College of Nurses of Ontario v. Gordon Guilbeau, 2010 CanLII 100036

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Carl Balcom, RN Chairperson Kim Jinkerson, RPN Member Angela Verrier, RPN Member Lyn Harrington Public Member Grace Isgro-Topping Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MATTHEW SAMMON for College of Nurses of Ontario

• and -

GORDON GUILBEAU Registration No. HB03762 NO REPRESENTATION for Gordon Guilbeau

JOHANNA BRADEN. Independent Legal Counsel

Heard: July 8, 9, 20, 2010

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on July 8, 9, 20, 2010 at the College of Nurses of Ontario ("the College") at Toronto.

As Gordon Guilbeau (the "Member") was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening the panel noted that neither the Member, nor the Member's representative were in attendance. College Counsel advised the panel that he had received notice that the Member would not be attending the hearing.

Counsel for the College provided the panel with evidence, in the form of [an] Affidavit of Service, that the Member had been sent the Notice of Hearing on June 2, 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

The allegations against the Member as stated in the Notice of Hearing dated May 26, 2010, are as follows.

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, on or about January 16, 2006, while employed at [the facility] in [ ], Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession by applying inappropriate physical force to a client.

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that, on or about January 16, 2006, while employed at [the facility] in [ ], Ontario, you abused a client verbally, physically, or emotionally.

3. 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(14) of Ontario Regulation 799/93, in that you falsified a record relating to [ ] your practice by:

a) falsely representing to the College of Nurses of Ontario in the 2002 Annual Payment Form that since your initial registration with the College of Nurses of Ontario you had not been found guilty of a criminal offence; and/or

b) falsely representing to the College of Nurses of Ontario in subsequent Annual Payment Forms that you had not been found guilty of a criminal offence.

4. 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(15) of Ontario Regulation 799/93, in that you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement by:

a) falsely representing to the College of Nurses of Ontario in the 2002 Annual Payment Form that since your initial registration with the College of Nurses of Ontario you had not been found guilty of a criminal offence; and/or

b) falsely representing to the College of Nurses of Ontario in subsequent Annual Payment Forms that you had not been found guilty of a criminal offence.

5. 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(19) of Ontario Regulation 799/93, in that you contravened subsection 5(3) of Ontario Regulation 275/94 by failing to report to the College of Nurses of Ontario a finding of guilt for a criminal offence.

6. 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(23) of Ontario Regulation 799/93, in that you failed to take reasonable steps to ensure that the requested information was provided in a complete and accurate manner where you were required to provide information to the College of Nurses of Ontario pursuant to the regulations under the Nursing Act, 1991, S.O. 1991, c. 32, as amended, by:

a) failing to report to the College of Nurses of Ontario that you had been found guilty of a criminal offence;

b) falsely representing to the College of Nurses of Ontario in the 2002 Annual Payment Form that since your initial registration with the College of Nurses of Ontario you had not been found guilty of a criminal offence; and/or

c) falsely representing to the College of Nurses of Ontario in subsequent Annual Payment Forms that you had not been found guilty of a criminal offence.

7. 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 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, by:

a) on or about January 16, 2006, while employed at [the facility] in [ ], Ontario, [applying] inappropriate physical force to a client;

b) failing to report to the College of Nurses of Ontario that you had been found guilty of a criminal offence;

c) falsely representing to the College of Nurses of Ontario in the 2002 Annual Payment Form that since your initial registration with the College of Nurses of Ontario you had not been found guilty of a criminal offence; and/or

d) falsely representing to the College of Nurses of Ontario in subsequent Annual Payment Forms that you had not been found guilty of a criminal offence.

Member's Plea

Given that the Member was not present nor represented, he was deemed to have denied the allegations in the Notice of Hearing. 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, a Registered Practical Nurse with the College since 1982, was employed at [the facility] in [ ] at the time of the allegations. The facility [had] four different units, one unit being a locked ward [ ]. On January 16, 2006, the Member was the RPN on duty during the afternoon shift (3:00 pm until 11:00 pm) and was the team leader for two separate units, including [the locked ward]. There were also two Personal Support Workers (PSWs) on the same shift assigned to [the locked ward].

The alleged incident occurred around 10:00 pm on January 16, 2006 after the Member entered [the locked ward] from the adjacent unit. The allegation is centered on the Member and his involvement with [Client A]. [Client A] was a frail, [elderly] male, suffering from advanced dementia and COPD, who was admitted to [the facility] on that same day. At issue is whether or not the Member applied inappropriate physical force, and physically, verbally or emotionally abused [Client A] by pushing him down a corridor.

The evidence relating to this incident included the Member's own statements that he guided [Client A] down the corridor by standing behind [Client A] with his hands on [Client A]'s shoulders. The Member proceeded to "guide" [Client A] for approximately 47 feet, even after encountering resistance from [Client A], and without [Client A]'s consent. The Member stopped "guiding" the resident in this manner after coming around a corner and encountering the two PSWs.

Also at issue is whether or not the Member failed to report a past criminal conviction to the College (as required by the Nursing Act) and whether he falsely represented on the 2002 Annual Payment Form and on subsequent years' forms that he had never been convicted of a criminal act. The evidence on this issue was that the Member signed his Annual Payment Forms from 2002 through 2007, without disclosing a past criminal conviction.

The main issues for consideration by the panel were:

• was there physical and emotional abuse of [Client A] by the Member;

• did the Member breach the Therapeutic Nurse Client Relationship Standard with respect to [Client A]; and

• did the Member fail to disclose a past criminal conviction.

The panel heard testimony from six different witnesses and received a court transcript of the Member's testimony and statements, made under oath, from a criminal trial related to the incident. The panel also reviewed fourteen exhibits. After careful deliberation, the panel found that the Member had committed professional misconduct with respect to paragraphs # 1, # 2, # 3 (a), # 4 (a), # 5, and # 6 (a) and (b) of the Notice of Hearing. With respect to allegation # 7(a) the panel found the Member's conduct to be dishonourable and unprofessional. Regarding allegations # 7 (b) and (c) the Member's conduct was found to be unprofessional. The panel made no findings of professional misconduct with respect to paragraphs # 3 (b), # 4 (b) # 6 (c) and # 7 (d) in the Notice of Hearing.

The Evidence

[Witness #1]

The witness is the Manager of Complaints at the College. In 2007, [the Manager] worked as an Investigator in the Investigation and Hearings department, and was responsible for investigating allegations made against the Member. The witness confirmed that he sent a letter to the Member, dated September 5, 2007, outlining the incidents that were to be reviewed by the Executive Committee [ ]. The witness also identified a letter from the Member, dated September 30, 2007 [ ], responding to the allegations as well as outlining the Member's account of the events of January 16, 2006. In that letter, the Member confirms that he failed to report a criminal offence on the College's Annual Payment form and provided an explanation for failing to do so.

The witness provided reliable, factual information. He has no vested interest in the outcome of the hearing. He was found to be credible.

[Witness #2]

The witness is a Customer Service Coordinator at the College. He provides members of the College with the Annual Renewal Forms and records the information once the Forms are returned. He briefly explained the College's record keeping process with respect to the Annual Membership Renewal Forms. The witness was familiar with the College's records of registration pertaining to the Member. He indicated that the Member has been a Registered Practical Nurse since 1982. [A document] dated June 4, 2009 reflects that the Member's registration with the College is current. The panel was also presented with the Member's Annual Membership Renewal Forms [ ] for the years 2002 through to 2007. In the Annual Membership Renewal Form for 2002, the Member reported to not having any criminal convictions since his initial registration. 2002 was the first year that the self-reporting question regarding previous criminal convictions was asked on the Membership Renewal Forms. The Member did not disclose any criminal convictions on subsequent forms, nor did he ever disclose to the College that he had any criminal convictions.

The witness provided reliable, factual information. He has no vested interest in the outcome of the hearing. He was found to be credible.

[Witness #3]

The witness, a former RN, with a degree in Gerontology, has been the Administrator at the [ ] facility since September 2006. In this role, he is responsible for all departments at the facility.

He testified that the [ ] facility was divided into four units, one being a secured unit [ ] for residents with dementia and at high risk of leaving the facility. This facility was attached to [a hospital]. The witness was not employed at the facility at the time of the allegations; however, he has reviewed the records and confirmed that the Member was employed at [the facility] as an RPN on January 16, 2006. The witness also confirmed that [Client A] was a resident of the facility.

The records identified by the witness show that [Client A], an [elderly] man with dementia, was admitted to the [ ] Hospital with pneumonia on December 23, 2005 and was transferred to [the] facility on January 16, 2006. The witness confirmed that the facility kept records of [Client A]'s chart [ ], and that he was familiar with this chart, as he had copied the file in the fall of 2006 for a criminal proceeding. The file included a psycho-social assessment indicating that R.G. suffered from advanced dementia and had no history of aggression toward himself or others. The information in the assessment is important to safeguard the client and others at the facility. It also assists in planning the course of care for the resident. The chart included the multi-disciplinary progress notes, including an entry on January 16, 2006 made by the Member referring to an incident involving [Client B] (another resident of [the locked ward]) and [Client A].

The witness also identified the Policy & Procedure Manual regarding Abuse Policy – Physical/Restraint [ ]. The witness testified that the policy was in place and effective at the facility in January 2006. He stated that all staff had access to and related training regarding the policies. The definitions used in the policy were relatively standard across the province.

The witness was not on staff at the time of the incident, and provided the panel with factual information regarding the facility, including the relevant policies and information with respect to [Client A]'s chart. The panel found the witness to be credible in that his responses were straightforward and concise and consistent with the documents.

[Witness #4]

The witness testified that she is a manager of professional practice at [a hospital]. Her job involves setting nursing standards for her organization and monitoring those standards according to "best practices." She is also responsible for training Practice leaders throughout her organization to assist clients suffering from dementia re: de-escalation of clients with behavioural issues.

After reviewing the witness's education and work history, the panel accepted her curriculum vitae [ ], and qualified [Witness #4] as an expert witness, qualified to give opinion evidence with respect to nursing standards. [The expert] had a clear understanding of the College's standards. Counsel presented the witness with a hypothetical situation based on the transcript of the Member's testimony.

In order to have some background on [Client A], the witness was shown a copy of his medical chart []. [Client A] was an [elderly], frail man, suffering from dementia. The documentation showed that [Client A] was an easy-going, pleasant man. [The expert] testified that in her review of the file, she noted that none of [Client A]'s medications suggested any history of aggression or violence.

College Counsel provided the witness with several hypothetical scenarios based on evidence and testimony of other witnesses. [The expert] was asked to assume the following facts.

• [Client A] was confused and [disoriented], but [ ] he was compliant with redirection by the PSWs and showed no signs of violence.

• At approximately 10:00 p.m., the unit was quiet as most of the residents were asleep or in their rooms.

• [Client A] was wandering around the unit as observed by the two PSWs assigned to the unit. At this time, the Member came onto the unit and entered the room of [Client B] as he heard voices in her room.

• The Member found [Client A] trying to climb into [Client B]'s bed. [Client B] is a frail, elderly woman with a history of aggression toward other residents. [Client B] was telling [Client A] to "get out."

The witness testified that there was "no indication of any danger in this situation" and that the "nurse should act accordingly." The witness also stated that any time a nurse is concerned with his or her personal safety, a nurse should "call for help."

Counsel then asked the witness to assume additional facts, including the following.

• The Member stood behind [Client A] and called out his name. [Client A] stopped climbing onto the bed, but did not turn around.

• The Member then proceeded to put his hands on [Client A]'s shoulders to turn him around. The Member "nudged" [Client A] out of the room with his shoulder.

To this scenario, the expert witness testified that a cognitively impaired resident may not know where the voice is coming from if addressed from behind. She stated that to have these clients respond to verbal cues, eye contact is a necessity. She also testified that she had never seen the "nudging" method used to redirect a resident, as this method would put the resident at an increased risk for falls, aggression and agitation because of the cognitive impairment.

Counsel then asked the witness to assume the Member got behind [Client A] and put both his hands on [Client A]'s shoulders while applying physical pressure to direct [Client A] down the hall. The witness was to assume that [Client A] was putting up some resistance to being guided in this manner. The witness' opinion was that this would increase the resident's level of confusion, aggression, and agitation, as [Client A] would have no idea who was behind him, leaving the nurse at a "dramatically increased risk" of being harmed. She testified that a nurse should "never" stand behind a resident, they should stand beside or in front of the resident to decrease their risk of harm and keep the resident from becoming agitated.

[The expert] was asked her opinion about the fact that [Client A] was compliant after the incident when a PSW lead him by the arm to the nurses' station. [The expert] testified that [Client A] was probably responding to the pressure being applied to his shoulder blades when he was resisting the Member and that this would increase [Client A]'s stress level.

[The expert]'s opinion, based on all the facts she was asked to assume, was that the Member did not comply with nursing standards and that in this scenario the Member "applied inappropriate physical force."

College Counsel introduced "The Therapeutic Nurse-Client Relationship Standard" [ ], which sets out the College's definition of physical abuse. [The expert] opined that the Member was clearly in breach of the standard. By the Member's own admission, [Client A] was resisting [ ] the application of force. The [client] was also noticed crying following the incident. [The expert] emphasized that physical abuse is as perceived by the [client], and she assumed that [Client A] would have found the Member's actions to be "threatening and abusive." [The expert] also testified that if the Member had any reason to use force on [Client A] or any cause to think [Client A] was aggressive or agitated, then this information should have been documented in [Client A]'s chart. She also suggested that if the Member was as concerned for his safety as he had stated in his testimony during the criminal trial, then it would not be plausible for him to have stood in front of [Client A] to do a dressing on his forearm, take his vital signs, or leave him in the hall unattended to check on resident [Client B].

This witness gave knowledgeable, straightforward testimony that was within the scope of her expertise. The panel found her to be a credible, independent expert witness with no vested interest in the outcome of the hearing.

[Witness #5 – PSW A]

This witness testified that she had worked as a Personal Support Worker (PSW) since 1987. In January 2006 she was employed at the [facility] in that role. She stated that on January 16, 2006, she was working the afternoon shift (3:00 p.m. to 11:00 p.m.) on [ ] the locked unit, along with the Member and another PSW [ ].

The witness testified that she was the primary caregiver to [Client A] and had assisted him throughout the evening, included getting him ready for bed. She did not note any injury to [Client A]'s arm during this time. She was aware that [Client A] suffered from dementia, and noted that it was his first day at the facility and that he was a little confused. She described [Client A] as cooperative and pleasant, and did not notice any signs of aggression. Although he was confused, he was not angry or upset, and was easily escorted back to his room without objection or resistance. She stated that [Client A] was easily re-directed using verbal cues and that she was able to lead him by extending her hand to him.

[PSW A] testified that at approximately 9:45pm, she and [PSW B] were charting at the nurse's station when she had heard the door between the two units slam, and she assumed that it was the Member entering [the locked ward] from [ ] the other unit. She noted that when the unit was quiet, you could hear what was going on at the far end of the unit. Shortly after, she heard "shouting", and she and [PSW B] went around the corner. They saw the Member "pushing" [Client A] forcibly by the shoulder blades. She saw [Client A] being pushed a distance of three to five feet and she described it as "one big shove". She noted that [Client A] looked upset, and the Member seemed very angry. The Member stopped as soon as he saw the witness and [PSW B]. [PSW A] stated that she returned to the desk to sit down as the incident was "too much for me … I have never seen anyone be treated like that". The witness became very emotional during this part of her testimony and was given a moment to compose herself. She went on to testify that [Client A] was accompanied back to the nurse's station by [PSW B], and it was at that time that she noticed a skin tear approximately five inches long on [Client A's] right arm. It was "very big and sore looking". The Member was told about the injury and he went to the medication room to get bandages to dress the wound. [Client A] did not resist treatment. The witness was not aware of any incident regarding [Client B], and the Member did not ask [PSW A] to tend to [Client B].

The witness then escorted [Client A] to his room. He was upset but cooperative and did not resist. The witness testified that [Client A] stated, "My eyes are crying". The witness once again became emotional when she spoke of [Client A's] reaction to the incident.

The witness also testified that the Member later entered [Client A]'s room in order to record his vital signs, at which time she was present and no further incident was noted.

The witness did not speak to the Member regarding the incident that night, nor has she seen him since that night.

The witness testified in a straightforward manor, and although she was nervous, and used notes to refresh her memory (which she had prepared on January 18th, for the Director of Care, following the incident), the panel found her to be a credible witness. Her testimony was consistent with that of the other PSW on duty.

[Witness #6 – PSW B]

[PSW B] has been a PSW for 23 years and was working at the [facility] in January 2006. On January 16, 2006, she had been working the afternoon shift on [the locked ward]. [PSW A] and the Member were working the same shift. She was aware that [Client A] had been admitted to the unit on that day. She noted that [Client A] required a couple of "redirects" as he had just been admitted, and would not have known the common areas, or his own room. He would be redirected by speaking to him. [Client A] seemed kind. He was friendly and smiling, a "very passive fellow". He was tall, skinny and frail, and the witness had never observed him to be violent, aggressive or resistant to care. He wandered the hall looking for his wife. [Client A] was walking the hallways while the witness and [PSW A] were charting at the nurse's station. At approximately 9:45pm, the unit was very quiet, and she heard a click of the door. She assumed that the Member had just entered [the locked ward] from the adjacent unit. Shortly after, she heard escalating male voices, and she went to observe. She went around the corner down the hallway and saw the Member behind [Client A] with his hands on [Client A]'s shoulders. The Member had his knees bent, pushing [Client A] about three feet. The Member noticed the witness and he stopped. [PSW B] went to speak with [Client A] and brought him to the nurse's station. She stated he came willingly but was distraught and crying. [Client A] complained about a sore arm, he lifted his sleeve and the witness observed a "four to five inch" skin tear on his right forearm. The Member dressed [Client A]'s arm. [Client A] was not resistant to care, nor was he violent or aggressive.

The witness described [Client B] as tall, slender, frail and elderly. She would scream very loud if someone wandered into her room. She would have been easily audible at that time of night.

The witness did not speak to the Member regarding the incident that night, nor has she seen him since that night.

[PSW B] was confident and consistent. She used notes for recall. Her testimony was consistent with that of [PSW A]. The panel found her to be a credible witness.

Gordon Guilbeau (the Member)

The Member did not attend the hearing and did not testify on his own behalf. However, following submissions from College Counsel and the advice of independent legal counsel, the panel admitted into evidence the court transcript of the Member's testimony, made under oath, from the criminal trial regarding this ma[tt]er. That trial took place in the Ontario Court of Justice, on October 4 and 5, 2007. The Member's statements were admissible as admissions, which are an exception to the hearsay rule. Section 5 of the Evidence Act, R.S.O, 1990. c. E.23, allows the panel to presume that the transcript is an accurate account of the evidence given by the Member in the courtroom.

During the course of his evidence at the criminal trial, the Member explained his approach to dealing with the residents on [the locked ward]. He believed that the residents, because of their cognitive impairments, could act out of their normal character and become aggressive or violent. Training in "non violent crisis intervention", including knowing where to safely stand, was important for a staff member dealing with these residents. "Soon as you let your guard down, you're going to get a swat across the side of the head, which you learn very quickly where to stand and where not to stand".

In the transcript, the Member, through examination and cross-examination, indicated many times that he was fearful of being hurt by the residents and that the strategies he used to get [Client A] down the hall were appropriate.

As to the specific incident, the Member's evidence was essentially as follows. He was an RPN on duty on the afternoon shift at the [facility] on January 16, 2006. At approximately 10:15 p.m., he came into [the locked ward] from another unit through a secure door and heard voices. The voices led the Member to the room of [Client B], whose door was open. Upon entering [Client B]'s room, the Member found [Client A] trying to get up on the bed, with [Client B] telling him to "get out". The Member described the volume and tone of [Client B]'s voice differently on several occasions. In response to the situation, the Member called [Client A] by name to attempt to gain his attention. [Client A] stopped, but did not turn around. The Member then came to [Client A]'s side to "nudge" him out of the room. He was able to successfully get [Client A] out into the hall. The Member left [Client A] unattended in the hallway and returned to [Client B]'s room to ensure that she was all right. The Member made no attempt to check on [Client B] for the remainder of his shift, nor did he ask anyone else to. The Member admitted that the situation was "[defused]". The Member stated he did not notice any physical injuries to [Client A] at this time, saying [Client A] looked fine, just confused and disoriented.

Once the Member was assured that [Client B] was safe, he returned to the hall with the purpose of getting [Client A] back to his room. In his testimony, the Member used terms such as "nudge", "push" and "guide" to explain how he attempted to get [Client A] down the hall. The Member testified that he was behind [Client A] with his hands on his shoulders so as to give him an advantage in case [Client A] struck out. The Member testified that [Client A] resisted this attempt to move him down the hall, resulting with the Member applying force and using a "constant pushing" to guide [Client A] to his room.

The Member repeatedly testified that he did not call out to the PSWs for assistance as he did not want to wake the other residents, even though he admitted it was "best practice" to use a team approach. The Member did not attempt to use the call bell in [Client B]'s room, as he assumed it was not working. He also admitted that once the PSWs came to where he was, and noticed him with [Client A], he stopped. The Member admitted that one of the PSWs, [PSW B], was able to escort [Client A] by taking him under the arm back to the nurses' station. Although it was [PSW B]'s style to lead the residents under the arm, he stated this was not his "style" and that this technique does not work. The Member testified that less intrusive approaches did not work: "Speaking wasn't working, verbal communication was not working". When asked if he tried to hold out his hand to see if [Client A] would take it, the Member responded: "If verbal is not working, communicating - holding out your hand is not going to be any - my experience tells me that." The Member went on to state, "This holding out your hand business doesn't work".

At the nurses' station, it was noted that [Client A] had a skin tear on his right forearm, which the Member subsequently bandaged. The Member then went to [Client A]'s room to take his vital signs, and later charted in [Client A]'s medical record about the incident in [Client B]'s room and the skin tear. The Member also testified the he noted that his co-worker, [PSW A], was upset and crying, however, he did not inquire as to why because, in his words, "I still have my problems on my hands, and she's not it".

In assessing the credibility of the Member, the panel noted a number of inconsistencies. The first set of inconsistencies related to the incident in [Client B]'s room.

• It was noted in [Client A]'s file, that the Member charted that [Client B] "was screaming," but his testimony states "It wasn't a scream…" The Member later testified again that he "heard voices talking" from [Client B]'s room, contradicting the entry he made in [Client A]'s health record.

• The Member's charted note that there was "screaming" from [Client B]'s room is contradicted not only by his own testimony, but also by the testimony of both PSWs on duty that shift. They both stated that the unit was quiet, and they were able to hear the "click" of the door when the Member entered [the locked ward]. [PSW B] also testified that [Client B] would scream very loudly if someone entered her room and that she would be easily audible at that time of night. The Member's response as to why the PSWs didn't hear the "screaming" was that [Client B]'s "door is closed". However, this is contradicted by the Member's earlier statement that, "So, I approached the room, the door is wide open."

• If indeed [Client B] had been "screaming", the panel would find it plausible that the PSWs at the nursing station would hear her, as they both testified as to how quiet it was at that time of night and they were able to hear the "click" of the door as the Member entered the wing.

There were also a number of inconsistencies regarding the Member's testimony, actions and charting related to [Client A]'s resistance to the Member's redirection.

• In his testimony, the Member stated [Client A] was resistant and that he was fearful of [Client A] striking out at him while he was attempting to redirect him. The Member, however, made no note of this in [Client A]'s chart. Nor did the Member chart any need to defend himself, which he repeatedly emphasized in his testimony. If the Member had believed that [Client A] was aggressive, and the he was fearful of him, it would have been important to make note of it in [Client A]'s chart. This is essential information about the resident that other staff should know.

• The charting also lacks mention of the Member's use of physical force, even though in the cross-examination he admits to "pushing" [Client A] for 47 feet down the hall , "…I'm still behind him…put both hands on his shoulder blades and let's redirect him", "nudging" the resident down the hall. During the trial, the Member was asked whether it had occurred to him that [Client A] didn't appreciate being "nudged." His response was "Oh, yeah." The panel finds it implausible that if the Member was concerned about his safety, causing him to stand behind [Client A] and push him 47 feet down the corridor, then why wasn't he concerned a few minutes later when he stood in front of [Client A] to bandage his wound and take his vital signs.

The panel noted a number of other inconsistencies between the Member's testimony and his actions.

• The Member indicated that to get [Client A] down the hall, alternate strategies such as holding out your hand "doesn't work", yet that was exactly how [PSW B] was able to direct [Client A] back to the nurses' station.

• The Member also testified that "verbal cues don't work", even though he earlier stated that upon entering [Client B]'s room, [Client A] responded when the Member called out his name.

• The Member testified that he did not call out for assistance with [Client A] as "I've got nobody to help me." This statement did not seem credible because, as Team Leader, he would have been aware of the other two staff members on the unit. The fact that two PSWs responded quickly when they heard the commotion raises questions as to why the Member wouldn't have called for assistance. The panel does not find plausible the Member's explanation of why he did not use the call bell to [obtain] assistance.

• The panel was also unsure of the Member's intentions with respect to escorting [Client A] to his room, or why he would place such a high priority on assuring that [Client A] was returned to his room, especially since the Member testified that he did not know where [Client A]'s room was located. The Member knew that it was [Client A]'s first night on the unit, and the he was confused and disoriented, and that his records indicate frequent wandering. The expert witness testified that this behaviour is not unusual for residents in this type of setting, and that it would actually be natural that the resident would be disoriented and confused. The Member testified that he "had to get [Client A] back to his room", and his actions of pushing him 47 feet down the corridor to get him there confirmed his intentions.

At the criminal trial, the Member attempts to justify his actions toward [Client A] in the hallway. Through direct and cross examination, the [M]ember claimed that his physical actions with [Client A] were in response to "a safety issue" and part of a non-crisis intervention strategy. The panel concluded that there was a lack of evidence to conclude that the [M]ember would have perceived there to be a safety concern and that the actions employed by the Member as part of a non-crisis intervention strategy were contradictory. Therefore, the panel found that the [M]ember's version of events lacked credibility.

Final Submissions

College Counsel submitted that the panel needs to consider, on a balance of probabilities, whether the Member's actions were appropriate, or whether they amounted to physical abuse, and/or a breach of the standards.

Counsel stated that the Member committed a breach of the standards of the profession when he applied physical force to [Client A]. He stated that the emotional abuse was secondary to the physical abuse, as physical force is bound to create agitation and emotionally upset the client. The testimony of [PSW A], [PSW B] and the Member himself, support the finding of abuse, resulting in a breach of the standards of practice. The testimony of the expert witness also supports a finding of breaching of professional standards.

The medical chart indicates that [Client A] was an [elderly], frail individual, suffering from pneumonia, who was admitted to the facility on the day of the incident. [Client A] was confused, vulnerable, and to be handled with care. Counsel referred to the Member's testimony from his criminal trial that indicated that the Member perceived [Client A] as a threat. Counsel asked the panel to consider that it was the Member's rough treatment of the residents that put him at risk of being harmed. In any event, if the Member truly felt that his personal safety was threatened, why did the Member not chart that in [Client A]'s file, especially since he testified that one of the PSWs was upset with what had happened. The Member would not have turned his back to [Client A] to check on another resident, nor would he later apply a dressing while standing in front of [Client A], or then go to his room and take his vitals. Counsel submitted that if the Member thought his treatment of [Client A] was appropriate, then why did he stop as soon as he saw the PSWs? The Member did not at any point try to converse with [Client A] to find out what his needs were. There was no attempt on behalf of the Member to find out why [Client A] was wandering the halls.

As to the skin tear, counsel argued that if [Client A] had the skin tear on his arm earlier, it would have been noticed by the PSW as she helped him with his night time care. [Client A] had not complained of pain in his arm prior to the incident. The Member himself testified that he did not notice any injury to [Client A]'s arm when he approached him at [ClientB]'s bedside.

Counsel noted that the Member admitted to moving [Client A] 47 feet down the corridor with [Client A] struggling the entire time. Counsel stated that this alone amounts to abusive conduct, both physical and emotional. There is no rationale for the Member's actions, and they put the Member and [Client A] at risk of being injured.

The expert witness stated that this Member had a lack of understanding when it came to handling this resident. In order to protect himself and [Client A], the Member should have been standing at the side of the resident, at arm's length. She had also stated that there was no reason that a frail, elderly man should be forced.

Counsel submitted that this inappropriate physical and emotional abuse was both unprofessional and dishonourable.

The Member also failed to disclose a past criminal conviction. By signing his Annual Renewal Forms without indicating his past conviction, the Member knowingly provided a false and misleading statement to the College. Members have a self-reporting obligation to advise the College of any criminal convictions, and failure to do so amounts to professional misconduct. The Member, in his response letter to the College, admitted that he had a past criminal conviction and stated that he did not understand the form on the initial application in 2002. He provided no reason as to why he never reported it after that. The evidence shows that between 2002 (the first year the self-reporting obligation was mandated) and 2007, the Member had failed to ever disclose his criminal convictions. The panel must determine if the Member's explanation for failing to declare is plausible and sufficient to avoid a finding of professional misconduct.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof of a balance of probabilities based on clear, cogent and convincing evidence that is accepted by the panel.

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed acts of professional misconduct with respect to paragraphs # 1, # 2, # 3(a), # 4 (a), # 5, # 6 (a) and (b) of the Notice of Hearing. With respect to allegation [ ] # 7(a), the panel found the Member's conduct to be dishonourable and unprofessional. Regarding allegations # 7(b) and (c), the Member's conduct was found to be unprofessional. The panel made no findings of professional misconduct with respect to paragraphs # 3(b), # 4(b), # 6 (c) and # 7 (d) in the Notice of Hearing.

In particular, the Member contravened or failed to meet the standards of practice of the profession, and committed acts of professional misconduct, in that he:

• breached the Therapeutic Nurse-Client Relationship Standard of the College;

• physically and emotionally abused resident [Client A]; and

• failed to disclose a past criminal conviction on his 2002 Annual Payment Form.

Reasons for Decision

It was the unanimous decision of the panel that the evidence was clear and convincing and sufficient to prove that it was more likely than not that the misconduct occurred as alleged with respect to most of the allegations.

The Incident With [Client A]

Allegations #1, # 2 and #7(a) deal with the incident concerning [Client A]. The issues for the panel were: committing acts of professional misconduct by the Member, in that;

• did the Member breach the standards of practice of the profession, in that he applied inappropriate physical force to a client;

• did the Member abuse [Client A] physically and/or emotionally; and

• would the Member's conduct with respect to [Client A] be reasonably viewed by members as disgraceful, dishonourable, and/or unprofessional?

The panel finds the facts relating to the Member abusing a vulnerable client, breached the Therapeutic Nurse Client Relationship Practice Standard of the profession. The standards of the College are in writing, were put into evidence in this hearing, and were confirmed to be in effect at the time of the incident.

The Therapeutic Nurse-Client Relationship Practice Standard defines Physical Abuse as follows.

"The nurse must not exhibit behaviours toward a client that may be perceived by the client, the nurse or others to be violent, threatening or intended to inflict physical harm. Such behaviours include, but are not limited to, the following:

• Hitting;

• Pushing;

• Slapping;

• Shaking;

• Using force; and

• Handling a client in a rough manner.

In some instances, a nurse may inadvertently cause physical harm to a client in self-defence. If this happens, the nurse needs to be prepared to explain her/his actions and to show how she /he had advocated for resources to deal with challenging behaviour by the client."

The College's Standards of Practice with respect to physical abuse focuses on behaviours that are "perceived by the client or others to be abusive". In this case, it was the Member's evidence that [Client A] was resisting the application of force while being "guided" through the corridor. The Standard goes on to state that these "behaviours include, but are not limited to..." and describes one element as being "intimidation, including threatening gestures/actions."

[The expert] stated that the techniques used by the Member put himself and [Client A] at greater risk of injury. She also stated that according to the Member's testimony on how he dealt with [Client A], she would consider his actions [ ] abusive as [Client A] was trying to resist the force on his shoulders. She testified that she would assume that if [Client A] was resisting the force, it may be because he found the Member's actions to be "abusive and threatening." [The expert] also testified that if the Member had to use physical force with a resident because of a fear for the Member's safety, that according to the College Standards, this should be documented in the resident's chart. The panel noted that there was no documentation in [Client A]'s medical chart to show any abusive or aggressive behaviour on January 16, 2006.

[The administrator] confirmed that [the] facility had a policy on abuse and that this policy was in effect at the time of the incident. He also stated that all staff was required to have training regarding the policy.

In his own testimony, the Member admitted that he was behind [Client A], with his hands on [Client A]'s shoulders, applying force, to move him down the hall. The Member also admitted that [Client A] was resisting. At times during his testimony, the Member admitted that he did not have any reason to believe that [Client A] was violent, nor does [Client A]'s chart indicate any aggressive behaviour. The Member did not chart [Client A]'s violent or aggressive behaviour as would have been expected if he had encountered this kind of behaviour from [Client A].

The panel also considered the corroborating evidence [of] the PSWs on duty that evening. Both witnesses testified that they observed the Member with his hands on [Client A's] shoulders, and [Client A] being "pushed" three to five feet down the corridor.

The evidence before the panel, including the testimony of the two PSWs and the Member himself, showed that on the evening of January 16, 2006 the Member did physically and emotionally abuse [Client A] at [the facility].

With respect to the injury suffered to [Client A]'s forearm, it is possible that it occurred while being forcibly moved down the corridor; however, the panel concluded that there was insufficient evidence to determine that the injury occurred at the hands of the Member. The panel's finding of abuse, therefore, does not depend in any way on the fact of [Client A]'s injury.

In summary, the panel found the Member clearly breached the Therapeutic Nurse-Client Relationship Practice Standard by applying inappropriate force to [Client A]. The panel also found that the Member's conduct constituted physical and emotional abuse. As to allegation #7(a), the panel found that [the] Member's conduct regarding [Client A] would reasonably be considered by members to be dishonourable and unprofessional. The Member admitted to pushing an elderly, fragile resident approximately 47 feet down a hallway. The panel took into consideration the effect the Member's actions had on his co-workers, particularly one PSW, making her emotionally upset. The panel also noted how emotionally distraught [Client A] was when he stated to the PSW, "My eyes are crying"

Failing to Disclose a Criminal Conviction

Allegations #3, #4, #5, #, 6 and # 7(b), (c) and (d) deal with falsifying records and failing to disclose a past criminal conviction to the College

The panel had before it a letter from the Member to the College, admitting that he failed to report a criminal offence on his Annual Payment Form. In the letter, the Member suggests that he did not understand the question. The panel did not find the Member's explanation plausible, as the question was straightforward.

[The Customer Service Coordinator] provided the panel with copies of the Member's Annual Payment Forms for the years 2002 – 2007. In 2002, the Member clearly indicated that he did not have any criminal convictions since his initial registration. He signed and dated this form.

With respect to these allegations regarding the 2002 Annual Payment Form (#3 (a), #4 (a), #6 (a) and #7 (b)), and with respect to the general allegation of failing to report a finding of guilt for a criminal offence (#5 and #7 (c)), the panel found the Member committed acts of professional misconduct as set out in those allegations.

As to allegations # 7 (b) and (c), the panel found that the Member engaged in unprofessional conduct. By not disclosing a past criminal conviction to the College and by falsifying his 2002 Annual Renewal Form, the Member showed a lack of integrity and demonstrated a serious disregard for his professional obligations.

The panel made no findings with regard to [ ] allegations # 3 (b), # 4 (b), # 6 (c) and #7 (d).

The panel noted that the Annual Renewal Forms from 2003-2007 state, under the Self-Reporting Obligation, that the Member should disclose if he had "been involved in a disciplinary or incapacity proceeding, or have been found guilty of a criminal offence, since my last reporting to CNO." It was the evidence before the panel that the self-reporting obligation commenced at the College in 2002. The Member did not report his past conviction in 2002. However, the subsequent forms asked only for criminal convictions since the date of the last report. The guide which would have been provided to the Member to assist him in filling out the Annual Renewal Form for years subsequent to 2002 was not in evidence. The panel did not have before it any evidence of any other criminal convictions between 2003 and 2007.

Penalty Submissions

College Counsel requested an order as follows.

1. An oral reprimand within three months of the date of the Order;

2. Suspension of the Member's certificate of registration for a period of three (3) months;

3. Terms, conditions and limitations on his certificate of registration, including:

(a) Requiring the Member to return his current Annual Payment Card to the College within fourteen (14) days of the date of the Order so that a new Annual Payment Card, indicating that the Member's certificate of registration is subject to terms, conditions and/or limitations, can be issued. The Member's Annual Payment Card shall be delivered to the College by a verifiable method of delivery, the proof of which the Member shall retain.

(b) 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 [the] 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; and Therapeutic Nurse-Client Relationship, Revised 2006;

(iii) Complete the online learning modules and participation forms for: Ethics, Professional Standards, and Therapeutic Nurse-Client Relationships;

(iv) Complete One is One Too Many and the Nurses' workbook; and

(v) Deliver the completed Reflective Questionnaires, online participation forms and Nurses' workbook in advance of the first meeting with the expert.

(c) 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 his clients, his colleagues, his profession and himself;

(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.

(d) The meetings described above shall take place on the following schedule:

(i) The first meeting shall occur within three months of this order;

(ii) The second meeting shall occur within six months of this order; and

(iii) The third meeting shall occur within twelve months of this order.

(e) 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 his 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:

1. Confirmation that the employer(s) has received a copy of the documents referred to above; and

2. 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.

Counsel outlined the proposed penalty which consists of an oral reprimand, a three-month suspension and terms, conditions and limitations, including remediation and monitoring.

The most serious of the allegations was the Member's inappropriate use of force and the physical abuse of a resident. Counsel submitted the Member showed a lack of insight with regard to his nursing care. The Member viewed his conduct as appropriate. Counsel proposed a number of rehabilitative conditions, including meetings with a practi[c]e consultant and completing reflective questionnaires and online modules for Professional Standards. These conditions provide specific deterrence to the Member.

Counsel provided the panel with three similar cases to show penalty ranges. He submitted that the proposed penalty order fulfils the College's mandate of public protection. The three-month suspension provides both general and specific deterrence, in that it shows members that rough handling of clients is abusive conduct and will not be tolerated.

Counsel suggested the panel consider the following aggravating factors: the Member's lack of insight into his conduct; failing to attend the hearing; and treating his actions as justifiable. The Member believed his actions were the appropriate way to handle these situations. Counsel referred to this as an "abusive approach to nursing."

Mitigating factors included: the Member's admission and remorse over his failure to disclose his past criminal conviction; the length of time since the convictions; and the fact that the Member did not have any prior disciplinary history with the College.

Penalty Decision

The panel considered Counsel's submission, and makes the following order as to penalty.

1. The Member is ordered to appear before the panel to be reprimanded within three (3) months of the date of the Order;

2. The Executive Director is directed to suspend the Member's certificate of registration for a period of three (3) months;

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member's certificate of registration:

a. Requiring the Member to return his current Annual Payment Card to the College within fourteen (14) days of the date of the Order so that a new Annual Payment Card, indicating that the Member's certificate of registration is subject to terms, conditions and/or limitations, can be issued. The Member's Annual Payment Card shall be delivered to the College by a verifiable method of delivery, the proof of which the Member shall retain.

b. 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 [the] 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; and Therapeutic Nurse-Client Relationship, Revised 2006;

iii. Complete the online learning modules and participation forms for: Ethics, Professional Standards, and Therapeutic Nurse-Client Relationships;

iv. Complete One is One Too Many and the Nurses' workbook; and

v. Deliver the completed Reflective Questionnaires, online participation forms and Nurses' workbook in advance of the first meeting with the expert.

c. 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 his clients, his colleagues, his profession and himself;

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.

d. The meetings described above shall take place on the following schedule:

i. The first meeting shall occur within three months of this order;

ii. The second meeting shall occur within six months of this order; and

iii. The third meeting shall occur within twelve months of this order.

e. 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 his 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:

1. Confirmation that the employer(s) has received a copy of the documents referred to above; and

2. 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

In considering the appropriate penalty, the panel took into account the seriousness of the offence. The Member emotionally and physically abused a vulnerable, elderly resident.

The panel concluded that the penalty proposed by the College was reasonable and achieves the objective of public interest. The three-month suspension addresses both specific and general deterrence, and reflects the seriousness of the Member's actions. The suspension sends a clear message to both the Member and the profession that such behaviour will not be tolerated. The penalty includes both educational and remedial components, and address[es] the need for public protection by ensuring the Member's employer(s) will be aware of his conduct for a twelve-month period following his suspension.

Overall, the penalty is reasonable and in the public interest, and will protect the public, while providing the Member with a chance to rehabilitate himself.

I, Carl Balcom, 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:

Kim Jinkerson, RPN

Angela Verrier, RPN

Lyn Harrington, Public Member

Grace Isgro-Topping, Public Member