College of Nurses of Ontario v. Kaastra, 2011 ONCNO 99853

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Angela Verrier, RPN Chairperson Dennis Curry, RN Member Samantha Diceman, RPN Member Linda Bracken Public Member Debra Mattina Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO (BONNI ELLIS for College of Nurses of Ontario)

• and -

BETTY CHRISTINE KAASTRA Registration No. IC05020 (NO REPRESENTATION for Betty Christine Kaastra)

(AARON DANTOWITZ Independent Legal Counsel)

Heard: November 8-9, 2011

AMENDED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on November 8 and 9, 2011 at the College of Nurses of Ontario (“the College”) at Toronto.

As Betty Kaastra (the “Member”) was not present, the panel asked College Counsel for submissions on this matter. College Counsel submitted an Order and Reasons for Order dated October 24, 2011, in which the Chair of the Discipline Committee wrote that the Member made it known during a pre-hearing conference that she would not be attending this hearing.

Furthermore, Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on October 12, 2011. The panel was satisfied that the Member had received adequate notice of the time, date, place and nature of the hearing and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against the Member as set out in the Notice of Hearing dated September 30, 2011 are as follows.

IT IS ALLEGED THAT:

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, and defined in paragraph 1.1 of Ontario Regulation 799/93 as amended, in that you contravened or failed to meet the professional standards of the profession while working as a nurse at [the Facility] on or about January 25, 2010 and, in particular, you:

a) failed to respond appropriately when you were advised that [Client A] a client with a history of congestive heart failure and atherosclerotic heart disease, was experiencing nausea and/or “dry heaves”;

b) failed to recognize the signs and symptoms of myocardial infarction in [Client A], a client with a history of congestive heart failure and atherosclerotic heart disease;

c) failed to ensure that [Client A] was attended while in the washroom, in accordance with [Client A]’s care plan;

d) failed to assess [Client A] at the commencement of your shift in circumstances where you had been advised that [Client A] had been feeling unwell that day;

e) failed to document your assessment of client [Client A] at or around the commencement of your shift; and/or

f) refused and/or denied the administration of Gravol to client [Client A], when [Client A] was experiencing nausea and/or “dry heaves”, on the basis that you required evidence of vomit in order to do so.

2. 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 paragraph 1.37 of Ontario Regulation 799/93 in that, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and, in particular, while working as a nurse at [the Facility] on or about January 25, 2010, you:

a) failed to respond appropriately when you were advised that [Client A], a client with a history of congestive heart failure and atherosclerotic heart disease, was experiencing nausea and/or “dry heaves”;

b) failed to recognize the signs and symptoms of myocardial infarction in [Client A], a client with a history of congestive heart failure and atherosclerotic heart disease;

c) failed to ensure that [Client A] was attended while in the washroom, in accordance with [Client A]’s care plan;

d) failed to assess [Client A] at the commencement of your shift in circumstances where you had been advised that [Client A] had been feeling unwell that day;

e) failed to document your assessment of [Client A] at or around the commencement of your shift;

f) refused and/or denied the administration of Gravol to [Client A], when [Client A] was experiencing nausea and/or “dry heaves”, on the basis that you required evidence of vomit in order to do so;

g) failed to advise other staff that you were taking a break with the result that staff were not aware that you were on a break when an urgent situation involving [Client A] presented;

h) failed, when the incident involving [Client A] was being discussed with you by [ ] the Assistant Director of Care, to acknowledge that your conduct and actions on January 25, 2010 may have contributed to the incident involving [Client A] and, in particular, suggested that you wouldn’t have done anything differently; and/or

i) made a comment to your nursing colleague, [ ], in the context of a discussion of your role in the incident involving [Client A] on or about January 25, 2010, that you hoped she was “prepared to fly solo for the next couple of days”, or used words to that effect, and/or then called in sick for your next two shifts.

3. You are incompetent, as that term is defined by subsection 52(1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that your professional care of [Client A] displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that you are unfit to continue to practise or that your practice should be restricted and, in particular, on or about January 25, 2010, you:

a) failed to respond appropriately when you were advised that [Client A], a client with a history of congestive heart failure and atherosclerotic heart disease, was experiencing nausea and/or “dry heaves”;

b) failed to recognize the signs and symptoms of myocardial infarction in [Client A], a client with a history of congestive heart failure and atherosclerotic heart disease;

c) failed to ensure that [Client A] was attended while in the washroom, in accordance with [Client A]’s care plan;

d) failed to assess [Client A] at the commencement of your shift in circumstances where you had been advised that [Client A] had been feeling unwell that day;

e) failed to document your assessment of [Client A] at or around the commencement of your shift; and/or

f) refused and/or denied the administration of Gravol to [Client A], when [Client A] was experiencing nausea and/or “dry heaves”, on the basis that you required evidence of vomit in order to do so.

Counsel for the College advised the panel that the allegations set out in paragraphs 1(e), 2(e) and 3(e) of the Notice of Hearing were in the alternative to allegations set out in paragraphs 1(d), 2(d) and 3(d). In other words, [ ] if the panel found that the Member failed to assess [Client A], the College would not ask for a finding that the Member failed to document her assessment of [Client A] and would instead seek to withdraw those allegations. If, however, the panel did not find that the Member failed to assess [Client A], then the College would seek a finding that the Member failed to document her assessment of [Client A].

Member’s Plea

Given that the Member was neither present nor represented, she 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

Immediately prior to the commencement of this hearing, and with the consent of both parties [ ], this panel heard and determined different allegations of professional misconduct regarding the same Member. At the outset of this hearing, ILC advised that the panel should beware of “propensity reasoning”. That is, the panel should be vigilant to ensure that no members of the panel assumed that just because the Member had been found guilty of professional misconduct with respect to the first hearing, that the Member was more likely to be guilty of professional misconduct with respect to the matters at issue in this hearing. The panel kept this instruction clearly in mind. In determining whether these allegations had been proven, the panel did not refer to or rely upon any of the evidence or findings from the first hearing.

The Member was a registered practical nurse (“RPN”) at [the Facility,] a long term care facility, from early 2009 until shortly after the incident on January 25, 2010, when her employment was terminated for cause relating to the matters at issue in this hearing.

[The Facility] houses [ ] residents on two wings. Each wing of this facility has a registered staff member assigned to it during the day and evening shift. On the evening of January 25, 2010, the Member was one of those registered staff members.

Shortly after commencing her shift, the Member was told by [the health care aide (HCA)] that [Client A] was “dry heaving” in her bathroom while sitting in her wheelchair. The Member told [the HCA] that [Client A] would be fine and just to leave her. [Client A]’s chart and care plan both stated the she had a history of congestive heart failure and atherosclerotic heart disease and should not be left unattended in the washroom.

[The HCA] asked the Member if [Client A] could have gravol for her nausea. The Member asked [the HCA] if there was any evidence of vomit. When told no, the Member told [the HCA] that gravol could only be given if the client had actually vomited. The medical directives for [Client A] clearly stated that she could have gravol for nausea and/or vomiting.

There were no medications administered to this resident or assessments done according to [Client A]’s chart.

At approximately 4:00 pm, [Client B] went to the front desk to the unit clerk [ ] to state that her roommate [Client A] needed help. The Member was the nurse assigned to the floor at the time, but could not be found. Two other registered staff members, [the RPN and the RN], went to assist [Client A]. Neither [the RPN nor the RN] knew where the Member was. When they attended [Client A’]s room, they found her lying on her side, in a pool of blood with multiple skin tears, and an obvious head injury. [Client A] was unresponsive. 911 was called and [Client A] was transported to the hospital where she was pronounced dead.

The allegations against the Member relating to this incident include contravention of the standards of practice of the profession, disgraceful, dishonourable and unprofessional conduct, and incompetence.

The panel found that the Member committed acts of professional misconduct and was deemed to be incompetent with regard to the treatment of [Client A] on January 25, 2010. Her conduct would reasonably be regarded by members of the profession as dishonourable and unprofessional.

The Evidence

Allegation 1(a), (b), (c), (d), (e), (f); 2(a), (b), (c), (d), (e), (f); 3(a), (b), (c), (d), (e), (f)

The Member was working the evening shift (2:30 pm-10:30 pm) at [the Facility] on January 25, 2010. This facility had a RPN Routine for the evening shift [ ], which set out the duties, expectations, and responsibilities for the shift. At the commencement of her shift (approximately 2:45 pm), the Member was expected to listen to a report from the day staff and do a “resident check”, which meant “check on condition (sick, falls, palliative, etc).”

Witnesses [the RPN, the RN, the RN/administrator/director of care (DOC) at the Facility, and the assistant director of care (ADOC) at the Facility,] all testified that the registered staff would check on the condition of all residents near the commencement of the shift. [The RPN] stated that a typical shift started with a walk about to see where all the residents were, what they are doing and assessing anyone who was sick. If a resident was ill, the nurse was expected to do an assessment on that resident, including vital signs as stated by [the RPN].

According to [Client A]’s medical records [,] her diagnoses were congestive heart failure, chronic obstructive pulmonary disease, and atherosclerotic heart disease. [Client A]’s care plan specifically states that she should have one-person constant supervision for safety while toileting. According to [Client A]’s medical directives, she had an order from a physician which reads “Gravol 50mg, p.o. or gravol 100mg supp or q4-6h prn for nausea and/or vomiting (no blood)”.

[The DOC, ADOC, RPN and RN] testified that all registered staff were expected to be familiar with each resident’s care plan, their diagnoses, and needs. The RPN Routine [ ] states that a daily requirement “is to work on care plans, quarterlies, assessments, and required documentation.”

On January 25, 2010, the day shift nurse [ ] charted at 2:49 pm in the progress note that [Client A] had a raspy voice and non-productive cough, she was isolated to her room, would take clear fluids only and refused solid food. Her temperature was 37.0

[The HCA], a Health Care Aide (HCA) for 16 years, testified that she responded to a call bell in [Client A]’s room at approximately 3:00 pm. [Client A] was in her wheelchair, leaning over the sink “retching”. [The HCA] testified that she reported this to the Member and asked her if [Client A] could have gravol. The Member asked [the HCA] if there was any evidence of vomit. When told no, the Member stated that gravol could only be given if there was evidence of vomit. The Member advised [the HCA] to leave [Client A] be and “let her do her own thing.”

[The DOC] testified that the expectation was that shift report would cover every resident with particular attention or detail to residents who are unwell. [The day nurse]’s charting referenced [Client A]’s symptoms during the day shift. However, there was no documentation that an assessment was done by the Member during this shift prior to the incident. [The DOC and ADOC] both testified that they told the Member during this shift to thoroughly document all interactions with [Client A] that took place. The only documentation completed by the Member (after being instructed to so by her Director of Care) was an occurrence report regarding [Client A] being found in the bathroom. [The] assistant director of care testified that after arriving at the facility to investigate the incident, she and [the DOC] stayed at the facility to allow the nurses time to complete their documentation.

[The DOC] testified that her concerns about the Member were that she did not reassess the resident, she refused to give medication, she left the floor without reporting off, she did not take any responsibility for the incident, and she had appeared to have zero insight. [The DOC] testified that the Member said she believed [Client A] was unwell because she had partied too hard at a wedding two days previously. This statement was verified by [the ADOC], who testified that the Member told her that she did not give the gravol because [Client A] was “hung-over” from a wedding on Saturday.

[The expert] was qualified as an expert witness by the panel in knowledge, skill and [judgment] with respect to RPNs working in a long-term care facility. She gave an opinion that included the following:

• With the cardiac issues [Client A] had, the Member should have been “tweaked” to assess for other signs and symptoms related to a cardiac event, especially nausea. She testified that a head-to-toe assessment should have been completed on [Client A] including vital signs and 02 saturations, and that [Client A] should have been questioned on other possible symptoms.

• It was the opinion of [the expert] that the signs and symptoms of a myocardial infarct are a basic nursing skill. The Member’s failure to assess and recognize these symptoms demonstrates a lack of knowledge, skill and [judgment] and a lack of empathy and a disregard for the welfare of the Resident and contravenes the Therapeutic Nurse-Client Relationship Standard.

• It was well documented in the care plan [ ] that this resident was not to be left unattended in the washroom. The Member should have sent the HCA back into [Client A]’s room. Her failure to do so shows a lack of basic leadership skills required in the RPN role, and the gap in her [judgment] and knowledge is profound.

• Despite the medical directive in [Client A]’s chart, when advised that [Client A] was “retching”, the Member refused to administer gravol without evidence of vomiting. The expert witness testified that the dispensing of gravol is a basic nursing intervention in circumstances such as this. She noted that the chart showed this resident hadn’t eaten all day and may not have had anything in her stomach to vomit. She testified that the general public recognize gravol as a medication for nausea, and this was also in the resident’s medical directives. She told the panel that by denying [Client A] the gravol, the Member showed a severe lack of knowledge, skill and [judgment] and was in breach of the Therapeutic Nurse-Client Relationship. On its own, this shows the Member’s incompetence.

Allegation 2(g)

The RPN evening routine [ ] states that the RPN on duty will “Coordinate with RN for dining room supervision and breaks”. [The RPN, RN, DOC and ADOC] all testified that this routine was common everyday practi[c]e and all staff were required to be familiar with this schedule. They also testified that this routine was shown to all new staff and was part of the orientation.

At approximately 4:00 pm on January 25, 2010, [Client B] approached [ ] (a unit clerk), stating that her roommate [Client A] needed assistance. [The unit clerk] testified that she went to find a nurse. The Member was the nurse scheduled for this wing but she was not on the floor. [The unit clerk] paged for the HCAs to go to [Client A]’s room. The page went unanswered. [The RPN and the RN] attended to [Client A]. [The unit clerk] estimates she spent two to five minutes looking for the Member. Neither [the RPN nor the RN] had been advised by the Member that she was leaving her floor. The Member was finally located by [the RPN] in the break room.

[The DOC] testified that it was an expectation that staff would always have a registered staff person on the floor. [The RN] testified that the Member “did not report off to me”. [The RN] was surprised the Member was not on the floor and stated she “would have responded sooner” to [Client A] if she had known the Member was not on the floor at the time.

Allegation 2(h)

[The] assistant director of care investigated the incident involving [Client A]. During this investigation, she interviewed the Member. The Member told [the ADOC] that during the shift, [Client A] was retching because she was “hung-over” from being at a wedding on the weekend. The Member stated that she had not given the gravol to [Client A] as she had not vomited and therefore she could not administer it. [The ADOC] reviewed the care plan for [Client A] with the Member to show her the documentation that [Client A] was not to be left unattended in the bathroom. The Member responded that she checked in on the resident but left her in the bathroom because “she was fine”. [The ADOC] reviewed with the Member the use for gravol to relieve nausea. The Member maintained that you can only give gravol if there is evidence of vomit, despite being shown directives to the contrary. The Member again stated to [the ADOC], “She wasn’t throwing up, why would I treat nausea?” [The ADOC] stated the Member was very reluctant to take any ownership of what happened. Throughout the investigation, the Member maintained that she would not have done anything different.

[The] expert witness testified that this behaviour by the Member shows a lack of insight and is very dangerous. The Member was not open to admitting that she made a mistake. Her behaviour is not self-reflective and [the expert] would be very concerned about repetition of behaviour.

Allegation 2(j)

After the incident involving [Client A], the facility underwent a debriefing. All staff on duty on January 25, 2010, were interviewed. [The RN] testified that following the debriefing session, she said to the Member that they were all “in the hot seat”, to which the Member responded “if we get in trouble, be prepared to fly solo, I’m not coming in”. [The RN] told the panel that the Member proceeded to call in sick for her next two shifts.

Final Submissions

College Counsel submitted that the allegations fit into three categories:

1. That the Member contravened or failed to meet the standards of practi[c]e of :the profession;

2. That the conduct of the Member would reasonably be regarded by members of the profession to be disgraceful, dishonourable and/or unprofessional; and

3. That the Member is incompetent and demonstrates a lack of knowledge, skill or [judgment] and is unfit to practise or her practice should be restricted.

College Counsel submitted that [the RN, the RPN and the HCA] all testified that January 25, 2010, was an ordinary day up until the time of the incident. Therefore, there was no reason for the Member not to have assessed [Client A] at the start of her shift. The expert witness testified that it is recognized in the profession that if an act is not documented, then it is deemed not to have occurred.

College Counsel submitted that an allegation regarding incompetence is rare at the College and that there are three requirements for an incompetence finding:

1. the incompetence must be clinical;

2. the incompetence must relate to a deficiency in knowledge, skill or [judgment]; and

3. the incompetence must be sufficiently serious. The incompetence must involve a fundamental or basic error suggesting that the practitioner cannot be trusted with the care of [clients] in at least some circumstances.

Counsel submitted that the College had established on a balance of probabilities that the conduct occurred as described and amounts to a breach of the standards. Such conduct is also dishonourable and unprofessional, and sufficient to warrant a finding of incompetence due to the Member’s profound lack of knowledge, skill and [judgment].

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), (d), and (f) and 2 (a), (b), (c), (d), (f), (g), (h), (i) of the Notice of Hearing. With respect to allegation 2, the panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

As to allegation 3, the panel finds the Member to be incompetent in the professional care of [Client A] and her lack of knowledge, skill and [judgment] of a nature or to an extent that demonstrates that the Member is unfit to continue to practise or that her practi[c]e should be restricted.

The panel permits the College to withdraw allegations 1(e), 2(e) and 3(e). Since the panel found that the Member failed to assess [Client A] at the commencement of her shift, the alternative allegation that the Member failed to document her assessment of [Client A] was not relevant.

Reasons for Decision

The panel recognized that the burden of proof was on the College to prove the allegations against the Member on the basis of clear, cogent and convincing evidence. The evidence led met that standard.

The credibility of each witness was assessed by the panel using the criteria set out in Pitts v. Ontario (Ministry of Community & Social Services, Director of Family Benefits Branch) (1985), 1985 2053 (ON HCJ), 51 O.R. (2d) 302 (Div. Ct.). The panel determined that the evidence provided by [the RPN, the RN, the HCA, the unit clerk, the DOC and the ADOC] was clear, cogent, convincing, and consistent both internally and with other evidence. The panel found all witnesses to be credible and to give reliable evidence.

[The] expert witness was qualified by the panel as an expert in the knowledge, skill and judgment of the RPN in a long-term care facility. Her opinion was objective, reasonable, impartial and substantiated by the evidence. The panel found her to be credible and accepted her opinion evidence

The panel found that the Member’s conduct was unprofessional and dishonourable as the Member’s conduct put the residents’ health at risk and the Member did not accept any accountability for her actions.

The panel found that the Member’s lack of knowledge, skill and judgment with respect to these matters demonstrates her incompetence.

Penalty Submissions

College counsel submitted that the goals of any penalty order are to provide specific deterrence of the Member, general deterrence to the membership and remediation of the Member. Further, the penalty should promote public confidence in the profession and assure colleagues of the College’s ability to self-regulate and protect the public. To achieve these goals, the College is seeking revocation of the Member’s certificate of registration.

The College recognizes that this is the most significant order it can ask for, but submits that this is the most appropriate order in the circumstances for protection of the public. This is not the first time that concerns about this Member have come to the College’s attention. Concerns included medication administration errors and lack of knowledge related to basic nursing skill. College Counsel submitted that there are also concerns regarding the Member’s governability.

College Counsel asked the panel to consider the findings of professional misconduct made against the Member by this same panel on November 7, 2011. On the one hand, the Member has not had an opportunity to take remedial steps following those findings. However, those findings arose from the Member’s failure to remediate as directed by the College’s Quality Assurance Committee (QAC). The Member was directed by the QAC to complete a medication administration course. She was given ample time to complete this, but did not comply and was eventually referred to the Discipline Committee. Counsel asked the panel to consider this fact when determining whether this Member took the opportunity to remediate herself before these incidents occurred. She also asked the panel to consider the fact that the Member did not participate in this proceeding. All together, this casts serious doubt on the Member’s ability to be remediated.

College Counsel stated that in these circumstances, the main focus of the penalty should not be remediation. It should be public protection. This Member has issues with even the most basic level of practi[c]e, including her understanding of medical directives and her knowledge of medication administration for gravol. She has serious deficits in her knowledge and assessment skills. The knowledge that this Member is lacking is at the most basic level. These are things nurses should know right out of school.

College Counsel submitted that this Member’s conduct shows a serious lack of [judgment] and this cannot be remediated. This Member’s past conduct has shown that she is not eager or willing to learn or remediate despite past terms, conditions and limitations put on her certificate of registration for a failure to cooperate with the direction of the QAC.

In failing to attend two disciplinary hearings of her regulatory body and not cooperating with the QAC‘s directions, the Member has shown that she is ungovernable.

Being a member of this College is a privilege, not a right. It comes with responsibility. Nurses must be accountable to the profession, their colleagues, their clients, themselves and their regulatory body. This Member is a danger to the public. Revocation is the only answer; she doesn’t even know what she doesn’t know. When told she has made a mistake, she won’t address it, and [she] acted vindictively by calling in sick for two shifts.

College Counsel submitted that “the Member’s conduct, as set out in the evidence you heard today, as related to your findings of fact and your findings of misconduct, from the previous hearing, suggests that she is not eager and willing to learn, in fact quite to the contrary.”

The College’s position was that in this case, revocation is not only warranted and appropriate but in fact is necessary to protect the public.

Penalty Decision

The panel hereby directs the Executive Director to revoke the Member’s certificate of [registration].

Reasons for Penalty Decision

The panel concluded that revocation is the only appropriate penalty to ensure the protection of the public. A nurse who is unwilling to be remediated and lacks the required knowledge, skill and [judgment] that a nurse should possess puts the public in danger. This penalty provides for both specific and general deterrence and will preserve the public’s trust in self-regulating professions.

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

Dennis Curry, RN

Samantha Diceman, RPN

Linda Bracken, Public Member

Debra Mattina, Public Member