College of Nurses of Ontario v. Hunter, 2011 ONCNO 99844

Discipline Committee of the College of Nurses of Ontario

PANEL: Carl Balcom, RN Chairperson Nancy Sears, RN Member Spencer Dickson, RN Member Joan King Public Member Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) REBECCA JONES for ) College of Nurses of Ontario

• and - )

D’ARCIE HUNTER ) JONATHAN PITBLADO for Registration No. # 9500844 ) D’Arcie Hunter

) LUISA RITACCA ) Independent Legal Counsel

) Heard: July 20 and 21, 2011 and ) December 2, 2011

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on July 20 and 21, 2011 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 allegation set out in paragraph 5 of the Notice of Hearing dated July 6, 2011. This allegation related to the falsification of a record relating to the Member’s practice. The panel granted this request. The remaining allegations against D’Arcie Hunter (the “Member”) as set out in the Notice of Hearing are as follows.

1. You have committed an act or acts 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 around February 28, 2009 and/or March 3, 2009, while working at [the home] in [ ], Ontario, you contravened a standard of practice of the profession and/or failed to meet the standard of practice of the profession in that you:

a) Failed to intervene appropriately with [the Client]; and/or

b) Swung [the Client] aggressively over onto her left side; and/or

c) Failed to document accurately and appropriately on an incident involving [the 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(37) of Ontario Regulation 799/93, in that on or around February 28, 2009 and/or March 3, 2009, while working at [the home] in [ ], Ontario, you performed an act or acts relevant to the practice of nursing that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that you:

a) Failed to intervene appropriately with [the Client]; and/or

b) Swung [the Client] aggressively over onto her left side, and/or

c) Failed to document accurately and appropriately on an incident involving [the Client].

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(7) of Ontario Regulation 799/93, in that on or around February 28, 2009, while working at [the home] in [ ], Ontario, you abused a client verbally, physically or emotionally in that you:

a) Failed to intervene appropriately with [the Client]; and/or

b) Swung [the Client] aggressively over to her left side.

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(13) of Ontario Regulation 799/93, in that on or around February 28, 2009 and/or March 3, 2009, while employed at [the home] in [ ], Ontario, you failed to keep records as required and in particular:

a) Prepared a progress note regarding [the Client] dated February 28, 2009 which was inaccurate; and/or

b) Prepared an email regarding [the Client] dated March 3, 2009 which was inaccurate.

5. [Withdrawn]

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(15) of Ontario Regulation 799/93, in that on or around February 28, 2009 and/or March 3, 2009, while employed at [the home] in [ ], Ontario, you signed or issued, in your professional capacity, document or documents that you knew or ought to have known contained a false or misleading statement and in particular:

a) A progress note regarding [the Client] dated February 28, 2009; and/or

b) An email regarding [the Client] dated March 3, 2009.

Member’s Plea

The Member denied the allegations in the Notice of Hearing.

Overview

The Member has practi[s]ed as a Registered Nurse (RN) for over 16 years in the areas of mental health, telehealth and long-term care. At the time of the incident, she had been working at [the home] for about one year. [The home] is a long-term care home with [ ] residents whose average age is around 85, approximately 70% of whom suffer from some type of dementia. At the time of the event in question, there were two levels at the home: the Special Care Unit [ ] and a General Unit [ ]. The Special Care Unit, which had higher staffing levels and psychosocial management, was intended for residents with more advanced dementia, aggression, and/or behavioural issues and exit-seeking tendencies. Staffing on the night shift for the entire home consisted of one RN in charge and five Personal Support Workers (PSWs) to assist. The event in question occurred at approximately 0100 hours during the night shift, which started at 23:00 hours on February 27, 2011 and finished at 07:00 hours on February 28, 2011.

[The Client] was a ninety-year-old female with a diagnosis of dementia and a history of aggressive behaviour. At approximately 0100 hours on Feb 28, 2009, [the Client] was found on her roommate’s bed, shouting at her roommate and telling her to get out, saying, “This is my room and you have no right to be here”. The roommate was a temporary resident recently admitted to the home for respite care. The Member and [PSW A, who was] assigned to that particular section of the home, entered the [Client’s] room to try and settle her down. The [Client] was injured and the Member was terminated as a result of trying to defuse the situation. The College has made several allegations of professional misconduct as listed in the Notice of Hearing.

All parties agreed that [the Client] had been in close proximity to and within the personal space of her roommate, and was yelling at her roommate in the early morning hours of February 28, 2009. The parties also agreed that the Member and a PSW intervened in an effort to settle the [Client].

The issues for the Panel to decide were:

• Did the Member fail to intervene appropriately?
• Did the Member swing [the Client] aggressively over to her left side?
• Were the Member’s actions abusive?
• Did the Member fail to record the incident accurately?
• Did the Member issue a false or misleading document?

The Panel heard testimony from seven witnesses:

1. Executive Director of Nursing and Personal Care [the ED]
2. [PSW B], RPN, PSW at the time of the incident
3. [the] Nurse Manager
4. Expert Witness for The College
5. Ms. D’Arcie Hunter RN, the Member
6. [PSW A]
7. Expert Witness for the Member

Various exhibits were submitted by both parties, including:

• [the home]’s Abuse Policy, Confinement Policy and RN job description
• [the Client]’s clinical notes
• Photos of [the Client] dated February 28, 2009
• E-mail from the Member to [the ED]
• CNO Practice Standard, Therapeutic Nurse-Client Relationship
• CNO Practice Standard, Documentation
• Report signed by [PSW A] on March 2, 2009
• CV for [the two experts]

The Evidence

1) Did the Member fail to intervene appropriately?

Evidence of [PSW B]

At the time of the incident, [PSW B] worked full-time on the night shift as a PSW and had worked with the Member and with [the Client] on previous occasions. She testified that [the Client] did not like to be touched and stated that if someone touched [the Client], [the Client] would “ram you with her walker".

On the night of February 27, 2009, [PSW B] was the PSW working on “B-wing”; [the Client]’s room was on “A-wing”. [PSW B] testified that she had observed [the Client] walking into rooms of other residents on the evening of Feb 27th and when [the Client] was redirected back to her room, she saw [the Client] push her walker into staff. [PSW B] stated that later on into the night shift, she heard yelling coming from [the Client]’s room on A-wing.

[PSW B] testified that when she came into the room, she saw [the Client] sitting on her roommate’s bed. [PSW B] was not clear as to how [the Client] was moved to her own bed. She testified that she saw [the Client] lying on her back in her own bed, yelling and kicking, while the Member and [PSW A] were attempting to remove [the Client]’s pants and shoes. [PSW B] testified that she told the Member it was not necessary to remove [the Client]’s pants, and that the Member replied to the effect that removing [the Client]’s pants would stop her from wandering. She also testified that she asked if she could help, but she was told there were too many people in the room. [PSW B] observed [the Client] thrashing and flipping over. She heard [the Client] hit her head on the bedrail. On cross-examination, [PSW B] indicated that [the Client] was the type to hit and hurt her roommate, and that she did not know whether the Member had caused [the Client] to flip over and bump her head or whether [the Client]’s kicking and thrashing had been the cause of the injury. [PSW B] also testified that she entered [the Client]’s room partway through the event in question.

Evidence of [the ED]

[The ED] testified that at the time of the incident, she was the Executive Director of Nursing and Personal Care at [the home]. She provided the panel with background information about the home, and identified the Abuse Policy, the RN Job Description from [the home], the confinement policy, the excerpts from [the Client]’s health records, and the care plan for [the Client].

[The ED] testified that [the Client]’s behaviour was labile and unpredictable: she could be pleasant and friendly as well as disruptive and aggressive. [The ED] testified that examples of the latter could include slamming her walker, verbal abuse, and pushing staff. [The ED] testified that when [the Client] was being disruptive, the care plan dictated for [the Client] to be redirected. [The ED] also testified that prior to the events under consideration, the home had recommended that [the Client] be transferred to the Special Care Unit where staffing ratios were higher and the environment was better suited to [the Client]’s care and behavioural needs. However, [the Client]’s family did not consent to transferring units.

[The ED] testified that [the Client] had a diagnosis of dementia and she referred to the Care Plan for [the Client,] outlining the following specific actions to be followed if [the Client] became aggressive:

1. Remove resident from any stressful situation
2. If aggressive, have extra staff help with care
3. Accept resident’s anger and do not react to it, speak in a calm, firm, and reassuring manner at all times.
4. Remove anyone who might be in danger from the area.
5. Never confront or argue with resident when she is showing signs of increased agitation
6. Divert resident’s attention by asking questions about her family, offering fruit or candy, taking to another room or having her fold towels.

[The ED] testified that at the time of the incident, there was a gastrointestinal outbreak at the home, but that [the Client] was not suffering from any symptoms of gastrointestinal infection.

In cross-examination, [the ED] confirmed that the protocol for investigations of allegations of [the Client]use of other residents states, “Staff have a duty to take immediate steps to protect the resident who may be affected by actions of another resident.”

Evidence of [the Nurse Manager]

[The] nurse manager at the time of the incident [ ] identified photos of [the Client] she had taken the day after the incident. [The nurse manager] testified that [the Client]’s behaviour and her response to interventions was unpredictable: “One never knew how she ([the Client]) would respond”. She testified that it was the recommendation of the home that [the Client] be transferred to the Special Care Unit but that the family refused. [The nurse manager] stated that on the morning following the event under consideration, she made the decision to move [the Client] into a private room on the Special Care Unit. [The nurse manager] reported that [the Client] was in good spirits, “laughing and joking” the morning after the incident.

Evidence of [Expert A]

[Expert A], Expert Witness for the College, was qualified by the panel to give opinion evidence regarding care of the elderly, documentation standards, abuse, and the therapeutic nurse-client relationship. [Expert A] testified that in her opinion, the Member’s intervention did not meet the standard of care. She said that forcing [the Client] back to bed and physically removing her pants would not have been consistent with the care plan. [Expert A] stated that in her opinion, the Member should have spoken calmly and given [the Client] time and space to calm down. She also opined that if the Member was worried about [the Client]’s roommate, she could have removed the roommate from the area.

Evidence of [the Member]

Ms. D’Arcie Hunter, RN, (the Member) testified that at approximately 01:00 hours on February 28, 2009, she and [PSW A] heard yelling from [the Client]’s room. Upon entering, they found [the Client] sitting on her roommate’s bed fully dressed and yelling at the roommate to “get out of my room”. The Member testified that the roommate appeared frightened. According to the Member, she and [PSW A] convinced [the Client] to go back to her own bed. The Member testified that [the Client] was cooperating, and they removed one shoe, telling her it was time to get into her bedclothes. The Member testified that she helped lift [the Client]’s legs up on the bed and that [the Client] suddenly became very agitated, kicking [PSW A] and turning and thrashing back and forth. The Member testified that she heard something make contact with the bed bar but couldn’t see what had hit. The Member stated that she and [PSW A] then backed away and left [the Client] to calm down. She said someone remained in the room for a few minutes to be sure that [the Client] had calmed down and to make sure the roommate was not at risk.

Evidence of [PSW A]

[PSW A], the PSW who had assisted the Member, testified that she did not remember the Member being overly rough; she testified that the Member’s actions “were not excessive, not over the top”. [PSW A] testified that her memory was “sketchy at the best of times”.

Evidence of [Expert B]

[Expert B], Expert Witness for the Member was qualified by the panel to give opinion evidence regarding care for the elderly. [Expert B] testified that in her opinion the situation in [the Client]’s room on Feb. 28th could be determined to be an emergency because [the Client] had a history of abusive actions when agitated and because the roommate was frightened. [Expert B] testified that it is difficult to determine how much force was used from pictures of bruising because elderly [clients] bruise very easily. She stated that in an emergency, nurses must make decisions quickly and must keep the safety of [clients] and staff paramount.

2) Did the Member aggressively roll [the Client] to her left side and/or cause [the Client] to bump her head?

Evidence of [PSW B]

[PSW B] was not sure how [the Client] was moved to her own bed. She described [the Client] as lying on her back and kicking out while the Member and [PSW A] tried to remove her second shoe and her pants.

[PSW B] testified that while the Member was trying to remove [the Client]’s shoes, [the Client] was thrashing about and flipped over, bumping her head on the side rail. “I could hear it,” she testified. She also testified that she wasn’t sure whether [the Client]’s kicking and thrashing caused her to flip over or whether the Member actually flipped [the Client] over.

Evidence of [PSW A]

[PSW A] described that a “kind of sit and roll motion” was used to get [the Client] into bed. She was unsure as to whether [the Client] had hit her head. [PSW A] testified that she doesn’t remember having any concerns at the time.

Evidence of the Member

The Member recalled having convinced [the Client] to return to her bed from her roommate’s bed and then helping to lift her legs up on to the bed. She testified that [the Client] suddenly became very agitated, kicking at [PSW A], connecting one kick directly to [PSW A], and turning back and forth in her bed. The Member said that she heard something make contact with the side bar but couldn’t see what had hit.

3) Were the Member’s action’s abusive?

Evidence of [Expert A]

[The expert witness] tendered by the College testified that a nurse intervening in a physical manner with a [client] was committing physical abuse. She referred the panel to two specific indicators in the Therapeutic Nurse-Client Relationship standard that she thought were pertinent to this situation:

4. Protecting the Client from Abuse

g) not engage in behaviour toward a client that may be perceived by the client/and or others to be violent, threatening or intending to inflict physical harm

i) not exhibiting physical, verbal and non verbal behaviours toward a client that demonstrate disrespect for the client and/or are perceived by the client and/or others as abusive.

Evidence of [Expert B]

[The expert witness] tendered by the Member opined that the Member’s actions were not unreasonable considering the circumstances. In her opinion, the situation in [the Client’s room] on Feb 28, 2009 could be determined to be an emergency and that a nurse should consider the safety of clients and staff to be paramount.

Evidence of [the Nurse Manager]

[The nurse manager] stated that [the Client] was laughing and joking about the incident the following morning.

4) Did the Member fail to record the incident accurately?

[PSW B] confirmed that the Member had shown her the incident note that the Member had written in [the Client]’s health record in relation to the event, describing what had happened, shortly after the incident occurred. The Member asked [PSW B] if it accurately showed what had happened and [PSW B] testified that she had made no suggestions for improvement. [PSW B] testified that her involvement was not mentioned in the Member’s progress note, and that she could not recall if she said this or thought this when the Member asked her if the progress note accurately reflected the incident.

[Expert A] stated that in her opinion, the Member’s notes did not meet documentation standards as she failed to report that she had been trying to remove [the Client]’s pants and she had failed to mention the presence of [PSW B] in the room. She expressed concern that there were discrepancies between the incident note and the e-mail the Member sent to [the ED] a few days later.

The Member agreed that she did not state in her clinical note that [PSW B] had observed some of the events. The Member stated that the clinical note was not meant to be a “running story”. She said that [PSW B] had not been actively involved in the event and therefore was not recorded.

The Member’s recollection was that she had given a verbal, “face to face” report to [the nurse manager], the nurse who relieved her the next morning. She couldn’t remember if she had given a “taped” report as well.

Regarding the e-mail, the Member testified that she had developed gastrointestinal symptoms and was off sick from work for three days following the event. [The ED] had left her a message asking her to send an e-mail about the incident. The Member explained that she had heard from other staff that [the Client] had bruises. She testified that she was trying to communicate in her e-mail that she wasn’t sure what bruising had occurred during the incident.

[The nurse manager] testified that she did not recall having a “face to face” interview with Ms. Hunter the morning following the incident, however [the nurse manager]’s documentation in [the Client]’s health record as follow-up to the event is very detailed.

[Expert B, the Member’s expert,] testified that in her expert opinion it was not necessary for Ms. Hunter to include [PSW B] in her clinical note as [PSW B] had not been involved in the incident. [Expert B] also opined that the wording in the subsequent e-mail should not be considered part of the record.

5) Did the Member falsify the records?

This issue involved the same evidence as in issue #4

Final Submissions

Counsel for the College submitted that the College bears the responsibility to prove on a balance of probabilities that the Member committed the allegations a[s] set out in the Notice of Hearing. Counsel for the College reviewed each of the factual allegations, and argued that the College met the burden of proof for each.

With respect to the allegation that the Member failed to intervene appropriately and swung [the Client] aggressively, Counsel submitted that the Member had experience in working with clients suffering from dementia and that the Member’s actions were not consistent with standard approaches to caring for this population. Counsel submitted that the care plan is a resource for nurses to draw on when providing care, and that the Member could have used distraction or redirection rather than physical intervention to remove the Client from her roommate’s bed. Counsel for the College further submitted that removing [the Client]’s second shoe and pants was neither necessary nor an intervention found within the plan of care. Counsel also submitted that this was not an emergent situation, despite testimony from the Member’s expert witness to the contrary, and the fact that there was a gastrointestinal outbreak at the home during the time of the incident was irrelevant.

With respect to the allegation that the Member behaved in a dishonourable and unprofessional manner, Counsel submitted that the Member failed to live up to the expected standards, failed to demonstrate the traits of good judgment and responsibility, and knew or ought to have known that her conduct fell below the standards of the profession.

With respect to the allegation that the Member abused the Client, Counsel for the College submitted that the intention of a nurse does not justify a misuse of power; the Member did not follow the care plan and should have known that her actions could cause the Client’s dignity or person to be injured.

With respect to the allegation that the Member failed to document appropriately and failed to keep records as required, Counsel for the College submitted that the Member’s documentation in the Client’s progress note does not mention the removal of the Client’s shoes and pants against the Client’s resistance, the involvement of the witness [PSW B] in the incident, and that the statements in the e-mail written by the Member were not consistent with the statements in the progress notes. She submitted that there was no distinction between a nurse’s professional obligations vis-à-vis documentation in a health record versus an email message sent for professional purposes. The College’s practice standards apply to the e-mail at issue because the Member sent the e-mail in her professional capacity. Therefore, the Member could be disciplined if the panel found that the inconsistencies and deficiencies in the Member’s documentation fell below professional standards, as the College believed they did.

Counsel for the College concluded closing arguments by reiterating that the College, who bears the onus of proving the allegations of professional misconduct on a balance of probabilities, had met its burden of proof.

Counsel for the Member began closing arguments by reiterating a statement made by the Member’s expert witness, namely that the Member had no choice but to intervene in the manner in which she did, and that it was not unreasonable for the Member to have wanted [the Client] to return to her bed. He submitted that the first best witness of the incident would be the Member herself; the second best would be [PSW B] despite the fact that she was not present for the entire situation, and the third best would be [PSW A], taking into account her admittedly poor memory. Counsel for the Member submitted that although [PSW A] had testified that she did not recall much of the incident, she did not remember the Member’s conduct to be “over the top” and that her relationship with the Member was such that she would have addressed the Member’s actions if she felt that they were inappropriate.

Counsel for the Member also submitted that no one knows [w]hat the outcome would have been if the Member had tried a different course of action to deal with the situation. He submitted that [the Client] had a history of aggression and abuse toward others, and that putting a respite care client into the same room as [the Client] was a “recipe for disaster”.

With respect to the Member’s documentation and the discrepancies between her entry into the Client’s health record and the statements made in the e-mail message, counsel for the Member submitted that it is always harder to remember specific details of a situation after the fact, and that documentation made contemporaneously is more reliable.

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 an act of professional misconduct as alleged in paragraph 1(a) of the Notice of Hearing. The Member contravened a standard of practice of the profession and failed to meet the standard of practice of the profession in that she failed to intervene appropriately with a client [ ].

The panel is unable to find that the Member has committed acts of professional misconduct as alleged in paragraphs 1(b)(c), 2, 3, 4, and 6 of the Notice of Hearing. Accordingly, the panel dismisses allegations 1(b)(c), 2, 3, 4, and 6 in the Notice of Hearing.

Reasons for Decision

The panel finds that the Member needed to intervene to remove client [the Client] from the bed of her co-client and at first did so appropriately; this finding was supported by the testimony of the Member’s expert witness. However, the panel finds that once [the Client] was returned to her bed, the “emergency” situation had been effectively dealt with. The Member’s decision to remove [the Client]’s shoes and pants was inappropriate and contributed to the escalation of the situation. According to the Therapeutic Nurse-Client Relationship practice standard [ ], one of the indicators of a nurse meeting the practice standard is “not engaging in behaviours toward a client that may be perceived by the client and/or others to be violent, threatening, or intending to physical inflict harm” [ ]. The panel finds that the Member ought to have known that [the Client] would have perceived the removal of her pants and shoes as threatening, and that there is no evidence to indicate that removing [the Client]’s shoes and pants was necessary. As such, the panel finds that the Member should have left [the Client]’s pants and shoes on once the imminent risk to the co-client had been addressed, which redirecting [the Client] had accomplished.

The panel finds that the evidence does not, on a balance of probabilities, lead the panel to conclude that the Member swung [the Client] aggressively on to her left side, or caused [the Client] to bump her head. [PSW B], a witness for the College, testified that she observed [the Client] lying on her back, thrashing about, and “kicking out” while the Member and [PSW A] were trying to remove her pants, and that [the Client] flipped over and bumped her head on the side rail. [PSW B] also testified that she was not sure whether [the Client]’s kicking and thrashing caused her to flip over or whether the Member’s actions caused [the Client] to flip over. In her testimony, the Member denied swinging [the Client] aggressively and stated that [the Client] was lying on her left side when she was attempting to kick [PSW A] as [PSW A] was removing [the Client]’s shoe. The Member testified that she held [the Client]’s torso so that [PSW A] could back away, and heard the sound of client [the Client] hitting the bed rail. In her testimony, the Member denied swinging the client aggressively. [PSW A] testified that she did not recall much of the incident, and testified that her memory was “sketchy at the best of times” but that she did not recall anything “over the top”. The panel put little credence into the testimony of [PSW A] due to her admittedly poor memory. However, even without [PSW A]’s evidence, the panel finds that the College failed to provide evidence that proved on a balance of probabilities that the Member aggressively swung [the Client]. The other witness to the situation, other than the Member, [PSW B], and she testified that she did not know whether or not the Member caused [the Client] to flip over and hit her head or if this was a direct result of [the Client]’s own actions.

The panel does not find that the Member abused [the Client]. While the panel finds that the Member contravened a standard of practice of the profession and failed to meet the standard of practice of the profession in that she failed to intervene appropriately with [the Client] as described above, the panel does not find that the Member’s actions constituted abuse of the client. In coming to this finding, the panel considered the definitions of abuse found within the Therapeutic Nurse-Client Relationship practice standard as well as the testimony of the expert witnesses for both parties. Despite the photographs [ ], there was no clear evidence as to whether or not the bruises that [the Client] suffered were more likely than not the result of the Member’s actions or the result of [the Client] moving around in bed as the Member and [PSW A] were attempting to remove her shoes and pants. All three witnesses that were present at the time of the incident confirm that [the Client] was thrashing in bed. Moreover, both expert witnesses testified that the elderly bruise more easily, so the presence of bruising was not definitely indicative of excess force being used. On a balance of probabilities, the panel could not conclude that the Member’s actions resulted in injury to [the Client] or that the Member’s actions met the threshold of abuse as defined in the Therapeutic Nurse-Client Relationship practice standard.

The panel does not find that the Member failed to record the incident in question properly. In her testimony, [PSW B] confirmed that the Member had shown her the progress note made shortly after the incident and that she ([PSW B]) made no suggestions. [PSW B]’s testimony supported the accuracy of the entry and while the College’s expert witness opined that [PSW B]’s observation of the event in question should have been documented, the Member’s expert witness opined that [PSW B]’s observation of the event in question did not need to be documented in the client’s health record. In reviewing the Documentation Practice Standard, [ ], along with the testimony of the witnesses, the panel does not find that the Member failed to record the incident accurately and finds that [PSW B]’s involvement in the incident does not appear to be anything more than ancillary. The panel finds that the Member’s documentation of the incident in the client’s health record was clear, contemporary, and sufficiently detailed to meet professional standards and the note appears to be a complete record of the care provided.

With respect to the accuracy of the e-mail message sent by the Member to [the ED] as part of the home’s internal investigation, the panel did not find sufficient variation in the facts documented in the client’s health record [ ] to constitute falsification of a record. The panel took into consideration that the e-mail was sent several days after the incident and that the Member was off work sick when she wrote the email. The panel placed more weight on the progress note, given that it was written more contemporaneously than the e-mail. Even assuming that the e-mail is a health care record (as alleged in paragraph 4 of the Notice of Hearing) and/or a document issued in the Member’s professional capacity, the panel finds that the e-mail, when considered in its context, is not false or misleading.

The panel does not find that the Member’s conduct was dishonourable, disgraceful, or unprofessional. The panel did not find any dishonest or immoral elements in the Member’s conduct and therefore could not make findings of dishonourable or disgraceful conduct. The panel found that while the Member made an error in judgment with respect to the manner in which she intervened with [the Client], this did not demonstrate a serious or persistent disregard for her professional obligations but rather was a mere error in judgment. In coming to this conclusion, the panel took into consideration that the incident in question is a blip in an otherwise blemish-free nursing career of 16 years.

Penalty

Following the release of the panel’s reasons with respect to liability, the panel conducted a hearing into the appropriate penalty on December 2, 2011.

Penalty Submissions

Counsel for the College began penalty submissions by reviewing the panel’s reasons for its decision with regard to the allegations of professional misconduct, specifically that the panel did not make findings of abuse, breach of documentation standards, or dishonourable, disgraceful, or unprofessional conduct, but did find that the Member breached the standards of practice of the profession. College counsel submitted that the panel found that the Member ought to have known that removing [the Client]’s shoes and pants would have likely escalated the situation.

College Counsel requested that the panel make an order as follows:

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 one (1) month. 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 one (1) session with a Nursing Expert (the “Expert”), at her own expense and within three (3) months of the date of this Order. To comply, the Member is required to ensure that: i. The Expert has expertise in the College Standards, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meeting, and has confirmed [he/she] will provide a report following the session; 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, and
   3. the Panel’s Decision and Reasons; iii. Before the first meeting, the Member reviews the following College publication and completes the associated Reflective Questionnaire and online learning module:
   4. Professional Standards (Revised 2002), iv. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaire and online participation form; v. The subject of the session with the Expert will include:
   5. the acts or omissions for which the Member was found to have committed professional misconduct,
   6. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
   7. strategies for preventing the misconduct from recurring,
   8. the publication, questionnaire and module set out above, and
   9. the development of a learning plan in collaboration with the Expert; vi. Within 30 days after the Member has completed the session, the Expert forwards [his/her] report to the Director, in which the Expert will confirm:
   10. the date the Member attended the session,
   11. that the Expert received the required documents from the Member,
   12. that the Expert reviewed the required documents and subjects with the Member, and
   13. 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;
4. All deliveries and notifications to be given by or on behalf of the Member to the College, the Expert or the employer(s) pursuant to these terms are to be made by verifiable method of delivery, the proof of which the Member shall retain.

College Counsel submitted that in making its decision, the panel should consider protection of the public and, in particular, elderly and vulnerable persons; general deterrence by sending a message to the profession as to how the discipline committee and the College view[ ] such professional misconduct; and specific deterrence by preventing the Member from repeating this type of behaviour as well as assisting the Member with her rehabilitation.

College Counsel submitted three previous decisions with some similar facts that she argued could be used as guides in determining an appropriate penalty for this case. The first case (Re CNO and Sidhu, October 18, 2006) involved a breach of nursing standards as well as dishonourable, disgraceful, or unprofessional conduct. The second case (Re CNO and Pottruff, October 24, 2006) involved a finding of abuse as well as dishonourable, disgraceful, and unprofessional conduct. In both cases, the penalties consisted of a two-month suspension, an oral reprimand, and terms, conditions, and limitations on the Member’s certificate of registration, including mandatory remediation and employer notification requirements.

College counsel submitted that while the conduct in both cases is similar to that of the Member’s in this case, in that all involved the rough treatment of vulnerable clients, the conduct in the two precedent cases is more serious. She also submitted that in both precedent cases, the members admitted to their conduct. The one-month suspension proposed by the College takes into consideration that the findings in this case are less serious.

The third case, which involved the Member (Re CNO and Hunter, November 11, 2011), consisted of a breach of nursing standards, dishonourable, disgraceful and unprofessional conduct and a failure to document accurately and appropriately. In this case, the penalty consisted of a two-month suspension, an oral reprimand, and terms, conditions, and limitations on the Member’s certificate of registration. College Counsel submitted that this decision is relevant because the conduct is similar to that in the case at hand, and also shows that the Member’s misconduct is not isolated. College Counsel further submitted, however, that the previous finding against the Member should not be considered an aggravating factor by the panel because the incidents in the other matter occurred before findings were made in this case, therefore this is not a case where findings were made against a member yet the conduct was repeated.

Counsel for the Member reiterated the panel’s finding that it was inappropriate for the Member to have removed the Client’s shoes and pants, that many associated counts were dismissed, and that no findings of abuse were made. Counsel for the Member submitted that since the panel did not find that the Member handled the Client in a rough manner, and since the allegations of abuse and dishonourable, disgraceful, or unprofessional conduct were dismissed by the panel, the Pottruff and Sidhu cases were distinguishable. With respect to the third precedent case regarding the Member, Counsel for the Member submitted that some of the allegations were not comparable to the findings in the present case. Counsel also submitted that the panel should not draw a negative inference from the fact that the Member did not agree to the allegations against her and instead chose to contest them.

Counsel for the Member further submitted that the panel should consider the societal implications of its penalty, since the Member had already received sanctions from her employers and would be at risk of losing her current employment if an additional suspension was levied. Counsel for the Member submitted that an appropriate penalty would consist of an oral reprimand and a term, condition or limitation that would link the existing requirement to meet with a nursing expert in the Member’s other penalty with the facts of the current case.

In reply, Counsel for the College submitted that the Member’s other discipline matter should not be considered a mitigating factor in the sense that the panel should not consider the fact that the Member is already serving a suspension for that other matter. Counsel for the College further submitted that the panel had found that the Member’s conduct would have been perceived by the client as threatening, and while the panel did not make findings of abuse, the Member’s conduct did escalate the situation with [the Client] Counsel for the College then submitted that the Member did have every right to contest the allegations made against her, but that she could not avail herself of a significant mitigating factor in the precedent cases, which was that the members accepted responsibility for their actions by admitting to the allegations.

Penalty Decision

The panel makes the following order as to penalty:

1. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration: a) The Member will, at her own expense, attend two (2) sessions with a Nursing Expert (the “Expert”). These sessions are to begin within three (3) months of the date of this Order and shall be completed within a six (6)-month period. To comply, the Member is required to ensure that: i. The Expert has expertise with respect to the College Standards, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meeting, and has confirmed the Expert will provide a report following the session; 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, and
   3. 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:
   4. Professional Standards (Revised 2002),
   5. Therapeutic Nurse-Client Relationship, 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 first session with the Expert will include:
   6. a review of the situation and circumstances that led to the finding of professional misconduct against the Member,
   7. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
   8. strategies for preventing the misconduct from recurring,
   9. the publications, questionnaires and modules set out above, and
   10. strategies for working with clients, including vulnerable clients, who exhibit aggressive and/or challenging behaviour;
   11. the development of a learning plan in collaboration with the Expert; vi. The Member will establish follow-up contact with the Expert, within two (2) months of the first meeting, in order to provide a status report related to the learning plan. The format of this contact will be determined by the Expert; vii. The Member will have a second meeting with the Expert to review the achieved outcomes of the learning plan and for the Expert to evaluate the Member’s ability to apply the remedial activities to her current and future practice; viii. Within 30 days after the Member has completed the session, the Expert forwards his/her report to the Director, in which the Expert will confirm:
   12. the dates the Member attended the sessions,
   13. that the Expert received the required deliverables from the Member,
   14. that the Expert reviewed the required documents and subjects with the Member, and
   15. the Expert’s assessment of the Member’s insight into her behaviour as well as his/her opinion as to the Member’s ability to adapt her nursing practice accordingly; ix. 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.
2. All deliveries and notifications to be given by or on behalf of the Member to the College, the Expert or the employer(s) pursuant to these terms are to be made by verifiable method of delivery, the proof of which the Member shall retain.

Reasons for Penalty Decision

The penalty addresses the principles of public protection, specific and general deterrence, and rehabilitation/remediation. By imposing terms, conditions and limitations that involve targeted meetings with a nursing expert, as well as preparatory work before the meetings, the public is protected because the Member will have the necessary tools and resources to properly care for vulnerable clients in accordance with the standards of practice of the profession. The penalty also provides for both specific and general deterrence by sending a clear message to the Member, as well as to the nursing membership at large, that breaches of the standards of practice will not be tolerated by the discipline committee or the College. The penalty also provides for extensive remediation and rehabilitation of the Member since its deliverables will ensure that the Member has a solid understanding of the standards of practice to which she is held as a member of the College.

The panel found that the Member’s previous good character, the absence of any previous discipline history with the College prior to this hearing, and the fact that the Member’s failure to meet the standards of practice of the profession resulted from a single error in judgment, acted as mitigating factors.

The panel chose not to order an oral reprimand or a suspension, as proposed by College Counsel, because the panel only made a finding of a breach of the standards of practice. The panel found that in the absence of findings of abuse and/or dishonourable, disgraceful, or unprofessional conduct, a suspension was not warranted in this case. The panel also found that an oral reprimand would not be appropriate due to the nature of the finding made against the Member, the nature of the penalty made against the Member, and the fact that the Member has been through a contested hearing during which some allegations were dismissed.

I, Carl Balcom, RN, 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:

Nancy Sears, RN

Spencer Dickson, RN

Joan King, Public Member

Abdul Patel, Public Member