DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Spencer Dickson, RN Chairperson Kim Jinkerson, RPN Professional Member Margaret Tuomi Public Member Cathy Egerton Public Member Andrea Vidovic, RN Professional Member1
BETWEEN:
COLLEGE OF NURSES OF ONTARIO JEAN-CLAUDE KILLEY for College of Nurses of Ontario
- and -
JOHN THOMAS Registration No. II09128 NO REPRESENTATION for JOHN THOMAS
JOHANNA BRADEN Independent Legal Counsel
Heard: June 26-27, 2013
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee on June 26-June 27, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.
College counsel brought a motion pursuant to s. 45(3) of the Health Professions Procedural Code for an order banning the publication or broadcasting of the names of the witnesses. The Member consented. The panel granted this motion.
The Allegations
Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(b), 1(l); 2(b) and 2(l) of the Notice of Hearing dated April 24, 2013. Those allegations related to an alleged failure to maintain the standards of practice of the profession. The panel granted this request. The remaining allegations set out in the Notice of Hearing are as follows.
IT IS ALLEGED THAT:
- 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, while practicing as a Registered Practical Nurse at [the Facility], 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 February 4, 2011, you administered Tylenol 500mg to [Client A] without a physician’s order or other authorization;
b. Withdrawn
c. on or about February 15, 2011, you failed to administer Tylenol #3 to [Client B] as required, while documenting that you had administered it;
d. on or about February 20, 2011, you failed to administer medications as required to [Client C], while documenting that you had administered them;
e. on or about February 20, 2011, you failed to administer medications as required to [Client D], while documenting that you had administered them;
f. on or about April 11, 2011, you failed to contact the prescribing physician in response to a Drug Interaction Alert received in relation to [Client E];
g. on or about April 13, 2011, you failed to process a doctor’s orders in relation to [Client F];
h. on or about April 14, 2011, you failed to adjust the hour of administration of the drug Levofloxacin (Levaquin) in response to a Drug Interaction Alert received in relation to [Client G];
i. on or about April 16, 2011, you failed to appropriately document [Client E]’s readmission to the Facility, including that you failed to consistently and/or accurately record the name of the attending physician, failed to completely and/or accurately record all of the client’s medication orders, and/or failed to complete an admission note;
j. on or about April 20, 27 and 28, 2011, you failed to complete weekly skin assessments that were ordered for [Clients H and I];
k. on or about April 27, 2011, you incorrectly transcribed a physician’s verbal order for the medication Coumadin in relation to [Client J];
l. Withdrawn
m. you sexually harassed [a co-worker] by:
i. in about the end of June, 2011, approaching her from behind, saying “pull up your pants” or words to that effect, and then attempting to pull up her pants; and/or
ii. on about July 10, 2011, approaching her from behind, placing your hand on her back, and whispering into her ear “don’t move” or words to that effect.
- 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 February 4, 2011, you administered Tylenol 500mg to [Client A] without a physician’s order or other authorization;
b. Withdrawn
c. on or about February 15, 2011, you failed to administer Tylenol #3 to [Client B] as required, while documenting that you had administered it;
d. on or about February 20, 2011, you failed to administer medications as required to [Client C], while documenting that you had administered them;
e. on or about February 20, 2011, you failed to administer medications as required to [Client D], while documenting that you had administered them;
f. on or about April 11, 2011, you failed to contact the prescribing physician in response to a Drug Interaction Alert received in relation to [Client E];
g. on or about April 13, 2011, you failed to process a doctor’s orders in relation to [Client F];
h. on or about April 14, 2011, you failed to adjust the hour of administration of the drug Levofloxacin (Levaquin) in response to a Drug Interaction Alert received in relation to [Client G];
i. on or about April 16, 2011, you failed to appropriately document [Client E]’s readmission to the Facility, including that you failed to consistently and/or accurately record the name of the attending physician, failed to completely and/or accurately record all of the client’s medication orders, and/or failed to complete an admission note;
j. on or about April 20, 27 and 28, 2011, you failed to complete weekly skin assessments that were ordered for [Clients H and I];
k. on or about April 27, 2011, you incorrectly transcribed a physician’s verbal order for the medication Coumadin in relation to [Client J];
l. Withdrawn
m. you sexually harassed [a co-worker] by:
i. in about the end of June, 2011, approaching her from behind, saying “pull up your pants” or words to that effect, and then attempting to pull up her pants; and/or
ii. on about July 10, 2011, approaching her from behind, placing your hand on her back, and whispering into her ear “don’t move” or words to that effect.
Member’s Plea
The Member admitted that he committed the acts of professional misconduct and failed to meet the standards of practice of profession as described in the Notice of Hearing in paragraphs 1a, c, d, e, f, g, h, i, j and k and 2 a, c, d, e, f, g, h, i, j and k in that his conduct was unprofessional. 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.
The Member denied that he committed the acts of professional misconduct and failed to meet the standards of practice of profession as described in the Notice of Hearing in paragraphs 1m and 2 m.
Agreed Statement of Facts
Counsel for the College advised the panel that an agreement had been reached on the facts related to allegations as set out in paragraphs 1 a, c, d, e, f, g, h, i, j and k and 2 a, c, d, e, f, g, h, i, j and k and introduced an Agreed Statement of Facts which provided as follows.
THE MEMBER
John Thomas (the “Member”) obtained a certificate in nursing [ ] in 1996.
The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on April 28, 1999.
The Member was employed at [the Facility] from March 26, 2009, to August 15, 2011.
THE FACILITY
The Facility is [a] long-term care home that provides 24-hour nursing care to residents.
The Member worked as a full-time staff nurse on the evening shift.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
A. [Client A]
On February 4, 2011, the Member was providing care to [Client A] on the evening shift.
At 15:50, the Member administered Tylenol 500mg to [Client A] without a physician’s order or any other authorization to administer that drug to that [client] at that time. The Member documented the administration in [Client A]’s Medication Administration Record (“MAR”).
If the Member were to testify, the Member would say that he had previously worked at facilities that had medical directives permitting the administration of Tylenol 500mg without a physician’s order and that he had failed to realize that the Facility did not have such a directive.
The Member admits that he is responsible for knowing what directives are in place for each facility at which he works and for each [client] to whom he provides care.
B. [Client B]
On February 15, 2011, the Member was providing care to [Client B] on the evening shift.
[Client B] was ordered to receive one Tylenol 3 tablet by mouth, four times daily. During the Member’s shift, [Client B] was to receive one tablet at 16:00, and one at 20:00.
The Member documented in [Client B]’s MAR and Individual Narcotic Medication Record that both doses of Tylenol 3 were administered at the correct times. However, the RPN on the following shift, during her narcotic count, discovered one additional Tylenol 3 tablet than the number showing on the Individual Narcotic Medication Record.
When asked the following day whether she had received both doses of her Tylenol 3 from the Member on February 15, 2011, [Client B] said she had received the 16:00 dose, but not the 20:00 dose.
The Member only administered one Tylenol 3 tablet to [Client B] during his shift, not two as he was required to do.
C. [Clients C & D]
On February 20, 2011, the Member provided care to [Clients C and D] on the evening shift.
[Client C] was scheduled to receive the following medication at 20:00: Tylenol 500mg, Lipitor 20mg, Cardura 2mg, Prevacid 30mg, Serax 30mg and Zinc Gluconate 25mg.
The Member did not give [Client C] his scheduled medications. The RPN on the following day shift found the medication pouches for [Client C] on the medication cart. These pouches are date-and time-stamped for each scheduled administration of medication. The pouches that were date- and time-stamped for February 20, 2011 at 20:00 were intact. No other pouches were missing.
There was no consequence to [Client C] as a result of missing the medication.
On that same shift, [Client D] was scheduled to receive Tylenol 500mg at 16:00. In addition, at 20:00, A.W. was ordered to receive Tylenol 500mg, Rosuvastatin 10mg, Glucophage 500mg and Seroquel 25mg.
The Member did not give [Client D] her scheduled medications. The RPN on the following day shift found the medication pouches for [Client D] on the medication cart. These pouches are date and time stamped for each scheduled administration of medication. The pouches that were date- and time-stamped for February 20, 2011 at 16:00 were intact. No other pouches were missing.
There was no consequence to [Client D] as a result of missing the medication.
D. [Client E]
On April 11, 2011, the Member worked the evening shift. At some point during his shift, the Member received two Drug Interaction Alerts from the pharmacy for [Client E]. The Facility’s policy on Drug Interaction Alerts required the Member to notify the physician about the alerts.
One of the alerts stated that “combined use of domperidone, Advair and levofloxacin increases risks of potentially serious adverse cardiac effects…Monitor vital signs e.g. heart rate. Consider holding domperidone if appropriate…please make sure DR is informed.”
The other alert stated, under the heading “ACTION REQUIRED by Nurse:”, that the suggested administration time of Levofloxacin be made 6am.
The Member made a notation in [Client E]’s progress notes stating that he had spoken with the pharmacist and that domperidone had an interaction with “Cipro,” and the domperidone should therefore be on hold for seven days. The Member put the Drug Interaction Alert in the physician’s book. However, the Member did not notify the physician, as required both by the Facility’s policy and the wording of the first Drug Interaction Alert. The nurse on the following day shift noted in [Client E]’s progress notes that she had tried to contact the physician without any success.
There were no consequences to [Client E] as a result of the potential drug interaction or of the Member’s failure to notify the prescribing physician.
E. [Client F]
The Member worked the evening shift on April 13, 2011. Earlier that day, the physician visited the Facility and left an Original Physician’s Order for [Client F].
The Facility’s policy required nurses to process physicians’ orders within 24 hours of receipt.
The Member did not process the order left by the physician for [Client F]. The order was processed one week later, on April 20, 2011.
F. [Client G]
On April 20, 2011, the Member worked the evening shift. At some point during his shift, the Member received a Drug Interaction Alert from the pharmacy for [Client G]. The Drug Interaction Alert suggested that the antibiotic Levofloxacin (Levaquin) should be administered at 06:00 because of an interaction with a mineral supplement the client was taking.
The Drug Interaction Alert stated that “the extent of absorption and consequently bioavailability of fluoroquinolones can be substantially REDUCED by the presence of minerals (aluminum, calcium, iron, magnesium, or zinc). For successful results from this antibiotic therapy, it is recommended that doses of fluoroquinolones be separated by several hours from doses of minerals.”
The Member documented in [Client G]’s MAR that he administered the Levaquin at 20:00 on April 20 and April 21, 2011, despite the alert.
G. [Client E]
The Member worked the evening shift on April 16, 2011. During that shift, [Client E] was readmitted to the Facility after spending time in the hospital.
The Member documented [Client E]’s readmission to the Facility but he failed to do the following in the course of the readmission: he did not document the name of the attending physician, and; the physician’s orders were incomplete – one medication was omitted (Enoxaparin Sodium).
In addition, the Member left the admission note in draft form. He did not do the readmission properly on either the Point Click Care System, the Facility’s computer program, or in the paper format.
If the Member were to testify, he would say that he was unfamiliar with the electronic Point Click Care System.
The Member’s conduct in this incident was contrary to the Facility’s policies on the Readmission of Residents from Hospital, and the Admission Checklist for Registered Staff.
H. [Clients H and I]
The Facility had a policy called “Skin Care Policy and Assessment.” The Policy required: “Skin assessments to be done weekly by Reg. Staff as indicated in the TAR [Treatment Administration Record]. Flag box and time on TAR and Reg. staff member to initial when completed. The assessment must be documented in progress notes under Wound/Note.”
The Member worked the evening shift on April 20 and 28, 2011. He provided care to [Client H] on both shifts.
Weekly skin assessments were ordered for [Client H], which is clearly indicated on [Client H]’s TAR. The Member failed to complete the weekly skin assessments that were ordered for [Client H] on both April 20 and April 28, 2011.
The Member worked the evening shift on April 27, 2011. He provided care to [Client I] on that shift.
Weekly skin assessments were ordered for [Client I], which is clearly indicated on [Client I]’s TAR. The Member failed to complete the weekly skin assessment for [Client I] on April 27, 2011.
If the Member were to testify, he would say that his practice was to complete weekly skin care assessments, but that in the case of [Clients H and I], he failed to document the assessments in the clients’ TARs.
The Facility treated the missed weekly skin assessments for these clients as missed treatments.
I. [Client J]
The Member was providing care to [Client J] on the evening shift on April 27, 2011. The Member received a verbal order from the physician over the phone to increase [Client J]’s dosage of Coumadin from 6.5mgs to 7 mgs p.o.
Instead, the Member transcribed the order in the client’s MAR as decreasing the Coumadin to 3.5 mgs daily p.o.
If the Member were to testify, the Member would say that he administered the correct dosage to [Client J], but wrote down the wrong dosage in the client’s MAR.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
- The Member admits that he committed the acts of professional misconduct as described in paragraphs 6 to 47 above and as set out in the Notice of Hearing in paragraphs:
1a,c, d, e, f, g, h, i, j and k;
2a, c, d, e, f, g, h, i, j and k in that his conduct was unprofessional.
- With leave of the Discipline Committee, the College withdraws the allegations of professional misconduct alleged in the Notice of Hearing, as set out in paragraphs:
1b and l;
2b and l.
Overview
This hearing proceeded on the basis that two of the allegations were contested and the others were not contested by the Member. The panel received an Agreed Statement of Facts [ ] in relation to the non-contested allegations.
In relation to the contested allegations, the panel determined that there were three issues under examination. Did the incidents of sexual harassment occur? If the incidents did occur, did they constitute a failure to meet the standards of practice of the profession? If the incidents did occur, would they reasonably be regarded by members as disgraceful, dishonourable or unprofessional?
Evidence Relating to the Issues
The College called two witnesses: [the co-worker] (the alleged victim of the sexual harassment) and [a second individual]. The College called [the second individual]’s evidence to show that if the Member committed the acts alleged against [the co-worker], he knew or should have known (as a result of his interactions with [the co-worker]) that his conduct was unwelcome. In light of the panel’s decision about whether the conduct with [the co-worker] occurred, it was unnecessary to deal with [the second individual]’s evidence.
Background evidence
[The co-worker] testified that she worked as a dietary aide at [the Facility] since June 2010. She was there part-time. The Member was an RPN who worked the evening shift. The Member worked primarily on the second floor, where the [clients] were. The kitchen and coffee room were on the first floor.
There was no evidence about how often the Member’s shifts and [the co-worker]’s hours overlapped.
Did the Member approach [the co-worker] from behind and say “pull up your pants” (or words to that effect) and attempt to pull up her pants?
[The co-worker] testified that she had very little interaction with registered staff generally. She testified that the Member had inappropriate interactions with her on several occasions, which included: the Member referring to her as “sexy”, questioning her with regards to a family vacation, and, finally the two incidents of sexual harassment alleged in the Notice of Hearing.
On the first allegation, [the co-worker] testified that at some time between May and June 2011, while she was in the coffee room, the Member approached her from behind where she was bent down getting pots and said to her, “pull up your pants” and reached down and lightly pulled up her loose-fitting scrub pants.
The Member testified that the incidents did not occur and that he did not perform any sexual acts with [the co-worker]. He further testified that the closest her ever got to [the co-worker] was in the kitchen when he got food but they were separated by a counter, and when she attended the second floor with the snack cart. He did not recall ever being alone with [the co-worker] in the kitchen. The Member testified that prior to this incident being reported, he did not even know [the co-worker] by name. The Member did admit that he asked her about her vacation once, and he said he talked to her through the door once when she was stuck in an elevator. He said that he had no other conversations with her.
Did the Member approach [the co-worker] from behind and whisper “don’t move”?
With regards to the second incident occurring approximately two weeks later, [the co-worker] testified that she was standing at the counter with cabinets in the kitchen when the Member approached her from behind and said “don’t move” as he reached for something. [The co-worker] testified that the Member was close enough to her that she felt his breath in her ear.
The Member denied that this incident occurred. As with the first incident, he testified that [the co-worker] was young enough to be his daughter and that the thought of treating her in a sexual manner was sickening to him.
For both incidents, the Member testified not only that they did not occur, but that they could not have occurred. He said that due to how busy his shifts were, the nature of his duties, the long distance between the kitchen/coffee room and the floor where he worked, the layout of the kitchen and the coffee room, and the number of people who were generally about in the kitchen and the coffee room, these incidents of harassment could not have taken place as described by [the co-worker].
Apart from the evidence of these two witnesses, there was no evidence to help the panel understand the physical layout of the space where the incidents allegedly occurred, or to challenge or understand the Member’s evidence of how difficult it would have been for someone in his position to have committed the acts alleged, in light of the physical layout of the facility, the level of activity on the Member’s floor and the level of activity in the kitchen and coffee room.
Other Matters
[The co-worker] testified that she had sent texts about the Member’s actions to her friends. However, she no longer had those texts because she had a new phone.
After the second incident, [the co-worker] reported the incidents to her supervisor. The Member said that when he learned of the report, he did not even know who [the co-worker] was. The Member’s employment was terminated as a result. [The co-worker] said she had not wanted the Member to lose his job, she had just wanted him to stop.
Credibility
[The co-worker] and the Member had very different versions of what happened. The panel considered the credibility of each witness in determining the weight of their testimony. As requested by College Counsel, the panel relied on the factors set out in the relevant excerpt from A Complete Guide to the Regulated Health Professions Act, R. Steinecke (Canada Law Book: December 2012), pages 6-154 to 6-156.
[The co-worker] presented in a calm and straightforward manner. She recalled the events as she understood them. She was unclear in terms of the timeframe of the incidents. The panel was unable to establish whether her evidence was probable or plausible as no other evidence was led to substantiate any portion of her account of the events.
The Member presented his testimony in a calm and straightforward manner. He acknowledged areas of agreement, such as asking [the co-worker] about her vacation, however vehemently denied that the incidents of sexual harassment occurred. His testimony in relation to his denials was consistent on cross-examination. The Member did not lead any other evidence that would substantiate that the incidents never occurred, or support his explanation of why it would have been almost impossible for them to have occurred in light of how busy he was, how visible the kitchen and coffee area were, the physical layout of the kitchen, and similar factors.
The panel concluded that both [the co-worker] and the Member were equally credible witnesses. The absence of any evidence other than their two versions of events (for example, evidence about the layout of the kitchen and coffee room, or evidence about how often the Member was seen on the first floor or could have gone to the first floor) made it hard for the panel to determine which version of events was more likely.
Decision
The panel considered the Agreed Statement of Facts, including the Member’s plea and determined that the facts support that the Member failed to meet the standards of practice of profession as set out in 1 a, c, d, e, f, g, h, i, j and k and committed acts of professional misconduct as described in the Notice of Hearing in paragraphs 2 a, c, d, e, f, g, h, i, j and k. The panel further found that the Member’s conduct was unprofessional as set out in paragraphs 2 a, c, d, e, f, g, h, i, j and k of the Notice of Hearing.
Having considered the evidence and the onus and standard of proof, the panel found that the evidence was not sufficiently clear, cogent and convincing to discharge the College’s burden of proof. Therefore the panel made no finding that the Member committed acts of professional misconduct and contravened a standard of practice of the profession as alleged in paragraphs
1m and 2m in the Notice of Hearing.
Reasons for Decision
As to the uncontested part of this hearing, the Agreed Statement of Facts was clear and it was the unanimous decision of the panel to accept it and to find that the evidence supported the allegations of professional misconduct that were admitted by the Member. He contravened the standards of practice of the profession. The panel finds that the conduct was unprofessional in that there was a persistent disregard for practice standards.
In relation to allegations 1 m) and 2 m), the panel was unable to determine that the incidents of sexual harassment occurred. The panel considered the testimony of [the co-worker] and that of the Member. While [the co-worker] provided an account of the incidents of sexual harassment, the Member testified that the incidents did not occur.
There was no evidence presented that might have helped the panel to resolve the inconsistencies between the two versions of events. For example, the Member testified that he would have had [] no opportunity to commit these acts, and that his work requirements meant that he was hardly ever in the kitchen. He was not supposed to be in the kitchen at all and would only go in there very rarely if he had to, for maybe 30 seconds or so, for a specific reason such as grabbing a cup. He would never go in there just to talk. This was contrary to [the co-worker]’s evidence. She agreed that the Member was not supposed to be in the kitchen (and that he had no reason to be on the first floor at all), and yet she said that the Member had been in the kitchen multiple times. Once she said was for 5-10 minutes (the vacation incident). Evidence that might have helped the panel evaluate these different claims was not presented.
In the presence of these conflicting versions of events, the panel considered the credibility of [the co-worker] and the Member and it is the panel’s opinion that both [the co-worker] and the Member were of equal credibility. Therefore in the absence of any other substantiating evidence that the incidents of sexual harassment actually occurred, the panel concluded that the College failed to meet the burden of proof that the incidents occurred on a balance of probabilities.
Penalty
Penalty Submissions
There was no joint submission on penalty.
The College requested an order as follows:
Requiring the Member to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.
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.
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 his own expense and within six months of the date of this Order. 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts, and
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:
iv.
Professional Standards,
Medication, and
Documentation
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;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
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:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into his 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 his certificate of registration;
b) For a period of 12 months from the date the Member’s suspension ends and the Member returns to clinical nursing practice, the Member will notify his 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 his employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts, and
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:
that they received a copy of the required documents, and
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
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.
College Counsel gave the panel copies of two decisions of the College’s Complaints Committee regarding the Member. These decisions show that this is not the first time the Member has had issues with medication administration.
College Counsel also submitted a previous case of this Discipline Committee (CNO v. Rosa Lazarte, Discipline Committee, 2012) to establish the appropriate range for professional misconduct involving numerous practice issues.
College Counsel noted that aggravating factors in this case include: there were numerous similar incidents over a significant period of time, and the incidents related to clinical practice and could have led to serious [client] harm. In terms of a mitigating factor, the Member acknowledges responsibility for these actions. He submitted that the penalty proposed by the College meets the requirement for specific and general deterrence, protection of the public interest as well as rehabilitation of the Member.
The Member submitted that he was under a great deal of stress at the time of these incidents due to both health and financial issues. In response to the College’s proposed order, the Member submitted that the suspension should only be for two months due to personal financial concerns. The Member further requested that there be nothing in the order requiring employer reporting and notification, out of concern that this would limit his employment prospects.
Penalty Decision
The panel deliberated and made the following Order:
The Member shall appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.
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.
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 his own expense and within six months of the date of this Order. 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts, and
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:
Professional Standards,
Medication, and
Documentation
iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms;
v. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vi. 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:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into his behaviour;
vii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;
b) For a period of 12 months from the date the Member’s suspension ends and the Member returns to clinical nursing practice, the Member will notify his 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 his employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts, and
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:
that they received a copy of the required documents, and
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
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 penalty is reasonable and in the best interest of the public. The Member has cooperated with the College and by agreeing to the facts, has accepted responsibility for his actions and has avoided unnecessary expense to the College. This cooperation is reflected in the penalty.
The penalty provides for specific deterrence to the Member and general deterrence to the membership and protects the public.
The panel considered the Member’s request to order a lesser suspension than that requested by College Counsel. However, the panel did not feel that a shorter term of suspension was appropriate within the context of the significance of the findings. The Member’s submission that the lengthy suspension would affect him financially is not a good reason to reduce the term of suspension from what is reasonable in all the circumstances.
The panel also considered the Member’s request to not order employer notification. The panel finds that employer notification is a significant part of public protection, and to have the employer notification provision removed would fundamentally undermine the public protection aspect of this order.
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:
Kim Jinkerson, RPN
Cathy Egerton, Public Member
Margaret Tuomi, Public Member