College of Nurses of Ontario v. Enoch Edwards, 2007 CanLII 82770

minicounsel

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Shiela Pendock, RN Chairperson Claudette Drapeau, RPN Member Faira Bari Public Member Linda Bracken Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO

and - ENOCH EDWARDS Registration Nos. 9521709 & II08203

KAREN JONES for College of Nurses of Ontario ROBERT STEPHENSON for Enoch Edwards BRIAN GOVER Independent Legal Counsel

Heard: August 20 – 23, 2007

This matter came on for hearing before a panel of the Discipline Committee on August 20, 2007 at the College of Nurses of Ontario (the “College”) at Toronto. The Member denied all of the allegations, and the hearing commenced as a contested hearing.

At the outset of the hearing, the College sought an order prohibiting publication of any information that would identify, or tend to identify, the Complainant. The panel ordered a publication ban on the grounds that it is a necessary and appropriate action to protect the privacy rights of the Complainant.

During the course of the hearing, the panel was informed by Counsel for the College that an agreement had been reached by the parties that resolved all issues before the panel. An Agreed Statement of Facts dated August 23, 2007, was then presented.

The Allegations

College Counsel, with the consent of Member’s counsel, requested permission from the panel to withdraw allegations #1, #2(a), #3(a),(b), #5(a) and a portion of 5(b) of the Amended Notice of Hearing (Exhibit #1). The panel ordered the withdrawal of these allegations as requested by both Counsel, acknowledging such withdrawal had permitted the parties to reach an agreement.

The remaining allegations against Enoch Edwards (the “Member”) set out in the Amended Notice of Hearing are as follows:

[Withdrawn]
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 on or about June 30, 2005, while working as a Registered Nurse at [the Hospital], you contravened a standard of practice of the profession or failed to meet the standards of the profession as follows:

a) [Withdrawn]

b) you made inappropriate comments to a client, [Client A];

c) you failed to maintain the boundaries of the nurse-client relationship.

[Withdrawn]
You have committed an act of professional misconduct as provided by Section 51(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(9) of Ontario Regulation 799/93, in that on or about June 30, 2005, while working as a Registered Nurse at [the Hospital], you bathed a client, [Client A], without [the client’s] consent when such consent was required by law.
You have committed an act of professional misconduct as provided by Section 51(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 on or about June 30, 2005, while working as a registered nurse at [the Hospital], 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, and in particular, with respect to a client known as [Client A], you:

a) [Withdrawn]

b) you made comments of a [withdrawn] inappropriate nature to a client, [Client A];

c) you failed to maintain the boundaries of the nurse-client relationship;

d) you bathed a client, [Client A], without [the client’s] consent when such consent was required by law.

Member’s Plea

The member admitted the allegations as set out in paragraphs #2(b),(c), #4, and #5(b),(c) and (d) of the Amended Notice of Hearing. The panel conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal. A signed plea inquiry was also received.

Agreed Statement of Facts

THE MEMBER

Enoch Edwards (“the Member”) graduated with a Diploma in Nursing from [ ] in 1995. The Member has been registered as a Registered Nurse with the College of Nurses of Ontario (“the College”) since 1995. He also registered with the College as a Registered Practical Nurse in 1999.
The Member began his employment at [the Hospital] on March 25, 2004 in a casual capacity.
On September 7, 2004, the Member transferred to a permanent full-time position as a Registered Nurse in [the Unit].
On September 7, 2005, the Member’s employment with [the Hospital] ceased as a result of incidents described below.

[THE UNIT]

[The Unit] is a 12-bed unit in [the Hospital]. Patients in the [the Unit] require intensive [] nursing, including frequent monitoring of [ ] status and vital signs, and may have ongoing cardiac or intra-cranial monitoring or require particular intravenous drug infusions. Each [Unit] nurse generally cares for no more than two patients. Nurses worked 12-hour shifts. The Day shift was from 0730 hours to 1930 hours, and the Night shift from 1930 hours to 0730 hours.
Patient care in [the Unit] was provided in accordance with a patient-centered care model, meaning care was focussed on a patient’s individual needs, and was provided in collaboration with the patient.
The general policy in [the Unit] was for patients to bathe at night. Depending on the patient’s ability, the bath could be performed by the patient alone, by the patient with assistance from the nurse, or the nurse could bathe the patient. In addition, it was standard nursing practice for patients with indwelling urinary catheters to have the perineal area washed with soap and water 3 or 4 times a day to keep the perineal area clean and prevent infection. Perineal care could be performed by either the patient or the nurse.
[The Unit’s] Guideline “Bedside Nursing Routines” indicated patients should be “freshened up” before medical rounds in the morning, which meant faces washed, teeth brushed, and perineal care done.

THE CLIENT

In 2005, “[Client A]” was [ ].
[Client A] was diagnosed in [ ] with [medical conditions].
[Client A] arranged to have [ ] surgery performed at [the Hospital]. [Client A] was admitted to [the Hospital] [ ] in preparation for the scheduled [ ] surgery.
[Client A] had never been in a hospital before for surgery. [Client A] was unfamiliar with hospital care and routines.

EVENT [ ]

On the morning of [ ], [Client A] showered [ ] with the assistance of [client A’s] mother and had a diagnostic test. At the time, [client A] had an intravenous line in [client’s A’s] right hand and no radial arterial line. [Client A] then underwent surgery, which was completed at approximately 1150 hours. After a brief recovery period, [Client A] was transferred to [the Unit] at approximately 1315 hours.
[Client A] was placed in a 6-bed room which contained 5 other patients. [Client A] had a right peripheral intravenous, a right radial arterial line and [ ] catheter. [Client A] was attached to a cardiac monitor. [Client A]’s surgery had been performed through [client A’s] nose. [Client A’s] nose was sore and [client A] bled from it when [sitting], requiring [client A] to wipe [client A’s] face from time to time. [Client A] was awake, alert, and able to move all [ ] limbs normally after the surgery.
At approximately 1930 hours, shift change occurred. The Member was assigned to care for [Client A] and another patient for the 12-hour night shift. The Member was also assigned to be a preceptor to another nurse, [Nurse A], who was being oriented to [the Unit].
During the evening, the Member and [Client A] engaged in conversation. The Member commented to [Client A] that [client A] had a flat stomach. He indicated that it was meant to be that [client A] would end up in [the Unit] and that he would be [client A’s] nurse. At one point, [Client A] asked the Member to get a book from [client A’s] bag, which was out of [client A’s] reach. As the Member was retrieving the book from [Client A’s] bag, he said [ ], “I see your [underwear].”
Later in the evening, [Client A] was ready to sleep. The Member told [client A] words to the effect “We’ll freshen you up first. You are going to like this.” The Member did not tell [Client A] what “freshen up” meant and [client A] did not ask him. [Client A] assumed it meant washing [client A’s] face and brushing [client A’s] teeth. [Client A] was capable of washing [client A’s] face and brushing [client A’s] teeth [ ] if [client A] wanted to. [Client A] shook [client A’s] head “No” and said “That’s OK, I’m fine.”
The Member then drew the curtains around [Client A’s] bed, and washed [client A’s] face, [ ] neck, [chest area], and [ ] perineal area. During the period when the Member was washing [Client A’s] perineral area, [client A] said “Ouch.” The Member said words to the effect of “Oh, I’ve scared you now, I’ll move to another part” and [Client A] agreed.
At the Member’s request, [Client A] rolled on [client A’s] side. The Member washed [client A’s] back and [ ] anal area.
At one point during the bath, the Member was approached by a nurse who offered the assistance of the Patient Assistant with the bath. The Member responded by stating words to the effect, “The last thing [client A] wants back here is another male.”
The Member’s preceptee, [nurse A], also offered to assist with the bath, and the Member refused her help.
Once the bed bath was completed, the Member opened the curtain around the bed.
Sometime after the bed bath, the Member commented to [Client A] words to the effect that “Maybe I can come out to [your area] and we can go fishing.”
[Client A] did not go to sleep that night. [Client A] intentionally stayed awake the duration of the night until the Member’s shift was over. The Member documented [Client A] had periods of sleep but roused easily.
[Client A] was transferred on July 1, 2005 to another unit in the hospital. [Client A] was discharged from the hospital on July 4, 2005.
On July 30, 2005, [Client A] wrote a letter to the Head Nurse of [the Unit], complaining about the care provided by the Member and his comments [ ].
[Client A] said [client A] was not traumatized by [client A’s] experience with the Member.
Had the Member testified, he would have said he did not understand [Client A] had refused the bath and he thought [client A] said “OK” to it.
The Member retained a nurse to act as an expert at the hearing. Had that nurse testified, she would have said the procedure used by the Member in performing the bath was appropriate.

ADMISSIONS

The Member admits that on the evening of June 30 2005, he ought to have discussed the proposed treatment with [Client A]. That discussion should have included a description of the care he proposed to provide, an explanation of the term “freshen up”, whether [Client A] needed or wanted the care and, if so, whether [client A] preferred to do it [alone], with the assistance of a [ ] nurse, or with his assistance. It should also have addressed any discomfort or lack of understanding [Client A] had about the bath and/or perineal care. If, following that discussion, [Client A] still refused a bath and/or perineal care, he was obliged to respect [client A’s] decision and not administer treatment without consent. [Client A’s] refusal of care would have been documented.
The Member admits that he failed to explain the proposed care to [Client A], and failed to obtain [client A’s] consent before providing treatment. The Member further admits his comments to [Client A] as set out in paragraphs 16 and 23, above, were inappropriate and constitute professional misconduct. He therefore admits, in particular, that he committed acts of professional misconduct as set out in allegations 2(b) and 2(c), 4, and 5(b), 5(c) and 5(d) of the Notice of Hearing dated April 25, 2005, and specifically he admits:
He committed an act of professional misconduct in that on or about June 30, 2005, while working as a registered nurse at [the Hospital], he failed to meet the standards of the profession as follows:

b. he made inappropriate comments to a client, [Client A];

c. he failed to maintain the boundaries of the nurse-client relationship.

He committed an act of professional misconduct in that on or about June 30, 2005, while working as a Registered Nurse at [the Hospital], he bathed a client, [Client A], without [client A’s] consent when such consent was required by law.
He has committed an act of professional misconduct in that on or about June 30, 2005, while working as a registered nurse at [the Hospital], he 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, and in particular, with respect to a client known as [Client A], he:

b. made comments of an inappropriate nature to a client, [Client A];

c. failed to maintain the boundaries of the nurse-client relationship;

d. bathed a client, [Client A], without [client A’s] consent when such consent was required by law.

OTHER

The College withdraws allegations 1, 2(a), 3, 5(a) and a portion of 5(b) of the Notice of Hearing dated April 25, 2007.

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 #2(b),(c), #4, #5(b) (as amended by the College’s withdrawal), (c) and (d) of the Amended Notice of Hearing in that:

The Member has 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 on or about June 30, 2005, while working as a Registered Nurse at [the Hospital], the Member contravened a standard of practice of the profession or failed to meet the standards of the profession in that he made inappropriate comments to a client and failed to maintain the boundaries of the nurse-client relationship.

The Member has committed an act of professional misconduct as provided by Section 51(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(9) of Ontario Regulation 799/93, in that on or about June 30, 2005, while working as a Registered Nurse at [the Hospital], the Member bathed a client without [the client’s] consent when such consent was required by law.

The Member has committed an act of professional misconduct as provided by Section 51(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 on or about June 30, 2005, while working as a registered nurse at [the Hospital], 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 unprofessional in that the Member:

b made comments of an inappropriate nature to a client;

c failed to maintain the boundaries of the nurse-client relationship;

d bathed a client without [the client’s] consent when such consent was required by law.

Penalty

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

Enoch Edwards, RN, #95-2170-9, II-08203 (the “Member”) and the College of Nurses of Ontario (the “College”) respectfully submit that, in view of the facts and admissions of professional misconduct set out in the Agreed Statement of Fact, the panel of the Discipline Committee should make an order as follows, which order is to become effective on the date the order becomes final:

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 of this Order becoming final.
Directing the Executive Director to suspend the Member's Certificate of Registration for three (3) months.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration that, within three (3) months of the date of this order, the Member shall:

a) complete the College's abuse prevention program, One is One Too Many, by viewing the video and completing the workbook, at his own cost, and

b) reflect on the program and its application to his practice and the factors that contributed to the conduct for which he was found to have committed professional misconduct, and

c) identify strategies to avoid future conduct similar to that for which he was found to have committed professional misconduct (“similar conduct”), and

d) review the College Standards and Guidelines—Professional Standards, Therapeutic Nurse-Client Relationship, Consent, and Ethics, and

e) complete the College’s Self-Assessment Tool, including the development of a learning plan to address how he will avoid future similar conduct (“Learning Plan”), and

f) complete the College’s on-line learning modules, Consent, Ethics, Professional Standards and the Therapeutic Nurse-Client Relationship, and complete the on-line participation form relevant to each module; and

g) meet with a Practice Consultant to discuss his self-assessment tool and Learning Plan, the One is One Too Many Program and the College’s Standards and Guidelines, as set out in subsections (a) through (f) of this paragraph as outlined above.

Meet with a Practice Consultant for a follow-up meeting six (6) months after the initial meeting, to review and discuss how he has implemented his Learning Plan.
Upon return to the practice of nursing, and for a period of twenty-four (24) months thereafter:

a) The Member shall deliver to the Director by courier or other verifiable method of delivery, notification of the names, addresses and telephone numbers of all employers and facilities for whom he practices nursing, as well as the name(s) of his direct supervisor(s), within fourteen (14) days of commencing or resuming employment. Notification shall be in writing and sent by verifiable form of delivery, such as courier, the proof of which delivery the Member shall retain; and

b) The Member shall only practice in a facility where other members of the College are engaged in practice and shall not work independently in the community; and

c) In the event the Member works for a nursing agency, the Member shall:

i. provide the nursing agency with a copy of the Panel's Decision and Reasons in advance of commencing or resuming practice; and

ii. work only for a nursing agency who agrees to, and does write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment, providing the Director with confirmation that the agency has received a copy of the document referred to in paragraph 5(c)(i) above; and

iii. only provide nursing care at two (2) health care facilities; and

iv. provide to the Director the name, business address, telephone number of either a nursing manager or human resources staff person, for each health care facility he works at; and

v. provide to the Director every six (6) months a performance appraisal from every health care facility he works at in a form agreed to by the Director indicating he is meeting all applicable nursing standards of practice, and in particular the therapeutic nurse-client relationship and consent.

d) In the event the Member works for an employer(s) other than a nursing agency, the Member shall:

i. provide the employer(s) with a copy of the panel’s Decision and Reasons in advance of commencing or resuming practice; and

ii. work only for an employer(s) who agrees to, and does write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment, providing the Director with the following:

(1) confirmation that the employer(s) has received a copy of the document referred to in paragraph 5(d)(i) above; and

(2) confirmation that the employer(s) agree(s) to notify the Director immediately upon receipt of any suspected breaches of the Nursing Act and/or its regulations by him, and/or any reasonable information that the Member has engaged in professional misconduct or is making inappropriate comments to clients, and in particular the therapeutic nurse-client relationship and consent.

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 of this Order becoming final.
The Executive Director to suspend the Member's Certificate of Registration for three (3) months.
The Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration that, within three (3) months of the date of this order, the Member shall:

a) complete the College's abuse prevention program, One is One Too Many, by viewing the video and completing the workbook, at his own cost, and

b) reflect on the program and its application to his practice and the factors that contributed to the conduct for which he was found to have committed professional misconduct, and

c) identify strategies to avoid future conduct similar to that for which he was found to have committed professional misconduct (“similar conduct”), and

d) review the College Standards and Guidelines—Professional Standards, Therapeutic Nurse-Client Relationship, Consent, and Ethics, and

e) complete the College’s Self-Assessment Tool, including the development of a learning plan to address how he will avoid future similar conduct (“Learning Plan”), and

The Member to meet with a Practice Consultant for a follow-up meeting six (6) months after the initial meeting, to review and discuss how he has implemented his Learning Plan.
Upon return to the practice of nursing, and for a period of twenty-four (24) months thereafter: