College of Nurses of Ontario v. Lauzon, 2013 CanLII 93847

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Spencer Dickson, RN Chairperson

Grace Fox, NP Member Barbara Titley, RPN Member Catherine Egerton Public Member

Mary MacMillan-Gilkinson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

• and - )

RHONDA LAUZON ) NO REPRESENTATION for Registration No. 9620287 ) Rhonda Lauzon

) Heard: September 17, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on September 17, 2013, at the College of Nurses of Ontario (“the College”) at Toronto. Rhonda Lauzon (the “Member”) participated in the hearing via teleconference while the other participants attended in person at the College.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated September 17, 2013, 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 with respect to the following incidents:

a) on or about August 14, 2010, you communicated inappropriately with [ ] a family member of a client, by telephone, and in particular you called [the family member] “honey” or “hon” and/or said [ ] words to the effect that you and/or another nurse were too busy to call [her] back;

b) on or about the night of October 10 to 11, 2010, while providing care to a client, you took two photographs of the client without the client’s consent, and/or distributed photographs of the client to Person A (a nurse), and/or to Person B (an unregistered person), for purposes unrelated to the client’s care, and without the client’s consent;

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(7) of Ontario Regulation 799/93, in that you abused a client verbally, physically or emotionally, and in particular, on or about the night of October 10 to 11, 2010, while providing care to a client, you took two photographs of the client without the client’s consent, and/or distributed photographs of the client to Person A (a nurse), and/or to Person B (an unregistered person), for purposes unrelated to the client’s care, and without the client’s consent;

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(10) of Ontario Regulation 799/93, in that you gave information about a client to a person other than the client or his or her authorized representative without the consent of the client or his or her authorized representative and without being required or allowed by law, and in particular, on or about the night of October 10 to 11, 2010, while providing care to a client, you took two photographs of the client without the client’s consent, and/or distributed photographs of the client to Person A (a nurse), and/or to Person B (an unregistered person), for purposes unrelated to the client’s care, and without the client’s 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(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 of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:

a) on or about August 14, 2010, you communicated inappropriately with [ ] a family member of a client, by telephone, and in particular you called [her] “honey” or “hon” and/or said [ ] words to the effect that you and/or another nurse were too busy to call [her] back;

b) on or about the night of October 10 to 11, 2010, while providing care to a client, you took two photographs of the client without the client’s consent, and/or distributed photographs of the client to Person A (a nurse), and/or to Person B (an unregistered person), for purposes unrelated to the client’s care, and without the client’s consent.

Member’s Plea

The Member admitted to the allegations set out in paragraphs numbered 1(a), 1(b), 2, 3, 4(a) and 4(b) 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 admissions were 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. Rhonda Lauzon (the “Member”) obtained a diploma in nursing [ ] in 1996.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on July 12, 1996.

3. The Member was employed at [the Facility] from May 11, 2009, to November 12, 2010.

THE FACILITY

4. The [Facility] is located in [ ] Ontario.

5. It was a multi-site health service organization [ ].

6. The Member worked on the Intensive Care Unit (the “ICU”) as a part-time staff nurse on day, night and weekend shifts.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

A. Telephone Call with [Client’s Family Member]

7. [Client A was] in the ICU from August 2, 2010, to August 15, 2010. [She] was 84 years old at the time of her stay in the [Facility] and was admitted to the ICU with rapid atrial fibrillation and hypotension.

8. On August 14, 2010, [Client A’s daughter] called the ICU. She was returning a message that was left on her answering machine by [Facility] staff, asking her to call to discuss the use of soft restraints on her mother.

9. When [the daughter] called the ICU, she asked to speak with the nurse who was providing care to her mother. The phone was handed to the Member. [The daughter] asked the Member if she was the nurse providing care to her mother; the Member responded that she was not and that the nurse in question, [ ], was busy.

10. [The daughter] explained that she was returning a call about restraints and that she had some questions. The Member told [the daughter] she needed to come to the [Facility] the following day to sign permission forms for the restraints.

11. [The daughter] then asked the Member to have [her mother’s nurse] call her back. According to [the daughter]’s complaint, the Member responded by telling her to “Listen, Honey!” and saying words to the effect that [Client A’s nurse] was busy, would probably get sidetracked, and did not have time to call everyone back who calls the ICU. When [the daughter] protested the Member’s tone of voice, the Member added that she wanted to explain that they did not have time to call [the daughter] back. [The daughter] felt the Member was rude and unprofessional, and that her tone was dismissive and condescending.

12. If the Member were to testify, she would say that she did not refer to [the daughter] as “honey” but that she did call her “hon” in an attempt to calm her down. The Member would also say that she did not intentionally speak to [the daughter] in a condescending way, but wanted to encourage [the daughter] to call back if her call was not returned in a timely manner because things became busy in the ICU. Upon reflection, she understands how her words could be interpreted in a demeaning manner.

B. Taking Photos of [Client B]

13. [Client B] was admitted to the Hospital on October 7, 2010, with cellulitis of his right lower leg. [Client B] was morbidly obese.

14. On October 10-11, 2010, the Member worked the night shift on the ICU. The Member was assigned to provide care to client [Client B].

15. At some point during her shift, the Member took two photographs on her cell phone, one of herself in [Client B]’s room with her head in the foreground (wearing her mask) and [Client B]’s head visible in the background, and another of [Client B] lying in his hospital bed with his torso exposed. [Client B] appeared to be unconscious in both photos and on a ventilator. The first photo was accompanied by the caption: “See the monster that I have to deal with. Wtf:->.”

16. Another RN working on the ICU that night, [ ] (corresponding to “Person A” identified in the Notice of Hearing) saw what the Member was doing, and asked if she would send her the photos. The Member sent [Person A] the photos via text message. The Member told [Person A] she planned to send the photos to her boyfriend.

17. If the Member were to testify, she would say that she did take the photos in question, and sent them to [Person A], but that she did not share or distribute them to anyone else. The Member would further say that she now understands her actions were disrespectful and breached the client’s privacy.

18. [Person A] reported the incident to the [Facility] approximately one month later, on November 8, 2010. The Member admitted the incident and wrote an apology to [Client B] Her employment was terminated as a result of this incident. The [Facility] disclosed the incident to [Client B]’s family (his substitute decision makers) a short while after it was disclosed to them, and then to [Client B].

ADMISSIONS OF PROFESSIONAL MISCONDUCT

19. The Member admits that she committed the acts of professional misconduct, described above in paragraphs 7 to 18, and as alleged in the Notice of Hearing in paragraphs:

• 1(a) and (b), with respect to distributing photographs to Person A;

• 2, with respect to distributing photographs to Person A, and admits that the conduct in question constituted emotional abuse;

• 3, with respect to distributing photographs to Person A;

• 4(a) in that her conduct was unprofessional; and

• 4(b) in that her conduct was disgraceful, dishonourable and unprofessional with respect to distributing photographs to Person A.

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: 1(a), 1(b), 2 in that the Member emotionally abused a client, 3, 4(a) and 4 (b) of the Notice of Hearing in that she failed to meet the standards of practice of the profession. With respect to allegation 4 (a), the panel found the Member’s conduct was unprofessional. For allegation 4 (b), the panel found that the Member engaged in conduct that was disgraceful, dishonourable and unprofessional.

Reasons for Decision

The panel found that the allegations were clearly supported by the evidence contained in the Agreed Statement of Facts. The Member’s conduct was in both instances disrespectful and not consistent with her position as a nurse. Her conduct in relation to the incident involving the unconscious [client] was done for no excusable or definable reason and was a clear violation of the client’s trust.

The Member’s conduct in relation to paragraph 4(a) was found to be unprofessional in that the Member was found to have demonstrated a blatant disregard for her professional obligation to be respectful and compassionate in her interaction with her client’s family. With respect to 4(b), the panel found the Member’s conduct to be disgraceful, dishonourable and unprofessional. The Member emotionally abused a vulnerable client as well as violated the client’s trust. This was aggravated by the fact that the client was unconscious at the time of the incident and that the photo was captioned and shared.

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 requests 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 three months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

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 and within six months from the date this Order becomes final. 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. 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,

2. Therapeutic Nurse-Client Relationship, and

3. Confidentiality and Privacy - Personal Health Information

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

v. 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;

vi. 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;

vii. 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;

viii. 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;

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;

b) For a period of 12 months from the date this Order becomes final, 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. 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.

Penalty Submissions

College Counsel submitted that the proposed order met the three primary interests of protecting the public, preserving public confidence in the profession, and remediating the Member. The Member’s conduct falls at the serious end of the range of misconduct. This conduct has been found to be disgraceful, dishonourable and unprofessional and the Member has emotionally abused the client.

While no aggravating factors were identified other than the serious nature of the misconduct, College Counsel submitted that mitigating factors would include that the Member has no prior disciplinary findings, has showed remorse, was forthright, and apologized directly to the client. The suspension and oral reprimand provide for specific and general deterrence, in that these components demonstrate that this conduct will not be tolerated. The employer reporting and education requirements support protection of the public interest and the Member’s remediation. The College stated that the employer reporting requirement encompassed employment in all settings, regardless of geographical location. This is to meet the protection of the public interest. College Counsel submitted that the proposed order is within the range of orders made in cases with similar findings.

The Member submitted that, subsequent to the incident, she sought counselling and apologized to the client for her misconduct. She stated that she wished to comply with the order that the panel makes. The Member submitted that, while the Joint Submission on Order requires notification of all employers in a 12-month period, she would like the panel to consider not having this employer notification requirement apply to her nursing employment outside the province. She stated that having employer notification for all employers would jeopardize her out of province employment status.

Penalty Decision

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

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 three months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

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 and within six months from the date this Order becomes final. 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. 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,

2. Therapeutic Nurse-Client Relationship, and

3. Confidentiality and Privacy - Personal Health Information

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

v. 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;

vi. 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;

vii. 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;

viii. 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;

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;

b) For a period of 12 months from the date this Order becomes final, 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. 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 concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions.

The panel concludes that the penalty provides for specific and general deterrence, public confidence in the profession and remediation of the Member. The oral reprimand and suspension demonstrate the seriousness of the misconduct and send a clear message to the Member and other members of the profession that this type of conduct will not be tolerated. The employer reporting requirements support transparency and promote public confidence in the ability of nursing as a profession to self regulate. The education component of the order supports the remediation of the Member’s return to practice.

The panel did not accede to the Member’s request to limit the scope of the employer notification requirement to employers in Ontario because such a limitation seemingly would be only in the interest of the Member’s employment prospects and not consistent with the mandate of this panel to protect the public’s interest.

I, Spencer Dickson, 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:

Grace Fox, NP

Barbara Titley, RPN

Catherine Egerton, Public Member

Mary MacMillan-Gilkinson, Public Member