College of Nurses of Ontario v. Jesse Powell, 2011 ONCNO 100540

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Angela Verrier, RPN Chairperson Spencer Dickson, RN Member Miranda Huang, RN Member Linda Bracken Public Member Gino Cucchi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for ) College of Nurses of Ontario

• and - ) ) NO REPRESENTATION for ) JESSE POWELL JESSE POWELL ) Registration No. 0013052 ) ) JOHANNA BRADEN ) Independent Legal Counsel ) Heard: October 17, October 18, October 19, October 20, December 12 and December 13, 2011

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 17, 18, 19, 20, December 12, and 13, 2011 at the College of Nurses of Ontario (“the College”) at Toronto.

As Jesse Powell (the “Member”) was not present, the hearing recessed for 30 minutes each day, except for December 13, 2011, to allow time for the Member to appear. The Member did not attend on any day of the hearing. At the outset of the hearing, counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on August 31, 2011 [ ]. On October 19, 2011, the panel requested that the Hearings and Committee Administrator [ ] contact the Member to advise him that the hearing was expected to conclude on October 20, 2011, instead of on December 16, 2011 as originally scheduled. The Member advised [the Administrator] that he could not afford to attend the hearing in Toronto. [the Administrator] asked the Member if he would like to explore other means or methods of making submissions to the panel, such as participating in the hearing via teleconference. The Member declined this option. The Member was told if he changed his mind he could call [the Administrator] up until 12:00 p.m. on October 20, 2011 [ ]. As of October 20, 2011, at 12:00 p.m., no call had been received by the Member according to [the Administrator].

The hearing resumed on December 12, 2011. At this time, College Counsel submitted evidence that on November 1, 2011, [ ], Prosecutions Liaison, sent the Member a letter by regular mail and e-mail. This letter notified the Member that the hearing would continue with final submissions by the College, and that if the panel made findings of professional misconduct or incompetence, the College would make submissions on the appropriate penalty. The Member was specifically advised that the penalty may include sanctions up to and including revocation of his certificate of registration. This letter provided the Member with contact information for both [the Prosecutions Liaison] and [the Administrator] to allow him to ask questions or make arrangements to make submissions to the panel without being present at the hearing. No response was received by the Member as of December 12, 2011.

The panel was satisfied by the evidence that the Member had received adequate notice of the time, place, date and nature of the hearing. It 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 August 29, 2011, 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, while employed as a Registered Nurse 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 with respect to the following:

(a) post-operative care provided to [Client A] on or about February 27, 2008;

(b) post-trauma care provided to [Client B] on or about March 25, 2007;

(c) care provided to [Client C] on or about December 15, 2007; and/or

(d) Deficiencies in your clinical competencies, skill, knowledge or judgment as demonstrated in practice evaluations between July 2006 and April 2008.

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(37) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Facility] in [ ], Ontario, 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 of the profession as disgraceful, dishonourable or unprofessional with respect to the following:

(a) post-operative care provided to [Client A] on or about February 27, 2008;

(b) post-trauma care provided to [Client B] on or about March 25, 2007;

(c) care provided to [Client C] on or about December 15, 2007; and/or

(d) deficiencies in your clinical competencies, skill, knowledge or judgment demonstrated in practice evaluations between July 2006 and April 2008.

3. You are incompetent as provided by subsection 52(1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that, while employed as a Registered Nurse at [the Facility] in [ ], Ontario, you displayed a lack of knowledge, skill or judgment or disregard for the welfare of the patient of a nature or to an extent that demonstrates that you are incompetent and unfit to continue to practise or that your practice should be restricted with respect to the following:

(a) post-operative care provided to [Client A] on or about February 27, 2008;

(b) post-trauma care provided to [Client B] on or about March 25, 2007;

(c) care provided to [Client C] on or about December 15, 2007; and/or

(d) Deficiencies in your clinical competencies, skill, knowledge or judgment as demonstrated in practice evaluations between July 2006 and April 2008.

Member’s Plea

Given that the Member was neither 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 was registered with the College in July 2000. The incidents all arose at [the Facility].

The Member was hired in June 2003 as a temporary part-time R.N. on the Complex Continuing Care unit. In October 2005, his status was changed to permanent part-time on this unit. In July 2006, the Member obtained a regular full-time position on the surgical in-patient unit [ ], where he stayed until April 2008 when the Member and the hospital agreed to terminate his employment by way of resignation.

When he began on [the Unit], the Member was hired as a full-time evening nurse and worked from 3:30 pm to 11:30 pm. He required extensive orientation on this unit.

There are four incidents related to the Member’s conduct that gave rise to the allegations. They are as follows.

Incident # 1 February 27, 2008

[Client A] was a patient, known to have Chronic Obstructive Pulmonary Disease (COPD), on [the Unit] after receiving surgery for colon cancer. The day shift nurses reported to the evening shift that there were concerns with [Client A]. [Client A] had a low oxygen saturation and was started on oxygen at 3 litres per minute. This was documented and [Client A]’s oxygen saturation increased. The Member was assigned to care for [Client A] during the evening shift.

During the evening shift, the RPN on duty reported to the charge nurse about [Client A] being in distress with an oxygen saturation of 71. The Member did not report this to the charge nurse until 30-60 minutes after the RPN did. The charge nurse asked the Member if [Client A] had her oxygen on, his reply was “No because she has COPD”. This incident was never charted by the Member.

Incident #2 March 25, 2007

[Client B] was a patient on [the Unit] after receiving surgery for a fractured hip. The Member was assigned to care for [Client B]. [Client B] had a decreased level of consciousness. The Member was told by the charge nurse that [Client B] was critically ill. The Member was told to draw blood cultures on [Client B] and then administer the ordered antibiotic. At 4:30 p.m., the Member had not done the blood work or given the medication. Another nurse had to draw the blood work. The charge nurse asked how [Client B] was doing later in the shift and the Member stated she was “just fine”. At 7:45 p.m. that evening, [Client B] was found by the Member sideways in bed, gasping for breath. A code blue was called. [Client B] was transferred to the ICU.

The Member’s documentation for [Client B] was later found in another patient’s chart by [the Unit’s] nursing manager.

Incident #3 December 15, 2007

[Client C] was a patient on [the Unit] after receiving surgery for a hip replacement. The Member was assigned to care for her on the evening shift. The day shift nurses reported to the evening shift that they had concerns for [Client C]’s low blood pressure and decreased hemoglobin. The evening charge nurse told the Member about these concerns and asked him to monitor her closely and give her an IV bolus to increase her blood pressure. Later during the shift, the charge nurse asked the Member how [Client C] was doing. His response was “fine, vitals are good”. Near the end of the shift the charge nurse asked the Member for a specific blood pressure reading. The Member had to go and do the vital signs. The Member reported to the charge nurse that [Client C]’s blood pressure was 79/41, which was lower than it had been pre-bolus. The only vital signs documented by the Member were at the beginning and end of the shift.

Incident # 4

After the incident on December 15, 2007, the Member was asked to undertake a practi[c]e review in January and February 2008 that he completed. The Member then underwent a practi[c]e evaluation in March and April 2008 with two nurse mentors and a clinical educator over a total of 14 shifts.

These nurses compiled observations about the Member’s practi[c]e. All three were concerned about the Member’s lack of knowledge, skill and [judgment] to safely practise nursing. After this review, the Member met with his management and his employment was terminated by way of resignation.

After hearing from 11 witnesses and receiving 39 numbered exhibits, the panel found the Member failed to meet the standards of practice of the profession and engaged in conduct that, having regard to all the circumstances, would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional. The panel also found that the Member lacked the knowledge, skill and [judgment] required of a nurse to an extent that demonstrated incompetence.

The Evidence

Allegations 1(a), 2(a), 3(a)

On February 26, 2008, [Client A] was admitted to [the Unit] , a post-surgical floor, following a colon resection and hysterectomy. Post-operative care included pain management and rehabilitation. She had a medical history which included COPD. [Client A] had an epidural in place for post-operative pain management.

On February 27, 2008 at 8:24 am, the day shift charted that [Client A]’s Oxygen saturation level had dropped to 88%. Oxygen was applied via a nasal canula at 3 litres per minute. [Client A]’s oxygen saturation went up to 95%. The Member was the nurse assigned to this patient on the evening shift. At 4:00 pm, [Client A]’s oxygen saturation was noted by the Member to be 94% while the patient was still on 3 litres per minute. Her vital signs were charted. At 5:35 pm, the Member charted [Client A]’s oxygen saturation level at 81% on oxygen running at 2 litres per minute. Her vital signs were noted. At 8:10 pm, the Member noted that [Client A]’s oxygen saturation was at 91% on 2 litres of oxygen per minute. Her vital signs were charted. No further charting was done by the Member for this patient.

[The In-Charge nurse (IC A)] for this shift testified that [Client A] had an epidural in place for pain management, and had COPD, with oxygen on Therefore, [Client A] needed close monitoring and vital signs to be charted on a frequent basis. Sometime between 4:30 pm and 5:00 pm, [ ] an RPN came to her to report that she found [Client A] was in distress. The details of what [the RPN] told [IC A] were [ ] a signed letter [ ] in which [the RPN] writes that she found [Client A] “not looking well, purple/blue in colour and gasping for breath ... the oxymeter read 72%”. [The RPN] wrote “her 02 was insitu to her nose but not hooked up. I turned the 0x onto 2ltrs per minute and helped raise her in bed.”

[IC A] testified that the Member reported this incident to her approximately 30-60 minutes after [the RPN] had. [IC A] stated that she asked the Member if [Client A]’s oxygen was on during the event. He said “No, because she has COPD.” She told the Member that [Client A] could have oxygen as long as it was on at a low rate not to exceed 4 litres per minute. The Member then reported to [IC A] that the oxygen saturation went up with the application of the oxygen. At 9:10 pm on this shift, [IC A] asked the Member about [Client A]’s urinary output. He stated it was only 90cc from 3:30 pm – 9:10 pm. A doctor’s order was in place to give [Client A] a bolus of 250 cc of Ringer’s Lactate if her urinary output was less than 80 cc in a four hour period. [IC A] informed the Member that [Client A] needed to have this bolus administered. Toward the end of the shift, at 10:45 pm, [IC A] asked the Member if the urinary output had increased. The Member stated it had not, as [Client A]’s intravenous (IV) had gone interstitial and he tried three times with no success to restart it. The Member stated that he felt if he could not restart the IV then no one could. Therefore the bolus had not been administered. [An RN] on the evening shift reinserted the IV on her first attempt.

[IC A] testified that the Member cut the wristbands identifying the patient, her blood type and her allergies, off of [Client A] while trying to insert her IV. He did not replace them and [IC A] needed to talk to him about the importance of these bands. He stated he did not have the time to replace these bands and they did not need to be replaced. [IC A] told the Member that if [Client A]’s blood type band was not on, she would need to be cross matched and typed again.

According to [Client A]’s complete medical records, none of these incidents were documented in the clinical notes.

[An expert opinion witness] in the area of nursing standards, tendered by the College and qualified by the panel, testified that the Member’s actions in this case contravened and failed to meet the standards of practice of the profession. An RN’s knowledge base should include the correlation between COPD and oxygen administration. She stated to the panel that this entire incident should be in the patient’s chart and that the IC nurse should have been notified right away.

When asked about [Client A]’s decreased urinary output, the expert testified that this should have been more closely monitored and documented. When reported to the IC at 9:10 pm, the IV bolus should have become an immediate priority. His failure to administer this put the patient at an increased of kidney failure. [The expert] testified that the Member’s lack of concern about not being able to restart the IV, or to ask for help, shows a lack of accountability and knowledge.

With regard to the Member removing the wrist bands, the expert testified that all patients in hospital need to be identified. For the Member to not understand the need for bands, or the importance of them, is a violation of standards and patient safety principles. The blood ID band is important to decrease the wait time for the patient if a blood product is required. The removal of this band shows a lack of knowledge and judgement in the care of post-operative patients.

[The expert] testified that she saw no evidence that the Member was meeting the standards of the nursing profession when he failed to assess, document, and report his patient’s condition.

The expert testified that she felt the Member’s conduct in this situation was both dishonourable and unprofessional. She went on to state that because this occurred only one week after a fulsome training and remediation period, the conduct became disgraceful as well.

Allegations 1(b), 2(b), 3(b)

The evidence led by the College established that on March 24, 2007, [Client B], an [elderly] female, was admitted to [the Unit] post-operatively after a fractured hip. The Member was the nurse assigned to this patient on March 25, 2007, on the evening shift. At the beginning of the shift, the day staff reported to the Member that [Client B] was “critically ill”, and required ongoing assessment and monitoring especially in relation to her urinary output and breathing.

[IC B], the IC on [the Unit], testified that she had offered to help the Member with this patient if he required it. [ ], the IC nurse for the day shift that day, told the Member and [IC B] that [Client B] required blood cultures to be drawn and an antibiotic to be given to her right afterward and that this was to be the Member’s first task. At 4:30 pm, [the dayshift IC] drew the blood herself as the Member stated he had not had time to do this himself.

At 7:30 pm, [IC B] asked the Member about [Client B]’s urinary output. The Member reported that it was “maybe around 100cc”. She asked if he had administered the antibiotic. He stated he had not. [IC B] advised the Member to go to [Client B], administer the antibiotic and get an exact reading on her urinary output.

When asked later in the shift how [Client B] was doing, [IC B] testified that the Member told her the patient was “just fine”. [IC B] testified that the Member went back to [Client B]’s room and found her gasping for breath, lying sideways in her bed and he could hear fluid with every breath. A “code blue” was called. [IC B] also testified that the antibiotic was never administered to [Client B] as ordered.

[ ], an RN and the nurse manager for [the Unit], testified that documentation related to the Code Blue incident for [Client B] by the Member was written in the wrong patient chart. This occurred as the Member did not follow the process of identifying the patient’s electronic medical record by their unique H number instead of by name. [The manager] eventually located this charting and transferred it to the correct chart.

[The] expert witness testified that based on the condition of this patient and the direction provided to the Member at the beginning of the shift, she would expect that the Member would prioritize this patient and make her the first to be seen. [The expert] stated this patient would require a full nursing assessment including vitals, input and output, the blood cultures drawn right away and the antibiotic given. She stated that in nursing best practice, this would have all been completed within one hour of the Member starting his shift. She also testified that the documentation on this patient was not adequate and did not follow hospital policy or the College standard.

[The expert] stated that in her opinion, the conduct in these allegations would be disgraceful, dishonourable and unprofessional. She testified that in this incident, the Member failed to assess the patient, failed to document correctly, failed to follow a physician’s order, and gave a knowingly inaccurate statement to the IC nurse when asked how [Client B] was doing. She said that his behaviour in this incident did not meet the basic nursing expectations and showed a global failure to meet this patient’s needs. This puts the conduct beyond both dishonourable and unprofessional and makes it disgraceful as well.

Allegations 1(c), 2(c), 3(c)

Evidence tendered by the College proved that on December 15, 2007, [Client C] was a patient on [the Unit] after surgery for a right hip replacement. The Member was assigned to care for this patient on the evening shift. Concerns for [Client C] were noted by the day shift regarding her low blood pressure and hemoglobin. [The IC RN] for this shift sought out the Member to check on the status of [Client C]. The Member told [the IC RN] that [Client C]’s blood pressure was low. [The IC RN] called the doctor, and obtained an order to increase [Client C]’s IV rate and administer a STAT IV bolus. [The IC RN] explained to the Member that he needed to “do this now”, and report back to her on [Client C]’s status post-bolus.

The Member administered the bolus at 5:30 pm. One hour after the bolus, [the IC RN] had not heard from the Member about [Client C]’s status. [The IC RN] sought out the Member two hours after the bolus was administered and the Member told her [Client C] was “doing fine, ... Vitals are good.”

At 9:00 pm, [the IC RN] asked the Member for specific information on [Client C]’s vital signs and urinary output, as she had checked [Client C]’s chart and there was no documentation to indicate that any post-bolus vital signs had been taken. When the Member reported back to the IC nurse, he stated that [Client C]’s blood pressure was lower then before she received the bolus.

[The] nurse manager for [the Unit] testified that after this incident, a practice review was implemented for the Member.

[The] expert witness tendered by the College testified that the Member did not meet the standards of practise of the profession regarding this incident. The Member was given a clear instruction from the IC nurse about the instability of the patient and what actions were required. The Member failed to complete a full assessment of this patient prior to, during or after the bolus, and reported an inaccurate statement to the IC nurse. This shows a severe lack of knowledge and a failure by the Member to seek assistance when there was a knowledge deficit.

[The expert] testified that in her opinion this incident would amount to disgraceful, dishonourable and unprofessional conduct given the Member’s lack of knowledge when carrying out a treatment, and unwillingness to seek assistance.

Allegations 1(d), 2(d), 3(d)

The Member started working on [the Unit] in July 2006 and required an extensive orientation of 16 shifts, as opposed to the usual 7 shifts. [The] nurse manager testified to this. In January and February 2008, the Member underwent a reflective practice review set up by [ ] (clinical educator for [the Unit], and initiated by [the manager] in a letter to the Member [ ]. In this letter, S.S.[the manager] wrote, “I am asking that you meet with our Clinical Educator for the Surgical Program, [ ], to review this situation and perhaps other similar post-operative surgical situations where we may find our patients with an increased level of risk related to their post-op course.” This was done in response to the incident on December 15, 2007 [ ].

On January 17, 2008, [the educator] met with the Member and presented him with a learning plan and expectations of what the Member was to complete. This included College standards and the Quality Assurance model. [The educator] gave the Member some suggestions but left it open so he could see where his short-falls were. [The educator] and the Member set up a date for completion, February 01, 2008, at 3:00 pm.

On January 26, 2008, [the educator] called the Member to see “how things were going” and to offer assistance and support. The Member told her, “Everything is fine”, and that no support was required. The Member called [the educator] and cancelled the meeting for February 01, 2008, stating he was working too much and wasn’t able to complete the assignment. [The educator] told the Member that one extension was acceptable. The meeting was rescheduled for February 12, 2008. This meeting took place to review the learning plan. The Member attended the meeting and stated he had not completed the learning plan as he was not sure how to do it, and he had been very busy and couldn’t finish it. [The educator] discussed the objectives of the learning plan, and the accountability of nurses to their patients and the College and themselves. She outlined for the Member how to complete the learning plan and how to access the College’s website that had detailed instructions with a visual learning plan.

Another meeting was scheduled and the Member was told her could call [the educator] with any questions or concerns. On February 20, 2008, [the educator] met with the Member again. He had completed the learning plan. She went through scenario questions with the Member and received appropriate and satisfactory answers. At this time, [the educator] felt that no further involvement was needed with this Member. She did tell him that he was accountable for any weaknesses he had in his nursing practise.

After completing this review, another incident occurred on February 27, 2008. [The] Professional Practise Leader at [the Facility] became involved with the Member at the request of the management on [the Unit]. After consideration, two mentors were assigned to work with the Member on his evening shifts during March and April 2008. A tool was given to the two mentors to assess the Member’s competency.

[Mentor A] worked as a mentor to the Member over 5 shifts. A number of practice deficiencies were discovered over the course of this mentorship. [ ] Her findings overall were,

“With education and mentoring, Jess made improvements to some of the areas identified above. These include – checking patient armbands with the administration of medication, checking radial and pedal pulses, and providing HS care. With encouragement, Jess improved following the Post-op protocol with regards to obtaining vital signs.

After IV fluid documentation was discussed with [the Member], he began properly clearing the pumps by the time, and including volumes to be absorbed and pump pressures in his documentation.

Remaining areas of concern are input\output assessment and documentation, mobility and mobilizing post-operative patients, lung assessments, reviewing patient history and medication records.”

[Mentor B] testified that she was the other mentor assigned to the Member. She had a number of concerns [ ] with the Member’s basic nursing skills, including that he “needs constant cueing”, and had problems with patient safety and documentation. For example, [Mentor B] witnessed the Member signing the medication record of a patient before the medications were given. The Member needed reminding about the value of accurate ins and outs on post-op patients.

[The] Professional Practice Leader testified that she created [ ] a summary of areas of concerns related to the nursing competencies as recognized in the College’s review tool. The information for this summary came from the reports completed by [ ] (the two nurse mentors). The concerns were as follows:

1. Identifying and prioritizing Nursing Actions.

2. Applying knowledge of infection prevention and control as per College guidelines and employer policy.

3. Ensuring clients’ rights to privacy and confidentiality

4. Use problem-solving skills when responding to critical and on-going situations

5. Consider the relevance of data collected in the context of client’s priorities and perspective

6. Refine and extend assessment by collecting data from a variety of sources pertinent to the client and situation

7. Demonstrate an awareness of health and safety issues as they relate to workplace and respond to safety issues appropriately

8. Use effective communication skills with other health care team members

9. Use of variety of techniques to collect data from clients pertinent to the client and situation

10. Validate the data collected on clients

11. Use teaching and learning principles effectively

12. Administer medications as per the College’s Medication Standard

13. Document according to the College’s Documentation Standard

Following this mentorship, the Member was put on a paid leave of absence pending the assessment of his practice during the mentorship period.

[The manager] testified that she completed a Performance Appraisal Form [ ] with the Member on April 14, 2008. She and the Member each completed an appraisal of his performance. [The manager] completed the form with findings that the Member’s conduct and knowledge were not appropriate in almost all areas while the Member viewed his conduct and knowledge as meeting and/or exceeding requirements.

After this was completed, [a] clinical educator was assigned to complete a practice review. This review involved shadowing the Member on four consecutive evening shifts commencing April 15, 2008. [ ] [The clinical educator] testified about [a summary of the four shifts] in detail. Some of the findings of this review were:

1. Difficulty prioritizing appropriately according to patient problems or urgency.

2. Had difficulty with charting that did not improve with mentor guidance.

3. Had to remind him that post op vitals were do throughout the shift.

4. Continues to ask my opinion on most charting.

5. Poor organization and time management skills.

6. Very poor technique while attempting to re-start an IV.

7. Poor aseptic technique.

[The] program director of surgical services on [the Unit] testified that after this review, a resolution was reached in June 2008. The Member resigned from the hospital.

[The] expert witness testified that in relation to this incident, the Member’s conduct would be disgraceful, dishonourable and unprofessional. She stated that the Member had been given many interventions and was still unable to manage hi[s] time or prioritize. He had not integrated learning, issues have cropped up over and over, and there comes a point when being open to learning needs to be balanced with the ability to perform. When asked about the Member’s competence, [the expert] stated that based on the definition in the Health Professions Procedural Code, [ ] it was her opinion that the Member is incompetent. He was not providing care safely to his patients. Her view was that the Member’s lack of knowledge skill or judgment was of such a nature that he should not be allowed to practi[s]e or that his practice should be restricted.

Final Submissions

College Counsel submitted that although the hearing took place in the Member’s absence, the panel could make no assumption on this alone. The College bears the onus of proving the case on a balance of probabilities. The panel must be satisfied by the evidence that it is more likely than not that the Member committed the acts as alleged and is incompetent.

Counsel stated that the evidence in this case is clear, cogent and convincing and was neither contested nor disputed. Therefore the College met the onus. This Member, from the time he started working on the post-surgical floor, needed an extensive orientation of 16 shifts, compared to the usual 7. After this there were three separate incidents that occurred. Management at the hospital directed the Member to undergo a practice review after the first two incidents in January and February 2008. One week later, the third incident occurred. After this a more extensive practice review took place with two mentors and an educator. This only increased concerns in regard to the Member’s nursing skills. There were themes and patterns in this Member’s practice:

1. failure to monitor patients’ conditions,

2. failure to communicate patients’ conditions, and

3. failure to conduct meaningful assessments of patients even when told of specific concerns re: patients’ condition or deterioration.

These problems noted by the mentors were of “very basic nursing skills”.

College Counsel submitted that the expert witness told the panel that in her opinion the conduct, as set out in the allegations, was disgraceful, dishonourable and unprofessional, it failed to meet with the standards of practice of the profession and that the Member’s lack of knowledge, skill and [judgment] in relation to these incidents should lead to a finding of incompetence.

With regard to allegations 1(d), 2(d), and 3(d), College Counsel submitted the panel should use only the evidence from the March and April 2008 mentorships and not the extensive orientation or the practice review in January and February, 2008. He stated that the deficiencies referred to in the Notice of Hearing manifested in the March and April mentorships. These were conducted by two experienced nurses on [the Unit]. Their findings only caused increased concerns among management.

College Counsel submitted that the evidence in this case is “quite chilling”, as it shows fundamental deficiencies in this Member’s nursing practice. This Member continued to repeat some of the same problems even after extensive mentoring and education.

He stated this Member has never given any response or feedback to any of the allegations against him. This shows a lack of awareness by the Member in regard to his performance as a nurse. The evidence for this is that during his performance evaluation in April 2008, there was a great discrepancy between the manager’s assessment of the Member’s performance and the Member’s own assessment. This shows the Member is not aware of his need to remediate, or the impact his conduct has on his co-workers, employer or his patients.

College Counsel asked the panel to make findings in relation to allegations #1 and 2. With respect to allegation #3, due to a lack of knowledge, skill and [judgment], as well as a disregard for the welfare of his patients, Counsel asked the panel to find the Member to be incompetent.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b), (c) and (d) of the Notice of Hearing. In Allegation # 2(a), (b), (c) and (d), the panel found that the Member engaged in conduct [that] would reasonably be regarded by [members] of the profession to be disgraceful, dishonourable and unprofessional by working with a lack of knowledge, skill, and [judgment] required of a nurse. In Allegation # 3 (a), (b), (c) and (d), the panel found that the Member lacked the knowledge, skill and judgment to an extent that demonstrates incompetence.

Reasons for Decision

The credibility of each witness was assessed by the panel using the criteria set out in Pitts v Ontario (Ministry of Community and Social Services, Director of Family Benefits Branch) (1985). The panel determined that the evidence provided by [the witnesses] was clear, cogent and convincing. As can be seen from the extensive summary of the evidence above, the evidence of all witnesses was consistent both internally and with other evidence, including documentary evidence contemporaneous with the events in question. The panel found all witnesses to be credible and to give reliable evidence that satisfied the burden of proof.

A number of witnesses gave hearsay evidence. The panel did not put any weight on this evidence when making its findings.

The [expert witness] was qualified by the panel as an expert in nursing practice. Her opinion was objective, reasonable and impartial. It was substantiated by the factual evidence accepted by the panel. The panel found her to be credible and accepted and relied on her opinion evidence.

As to allegation #2, the panel found that the Member’s conduct was disgraceful, dishonourable and unprofessional as the Member’s conduct put the patient’s safety at risk and the Member did not accept any accountability for his actions.

As to the allegation #3, the panel found that the Member’s lack of knowledge, skill and [judgment] with respect to these matters demonstrates his incompetence. The Member’s errors were not an isolated incident but were repeated. They were serious. Efforts at remediation were not successful.

Penalty

Penalty Submissions

The College asked for revocation of the Member’s certificate of registration. College Counsel submitted that this conduct was very serious and persistent. This Member put his patients at risk. The misconduct involved not only substandard care, but dereliction of duties. The conduct relates to three incidents and in each case the status of the patients was well known and communicated. The Member was given directions for care, failed to assess the patients and ignored their deterioration. He misled his charge nurses in his communications.

This Member’s personal standards did not improve despite efforts of management to increase his standards of practice. The Member showed a lack of awareness in regards to his performance as an RN and the impact this has on his patients. This shows fundamental problems and deficiencies in his practice despite mentoring and education. The Member’s substandard practi[c]e led to incompetence and put patients at risk.

Counsel submitted that there is no reason to believe that this Member can be rehabilitated; therefore revocation is the only appropriate order.

Penalty Decision

The panel makes an order:

1. Requiring the Member to appear before the panel within three months of the date of the order for an oral reprimand, and

2. Directing the Executive Director to revoke the Member’s certificate of registration.

Reasons for Penalty Decision

Considering all the evidence in this case about the extensive rehabilitation that was offered to the Member without success, the panel determined that the only way to ensure public safety was to revoke the Member’s certificate of registration.

After inviting submissions from College Counsel on the issue, the panel determined that an oral reprimand as well as revocation would be appropriate in this case. An oral reprimand would provide a specific deterrent to the Member and a general deterrent to the membership. College Counsel expressed a concern that the Member would not attend an oral reprimand. However, the panel found this was not a sufficient reason to not include a reprimand as part of the penalty order. If the Member declines to comply with this order, he can deal with the consequences of that decision should he ever apply to have his membership in the College reinstated.

I, Angela Verrier, 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:

Spencer Dickson, RN

Miranda Huang, RN

Linda Bracken, Public Member

Gino Cucchi, Public Member