College of Nurses of Ontario v. Susan Jane Daines, 2013 CanLII 93844

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Debra Mattina, Public Member Chairperson

Grace Fox, NP Member Tammy Hedge, RPN Member Megan Sloan, RPN Member

Mary MacMillan-Gilkinson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) SHANE SMITH for

) College of Nurses of Ontario

• and - )

SUSAN JANE DAINES ) NO ONE PRESENT for

Registration No. HG02573 ) Susan Jane Daines

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: November 18 & 19, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on November 18 and 19, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

As Susan Daines (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was not in attendance and was not represented.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on August 15, 2013. The panel was satisfied that the Member had received adequate notice of the time, place, date and nature of the hearing, and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated August 15, 2013, are as follows.

IT IS ALLEGED THAT:

1. You have committed an act or acts of professional misconduct as provided by sub-section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.1 of Ontario Regulation 799/93 in that you contravened a standard of practice of the profession and/or failed to meet the standard of practice of the profession in that, on or about February 22, 2009, and in subsequent investigations into the events which occurred at that time, you:

a) physically, verbally and emotionally abused [the Resident];

b) disregarded the health and well-being of [the Resident]; and/or

c) were not truthful about your conduct and actions towards [the Resident].

And further, that in seeking employment in or about 2009 or 2010, you:

d) prepared, issued, and/or distributed falsified documents in the form of a reference letter;

e) engaged in or facilitated the impersonation of another individual; and/or

f) were not truthful about your conduct and actions in respect of your falsification of documents and/or in respect of engaging or facilitating the impersonation of another individual.

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 1.7 of Ontario Regulation 799/93, in that, on or about February 22, 2009, you abused [the Resident] when you:

a) threw milk and/or other liquids on her; and/or

b) acted in a disrespectful and demeaning manner towards [the Resident] by your actions, including your comments and laughter.

3. 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 1.15 of Ontario Regulation 799/93, in seeking employment in or about 2009 or 2010, when you:

a) prepared and/or issued a false and/or misleading document in the form of a reference letter.

4. 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, on or about February 22, 2009, you engaged in conduct or performed acts that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and, in particular, you:

a) physically, verbally and/or emotionally abused [the Resident].

And further, that in seeking employment in or about 2009 or 2010, you:

b) prepared, issued, and/or distributed falsified documents in the form of a reference letter; and/or

c) engaged in or facilitated the impersonation of another individual.

Member’s Plea

Given that the Member was not 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

The evidence called by the College established on the balance of probabilities that the Member was a Registered Practical Nurse who worked at [Facility A] in February of 2009. After lunch on February 22, the Member approached a resident who was known to be aggressive and resistant to care and attempted to remove her from the dining room, as was the practice at this particular time of day. The resident [ ] became upset and threw a glass of liquid at the Member. In response, the Member picked up a glass of milk and threw it in [the Resident]’s face and on her head. The Member asked [the Resident], “How do you like that?” and laughed. When approached by a co-worker who witnessed the event, the Member responded with words to the effect of, “Come on, you know I was just kidding”. The Member was subsequently terminated from her position.

Shortly thereafter the Member applied for a job at another facility. She was interviewed for the position, and asked for references. She provided the facility with a letter of reference from [Facility A], but stated that the person giving the reference was off due to knee surgery and would have to be contacted at the cellular number listed on the bottom of the letter. The person conducting the interview did call the number and spoke to someone on the telephone. She also called [Facility A] directly. She was surprised to find that the person providing the reference was not off on leave, and in fact had not issued any such reference to the Member.

Based on these facts, the legal questions are as follows:

a) Did the Member commit an act of professional misconduct by engaging in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable, and/or unprofessional?

b) Did the Member commit physical, emotional and/or mental abuse against a client?

c) Did the Member falsify a document?

d) Did the Member fail to meet the standards of practice of the profession?

The Panel considered evidence from six witnesses and thirteen exhibits. The Panel found the Member committed professional misconduct in respect of all allegations in the Notice of Hearing. As to allegation #4, the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

The Evidence

Falsification of documents

[Witness #1]

[Witness #1] testified that she was the Director of Care at [Facility B], where the Member submitted a resume in application for a position as a Registered Practical Nurse (RPN) in August of 2009. The Member was brought in for an interview and subsequently provided a letter of reference to [Witness #1]. The reference letter was purportedly written by [the Director of Nursing (DON)] at [Facility A]. The witness stated she thought it was odd that the letter was worded such as it was, and that the Member advised [Witness #1] that in order to contact [the DON] about the reference, she would have to call the cellular number listed on the bottom of the letter, as [the DON] was staying with her son after having knee surgery and her hours in office were very limited.

[Witness #1] did call the number on the letter and spoke with someone who sounded suspiciously like the Member. She also called [Facility A] and asked to speak to [the DON] and was shocked when [the DON] was available. Upon further discussion, [Witness #1] discovered that the Member did not in fact have permission to use [the DON] as a reference. [The DON] then asked for a copy of the letter to be faxed to her office. [Witness #1] was unable to recall whether she called the number on the reference letter or the office of [the DON] first, but was certain she called both numbers and spoke to two separate individuals. The Member as a result was not hired in this facility.

[Witness #2]

[Witness #2] is the current Director of Nursing [(DON)] at [Facility A]. She knew the Member, who was employed at [Facility A] as a full time RPN. [The DON] testified she was contacted by the Director of Care of another facility ([Witness #1]) about a letter of reference [the DON] had apparently written for the Member. [The DON] requested that this letter be faxed over to her office, as it sounded like a letter that she never would have written.

In speaking with [Witness #1], [the DON] was made aware that the Member had interviewed for a position at [Facility B]. [The DON] was presented with a copy of the supposed reference letter [ ] and pointed out a few things that stood out to her. [The DON]’s name was spelled incorrectly, the telephone number was incorrect, the signature did not belong to her, and most of all this was a letter of reference she would never issue in regards to the Member. [The DON] stated that if she had to write a letter of reference in regards to the Member, “It would not be glowing.”

After receiving the letter from [Witness #1], [the DON] called the police, as a letter such as this could be damaging to her reputation. She also contacted human resources. It was discovered that the telephone number on the phony reference letter matched the telephone number in the facility’s database for the Member. [The DON] then went on to recall the circumstances surrounding the Member’s termination from the facility. Although she was not directly involved in the termination itself, [the DON] did interview two other witnesses during the facility’s investigation ([ ], both employees of the facility).

Mental, physical and emotional abuse

[Witness #3]

[Witness #3] is currently an RPN at another home. At the time of the allegations she was working at [Facility A] as a personal care provider (PCP), having decided to “take a break” from working as an RPN. [Witness #3] recalled for the Panel the day in question regarding the incident with [the Resident].

[The Resident] was an elderly resident with dementia who could sometimes be resistant to care. The incident occurred in the dining room at approximately 12:45 on February 22, 2009. The residents had just finished lunch and were being assisted out of the dining room. [The Resident] was approached by a PCP, and became agitated. The Member then entered the dining room and approached [the Resident] in a firm manner. [The Resident] responded by throwing milk from a glass at the Member. The Member then grabbed a glass of milk and threw the milk at [the Resident]’s face.

[Witness #3] testified that she reacted to the Member’s actions by stating, “You can’t do that.” The Member replied with, “You know I was just kidding” or words to that effect. [Witness #3] also testified that the Member shrugged and turned to [the Resident] and asked her “How do you like it?” [Witness #3] was concerned because there was a celebration taking place in the residence, in another room, and she worried how the visitors would perceive this situation.

[Witness #3] recalled there were two other witnesses in the room at the time of the incident. [Witness #3] wrote a letter about the incident and gave it to the General Manager of the facility [].

[Witness #4]

[Witness #4] works as a PCP at [Facility A] and has done so for the last ten years. She testified that she was able to recall the incident between the Member and [the Resident] on February 22, 2009. At approximately 12:45, after the meal service had ended, [the Resident] didn’t want to leave the dining room. The Member then approached [the Resident] and said, “Let’s go, time to get up”. [The Resident] became upset and threw a glass of juice on the Member. She testified that the Member picked up a glass with some milk in it and poured it over [the Resident]’s head. [Witness #4] stated that the Member then asked [the Resident], “How do you like that?” and laughed.

[Witness #4] was then shown the interview notes from February 27, 2009, and confirmed her signature on the note. The only discrepancy between the notes and [Witness #4]’s testimony was that she testified that [the Resident] threw cranberry juice on the Member, and in the note she stated it was “a liquid?”

[Witness #5]

While [Witness #5] testified that she wasn’t in the room for the entire incident on February 22, 2009, she did re-enter the room to find [the Resident] with milk running down her face and in her hair. She heard [Witness #3] tell the Member, “You can’t do that”.

[Witness #5] reported the incident to the General Manager of the facility that evening after her shift ended. She was later interviewed and the notes from that interview were entered as an exhibit [ ].

The Member’s Response

College counsel introduced into evidence a response letter from the Member in which she gives her version of events and tries to explain the discrepancies between her version and what the witnesses portrayed in their interviews with the facility [ ]. The Member wrote that she slipped on some spilled liquid on the floor, which caused the contents of the glass of milk to land on [the Resident]. The witnesses all fabricated the report to the General Manager because after slipping, the Member threatened to write the witnesses up for allowing the liquid to be on the floor, as [the Resident] has been known to spill glasses and recently almost had a fall after slipping in some liquid. The PCPs were responsible for cleaning it up.

Standards of Practice of the Profession and Abuse

The College tendered [ ] an expert witness on the standards of practice and the definition of mental, physical and emotional abuse. After a review of [her] CV, the Panel accepted her as an expert in the areas specified.

[The expert] testified that in her opinion, the Member’s behaviour amounted to abuse as specified in the Therapeutic Nurse Client Relationship Standards (with specific reference to pages 4, 6 and 9 (g) and (i)). The Member appears to have thrown the milk in retaliation, and this key element reflects abuse. This behaviour is humiliating and disrespectful.

As to the Member’s version of events, [the expert] opined that the Member is trying to excuse herself. If this is truly what the Member said, then it was [the expert]’s opinion that the Member was in breach of the published Standard on Ethics by not being honest and acting with integrity.

When questioned about the falsification of a letter of reference, [the expert] testified that the Member breached the published Standard on Ethics (especially at page 6) in her elaborate attempt to deceive. It is important for the profession and the safety of the public that nurses act with honesty and professionalism at all times. The Member’s conduct with respect to [the Resident] would also be a breach of this standard of practice of the profession. It is the nurse’s professional responsibility to not retaliate against a client, whatever the issue is.

Final Submissions

College counsel submitted that the burden of proof sits on the College, and the standard is the balance of probabilities. It is the College’s obligation to prove that the allegations set out in the Notice of Hearing occurred. The College submits that the evidence given in this case meets the standard and the allegations have been proven.

There were two distinct incidents. First, the falsification of a document, for which there were two witnesses, one of whom was the victim. The Member falsified a letter of reference, as well as put forward the purported writer’s name as a reference during an interview. The number provided on the letter was the same number found on the [Facility A] employee information sheet for the Member. In her written response, the Member admits to writing the reference letter, claiming however that there was an error when she was transferring files and somehow this reference letter was created.

As to the incident of abuse, there were three witnesses, two of whom were in the room during the entire incident. All three witnesses testified to similar versions. The evidence given is clear and consistent.

Counsel submitted that the events both separately and as a whole amount to disgraceful, dishonourable and unprofessional behaviour. There are elements of deceit, moral failing, and physical and emotional abuse. The evidence presented was clear, consistent and uncontested.

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 1a), b), c), d), e), f), 2 a), b), 3, and 4 a), b), c), of the Notice of Hearing. As to allegation #4, the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional by falsifying a letter of reference and physically and mentally abusing a client by throwing milk on her head and in her face.

Reasons for Decision

The panel considered all the evidence and testimony and concluded that the evidence was clear, cogent and convincing. The panel found the testimony of all five witnesses to the two separate events to be forthright and credible. The opinion of [the expert] was accepted. It was supported by the facts and the published Standards and was reasonable in all the circumstances.

With respect to allegation number 1, the panel finds that the Member’s conduct, during and after the incident was reproachable. The Member knew what she was doing when she reacted to the liquid-throwing incident, as well as when she was falsifying the letter of reference after she was terminated from [Facility A] due to her conduct with client [the Resident].

The Member ought to have known that her reaction, coupled with her laughter and comments after throwing milk on [the Resident], amounted to abuse. The Member had completed an abuse questionnaire as required not long before the incident.

With regards to the letter of reference, the Member knowingly put her own cellular number on the letter in place of [the DON]’s office number and concocted a story about surgery with the intent of taking the reference call herself to paint herself in the most positive light possible and avoid her abusive behaviour from being discovered by a potential employer.

The panel finds that all of these incidents, combined with the Member’s version of events in which the Member blames everyone else around her for her actions, is not becoming of a nursing professional, and the Member’s conduct would be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Penalty

Penalty Submissions

College Counsel requested an order that the Member receive an oral reprimand, a five month suspension, two meetings with a nursing expert within six months of the Member obtaining an active certificate of registration, and a twenty-four month period of employer notification. As the Member currently does not have an active registration with the College, most aspects of the penalty would be imposed upon the Member upon her obtaining an active certificate of registration.

Counsel submitted the proposed penalty is reasonable and appropriate under the circumstances in relation to the findings and past decisions from this College in similar circumstances. The Member’s conduct was serious and significant, in particular, abusing [the Resident] and the deceit surrounding not only her falsifying a reference letter, but also in her written response regarding these incidents.

There is an absence of mitigating factors in this instance. One could consider that the abuse could have arisen from a momentary reaction to a workplace incident, where circumstances can sometimes contribute, but this case does not meet this level. This involved an elderly client with decreased cognition, all staff at the facility were aware that [the Resident] could be resistant to care, the incident took place in an area with an abundance of half empty glasses and [the Resident]’s actions were not unpredicted. There was no element of self-protection to throwing a liquid on a client’s head. In fact, the action was purely in retribution for the difficulty [the Resident] was giving the Member.

The Member denied the events in her written statement, and her response was ultimately to resign from the College. Counsel submitted, therefore, there were no real mitigating factors.

Aggravating factors were that the victim of abuse was elderly and vulnerable, and the abuse involved an abuse of power. The Member belittled [the Resident]. The Member’s conduct in regards to the letter was premeditated and intentional. This conduct is indicative of a person who shows little integrity.

The Member has had two previous encounters with the College: a 2001 decision [ ] from the Complaints Committee which resulted in a letter of caution [and oral caution] given to the Member in relation to abuse of elderly clients and coworkers; and in 2007 a letter of concern was issued in relation to falsification of clients’ blood glucose records.

Counsel presented the panel with three cases to consider as precedents, all decisions of past Discipline hearings at the College: CNO v. J. Wallace (Discipline Committee, 2004), which involved the misrepresentation of credentials; CNO v. A. Baldin (Discipline Committee, 2010), where a nurse poured water over a client’s head; and CNO v. C. Holmgren, (Discipline Committee, 2013).

College counsel submitted that the present case involves abuse and deceit. A five month suspension falls squarely in the range of the other cases presented. The five month suspension will serve as a general and specific deterrent. The nature and elements of the College’s proposed penalty will alert other members of the profession to the seriousness of abuse and the falsification of documents. The meeting with the nursing expert and review of “One is One Too Many” will assist the Member with rehabilitation, and the employer notification provision will serve to protect the public, should the Member return to practice.

Penalty Decision

The panel makes the following Order as to penalty:

1. The Member is required to 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 five months. This suspension shall take effect from the date the Member obtains an active certificate of registration and returns to nursing practice and shall continue to run without interruption as long as the Member remains in the practising class.

3. In the event the Member obtains an active certificate of registration, 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 and within six months from the date the Member obtains an active certificate of registration and returns to nursing practice. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing 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. 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,

2. Therapeutic Nurse-Client Relationship.

iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

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

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 24 months from the date the Member obtains an active certificate of registration and returns to nursing practice, 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, and

3. 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 [delivered] by verifiable method of delivery, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel is satisfied that the penalty is appropriate and within the range of acceptable outcomes given the circumstances. Should the Member decide to return to practice, the penalty will remediate the Member before she is able to resume nursing duties, thereby serving to protect the public, coworkers and clients. The length of the suspension will serve as a general deterrent to the other members of the profession. The penalty in its entirety will serve as a specific deterrent should the Member return to practice.

I, Debra Mattina, Public Member, 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:

Grace Fox, NP

Tammy Hedge, RPN

Megan Sloan, RPN

Mary MacMillan-Gilkinson, Public Member