College of Nurses of Ontario v. Sandra D. Hill, 2006 ONCNO 81785

PANEL: Denise Dietrich, RPN Chairperson Lori McInerney, RN Member Jim Attwood, RN Member Bill Dowson Public Member

Brian Stewart Public Member BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) GLYNNIS BURT for

) College of Nurses of Ontario

and - ) NO REPRESENTATION for

) Sandra D. Hill

Registration No. 8621971 ) BRIAN GOVER

) Independent Legal Counsel

) Heard: March 20 – 24, 2006

April 24 – 26, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on March 20 -24, 2006 and April 24 – 26, 2006 at the College of Nurses of Ontario (the “College”) at Toronto. The hearing was unusual in that it was uncontested in some respects (Sandra Hill admitting that she engaged in conduct or acts that would reasonably be regarded as unprofessional), but contested in other respects. Moreover, as explained below, Sandra Hill (the “Member”) ultimately withdrew from the hearing, which proceeded to its conclusion in her absence.

Procedural History

The Member represented herself in this hearing.

The Member admitted a limited number of allegations and denied the remaining. As a result, the panel made findings of professional misconduct relating to the allegations admitted by the Member, leaving penalty to be considered following a decision in regard to the contested allegations.

College counsel proceeded to call witnesses. Upon completion of the College’s case, the Member indicated she was not ready to proceed, as her witness was not available. The panel adjourned the hearing until the next scheduled day.

The hearing re-convened and the Member called and examined her witness. Upon completion of the testimony of that witness, the Member indicated that she also had some information that she wanted to present to the panel. Both the panel Chair and College counsel informed the Member that in order to provide evidence, she would have to testify as a witness. It was explained that any information she provided in the course of cross-examining College witnesses, submissions or other dialogue could not be considered as evidence.

The Member advised that she did not want to become a witness. She stated that she felt stressed representing herself, that she was not a lawyer and that she planned to leave the proceedings at that time and not return for the remainder of the hearing.

The panel Chair and College counsel both advised the Member if she had evidence that she wished the panel to consider, this would be the time to do so as a witness and under oath.

The panel remained concerned with the Member’s understanding of the process and her rights. The panel contacted Independent Legal Counsel, Brian Gover for advice. Mr. Gover, via telephone on speaker in the hearing room addressed the panel’s concerns. Mr Gover advised the Member of her right to choose whether to give evidence and whether to make submissions. He reviewed the purpose of submissions, which included the opportunity to tie all the issues together and persuade the panel that the College has not proven their case. Mr. Gover explained it was important for the Member to know that the panel would be making its decision solely on the basis of the evidence before them. He explained that evidence includes testimony, exhibits or both. Mr. Gover also explained that evidence could not be provided during closing submissions. In other words, the Member would not be able to refer to new facts in those submissions.

The Member again stated that she planned to leave the hearing and not return. The hearing was recessed for an extended lunch period. When the hearing reconvened, the Member was not present, nor was she represented. College counsel proceeded to present final submissions. On two occasions after the Member left the hearing, the Hearings Administrator contacted the Member by telephone at the panel’s request to keep her informed of the proceedings. The panel was advised that during the second call, the Member clearly stated that she did not want to receive any further updates or calls from the College. The hearing proceeded to a conclusion without the presence of the Member or any representation on her behalf.

In summary, these proceedings began with the Member acting as her own representative. She participated in the hearing until her only witness had finished testifying. Although she was encouraged to return for the remainder of the hearing, she was not present or represented during College counsel’s final submissions and the penalty phase of this hearing.

The Allegations

The allegations against Sandra Hill, the Member as stated in the Notice of Hearing dated November 28, 2005 (Exhibit 1), were as follows:¹

You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.1 of Ontario Regulation 799/93, in that in the period July 2000 to December 30, 2000, while co-owner of [the Residence] and the sole nurse responsible for resident care at [the Residence]², you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, in that you:

(a) placed [the resident] in restraints unnecessarily when other methods of calming [the resident] had not been tried; and/or

(b) kept [the resident] in restraints for long periods of time without appropriate assessments and/or exercise; and/or

(c) placed [the resident] in restraints and kept him there without following the [the Residence] Restraint Policy; and/or

(d) confined [the resident] to [the resident’s] room for a number of consecutive days, including Christmas Day 2000, with the recommendation that restraints be used continually, and without appropriate monitoring and assessment; and/or

(e) failed to provide appropriate training to unregulated care providers at [the Residence] with respect to:

(f)

(i) the application of restraints; and/or

(ii) the appropriate care and treatment of residents in restraints; and/or

(iii) the appropriate communication to nursing staff of changes in resident’s behaviour and/or condition; and/or

(iv) how to change a dressing; and/or

(v) administration of medication to residents and/or the appropriate documentation thereof; and/or

(g) failed to hire sufficient staff at [the Residence] to ensure that residents were appropriately cared for such that restraints would not need to be used except as a last resort; and/or

(h) failed to ensure that [the resident] received [ ] medications as prescribed while a resident of [the Residence]; and/or

(i) failed to provide access to required medical attention for [the resident] in circumstances where [the Residence] had assumed the responsibility of providing access to required medical attention.

You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.3 of Ontario Regulation 799/93, in that in the period July 2000 to December 30, 2000, while co-owner of [the Residence] seniors’ residence and the sole nurse responsible for resident care at [the Residence], you directed a member, student or other health care team member to perform nursing functions for which he or she was not adequately trained or that he or she was not competent to perform, in that you:

(a) directed unregulated care providers at [the Residence] to use restraints on residents at [the Residence] without providing training with respect to:

(i) the appropriate application and/or use of restraints; and/or

(ii) the appropriate assessment and monitoring of residents in restraints; and/or

(iii) the appropriate exercising of residents in restraints; and/or

(b) directed unregulated care providers to change dressings without providing training with respect thereto; and/or

(c) directed unregulated care providers to administer medications to residents at [the Residence] without providing training with respect to:

(i) how and when to administer medications to residents of [the Residence]; and/or

(ii) how to document the administration of the medications.

You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.7 of Ontario Regulation 799/93, in that in December 2000, while co-owner of [the Residence] seniors’ residence and the sole nurse responsible for resident care at [the Residence], you abused a client verbally, physically or emotionally, in that you:

(a) placed [the resident] in restraints unnecessarily when other methods of calming [the resident] had not been tried; and/or

(b) kept [the resident] in restraints for long periods of time without appropriate assessments and/or exercise; and/or

(c) placed [the resident] in restraints and kept [the resident] there without following the [the Residence] Restraint Policy; and/or

You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.28 of Ontario Regulation 799/93, in that in January 2001, while co-owner of [the Residence] and the sole nurse responsible for resident care at [the Residence], you submitted an account or charge for services that you knew was false or misleading, in that you sent an account to [the resident’s spouse] under cover of letter dated January 19, 2001, in which you requested payment for 120 hours of one-on-one nursing care allegedly provided to [the resident] on December 16, 17, 23, 24 and 25, 2000, in circumstances where you knew that one-on-one nursing care had not been provided to [the resident] on one or all of those dates.
You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.37 of Ontario Regulation 799/93, in that in the period of July 2000 to December 30, 2000, while co-owner of [the Residence] and the sole nurse responsible for resident care at [the Residence], 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) placed [the resident] in restraints unnecessarily when other methods of calming [the resident] had not been tried; and/or

(b) kept [the resident] in restraints for long periods of time without appropriate assessments and/or exercise; and/or

(c) placed [the resident] in restraints and kept [the resident] there without following the [the Residence] Restraint Policy; and/or

(e) failed to provide appropriate training to unregulated care providers at [the Residence] with respect to:

(i) the application of restraints; and/or

(ii) the appropriate care and treatment of residents in restraints; and/or

(iii) the appropriate communication to nursing staff of changes in resident’s behaviour and/or condition; and/or

(iv) how to change a dressing; and/or

(v) administration of medication to residents and/or the appropriate documentation thereof; and/or

(f) failed to hire sufficient staff at [the Residence] to ensure that residents were appropriately cared for such that restraints would not need to be used except as a last resort; and/or

(g) failed to ensure that [the resident] received [ ] medications as prescribed while a resident of [the Residence]; and/or

(h) failed to provide access to required medical attention for [the resident] in circumstances where [the Residence] had assumed the responsibility of providing access to required medical attention; and/or

(i) submitted an account or charge for services that you knew was false or misleading, in that you sent an account to [the resident’s spouse] under cover of letter dated January 19, 2001, in which you requested payment for 120 hours of one-on-one nursing care allegedly provided to [the resident] on December 16, 17, 23, 24 and 25, 2000, in circumstances where you knew that one-on-one nursing care had not been provided to [the resident] on one or all of those dates; and/or

(j) provided misleading and untruthful information about [the Residence] to prospective residents and/or their families, in that you:

(i) represented in the [the Residence] brochure that there was a doctor on call when there was not; and/or

(ii) represented in the [the Residence] brochure that attentive staff would be provided when in fact residents at [the Residence] were restrained and/or placed in diapers or Depends garments because there were insufficient staff to attend to residents’ needs; and/or

(iii) represented in the [the Residence] brochure that there were “especially trained” staff and represented in the Information Guide that staff were “highly trained” when there were staff members caring for residents who were not trained health care aides or personal support workers and/or staff members who received no training with respect to some of the tasks they were required to perform at [the Residence]; and/or

(iv) represented in the [the Residence] brochure that “visiting friends and relatives are always welcome” and in the Information Guide that visitors were encouraged when you in fact asked [the resident’s] family not to visit [ ] at [the Residence] in December 2000; and/or

(v) represented in a brochure an elaborate menu for residents at [the Residence] which menu was not in fact followed; and/or

(k) set up a seniors’ residence which was inappropriate in that it breached local zoning by-laws and was not in compliance with the Ontario Fire Code and the Ontario Electrical Safety Code.

Member’s Plea

The Member admitted allegations 5(j)(i), 5(j)(iii), 5(j)(v) and 5(k) as set out in the Notice of Hearing. The panel conducted a plea inquiry and also received a signed plea inquiry dated March 20, 2006. The panel was satisfied that the Member’s admission was voluntary, informed and unequivocal. The Member denied the remaining allegations as set out in the Notice of Hearing.

Agreed Statement of Facts

An Agreed Statement of Facts was filed as Exhibit 2 by College counsel, who reviewed its contents with the panel. The Member declined the opportunity to make submissions concerning the Agreed Statement of Facts, which provided as follows:

THE MEMBER

Sandra D. Hill obtained her Diploma in Nursing from [ ] in 1985. Ms Hill became a member of the College of Nurses of Ontario on January 23, 1986.
Prior to December 30, 2000 (the day that [the resident], died), Ms Hill worked as a registered nurse at [Hospital A], and then at [Hospital B]. At [Hospital B] Ms Hill worked on the Dialysis Unit, the Oncology unit, and then on the Medicine Unit.

[THE RESIDENCE]

Ms Hill was the co-owner and operator of [the Residence]. [The Residence] was a privately-owned seniors' residence located in [ ]. [The Residence] was operated in a home in a residential neighbourhood.
[The Residence] opened in or about late July 2000 and remained in operation until approximately February 2001.
Ms Hill was the only nurse who worked at [the Residence]. The co-owner of [the Residence] was not a nurse and had no medical training.
The Brochure for [the Residence] that was shown to prospective residents and/or family members of potential residents of [the Residence] indicated that there was a doctor on-call at [the Residence]. A copy of the Brochure for [the Residence] is included in the Brief of Documents that will be distributed at the Hearing.
Ms Hill admits that [the Residence] did not have a physician on-call to care for the residents' needs, in spite of what was indicated in the Brochure for [the Residence]. Ms Hill accepts that she ought to have proof-read the Brochure more carefully.
The Brochure for [the Residence] indicated that there were "especially trained" staff. The Information Guide for [the Residence] indicated that staff were "highly trained". Both of these documents were shown to prospective residents and/or family members of potential residents of [the Residence]. A copy of the Information Guide is also included in the Brief of Documents that will be distributed at the Hearing.
In spite of the foregoing representations, Ms Hill admits that she hired at least two staff members who provided care to residents of [the Residence] who had no training to provide care for the residents of [the Residence]. In particular, they were not trained personal support workers or health care aides. The first of these staff members was [staff member A]. [Staff member A] was initially hired to clean [the Residence] and/or to prepare meals. [Staff member A] eventually provided some care to the residents of [the Residence], in spite of the fact that she had received no education as a personal support worker or health care aide. The second of these staff members was [staff member B]. [Staff member B] was hired as a personal support worker. At the time that she was hired, [staff member B] was working on a diploma as a human services counsellor but had no education as a personal support worker or health care aide. Ms Hill knew at the time that she hired [staff member B] that [staff member B] was not a trained personal support worker or health care aide. Ms Hill was of the view that [staff member B’s] human services counselling education and experience would be beneficial to the residents of [the Residence].
The Dining Menu for [the Residence] was a printed document that was shown to prospective residents and/or family members of potential residents of [the Residence]. The Dining Menu for [the Residence] indicated that an elaborate menu would be served on certain days of the week at [the Residence]. For example, the Dining Menu indicated that on Wednesday, roast lamb or steak, among other things, would be served for Dinner. The Dining Menu did not indicate that the menus were sample menus only. A copy of the Dining Menu is also included in the Brief of Documents that will be distributed at the Hearing.
Ms Hill admits that the menus which were indicated in the Dining Menu for [the Residence] were not in fact followed, and that residents of [the Residence] received meals that were not indicated on the Dining Menu.
Ms Hill admits that [the Residence] was opened as a seniors' residence in spite of the fact that it did not comply with local zoning by-laws, the Ontario Fire Code and the Ontario Electrical Safety Code. Copies of documents from the Department of Corporate Services of the City of [ ] (pertaining to a fire code inspection of [the Residence]), the Electrical Safety Authority (Hazardous Investigation Defect Notices pertaining to [the Residence]), and the Department of Development Services of the City of [ ] (pertaining to by-law enforcement and property standards investigations at [the Residence], which refer to the various deficiencies and infractions, are included in the Brief of Documents that will be distributed at the Hearing. Ms Hill acknowledges that she ought to have been more attentive to the details of running a privately-owned seniors' residence.

ADMISSIONS

The Member admits that she committed acts of professional misconduct as provided by subsection 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 of July 2000 to December 30, 2000, while co-owner of [the Residence] seniors' residence and the sole nurse responsible for resident care at [the Residence], she 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 unprofessional, in that she:
provided misleading and untruthful information about [the Residence] to prospective residents and/or their families, in that she:

a) represented in the [the Residence] brochure that there was a doctor on call when there was not;

i. represented in the [the Residence] brochure that there were

'especially' trained' staff and represented in the Information Guide that staff were 'highly trained' when there were staff members caring for residents who were not trained health care aides or personal support workers; and,

represented in a brochure an elaborate menu for residents at [the Residence] which menu was not in fact followed; and

(b) set up a seniors' residence which was inappropriate in that it breached local zoning by-laws and was not in compliance with the Ontario Fire Code and the Ontario Electrical Safety Code.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct as specified in allegations 5(j)(i), 5(j)(iii), 5(j)(v) and 5(k) of the Notice of Hearing. However, the panel deferred consideration of penalty until completion of the contested aspect of the hearing.

Overview – Balance of Hearing

The Member, Sandra Hill, is an RN and was a founder, co-owner and operator of a privately owned senior’s residence known as [the Residence] located in a residential neighbourhood in [ ]. [The Residence] opened in July 2000 and remained in operation until approximately February 2001. The co-owner was not a nurse, nor did she have any medical training. The Member was the only nurse who worked at this residence, usually in an administrative role, as she was then employed as an RN at [ ]. During the time that [the Residence] was in operation, the Member hired three people to provide care to residents when none of these three had any prior health care training. The remainder of the staff hired were unregulated health care providers.

There were as many as six vulnerable seniors living in the residence at any one time. Their conditions included Dementia, Alzheimer’s and a variety of medical and physical conditions, which required care and assistance.

[The resident] was admitted to [the Residence] soon after it opened and remained until [the resident’s] death on December 30, 2000. [The resident’s] family placed [the resident] at [the Residence] believing [the resident] would be provided care of the quality promised by the Member.

The panel identified 10 issues to be determined in relation to its consideration of the remaining allegations. Each arises from the Member’s ownership and operation of [the Residence], as it related to the care provided to [the resident]:

Issues:

Use of restraints, use of restraints unnecessarily when other methods of calming had not been tried, lack of appropriate assessment and exercise in association with the use of restraints, and application of [the Residence] restraint policy;
Confinement of [the resident] to [the resident’s] room in restraints continually for a number of consecutive days;
Failure to provide appropriate training to unregulated health care providers at [the Residence] regarding the use of restraints, communication, dressing changes and medication administration;
Directing [the Residence] staff to perform nursing functions that they were not adequately trained or competent to perform, including the use of restraints, dressing changes and administration of medications;
Failure to hire sufficient staff;
Failure to ensure medications were provided as prescribed;
Failure to access required medical attention;
Abuse of a resident verbally, physically and emotionally;
Charging for services that were not provided; and
Representing that visiting friends and relatives were always welcome at [the Residence] (when in fact, this was not the case).

The panel made findings of professional misconduct relating to all the stated issues except for failure to train staff to communicate concerns and ordered revocation of the Member’s certificate of registration.

The Evidence

Issue # 1: Professional misconduct, failure to meet the standards of practice, and disgraceful, dishonourable and or unprofessional behaviour regarding the use of restraints, use of restraints unnecessarily when other methods of calming had not been tried, lack of appropriate assessment and exercise in association with the use of restraints, and application of [the Residence] restraint policy.

[Staff member C] testified she was hired by the Member and her partner in September 2000 and worked there until its closure in 2001. She had completed the Health Care Aide (HCA) course at [ ] in 1985. Her duties were to include providing personal care, cleaning and cooking and administration of medications.

[Staff member C] recalled seeing a restraint policy in the charts of residents at [the Residence] but did not remember speaking with the Member regarding this policy. The policy included the following information:

[the Residence] had a general policy of least restraint;
staff should restrain only if all other methods of calming failed;
consent to restrain must be obtained from the family;
a posey jacket was to be used only when restraining in a chair;
residents were to be walked hourly if in a posey jacket;
soft cloth restraints were to be used on the wrist and ankles if the resident was very aggressive, but only with consent of RN and family;
if soft restraints were used, they were to be removed hourly with range of motion exercises;
there was a requirement to document if a resident was at risk for falls, in which case restraints could be used for safety purposes; and
Ativan was considered a restraint at [the Residence] – and the RN to be notified of behavioural changes.

[Staff member C] recalled using a posey jacket on [the resident] in December 2000. She described [the resident] as agitated and difficult to settle. While wearing a posey jacket, [the resident] was able to move the chair [the resident] was sitting on. The witness was afraid [the resident] might strangle and was not aware of other methods to calm [the resident], so she contacted the Member by phone. [Staff member C] testified she was instructed by the Member to use hand and arm restraints. Not knowing how to use these, the witness received instructions from the Member during a telephone call. [Staff member C] proceeded to apply restraints to [the resident’s] arms securing them to the arms of the chair. [Staff member C] then placed a sheet around [the resident’s] waist and tied it behind the chair and then secured [the resident’s] legs to the legs of the chair. This testimony was confirmed in her note in [the resident’s] progress notes dated December 20, 2000 (0900 – 1800). “Was talking to Sandra Said to Put arm restraints on [ ] [sic] did. Placed sheet restraint [resident] got out of it. So Sandra suggested I Put them on [resident’s] legs so I did and they stayed on has quieted down a bit”.

[Staff member C] reviewed her progress note for [the resident] for December 25, 2000, (0900 – 2100). The note read “kept yelling all day and getting out of posy jacket x 8 did get out once and went to bath Rm”. In cross-examination [Staff member C] testified that [the resident] would be in restraints for a couple of hours and then would be walked and toileted.

[Staff member D] testified she came to work at [the Residence] in December 2000 and was there until [the Residence] closed in February 2001. During her employment interview with the Member she indicated that she had worked at a retirement home in [another country] but had no specific health care education or training. It was during her employment at [the Residence] that she learned what Alzheimer’s Disease is. [Staff member D] indicated she was hired to provide personal care, assist residents as needed, do the housework and cooking and administer medications. The witness testified that in December, 2001, she left [the Residence], she received training and certification as a Personal Service Worker (“PSW”).

When shown the [the Residence] restraint policy, [staff member D] testified that she had not seen it prior to the hearing and was not aware of its existence.

[Staff member D] recalled finding [the resident] in restraints when she came to work, so she would continue using the restraints as other staff had. She testified it was normal for [the resident] to be in restraints, as [the resident] would fall frequently. [The resident] would be in restraints in the morning, out at lunch and then out in the evening to use the bathroom. [Staff member D] testified she did not release [the resident] from [the resident’s] restraints in order to permit him to exercise.

Methods used by [staff member D] to restrain [the resident] included:

using a posey jacket while in a chair;
a sheet tied around [the] waist while in a chair;
a sheet over [the] waist, tucked in between the mattresses while in bed; and
giving Ativan, sometimes in consultation with the Member.

From December 16 to December 30, 2000, apart from one or two occasions, [the resident] slept in a chair rather than in [the resident’s] bed. [Staff member D] was not aware of any other methods to use to calm [the resident] and was not aware of the need to assess and provide exercise.

[Staff member D] recalled being instructed by the Member that if visitors were coming to visit, she was to remove restraints in place.

[Staff member B] was hired to work at [the Residence] in December 2000 by the Member and was there until February 2001. She testified she was hired as a “helper”. She did not recall a specific title to her job. [Staff member B] testified she had no training or education in health care. She told the panel that she was hired to work from 1800 hours to 2100 hours two to three times each week. Her duties included cleaning, toileting, personal care (including the changing of Depends), assisting with mobility and administration of medications.

[Staff member B] indicated that she did not see a restraint policy while at [the Residence]. [Staff member B] testified that [the resident] was in restraints every shift that she worked. She would get [the resident] up for an occasional walk; otherwise [the resident] was kept in restraints. If [the resident] were sleeping she would not get [the resident]up. [The resident] slept in a posey jacket.

On November 19, 2000, the Member wrote a note in the logbook instructing the staff not to leave another resident in [the resident’s] bed all day. “Do not allow this [resident] to be in bed all day put pillow on chair and tie a sheet around [the resident] if you have to keep [the resident] in chair”.

[The Senior Care Expert], RN was presented to the panel for qualification as an expert in the care of seniors.

A review of [the Senior Care Expert’s] curriculum vitae indicated he has a diploma in Nursing, two Bachelor of Arts degrees and a Master’s degree in Health Sciences. His positions in health care have included the following positions:

clinician in gerontology at [ ] General Hospital responsible for ensuring best practice and continuing care for elderly of the hospital population;
Assistant Director of [ ];
Director of Care [ ] (a long term care home for 210 seniors);
Chief Executive Officer, [ ]; and
presently, Director, [ ].

The panel deliberated and qualified [the Senior Care Expert] as an expert in the care of seniors.

[The Senior Care Expert] testified:

it is only appropriate to use restraints when a patient is a danger to themselves or others;
restraints should not be used to allow a care provider time to provide care to other residents;
each care giver needs to assess the need for restraint; and
the resident should be assessed as to why the agitation is occurring and whether other interventions such as decreased stimulation, talking with resident, or distraction will diffuse the agitation.

[The Senior Care Expert] testified that in his opinion, the [the Residence] restraint policy did not comply with the standards of practice of the College of Nurses. He described this policy as vague, and pointed out that it clearly defines the concept of least restraint. He found the policy to be unclear in relation to consent and the use of chemical and soft cloth restraints. [The Senior Care Expert] testified that only commercially produced restraints should be used, as they would have been tested for safety.

[The Senior Care Expert] was led through a number of scenarios regarding the use of restraints. He testified that a resident would be placed at unnecessary risk of harm if the resident were restrained:

to a chair using a sheet around the waist;
to a bed with a sheet at the waist and tucked in under the mattress;
without using other methods to calm residents before resorting to use of restraints; and
for long periods of time (2–3 hours) without exercise or assessment.

Further, it is the responsibility of the nurse to provide ongoing assessment regarding the need for use of restraints and to determine if there are other interventions available to calm the resident. [The Senior Care Expert] testified that using restraints as described above would constitute professional misconduct, a failure to meet the standards of practice, and behaviour that would be considered by the members of the College to be disgraceful, dishonourable and unprofessional.

Issue # 2: Professional misconduct, failure to meet the standards of practice and disgraceful, dishonourable and or unprofessional behaviour regarding confinement of [the client] to his room in restraints continually for a number of consecutive days.

[Staff member C] testified because of a shortage of staff relating to a sick call, she worked 34 hours continuously beginning December 24, 2000 at 1200 ending December 25, 2000 at 2200 hours. The Member was busy with family, so she was unable to relieve her. This was not the first time when she had worked more than 24 hours consecutively. [Staff member C] testified that during this time period, [the resident] was confined to [the resident’s] room except to go to the washroom and was restrained using a waist sheet.

Issue #3: Professional misconduct, failure to meet the standards of practice, and disgraceful, dishonourable and or unprofessional behaviour regarding failure to provide appropriate training to unregulated health care providers at [the Residence] regarding the use of and care for residents in restraints, communication, dressing changes and medication administration.

Issue # 4: Professional misconduct by directing [the Residence] staff to perform nursing functions for which they were not adequately trained or that they were not competent to perform, including the use of and care for residents in restraints, dressing changes and administration medications.

The panel considered these two issues to be closely related and that the evidence relevant to one of these issues was therefore also relevant to the other.

[Staff member E] testified the Member hired her in July 2000 as a Health Care Aid [(“HCA”) until the Residence] closed. She attended [ ] Community College receiving education as a Health Care Aide in 1996. [Staff member E] testified she:

did not recall receive any training from the Member regarding the application of restraints, alternatives to restraint use or the care of residents in restraints;
had received instruction from the Member regarding administration and documentation of medications and changing a dressing for one of the residents; and
was instructed to call 911 and the Member in an emergency.

[Staff member F] testified she was hired by the Member to work at [the Residence] in August 2000. This was her first job as a PSW since her graduation from [ ] College PSW certification course in April or May 2000. Her duties included housework, cooking, laundry, and personal care. She has since become an RPN, graduating from the two-year program at [ ] College. Her employment at [the Residence] ended in mid-September 2000 when she received a voicemail at home from [ ], the other co-owner, informing her that her employment was being terminated. She assumed she was “let go” as she had disagreed with the way things were done at [the Residence]. [Staff member F] testified:

when she enquired if she would receive an orientation, she was told that [staff member E], another [Residence] staff member would spend a half hour at the end of her shift to show her around and that she was expected to learn as she went along;
she did not receive any training from the Member regarding the application of restraints, alternatives to restraint use or the care of residents in restraints;
she did not receive any training from the Member regarding the application of dressings;
she did not receive any training regarding the administration or documentation of medications from the Member; and
if a client was ill, she was to call the Member or her business partner.

[Staff member F] recalled one of the residents required a dressing for [the resident’s] stump. In order to change this dressing she looked at the dressing that was in place and tried to copy it. She also recalled approaching the Member about documentation of medications. She stated she “felt belittled”. The Member felt [staff member F] should know how to document medication administration. [Staff member F] asked co-workers for help, but was told they did not know how to document medications, and therefore were not able to assist her.

[Staff member G] was hired by the Member to work at [the Residence] to cook, clean, and provide care to the residents. She was trained as a PSW and had worked for [ ], a homemaking and nursing agency, in the past. [Staff member G] testified she left [the Residence] in November 2000, within weeks of starting work there, as she thought it was not a good environment. She stated she did not like the way some of the residents were treated. [Staff member G] testified that the Member instructed her to provide care to one of the residents last as [the resident] was “racist and had fondled [the resident’s] daughter”. [Staff member G] testified she:

felt she had no training needs as she felt qualified to do the job;
did not receive any training from the Member regarding the application of restraints, alternatives to restraint use or the care of residents in restraints;
was told about medications by the Member including the time to give them;
was not able to define the term “prn”;
could not recall if the Member taught her how to document medication administration;
was instructed to call the Member if a resident became ill or if there was an emergency; and
recalled an occasion when she called for an ambulance for a resident who was ill, which resulted in a disagreement with the Member and her decision to leave [the Residence].

During cross-examination by the Member, [staff member G] testified that she could not read handwriting and would print if necessary. She testified she did not document anything at [the Residence]. If she had anything to communicate to the Member, she would just speak to her.

[Staff member C] testified:

she had not received any training from the Member regarding the application, use or care of a resident in restraints;
she had not received any training about dressing changes;
she did not receive any training from the Member regarding medication administration or documentation; and
if she believed a resident required medical care she was to call the Member.

[Staff member C] recalled that when she was required to do a dressing change for a resident with a stump, the Member instructed her over the phone. She also testified that a male PSW who worked at [the Residence] instructed her how to administer and document medications.

On September 21, 2000 the Member made and signed a notation to staff in the logbook that stated in part, “Medications are not being signed. I do not want to get very upset but I found a lot of meds not signed. I have signed them off. So do not let this happen again. Sign off the chart correctly.”

[The Senior Care Expert] testified that when a member of the College delegates a task to an unregulated health care provider, he/she is responsible to ensure that there has been the appropriate training regarding the risks and benefits. The Member must be assured through demonstration of the task on more than one occasion that the unregulated health care provider is able to perform the task competently.

[The Senior Care Expert] testified that it is inappropriate for a member to delegate training of unregulated health care providers to another unregulated health care provider. In failing to provide the training required, the Member failed to meet the standards of practice, and engaged behaviour that would be considered by the members of the College to be disgraceful, dishonourable and unprofessional.

Issue # 5: Professional misconduct, failure to meet the standards of practice, and disgraceful, dishonourable and or unprofessional behaviour regarding failing to hire sufficient staff at [the Residence] to ensure that residents were appropriately cared for such that restraints would not need to be used except as a last resort.

Both [staff members D and G] testified that one staff member per shift was not adequate to provide for the needs of the residents at [the Residence]. [Staff member C] stated she thought that if more than one staff member was on each shift, there would have been a decreased need for the use of restraints.

[Staff member H] testified that the Member hired her in October 2000. She had undergone training as a PSW 15 years before. Her experience included working in a group home with Alzheimer’s and Dementia patients and providing home care in the community with [ ]. [Staff member H] left [the Residence] after three months, as she did not feel comfortable. [Staff member H] testified that the Member had ordered her to place restraints on [the resident], but that she did not do so. She testified that she had tried her best to provide care for the four residents at [the Residence] while she was there, but that one staff member was not enough.

[The Senior Care Expert] testified that restraints should not used to enable providers to be available to care for other residents. The number of residents at the facility does not change a member’s responsibility to practice within the standards of practice. Care delegated to others must be provided within the standards of practice of the nursing profession.

Issue # 6: Professional misconduct, failure to meet the standards of practice, and disgraceful, dishonourable and or unprofessional behaviour regarding failure to ensure that [the client] received his medications as prescribed while a resident of [the Residence].

[The physician] testified he had been the family physician for [the resident] since 1970. The last time he saw [the resident] was in his office in October 2000. He had prescribed a one month supply of [the resident’s] regular medications including Risperidone, Lisinopril, Pepsid, Enteric Coated ASA, folic acid and Ativan prn. [The physician’s] practice was to prescribe a one month supply, as he believed that patients receiving these medications should be assessed before receiving another supply. Since [the resident] had not returned for another visit, [the resident’s] medication prescription was not renewed, particularly [the resident’s] Risperidone. [The physician] said he would expect to see an increase in aggressive behaviour without this medication.

[Staff member E] reviewed the [the Residence] medication administration records for [the resident]. There were spaces on the medication record that did not have an initial indicating that the medication ordered had been administered. Review of records indicated that [the resident] had not received:

Risperidone 0.5mg at 2100 hours on August 5, 6, 7 and 8, 2000;
Risperidone 0.50 mg at 2100 hours on September 7, 8, 11, 13, 15, 18, 20, 21, 25 and 27, 2000;
Risperidone 0.25mg on November 10, 2000;
Lisinopril 5 mg Folic Acid, ASA 325mg at 0900 on November 10, 2000;
0.50 mg Risperidone at 2100 on November 20 and 27,2000;
Risperidone .25mg at 0900 and Pepsid 20mg at 2100 on December 15, 2000; and
ASA 325mg at 0900 on December 20 and 24,2000.

[Staff member C] testified the Member would remove any medications left in the dossettes at the end of the week that had not been administered.

[The pathologist] testified that he is a medical doctor with a specialty in pathology. [The pathologist’s] curriculum vitae was reviewed demonstrating his extensive education and professional experience, particularly relating to pathology. [The pathologist] had conducted [the resident’s] autopsy. The post mortem toxicology report of [the resident] indicated that there was no Risperidone detected in his blood.

[The Senior Care Expert] testified that the [the Residence] medication administration record was inadequate, as it did not have a code system to indicate why a medication may not have been given. Examples of this would include medication refused or not available in the facility at the time. In the absence of such documentation, [The Senior Care Expert] testified, the operative principle would be “not documented, not given”. [The Senior Care Expert] testified that failure to administer medications as ordered would clearly constitute a failure to meet the standards of practice and such behaviour would be considered to be disgraceful, dishonourable and unprofessional.

Issue # 7: Professional misconduct, failure to meet the standards of practice, and disgraceful, dishonourable and/or unprofessional behaviour by failing to provide access to required medical attention for [the resident] in circumstances where [the Residence] had assumed the responsibility of providing access to required medical attention.

[ ], daughter of [the resident] testified that she accompanied her sister and [another family member] to meet with the Member to arrange her [parent’s] admission to [the Residence]. The Member asked them if they wished [the Residence] to be responsible for taking her [parent] to the family doctor for visits as required. They indicated that this was their request. This testimony was supported by a document in [the resident]’s chart, which read, “DO YOU WANT US TO TAKE RESIDENT? (to family doctor)---Y----”

[The physician] testified that he last saw [the resident] in October, 2000 and was not aware of any transfer of care from himself to any other physician. The Member had invoiced the family for taking [the resident] to appointments to see [the physician] in both September and October, 2000, and this invoice was an exhibit in the proceedings.

The testimony of [staff member E] indicated that in December, 2000 [the resident] was wheezy, had a runny nose and was agitated. [Staff member E] noted blood in [the resident’s] phlegm in her charting of December 26,2000. [Staff member C] noted that [the resident] was eating less, was agitated and less active. [Staff member B], who began working at [the Residence] in December, noted that [the resident] was coughing phlegm, was becoming less mobile, had a decreased appetite and was not as strong as [the resident] had been. [Staff member B] recalled telling the Member of her concerns, but did not recall her response. [Staff member D] described [the resident] as being in a poor state.

On December 30, 2000 at 1800 hours, the Member documented in [the resident’s] chart that [the resident] was pale, with audible wheezes. The family was contacted to request a DNR order. At 1830 she noted [the resident] to have a low blood pressure, pulse of 110 and to be pale in colour. Additionally, the Member charted that an ambulance was called, as [the resident] was unresponsive other than to pain, with eyes fixed, blood pressure of 80/50, and rapid laboured respirations at a rate of 28.

The ambulance report reflected that a call was received at 1857 hours, requesting an ambulance to attend at [the Residence]. The ambulance arrived at [the Residence] at 1908 and transported [the resident] to hospital. [The resident] was pronounced dead at 2010 hours.

[The Pathologist] testified that autopsy findings included cause of death to be bronchopneumonia and lung abscess.

[The Senior Care Expert] indicated that as early as November, [the resident’s] physical changes (including increased agitation, decreased sleep and decreased appetite) should have been assessed by the Member to indicate the need for a visit to [the resident’s] doctor for assessment. Failure to provide access to required medical attention is clearly a failure to meet the standards of practice, and disgraceful, dishonourable and unprofessional behaviour.

Issue # 8: Professional misconduct relating to the abuse of [the resident] verbally, physically and emotionally by placing [the resident] in restraints unnecessarily when other methods of calming had not been tried, keeping [the resident] in restraints for long periods of time without appropriate assessments and/or exercise, placing [the resident] in restraints, keeping [the resident] there without following the [the Residence] Restraint Policy, confining [the resident] to [the resident’s] room for a number of consecutive days including Christmas Day 2000, with the recommendation that restraints be used continually, and without appropriate monitoring and assessment.

The testimony of [staff members C, D, B and H and the Senior Care Expert] in relation to issues 1, 2 and 5 reflected physical and emotional abuse of [the resident]. [The Senior Care Expert] reviewed a number of scenarios mimicking the situations in which [the resident] was placed and the allegations made. [The Senior Care Expert] testified that in his opinion, the actions taken were abusive, both physically and emotionally. [The Senior Care Expert] also testified that greater harm could be caused by the inappropriate use of restraints. The resident could harm themselves by falling or be suspended, leading to suffocation. He informed the panel that there are documented cases of death caused by restraints. As well, a resident placed in restraints for extended periods of time, without assessment or exercise or confined to their room, would be considered to be emotionally abused.

Issue #9: Professional misconduct, failure to meet the standards of practice, and disgraceful, dishonourable and or unprofessional behaviour by submitting a charge for-one-to-one nursing care services that you knew had not been provided to [the resident]

[ ], another daughter of [the resident], identified a copy of an invoice that her [family member] had received from the Member, requesting payment for 120 hours of 1:1 care on December 16, 17, 23, 24 and 25, 2000. She stated that the family had refused to pay this invoice, as they felt it was a fraudulent request -- she knew that only one staff was present during these dates. [The daughter] testified that by the end of November or early December, the number of visits she made to visit her [parent] had decreased. In cross-examination, the witness testified that she had not visited her [parent] on the dates when the invoice indicated that 1:1 care had been provided. Therefore, she had not directly observed whether or not this care had been provided.

[Staff member C] testified that she worked a 34-hour shift beginning December 24,2000 at 1200 hours and finished on December 25,2000, at 2200 hours. This being Christmas, with the Member’s permission she arranged to have her children come to [the Residence], where she cooked turkey.

[Staff member C] also testified that she was the only [Residence] staff member present during her shifts on December 16, 17, 24 and 25, 2000. Under cross-examination, [Staff member C] testified that from December 16 to the 30, 2000 her daughter worked with her as helper.

When reviewing the medication records [staff member H] identified the medications she had given to [the resident] on December 23, 2000. [Staff member H] stated that no one provided 1:1 care to [the resident] in December when she was working.

Issue # 10: Professional misconduct by engaging in conduct that would be considered by members of the profession to be disgraceful, dishonourable and or unprofessional by representing that visiting friends and relatives were always welcome at [the Residence] (when in fact, this was not the case).

[ ], one of [the resident]’s, daughters, testified that she met with the Member when considering [the Residence] as a care centre for her [parent]. At that time, the Member reviewed a number of policies including the visiting policy. The policy stated “[the Residence] encourages visiting for all clients.” [The daughter] testified her family later had been told not to visit [the resident] because [the resident] would become agitated when they visited.

[The resident’s] other daughter, [ ], testified that her [family member] was instructed to call to arrange a visit in late December and that the Member would not be available to arrange a visit until December 30, 2000.

[Staff member C] substantiated [the daughter’s] testimony when she told the panel that she had spoken with [the resident’s family member] in December 2000, telling [the family member] not to come and visit [the resident]. When asked why she did this, she testified that the Member had instructed her to tell the family not to come, without providing an explanation to her.

Defence Witness

The Member called one witness, [ ]. [The defence witness] testified that her aunt was a client at [the Residence] from September 2000 until her death on January 1, 2001. She visited her aunt twice a day. Some visits were as short as five minutes and others lasted for a couple of hours. The witness expressed happiness with [the Residence] and the care her aunt received. She testified that if she had concerns she would contact the Member, who would resolve them.

[The defence witness] testified that she did not feel clients at [the Residence] were restrained so staff could do their work.

[The defence witness] recalled seeing [ ], another client, restrained to a chair because he would become over-energetic. She recalled that he would be untied while she was there.

[The defence witness] denied witnessing any verbal, physical or emotional abuse to residents by staff. She felt that there were adequate numbers of staff based on a 1:6 ratio and that staff were adequately trained.

Providing a layperson’s opinion of the Member as a nurse, she testified that the Member was courteous, professional, polite and capable. She testified that she never saw the Member in a flap or upset, and that the Member communicated in a forthright manner.

[The defence witness] testified that [the resident] was always asking for [the resident’s family]. She did not recall ever seeing [the resident] restrained.

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.

Having considered the evidence and the onus and standard of proof, the panel finds that the Member:

committed acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.1 of Ontario Regulation 799/93 in that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as specified in allegations 1(a), (b), (c), (d), (e), (f)(i), (f)(ii), (f)(iv), (f)(v), (g), (h) and (i);
committed acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.3 of Ontario Regulation 799/93, in that she directed other health care team member to perform nursing functions for which she was not adequately trained or that he or she was not competent to perform specifically, as specified in allegations 2(a)(i), (a)(ii), (a)(iii), (b) and (c);
committed acts of professional misconduct as provided by subsection 51(1) (c) of the Health Professions Procedural Code and defined in paragraph 1.7 of Ontario Regulation 799/93, in that she abused a client physically and emotionally, as specified in allegations 3(a), (b), (c) and (d);
committed an act of professional misconduct as provided by subsection 51(1) (c) of the Health Professions Procedural Code and defined in paragraph 1.28 of Ontario Regulation 799/93, in that she submitted an account or charge for services that she knew was false or misleading by requesting payment for 120 hours of one-on-one nursing care for [the resident] where she knew that one-on-one nursing care had not been provided to [the resident] on one or all of those dates, as specified in allegation 4; and
committed acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.37 of Ontario Regulation 799/93, in that she engaged in conduct and performed acts relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional as specified in allegations 5(a), (b), (c), (d), (e), (f), (g), (h), (i), (j)(ii) and (j)(iv).³

The panel did not make a finding relating to allegation 1(e)(f) which alleged contravention of a standard of practice of the profession or a failure to meet the standard of practice of the profession by “failing to provide appropriate training to unregulated care providers at [the Residence] with respect to the appropriate communication to nursing staff of changes in resident’s behaviour and/or condition.” The panel did not find that the College had met the standard of proof in accordance with the Bernstein decision to support a finding in that respect.

Reasons for Decision

Issue #1

Through the consistent testimony of numerous witnesses who were hired by the Member, it became clear to the panel that both physical and chemical restraints were used frequently, without first assessing if there were other, more suitable methods to calm [the resident]. Once applied, restraints would be left in place for extended periods (2 – 3 hours or more), without removal or exercise once an hour as indicated should occur in the [the Residence] restraint policy. The panel concluded that as the only nurse, the Member was responsible for the care given by the staff at [the Residence]. The Member did not provide any evidence to contradict that conclusion. In fact, [the defence witness], supported the testimony of [staff member D] that restraints were removed when visitors were present.

Issue #2

The testimony of [staff member C] was compelling regarding the confinement of [the resident] to [the resident’s] room in restraints continually for a number of consecutive days. [Staff member C] had very good reason to remember this as it was Christmas and she had spent 34 hours at work instead of at home with her family. [Staff member C] demonstrated the compassion she had for the residents of [the Residence] by agreeing to stay and provide care for them while the Member attended to her family commitments. The Member provided no evidence in respect to confinement of [the resident], and therefore, none that contradicted the evidence of [Staff member C] in this respect.

Issues #3 and 4

In reviewing the testimony of staff, the panel was convinced that many of the staff at [the Residence] had not received appropriate education or training from the Member regarding the use of restraints, dressing changes and medication administration, if they had received any such education and training from her at all. Their testimony substantiated the allegation that the Member directed staff to perform functions for which they were not trained or which they were not competent to perform. Staff hired early in [the Residence’s] existence received some training when there were fewer residents to care for, but this training was substandard. The Member’s own September 21, 2000 note in the logbook clearly demonstrates a knowledge deficit regarding the administration of medication, following inappropriate education. The expert testimony of [the Senior Care Expert] provided the panel with a basis to conclude that the Member committed professional misconduct, in that she failed to meet the standards of practice, and engaged in behaviour that would be considered by the members of the College to be disgraceful, dishonourable and unprofessional. Although [the defence witness] indicated she felt staff members were adequately trained, the panel concluded she lacks the professional nursing knowledge to make this determination. The Member did not provide any expert evidence for the panel to consider.

Testimony from [the Residence] staff clearly indicated that the Member had given instructions regarding communication concerning patients’ conditions. Staff members were required to notify her of changes in patient condition. The panel did not find that the Member failed to meet the standards of practice or engaged in behaviour that would be considered by the members of the College to be disgraceful, dishonourable and unprofessional by failing to train unregulated health care providers at [the Residence] with respect to communication (allegations 1(e)/(f)(iii) and 5(e)(iii)).

Issue #5

The panel reflected on the testimony of [staff members G, D, C and H]. [Staff member C] clearly indicated that they felt restraints would not have been needed if more staff had been assigned to each shift. The panel concluded that a staffing ratio of 1:6 might have been sufficient if the staff hired had the appropriate qualifications and training. This was not the case at [the Residence]. The Member did not provide education and training to staff regarding the assessment and alternatives for restraints. The Member did not provide any evidence that the panel could consider regarding this issue.

Issue #6

There was no evidence that [the resident] had seen another physician after [the resident’s] visit to [the physician] in October, or that [the resident] had received a prescription for [the resident’s] medications from another physician. In view of the absence of Risperidone in [the resident’s] blood post mortem, the numerous times when medications were not administered, and the testimony of [staff member C] that at the end of the week, the Member disposed of medications that had not been administered, the panel could come to no conclusion other than that [the resident] had not received [the resident’s] medications. The Member did not provide any evidence regarding medication administration for the panel’s consideration.

Issue #7

The Member assumed the responsibility of seeing that [the resident] would obtain medical care as required. The last time [the resident] was seen by [the resident’s] family physician was October 2000. As early as November, [the resident’s] condition clearly indicated a need for assessment by a physician. [The resident] was not assessed, resulting in deterioration of [the resident’s] condition. On December 30, 2000 [the resident] was assessed by the Member, who did not immediately seek additional care, resulting in a significant delay before arrival of EMS, transport to hospital, and appropriate care and intervention. The Member did not submit any evidence for consideration of this issue. The panel could come to no conclusion other than that the Member failed to meet the standards of practice and engaged in conduct or an act that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional when she failed to provide access to required medical attention for [the resident].

Issue #8

Through the evidence of staff regarding the inappropriate, prolonged use of restraints and confinement for long periods, the panel was led to the conclusion that [the resident] would have suffered both emotional and physical abuse as a resident at [the Residence]. The expert testimony of [The Senior Care Expert] provided the panel with further basis to make this finding. [The defence witness] testified that she did not feel that clients (including [the resident]) had suffered physical or emotional abuse. The panel concluded that [the defence witness] was not aware of what would constitute abuse in relation to the use of restraints and confinement, and discounted her evidence accordingly.

Issue #9

Testimony provided by [staff members H and C] substantiated the allegation that the Member submitted an invoice to the family of [the resident] for 1:1 nursing care when this was not provided. As it was Christmas and having to provide Christmas dinner to her children at [the Residence], [Staff member C] had particular reason to recall that there were no other staff there providing 1:1 care to him. The Member did not provide any evidence for our consideration of this issue.

Issue #10

The visiting policy of [the Residence] clearly indicated that residents’ family members were welcome. Through the testimony of [the resident’s] daughters and [Staff member C], it was clear to the panel that not only was [the resident’s] family not encouraged to visit, they were prohibited from doing so as a result of the Member’s instructions to her staff. The testimony of [the defence witness] indicated that [the resident] regularly communicated [the resident’s] desire to see [the resident’s family.]

Credibility

[Staff member C]: [Staff member C] was an employee at [the Residence] for most of the time the residence was in operation. She came to [the Residence] with education as an [the Residence]A. [Staff member A] had many opportunities to be involved in the care of [the resident] and other residents. [Staff member A] worked more than 12 hours on more than one occasion. Over Christmas of 2000 she worked a 34-hour shift, giving her cause to remember the details of the use of restraints and confinement of [the resident] for prolonged periods. The panel found her to be honest. She readily indicated when she could recall information and when she could not. [Staff member A’s] testimony was consistent with the testimony of other witnesses. The panel found [Staff member A] to be a credible witness.

[Staff member D] [Staff member D] was employed at [the Residence] for approximately two months on a part-time basis. She has no work experience or education relating to health care. As all her time at [the Residence] would have been a new experience for her, it stood to reason that she could easily recall her experiences in detail. Her testimony was supported by the entries she made in the logbook and the chart of [the resident]. [Staff member D’s] testimony was similar to the testimony of other witnesses. The panel found the testimony of [Staff member D] to be credible.

[Staff member B]: [Staff member B] came to [the Residence] without any training in health care and she stayed for approximately two months. She had reason to accurately recall her experiences, as they were all new and unusual for her. Her testimony was consistent with those of other witnesses and was supported by the entries she made in the documentation at [the Residence]. The panel found [staff member B] to be a credible witness.

[The Senior Care Expert]: [The Senior Care Expert] was presented and accepted as an expert witness in the care of seniors. His experience and knowledge provided a basis for testimony relating to professional misconduct in the form of contravening or failing to meet the standards of practice of the profession in caring for seniors. [The Senior Care Expert] was precise and detailed in his testimony. When unclear regarding a question, he sought clarification before answering. [The Senior Care Expert] had no interest in the outcome of the hearing. The panel found [The Senior Care Expert] to be a credible witness.

[Staff member E]: [Staff member E] came to [the Residence] with education as an HCA. [Staff member E] was honest in her limited recollection of events at [the Residence]. She required frequent reference to the notes she made in the documentation at [the Residence]. The value of her testimony was limited, but she was helpful in the review of [the resident’s] medications records and her documentation of [the resident’s] health condition. The testimony provided by reference to documentation was supported by testimony of other witnesses. [Staff member E] was found by the panel to be a credible witness.

[Staff member F]: [Staff member F] worked at [the Residence] for approximately one month during August/September 2000. She had recently graduated as a PSW. This was her first job as a PSW. As this position was a negative experience relating to her termination, she had particular cause to easily remember the details of her time there. The panel considered the possibility that she could have reason to seek retribution for her termination, and therefore may have an interest in the outcome of this hearing. [Staff member F] testified in a calm and fluid manner. She did not hesitate recalling details. The panel found her to be forthright with a clear recollection of the care she provided and her interactions with the Member. [Staff member F’s] testimony was consistent with testimony of other witnesses. The panel found her to be a credible witness.

[Staff member G]: [Staff member G] worked at [the Residence] for a period of approximately two months as a PSW. She testified that she left [the Residence] on her own accord as she did not like the way residents were being treated. [Staff member G’s] testimony was limited to recalling her observations, as she did not document in the records of [the Residence]. In her testimony, [staff member G] disclosed her inability to read. [Staff member G] was easily able to recall her experiences at [the Residence]. [Staff member G] was found by the panel to be a credible and honest witness.

[Staff member H]: [Staff member H] was employed at [the Residence] as a PSW leaving after three months, as she was uncomfortable there. [Staff member H] readily acknowledged when she could or could not recall information. [Staff member H] had clear recollection of the time when she was requested by the Member to place [the resident] in restraints but refused to do so. The panel believed such an interaction would be particularly memorable, as the witness would have been challenging the authority of her employer. The panel found [staff member H] to be a credible witness.

[The physician]: [The physician] had been the [the resident]’s family physician for approximately 15 years. With the aid of his office chart, he clearly testified as to the care and assessment he provided to [the resident] while he was a resident at [the Residence]. [The physician] practised a routine of not renewing prescriptions such as Risperidone over the telephone, as a physical assessment of the client would be required. The panel found it believable that if [the physician’s] records showed the last visit of [the resident] to his office was in October 2000, then [the resident] had not received a renewal of [the resident’s] prescription for Risperidone and other medications by [the physician]. The panel did not believe that [the physician] had any interest in the outcome of this hearing and found him to be a credible witness.

[The pathologist]: [The pathologist] was the pathologist who performed the autopsy on [the resident]. He had an extensive list of credentials and experience relating to his specialty in pathology. [The pathologist’s] testimony included a review the autopsy report, giving clear, understandable explanations of his findings. [The pathologist] had no interest in the outcome of the hearing and the panel found his testimony to be credible.

[The daughter]: [ ] was the daughter of [the resident]. Her recollection of meetings held with the Member when her family was considering placement of her [parent] at [the Residence] and the care provided while a resident there was given without hesitation. [The daughter’s] testimony was substantiated by that of [staff member C] regarding the Member’s instructions that the family not be permitted to visit [the resident]. [The daughter] became emotional and tearful during her testimony, demonstrating her grief. The panel believed that this witness had an interest in the outcome as she suffered a personal loss and was seeking justice. The panel did not believe that this affected her ability to be honest in her testimony. The panel found this witness to be credible.

[The daughter]: [ ] was also a daughter of [the resident]. Her memory was clear regarding her interactions with the Member and staff at [the Residence]. [The daughter] was able to recall her experiences while visiting her [parent] at [the Residence] in substantial detail. The panel found her testimony to be honest, sometimes causing her to become emotional. [The daughter] also had an interest in the outcome, seeking justice for the premature loss of her [parent]. The panel did not believe that this and other factors diminished her reliability, and therefore we accepted her as a credible witness.

[The defence witness]: [The defence witness’s] aunt was a resident at [the Residence] while [the resident] was a resident. She had a clear recollection of her frequent visits and the care her aunt received. [The defence witness] admitted that she had not seen the Notice of Hearing, nor did she have any knowledge regarding the allegations against the Member. The panel did not find that [the defence witness] had an interest in the outcome of this hearing. [The defence witness] testified regarding her opinion whether residents suffered abuse while at [the Residence]. Additionally, she gave her opinion as to whether the training of staff and the number of staff working was adequate. The panel did not believe [the defence witness] had the expertise or knowledge in these areas, so we did not give weight to her testimony in consideration of these issues. The panel believed her testimony was honest. She answered questions without hesitation. The panel believed [the defence witness] to be credible but concluded that her testimony had

Penalty

College counsel informed the panel that an order directing revocation of the Member’s certificate of registration was being requested. This order would provide specific deterrence to the Member in that this would prevent re-occurrence of these forms of professional misconduct. General deterrence would be provided by sending a message to the members that operating this kind of unregulated facility using one’s professional status to obtain residents and then to misrepresent and fail to provide the services will not be tolerated. This is particularly so in circumstances where the decisions regarding operation of the facility may result in financial gain to a member at the expense of quality care to the clients.

The elderly in our society deserve to be protected, especially as the need for these types of facilities increases as the number of elderly in our population rises. The Member placed herself in an administrative and supervisory role and then abdicated responsibility for it. The Member was also involved in acts of dishonesty by misrepresenting the services at [the Residence] and by invoicing for services not provided.

[The resident’s] health was seriously compromised by the use of restraints. [The resident] was deprived of some medications, competent and qualified staff to care for [the resident] and timely medical attention. All this was exacerbated by the Member’s direction that [the resident’s] family not be allowed to visit [the resident], which denied [the resident] the opportunity to be seen by someone who loved [the resident] and would have intervened on [the resident’s] behalf to seek medical care and attention.

Mitigating factors included:

the fact that the Member has no prior discipline history; and
her admission to allegations 5(j)(i), 5(j)(iii), 5(v) and 5(k) in the Notice of Hearing.

Aggravating factors included:

this was not an isolated occurrence, but rather many acts over many months with abdication of responsibility as nurse and owner/operator of the facility;
many findings of professional misconduct were made, relating to breach of the standards of practice, abuse and disgraceful and dishonourable and unprofessional behaviour as well as dishonestly;
serious harm resulted relating to the breach of the standards of practice, as [the resident] died a miserable death from a treatable illness;
the Member abused the trust placed in her that she voluntarily assumed;
the Member took advantage of vulnerable members of our society, namely the elderly suffering from Alzheimer’s Disease and dementia;
there was evidence of financial motivation at the expense of the clients of [the Residence]; and
the Member’s failure to be accountable to the panel representing her governing body, the College by leaving the proceedings prematurely and not participating until the conclusion of the hearing.

The victim impact is significant, as [the resident’s] family trusted the Member to provide the care she had promised to their loved one. [The resident] was not able to enjoy [the resident’s] life to the fullest extent possible. [The resident’s] family was denied the opportunity to be with [the resident] when [the resident] died. The Member then preyed on their grief by providing fraudulent information and requesting reimbursement for services that were not provided. [The resident’s] family was left feeling that [the resident] had died prematurely without dignity, in pain and suffering.

College counsel again requested that the panel order revocation for all the reasons submitted. Counsel then submitted that as an alternative, if the panel did not agree with revocation, we might consider the following penalty:

oral reprimand;
18 month suspension of the Member’s certificate of registration;
imposition of considerable terms, limitations and conditions on the Member’s certificate of registration, to include:

i. taking a leadership and management courses in nursing;

ii. not be permitted to assume an administrative or supervisory role until proof of course completion is submitted to the director of investigations;

iii. at the Member’s expense and within the 18 months, the Member would be required to meet with a nurse of the College’s choosing with an expertise in geriatric nursing and experience in administration and supervision that has been informed of the findings and has been provided with a copy of the decision. The Member would review with this expert the appropriate use of restraints, appropriate treatment and care of patients with Alzheimer’s Disease and dementia, consent, and medication administration and documentation; and

iv. there would be a minimum number of hours (perhaps four) spent with this expert. Until such time as the expert concludes that the Member has gained insight into and grasps the issues and has filed a report to that effect with the College, the Member would not be permitted to return to nursing

the Member would be subject to a two year period of monitoring; and
the Member’s employer(s) would receive and acknowledge receipt of a copy of the decision.

Penalty Decision

The panel carefully deliberated and ordered that the Member’s certificate of registration be revoked.

Reasons for Penalty Decision

The panel’s concern for protection of the public was a paramount consideration. The Member provided no assurances or evidence that the public would not be in jeopardy under her direct care or as she supervised or directed others to provide care. The findings of professional misconduct were numerous, and that misconduct caused very serious harm. The panel felt strongly that under these circumstances, if we are to fulfill our obligation to protect the public, revocation is the only appropriate penalty.

This penalty will provide general deterrence to the College’s membership. The panel is of the opinion that the message needs to be clear that when a nurse endeavours to become a care provider for personal profit with unregulated staff, that nurse continues to be accountable to the College. All care provided must meet the College’s standards of practice.

The Member abused the trust given to her and was dishonest in failing to provide the services she promised and in billing for services not provided. Honesty is a basic keystone of nursing, and the Member has failed to live up to this fundamental requirement.

Furthermore, the panel was concerned that that the Member is ungovernable, as demonstrated by her departure from the hearing and failure to participate in its completion.

I, Denise Dietrich, 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:

Lori McInerney, RN

Jim Attwood, RN

Bill Dowson, Public Member

Brian Stewart, Public Member

Footnotes

Allegations admitted by the Member have been put in bold font, for ease of reference.
Although the facility was referred to as “[ ]” in the Notice of Hearing, it was referred to as “[ ]” in the Agreed Statement of Facts and other evidence.
In respect of allegation (j)(iii), a review of the evidence indicates that the Member hired three staff to work at [the Residence] who were untrained, not two as indicated in the Agreed Statement of Facts. However, the panel accepts that any finding by it in this respect is governed by the Agreed Statement of Facts (Exhibit #2).