College of Nurses of Ontario v. Burns, 2007 ONCNO 82760

PANEL: Denise Dietrich, RPN Chairperson Anne McKenzie, RPN Member Susan Silver, RN Member Joan King Public Member Faira Bari Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO GLYNNIS BURT for College of Nurses of Ontario

and -

PATRICIA BURNS Registration No. 8224438 KATE HUGHES for Patricia Burns

Heard: June 25, 2007

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 25, 2007 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

College sought, and the panel made, an order permitting the College to withdraw allegations #1(a)(b)(d) and (e), #2, #3 and #4 (a)(b)(c)(d) and (e) as stated in the Notice of Hearing (Exhibit #1) dated May 9, 2007.

The remaining allegations against Patricia Burns (the “Member”) as stated in the Notice of Hearing are as follows:

You have committed an act of professional misconduct as provided by sub-section 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.1 of Ontario Regulation 799/93, in that, in or about late October 2004 and/or early November 2004, while employed as a nurse at [the Hospital], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that you:

(c) between October 30, 2004 and October 31, 2004 restrained [the client] without consent and without a physician’s order, contrary to [Hospital] policy with regard to restraints and inappropriately used a bed sheet to secure the patient to a geri-chair; and/or

You have committed an act 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 or about late October 2004 and/or early November 2004, while employed as a nurse at [the Hospital], you engaged in conduct or performed and act, relevant to the practise of nursing that, having regard to all the circumstances, would be reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that you:

(f) between October 30, 2004 and October 31, 2004 covered [the client’s] mouth with your hand and told her that she needed to be quiet.

Member’s Plea

Patricia Burns admitted the allegations set out in paragraphs numbered 1(c) and 4(f) in the Notice of Hearing. The panel received a written plea inquiry, signed by the Member. The panel conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows:

BACKGROUND OF THE MEMBER AND THE FACILITY

The Member has been registered as a Registered Nurse with the College of Nurses of Ontario (“the College”) since January 1, 1982.
The Member had worked as an RN for over twenty-two years at the time of this complaint. She commenced working as a part-time RN (in the Float Pool) at [the Hospital] in 1982 and became a full- time RN in January 1983 to the present. The Hospital is a public hospital.
At the time of the incidents described in this Agreed Statement of Fact, the Member was employed on [the Unit], a medical-psychiatric floor at the Hospital. The Member had been employed on [the Unit] since February 18, 1985 (with the exception of an approximate three-month period in 1994, during which she assumed a temporary full-time position in the Emergency Department at the Hospital).
[The Unit] is a 34-bed Unit at the Hospital which provides care to clients with diagnoses of pneumonia, stroke, cancer, diabetes, respiratory diseases, renal disease, and a variety of other chronic illnesses. Of the 34 beds, eight are designated psychiatric, four are designated palliative, and 22 are medical. At the time of this incident, two RNs were assigned to 13 patients each and one RN was assigned to the eight rooms designated for psychiatric patients. In addition, one RPN was assigned to assist.
On November 11, 2004, the Member’s employment at the Hospital was terminated as a result of an incident on the night shift of October 30/31 2004 described in this Agreed Statement of Fact. Following an arbitration proceeding, however, the Member was reinstated by the Hospital in January 2005, with the following conditions:

(a) Ms. Burns was placed on the day, or day/evening shift not the night shift as decided by the employer;

(b) Ms. Burns was placed in the Blood Transfusion Clinic for an undetermined time which would encompass the hours of Monday to Friday 0800-1600 hours, commencing January 3, 2005; where her performance can be more closely monitored;

(d) Ms Burns also agreed to meet with two family members [], in a mediated situation, [].

The Member remains employed at the Hospital []. She has worked there since her reinstatement in January 2005 without any problems. She has successfully completed the learning/performance plan.
Ms. Burns has never had any other complaint against her at the College and had no prior discipline on her record with this employer.

BACKGROUND OF THE INCIDENT

[The client] was admitted to the Hospital on October 3, 2004 with an admitting diagnosis of urinary tract infection. [The client] was 83 years old at the time of her admission.
[The client] was transferred to [the Unit] on October 10, 2004. Additional diagnoses included increased INR (international normalized ratio, a standard laboratory value for assessing patients stabilized on long-term oral anticoagulant therapy), pneumonia, general weakness with difficulty ambulating, renal insufficiency and exacerbation of congestive heart failure. Secondary diagnoses included Coronary Artery Disease, type 2 diabetes, left leg amputation, transient ischemic attacks, and deep vein thrombosis.
[The client] was known to the Member. They were neighbours. Also, the Member had cared for [the client] for several weeks in the first half of October on [the Unit] until approximately October 13th. The Member recalls that [the client]’s cognitive state during this period was at times agitated but the Member was successful in calming her down.
According to [the client’s] patient records, in the latter half of October there were on-going issues with [the client] including the following: weakness; lethargy; problems sleeping; and on-going complaints of back and/or flank pain. [The client] also experienced agitation during the latter half of October. One of the family members described [the client] on October 20th as going “snakey” when on Tylenol # 3. The family also requested that an order for morphine be stopped. A doctor ordered Tylenol #2 for [the client] on October 29, 2004, and included the following in his order:

Tylenol # 2 1-2 p.o. q6h PRN MAR — please use very sparingly. May increase her confusion. I am ordering this only because family is very concerned if she has breakthrough pain meds.

[The client] died in November, 2004.

OCTOBER 30/31, 2004

On the night of October 30/31, the Member worked a twelve-hour night shift, from 19:00 to 07:00, on [the Unit] at the Hospital. She was not assigned to [the client]. Her primary care nurse was another registered nurse, [RN A], who was also working a twelve-hour shift, along with an [RPN A], a part-time RN [].
At approximately 2400, [the client] started calling out loudly. In order to assist [the client’s] primary nurse, the Member entered [the client’s] room a number of times to try to calm [the client] down. Shortly after midnight, the Member found [the client] wedged between the bed rails and the mattress on her bed, with the upper part of her body hanging out over the bed and her head close to the floor. The Member called for the other nurses and all three nurses repositioned [the client]. The Member understood that this was not the first time that [the client] had to be returned to a proper position in bed by three nurses. [RPN A] had charted on [the client]’s records on October 18th that she found [the client] on the floor at bedside, at a time when all four bedrails were up.
After being re-settled into, bed, [the client] continued to call out and make a lot of noise. The nurses were concerned that [the client] would fall out of bed again. The primary care nurse, [RN A], with the assistance of the Member, transferred [the client] to the commode and then placed [the client] into a Broda or Geri-chair with pillows under her arms for comfort. In order to ensure that [the client] would not fall out of the chair, the Member and [RN A] tied a sheet around [the client’s] waist and the Geri-chair.
There was no order on [the client’s] chart for the use of restraints as at October 30/31, 2004. [The client] did not give her consent for the use of any restraint, nor was [the client’s] family notified of the intention to use a restraint.
[RPN A] started working on [the Unit] at 23:00 on October 30, 2004. If [RPN A] were to testify, she would say that while the Member and [RN A] were tying the sheet around [the client], [the client] was continually asking why they were treating her like that, and asking to use the washroom. Further, [RPN A] would say that she brought a commode to the television room so that [the client] could go to the washroom. [RN A] and the Member then attempted to transfer [the client] to the commode. They had difficulty in doing so, however, and [the client] was upset.
[The client] did not settle. She yelled out things such as “Why are you doing this to me?” to the nurses. She indicated that she had never been treated like this before, and that she had not done anything to them. [The client] also made odd comments about her family. [The client] was shouting so much that other patients were complaining.
If the Member were to testify she would say that it is her best recollection that she tried to calm [the client] down by going close to her, maintaining eye contact and placing one finger lightly to [the client’s] lips. This had worked for the Member on a previous shift in settling [the client] when she had been [the client’s] primary nurse earlier in the month. On this night [the client] had more difficulty settling.
If [RPN A] were to testify, she would say that the Member placed four fingers of her right hand lightly over [the client]’s mouth. At the same time, she raised the forefinger of her left hand up straight in front of [the client]’s eyes. The Member then moved her forefinger to her own lips and told [the client] that she needed to be quiet and to listen to the nurses.
The Member does not recall using four fingers to quiet [the client], but acknowledges that she may have done so, albeit briefly.
The Member discussed with the primary nurse [RN A] calling the family to assist with [the client] that night. The Member was then called to attend to other patients and had no further involvement with [the client’s] care on that shift or any subsequent shifts.

THE HOSPITAL POLICY REGARDING USE OF RESTRAINTS

At the time of the events described above, the Hospital had a written policy entitled ‘Restraints”. The policy was dated July 1997 and provides as follows:

The decision to use restraints is based on the principle that least restraint and the use of alternatives is best. In hospital, all patients should be cared for in a fashion that respects their dignity, independence and freedom, and provides for the safety of patients and staff. Restraints shall be used only after the patient has been assessed and when there are reasonable grounds to believe that there will be imminent injury/harm to self or others if restraints are not used. Such situations will be exceptional and temporary and only necessary when less restrictive measures or alternatives have been attempted and proven ineffective. Collaboration among medical, nursing and others [sic] members of the interdisciplinary team, the patient and family members/significant others, is essential.

Types of restraints:

Bed sheets and towels are not to be used as physical restraints. [emphasis in original]

Procedures

Considerations

(b) The patient and/or family must be informed of assessed necessity for restraint, with explanations of rationale, the method and the expected duration when restraint of any kind is to be applied. This must be documented in the Inter-disciplinary Progress Notes.

Orders for Restraints

(a) A verbal or written physician order is required for the use of all restraints (except in Code White situations), specifying the type, reason for, location of and the duration of the restraint to be used. NOTE: P.R.N. ORDERS ARE NOT ACCEPTABLE [Emphasis in original]

(b) The restraint order must be reassessed every 24 hours.

(c) The decision to continue restraining a patient will be ongoing and documented accordingly in the Interdisciplinary Progress Notes.

APPENDIX A to the Hospital policy on restraints is entitled “ALTERNATIVES TO RESTRAINT USE”. The proposed alternatives include the following:
Providing companionship and supervision

Ask family, friends, or volunteers to stay with the patient.
Determine when the patient needs one-to-one attention (typically at night) and intervene accordingly.

COLLEGE OF NURSES OF ONTARIO STANDARDS

Use of Restraints

At the relevant time, the College’s applicable Guide with respect to the use of restraints, “A Guide on the Use of Restraints”, provided as follows:

“4. Consent is essential to nursing interventions. Clients have the right to make decisions regarding their care and treatment. The nurse informs the client or substitute decision-maker of any proposed intervention and alternative measures available. Nurses cannot use any form of restraint without client consent, except in emergency situations where there exists a serious threat of harm to the individual or others, and all other measures have been unsuccessful. Emergency situations are time-limited. Once the situation is no longer critical, client consent is required.

“POLICY DIRECTION: LEAST RESTRAINT

“Least restraint means all possible alternative interventions are exhausted before deciding to use a restraint. This requires assessment and analysis of what is causing the behaviour. Most behaviour has meaning. When the reason for the behaviour is identified, interventions can be planned to resolve whatever difficulty the client is having that contributes to the consideration of restraint use. For example, if a client has poor balance or is frequently falling, interventions, such as giving the client a walker, can be developed to help protect the client’s safety while allowing freedom of mobility. A policy of least restraint indicates that other interventions have been considered and/or implemented to address the behaviour that is interfering with client safety.

“CNO endorses the least restraint approach. Nurses need to assess and implement alternative measures before using any form of restraint.

While the principles and standards reflected in the documents referred to above were known to nursing staff, including the Member, the existence of the Hospital’s Restraints policy was apparently not known to all staff at the relevant time. For example, when the Director of Family Medicine and Continuing Care spoke with the Member’s Manager about the Unit’s practice related to patient restraints in light of the incidents described above, the Manager indicated that there were no written policies relating to restraints in effect at the time.
In spite of the existence of the Hospital’s Restraints policy, it was not unusual as at October 30, 2004, for patients at the Hospital to be restrained using bed sheets. This had been done by a number of nurses at the Hospital prior to October 30, 2004.
Subsequent to the events set out in this Agreed Statement of Fact, the Hospital developed a new hospital-wide restraint policy and held a number of in-service training sessions for all staff to address restraint issues, including use of “broda” or “geri” chairs and bed sheets.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she 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 1.1 of Ontario Regulation 799/93, in that in or about late October 2004, while employed as a nurse at [the Hospital], she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that she:

(a) on October 31, 2004 restrained a patient, [the client], without consent and without a physician’s order, contrary to the [Hospital] policy with regard to restraints, and inappropriately used a bed sheet to secure the patient to a geri-chair.

The Member admits that she 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 Ontario Regulation 799/93, in that in or about late October 2004, while employed as a nurse at [the Hospital], she engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all of the circumstances would reasonably be regarded by Members as unprofessional, in that she:

(a) on October 31, 2004, covered a female patient, [the client’s] mouth with her hand (by briefly placing four fingers of her right hand lightly over [the client’s] mouth) and told her that she needed to be quiet.

The College seeks leave of the Discipline Committee to withdraw allegations #1(a), (b), (d), (e), 2, 3, 4 (a), (b), (c), (d), and (e) in the Notice of Hearing.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs 1(c) and 4(f) of the Notice of Hearing in that the Member contravened a standard of the profession when she restrained a patient without a physician’s order and inappropriately used restraints. The Member also committed an act of professional misconduct in that while employed as a nurse at [the Hospital] she engaged in conduct that would be reasonably regarded by members as unprofessional. Specifically, she was seen to, and admitted to, covering a patient’s mouth and telling her to be quiet.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty had been agreed upon. The Joint Submission as to Penalty provides as follows:

PATRICIA L. BURNS (“THE MEMBER”) AND THE COLLEGE JOINTLY SUBMIT that, in view of the circumstances set out in the Agreed Statement of Facts, the Member’s admissions of professional misconduct and the panel’s findings of professional misconduct, the panel of the Discipline Committee (“the Panel”) should make an Order as follows:

Requiring the Member to appear before the Panel to be reprimanded at a date to be arranged but, in any event, within three (3) months of the date this Order becomes final;
Directing the Executive Director to suspend the Member’s Certificate of Registration for two (2) weeks. The suspension shall take effect on the date that this Order becomes final and shall run continuously without interruption;
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s Certificate of Registration:

(a) Requiring the Member to meet with a Practice Consultant at the Practice Consultant’s convenience, and within three (3) months of the date this Order becomes final. The Member will meet with the Practice Consultant to discuss the standards of practice and the materials prepared for [the Hospital], as they relate to the conduct for which the Member was found to have committed professional misconduct and to discuss how to prevent such conduct from occurring in the future. Prior to meeting with the Practice Consultant, the Member shall review whatever material is identified by the Practice Consultant in advance of the meeting; and

(b) For a period of six (6) months following the date upon which the Member returns to the practice of nursing, the Member shall:

(i) communicate to the Director of the Investigations and Hearings Department at the College (the “Director”), in writing, the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position, such communication to be delivered by a verifiable means such as courier or registered letter and the Member shall retain proof of the College’s receipt of the communication; and

(ii) provide all of her employer(s) with a copy of the Panel’s Penalty Order together with the Notice of Hearing, Agreed Statement of Facts, Joint Submission on Penalty and any attachments to those documents or, if available, the Panel’s written Decision and Reasons, together with any attachments, and provide proof of its delivery to the employer(s) to the Director within 14 days from the date the member commences employment, to be delivered by a verifiable means such as courier or registered letter and the Member shall retain proof of the College’s receipt of the communication.

Counsel for the College reminded the panel that when a joint submission of penalty has been agreed upon, that the panel should not lightly depart from the proposed penalty. She further submitted that the proposed penalty met the purposes of specific deterrence, general deterrence, rehabilitation, and protection of the public. In particular, College counsel submitted that:

a) the goals of specific and general deterrence are met by the Joint Submission as to Penalty through the proposed reprimand and suspension, which makes it clear to the Member and membership, that ignorance of restraint policy and College standards will not be tolerated;

b) the goal of rehabilitating the Member is addressed by the Joint Submission as to Penalty through the proposed meeting with a Practice Consultant to review the respective hospital and College documents; and

c) the public will be protected by the Joint Submission as to Penalty by the proposed monitoring of the Member for a period of six months. The public will also benefit by the Member’s increased knowledge concerning restraints and professional behaviour.

College counsel in her submission identified a number of mitigating factors relevant to the panel’s consideration of the Joint Submission as to Penalty. In particular:

a) the Member has admitted her misconduct,

b) it was an isolated issue, not a pattern;

c) the Member has no previous history of discipline with the College or the employer;

d) the Member has taken steps to participate in reflective practice;

e) the Member has suffered emotional and financial hardships as a result of this incident;

f) the Member was not the primary nurse responsible for the care of the patient; and

g) the Member did not act with malicious intent.

Counsel for the Member agreed with the statements by the Counsel for the College and encouraged the panel to accept the Joint Submission as to Penalty. In her submissions, Counsel for the Member noted the following mitigating factors relevant to the panel’s consideration of the Joint Submission as to Penalty:

a) the Member has recently returned to work on the unit where she was practicing at the time the incident occurred,

b) the Member has twenty five years of a positive nursing history, and

c) the Member has completed remedial steps with her employer.

Penalty Decision

The panel accepts the Joint Submission as to Penalty and accordingly orders:

the Member to appear before the Panel to be reprimanded at a date to be arranged but, in any event, within three (3) months of the date this Order becomes final;
the Executive Director to suspend the Member’s Certificate of Registration for two (2) weeks. The suspension shall take effect on the date that this Order becomes final and shall run continuously without interruption;
the Executive Director to impose the following terms, conditions and limitations on the Member’s Certificate of Registration:

(a) The Member shall meet with a Practice Consultant at the Practice Consultant’s convenience, and within three (3) months of the date this Order becomes final. The Member will meet with the Practice Consultant to discuss the standards of practice and the materials prepared for [the Hospital], as they relate to the conduct for which the Member was found to have committed professional misconduct and to discuss how to prevent such conduct from occurring in the future. Prior to meeting with the Practice Consultant, the Member shall review whatever material is identified by the Practice Consultant in advance of the meeting; and

(b) For a period of six (6) months following the date upon which the Member returns to the practice of nursing, the Member shall:

(i) communicate to the Director of the Investigations and Hearings Department at the College of Nurses of Ontario (the “Director”), in writing, the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position, such communication to be delivered by a verifiable means such as courier or registered letter and the Member shall retain proof of the College’s receipt of the communication; and

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions. The panel concluded that the proposed penalty sends an appropriately strong message to the profession that members are accountable for practising in accordance with the College standards and are responsible for knowing what standards exist. Ignorance of the College standards is never an acceptable defence.

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

Chairperson Date

Panel Members:

Anne McKenzie, RPN

Susan Silver, RN

Joan King, Public Member

Faira Bari, Public Member