College of Nurses of Ontario v. Michel, 2006 CanLII 81786

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Deanne Barber, RPN Chairperson Anne McKenzie, RPN Member Shiela Pendock, RN Member Faira Bari Public Member Bill Dowson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) CAROLINE ZAYID for ) College of Nurses of Ontario

• and - )

CHRISTIANNE MICHEL, RN ) SUSAN BALLANTYNE for Registration No. 9806480 ) Christianne Michel

) Heard: June 19, 20 and 21, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 19, 20 and 21, 2006 at Ottawa, Ontario.

The Allegations

The allegations against Christianne Michel (the “Member”) as stated in the Notice of Hearing dated March 22, 2006, (Exhibit # 1) are as follows:

1. 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 paragraph 1.01 of Ontario Regulation 799/93, in that on or about February 8, 2003, while employed at [the facility] as a Registered Nurse (“RN”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when you physically assaulted another employee, [the Food Service Supervisor] by striking her about the upper arms and chest.

2. 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 paragraph 1.37 of the Ontario Regulation 799/93, while employed at [the facility] as a Registered Nurse (“RN”), you engaged in conduct or performed act or acts relevant to the practice of nursing that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, and in particular:

(a) on or about February 8, 2003, you physically assaulted [the Food Service Supervisor], another employee at [the facility], by striking her on the upper arms and chest area.

Member’s Plea

The Member admitted the allegations.

The panel conducted a plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal. A signed plea inquiry was presented to the panel.

Despite the Member’s admission of professional misconduct, there was a dispute as to the facts in this case, and a hearing proceeded in order to determine those facts.

Overview

The Member, a Registered Nurse, was employed at [the facility], a long term care facility. On February 8, 2003, there was a dispute among staff over who would be Charge Nurse that day. This escalated into a physical altercation between the Member and [the Food Service Supervisor] and the Duty Manager who was in charge of the facility that weekend. The Member struck or pushed [the Food Service Supervisor] which resulted in a red mark on her upper chest and bruising on her arms which developed a few days later.

The Evidence

Witness #1 – [Director of Care], RN

[The Director of Care] graduated as a Registered Nurse in 1999. She worked full-time at [the facility] for four years and resigned approximately a month after the incident occurred. She started working at [the facility] as a full-time nurse and became the Director of Care (DOC) approximately nine months before the incident occurred. [The Director of Care] was the sixth Director of Care hired since [the facility] opened in June of 2000. [The facility] consisted of four floors with 124 residents. [The Director of Care’s] responsibilities included hiring and firing of staff, managing client files, accepting new clients through [an agency] as well as other duties. She was also on call every fifth weekend, rotating with four other managers, three of whom were not nurses.

[The Director of Care] testified that [ ], the Administrator of the facility, made the decision that [RN A] was capable of being in charge. She stated that on February 8, she was paged at approximately 7:15 to 7:30 a.m. She returned the page and spoke with the Member. [The Director of Care] stated that she advised the Member that [RN A] was to be the Charge Nurse and told the Member to give the keys and the Charge Nurse binder to [RN A]. The Member refused to do this. The witness further testified that the Member was verbally aggressive and upset that she was not the Charge Nurse and said to [the Director of Care], “I fucking hate you; I wish you were dead, you are the worst Director of Care we have ever had”. [The Director of Care] stated that she offered to give the Member the additional 75 cents per hour that a Charge Nurse gets paid, but that Ms. Michel should pass out the pills.

The Member had been the Charge Nurse until the new full-time nurse ([RN A]) was able to take on the role. The witness went on to say that she then called [RN A] and [the Food Service Supervisor] , the manager on call, and advised them both that the Member was upset because she was not the Charge Nurse and had been personally abusive to [the Director of Care] on the phone. [The Director of Care] stated that she was concerned for the residents and assumed [the Food Service Supervisor] would tell the Member to take the day off with pay and to come in the next day. According to [the Director of Care], the Member was one of the most experienced nurses and had been on the facility’s seniority list. There was a very high rate of staff turnover at the facility. [The Food Service Supervisor] could not recall if any paperwork was filed, or if an incident report had been made.

This witness appeared calm and answered questions in a straightforward manner during questioning by counsel for the College. During questioning by counsel for the Member, the witness’ body language, tone and general demeanour became defensive and her responses were vague. She often replied, “I do not know”. The panel found this witness had an inconsistent ability to recall the incident.

Witness #2 – [RN A], RN

[RN A] graduated from [ ] College in 1998. She had been employed at [the facility] since September, 2002. She left the facility three months after the incident. [RN A] testified that she worked full time as the unit manager / day nurse on the gentle care unit (1st Floor) at [the facility]. She finished her probationary period in January, 2003 and had become the Director of Care on an interim basis. [RN A] stated that the weekend of the incident was her first weekend as Charge Nurse. The Member was Charge Nurse prior to [RN A].

The witness testified that she received a call from [the Director of Care] advising her that the Member was upset because she was not assigned to be the Charge Nurse. [RN A] stated that after the telephone call with [the Director of Care], she and [the Food Service Supervisor] walked toward the elevator intending to speak with the Member and obtain the keys and Charge Nurse Binder.

The witness stated that as the Member stepped off the elevator, the Member started yelling and was upset. The Member spoke to [the Food Service Supervisor] and said, “I’ve always been Charge Nurse and why not today?” [RN A] testified that [the Food Service Supervisor] responded to the Member, saying that the Member had not shown up for work two weeks before. [RN A] went on to say that the Member then punched [the Food Service Supervisor] in the chest. The witness testified that she said “stop this” and stepped between the Member and [the Food Service Supervisor]. The witness stated that [the Food Service Supervisor] asked the Member to leave the building. [RN A] further testified that the Member had been pushing [the Food Service Supervisor] on the shoulders and that [the Food Service Supervisor] grabbed the Member’s arms. The incident lasted about one minute. [RN A] stated that she and the Member then went to the third floor. The witness also stated that the Member did not swear.

The panel found the testimony of this witness to be honest and forthright, which led us to believe that some physical contact took place between both parties.

Witness #3 – [The Administrator], RN

[The Administrator] has been a Registered Nurse since 1990 and received her degree in 2004. She became the Administrator of [the facility] in June, 2002 and left this employment in March, 2004.

[The Administrator] testified that she was not present at the facility on the day the incident occurred but was notified by phone. She stated that [the facility] was a challenging place to work due to the language and culture of the residents ([ ]). The witness did not recall how the Charge Nurse, for the day in question, was chosen but stated that the DOC would usually be responsible but may have consulted with her.

[The Administrator] further stated that she met with [the Food Service Supervisor and RN A] about the incident. She decided that [the Food Service Supervisor] had defended herself and that the Member was abusive and unprofessional. As a result, the Member’s employment was terminated. [The Administrator] did not remember if she took notes or not. She said that if she had, she would have left any notes at the facility. The witness identified two exhibits as letters she had sent; Exhibit #2 (letter terminating the Member’s employment) and Exhibit #3 (letter to CNO).

Although the panel found this witness to be honest and credible, her testimony as to the events of the day was of little value since she was not present at the facility. Her testimony contradicted the testimony of [the Director of Care’s] in that she stated that the DOC was usually responsible for determining who would be Charge Nurse, whereas [the Director of Care] stated it was [the Administrator] who decided that [RN A] was to be in charge.

Witness #4 – [ ], Police Officer

[The Officer] testified that she had responded to a phone call on the day of the incident and went to [the facility]. Her handwritten notes and Occurrence Report were filed as Exhibit #4. [The Officer] testified that her notes had been completed in her car immediately following the incident. The witness stated that she observed a large red mark on [the Food Service Supervisor’s] left upper chest below the shoulder. No other marks were observed. When asked if [the Food Service Supervisor] complained of pain in her arm the witness said she could not recall – if she had, it would have been noted. [The Officer] also did not recall being advised of any punch. She testified that the victim, [the Food Service Supervisor], was visibly upset; she was shaking and her voice trembled. She did not recall the Member’s condition. [The Officer] further testified that [the Food Service Supervisor] did not wish to press charges. She also stated that the Member did not resist when [the Officer] escorted her off the property.

The panel found the testimony of [the Officer] to be clear, concise and reliable.

Witness #5 – [Dr. A], MD

[Dr. A] is a Family Practitioner and the Medical Director of [the facility]. Regarding the incident of February 8, 2003, [Dr. A] acknowledged his handwritten and typed copy of his notes which were filed as Exhibit #5. [Dr. A] stated that [the Food Service Supervisor] reported to him that she was punched on the left upper chest. On examination of the area, his impression was a soft tissue injury, full range of motion with mild tenderness in the left shoulder. His impression was that the patient had mild anxiety and shock. He observed her to be calm and coherent.

[Dr. A] had no interest in the outcome of this case. The panel found his testimony to be clear and credible,

Witness #6 - [ ] – Food Service Supervisor

[The Food Service Supervisor] had worked as a Food Service Supervisor for seven years in long term care. She had been Food Service Supervisor at [the facility] for three months prior to the incident. She was responsible for all services related to food.

[The Food Service Supervisor] testified that she was one of the five managers who rotated in acting as duty manager on the weekends. She knew the Member by sight but did not have much contact with her as the Member worked part-time. [The Food Service Supervisor] identified Exhibit #7 as her signed notes, dated February 8, 2003. [The Food Service Supervisor] stated that she arrived at work at 7:30 a.m. and almost immediately received a phone call from [the Director of Care], stating the Member had been verbally abusive to her and that the Member was upset that she was not the Charge Nurse. [The Director of Care] asked the witness to see what was going on.

[The Food Service Supervisor] further testified that both her and [RN A] walked towards the first floor elevator as the Member got off. She stated that a verbal exchange ensued in which the Member raised her voice and said, “What is going on – who do you think you are?”. The witness said she responded by saying, “I’m the duty manager responsible. The last time I was the duty manager you did not show up”. [The Food Service Supervisor] admitted that she probably raised her voice as well. The witness then went on to testify,

“...the Member then came up closer to me to the point where her chest bumped mine, her face was close, and she was banging on my shoulders alternating fists back and forth. Her fists made contact two or three times. I’m not sure if both fists were being used simultaneous or alternately. I put my hands on her shoulders and pushed against her”.

[The Food Service Supervisor] also stated,

“I tried to catch the fists to stop her but was unable to as she was moving so fast – I put my arms in between her hands and got my hands on her shoulders to push on her to get her away from me and I stepped back to get away. I don’t have much strength, I was more concerned with stepping back. [RN A] was there but a couple of feet away. At this point I said, ‘Get your things together you’re leaving the building’. The Member stated ‘I am not leaving’. I put my foot on the elevator so the door would not close and said, ‘Get your things together, you’re leaving or I will call the police’. As I was turning away, I felt a punch on my left chest. I was surprised and stunned. It stung.”

The witness further testified that the police came and that she, [the Food Service Supervisor], declined to press charges. She also stated that she was seen by [Dr. A] that morning.

[The Food Service Supervisor] identified Exhibit #8 – “Disturbed Behaviour Report”.

[The Food Service Supervisor] also testified that she left [the facility] the following September.

During cross-examination, the witness was asked whether she had called the Member a “black bastard”. The witness categorically denied saying that. She also denied shoving or pushing the Member first and stated that she was not agitated at the time. [The Food Service Supervisor] further testified that she had a red mark on her chest and bruising appeared on each upper arm that lasted about a week. She was unsure if the blow she received was truly a punch as a punch would be made with a fist and a slap is made with an open palm. She was unsure which it was. [The Food Service Supervisor] further said, “The amount of time she was hitting me was seconds, the entire incident was over in a minute, minute and a half – it was fast.” The witness also did not know what the Member’s professional obligations were to her clients and how this relates to the Member leaving before her shift was over.

The panel felt the testimony of this witness was clear and forthright, but also showed that she had contributed to the incident.

Witness #7 – Christianne Michel, RN

The Member was trained in [another country] and graduated in 1988. She attended a community college in [ ] and graduated as an RPN in 1996. In 1997 she wrote and passed the RN examination. Ms. Michel also took an RN refresher course to be more comfortable working in a hospital environment. In 1998 she was hired part-time with [another facility] and is still employed by that facility. The Member worked at [ ] and when that facility closed she was offered a position at [the facility] by the former administrator of [ ]. Ms. Michel worked at [the facility] for three years part-time but worked almost full-time hours.

Ms. Michel testified that she had been the Charge Nurse on weekends for over a year and expected to be the Charge Nurse the morning of the incident. The witness testified that the Charge Nurse receives report, keys and the Charge Nurse Binder from the night nurse at the start of the shift, then gives report to the Health Care Aides. The witness stated that she followed this routine on the day of the incident.

In her testimony, Ms. Michel stated that the part-time RPN indicated to her that she, Ms. Michel, would not be Charge Nurse that day. When Ms. Michel asked the RPN to explain, the RPN left without responding. The Member stated that she then paged [the Director of Care] to clarify the RPN’s comments. She did not call the duty manager because the duty manager usually did not start until 8:00 a.m. and this was happening at 7:30 a.m. Ms. Michel admitted that she was upset and raised her voice, but maintained that she was not yelling. She felt something was going on and everyone else knew what was happening but her.

The witness denied swearing or making the statement, “Everyone hates you and wishes you were dead” to anyone. She agreed that she was offered 75 cent Charge Nurse differential, but testified that she was not concerned about the money but rather about the principle and the lack of respect. Ms. Michel testified that she did not think [RN A] was ready to be Charge Nurse as [RN A] had just finished orientation and had only worked on the first floor (Gentle Care) and not the complex care floor. Ms. Michel also testified that in addition to [RN A] not being ready to be Charge Nurse, the Complex Care floor also had a new nurse who had just finished her orientation the day before. Ms. Michel further stated that she was told by told by [the Director of Care] that she would be in charge for the weekend and that Ms. Michel should go to [the Director of Care’s] office on Tuesday to discuss who will be Charge Nurse from then on.

The witness testified that she took the elevator to ground floor where she was confronted by [RN A and the Food Service Supervisor]. According to Ms. Michel, [the Food Service Supervisor] asked her what was going on and the Member responded that nothing was going on that she was just trying to organize the work. [The Food Service Supervisor] stated, “You are not in charge today, [RN A] is in charge, remember last Saturday when you did not show up for work?” The Member stated she had phoned in because she had car trouble. Ms. Michel stated that she asked [the Food Service Supervisor] to “come upstairs and I will show you where the reason for my absence is written down”. Ms. Michel testified that both their voices were elevated. She denied being close enough to bump [the Food Service Supervisor] with her chest and stated that they were about 1 ½ - 2 feet apart. Ms. Michel stated that she was gesturing rapidly with her hands and [the Food Service Supervisor] pushed her hands away. The Member stated that she pushed [the Food Service Supervisor] back in a reflex reaction.

The witness also testified that [RN A] stepped between her and [the Food Service Supervisor]. She denied banging [the Food Service Supervisor’s] shoulders. Ms. Michel testified that [the Food Service Supervisor] said to her, “You black bastard, leave the facility now or I’ll call the police”. The Member said she did not leave the building because she would be accused of abandoning her patients. She stated that both her and [RN A] entered the elevator and went to the 3rd floor. The Member further stated that she then called the police. She also stated, “I was unsure what was going to happen, they were all in it together and I was alone”.

The Member stated that the police interviewed the others then interviewed her. She then left the facility. She testified that she was never interviewed by anyone from [the facility] as to her side of the story. The Member expressed remorse for her actions stating: “I should have stepped back and not pushed her on reflex”.

Since this incident, the Member has taken an eight hour course in conflict resolution and a two hour course in dealing with difficult people.

Counsel for the Member entered Exhibit #9 which included 16 character references.

Decision

The panel deliberated and after due consideration of all the facts and the Member’s admission to the allegations as set out in the notice of hearing, the panel finds that the Member committed an act of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing. The Member contravened a standard of the practice of the profession and failed to meet the standards of practice of the profession with respect to assaulting another employee. The panel also finds that the Member engaged in conduct that was unprofessional.

Reasons for Decision

In her testimony, [the Officer] reported that when she interviewed [the Food Service Supervisor] the morning of the incident, [the Food Service Supervisor] told her she was punched by the Member. [The Office] testified that she observed a large red mark on [the Food Service Supervisor’s] left upper chest below the shoulder. The evidence of [Dr. A] also stated that on examining [the Food Service Supervisor] the day after the incident, [the Food Service Supervisor] stated that she was punched in the upper left chest and that on examining the area his impression was that [the Food Service Supervisor] suffered a soft tissue injury, full range of motion with mild tenderness in the left shoulder. Based on the statements of [the Officer and Dr. A] and by the Member’s own admission to the allegations, the panel believes that the Member struck [the Food Service Supervisor]. The panel is also of the view that this action by the Member would be considered unprofessional by members of the profession.

Penalty

Counsel for the College proposed that should the version of events described by [RN A] and [the Food Service Supervisor] be believed then an appropriate penalty order should incorporate the following elements:

• Requiring the Member to appear before the Panel to be reprimanded;
• Suspension of the Member’s certificate of registration for a period of 3 months;
• Counselling or other program like anger management as approved by the Director;
• Proof of completion of counselling or program;
• Notification of employer of decision;
• Notification of CNO regarding all employers; and
• Employers to give undertaking to notify College if any similar issues occur in the future.

Counsel for the College also submitted that if the panel were inclined to impose a suspension for less than three months, the panel might consider ordering that the Member’s certificate of registration should be suspended for between one to three months.

Counsel for the College identified the following mitigating circumstances:

• A single incident, not a pattern of conduct
• An experienced nurse with a clear record
• Prior good character, as evidenced by letters of reference (Exhibit 9)

Counsel for the College also outlined the following as aggravating circumstances:

• Physical assault is a serious matter
• Caused a visible injury

Counsel for the Member submitted that the Member admitted to professional misconduct and the incident occurred 3½ years ago making it difficult to recount events accurately. Counsel also submitted that this case was not one for suspension. The Member agrees that she was at fault but she was not the only one at fault. Counsel for the Member also submitted that the incident that occurred was not in the same category as abuse of clients. She also submitted that the Member took courses on her own initiative and that the Member is paying for her own legal counsel and is a single parent. Counsel for the Member also submitted that the Member’s name being recorded in the Standard is also a penalty and that the appropriate penalty in this case would be an oral reprimand.

Penalty Decision

The panel deliberated and made the following order as to penalty:

1. Requiring the Member to appear before the Panel to be reprimanded;
2. Directing the Executive Director to suspend the Member’s certificate of registration for a period of 2 weeks commencing on the date the Order becomes final;
3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration: a) The Member is to review the CNO Professional Standards and discuss with a Practice Consultant her reflections and strategies to avoid similar conduct in the future within 3 months.

Reasons for Penalty Decision

During deliberations as to penalty, the panel found that [the Food Service Supervisor] contributed to the incident by:

• mentioning the fact the Member had not shown up for work for the two weeks prior to the incident
• following the Member and [RN A] to the elevator, putting her foot on the elevator to prevent the door from closing and saying, “Get your things together, you’re leaving or I will call the police.”

Moreover, in gauging the seriousness of the assault, the panel has taken into consideration [the Food Service Supervisor’s] written statement (Exhibit #7) which was made the day the incident occurred. In that statement, [the Food Service Supervisor] indicated that, “(the Member) was pushing with both hands against my shoulders.” The written statement does not mention the use of fists or being struck on the shoulders.

The panel considered the fact that the Member is an experienced nurse with a clear record and that this was a single incident and not a pattern. The panel also considered that the Member took courses on her own initiative and regretted her actions.

While the panel believes that important mitigating factors are present in this case, it nonetheless believes that the Member handled the incident in an unprofessional manner, and one which calls for a brief suspension of her certificate of registration.

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

Chairperson Date

Panel Members:

Anne McKenzie, RPN Sheila Pendock, RN Faira Bari, Public Member Bill Dowson, Public Member