College of Nurses of Ontario v. Rose Gyasi, 2014 ONCNO 82277

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Spencer Dickson, RN Chairperson

Jim Attwood, RN Member Abdul Patel Public Member

Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) REBECCA DURCAN for ) College of Nurses of Ontario

• and - )

ROSE GYASI ) SHAUN O’BRIEN for Registration No. 12491047 ) Rose Gyasi

) Heard: May 7, 2014

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 7, 2014, 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 paragraphs 3, 4, 5, 6(e), 6(f) and 7 of the Notice of Hearing dated January 31, 2014. The panel granted this request. The remaining allegations against Rose Gyasi (the “Member”) are as follows.

1. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of Health Professions Procedural Code of the Nursing Act, 1991, S. O. 1991, c. 32 and defined in paragraph 1(1) of Ontario Regulation 799/93 as amended, in that you contravened or failed to meet standards of practice of the profession while working as a registered nurse at [the Facility], and in particular, on/or about September 29, 2012, with respect to [the Client], you:

a. Failed to adequately assess and/or monitor and/or provide appropriate nursing care; and/or

b. Failed to ask for and/or seek assistance to ensure adequate assessment and/or monitoring and appropriate nursing care was provided.

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 and defined in paragraph 1(4) of Ontario Regulation 799/93 as amended, in that while working as a registered nurse at [the Facility] on/or about September 29, 2012, when you were assigned to care for [the Client], you failed to inform your employer of your inability to accept responsibility for pregnant clients where you were not competent to function without supervision.

3. [Withdrawn]

4. [Withdrawn]

5. [Withdrawn]

6. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S. O. 1991, c. 32 and defined in paragraph 1(37) of Ontario Regulation 799/93 as amended, in that while working as a registered nurse at [the Facility] on/or about September 29, 2012, when you were assigned to care for [the Client], you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and in particular:

a. Failed to adequately assess and/or monitor and/or provide appropriate nursing care;

b. Failed to ask for and/or seek assistance to ensure adequate assessment and/or monitoring and appropriate nursing care was provided;

c. Failed to inform your employer of your inability to accept responsibility for pregnant clients or that you were not competent to accept responsibility for pregnant clients;

d. Failed to listen and respond appropriately to [the Client]’s complaints about pain, her wishes for stronger medication, and/or request to be transferred to the Hospital;

e. [Withdrawn]

f. [Withdrawn]

7. [Withdrawn]

Member’s Plea

The Member admitted to the allegations set out in paragraphs 1(a), 1(b), 2, 6(a), 6(b), 6(c) and 6(d) in that her conduct was unprofessional as set out 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 and the Member advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Rose Gyasi (the “Member”) obtained a degree in nursing [ ] in 2011.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on March 27, 2012.

THE FACILITY

3. The Member was employed at [the Facility] from May 1, 2012, to May 31, 2013. This was the Member's first position as an RN. At the time of the incident, the Member had been employed as an RN for four months.

4. The Facility is located [in] Ontario.

5. The Member worked as an RN in the Health Care Unit, providing nursing care to inmates at the Facility. At the time of the alleged incidents, the Member was assigned to the female unit and the male minimum security unit. The ratio of inmates to nurses was approximately 200:1.

THE CLIENT

6. [The Client] was 26 years old at the time of the incident.

7. The Client was admitted to the Facility as an inmate on September 25, 2012. At the time, she was 36 weeks pregnant and identified as having a high risk pregnancy. There was no birth plan at the Facility for the Client.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

8. On the night of September 28-29, 2012, the Client complained to correctional officers of not feeling well and [ ] throwing up in her cell. She was neither taken down to the Health Care Unit nor did staff contact the Health Care Unit to request that medical or nursing staff see her.

9. The next morning, the Client was experiencing cramping, felt weak and could not eat. At 12:30, a Correctional Officer arranged for her to visit the Health Care Unit. [Nurse A] took the Client’s vitals, checked the baby’s heartbeat, touched her stomach and gave her some TUMS for heartburn. [Nurse A] documented that she observed fetal movement, that the Client had an order for Diclectin (to treat nausea) and that she denied pain, though stated she had some cramping when her bladder was full. After the brief examination, the Client was returned to her cell.

10. The Member started her shift at 14:30 on September 29, 2012. Around 14:30, [Nurse B] gave the Member a report about the Client. If the Member were to testify, she would say that [Nurse B] told her to assess the Client after her afternoon medication rounds.

11. Between 14:00 and 15:00, the Client’s cramps intensified. If the Client were to testify, she would say that she began crying and screaming in pain. If [CO A], a Corrections Officer in the female cell block who monitored the Client, were to testify, she would say that at times the Client appeared to be sleeping in bed and at other times she said she was in pain. If [CO B], another Corrections Officer, were to testify, she would say that the Client was moaning and complaining throughout the afternoon about cramping, wanting to go to the hospital and wanting pain medication.

12. Correctional Officer [CO A] called the Health Care Unit at the Facility at approximately 15:30 and informed [Nurse C] that the Client was experiencing pain. If [Nurse C] were to testify, she would say that she personally relayed the information to the Member. She would say that she advised the Member that the Client was 36 weeks pregnant and high risk. She advised the Member to check for contractions. [Nurse C] would further testify that the Member looked puzzled so [Nurse C] explained how to check for contractions by measuring onset, frequency and severity. If the Member were to testify, she would say that [Nurse C] did not speak to her personally about the Client. She would say that she only received report and information about the Client from [Nurse B], as described above. She would also say that she received no training and had no experience assisting clients in labour and delivery.

13. The Member did not go see the Client right away, but waited until after 16:00 when she had finished her rounds, as instructed by [Nurse B].

14. At approximately 16:10, the Client told the Member about the painful cramps she was experiencing and told her she had been counting the intervals between them. At that point they were every five minutes. The Member touched the Client’s stomach while she was standing up.

15. If the Client were to testify, she would say that the Member checked her vital signs and told her she was not in labour. If the Member were to testify, she would say that she did not tell the Client she was not in labour. She would testify that after her assessment, she told the corrections officers who attended with her that she would contact the doctor to ask whether the Client needed to go to the hospital. The Member would then testify that the corrections officers responded by saying that the Client had a history of drug addiction and questioned why she should go to the hospital, stating that she was probably “faking it.”

16. Shortly thereafter, [Nurse D] was on the phone with [Dr. A]. She told the Member to speak with [Dr. A], which the Member did. This was the only time the Member and [Dr. A] spoke. If [Dr. A] were to testify, he would say that when he spoke with the Member, she never mentioned a client with cramps who was 36 weeks pregnant.

17. If [Nurse D] were to testify, she would say that she heard the Member tell [Dr. A] that she had a female inmate who was pregnant and in pain. The Member’s contemporaneous documentation was that [Dr. A] was informed and aware of the Client’s situation and that [Dr. A] had advised her to monitor the Client.

18. The Client’s cramps continued to worsen throughout the afternoon. At approximately 17:30, the Client was moved to a segregation cell. If the Client were to testify, she would say it was because of complaints about her and noise. If Correctional Officer [CO A] were to testify, she would say it was because of tension between the Client and her two cell mates.

19. At approximately 16:00, the Member asked [Nurse B] what she should do about the Client. [Nurse B] suggested that she go upstairs and listen to how long and far apart her contractions were. The Member asked how to measure a contraction and [Nurse B] explained that the Member should put her hand on the Client’s abdomen and measure from the tightening to the beginning of the next contraction.

20. Between 18:00 and 18:45, the Member visited the Client in the isolation cell for the usual medication rounds. The Client told the Member that she was in continuous pain and the Member replied that she would speak to the doctor. The Member then gave her Tylenol for the pain. The Client subsequently requested to go to the hospital.

21. By 19:00, the Client was still in pain. At approximately 20:00, the Client yelled for Correctional Officer [CO C], telling her that she could see a foot sticking out of her vagina. Around this time, the Client’s water broke. Correctional Officer [CO C] called the Health Care Unit at the Facility and relayed what the Client told her.

22. At approximately 20:15, the Member arrived at the cell. The Client said she “felt a foot coming out of her.” She was lying on her bunk. The Member touched the Client’s vagina – something whitish was visible. It was suggested that it might be the mucous plug showing in the Client's cervix. Correctional Officer [CO C] asked if this was a package of smuggled drugs, given that the Client had attempted to smuggle drugs into the Facility in her vagina on a separate occasion. The Client denied this. The Client continued to request that she be taken to the hospital.

23. If Correctional Officer [CO B] were to testify, she would say that she suggested the Member check if the Client was dilated and the Member said they, “don’t do that.” Correctional Officer [CO B] asked if the Client’s water had broken and the Member said she did not know. The Member was then advised by Correctional Officer [CO B] to look at the Client’s pants, which were stained with a greenish-yellowish fluid. The Member said she would call the doctor and started to leave. Correctional Officer [CO B] would further testify that she assumed the Member left to call an ambulance.

24. The Member then informed a more senior nurse, [Nurse E], about the situation with the Client, including that the Client felt the baby’s feet were coming out, that she had seen something white in her vagina and something greenish-yellowish colour in the Client’s pants. She told [Nurse E] that she thought the Client should go to hospital. [Nurse E] told the Member that she would investigate the situation further.

25. At approximately 20:25, Correctional Officer [CO C] heard the Client screaming about a foot. If Correctional Officer [CO C] were to testify, she would say she walked by the cell and saw the Client on the toilet and she saw the baby’s foot. Correctional Officer [CO C] would also testify that she told Correctional Officer [CO B] to page for a medical emergency. At 20:20, a medical emergency page was called. The nursing notes indicate that at 20:25 two feet were visible at the vaginal opening.

26. At 20:28, nurses and correctional officers ran to the Client’s cell in response to the emergency page. The Member arrived shortly thereafter. The Member did not enter the cell but remained outside, charting the Client’s vital signs, while the more senior nurses assisted the Client. During this time, the Member also provided gloves to the other nurses and filled out a form which would allow the Client to be transferred to the hospital. At that point there was some confusion about whether or not an ambulance had been called.

27. At 20:45, [the Sergeant] called 911 and asked for an ambulance. At 21:15 the paramedics arrived and a baby boy was born at 21:21. The baby was delivered in the breech position with the umbilical cord wrapped around his neck. The Client was transferred to the hospital where she received two blood transfusions. She was discharged from the hospital three days later, on October 2, 2012, in stable condition.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

28. The Member admits that she committed the acts of professional misconduct described above in paragraphs 8 to 27, and as alleged in the Notice of Hearing in paragraphs:

• 1(a) and (b) – The Member admits that she breached a standard of practice of the profession when she: failed to adequately assess and/or monitor the Client and/or provide appropriate nursing care to the Client; and failed to ask for assistance to ensure the Client was adequately assessed and/or monitored and appropriate nursing care was provided.

• 2 – The Member admits that she failed to inform her employer that she was unable to accept responsibility for a pregnant client when she was not competent to function without supervision.

• 6(a), (b), (c) and (d) – The Member admits that her conduct as described above was unprofessional;

29. With leave of the Discipline Committee, the College seeks to withdraw the following allegations:

• 3

• 4(a), (b) and (c)

• 5

• 6(e) and (f)

• 7

Decision

The panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 1(b) and 2 of the Notice of Hearing. With regard to allegations 6(a), 6(b), 6(c) and 6(d), the panel finds that the Member engaged in conduct that would reasonably be considered by members to be unprofessional.

Reasons for Decision

The panel considered the Agreed Statement of Facts and the Member’s plea and finds that the evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation 1 in the Notice of Hearing is supported by paragraphs 12, 14, 15, 16, 19, 20 and 22 in the Agreed Statement of Facts.

Allegation #2 in the Notice of Hearing is supported by paragraphs 14, 19 and 23 in the Agreed Statement of Facts.

With respect to Allegations 6 (a), 6(b), 6(c) and 6(d), the panel finds that the Member’s conduct in failing to apply the general standard of nursing care to [the Client] and her overt failure to recognize the limits of her practice to ensure the safety and interests of the client was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

Penalty

Counsel for the College and the Member advised the panel that a Joint Submission on Order had been agreed upon. The Joint Submission 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 five 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 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:

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);

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:

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;

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:

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;

vii. If the Member does not comply with any [one or more] 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 of this Order, 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

c) The Member shall not practise independently in the community for a period of 12 months from the date of this Order.

4. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel and the Member’s Counsel.

College Counsel stated the mitigating factors in this case were:

• The Member’s minimal experience as a RN;

• This employment was the Member’s first nursing job and the environment was a stressful one; and

• The Member cooperated with the College in the investigation of this matter, allowing the proceedings to proceed quickly and sparing the client and others from having to relive the experience by testifying.

Defen[c]e Counsel concurred with the [mitigating] factors stated by College Counsel and added the following as additional factors:

• The diverse range of clinical expertise a nurse needs to have in a corrections setting and the lack of training of the Member in the area of maternity and delivery;

• The 200 inmates to 1 nurse staffing ratio; and

• The propensity for conflict between the nurses and the corrections officers in determining the care for clients in a corrections setting.

College Counsel stated that the primary aggravating factor in this case was that a woman was forced to have a baby in a jail cell, which was not an appropriate setting.

College and Defen[c]e Counsel agreed that the proposed penalty provides for general deterrence through a reprimand, a significant suspension, and terms, conditions and limitations. These send a message to the nursing profession that this conduct will not be tolerated and puts them on notice as to the kind of penalty that would apply to them should they engage in this sort of misconduct.

The proposed penalty provides for specific deterrence through a reprimand, a significant suspension, and terms, conditions and limitations which will affect the Member economically and professionally.

The proposed penalty provides for remediation and rehabilitation through an opportunity for the Member with the support of a nursing expert to review the relevant professional standards and incorporate them into her practice.

Overall, the public is protected because the terms, conditions and limitations include not only remediation of the Member’s practice, but also employer reporting and restrictions on the Member’s ability to work independently in the community for a specified period of time.

Counsel submitted cases to the panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee. In CNO v. Gooden-Wing (Discipline Committee, 1999), the Member was found not to have adequately assessed and intervened with a [client]. The penalty in that case involved an 8-month suspension and reprimand. In CNO v. Dwyer (Discipline Committee 2001), the Member was found to have failed to adequately assess a [client] and intervene. The member received a 30-day suspension along with terms, conditions and limitations on her certificate of registration.

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 five 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 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. [the] 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);

iv. 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;

v. 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;

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:

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;

vii. If the Member does not comply with any [one or more] 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 of this Order, 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. [the] 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

c) The Member shall not practise independently in the community for a period of 12 months from the date of this Order.

4. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

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. The panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. The reprimand reinforces to the Member the seriousness of this misconduct. The suspension sends a clear message to the Member and the membership that this misconduct will result in significant sanctions. The terms, conditions and limitations balance the interest of remediation with the need to ensure that the public interest and protection are maintained.

The penalty is in line with what has been ordered in previous cases.

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:

Spencer Dickson, RN, Chairperson Date

Panel Members:

Jim Attwood, RN

Abdul Patel, Public Member

Chuck Williams, Public Member