College of Nurses of Ontario v. Tammie Spiers, 2011 ONCNO 99677

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Samantha Diceman, RPN Member Nancy Sears, RN Member Abdul Patel Public Member Margaret Tuomi Public Member

BETWEEN:

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

• and -

TAMMIE SPIERS Registration No. JC07504 NO REPRESENTATION for Tammie Spiers

LUISA RITACCA Independent Legal Counsel

Heard: January 3, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on January 3, 2012 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(c), (e), (g), (h), (k), (l), 3(c), (e), (h), (i), 5(c), and (e) of the Notice of Hearing dated November 24, 2011. The panel granted this request. The remaining allegations against Tammie Spiers (the “Member”) as set out in the Notice of Hearing are as follows.

IT IS ALLEGED THAT:

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 paragraph 1(1) of Ontario Regulation 799/93, in that in or about January-March 2009, while employed as a nurse at [the Facility], you contravened standards of practice of the profession or failed to meet the standards of practice of the profession with respect to the following incidents:

(a) You signed for narcotics and/or other medication that you failed to administer, with respect to [Clients A, B and C]; and/or

(b) You signed for narcotics and/or other medication that you failed to administer, with respect to one or more other [clients]; and/or

(c) [Withdrawn]

(d) You signed for narcotics and/or other medication, and you then failed to document providing the medication, with respect to one or more other [clients]; and/or

(e) [Withdrawn]

(f) You administered medication but failed to document doing so on the Medical Administration Record or in the nurses’ notes, with respect to one or more other [clients]; and/or

(g) [Withdrawn]

(h) [Withdrawn]

(i) You signed for removing narcotics at times when you were not on the floor, on one or more occasions; and/or

(j) You pre-poured prn medications, on one or more occasions; and/or

(k) [Withdrawn]

(l) [Withdrawn]

(m) You falsified the time(s) on which you removed narcotics, with respect to [Client B]; and/or

(n) You falsified the time(s) on which you removed narcotics, with respect to one or more other [clients].

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 paragraph 1(8) of Ontario Regulation 799/93, in that you misappropriated narcotics from [the Facility], in or about January – March 2009, on one or more occasions.

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 paragraph 1(13) of Ontario Regulation 799/93, in that in or about January-March 2009, while employed as a nurse at [the Facility], you failed to keep records as required with respect to the following incidents:

(a) You signed for narcotics and/or other medication that you failed to administer, with respect to [Clients A, B and C]; and/or

(b) You signed for narcotics and/or other medication that you failed to administer, with respect to one or more other [clients]; and/or

(c) [Withdrawn]

(d) You signed for narcotics and/or other medication, and you then failed to document providing the medication, with respect to one or more other [clients]; and/or

(e) [Withdrawn]

(f) You administered medication but failed to document doing so on the Medical Administration Record or in the nurses’ notes, with respect to one or more other [clients]; and/or

(g) You signed for removing narcotics at times when you were not on the floor, on one or more occasions; and/or

(h) [Withdrawn]

(i) [Withdrawn]

(j) You falsified the time(s) on which you removed narcotics, with respect to [Client B]; and/or

(k) You falsified the time(s) on which you removed narcotics, with respect to one or more other [clients].

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 paragraph 1(14) of Ontario Regulation 799/93, in that in or about January-March 2009, while employed as a nurse at [the Facility], you falsified records relating to your practice with respect to the following incidents:

(a) You falsified the time(s) on which you removed narcotics, with respect to [Client B]; and/or

(b) You falsified the time(s) on which you removed narcotics, with respect to one or more other [clients]; and/or

(c) You signed for removing narcotics at times when you were not on the floor, on one or more occasions.

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 paragraph 1(37) of Ontario Regulation 799/93, in that you engaged in conduct or performed acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to the following incidents that occurred at [the Facility] from January to March 2009:

(a) You signed for narcotics and/or other medication that you failed to administer, with respect to [Clients A, B and C]; and/or

(b) You signed for narcotics and/or other medication that you failed to administer, with respect to one or more other [clients]; and/or

(c) [Withdrawn]

(d) You signed for narcotics and/or other medication, and you then failed to document providing the medication, with respect to one or more other [clients]; and/or

(e) [Withdrawn]

(f) You administered medication but failed to document doing so on the Medical Administration Record or in the nurses’ notes, with respect to one or more other [clients]; and/or

(g) You signed for removing narcotics at times when you were not on the floor, on one or more occasions; and/or

(h) You pre-poured prn medications, on one or more occasions; and/or

(i) You falsified the time(s) on which you removed narcotics, with respect to [Client B]; and/or

(j) You falsified the time(s) on which you removed narcotics, with respect to one or more other [clients]; and/or

(k) You misappropriated narcotics.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1(a), (b), (d), (f), (i), (j), (m), (n), 2, 3(a), (b), (d), (f), (g), (j), (k), 4(a), (b), (c), 5(a), (b), (d), (f), (g), (h), (i), (j), and (k) in the Notice of Hearing. The panel received a written plea inquiry which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

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

THE MEMBER

1. Tammie M. Spiers (the “Member”) completed the Registered Practical Nursing program [] on December 17, 1999.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on October 16, 2003. On June 21, 2010, the Member’s certificate of registration was suspended for failing to submit to a health examination.

3. The Member was employed at [the Facility] in [ ], Ontario from December 2, 2007 until she was terminated on March 5, 2009.

OTHER DISCIPLINE HISTORY

4. On October 19, 2010, the Member was found to have committed professional misconduct in that she abused clients verbally and emotionally. Additionally, she signed or issued in her professional capacity a document that she knew or ought to have known contained a false or misleading statement by failing to appropriately disclose findings of guilt for criminal convictions to the College on her Initial Registration Payment Form and on subsequent Annual Membership Renewal Forms.

THE FACILITY

5. The Facility is a long-term care facility [ ]. Each floor has two units, [ ]. Each unit has approximately 30 beds.

6. The Member worked on [the Unit]. The clients on the Unit required a range of nursing care. Some residents were completely dependent on staff for their activities of daily living. A number of the residents were prescribed narcotics for medical conditions.

7. The Member worked on the Unit as a full-time nurse on the day shift, from 0700 to 1900hrs (the “Day Shift”). The Member was responsible, among other things, for administering medications to the clients on her Unit.

8. During the Day Shift, the Unit was staffed by one RPN and three Personal Support Workers. There was one Registered Nurse who acted as the Charge Nurse for the entire Facility.

9. Each RPN had a medication cart on their unit. The RPN on each unit conducted medication passes four times a day: at 0800, 1200, 1700 and HS (bedtime). PRN medications were distributed as needed throughout all shifts.

10. Each medication cart had a binder containing the clients’ Medication Administration Records and Narcotic Administration Count Records.

11. The medication carts were stocked with medications sent from the pharmacy. The medications came in clear bags or pouches and were attached together in a strip. PRN medications were in blister packs. Narcotics were locked in the medication cart and the RPN had the key.

12. At the beginning and end of each shift, the incoming RPN and the outgoing RPN conducted a ward count of narcotics. The ward count was signed by both registered staff.

13. Before administering a narcotic, the RPN was required to remove the narcotic from the locked drawer and sign for the narcotic in the Narcotic Administration Count Record (“NACR”), indicating the time of removal. The RPN was also required to sign the Medication Administration Record (“MAR”), indicating when the narcotic was given to the client. The MAR was only to be signed when the narcotic was administered. If the medication was a PRN medication, the RPN was also required to chart it in the Nurses’ Notes on the computer and to document the reason for administering it and its effect. RPNs were prohibited from pre-pouring narcotics (i.e., removing narcotics from the locked drawer before it was time for them to be administered).

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Medication Cart Audit

14. On March 4, 2009 at 1045hrs, the Director of Care of the Facility and a second Registered Nurse conducted an audit (the “Audit”) of the Member’s medication cart.

15. At that time, it was noted that the Member had removed PRN narcotics for her clients, but had not documented doing so on the clients’ medication administration records or on the Nurses’ Notes on the computer. The PRN medications were found in unmarked cups in the top drawer of the Member’s medication cart.

16. During the Audit, the Director of Care and the other Registered Nurse reviewed the NACR for [Client B] dated March 4, 2009. Although it was only 1045 hrs, the Member had completed the NACR for the entire day. The Member had documented that Percocet was removed at 0640 (one tablet), 1010 (one tablet), 1330 (one tablet), 1640 (one tablet), and 1910hrs (two tablets). The Member had also documented that one tablet of Percocet was wasted at 1910hrs.

17. The Member falsified the NACR for [Client B] on March 4, 2009, for the purpose of misappropriating the Percocet.

18. The findings during the Audit prompted a review of the Member’s files. The Director of Care identified narcotic discrepancies on the Member’s shifts on the following relevant dates in 2009: January 3, 4, 7, 8, 16, 17, 30, 31, February 1, 4, 5, 9, 10, 23, 24, 27, 28 and March 4. Each incident described below occurs on one of these dates.

(a) [Client A]

19. [Client A] was a resident of the Facility and was 74 years old at the time of the incidents.

20. [Client A] had a physician’s order for Percocet, in particular one tablet in the morning, at noon and at 1600hrs, and one tablet every three hours as needed, up to a maximum of eight tablets per day.

21. On January 3, 4, 7, 8, 30, 31 and February 1, 9, 10, 24, 2009, the Member signed for Percocet tablets on the NACR that she did not administer to [Client A]. In total, the Member signed for and removed 25 Percocet tablets that she did not administer to this client on these days.

22. The Member admits to misappropriating these 25 tablets of Percocet.

23. In addition, on January 3, 7, 8, 30, 31 and February 1, 10, 24, the Member falsely documented signing out a total of 10 Percocet tablets at times when she had not yet signed in for the day or had already signed out for the day.

(b) [Client B]

24. [Client B] was a resident of the Facility and was 85 years old at the time of the incidents.

25. [Client B] had a physician’s order for Percocet, in particular one tablet every four hours as needed.

26. On January 4, 7, 16, 17 and February 27, 28, 2009, the Member signed for Percocet tablets on the NACR that she did not administer to [Client B]. In total, the Member signed for and removed six Percocet that she did not administer to the client on these days.

27. The Member admits to misappropriating these six tablets of Percocet.

28. In addition, on January 4, 7, 16 and February 27, the Member falsely documented signing out a total of five Percocet at times when she had not yet signed in for the day or had already signed out for the day.

(c) [Client D]

29. [Client D] was a resident of the Facility and was 94 years old at the time of the incidents.

30. [Client D] had a physician’s order for Tylenol #2, in particular one tablet every six hours as needed.

31. On February 4, 5, 10, 24, and 28, 2009, the Member signed for Tylenol #2 tablets on the NACR that she did not administer to [Client D]. In total, the Member signed for and removed 14 Tylenol #2 that she did not administer to the client on these days.

32. The Member admits to misappropriating these fourteen tablets of Tylenol #2.

33. In addition, on February 1, 9, 23, 24 and 27, the Member documented removing a total of at least nine Tylenol #2 tablets in the NACR that she documented as administered to [Client D] in the Nurses’ Notes but not in the MAR.

34. In addition, on February 1 and 10, the Member falsely documented signing out a total of two Tylenol #2 tablets at times when she had not yet signed in for the day.

(d) [Client C]

35. [Client C] was a resident of the Facility and was 64 years old at the time of the incidents.

36. [Client C] had a physician’s order for Codeine, in particular one tablet four times a day as needed.

37. On February 23 and 24, the Member signed for Codeine tablets on the NACR that she did not administer to [Client C]. In total, the Member signed for and removed two tablets of Codeine that she did not administer to the client on these days.

38. The Member admits to misappropriating these two tablets of Codeine.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

39. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 1(d), 1(f), 1(i), 1(j), 1(m), 1(n), 2, 3(a), 3(b), 3(d), 3(f), 3(g), 3(j), 3(k), 4(a), 4(b), 4(c), 5(a), 5(b), 5(d), 5(f), 5(g), 5(h), 5(i), 5(j) and 5(k) of the Notice of Hearing, and in particular her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 14-38 above.

Decision

The panel considered the Agreed Statement of Facts and decided that the facts support a finding of professional misconduct. In particular, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b), (d), (f), (i), (j), (m), (n), 2, 3(a), (b), (d), (f), (g), (j), (k), 4(a), (b), (c), 5(a), (b), (d), (f), (g), (h), (i), (j), and (k) in the Notice of Hearing. The Member contravened standards of practice of the profession, misappropriated narcotics, failed to keep records with respect to narcotic management, falsified records relating to her nursing practice, and engaged in conduct relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.

Reasons for Decision

The facts clearly supported the allegations in the Notice of Hearing. The public’s trust in nurses and in the nursing profession is a paramount value that underlies the privilege of professional self-regulation. At all times, nurses must practi[s]e their profession with integrity and honesty. They must be trustworthy. The admitted actions of the Member were in contravention of these tenets. The Standards of Practice are clear and the Member’s admitted intentions and actions contravened these Standards. Misappropriation of narcotics and falsification of records related to narcotic management are absolutely unacceptable.

Unprofessional conduct includes actions and/or behaviours that disregard professional obligations in a serious or persistent manner. Failure to live up to the standards expected of nurses demonstrates that a member is not professional. Dishonourable conduct can involve dishonesty or deceit. Disgraceful conduct has the effect of shaming the Member, and by extension, the profession. Disgraceful conduct casts serious doubt on the Member’s moral fitness and inherent ability to discharge the obligations the public expects professional[s] to meet. Both dishonourable and disgraceful conduct have an element of moral failing. The Member ought to, or does, know that her conduct was unacceptable and fell well below the standards of the profession. The Member repeatedly contravened standards of practice of the profession, misappropriated narcotics, failed to keep records with respect to narcotic management, and falsified records relating to her nursing practice; these actions, jointly and [severally], constitute disgraceful, dishonourable and unprofessional conduct.

Penalty

Counsel for the College advised the panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requested that the panel make an order:

1. Requiring the Member to appear before the Panel to be reprimanded within three (3) months of the date of this Order.

2. Directing the Executive Director to suspend the Member’s certificate of registration for four (4) months. This suspension shall take effect from the date the Member’s current suspension ends and shall continue to run without interruption.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two (2) sessions with a Nursing Expert (the “Expert”), at her own expense. The first meeting shall be completed within three (3) months of the date of the Order. The second meeting shall be completed within six (6) months of the date of the Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in Professional Standards, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed [he/she] will provide a report following the sessions;

ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:

1. The Panel’s Order,

2. The Notice of Hearing,

3. The Agreed Statement of Facts,

4. This Joint Submission on Penalty, and

5. If available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

1. Professional Standards (Revised 2002),

2. Medication, Revised 2008,

3. Documentation, Revised 2008

iv. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

v. The subject of the sessions with the Expert will include:

1. The acts or omissions for which the Member was found to have committed professional misconduct,

2. The potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. Strategies for preventing the misconduct from recurring,

4. The publications, questionnaires and modules set out above, and

5. The development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Expert forwards [his/her] report to the Director, in which the Expert will confirm:

1. The dates the Member attended the sessions,

2. That the Expert received the required documents from the Member,

3. That the Expert reviewed the required documents and subjects with the Member, and

4. The Expert’s assessment of the Member’s insight into her behaviour;

vii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

b) For a period of twenty-four (24) months from the date the Member’s suspension ends, the Member will notify her employers of this decision. To comply, the Member is required to ensure that:

(i) The Director is notified of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position;

(ii) Provide her employer(s) with a copy of:

1. The Panel’s Order,

2. The Notice of Hearing,

3. The Agreed Statement of Facts,

4. This Joint Submission on Penalty, and

5. A copy of the Panel’s Decision and Reasons, once available;

(iii) Within fourteen (14) days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. That it received a copy of the required documents, and

2. That [it] agrees to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

(iv) All documents delivered by the Member to the College, the Expert or the employer(s) will be made by verifiable method of delivery, the proof of which the Member will retain.

Penalty Submissions

In support of the Joint Submission on Order, Counsel for the College stated that the Member’s certificate of registration was currently suspended and that any additional suspension decided by the panel would not begin until the current suspension was concluded. General and specific deterrence is addressed by the length of the suspension, which includes consideration of the Member’s past disciplinary history. The suspension indicates to the Member and to the general membership that the conduct was quite serious. A four-month suspension is reasonable when considering mitigating factors such as the Member’s admission of her actions, acceptance of responsibility, and her current suspension. The remedial component of the penalty would allow the Member to reintegrate into nursing practice once and if registration is reinstated. Employer reporting provides public protection. The full penalty is reasonable and in the public interest.

Penalty Decision

The panel accepts the Joint Submission on Order and accordingly orders as follows.

1. The Member shall appear before the Panel to be reprimanded within three (3) months of the date of this Order.

2. The Executive Director is directed to suspend the Member’s certificate of registration for four (4) months. This suspension shall take effect from the date the Member’s current suspension ends and shall continue to run without interruption.

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

a) The Member will attend two (2) sessions with a Nursing Expert (the “Expert”), at her own expense. The first meeting shall be completed within three (3) months of the date of the Order. The second meeting shall be completed within six (6) months of the date of the Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in Professional Standards, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed she will provide a report following the sessions;

ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:

1. The Panel’s Order,

2. The Notice of Hearing,

3. The Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. If available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

1. Professional Standards (Revised 2002),

2. Medication, Revised 2008,

3. Documentation, Revised 2008

iv. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires and online participation forms;

v. The subject of the sessions with the Expert will include:

1. The acts or omissions for which the Member was found to have committed professional misconduct,

2. The potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. Strategies for preventing the misconduct from recurring,

4. The publications, questionnaires and modules set out above, and

5. The development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Expert forwards [his/her] report to the Director, in which the Expert will confirm:

1. The dates the Member attended the sessions,

2. That the Expert received the required documents from the Member,

3. That the Expert reviewed the required documents and subjects with the Member, and

4. The Expert’s assessment of the Member’s insight into her behaviour;

vii. That if the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

b) That, for a period of twenty-four (24) months from the date the Member’s suspension ends, the Member will notify her employers of this decision. To comply, the Member is required to ensure that:

(i) The Director is notified of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position;

(ii) Provide her employer(s) with a copy of:

1. The Panel’s Order,

2. The Notice of Hearing,

3. The Agreed Statement of Facts,

4. This Joint Submission on Order, and

5. A copy of the Panel’s Decision and Reasons;

(iii) Within fourteen (14) days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. That it received a copy of the required documents, and

2. That agrees to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

(iv) All documents delivered by the Member to the College, the Expert or the employer(s) will be made by verifiable method of delivery, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel concluded that the proposed penalty was reasonable, in the public interest, and reflective of the fact that the Member had engaged in professional misconduct on a previous occasion. The Member has cooperated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions. The panel found that the penalty was fair to the Member and sent the right message to the membership and to the public. The penalty allows for specific deterrence in that it provides for an oral reprimand, suspension, rehabilitation, and remediation. The penalty also provides for general deterrence in that it sends a clear message to the membership that these actions and behaviours will not be tolerated. With regard to public protection, the panel finds that this order is sufficient in that it provides for both remediation and a 24-month monitoring period.

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

Chairperson Date

Panel Members:

Samantha Diceman, RPN Nancy Sears, RN Abdul Patel, Public Member Margaret Tuomi, Public Member