DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Michael Hogard, RPN Chairperson Marilyn McGill, RPN Member Christine Ritchie, RN Member John Bald Public Member Margaret Tuomi Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) REBECCA JONES for ) College of Nurses of Ontario
- and - ) ) NO REPRESENTATION for ) Catherine A. Menten CATHERINE A. MENTEN ) Registration No. II03386 ) ) LUISA RITACCA ) Independent Legal Counsel ) Heard: June 14-16, 2010
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee on June 14, 15 and 16, 2010 at the College of Nurses of Ontario (“the College”) in Toronto.
As Catherine A. Menten (the “Member”) was not present, the hearing recessed for 45 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was not in attendance.
College counsel requested a publication ban for the client involved and the panel agreed that this was a reasonable request given the confidential and personal nature of the subject matter. The College’s request was granted.
Counsel for the College provided the panel with evidence that the Member had been personally served the Notice of Hearing on March 08, 2010. The panel was satisfied that the Member had received adequate notice and therefore proceeded with the hearing in the Member’s absence.
The Allegations
- You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(1) of Ontario Regulation 799/93, in that on or about October 4, 2007, while you were working as a nurse at [the facility] on [Unit A], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that you:
(a) told [Client A] that if he did not settle down he would get a “needle in the ass”, or words to that effect; and/or
(b) refused to allow [Client A], who was in seclusion, to use the bathroom; and/or
(c) refused or neglected to provide a bed pan to [Client A] when he needed to go to the bathroom while in seclusion; and/or
(d) required or permitted [Client A] to clean up his own urine; and/or
(e) inaccurately recorded in J.S.'s chart that staff had cleaned up the urine when they had not; and/or
(f) [swore at Client B].
- You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(1) of Ontario Regulation 799/93, in that on or about February 14, 2005, while you were working as a nurse at [the facility] on [Unit A], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that you:
(a) failed to intervene appropriately when you observed [clients engaging in oral sex]; and/or
(b) responded inappropriately by laughing when you observed [clients engaging in oral sex].
- You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(7) of Ontario Regulation 799/93, in that on or about October 4, 2007, while you were working as a nurse at [the facility] on [Unit A], you abused a client verbally, physically or emotionally, in that you:
(a) told [Client A] that if he did not settle down he would get a “needle in the ass”, or words to that effect; and/or
(b) refused to allow [Client A], who was in seclusion, to use the bathroom; and/or
(c) refused or neglected to provide a bed pan to [Client A] when he needed to go to the bathroom while in seclusion; and/or
(d) required or permitted [Client A] to clean up his own urine; and/or
(e) [swore at Client B].
You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(14) of Ontario Regulation 799/93, in that on or about October 4, 2007, while you were working as a nurse at [the facility] on [Unit A], you falsified documentation by writing that staff had cleaned up urine when they had not.
You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(37) of Ontario Regulation 799/93, in that on or about October 4, 2007, while you were working as a nurse at [the facility] on [Unit A], you engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that you:
(a) told [Client A] that if he did not settle down he would get a “needle in the ass”, or words to that effect; and/or
(b) refused to allow [Client A], who was in seclusion, to use the bathroom; and/or
(c) refused or neglected to provide a bed pan to [Client A] when he needed to go to the bathroom while in seclusion; and/or
(d) required or permitted [Client A] to clean up his own urine; and/or
(e) [swore at Client B].
- You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1(37) of Ontario Regulation 799/93, in that on or around February 14, 2007, while you were working as a nurse at [the facility], [Unit A], you engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that you:
(a) failed to intervene appropriately when you observed [clients engaging in oral sex]; and/or
(b) responded inappropriately by laughing when you observed [clients engaging in oral sex].
Counsel for the College advised that the College was not proceeding with allegations: 1 (f), 2 (a & b), 3 (e), 5 (e), and 6 (a & b).
Member’s Plea
Given that the Member was not present nor represented, the panel entered a plea of not guilty on the Member’s behalf. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.
Overview
The Member had been a Registered Practical Nurse (“RPN”) since 1998. Her certificate of registration has been suspended for non-payment of fees since April 2008. At the time of the alleged incident, the Member was working at [the facility] on the in-[client] Mental Health Unit [Unit B]. [Unit B] [includes “secure” beds referred to as Unit A]. The [clients] in [Unit A] are deemed to be unsafe to self or others and are placed in this unit to decrease stimuli and to provide a safe environment for therapeutic means.
[Unit B] is staffed with a charge nurse, 5 primary nurses and 1 [Unit A] nurse. In addition to the [ ] private rooms, [Unit A] has a [client] lounge and its own nursing station. There is one designated washroom for [Unit A]. Video surveillance is present in [ ] four rooms and lounge but not the washroom. An intercom system is available. The [Unit A] nurse is responsible for all custodial care, safety and activities of daily living of the clients in [Unit A]. While clients are in seclusion, the procedure for washroom privileges is that the [Unit A] nurse or security escorts clients to the washroom or they are provided with a urinal/bedpan.
[Client A] was admitted to the in-patient unit at [the facility] on October 3,2007 [ ] and was later transferred to [Unit A]. On October 4, 2007, the Member assumed care of [Client A] at 1500 hours. [Client A] was becoming more difficult to manage because of intrusive, demanding, hypo manic behaviour and pressured speech. There was no aggressive or violent behaviour by [Client A].
It is alleged that the Member committed an act of professional misconduct as provided by subsection 51(1) (c) of the Health Professions Procedural Code and defined in paragraph 1(1) of Ontario Regulation 799/93, as she told [Client A] that if he did not settle down he would “get a needle in the ass” or words to that effect.
The Member also refused [Client A] who was in seclusion, to use the washroom and refused or neglected to provide a bedpan. She also required or permitted [Client A] to clean up his own urine and inaccurately recorded in [Client A]’s chart that staff had cleaned up the urine.
The issues are:
Did the Member threaten and use foul language to a vulnerable [client]?
Did the Member refuse to allow a [client] to use bathroom facilities while in seclusion?
Did the Member refuse or neglect to provide necessary equipment/urinal when required?
Did the Member command a [client] to clean up his own urine?
Did the Member inaccurately record in a [client]’s chart that staff had cleaned up the urine when they had not?
The Evidence
Counsel for the College called six witnesses.
[Witness #1] – A Prosecutions Administrator at the College since 2002. She searched the records of the Member and testified that the Member registered with the College on October 27, 1998 and was suspended on April 10, 2008 for non-payment of fees. The panel found this witness to be credible and had no interest in the outcome.
[Witness #2] - Interim Director of Mental Health, Emergency and ICU at [the facility]. She has been a manager since 2000. She provided an overview of the in-patient unit and the role of the staff in each area. The panel found this witness to be credible and had no interest in the outcome.
[Witness #3] – RN who was serving as a primary nurse on [Unit B] on October 4, 2007. She testified that she saw [Client A] being put into seclusion due to his intrusive behaviour and stressed that he was not violent. She claimed that she heard the Member say to someone, “Wipe it up with your housecoat”. She met [Client A] at the end of shift as he requested to put a saturated red housecoat into the hamper. She stressed she did not clean up anything involving [Client A] that night. The panel found this witness to be credible and had no personal interest in the outcome of the hearing.
[Witness #4] – RN who was working on [Unit B] on the evening of October 4, 2007 and was serving as the primary nurse for [Client A]. She testified that she saw the incident between the Member and [Client A]. She noted that the client was not violent or aggressive, but was hypo manic and agitated. She witnessed the Member say to [Client A] that “if he did not behave, you will get a needle in the ass.” The Member then came back to the [Unit A] nursing station and stated to the witness that “he would be getting a fucking needle in the ass!” She testified that she did not see the Member take [Client A] to the bathroom or offer him a urinal. The panel found this witness to be credible and had no personal interest in the outcome of the hearing.
[Witness #5] - Security Officer/Systems Coordinator at [the facility]. She described the role of security at the facility and is in charge of video cameras throughout the facility. She testified that the priority response in a case of crisis was given to the Emergency Department and [Unit B]. She was asked to review video footage of the incident of October 4, 2007 and stated that [Client A] displayed no big gestures and was not destructive in any way. No nurse had entered the room, nor was any urinal/bedpan offered and stated that [Client A] voided 3 times (on an article of clothing, on the floor by the door and on the floor by the cabinet.) [Client A] was also observed wiping up urine on the floor in several areas of the room. The panel found this witness to be credible and had no personal interest in the outcome of the hearing.
[Witness #6] - BSc.N, M.N, Ph.D. Expert Witness. He has expertise in [client] relationships involving mental health with mood disorders including bipolar disorder and schizophrenia. The panel was provided with an extensive Curriculum Vitae summarizing all of his credentials [ ]. He is currently serving as a full time Associate Professor of Nursing [ ], and an Adjunct Professor [ ]. He has generally been recognized as an expert on Nursing Ethics and Mental Health clients and has previously testified as an expert witness at the College of Nurses on Ontario. The Panel accepted the witness as an Expert in therapeutic relationships involving mental health [clients], nursing standards, experience in teaching students, and supervision. He also has experience with [clients] who suffer from mental health disorders and agitated [clients] based on his Curriculum Vitae and his testimony. The witness testified that he was given a hypothetical case study with facts similar to the allegations listed. He referred to the publication “Therapeutic Nurse-Client Relationship, Revised 2006” [ ] for the definition of abuse. He then expanded by referring to page 16 and the listing of abusive behaviours. He specifically stated that there was verbal and emotional abuse through intimidation, taunting and swearing. Neglect was demonstrated by not offering needed aids/equipment such as a urinal/bedpan. He stated that it was unreasonable to expect a [client] to clean up their own urine. This constituted abuse due to the nurse exhibiting power over the [client], instead of negotiated power. After violating the trust between the nurse and the [client], this [client] will probably find it difficult to trust nurses again.
The witness testified that the documentation stating that staff had cleaned up the urine was not true, accurate or honest. His reference was the College of Nurses of Ontario Practice Standard on Documentation (2005) [ ], page 5, stating the core standards of documentation of care by nurses.
College counsel submitted [ ] notes on [Client A] and [ ] an email from the Director of Security at [the facility] confirming what was seen on the video surveillance relating to the incident. [The notes] stated that the Member documented that staff had cleaned up the urine in the [client]’s room, but [the e-mail] stated that the [client] had wiped up urine with a towel with his foot. Witness #3 stated that she observed [Client A] asking to dispose of a red housecoat into the laundry hamper that appeared to be saturated with urine.
Final Submissions
Counsel for the College submitted that the onus on the College is to prove with balance of probabilities more likely than not that the alleged allegations have occurred.
Allegation 1a) 3a) and 5a) [Witness #4]’s testimony was clear and unchallenged. The verbal abuse was exhibited by the use of vulgar, unprofessional terms that shames the Member and the Profession. It casts doubt on the moral fitness of Members and inability to discharge higher obligation that the public expects professionals to meet. It was conduct that falls below the standards of the profession and exemplifies disgraceful, dishonourable and unprofessional actions.
Allegation 1b) 3b) and 5b) The expectations of the facility were known to the Member. It was inappropriate for her to do nothing in these circumstances. The client could have been taken to the washroom; security could have been called; or a urinal could have been offered. This was an abuse of power, which affects the dignity of the [client], and would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.
Allegation 1c) 3c) and 5c) The expectations of the facility is to provide a bedpan/urinal. There was no provision of a dignified means for [Client A] to void, which is a fundamental aspect on dealing with secluded [client]s. Withholding equipment constitutes abuse and neglect.
Allegation 1d) 3d) and 5d) [Witness #3] testified that she heard the Member say “use your housecoat to mop it up” over the intercom. Later, [Client A] came to her with a red housecoat saturated with urine to dispose in [the] laundry hamper. This constitutes abuse, power over the vulnerable client, and thus is disgraceful, dishonourable and unprofessional.
Allegation 1e) and #4 The Member documented “patient urinated on floor, and staff in to clean same up.” This statement was untrue and it was not documented that [Client A] cleaned up his own urine. This fails to meet the standard. It was not comprehensive, true, honest, or a complete record.
Decision
The College bears the onus of proving the allegations in accordance with the standard of proof which the panel is familiar with, set out in FH & McDougall (2008). The standard of proof applied by the panel, in accordance with the decision, was on a balance of probabilities.
Having considered the evidence and the onus and standard of proof, the panel finds that in all probability the Member committed acts of professional misconduct as alleged in paragraphs 1 (a, b, c, d, e) 3 (a, b, c, d) 4, 5 (a, b, c, d) of the Notice of Hearing. In particular, the Member engaged in conduct that would reasonably be regarded by Members of the profession as disgraceful, dishonourable and unprofessional by (a) threatening a client, (b) not allowing a [client] to use [the] bathroom while in seclusion, (c) neglect[ing] to provide equipment to a [client] for basic needs, (d) command[ing] a [client] to clean up his own urine, (e) inaccurately record[ing] in a [client]’s chart that staff had cleaned up the urine when they had not done so.
As to allegations 1 f), 2 a) and b), 3 e) 5 e) 6 a) and b), College Counsel advised that she was not proceeding or leading evidence with respect to them. Accordingly, the panel made no finding with respect to those allegations.
Reasons for Decision
The onus of proving the allegations as set out on the Notice of Hearing is on the College. The documentary evidence presented, combined with witness testimony, clearly establishes that the Member a) threatened a mental health [client]; (b) refused to allow that [client] to use the bathroom while in seclusion; (c) neglected to provide equipment to the [client] for basic needs; (d) commanded a [client] to clean up his own urine; and (e) inaccurately recorded in a [client]’s chart that staff had cleaned up the urine when they had not done so.
Based on the above reasons, the panel found in favour of the College. The conduct of the Member falls below the standards of the profession and exemplifies disgraceful, dishonourable and unprofessional actions.
Penalty
Penalty Submissions
The College argued for the following penalty:
An oral reprimand within 3 months of order becoming final;
Suspension of the Member’s certificate of registration for a period of 3 to 4 months;
Terms, conditions and limitations on her certificate of registration, including:
(a) Three (3) meetings with an expert in the therapeutic nurse client relationship who has received prior approval from [the] Director of Professional Conduct. Prior to the meetings, the Member shall:
(i) provide the expert with copies of Panel’s Order, Decision and Reasons, if available;
(ii) Review the following College publications and complete a Reflective Questionnaire for each: Ethics; Professional Standards, 2002; Documentation, revised 2008; Therapeutic Nurse-Client Relationship, revised 2006; and Conflict Prevention and Management;
(iii) Complete the online learning modules and participation forms for: Documentation, Ethics, Professional Standards, and Therapeutic Nurse-Client Relationships;
(iv) Complete One is One Too Many and the Nurses’ workbook;
(v) Deliver the completed Reflective Questionnaires, online participation forms and Nurses’ workbook in advance of the first meeting with the expert.
(b) The subject of the meetings with the Expert will include the following:
(i) The conduct for which the Member was found to have committed professional misconduct;
(ii) The potential consequences of that conduct to her clients, her colleagues, her profession and herself;
(iii) The responsibilities of the Member as a regulated health professional, particularly in times of crisis;
(iv) Strategies for making the inappropriate conduct unlikely to occur in the future; and
(v) The development of a learning plan.
(c) For a period of twelve (12) months following the date upon which the Member returns to the practice of nursing, the Member shall:
(i) Notify the Director of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which the Member shall retain;
(ii) Provide her employer(s) with a copy of the Panel’s Penalty Order, the Notice of Hearing, and, if available, the Panel’s written Decision and Reasons;
(iii) Only practi[s]e 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, and provide the Director with the following:
Confirmation that the employer(s) has received a copy of the documents referred to above; and
Confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of practice of the profession.
Penalty Decision
Requiring the Member to appear before the panel to be reprimanded on a date to be arranged but, in any event, within three (3) months of the date of the Order.
Directing the Executive Director to suspend the Member’s certificate of registration for a period of 4 months;
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
(a) Requiring the Member to attend three (3) meetings with an expert in the therapeutic nurse client relationship who has received prior approval from [the] Director of Professional Conduct. Prior to the meetings, the Member shall:
(i) provide the expert with copies of Panel’s Order, Decision and Reasons, if available;
(ii) Review the following College publications and complete a Reflective Questionnaire for each: Ethics; Professional Standards, 2002; Documentation, revised 2008; Therapeutic Nurse-Client Relationship, revised 2006; and Conflict Prevention and Management;
(iii) Complete the online learning modules and participation forms for: Documentation, Ethics, Professional Standards, and Therapeutic Nurse-Client Relationships;
(iv) Complete One is One Too Many and the Nurses’ workbook;
(v) Deliver the completed Reflective Questionnaires, online participation forms and Nurses’ workbook in advance of the first meeting with the expert.
(b) The subject of the meetings with the Expert will include the following:
(i) The conduct for which the Member was found to have committed professional misconduct;
(ii) The potential consequences of that conduct to her clients, her colleagues, her profession and herself;
(iii) The responsibilities of the Member as a regulated health professional, particularly in times of crisis;
(iv) Strategies for making the inappropriate conduct unlikely to occur in the future; and
(v) The development of a learning plan.
(c) For a period of twelve (12) months following the date upon which the Member returns to the practice of nursing, the Member shall:
(i) Notify the Director of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which the Member shall retain;
(ii) Provide her employer(s) with a copy of the Panel’s Penalty Order, the Notice of Hearing, and, if available, the Panel’s written Decision and Reasons;
(iii) Only practi[s]e 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, and provide the Director with the following:
Confirmation that the employer(s) has received a copy of the documents referred to above; and
Confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of practice of the profession.
Reasons for Penalty Decision
Mitigating factors are that the Member had no prior history with the College. Aggravating factors are that she treated a mental health [client] abusively in failing to meet his basic needs and abused trust. What she did was degrading and dehumanizing. This was compounded by the falsification of records.
The panel concluded that the proposed penalty is appropriate, in that it acts as a general deterrent to the members of the profession and as a specific deterrent to the Member herself. She demonstrated abuse of trust, authority and power. She failed to act in the best interests of the client and compromised the dignity of a vulnerable client. The Member betrayed the trust of the nurse-client relationship, which is seen as one of the cornerstones of the profession.
The penalty is a general deterrent in that all nurses will see the consequences of actions which are abusive to vulnerable [clients]. Specific deterrence will provide remediation to the Member and will allow her to reflect on her actions and get assistance.
Suspension, remediation and supervision will ensure that the Member has a chance to reflect on future functions in Nursing and serve to protect the Public.
I, Michael Hogard, 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:
Marilyn McGill, RPN
Christine Ritchie, RN
John Bald, Public Member
Margaret Tuomi, Public Member```