including narcotics, at [the facility] to the on-coming day shift nurse, and instead left the keys loose in meeting rooms at [the facility]; and/or

e) [Withdrawn]

f) on or about December 6, 2003, while employed by [the agency], you documented having taken a blood pressure reading, pulse rate and respiration rate of [the client], when these readings were not taken on that date; and/or

g) [Withdrawn]

h) on or about December 7, 2003, while employed by [the agency], you documented having taken a blood pressure reading, pulse rate and respiration rate of [the client], when you did not physically examine and/or assess the client, [ ], on this date; and/or

i) [Withdrawn]

Counsel for the College advised that the College was withdrawing allegations set out in paragraphs #2, #3 and #4 (e), (g) & (i) of the Notice of Hearing.

Member’s Plea

Neither the Member nor a representative for the Member was present and the hearing proceeded on the basis that the Member was deemed to have denied the allegations set out in the Notice of Hearing.

The panel was satisfied that the Member had been given reasonable notice of the time and place of the hearing and of the allegations against her. She was served with a copy of the Notice of Hearing and counsel for the College provided the panel with an Affidavit of Service, dated November 18, 2006 (Exhibit # 2), confirming that the Member had been served.

Overview

The allegations in the Notice of Hearing relate to two separate sets of transactions.

The Member was employed at [the facility], [facility B] and [the agency] concurrently. The first set of transactions allege that while employed at [the agency], the Member documented care which she did not provide. The second set of allegations relate to the Member’s employment at [the facility]. It is alleged that on September 5, 2003, the Member left her workplace at [the facility] prior to the end of her shift and contrary to the policy of facility performed narcotic counts alone and failed to secure the medication cart keys.

The central factual allegations made against the Member are as follows:

a) On or about September 5, 2003, the Member left her shift early in that she was scheduled to work until 0700 hours but left on or about 0645 hours.

b) On or about September 5, 2003, while at [the facility], the Member performed a narcotics count at or about 0645 hours instead of at the conclusion of her shift at 0700 hours.

c) On or about September 5, 2003, while employed at [the facility], the Member performed a narcotic count by herself before 0700 hours and not in the presence of and/or with the on-coming day shift nurse, contrary to the usual practice and facility policy.

d) On or about September 5, 2003, the Member failed to hand over the keys to the medication carts to the on-coming day shift nurse – and instead left the keys unsecured in the meeting room.

e) On or about December 6, 2003, while employed by [the agency], the Member documented having taken a blood pressure reading, pulse rate, and respiration rate of [an agency] client, when the readings were not taken.

f) On or about December 7, 2003, the Member documented having taken a blood pressure reading, pulse rate, and respiration rate of [an agency] client, when she did not physically examine and/or assess the client.

The Evidence

A. The December 6/7, 2003 [Agency] Transactions

Particulars 1(a), (b), 4(f), (h): The Member committed an act of Profession Misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.1 of Ontario Regulations 799/93, in that, on or about December 6, 2003, she documented care which she did not perform on[an agency] client, in that she documented having taken blood pressure reading, pulse rate and/or respiration rate when these readings were not taken on that date; and, on or about December 7, 2003, the Member documented having taken blood pressure reading, pulse rate and/or respiration rate when these readings were not taken on that date; and, on or about December 7, 2003, the Member did not physically examine and/or assess the client.

[The Agency Nurse] testified that in December 2003 she was the primary [Agency] nurse for the client [ ]. The client was described as having heart trouble and pain issues. [The Agency Nurse] testified that her normal visits with the patient lasted 20 – 30 minutes and the assessment consisted of vital signs, weight, chest assessment, and counselling with respect to pain medications. She did not visit [the client] on either December 6 or 7, 2003. The witness testified that on her visit of December 8, 2003, the client was upset and complained that the replacement [nurse] Sandra Hill (the Member) had written in her chart but did not check on the client (who was asleep upstairs). [The Agency Nurse] reviewed the Narrative Progress Notes for [the client] (Exhibit # 3) and the [Agency] Basic Date Flow Sheet (Exhibit # 4). She was able to identify the Member’s signature on these documents beside the entries for December 6 and 7, 2003. These entries purport to record the results of readings or observations made in relation to [the client].

[The client] testified that she had sustained a lengthy hospital stay, after which she was receiving [Agency] home care for her [conditions]. She testified that the Member was the visiting nurse filling in on the weekend, for her primary care nurse, [the Agency Nurse]. The Member visited her two times the weekend of December 6 and 7, 2003; however, the witness stated that she only saw the Member once on the Saturday (December 6, 2003). The witness specified that on a typical visit the nurse would ask about her night, listen to her heart and lungs, take her blood pressure, her weight and inquire about her pain. The average visit lasted 20-30 minutes. On the one occasion that the witness met the Member, the visit lasted only 5 minutes. She asked how the client was doing, and then signed off on the chart. She testified that she was not assessed at all. The witness did not see the Member again; however, she had been informed by her daughter that the Member had visited their home the following day. The witness called the [Agency] office to advise of her concerns regarding the Member’s lack of assessment and requested that the Member not return to her home. Generally, the witness felt secure and reassured after each of the [Agency] visits. On this occasion, however, this was not the case.

[ ] is the daughter of [Agency] client [ ]. [The daughter] confirmed that Sandra Hill, (the Member) was the nurse who filled in for her mother’s regular nurse on the days in question. The witness recalls one occasion when the Member visited the home and she ([the daughter]) informed the Member that her mother was asleep upstairs. [The daughter] said that she asked if the Member needed to see her mom and the Member said “no it’s okay”. The Member did not speak with anyone else. The Member walked into the living room, pulled out the client’s chart, wrote in it, and left. [The daughter] said that she recalls that this incident took place a day or two prior to her birthday, which is December 8th.

[The Agency Nursing Manager] confirmed that she had hired and supervised the Member. She testified that she had received multiple complaints with respect to the Member. On December 7th, 2003 the witness received a telephone call from [the client], and her daughter expressing concerns regarding the Member’s visit. The Member had just been to the client’s home and entered without wearing a uniform or [Agency] badge. In her complaint, [the client] told [the Agency Nursing Manager] that the Member did not see her or take her blood pressure even though the Member had documented that she had performed this duty. This is contrary to what was charted on the [Agency] Basic Data Flow Sheet. (Ex # 4) entries for December 6 and 7, 2003.

[ ], RN is working as a Practice Consultant with the College. She verified that all members would have received a copy of the Nursing Documentation Standards (Ex # 7). This document conveys to members the necessity of documentation with respect to client care.

B. [The Facility] Transactions

Particulars # 4 (a), (b), (c), (d),(f), (h): The Member committed an act of Profession Misconduct in that in the period September to and including December 2003, while she was employed as a registered nurse, the Member engaged in conduct or performed an act or acts relevant to the practise of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, in that,[allegations (a) –(d)] while employed at [the Facility], on or about September 5, 2003, she left her shift early in that she was scheduled to work until 0700 hours but left on or about 0645 hours; the Member performed a narcotics count at or about 0645 hours instead of at the conclusion of her shift at 0700 hours, by herself and not in the presence of and/or with the on-coming day shift nurse, contrary to the usual practice and facility policy; and she failed to hand over the keys to the medication carts to the on-coming day shift nurse – and instead left the keys unsecured in the meeting room. [allegations (f) (h)].

In support of allegations # 4 subparagraphs (a), (b), (c) & (d), the panel heard the following evidence:

[The DOC] was the Director of Care at [the Facility] until 2005. She testified that she had hired the Member as the full-time night charge nurse. The Member’s shift ran from 2300 to 0700 hours. Other staff suggested to her that the Member was leaving work prior to the end of her shift. A meeting was scheduled with the Member, and [the DOC], which was to have taken place at 0630 hours on September 5, 2003 prior to the end of the Member’s shift. The meeting did not take place because the Member did not attend. It was later discovered that she had left the building early. When the Member did not come to the meeting, [the DOC] went to the various wards to look for her. The ‘Event Report’, a computer generated report (Exhibit # 5) records the time the Member swiped her card to leave the building. The report indicates that the Member’s card was used at 0644 hours on September 5, 2003 to open the exterior door to the facility. While [the DOC] was looking for the Member, she discovered that the Member had conducted 4 of the narcotic counts alone. She noted that the Narcotic Drug Count Sheet (Exhibit # 6) had been signed by the Member in the “incoming” column. There was no other signature in the other column at the time. This contravened the policy of the facility. The facility policy indicated that all narcotic counts are conducted by incoming and outgoing registered staff, and the keys must be directly passed on. She testified that when she went to look for the Member on September 5, 2003, she found that the narcotics count had already been done and that the Member left the keys to the narcotics cabinets in a daytimer in the meeting room which was not secured and accessible to clients.

[ ] was the Day Charge Nurse at [the Facility] in September, 2003. She testified that when she arrived for her day shift at 0645 hours on September 5, 2003, the Member had already left work. She also testified that when she arrived for her shift that day, the Narcotic Drug count sheet had already been signed by the Member. The Member had incorrectly signed the form in the incoming column and not the outgoing column (Exhibit # 6).

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), 1977 1072 (ON HCJ), 15 O.R. (2d) 447. 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 deliberated and agreed with College Counsel’s request to withdraw the allegations set out in paragraph #2, paragraph #3, and paragraph #4 (e), (g), & (i) of the Notice of Hearing.

Having given careful consideration to the evidence and the testimony of the numerous witnesses concerning the remaining allegations and the onus and standard of proof, the panel finds that the Member committed the following acts of professional misconduct as set out in the Notice of Hearing:

A. The December 6 and 7, 2003 Transactions

• Particulars #1(a), (b): The Member contravened a standard of practice of the profession and failed to meet the standards of practice, in that, on or about December 6 and 7, 2003, she documented care which she did not perform on [an Agency] client.

• Particulars #4(f) and (h): The Member’s conduct would reasonably be regarded by members of the nursing profession to be disgraceful, dishonourable or unprofessional.

B. The Bay Ridges Long Term Care Centre Transactions

• Particulars #4(a), (b), (c) and (d): The Member committed an act of Professional Misconduct in that in the period September to and including December 2003, while she was employed as a registered nurse, the Member engaged in conduct or performed an act or acts relevant to the practise of nursing that, having regard to all the circumstances, would reasonably be regarded by Members as dishonourable and unprofessional, in that, while employed at [the Facility], on or about September 5, 2003, she left her shift early; the Member performed a narcotics count prior to the end of her shift and not in the presence of and/or with the on-coming day shift nurse, contrary to the usual practice and facility policy; she failed to hand over the keys to the medication carts, instead left the keys unsecured in the meeting room.

Reasons for Decision

Credibility Assessments

[The Agency Nurse]

The witness testified that in December 2003 she was [an Agency] nurse. The panel found the testimony of the witness to be clear, cogent and convincing. She did not have an interest in the outcome of the hearing. Her evidence was confirmed in a number of particulars by the documentary record and by other witnesses.

[The client]

The witness testified that in December 2003 the Member acted as [an Agency] nurse that provided home care to her. The witness had sustained a lengthy hospital stay, after which she was receiving [Agency] home care. The panel found the testimony of this witness to be clear and consistent. The witness did not have an interest in the outcome of the hearing. Her evidence was confirmed by that of her daughter [ ].

[The daughter]

The witness confirmed that the Member was the nurse who filled in for her mother’s primary [Agency] nurse. Although the witness was young, the panel found her testimony to be delivered in a calm, honest and convincing manner. This event occurred in close proximity to her birthday, allowing the witness to reliably anchor her recollection to a particular date.

[The Agency Nursing Manager]

The witness testified that she had hired and supervised the Member. She also testified that she had received multiple complaints with respect to the Member. The panel found the testimony of this witness to be clear and factual and was given in a dispassionate and even-handed manner.

[ ], RN, Practice Consultant, CNO

The witness presented evidence with respect to the Nursing Documentation Standards. The witness presented factual information. The panel accepts this is a document that all members should be in possession of and familiar with.

[The DOC]

The witness had hired the Member to work as a full-time night charge nurse at [the Facility]. The witness testified in a clear, calm and straightforward manner. She had no vested interested in the outcome of the hearing. The panel noted that the exhibits presented collaborated the evidence of the witness.

[The Charge Nurse]

The witness stated that the Member was a co-worker whose responsibilities were also that of a Charge Nurse, on a different shift. The testimony of this witness collaborated the testimony of a previous witness with respect to the signing of the Narcotic Drug Count Sheet and the Member having left her shift early. The panel found this witness to be credible.

Particulars #1(a), (b): The Member committed an act of Profession Misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.1 of Ontario Regulations 799/93, in that, on or about December 6, 2003, she documented care which she did not perform on [an Agency] client, in that she documented having taken blood pressure reading, pulse rate and/or respiration rate when these readings were not taken on that date; and, on or about December 7, 2003, the Member documented having taken blood pressure reading, pulse rate and/or respiration rate when these readings were not taken on that date; and, on or about December 7, 2003, the Member did not physically examine and/or assess the client.

Particulars #4(f) and (h): The Member’s conduct would reasonably be regarded by members of the nursing profession to be disgraceful, dishonourable or unprofessional.

The panel heard evidence from [the Agency Nurse], the primary [Agency] nurse for [the client]; [the client], [the daughter] and [the Agency Nursing Manager], to support the allegations that the Member had documented care which she did not perform on [an Agency] client on December 6, and December 7, 2003. The panel also heard testimony from [ ], CNO Practise Consultant verifying that all members receive a copy of the Nursing Documentation Standards, outlining the necessity of documentation respecting client care. Additional evidence included Narrative Progress Notes for [the client] (Exhibit #3), and the [Agency] Basic Data Flow Sheet for [the client] (Exhibit #4), which made it clear to the panel that the Member had visited the client’s home on the days in question, and had made notations in the client’s chart. After considering the testimony of the witnesses, the panel was convinced that the Member had not performed the acts which she had documented in the client’s file.

Particulars #4(a), (b), (c), (d): The Member committed an act of Profession Misconduct in that in the period September to and including December 2003, while she was employed as a registered nurse, the Member engaged in conduct or performed an act or acts relevant to the practise of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, in that,[allegations (a) –(d)] while employed at [the Facility], on or about September 5, 2003, she left her shift early in that she was scheduled to work until 0700 hours but left on or about 0645 hours; the Member performed a narcotics count at or about 0645 hours instead of at the conclusion of her shift at 0700 hours, by herself and not in the presence of and/or with the on-coming day shift nurse, contrary to the usual practice and facility policy; and she failed to hand over the keys to the medication carts to the on-coming day shift nurse – and instead left the keys unsecured in the meeting room.

The panel relied on the testimony of [the DOC] and [the Charge Nurse], as well as the records produced during the hearing, specifically, the Narcotic Drug Sheet and Event Sheet, in order to make a finding in relation to allegations (a) – (d).

In making findings with respect to allegations 4 (f) & (h), the panel relied on evidence from [the Agency Nurse], [the client], [the daughter], [the Agency Nurse], [the Agency Nursing Manager], and [the CNO Practice Consultant], as well as the Narrative Progress Notes for [the client], and the VON Basic Data Flow Sheet for [the client].

Having made findings for allegations #4 (a),(b),(c),(d),(f) & (h), the panel then considered whether this conduct or these acts were relevant to the practise of nursing and would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.

The panel considered the findings of professional misconduct made against the Member and the Member’s breach of her duty to act responsibly. Having considered those findings and the evidence presented in this case, the panel found that the Member’s conduct could properly be characterized as dishonourable and unprofessional.

Penalty

Counsel for the College submitted the following penalty:

1. Requiring the Member to appear before the panel to be reprimanded at a date to be arranged but, in any event, within three (3) months of the Member reinstating her certificate of registration.

2. Directing the Executive Director to suspend the Member's certificate of registration for period of one month, with the suspension to take effect when the Member reinstates her certificate of registration.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration when the Member reinstates her certificate of registration:

a. Prior to returning to nursing practice, the Member shall complete the College’s on-line learning module relating to professionalism, including the on-line participation form;

b. Prior to returning to practice and after completing the on-line learning module and on-line participation form referred to in paragraph 3(a), above, the Member shall meet with a College Practice Consultant to discuss the documentation module and the participation form in relation to the conduct for which the Member was found to have committed professional misconduct.

c. Upon the Member’s return to the practice of nursing and for a period of twelve months thereafter, the Member shall:

i. notify the Director of the Investigations & Hearings at the College (“the Director”) of the name, address, and telephone number of all of employer(s) within fourteen days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which delivery the Member shall retain;

ii. provide her employer(s) with a copy of the panel’s Penalty Order together with the Notice of Hearing or, if available, the Panel’s written Decision and Reasons;

iii. only practice for an employer who agrees to, and does, write to the Director, within fourteen days of the commencement or resumption of the Member’s employment, providing the Director with the following:

iv. confirmation that the employer has received a copy of the documents referred to in paragraph 3(c)(ii), above.

Counsel for the College submitted that the Member’s licence has been revoked since the Fall of 2006. He requested that this Penalty be imposed if, and once, the Member reinstates her certificate. Counsel submitted that notwithstanding that the Member’s licence has already been revoked, she still has to answer for her actions. This penalty, it is submitted, sends a clear message to the profession that the client is first and foremost. The proposed penalty would serve to both support the Member and protect the public, should the Member reinstate her registration in the future. He noted that the findings represent significant failures on the part of the Member, and submitted that the supervision and the reporting requirements of the proposed penalty order are, therefore, appropriate.

Penalty Decision

The panel deliberated and considered the submissions of College Counsel. The panel agreed with the proposed penalty order and accordingly made the following penalty order:

1. Requiring the Member to appear before the panel to be reprimanded at a date to be arranged but, in any event, within three (3) months of the Member reinstating her certificate of registration.

2. Directing the Executive Director to suspend the Member's certificate of registration for period of one month, with the suspension to take effect when the Member reinstates her certificate of registration.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration when the Member reinstates her certificate of registration:

a. Prior to returning to nursing practice, the Member shall complete the College’s on-line learning module relating to professionalism, including the on-line participation form;

b. Prior to returning to practice and after completing the on-line learning module and on-line participation form referred to in paragraph 3(a), above, the Member shall meet with a College Practice Consultant to discuss the documentation module and the participation form in relation to the conduct for which the Member was found to have committed professional misconduct.

c. Upon the Member’s return to the practice of nursing and for a period of twelve months thereafter, the Member shall:

i. notify the Director of the Investigations & Hearings at the College (“the Director”) of the name, address, and telephone number of all of employer(s) within fourteen days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which delivery the Member shall retain;

ii. provide her employer(s) with a copy of the panel’s Penalty Order together with the Notice of Hearing or, if available, the Panel’s written Decision and Reasons;

iii. only practice for an employer who agrees to, and does, write to the Director, within fourteen days of the commencement or resumption of the Member’s employment, providing the Director with the following:

iv. confirmation that the employer has received a copy of the documents referred to in paragraph 3(c)(ii), above.

Reasons for Penalty Decision

In the absence of any evidence presented by or on behalf of the Member, the panel reached its decision on penalty on the basis of the evidence presented by College Counsel. The panel accepted College Counsel’s submission on penalty as appropriate.

It is our view that the penalty we impose today provides both a deterrent to the Member and to the membership. The penalty protects the public by sending a clear message that Members will be held accountable by the College.

Should the Member reinstate her certificate of registration, the panel feels that the penalty offers the Member opportunities for rehabilitation and a successful return to the practice of nursing. The monitoring provisions provide protection to the public and insure that future employers are aware of these findings and are prepared to monitor the Member’s practice.

I, Grace Isgro-Topping, 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:

Sheila Pendock, RN Rosalie Woods, RPN Claudette Drapeau, RPN Faira Bari, Public Member