PANEL: Deanne Barber, RPN Chairperson Alison Comeau, RN Member Marcia Taylor, RN Member Faira Bari Public Member Linda Bracken Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MEGAN SHORTREED for ) College of Nurses of Ontario

and - )

STEPHEN KIRKLAND, RPN ) NO REPRESENTATION for Registration No. IE08292 ) Stephen Kirkland

) BRIAN GOVER ) Independent Legal Counsel

) Heard: August 21-22, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on August 21 and 22, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Stephen Kirkland (the “Member”) as stated in the Notice of Hearing dated May 18, 2006 are as follows:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the Home], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, in that:

a. On one or more of the occasions set out in Schedule A, you signed out narcotics for administration to residents without conducting or charting an adequate assessment of the need for the narcotic; and/or

b. On one or more of the occasions set out in Schedule B, you signed out narcotics for administration to residents and failed to administer or dispose of those narcotics, or record the administration or disposal of those narcotics on the Medication Administration Record; and/or

c. On one or more of the occasions set out in Schedule C, you signed out duplicate doses of narcotics for administration to residents; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(13) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at the Home, you failed to keep records as required, in that:

a. On one or more of the occasions set out in Schedule A, you signed out narcotics for administration to residents without adequately charting an assessment of the need for the narcotic; and/or

b. On one or more of the occasions set out in Schedule B, you signed out narcotics for administration to residents and failed to record the administration or disposal of those narcotics on the Medication Administration Record; and/or

c. On one or more of the occasions set out in Schedule C, you signed out duplicate doses of narcotics for administration to residents; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(8) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at the Home, you misappropriated property from your workplace, as follows:

a. On one or more of the occasions set out in Schedules B or C, you signed out narcotics for administration to residents and failed to administer or dispose of those narcotics; and/or

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

c. On one or more of the occasions set out in Schedule C, you signed out duplicate doses of narcotics for administration to residents.

Member’s Plea

The Member was not present at the hearing nor was he represented by counsel. The hearing commenced at 9:15 a.m. and adjourned until 9:30 a.m. to allow the Member time to arrive. Counsel for the College then filed Exhibit #2; an Affidavit of Service which verified the Member had been served the Notice of Hearing. The Panel was satisfied that the Member was properly served with the Notice of Hearing. The hearing proceeded on the basis that the Member denied the allegations.

Overview

The Member was a Registered Practical Nurse employed at [the Home] for more than two years when the incidents occurred. The Member was the Medication Nurse and it is alleged that over a 5 day period, he was involved in numerous incidents in which there was inadequate documentation, assessment and administration of controlled substances. It was further alleged that the Member misappropriated these controlled substances on one or more occasions.

The Evidence

The first witness for the College was [the Director], Director of Nursing at [the Home]. The Witness identified Exhibit #3 as a letter she wrote to the College with respect to concerns regarding the administration of medications by the Member. The witness testified that [the Home] was a 150 bed long term care facility. [The Unit], where the alleged incidents occurred, was a 38 bed unit; residents were 84-90 years old and had relatively heavy care requirements, including dementia, mental illness and palliative care. The staffing for the evening shift on which the Member worked consisted of two RPNs, one who administered the medications, and the other performing treatments, assessments and assisting with care. An RN was on duty, supervising [two units]. The Medication Nurse was also responsible for the taped report at the end of the shift, which would include anything over and above regular care, increased pain or addressing resident and family concerns.

[The Director] identified Exhibit #4 as the [ ] Policy for Medication Administration. This policy was available to staff in the main office and also on the computer. This policy was reviewed during orientation. In her testimony, [the Director] highlighted the following aspects of the policy:

Medication not given on a routine basis but as needed (“PRN medication”) and/or requiring judgment in administration was administered by a Registered Nurse or by a Registered Practical Nurse under direction of a Registered Nurse;
Medications came in blister packs. Wasted medications were required to be documented;
The RPN who poured the medication gave the medication and recorded this fact; and
Medications poured were checked against the Medication Administration Record (MAR)

[The Director] identified Exhibit #5 the [ ] Policy for Medication-Unit Dose System. This policy provided for:

Colour coding of pharmacards;
Procedures for preparing and administering medication and appropriate checks;
Procedures for checking the time of last dose administered on back of MAR and checking the front of the MAR to determine if the resident has orders for a similar/same drug on regular basis to avoid over medication;
Procedures for documenting on back of the MAR the date, time, initials, name of PRN mediation administered; and
Procedures for documenting document effect of medication on back of MAR After an appropriate time interval.

Exhibit #5 also provided that:

Medication not given was to be documented using the appropriate code number; and
PRN medication not given in past 7 days and all PRN psychotropics, was only be given under the direction of an RN;

Exhibit #5(a) was the CNO Medications Standard in effect in 2002. College Counsel referred to the section regarding the administration of PRN medications.

[The Director] identified Exhibit #6, the Resident Pain Assessment Tool to be used by nurses to document new or unusual pain.

[The Director] also identified Exhibit #7, the [ ] application for employment form as submitted by the Member. The form detailed the Member’s RPN education, pharmacology course and nursing employment history. The Member was hired May 8, 2001 as a casual RPN and became part-time 1½ years later.

Exhibit #8, the time sheet for scheduling, showed that the Member had worked on [the Unit], on evening shift on September 7-8, November 29, 30 and December 1, 2003 and acted as the Medication Nurse.

It was [the Director’s] evidence that on December 4, 2003 she was notified by the full-time RN on duty, [the RN], that there appeared to be an increase in the number of Tylenol #2 and Tylenol #3 pharmacards being filled by the Pharmacy. Cards were being filled for residents who very seldom required narcotics. Following a brief investigation, it was noted that the Member had worked 5 evening shifts where unusually high amounts of Tylenol #2 and #3 were documented as having been given to 8 residents. This exceeded the amount given by other RPNs on other evening shifts. The Member was suspended with pay pending further investigation. The investigation revealed three additional incidents. The Member met with the facility’s administrative staff and was informed of the outcome of the investigation. The Member responded that he gave pain medication for comfort. He gave no response with respect to not documenting appropriately. Regarding the overdosing concerns, he stated that it must have been a medication error; he would never give that much. When asked if he was taking them, he responded “No ma’am none have gone into my mouth or the resident’s mouth”.

As a result of the investigation the Member was suspended without pay for two days and could return to work but would not be allowed to administer medication until after he completed a medication course. The Member was given a written warning dated December 17, 2003 (Exhibit #11), detailing the conditions on which he could return to full duties. The Member did not take the medication course and when confronted stated he could not afford it. The Member resigned his position approximately one half hour before his shift on April 4, 2004.

[The Director] reviewed 11 patient records which are contained in Exhibits #13 to #23. These patient records revealed a pattern of signing out narcotics on the Controlled Drug Administration Record (CDAR).

In particular, [the Director] gave the following evidence in relation to the health records of residents who received narcotics:

Exhibit #13 – [Resident A]

Medical diagnosis included [ ],
Decision making responsibility: assessed not capable
According to the CDAR on September 7, 2003, the Member signed out PRN Tylenol #3 ii tabs at 1650 and 2000 hours (“hrs”). in addition to the standing order for Tylenol #3 ii tabs at 2100 hrs for administration to [Resident A]
It is also noted on this record that on September 8 at 1630 hrs, November 29 at 1600hrs, November 30 at 1620 and 2100 hrs, the Member signed out Tylenol #3 ii tabs for administration to [Resident A]
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate the nature of the Resident’s pain to other team members
On November 29 at 1600 hrs, November 30 at 2100 hrs and December 1 at 1600 and 2030 hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR
The Member signed out duplicate doses of narcotics for administration to [Resident A] as set out in Schedule C on November 30, 2003 at 1620-1630 hrs, 2100-2100 hrs, and December 12 at 2030-2100 hrs

Exhibit #14 – [Resident B]

Medical diagnosis: [ ]
Decision making responsibility: assessed as capable
The witness testified that the patient was difficult to communicate with
According to the CDAR, on Sept 7, 2003 the Member signed out PRN Tylenol #3 ii tabs at 1640 and 2200 hrs, Sept 8 at 1630 and 2200 hrs, and November 29 at 1630 and 2100 hrs
In all of these situations the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain
On November 29 1630 hrs, November 30 1630 hrs and December 1 1630 and 2035 hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the Medication Administration Record

Exhibit #15 - [Resident C]

Medical Diagnosis: [ ]
Decision making responsibility : assessed as capable
[The Director] testified that the patient was difficult to communicate with
According to the CDAR, on Sept 7, 2003 the Member signed out PRN Tylenol #3 ii tabs at 1700 and 2130 hrs, 1640 and 2200hrs, on Sept 8, at 1620 and 2140 hrs, 1630 and 2200 hrs, and on November 29 at 1630 and 2100 hrs
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain.
On November 29 at 1630 hrs, on November 30 at1630 hrs and December 1 at 1630 and 2035 hrs, November 30, at 1645 and 2145 hrs, December 1 at 1650 and 2130 hrs
On November 30 at 1645 hrs and December 1 at 1650 and 2130hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain.

Exhibit #16 – [Resident D]

Medical Diagnosis: [ ]
Decision making responsibility: assessed as capable
According to the CDAR, on Sept 7, 2003, the Member signed out PRN Tylenol #3 ii tabs at 1600 and 2200 hrs, Sept 8, at 1600 and 2200 hrs, November 29 at 1545 and 2140 hrs, November 30, at 1550 and 2200 hrs, December 1 at 1600 and 2200 hrs
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain
On September 8, 2003 at 2200 hrs, November 29 at 1545 and 2140 hrs, November 30 at 1550 hrs and December 1 at 1600 and 2200 hrs, the Member the member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR.

Exhibit #17 – [Resident E]

Medical Diagnosis: CA Prostate, CVA, Senility, Osteoarthritis (multiple other medical issues)
Decision making responsibility: assessed as capable
According to the CDAR, on November 29 2003, the Member signed out PRN Tylenol #3 ii tabs at 1630 hrs, November 30 at 1615 and 2030 hrs, and December 1 at 1630 and 2030 hrs
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain.
On November 29 at 1630, November 30 at 1615 hrs and December 1 at 2030 hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR.

Exhibit #18 – [Resident F]

Medical Diagnosis: [ ]
Decision making responsibility: assessed as capable
According to the CDAR on Sept 7, 2003 the Member signed out PRN Tylenol #3 ii tabs at 1620 and 2130 hrs, Sept 8, at 1700 and 2200 hrs, November 29 at 1630 and 2115 hrs, November 30, at 1620 and 2110 hrs, and December 1 at 1620 and 2100 hrs.
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain
On November 29 at 1630 hrs, November 30 at 1620 hrs and December 1 at 1620 and 2100 hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR.

Exhibit #19- [Resident G]

Medical Diagnosis: [ ]
Decision making responsibility: assessed as capable
According to the CDAR, on Sept 8, 2003 the Member signed out PRN Tylenol #3 ii tabs at 2130 hrs, November 29 at 1640 and 2030 hrs, and December 1 at 1635 and 2040hrs
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain.
On November 29 at 1640 hrs and December 1 1635 and 2040 hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR.

Exhibit #20 [Resident H]

Medical Diagnosis: [ ]
Decision making responsibility: assessed as capable
According to the CDAR, on Sept 7, 2003, the Member signed out PRN Tylenol #3 ii tabs at 1620 hrs, September 8 at 1640 hrs, November 29 at 1530 hrs, November 30 at 1630 hrs, and December 1 at 1620 and 2100 hrs.
In all of these situations (except for December 1, 2003 where the MAR was not available for verification), the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain.
On November 29 at 1530 hrs and December 1 at 1620 and 2100 hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR.
The Member signed out duplicate doses of narcotics for administration to [Resident H] as set out in Schedule C on November 30, 2003 at 1610-1630 and 2130 hrs.

Exhibit #21 – [Resident I]

Medical Diagnosis: [ ]
Decision making responsibility: assessed as capable
According to the CDAR, on Sept 7, 2003 the Member signed out PRN Tylenol #3 ii tabs at 2100 hrs, and on September 8 at 2010 hrs.
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain.

Exhibit #22 – [Resident J]

Medical Diagnosis: [ ]
Decision making responsibility: assessed as not capable
According to the CDAR, on Sept 8, 2003 the Member signed out PRN Tylenol #3 ii tabs at 2010 hrs, November 29 at 1605 hrs, November 30 at 1615 and 2100 hrs, and December 1 at 1630 and 2100 hrs
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain.
On November 29 1640 at hrs and December 1 at 1635 and 2040 hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR.

Exhibit #23 – [Resident K]

Medical Diagnosis: [ ]
Decision making responsibility: assessed as capable
According to the CDAR, on Sept 7, 2003, the Member signed out PRN Tylenol #3 ii tabs at 1650 hrs, September 8 at 1630hrs, November 29 at 1630 hrs, November 30 at 1650 hrs, and December 1 at 1640 hrs.
In all of these situations, the documentation of assessments on the Nurse Medication/Treatment Notes was not adequate or specific enough to communicate to other team members the nature of the resident’s pain.
On November 29 at 1630 hrs and December 1 at 1640 hrs, the Member failed to administer or dispose of narcotics, or record the administration or disposal of narcotics on the MAR.

[The Director] further testified that the Member did not document in accordance with [a specified] medication policy. He failed to consult an RN with respect to administration of PRN medications that had not been given in a previous 7 day period and failed to document new incidents of pain on the pain assessment record. When the witness reviewed the December 1, 2003 taped report, the Member made no mention of the PRN medications that he had given. It was observed that there was a pattern of the Member targeting residents who had a mental illness or suffered from dementia and could not remember.

The Panel found this evidence of this witness to be clear and concise.

The second witness for the College was [the RN] who had worked at [the Home] since 1985. She testified that she became concerned about the number of Tylenol #3s that had been reordered. She stated that it was unusual to have to restock this medication in such quantity, and when she checked the records she found that all had been signed out by the Member. She also noted that all the residents who had received these PRN Tylenol #3s had not complained of pain in quite a while and had not received this medication in days and even weeks. She stated that RPNs administering medications were expected to consult with the RN in circumstances like these. The Member had not consulted with her. Any new complaints of pain were required to be documented and that had not been done either.

The witness identified Exhibit #24 as her handwritten notes, which she submitted to [the Director] on December 4, 2003. The notes provided an overview of circumstances in which residents received Tylenol #3 PRN from the Member over a period of three days (November 29 and 30 and December 1, 2003).

The Panel found the evidence of this witness to be informed and given in a forthright manner.

Decision

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as set out in:

Allegation #1 – In 68 out of 70 instances as set out in Schedules A, B and C to the Notice of Hearing, the Member contravened a standard of practice of the profession or failed to meet the standards of practice of the profession. In each of those instances, the Member signed out narcotics for administration to residents without conducting or charting an adequate assessment of the need for the narcotic, signed out narcotics for administration to residents and failed to administer or dispose of those narcotics, or record the administration or disposal of those narcotics on the medication administration record, or signed out duplicate doses of narcotics for administration to residents.

Allegation #2 – In 68 out of 70 instances as set out in Schedules A, B and C, the Member committed an act of professional misconduct in that the Member failed to keep records as required. In particular, the Member signed out narcotics for administration to residents without adequately charting an assessment of the need for the narcotics, signed out narcotics for administration to residents and failed to record the administration or disposal of those narcotics on the MAR, or signed out duplicate doses of narcotics for administration to residents.

Allegation #3 – In 27 out of 28 instances described in Schedule B, and, 4 out of 4 instances described in Schedule C, the Member signed out narcotics for administration to residents and failed to administer or dispose of those narcotics. The Panel is of the view that the Member misappropriated as there is no other reasonable explanation as to where the narcotics went.

Allegation #4 – The Panel was unanimous in that it found that in 68 out of 70 instances as set out in Schedules A, B and C the Member engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. In particular, the Member signed out narcotics for administration to residents without conducting or charting an adequate assessment of the need for the narcotic, signed out narcotics for administration to residents and failed to administer or dispose of those narcotics, or record the administration or disposal of those narcotics on the MAR, or signed out duplicate doses of narcotics for administration to residents.

Reasons for Decision

In the absence of any defence on behalf of the Member, the Panel accepted the clear, cogent and convincing evidence led by the College. Neither of the witnesses had any personal interest in the outcome of the hearing. The clarity of the College’s evidence, as well as the credible and forthright manner of the witnesses, supports the findings of professional misconduct made in this case.

Penalty

College counsel requested revocation of the Member’s certificate of registration. In support of this request, College counsel made the following submissions:

This sanction would send a clear message that the Member’s behaviour is unacceptable;
Rehabilitation is not possible in this case because the Member declined retraining, failed to take other remedial steps and failed to appear at this hearing to account for his conduct; and
College counsel referred the Panel to decisions in previous cases involving theft and dishonesty in which revocation was ordered.

Aggravating factors present in this case are as follows:

The Member’s misconduct involved a large number of incidents;
The repeated nature of the conduct;
The nature of the clients affected – vulnerable, frail and cognitively impaired;
The misconduct involved a narcotic substance that contained the highest concentration of opiate that would typically be given to these residents;
The Member was in a position of trust as the Medication Nurse;
The seriousness of the offence, which involved misappropriation (theft); and
The Member’s lack of remorse.

Penalty Decision

After deliberation, and in the interests of the public and the profession, the Panel ordered that the Member’s certificate of registration be revoked.

Reasons for Penalty Decision

In all of the circumstances of this case, and especially in light of the aggravating factors identified above, the seriousness of the Member’s misconduct and the risk to vulnerable clients that it involved, the only appropriate penalty in this case is revocation.

The Member was not present at the hearing and there was no evidence that the Member was remorseful or accountable for his actions. The Panel has serious concerns about his governability. The penalty provides a specific deterrent for the Member, as well as a general deterrent for the membership. Revocation of the Member’s certificate of registration also serves to protect the public.

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

Chairperson Date

Panel Members:

Alison Comeau, RN Marcia Taylor, RN Linda Bracken, Public Member Faira Bari, Public Member

College of Nurses of Ontario v. Stephen Kirkland, 2006 ONCNO 81787

Case Summary