College of Nurses of Ontario v. Barry, 2006 CanLII 81784

minicounsel

Footnotes

The panel was asked to dismiss the allegations set out in paragraphs #1, and #4 and #5, subparagraph (c), the text of which is not reproduced in this decision.

PANEL: Denise Dietrich, RPN Chairperson

Anne McKenzie, RPN Member

Faira Bari Public Member

Grace Isgro-Topping Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ANIL KAPOOR for

) College of Nurses of Ontario

and - )

CHERYL LYNETTE BARRY, RPN ) NO REPRESENTATION for

Registration No. HF06642 ) Cheryl Lynette Barry

) BRIAN GOVER

) Independent Legal Counsel

) Heard: December 11-12, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on December 11 and 12, 2006 at the College of Nurses of Ontario (the “College”) in Toronto.

The hearing was convened at 0920 on December 11, 2006. The Member was not present and subsequently the hearing recessed until 0950 to give the Member additional time to appear. The hearing proceeded in the Member’s absence when reconvened at 0950.

The Allegations

Although the Notice of Hearing dated November 10, 2006 contained other allegations against Cheryl Lynette Barry (the “Member”), the hearing proceeded in relation to the following allegations, because Counsel for the College advised that the College was not calling any evidence with respect to the allegations set out in paragraphs #1 and #4 and #5, subparagraph (c) of the Notice of Hearing:¹

[The panel was asked to dismiss the allegation contained in this paragraph]
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(8) of the Ontario Regulations 799/93 while employed at [The Hospital] in that you misappropriated property from your workplace, in particular:

a) On or about July 18, 2002 you took a vial of Hydromorphone HP 10mg/ml from your workplace.

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(13) of the Ontario Regulations 799/93 while employed at [the Hospital] in that you failed to keep records as required, in particular:

a) On or about June 18, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client A];

b) On or about June 19, 2002 you did not accurately record in the Narcotics Record the time at which you administered medication to [client A], as recorded in the Medical Administration Record;

c) On or about July 16, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client A];

d) On or about July 17, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client A];

e) On or about June 23, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client A];

f) On or about July 5, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client A];

g) On or about July 6, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client A];

h) On or about July 7, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client A];

i) On or about April 23, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client B];

j) On or about May 24, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client C];

k) On or about May 27, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client C];

l) On or about May 28, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client C];

m) On or about May 29, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client C];

n) On or about May 30, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client C];

o) On or about May 31, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client C];

p) On or about January 7, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

q) On or about January 8, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

r) On or about January 9, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

s) On or about January 10, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

t) On or about January 11, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

u) On or about January 14, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

v) On or about January 15, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

w) On or about January 18, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

x) On or about January 19, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

y) On or about January 20, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

z) On or about January 22, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

aa) On or about January 23, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

bb) On or about February 27, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

cc) On or about March 4, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

dd) On or about March 7, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

ee) On or about March 8, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

ff) On or about March 29, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

gg) On or about April 8, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

hh) On or about April 9, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

ii) On or about April 11, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D];

jj) On or about April 12, 2002 you failed to record on the Medical Administration Record that you had administered medication to [client D].

[The panel was asked to dismiss the allegation contained in this paragraph]
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 the Ontario Regulations 799/93 while employed at [the Hospital] in that you engaged in conduct or performed an act or acts relevant to the practise of nursing that, having regard to all of the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in particular:

a) On or about July 18, 2002 you took a vial of Hydromorphone HP 10mg/ml from your workplace;

b) Between the months of January and July 2002 you routinely failed to make entries in the Medial Administration Record as required;

c) [The panel was asked to dismiss the allegation contained in this subparagraph]

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 served with the Notice of Hearing as counsel for the College provided the panel with an Affidavit of Service, dated November 20, 2006, (Exhibit # 2), confirming that the Member had adequate notice of the allegations and the date, time and place of the hearing.

Overview

The Member was employed as a Registered Practical Nurse at [the Hospital]. In 2002, the Member was a Team Leader on the Complex and Continuing Care Unit of the hospital. On July 18, 2002, the Member was suspended from employment pending the outcome of an investigation. The incidents that led to this suspension were related to multiple incidents of failing to document medication administration.

The issues raised by the allegations are as follows:

(a) Did the Member take a vial of Hydromorphone from her workplace on or about July 18, 2002?

(b) Did the Member fail to keep accurate records as required, on multiple occasions between the months of January and July 2002?

(c) Did the Member engage in conduct or perform an act relevant to the practice of nursing that would reasonably be regarded by members as disgraceful, dishonourable and/or unprofessional with respect to taking a vial of Hydromorphone from her workplace on or about July 18, 2002 and failing to document entries in the Medical Administration Record as required?

The Evidence

Notice of Hearing, paragraph #2: Allegation of Professional Misconduct – On or about July 18, 2002 the Member contravened the provisions of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and defined in subsection 1(8) of the Ontario Regulations 799/93 while employed at [the Hospital] in that the Member took a vial of Hydromorphone HP 10mg/ml from her workplace. (Issue #1)

[The Manager], Clinical Nurse Manager at [the Hospital], testified that on July 18, 2002, she was invited to and participated at a meeting with the Health Program Director, the Member and the Member’s Union Representative. The witness testified that she was at the meeting as she was investigating why a large quantity of narcotics were not signed for on Medical Administration Records (“MAR”).

The purpose of the July 18, 2002 meeting was to advise the Member that she was suspended from her employment until an investigation of the matter had been completed. The witness testified that when the Member was told of the suspension, she became argumentative, threw the narcotic cart keys and stormed off the unit. The Member left before completing the narcotic count.

The witness testified that each team has their own medication cart, with their own keys. Medication carts cannot be accessed with the keys from another medication cart on the unit. Keys for the carts are held by the nurse who had completed the narcotics count at the start of the shift. The Member was responsible for the medication cart keys from the start of her shift at 15:00 hours, until she threw them down at the meeting.

In order to transfer responsibility for control of the medication cart, the witness along with [Nurse A], another nurse, conducted the count of narcotics from the medication cart at 16:10 hours. The previous count had been conducted at 15:00 hours when the Member had begun her scheduled shift. The witness confirmed that the narcotic control record indicated that at 15:00 hours there were 18 vials of Hydromorphone in the narcotics drawer of the medication cart assigned to the Member. The narcotics control record also indicated that the narcotics count at 15:00 hours on July 18, 2002, was signed by [RPN A], the outgoing RPN, and the Member, Cheryl Barry, the incoming RPN. When [the Manger] and [Nurse A] conducted their count at 16:10 there were only 17 vials of Hydromorphone in the narcotics drawer. A thorough search was conducted and the MARs for the Member’s assigned clients were reviewed to determine if the Member had administered the missing vial of medication and failed to record the administration on the narcotic control record. The vial remained missing and unaccounted for. The witness advised the panel that she filed an incident report regarding the missing vial of Hydromorphone.

The panel reviewed the narcotic control record for the Member’s team, dated July 18, 2002, which confirmed [The Manager]’s testimony.

Notice of Hearing, paragraph # 3: Allegation of Professional Misconduct - Between January and July 2002, the Member failed to keep records as required, in particular on 36 occasions with four different patients. (Issue #2)

Patient J.H. [subparagraphs (a) – (h)]

(a) The narcotic control record for June 18, 2002 indicates that at 21:00 hours, the Member signed for Hydromorphone for [client A]. There is no corresponding entry on the June 18, 2002 MAR for [client A].

[The Manager] testified that the signature on the narcotic control record for June 18, 2002 was that of the Member.

(b) The narcotic control record for June 19, 2002 states that at 20:00 hours, the Member signed for Hydromorphone for [client A]. There is no corresponding entry on the June 19, 2002 MAR for [client A].

[The Manager] testified that the signature on the narcotic control record for June 19, 2002 was that of the Member.

(c) The narcotic control record for July 16, 2002 states that at 12:10 hours, the Member signed for Hydromorphone for [client A]. There is no corresponding entry on the July 16, 2002 MAR [client A].

[The Manager] testified that the signature on the narcotic control record for July 16 was that of the Member.

(d) The narcotic control record for July 17, 2002 states that at 14:00 and 14:20 hours, the Member signed for Hydromorphone for [client A]. There were no corresponding entries on the July 17, 2002 MAR for [client A].

[The Manager] testified that the signature on the narcotic control record for July 17, 2002 was that of the Member.

(e) The narcotic control record for June 23, 2002 states that at 14:00 hours, the Member signed for Hydromorphone for [client A]. There is no corresponding entry on the June 23, 2002 MAR for [client A].

[The Manager] testified that the signature on the narcotic control record for June 23, 2002 was that of the Member.

(f) The narcotic control record for July 5, 2002 states that at 14:00 hours, the Member signed for Hydromorphone for [client A]. There is no corresponding entry on the July 5 MAR for [client A].

[The Manager] testified that the signature on the narcotic control record for July 5, 2002 was that of the Member.

(g) The narcotic control record for July 6, 2002 states that at 22:00 hours, the Member signed for Hydromorphone for [client A]. There is no corresponding entry on the July 6, 2002 MAR for [client A].

[The Manager] testified that the signature on the narcotic control record for July 6, 2002 was that of the Member.

(h) The narcotic control record for July 7, 2002 states that at 22:00 hours, the Member signed for Hydromorphone for [client A]. There is no corresponding entry on the July 7, 2002 MAR for [client A].

[The Manager] testified that the signature on the narcotic control record for July 7, 2002 was that of the Member.

Patient A.S. [subparagraph (i)]

(i) The narcotic control record for April 23, 2002 states that at 20:30 and 22:30 hours, the Member signed for Hydromorphone for [client B]. There were no corresponding entries on the April 23, 2002 MAR for [client B].

[The Manager] testified that the signature on the narcotic control record for April 23, 2002 was that of the Member.

Patient C.R. [subparagraphs (j) – (o)]

(j) The narcotic control record for May 24, 2002 states that at 18:00, 20:00 and 22:00 hours, the Member signed for Hydromorphone for [client C]. There were no corresponding entries on the May 24, 2002 MAR for [client C].

[The Manager] testified that the signature on the narcotic control record for May 24, 2002 was that of the Member.

(k) The narcotic control record for May 27, 2002 states that at 13:50 hours, the Member signed for Hydromorphone for [client C]. There is no corresponding entry on the May 27, 2002 MAR for [client C].

[The Manager] testified that the signature on the narcotic control record for May, 27, 2002 was that of the Member.

(l) The narcotic control record for May 28, 2002 states that at 13:30 hours, the Member signed for Hydromorphone for [client C]. There is no corresponding entry on the May 28, 2002 MAR for [client C].

[The Manager] testified that the signature on the narcotic control record for May, 28, 2002 was that of the Member.

(m) The narcotic control record for May 29, 2002 states that at 13:30 hours, the Member signed for Hydromorphone for [client C]. There is no corresponding entry on the May 29, 2002 MAR for [client C].

[The Manager] testified that the signature on the narcotic control record for May 29, 2002 was that of the Member.

(n) The narcotic control record for May 30, 2002 states that at 10:00, 12:00 and 14:00 hours, the Member signed for Hydromorphone for [client C]. There were no corresponding entries on the May 30, 2002 MAR for [client C].

[The Manager] testified that the signature on the narcotic control record for May 30, 2002 was that of the Member.

(o) The narcotic control record for May 31, 2002 states that at 11:30 and 14:00 hours, the Member signed for Hydromorphone for [client C]. There were no corresponding entries on the May 31, 2002 MAR for [client C].

[The Manager] testified that the signature on the narcotic control record for May 31, 2002 was that of the Member.

Patient A.F. [subparagraphs (p) – (jj)]

(p) The narcotic control record for January 7, 2002 states that at 14:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the January 7, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 7, 2002 was that of the Member.

(q) The narcotic control record for January 8, 2002 states that at 12:30 and 14:00 hours, the Member signed for Hydromorphone for [client D]. There were no corresponding entries on the January 8, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 8, 2002 was that of the Member.

(r) The narcotic control record for January 9, 2002 states that at 14:15 hours the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the January 9, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 9, 2002 was that of the Member.

(s) The narcotic control record for January 10, 2002 states that at 14:20 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the January 10, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 10, 2002 was that of the Member.

(t) The narcotic control record for January 11, 2002 states that at 14:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the January 11, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 11, 2002 was that of the Member.

(u) The narcotic control record for January 14, 2002 states that at 14:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the January 14, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 14, 2002 was that of the Member.

(v) The narcotic control record for January 15, 2002 states that at 14:15 hours, the Member signed for Hydromorphone for patient A.F. There is no corresponding entry on the January 15, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 15, 2002 was that of the Member.

(w) The narcotic control record for January 18, 2002 states that at 20:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the January 18, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 18, 2002 was that of the Member.

(x) The narcotic control record for January 19, 2002 states that at 13:00 and 13:40 hours, the Member signed for Hydromorphone for [client D]. There were no corresponding entries on the January 19, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 19, 2002 was that of the Member.

(y) The narcotic control record for January 20, 2002 states that at 14:15 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the January 20, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 20, 2002 was that of the Member.

(z) The narcotic control record for January 22, 2002 states that at 14:15 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the January 22, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for January 22, 2002 was that of the Member.

(aa) The panel was unable to identify evidence relevant to this allegation.

(bb) The narcotic control record for February 27, 2002 states that at 22:15 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the February 27, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for February 27, 2002 was that of the Member.

(cc) The narcotic control record for March 4, 2002 states that at 11:00 and 14:10 hours, the Member signed for Hydromorphone for [client D]. There were no corresponding entries on the March 4, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for March 4, 2002 was that of the Member.

(dd) The narcotic control record for March 7, 2002 states that at 14:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the March 7, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for March 7, 2002 was that of the Member.

(ee) The narcotic control record for March 8, 2002 states that at 11:45 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the March 8, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for March 8, 2002 was that of the Member.

(ff) The narcotic control record for March 29, 2002 states that at 18:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the March 29, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for March 29, 2002 was that of the Member.

(gg) The narcotic control record for April 8, 2002 states that at 04:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the April 8, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for April 8, 2002 was that of the Member.

(hh) The narcotic control record for April 9, 2002 states that at 03:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the April 9, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for April 9, 2002 was that of the Member.

(ii) The narcotic control record for April 11, 2002 states that at 0010, 0100 and 0330 hours, the Member signed for Hydromorphone for [client D]. There were no corresponding entries on the April 11, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for April 11, 2002 was that of the Member.

(jj) The narcotic control record for April 12, 2002 states that at 00:00 hours, the Member signed for Hydromorphone for [client D]. There is no corresponding entry on the April 12, 2002 MAR for [client D].

[The Manager] testified that the signature on the narcotic control record for April 12, 2002 was that of the Member.

Notice of Hearing, paragraph# 5, subparagraphs (a) and (b): Allegation of Professional Misconduct- While employed at [the Hospital] in that the Member engaged in conduct or performed an act relevant to the practice of nursing that would reasonably be regarded by members as disgraceful, dishonourable and/or unprofessional with respect to taking a vial Hydromorphone from her workplace on or about July 18, 2002 and failing to routinely make entries in the MAR as required. (Issue #3)

The panel concluded that the evidence to support findings for paragraph # 5, subparagraph (a) is the same as the evidence presented in paragraph # 2. Similarly, the evidence to support findings for paragraph # 5 subparagraph (b) is the same as the evidence presented in paragraph # 3.

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 deliberated and agreed with the College Counsel’s request to dismiss the allegations set out in paragraph # 1, paragraph # 4 and paragraph # 5, subparagraph (c), of the Notice of Hearing.

Having considered the evidence 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 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(8) of the Ontario Regulations 799/93 in that while employed at [the Hospital], the Member misappropriated property from her workplace. Specifically, on July 18, 2002, the Member took a vial of Hydromorphone from her workplace.
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(13) of the Ontario Regulations 799/93, while employed at [the Hospital], the Member failed to keep records. The panel found that the Member failed to keep records on 35 occasions. These findings relate to paragraph # 3, all subparagraphs with the exception of subparagraph (aa).
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 the Ontario Regulations 799/93, while employed at [the Hospital], the Member engaged in conduct or performed an act, relevant to the practice of nursing that, having regard for all of the circumstances, would be reasonably regarded by Members as disgraceful, dishonourable and unprofessional. In particular on July 18, 2002, the Member took a vial of Hydromorphone from her workplace, and between January and July 2002, the Member failed to make entries in the MARs on 35 occasions.

The panel was unable to find clear, cogent and convincing evidence to support findings in relation to paragraph # 3, subparagraph (aa) of the Notice of Hearing. The panel did not find that the evidence presented by the College met the standard of proof required by the Bernstein decision to support a finding.

Reasons for Decision

Credibility Assessments Generally

[The Manager], RN, Clinical Manager of Complex and Clinical Care

[The Manager] testified that in the summer of 2002, she was the Charge Nurse at the Complex Continuing Care Unit in the [ ] unit of [the Hospital]. The testimony of this witness was given in a straightforward, objective, calm and reflective manner. The witness had no difficulty in responding to questions posed to her by College Counsel. The witness appeared not to have any interest in the outcome of the hearing. The panel found the witness to be credible and accepted her testimony.

[RPN A], RPN, presently retired

[RPN A] testified that in the summer of 2002, she was a team leader on the Complex Continuing Care Unit at [the Hospital]. She stated that the Member was a co-worker whose responsibilities were also those of a team leader. [RPN A] testified that the Member had given medications to her patients when she was off the floor, on break. The panel found this witness’s testimony inconsistent and difficult to follow. The testimony of this witness did not supply the panel with any evidence to support the allegations. The panel gave little or no weight to the testimony of this witness.

The Specific Allegations

The panel heard evidence from the witness, [the Manager] to support the allegation that the Member had taken the Hydromorphone on July 18, 2002. Additional evidence included the narcotic control record for the Member’s team, which made it clear to the panel that one vial of Hydromorphone was missing during the time when only the Member had access to the narcotics in the medication cart.

The panel was convinced that the Member had abandoned her medication responsibilities by throwing the keys and leaving the unit. It is reasonable that, upon the Member’s departure, other nurses would complete the narcotic count prior to transferring the responsibility of holding the keys for the medication cart. It was also clear to the panel that the Member had sole control and responsibility for the keys from 1500 hours until 1610 hours on July 18, 2002.

The panel relied on the Narcotics and Medication Administration Records in relation to this allegation. The panel noted that the Member had consistently signed the narcotics control record without documenting administration of that narcotic on the respective patient MAR. [The Manager] provided significant assistance to the panel by verifying the Member’s signature for each entry.

The panel noted that when narcotics are signed out for a specific patient, there should always be a corresponding entry on the patient’s MAR. The panel reviewed both the narcotic control sheet and the MAR for each of the subparagraphs in relation to paragraph #3. The panel found that on 35 occasions, the Member failed to keep accurate records. Consequently, the panel made a finding of professional misconduct in relation to the allegation contained in this paragraph. As previously noted, the panel concluded what was alleged in subparagraph (aa) was not proven.

The panel relied on the testimony of [the Manager] and the records produced during the hearing in order to determine whether the allegation(s) contained in this paragraph had been proven. Having made finding in relation to the allegations contained in paragraphs # 2 and # 3, the panel then considered whether this conduct or these acts were relevant to the practice of nursing and would reasonably be regarded by members as disgraceful, dishonourable and/or unprofessional.

The panel considered that the number of findings of professional misconduct made against the Member, the significant breach of the Member’s duty to act responsibly, and what the panel considered to be the Member’s total lack of accountability were relevant to its consideration of whether the allegation in this paragraph had been proven. Having considered those findings, and all of the evidence in this case, the panel found the Member’s conduct to be properly characterized as disgraceful, dishonourable and unprofessional.

Penalty

Counsel of the College submitted that the appropriate penalty order would be one:

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 date this Order becomes final or within three (3) months of the Member reinstating her certificate of registration, whichever is later.
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.
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 documentation, 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 twenty-four 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:

A. confirmation of the date the Member commenced or resumed employment;

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

C. confirmation that the employer agrees to have a Registered Nurse who is a member of the College (the “Monitor”) and employed at the same facility as the Member conduct periodic reviews of the Member’s practice with respect to medication administration and documentation. The reviews will consist of a review of patient records, narcotic administration records, and narcotic withdrawal records to ensure the Member is meeting the standards of practice with respect to narcotic administration and documentation and shall occur monthly for the first twelve (12) months and bi-monthly for the following twelve (12) months;

D. confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has failed to meet the standards of the profession, including information relating to the results of the reviews completed by the Monitor.

Counsel for the College submitted that the Member has a long discipline history with the College and that her registration has been suspended in relation to other matters since May 2, 2005. He submitted that 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 on the appropriate penalty order in this case and considered College Counsel’s submissions on penalty. At the conclusion of its deliberations, the panel announced that it agreed with the proposed penalty and accordingly made a penalty order:

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 date this Order becomes final or within three (3) months of the Member reinstating her certificate of registration, whichever is later.
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.
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 documentation, including the on-line participation form;

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

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;

A. confirmation of the date the Member commenced or resumed employment;

B. 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 led on the hearing and argument presented by the College. The panel accepted the College’s submission on penalty as appropriate.

The penalty provides a deterrent to both the Member and membership. The penalty protects the public by sending a clear message that members must be accountable to the College. The Member’s failure to attend this hearing or to otherwise acknowledge her accountability to the College demonstrates a lack of respect for the authority of this College and for the Discipline Committee.

The panel felt that the penalty also offers the Member rehabilitation opportunities should she choose to reinstate her certificate of registration. The monitoring provisions provide protection to the public and insure that a future employer is aware of these findings and is partnering with the College to monitor the Member’s practice.

The panel is of the opinion that this decision sends a strong message to the membership in relation to accurate and complete documentation of patient records. In addition, misappropriation of employer property represents a breach of trust that erodes public confidence in the nursing profession. Public trust is an honour that can only be upheld through nurses’ collective accountability to the College.

I, Denise Dietrich, 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:

Anne McKenzie, RPN

Faira Bari, Public Member

Grace Isgro-Topping, Public Member

Footnotes

The panel was asked to dismiss the allegations set out in paragraphs #1, and #4 and #5, subparagraph (c), the text of which is not reproduced in this decision.

College of Nurses of Ontario v. Barry, 2006 CanLII 81784

Case Summary

The Allegations

Member’s Plea

Overview

The Evidence

Decision

Reasons for Decision

Penalty

Penalty Decision

Reasons for Penalty Decision

Footnotes

College of Nurses of Ontario v. Barry, 2006 CanLII 81784

Case Summary

The Allegations

Member’s Plea

Overview

The Evidence

Decision

Reasons for Decision

Penalty

Penalty Decision

Reasons for Penalty Decision

Footnotes