College of Nurses of Ontario v. Zarac, 2013 CanLII 90637

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Kim Jinkerson, RPN Chairperson Dennis Curry, RN Member Sandra Steele, RPN Member Gino Cucchi Public Member Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

• and - )

ANGELIKA M. ZARAC ) NO REPRESENTATION for Registration No. GD08248 ) Angelika Zarac

) Heard: January 17, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on January 17, 2013 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 paragraph two of the Notice of Hearing dated November 9, 2012. The panel granted this request. The remaining allegations against Angelika M. Zarac (the “Member”) as stated in the Notice of Hearing dated November 9, 2012 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 subsection 1(1) of Ontario Regulation 799/93, in that you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

a. while employed as a registered practical nurse by [Facility A] in [ ], Ontario, you administered Voltaren, a nonsteroidal anti-inflammatory drug, to [Client A] which was not prescribed to the client on or about February 24, 2008;

b. while employed by [Facility B] in [ ], Ontario as a registered practical nurse, you placed a bed sheet tightly over [Client B] in an inappropriate and/or unsafe manner on or about January 1, 2010;

c. while employed as a registered practical nurse by [Facility B] in [ ], Ontario, you dressed [Client B] in hospital gowns in an inappropriate and/or unsafe manner on or about January 1, 2010;

d. while employed as a registered practical nurse by [Facility B] in [ ], Ontario, you provided toileting care and/or used an incontinence insert on [Client B] in an inappropriate and/or unsafe manner on or about January 1, 2010; and/or

e. while employed as a registered practical nurse by [Facility B] in [ ], Ontario, you removed a compact disc which contained photographs of wounds of [Client C] from the client’s chart and from [Facility B] on or about January 14, 2010; and/or

2. [withdrawn]

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(9) of Ontario Regulation 799/93, while employed as a registered practical nurse by [Facility B] in [ ], Ontario, you failed to obtain appropriate consent during your care of [Client B] on or about January 1, 2010, in that you

i. placed a bed sheet tightly over [Client B];

ii. dressed [Client B] in two hospital gowns; and/or

iii. used an incontinence insert on [Client B];

each for a therapeutic, preventative, palliative, diagnostic, cosmetic, or other health related purpose in a situation in which consent was required, without such consent;

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, you failed to keep records as required in that:

a. while employed as a registered practical nurse by [Facility A] in [ ], Ontario, you failed to document that you had administered Voltaren, a nonsteroidal anti-inflammatory drug, to [Client A], which was not prescribed to the client, on or about February 24, 2008; and/or

b. while employed as a registered practical nurse by [Facility B] in [ ], Ontario, on or about January 1, 2010, you failed to document that you had

i. placed a bed sheet tightly over [Client B];

ii. dressed [Client B] in two hospital gowns; and/or

iii. used an incontinence insert on [Client B]; and/or

5. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, while employed as a registered practical nurse by [Facility A] in [ ], Ontario and [Facility B] in [ ], Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional in that:

a. while employed by [Facility A] in [ ], Ontario as a registered practical nurse, you administered Voltaren, a nonsteroidal anti-inflammatory drug, to [Client A], which was not prescribed to the client, on or about February 24, 2008;

b. while employed as a registered practical nurse by [Facility B] in [ ], Ontario, you placed a bed sheet tightly over [Client B], in an inappropriate and/or unsafe manner on or about January 1, 2010;

c. while employed as a registered practical nurse by [Facility B] in [ ], Ontario, you dressed [Client B] in hospital gowns in an inappropriate and/or unsafe manner on or about January 1, 2010;

d. while employed as a registered practical nurse by [Facility B] in [ ], Ontario, you provided toileting care and/or used an incontinence insert on [Client B] in an inappropriate and/or unsafe manner on or about January 1, 2010; and/or

e. while employed as a registered practical nurse by [Facility B] in [ ], Ontario, you removed a compact disc which contained photographs of wounds of [Client C] from the client’s chart and from [Facility B] on or about January 14, 2010.

Member’s Plea

Angelika M Zarac admitted the allegations set out in paragraphs numbered 1a, b, c, d, e; 3 i, ii, iii; 4 a, b i, ii, iii; and 5 a, b, c, d, e 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. Angelika Zarac (the “Member”) received her nursing certificate [ ] in 1974.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) in 1974.

3. The Member was employed at [Facility A] in [ ] from November 20, 2007, until February 28, 2008.

4. The Member was employed at [Facility B] in [ ] from December 15, 2009, until January 14, 2010.

THE FACILITIES

A. [Facility A]

5. The Member worked as a casual RPN at [Facility A] and was the only registered staff on duty during the night shift. While working, she was considered the Charge Nurse.

6. [Facility A] was a long-term care facility [ ].

B. [Facility B]

7. [Facility B] was a sub-acute hospital staffed by Registered Nurses ("RNs") and RPNs.

8. The Member worked as an RPN in complex medical care with long-term clients.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

A. [Facility A]

1. Incident in respect of [Client A]

2. On February 23, 2008, the Member worked the night shift at [Facility A].

3. [Client A] was a resident who was experiencing shoulder pain at this time.

4. [Client A] approached the Member and told her that she was in pain due to inflammation in her shoulder.

5. [Client A] did not have a prescription for anti-inflammatory medication.

6. The Member administered Voltaren to [Client A] despite the fact [Client A] did not have a prescription for it. The dose of Voltaren was actually for another client.

7. The Member did not document administering Voltaren to [Client A].

8. The next day, [Client A] told other people about the "wonder drug" that the Member had given her.

9. If the Member were to testify, she would say that she intended to seek a doctor's order for the medication.

10. There was no documentation in [Client A]'s file to show that the Member took any steps to seek a doctor's order.

11. The Member was terminated as a result of this incident.

B. [Facility B]

1. Incident in respect of [Client B]

2. [Client B] had an acquired brain injury and was awake but not oriented and was not able to speak. He was known to be "a bit combative" and aggressive.

3. On January 1, 2010, the Member worked the 15:30 to 23:30 shift and was assigned to provide care to [Client B].

4. On January 2, 2010, at some time between midnight and 02:00, two RPNs entered [Client B]'s room while doing rounds. They found [Client B] in his bed with a sheet tied tightly over him. Each corner of the sheet was tied to the bed rail.

5. The Member tied the sheet over [Client B] in this manner during her shift.

6. When they removed the sheet, the RPNs found that [Client B] had been dressed in two hospital gowns: one in the normal fashion and the second, upside-down, with [Client B]’s legs through the arm holes. The straps of the gown were tied tightly around his torso.

7. The Member dressed [Client B] in this manner during her shift.

8. [Client B] also had an insert in his diaper that was not used in the proper way. The insert had a slit cut into it and [Client B]’s penis had been put through the slit. When this was discovered, [Client B]'s penis was bleeding and the wound had to be dressed.

9. The Member cut the slit into the insert and had put [Client B]’s penis through it during her shift.

10. The Member did not document that she had dressed and toileted [Client B] in the manner set out above, nor did she document that she had tied a bed sheet tightly over [Client B] The Member did not document any therapeutic rationale for her conduct in respect of [Client B] The Member did not provide a verbal report to other Centre staff of her decision to dress and toilet [Client B] in the manner set out above or to tie the bed sheet tightly over him.

11. If the Member were to testify, she would say that she tied the sheet over [Client B] and dressed him in two hospital gowns to prevent him from exposing himself. In addition, she would say that she "double diapered" [Client B] to "wick urine away" from his skin and that the bleeding was caused by self-injury.

12. Incident in respect of [Client C]

13. On January 14, 2010, the Member was assigned to provide care to [Client C], who had numerous wounds and dressings.

14. There was a compact disc ("CD") in [Client C]'s file that contained wound photographs taken by a medical photographer. The photographs included images of [Client C]'s skin folds and perineum area and the CD was labelled with [Client C]'s name and the date.

15. The Member took the CD home at the conclusion of her shift.

16. The Centre called the Member and asked her to return the CD. The Member said that she lived approximately 45 minutes away and that she would bring it back the next day.

17. The Member returned the CD the following day.

18. If the Member were testify, she would say that she received permission from an RN, [ ] to remove the CD from the Centre and that she intended to watch it to better learn how to care for [Client C]'s wounds. She would also say that she did not view the images on the CD.

19. If [the RN] were to testify, she would say that she did not give permission to the Member to remove the CD.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

36. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1, 3, 4 and 5 of the Notice of Hearing and in particular that her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 9 to 35 above.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs 1a, b, c, d, e; 3 i, ii, iii; 4 a, b i, ii, iii; and 5 a, b, c, d, e of the Notice of Hearing.

Reasons for Decision

The panel considered the Agreed Statement of Facts and admissions of the Member. The agreed facts clearly support the allegations that the Member failed to meet the standards of practice of the profession, failed to obtain consent when required to do so, failed to keep records as required, and acted in a manner that was disgraceful, dishonourable and unprofessional. The Member’s misconduct is serious. She administered medication without an order, inappropriately restrained a client, provided care in an inappropriate and/or unsafe manner, misappropriated personal health information and failed to document appropriately.

Penalty

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

1. Requiring the Member to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for two months. This suspension shall take effect from the date of this Order 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 meetings with a Nursing Expert (the “Expert”), at her own expense. The first meeting shall be within two months of the date of this Order and the remaining session shall be within six months of the date of the Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in self-regulation, and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven 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), and

2. The Therapeutic Nurse-Client Relationship (Revised 2006);

iv. Before the first meeting, the Member reviews the online publication The Circle of Care: Sharing Personal Information for Health-Care Purposes from the Privacy Commissioner of Ontario;

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

vi. 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;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that 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;

viii. 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 12 months from the date the Member’s suspension ends, the Member will notify her employers of the decision. To comply, the Member is required to:

(i) Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 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, once available;

(iii) Ensure that within 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 they received a copy of the required documents, and

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

3. 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

College counsel submitted that there are four elements to the proposed penalty:

1. An oral reprimand;

2. A two-month suspension;

3. Terms, limits and conditions including two meetings with a nursing expert; and

4. Notification to employers for 12 months

College counsel cited several mitigating factors, including the Member’s years of service with the College without issues and her motivation to help her clients. This motivation was demonstrated by the Member’s efforts to offer pain relief to a client and to maintain dignity. The Member attempted to improve herself as a nurse. The Member admitted her guilt, therefore preventing a lengthy contested hearing. The Member admitted to using poor judgment.

As to the aggravating factors, College counsel submitted that the Member’s conduct was intentional in each case and that there was a potential for harm. The Member’s conduct displayed disregard for her professional obligations and as well as a pattern of poor [judgment].

Penalty Decision

The panel accepts the Joint Submission as to Order and accordingly orders:

1. The Member shall appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for two months. This suspension shall take effect from the date of this Order 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 meetings with a Nursing Expert (the “Expert”), at her own expense. The first meeting shall be within two months of the date of this Order and the remaining session shall be within six months of the date of the Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in self-regulation, and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven 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), and

2. The Therapeutic Nurse-Client Relationship (Revised 2006);

iv. Before the first meeting, the Member reviews the online publication The Circle of Care: Sharing Personal Information for Health-Care Purposes from the Privacy Commissioner of Ontario;

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

vi. 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;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that 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;

viii. 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 12 months from the date the Member’s suspension ends, the Member will notify her employers of the decision. To comply, the Member is required to:

(i) Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 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, once available;

(iii) Ensure that within 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 they received a copy of the required documents, and

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

3. 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 is reasonable and in the public interest. 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 this penalty addresses the primary goals of specific and general deterrence and protection of the public, as well as rehabilitation of the Member.

I, Kim Jinkerson, 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

Sandra Steele, RPN

Gino Cucchi, Public Member

Abdul Patel, Public Member