College of Nurses of Ontario v. Sandra Lewis, 2014 ONCNO 87162

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Megan Sloan, RPN Chairperson

Lorenza Barron, RN Member Grace Fox, NP Member Mary MacMillan-Gilkinson Public Member

Margaret Tuomi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) BONNI ELLIS for

) College of Nurses of Ontario

• and - )

SANDRA LEWIS ) NO REPRESENTATION for

Registration No. 9022112 ) Sandra Lewis

) LUISA RITACCA and

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: March 24-27, 2014

REVISED DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on March 24, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.

As Sandra Lewis (“the Member”) was not present, the hearing recessed for 20 minutes to allow time for the Member to appear. Upon reconvening, the panel noted that the Member was not in attendance.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on November 19, 2012. The panel was satisfied that the Member had received adequate notice of the time, date, place and nature of the hearing, and therefore proceeded with the hearing in the Member’s absence.

Publication Ban

On request of the College, the panel made an Order banning the publication or broadcasting of certain matters pursuant to s. 45(3) (b) of the Health Professions Procedural Code of the Nursing Act, 1991, that no person shall publish, broadcast or otherwise disclose the names of [clients] or any information that could disclose the identity of the [clients] who are referred to during the hearing, or in any document or exhibit filed at the hearing.

The Allegations

Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations in paragraphs 3(i) and 4(g)(ix) of the Notice of Hearing dated November 19, 2013. The panel granted this request.

The remaining allegations against the Member as stated in the Notice of Hearing dated November 19, 2013, are as follows:

1. 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 1.1 of Ontario Regulation 799/93 in that you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession and, in particular:

a) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you confined [Client A] to her room in circumstances where such a restraint was not clinically necessary and/or not clinically appropriate;

b) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you applied and/or directed staff to apply five-point restraints to [Client A] in circumstances where such restraints were not clinically necessary and/or not clinically appropriate;

c) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you failed to appropriately and/or adequately monitor [Client A] after she was placed in 5-point restraints at approximately 20:30 hours;

d) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you failed to respond when [Client A] became agitated or was otherwise demonstrating behaviours that warranted assessment and/or intervention, including:

(i) when [Client A] was calling out;

(ii) when [Client A] was banging on her bed and/or the side rails;

(iii) when [Client A] was attempting to remove her restraints; and/or

(iv) when [Client A] was restless and appeared frustrated.

e) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you spoke to [Client A] using an angry and/or intimidating and/or demeaning tone;

f) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you made angry and/or intimidating and/or demeaning comments to [Client A] when:

(i) In response to the Client asking you for something at the nursing station, you put your hand up with your palm facing [Client A] and stated “She’s not getting anything else. I’ve already told her she’s getting nothing else” or used words to that effect;

(ii) you advised [Client A] that her visit with her family would be cancelled the following day if her behaviour continued;

(iii) you stated to [Client A], “That’s it, I am going to get a needle”, or used words to that effect when [Client A] was having difficulty swallowing a pill;

g) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you failed to take appropriate and/or adequate steps to ensure that [Client A] was not left exposed after she disrobed or partially disrobed; and/or

h) on or around May 17, 2012, while working as a nurse at [Facility B] and in the context of assisting colleagues with the physical restraint of [Client B] you stated, “What the fuck are you doing?” and/or “Just give him the fucking needle”, or used words to that effect when a colleague offered the client a PRN medication.

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 you abused a client verbally, physically or emotionally and, in particular, on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you:

a) confined [Client A] to her room in circumstances where such a restraint was not clinically necessary and/or not clinically appropriate;

b) applied and/or directed staff to apply five-point restraints to [Client A] in circumstances where such restraints were not clinically necessary and/or not clinically appropriate;

c) failed to appropriately and/or adequately monitor [Client A] after she was placed in 5-point restraints at approximately 20:30 hours;

d) failed to respond when [Client A] became agitated or was otherwise demonstrating behaviours that warranted assessment and/or intervention, including:

(i) when [Client A] was calling out;

(ii) when [Client A] was banging on the bed and/or side rails;

(iii) when [Client A] was attempting to remove her restraints; and/or

(iv) when [Client A] was restless and appeared frustrated.

e) spoke to [Client A] using an angry and/or intimidating and/or demeaning tone;

f) made angry and/or intimidating and/or demeaning comments to [Client A] when:

(i) In response to [Client A] asking you for something at the nursing station, you put your hand up with your palm facing the Client and stated, “She’s not getting anything else. I’ve already told her she’s getting nothing else” or words to that effect;

(ii) you advised [Client A] that her visit with her family would be cancelled the following day if her behaviour continued; and/or

(iii) You stated to [Client A], “That’s it, I am going to get a needle”, or used words to that effect when [Client A] was having difficulty swallowing a pill.

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 paragraph 1.14 of Ontario Regulation 799/93 in that, on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you falsified a record relating to you practice when you documented in the healthcare record of [Client A]:

a) that [Client A] was “unable to follow any staff re-direction” when, in fact, that was not the case;

b) that [Client A] was “screaming in her room all night” when, in fact, that was not the case;

c) that [Client A] “did not sleep all night” when, in fact, that was not the case;

d) that [Client A] was “irritable all evening and night” when, in fact, that was not the case;

e) that [Client A] was a threat or danger when, in fact, that was not the case;

f) that [Client A] had been “parading around exposed” when, in fact, that was not the case;

g) at 22:42 hours that you had provided 16-30 minutes of 1:1 interaction with [Client A] when, in fact, that was not the case;

h) at 03:38 hours that you had provided more than 45 minutes of 1:1 interaction with [Client A] when, in fact, that was not the case;

i) [withdrawn]

j) that Fucidin ointment was applied to [Client A] at 2200 hours when, in fact, that was not the case.

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 paragraph 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 of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional and, in particular:

a) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you confined [Client A] to her room in circumstances where such a restraint was not clinically necessary and/or not clinically appropriate;

b) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you applied and/or directed staff to apply five-point restraints to [Client A] in circumstances where such restraints were not clinically necessary and/or not clinically appropriate;

c) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you failed to appropriately and/or adequately monitor [Client A] after she was placed in 5-point restraints at approximately 20:30 hours;

d) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you failed to respond when [Client A] became agitated or was otherwise demonstrating behaviours that warranted assessment and/or intervention, including:

(i) when [Client A] was calling out;

(ii) when [Client A] was banging on her bed and/or the side rails;

(iii) when [Client A] was attempting to remove her restraints; and/or

(iv) when [Client A] was restless and appeared frustrated.

e) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you spoke to [Client A] using an angry and/or intimidating and/or demeaning tone;

f) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you made angry and/or intimidating and/or demeaning comments to [Client A] when:

(i) in response to the Client asking you for something at the nursing station, you put your hand up with your palm facing [Client A] and stated, “She’s not getting anything else. I’ve already told her she’s getting nothing else” or used words to that effect;

(ii) you advised [Client A] that her visit with her family would be cancelled the following day if her behaviour continued; and/or

(iii) you stated to [Client A], “That’s it, I am going to get a needle”, or used words to that effect when [Client A] was having difficulty swallowing a pill;

g) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you falsified entries in the health care record of [Client A]:

(i) that [Client A] was “unable to follow any staff re-direction” when, in fact, that was not the case;

(ii) that [Client A] was “screaming in her room all night” when, in fact, that was not the case;

(iii) that [Client A] “did not sleep all night” when, in fact, that was not the case;

(iv) that [Client A] was “irritable all evening and night” when, in fact, that was not the case;

(v) that [Client A] was a threat or danger when, in fact, that was not the case;

(vi) that [Client A] had been “parading around exposed” when, in fact, that was not the case;

(vii) at 22:42 hours that you had provided 16-30 minutes of 1:1 interaction with [Client A] when, in fact, that was not the case;

(viii) at 03:38 hours that you had provided more than 45 minutes of 1:1 interaction with [Client A] when, in fact, that was not the case;

(ix) [withdrawn];

(x) that Fucidin ointment was applied to [Client A] at 2200 hours when, in fact, that was not the case;

h) on or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you failed to take appropriate and/or adequate steps to ensure that [Client A] was not left exposed after she disrobed or partially disrobed;

i) On or about November 20-21, 2011, while working as a nurse in the Psychiatric Intensive Care Unit at [Facility A], you used the nursing station computer for personal use to an extent that it impacted negatively your performance of your nursing duties;

j) On or about December 29, 2011, you stated, “You can [take] your job and shove it up your fucking ass”, or made a statement to that effect, after being advised of your termination from [Facility A];

k) on or around May 17, 2012, while working as a nurse at [Facility B] and in the context of assisting colleagues with the physical restraint of a client you stated, “What the fuck are you doing?” and/or “Just give him the fucking needle”, or used words to that effect when a colleague offered the client a PRN medication;

l) on or about May 19, 2012, while working as a nurse at [Facility B], you did not open the door to speak to the parent of [Client C] when she came to speak with you about the care of her son and, instead, spoke to her through the door; and/or

m) on or about May 19, 2012, while working as a nurse at [Facility B], after the parent of [Client C] asked that you come out from behind the closed door of the nursing station to speak with her you stated to your colleague [ ], “Who the fuck does she think she is that she needs to be so close?” or used words to that effect.

Member’s Plea

The Member was not present nor represented by counsel, therefore the panel proceeded with the hearing on the assumption that the Member denied the allegations.

Overview

The Member was registered as a Registered Nurse with the College since 1900. She resigned on December 11, 2012.

The Member was hired on March 1, 2010, as a nurse in the Psychiatric Intensive Care Unit at [Facility A]. She was also a nurse in the Psychiatric Mental Health Unit at [Facility B]. The allegations relate to her employment at both facilities.

Most of the allegations relate to the Member’s treatment of [Client A] during the Member’s shift on the night of November 20-21, 2011, at the Psychiatric Intensive Care Unit at [Facility A]. There are also allegations concerning the Member’s treatment of a second client, [Client B], during her shift on May 17, 2012, at the Psychiatric Mental Health Unit at [Facility B].

To support the allegations in the Notice of Hearing, College counsel called five witnesses, including an expert witness in the practi[c]e of nursing standards in mental health and the use of restraints. The panel also accepted into evidence seven notarized affidavits from colleagues of the Member and a surveillance video of the events that occurred on November 20-21, 2011.

The panel found that all allegations in the Notice of Hearing were proven by the College on the balance of probabilities, with clear, cogent and convincing evidence.

The Evidence

The panel accepted the affidavit evidence of [College staff], who is employed at the College in the position of Prosecutions Administrator. It was her responsibility to assist with the preparation of correspondence and disclosure documents pertaining to the Member. In addition to serving the Member with the Notice of Hearing on November 19, 2013, [the Prosecutions Administrator] also sent the Member a letter enclosing the affidavits of certain witnesses. The letter advised that the College intended to have the affidavits admitted into evidence at this hearing. The Member did not respond.

College counsel asked the panel to admit these affidavits into evidence. The affidavits were affirmed by the Member’s former colleagues. All affiants stated under affirmation that the affidavits were reliable and true to the events that occurred, to the best of the ability of the witnesses. All affiants stated that their affidavits were made for the purpose of providing evidence at a hearing into allegations of professional misconduct against the Member and for no improper purpose.

College counsel advised that these witnesses were not readily available to testify, and asked the panel to consider the cost, time and inconvenience of the witnesses to be present in person. It was not practical to have the witnesses be present when some of them had now relocated to other provinces and, in one case, another country. The College was trying to be fair and prudent. The affidavits would be hearsay evidence, but the Member was not present to cross-examine these witnesses and did not raise any objection once told of the College’s intention to have the affidavits admitted into evidence.

The panel decided it would admit the affidavits into evidence, and would determine the weight of the evidence when coming to a decision regarding the allegations against the Member.

Evidence re: [Facility A] Incidents

Witness #1 – [ ], Nurse Manager, [Facility A], Psychiatric Mental Health Unit.

Background Evidence

[The Nurse Manager] is an experienced registered nurse of thirty years. Her role includes the responsibility for all functions of the Mental Health Unit including payroll, scheduling, communicating with family and staff, mock codes, staff meetings, hiring, orientation and disciplinary issues. The Mental Health Unit has a total of 38 beds, including nine psychiatric intensive care beds.

The Member was interviewed by [the Nurse Manager] for a position as staff nurse on the Mental Health Unit. [The Nurse Manager] found the Member to be very knowledgeable with twenty years of experience, although she noted there was a period of five years where the Member was unemployed. The Member had knowledge of the Mental Health Act, and the College’s published Standards. [The Nurse Manager] recalls that the Member answered appropriately to questions with respect to scenarios, [client] safety and psychiatric skills. The Member also presented as kind, caring and compassionate towards clients with mental health conditions and disorders. She was hired on March 1, 2010.

[The Nurse Manager] advised the Panel that the Member had completed both the hospital and unit orientations [ ]. The Member was also orientated to the following policies, all of which policies were in place prior to November 20-21, 2011:

• Psychiatric Intensive Care Unit (PICU) admission policy [ ];

• Restraint and Monitoring Devices Policy [ ], which specifies the criteria for restraints in the Mental Health Unit and hospital-wide; and

• Inpatient Mental Health Observation Levels [ ], which is only in place on the Mental Health Unit. This outlines the standard and guidelines that are used when certain types of restraints are used. This included the type of observation needed when a client is in five-point restraints.

[The Nurse Manager] reviewed the floor plan/layout of [the unit], including five photos of the PICU nursing station [ ]. This helped orient the panel as to where the incident occurred.

[Client A]

[Client A] was admitted to the Mental Health Unit on November 10, 2011. Evidence was given that on admission, [Client A] was suffering from psychosis, was fearful and declared incapacitated at one point during her admission. [Client A] would also scream without reason, disrobe in front of other clients, had disorganized thoughts and did require restraints for fear of harming herself. She had episodes where she needed to be secluded in her room, at which time a privacy screen would be used to ensure her privacy. [Client A] would also spit out her medication and complained of a sore tongue. The Member was aware that [Client A] had difficulty swallowing pills.

November 20-21, 2011

During night shifts there were usually three RNs on the Mental Health Unit, and one High Risk Officer (HRO). The HRO’s duties included doing rounds with the nurses, keeping staff safe and restraining [clients] if needed [ ]. On the night of November 20-21, 2011, an extra staff member, [RN A], was assigned to the Mental Health Unit from 1500-2300 because of the high acuity on the unit.

The Member was one of the RNs on duty that night. [HRO A] was the HRO. Breaks are taken one at a time, and never more than two people are to be off the Mental Health Unit at the same time. The charge nurse may relieve PICU staff as needed. The night shift was from 1900-0700. Breaks were started at 2330 hours and usually were half an hour to forty-five minutes in length. The Member was the first RN that night to take her break.

[Client A] was one of the clients assigned to the Member’s care that night. [The Nurse Manager] first became aware of a problem affecting [Client A] on the morning of November 21, 2011, when she saw an email she had received from the Member [ ]. The Member’s email stated that [Client A] had been observed “hanging over the side of her bed around 0430 hours this morning.” The side rails were up on the bed and [Client A] was “out of half her restraints.” The Member had also completed an Event Details Report [ ]. This document provides detailed information regarding the critical event that involved [Client A], and includes the Member’s entry where she notes, “Pt observed via video monitor to be hanging off her bed, she somehow managed to get herself out of the waist restraint, as well as her right wrist restraint, pt was still attached by her ankles, as well as left wrist.”

[The Nurse Manager] then contacted the Security Manager to obtain the video footage for the Mental Health Unit so she could review the events and determine what kind of care was given to [Client A], and how the event could have happened when [Client A] was supposed to be on constant observation.

In explaining what took place, [the Nurse Manager] relied on the relevant documentation and video coverage related to the events of November 20-21, 2011, which she reviewed prior to appearing before the discipline hearing. A DVD containing a copy of the video surveillance was submitted into evidence, having been authenticated through the affidavit evidence of [ ], the Manager of Security & Emergency Preparedness at [Facility A]. The panel viewed portions of the DVD during the course of the hearing.

[The Nurse Manager] noted that a report was given at the beginning of the Member’s shift, which indicated that [Client A] had a “good day” with a short episode of seclusion early in the morning. From 1904 to 1924 hours, [Client A] showed no signs of agitation or aggression. She was calm, entering and exiting her room, going to the nursing station and taking sips of fluid from a cup in her room.

At 1924, the video surveillance shows [Client A] slamming her door and then taking off her hospital gown. The Member at this point had the HRO lock [Client A]’s door and the lights were dimmed. [Client A] was resting quietly on her bed.

At 1924 to1953, the video shows [Client A] knocking on the door, lying on the floor, leaning on the bedside table and waving as if someone is saying hi. Her door was unlocked briefly at 1941 and [Client A] was out of her room but back in at 1944 when the Member locked her door again.

At 1953, the video shows the Member entering [Client A]’s room and handing her a cup. The medication sheet signed by the Member shows that Lorazepam 4 mg PO, Clonazepam 2 mg PO and Risperadal 3 mg PO were given. Fucidin ointment was supposed to be applied at 2200 but was not done (as the video proves). However, on the medication sheet, the Member initialled this as having been given.

At 2033, [Client A] was put into five-point restraints by the Member and five other hospital staff (including two HROs). [Client A] voluntarily went to bed and was cooperative and calm during this time and continued to be throughout the night.

From 1953 to 0424, the video shows the Member entering [Client A]’s room briefly four times. At 2004, the Member entered and put something on the table. At 2026, the Member gave medication to [Client A]. At 0245, the Member entered [Client A]’s room with [HRO A]. The restraints were removed and [Client A] went to the bathroom. The video shows that [Client A] was totally exposed, with her gown over her shoulders, and her bed sheets were saturated with urine. No attempts were made by the Member when she initially entered the room to cover [Client A]. When [Client A] returned to her room after using the bathroom, the Member proceeded to put [Client A] back into five-point restraints.

At 0332, the Member entered [Client A]’s room. The waist restraint had risen to [Client A]’s upper chest and her gown was off and on the floor. No intervention was done by the Member at that time other than to cover [Client A] with a sheet and leave the room. No attempts were made to re-adjust the waist restraint that had risen to [Client A]’s chest.

At 0409, the video shows [Client A] as restless, frustrated and banging on the bedrails, and exposed. She is also struggling with the waist belt at her breast and trying to get her left wrist restraint off. [Client A] continues to be restless and tries to re-position herself. She shows no signs of aggression or agitation during this time.

At 0424, a loud noise was heard coming from [Client A]’s room and the video shows staff running into the room. They observed that [Client A] fell off the side of the bed with both ankles restrained and left wrist restrained and back severely twisted. The Member did not assist with removing the restraints until 0427, when she removed one ankle restraint. [Client A] was then assisted to the bathroom. She was visibly limping. [Client A] was calm and cooperative as she had been throughout the entire night. Care was provided by other registered staff, and not by the Member.

At 0433, [Client A] was again put into five-point restraints and all staff, including security, left the room. Five-point restraints remained on the [client] until 0700 that morning.

[The Nurse Manager] testified that the video shows abuse of [Client A]. It also showed a lack of care, kindness and compassion by the Member. [The Nurse Manager] testified that when viewing the video, it seemed to her that [Client A] was calm, cooperative and following directions. According to [the Nurse Manager], [Client A] did not meet the criteria for five-point restraints and did not need to be in restraints. [The Nurse Manager] also testified that the normal procedure is to try to de-escalate the situation and use PRN medications before considering the use of restraints. It is the policy of the Mental Health Unit and [Facility A] that a “least restraint” measure is to be used for all clients.

It is also the unit policy that visual checks are to be done when a client is in five-point restraints. The video clearly shows that the Member did not check [Client A] as required by [the] restraint policy.

The Member sat at the nursing station where she was able to observe the [client] throughout the night. The evidence shows that the Member was using the hospital computer for personal use that night. [The Nurse Manager] testified that the Member was watching DVDs and accessing online shopping sites. [The Nurse Manager] discovered this by running a report for the night of November 20-21, 2011, regarding the use of the hospital’s computer. She testified that there were hits to non-nursing sites and “gaps of nothing”. She explained that there was something in the computer’s disk holder that was being used that night. When asked by College counsel what this meant, [the Nurse Manager] testified that this would indicate that a DVD was in the holder. She testified that “a good portion of the shift” showed that the disk holder was used by the Member.

The Member’s Charting

[The Nurse Manager] identified [Client A]’s chart, which was part of the evidentiary record before the panel. The entries charted by the Member with respect to the incident in question do not fit with the video and other evidence. For example, the Member charted at 0338 that she had spent more than 45 minutes doing one-to-one interaction with [Client A].

As other examples, the Member made the following entries in the chart.

• 21/11/11 at 0338 – “Unable to follow staff re-direction thru the evening, eventually had to be placed in 5 point restraints. Initially she was secluded to her room, but kept screaming and banging on the door, while in restraints pt kept disrobing, she was assisted to the BR, tried to push her way away from staff, had to be physically re-directed, given fluids, and encouraged to settle, but to no avail, pt remains in 5 point restraints, and screaming in her room.”

• 21/11/11 at 0624 – “Shift Summary – [Client A] had a very difficult evening, initially she had to be secluded to her room, as she was not following staff-redirection and parading around exposed, banging on the door, requiring 5 point restraints ...”

The Investigation

The video was initially reviewed by [the Nurse Manager] , the Director of Patient Services, the Director of Human Resources, the Manager of Risk and Safety, and the Manager of Labour Relations. A decision was made to put the Member on a paid suspension until further investigation.

[The Nurse Manager] interviewed all staff, except one nurse, who had been on the shift with the Member that night. Staff was asked what they saw, what happened, what their impressions were, and what the Member had been doing.

Comments from staff were that the Member was “unprofessional”,” abusive”, “watching TV on the computer with earphones in” and, “nasty to patients”. One nurse stated that she did not want the Member on her staff. One nurse told [the Nurse Manager] that she had heard the Member say to [Client A], “If you don’t settle down I will cancel your visit with your father tomorrow.” [The Nurse Manager] noted that this statement would have been very upsetting to [Client A], as she enjoyed her father’s visits.

[The Nurse Manager] testified that she met with the Member twice on or about the end of November to December 2011. The union representative for the Member and a human resources representative were also present during the first interview. The Member did not ask a lot of questions. She was asked by [the Nurse Manager] what happened that night. Initially the Member did not mention that she was watching DVDs but stated “it was busy”. The Member also told [the Nurse Manager] that the acuity was high and that she discussed this issue with her colleagues. The Member felt that the [client] assignments were unfair but could not justify why she applied five-point restraints to [Client A]. When further questioned by [the Nurse Manager] as to how [Client A] could have fallen out of bed, the Member answered by stating, “Woulda, shoulda, coulda”. The Member did finally admit that she watched a movie on DVD during her shift. [The Nurse Manager] described the Member’s conduct at the interview as unprofessional, curt and showing no remorse. [The Nurse Manager] testified, “No quality of a nurse came out”.

[The Nurse Manager] met with the Member again in December of 2011. The outcome of the investigation was discussed. The Member was informed that she had contravened the College’s Standards of Practi[c]e and that her employment was being terminated. Upon leaving the meeting, the Member stated, “Take your job and stick it up your fucking ass”. The meeting was then concluded.

Witness #2 – [RN B]

[RN B] has been employed at [Facility A] for twenty-one years as an RN in the Mental Health Unit. She works both the general mental health unit and the PICU. When questioned by College counsel regarding the use of restraints, including questions about the policies and procedures for implementation of restraints, [RN B] was able to answer with confidence that she was well aware of the least restraint policy and the observation required to promote the safety of clients, including [Client A].

[RN B] also testified that restraints are used as a last resort and that it is the staff’s responsibility to de-escalate the situation and/or use PRN medications before deciding to [ ] use restraints, unless there is a threat to others or self.

[RN B] worked with the Member on the night of November 20-21, 2011. [RN B] testified that the Member provoked [clients], resulting in the seclusion of [clients]. When [Client A] approached the desk, the Member said, “Get out of here”. She did not like other colleagues interfering with “her clients”. The Member also stated to [RN B] that evening, “Bet you any money that the client will end up in restraints ... Mark my word”. [RN B] testified that it was the Member’s pattern to seclude, restrain or sedate the clients that she was assigned to care for.

The Member was watching DVDs on the computer monitor with earphones on. This was described as typical behaviour for the Member. When the incident occurred with [Client A] that night and nurses entered the room, the Member was standing by the side of [Client A]’s bed with her hands in front of her. No movement was made by the Member to remove the restraints. The Member stated, “I don’t have a key”. The restraints were removed and [Client A] was brought to the bathroom by other staff members.

[Client A] was complaining that her ankle was sore. [Client A] was put back into five-point restraints. The Member said, “Get down,” and [Client A] lay back down on bed so the restraints could be re-applied. The Member tied [Client A]’s ankles together when [RN B] intervened and stated that this was “overkill”. There was no need to tie [Client A]’s ankles together since she was calm, cooperative and following directions.

[RN B] told the Member to report to the day shift to have [Client A]’s ankles x-rayed. The Member replied, “What for?” The Member’s tone was angry. [RN B] also testified that [Client A] did not meet the criteria for five-point restraints.

[RN B] viewed the Member as “a disgrace to the profession” and testified that the Member “was not professional”. When asked by College counsel, “Was there anything that could have been done when you asked her about removing the restraints?” [RN B] answered, “No”. She wanted to avoid a confrontation with the Member and there would have been a verbal fight. [RN B] testified that nobody tells the Member what to do.

Witness #3 – [RPN A]

[RPN A] is employed at [Facility A]. She has been an RPN since 1983 with ten years spent in obstetrics and ten years as a psychiatric nurse. She works the general area of the Mental Health Unit and does not work PICU.

She worked with the Member the night of November 20-21, 2011, however she was not assigned to [Client A]. She testified that she noticed something on the monitor and then heard sounds and a call for help. She did not recall the name of the client or the room. When she entered the room with [RN B], the client was face down on the floor with both ankles and left arm still restrained. The restraints were so tangled that it was difficult to get the restraints off. She and [RN A] (another nurse) were working on getting the restraints off when the Member entered the room with gloves on. The Member again stated she had no key when she was asked to help remove the restraints. Once the client restraints were removed, both [RPN A] and [RN A] took the client to the bathroom. [RPN A] testified that she heard the Member say, “No, let’s get her back into bed”.

Restraints were being re-set on the bed for the client. [RPN A] heard the Member saying to the client, “Just lay down” and, “Get into bed.” A drink was given to the client. When the restraints were re-applied, the client stated, “It hurts, it hurts”. The Member said, “Put them on tighter,” referring to the client’s ankle restraints. The Member wanted them tied together.

[RPN A] testified that the Member showed no empathy, compassion, or concern for the client’s safety or care. She described the Member as “harsh”.

[RPN A] described the client as being “child like,” afraid, nervous, timid and sorry. The client also stated, “I don’t want to get anyone in trouble”. [RPN A] also testified that the client was afraid to say anything. The Member had no intention of reporting the incident until [RPN A] informed her that it needed to be reported. [RPN A] testified that someone called security to obtain the video and it was viewed by security prior to the end of the shift.

Affidavit of [HRO A]

[HRO A] was employed as a High Risk Officer with Group Four, a security company located within [Facility A] from July 2010 to December 2012. He currently resides in [another province].

[HRO A] was scheduled to work the night of November 20-21, 2011, from 1900-0700 on 4C-PICU. As a HRO, his duties included conducting frequent patrols of the Mental Health Unit, responding to all emergency codes within the Mental Health Unit, advising staff of changes in behaviour of [clients] being monitored, and assisting with restraint applications as directed by clinical staff. The Member was assigned to that shift and assigned to [Client A].

According to [HRO A]’s affidavit, at approximately 1924, [Client A] appeared upset, approached the nursing station door and calmly asked the Member if she could call her father. The Member responded by stating “No” and [Client A] ran to her room crying. The Member then ordered [HRO A] to lock [Client A] in her room.

[Client A] repeatedly asked to call her father over the next hour. At approximately 2024, the Member ordered that [Client A] be placed in five-point restraints. [Client A] continued to ask the Member to allow her to call her father. The Member denied the request and advised [Client A] that her behaviour did not warrant a call to her father. During this time, the Member continued to advise [Client A] that if her behaviour continued, the family visit would be cancelled the next day.

Throughout the night, [HRO A] observed that the Member was using the computer at the nursing station a lot to visit online shopping sites.

Affidavit of [RN C]

[RN C] has been registered with the College as a Registered Nurse since 1972. She has been employed as an RN on the Mental Health Unit at [Facility A] since 1989 and initially worked in pediatrics, labour and delivery and long-term care. She has worked in psychiatric nursing for over 21 years.

She was scheduled to work PICU at [the Facility] on the night of November 20-21, 2011, from 1500-2300. She worked as an extra RN that shift because of higher and unusual [client] acuity that night. Her role that night was to assist other RNs working on PICU. Those other RNs included the Member.

[RN C] recalls the Member advising [Client A] that she was going to get a needle if she would not take her medication that was being offered to her orally. The Member made the comment to [Client A] that if she was having difficulty swallowing her medication, an injection would be given. She described the Member’s tone and manner as being threatening and demanding.

[RN C] met with management on November 29, 2011, to discuss the events that occurred during the night of November 20-21, 2011. She advised management that the Member had been yelling at [Client A] to swallow her medication before making a comment, “That’s it, I am going to get a needle” or words to that effect. She also advised management that she would not have spoken to a dog in that manner. She testified that she was being truthful when she spoke with management about what occurred.

Affidavit of [RN A]

[RN A] is currently retired and residing in [another country] over the winter until April 15, 2014. She has been registered with the College as a RN since 1983. From approximately 1983 until she retired, she worked as an RN at [Facility A]. She spent seven years working in the psychiatric unit at [Facility A].

She was scheduled to work PICU the night of November 20-21, 2011, from 1900-0700 with the Member. One of the clients assigned to the Member that evening was [Client A].

On November 28, 2011, [RN A] sent herself an email regarding the events that occurred during the night of November 20-21, 2011, though she erroneously referred to the date as November 19, 2011. The email was attached as Exhibit “A” to her affidavit. [RN A] deposed that when she drafted the email, she had a clear recollection of what had occurred during that shift. She also met with management on November 28, 2011, to discuss what happened during the shift of November 20-21, 2011.

[RN A] advised management that she felt the Member had provoked [Client A] by failing to meet her needs and by using a tone of disrespect when conversing with her. [RN A] also did not feel that restraints were warranted or necessary for [Client A] that evening. [RN A] was upset by how the Member treated [Client A]. [RN A] did not find [Client A] irritable. [Client A] became irritated only after the Member did not respond to her request at the nursing station. [Client A] was able to follow directions without any difficulty.

[RN A] observed the Member watching a television show on the computer in the nursing station with her back to the monitors when she returned from her break at approximately 0410. [RN A] also observed the Member viewing online shopping sites on the computer.

Evidence re: [Facility B] Allegations

Witness #4 – [RN D]

[RN D] has been a registered nurse since 2001. She is employed at [Facility B] in [ ]. She was hired in 2007 and has experience as the Professional Practi[c]e Leader in Nursing. Her duties include overseeing nursing practi[c]e and standards within the corporation.

[RN D] has knowledge of the Member through the human resource department, based on documents related to events which occurred on or around May 17, 2012, while the Member was working on the Child and Adolescent Program (CHAD) at [Facility B]. CHAD consisted of a 10-bed unit for adolescents and children under the age of 18 who suffer from anxiety, depression, ADHD and substance abuse. The parent of [Client C] complained that the Member was swearing while another [client] was being restrained. This parent was then concerned about her own child since the Member was assigned to care for her child, [Client C].

[RN D] identified [ ] the nursing schedule for May 16, 2012, on the CHAD unit. This showed the Member was assigned to work that day. She also identified [ ] the Least Restraint Management Policy- Mental Health and Addictions Program. It is the hospital policy that the least restraint policy is to be implemented when de-escalation or medications have proved ineffective.

Management at [Facility B] became aware of two incidents involving the Member. The first was that on or around May 17, 2012 while assisting colleagues with a physical restraint of [Client B], it was alleged that the Member used offensive language stating, “What the fuck are you doing?” and/or, “Just give him a fucking needle”, when a colleague offered the client a PRN medication. The second incident involved the mother of [Client C]. [Client C]’s mother approached the Member to speak with her about [Client C]. The Member did not open the door to speak with her but instead spoke through a closed door. The Member’s colleague, [ ], confronted the Member about speaking with [Client C]’s mother from behind a closed door. The Member allegedly used offensive language, stating “Who the fuck does she think she is that she needs to be so close?” or words to that effect.

The Member was suspended from her employment at the end of May 2012 until the incidents could be fully investigated. The Member resigned on March 5, 2013.

Affidavit of [RN E]

[RN E] has been registered with the College as a Registered Nurse since 2007. She has been employed as an RN at [a mental health facility] since 2007 and also worked as an RN in the PICU at [Facility B] since 2008.

On or about May 16 or 17, 2012, she was working on the PICU at [Facility B] on the day shift. During her shift a young male client (not named or otherwise identified in the affidavit) became increasingly aggressive to the point that he became physical and was restrained by [the Children and Youth Counsellor (the CYC)]. The Member arrived shortly after to assist [the CYC].

[Facility B] has a least restraint policy. [The CYC] and [RN E] began to implement it. When the client became more aggressive and his behaviour escalated, [RN E] confirmed that the client’s chart had a physician’s order for oral medication to be administered on an as needed basis (“PRN”). [RN E] prepared the client’s oral PRN medication while another nurse was preparing an IM injection in case it was needed.

When [RN E] knelt down to offer the restrained client the oral PRN medication, the Member stated, “Are you fucking crazy?” The Member felt that the client was unlikely to accept the oral PRN medication. The incident was witnessed by another client and that client’s mother ([ ], who also provided an affidavit).

[RN E] did not report this right away, but spoke to her Manager about the incident approximately one week later. She had been reluctant to report because when she had previously reported the Member to management, the Member had refused to talk to her, refused assignments and would not take orders from her when she was in charge.

Affidavit of [Client C’s Mother]

[This] is the mother of [Client C] who was a [client] on the PICU at [Facility B] from approximately May to June 2012. While her son was a [client] at [Facility B], she witnessed an incident involving the restraint of a young male [client] which took place in the hallway not far from where she was standing with her son. She recalled the use of offensive language being used during the restraint, especially swearing. She does not recall who exactly was swearing. She later spoke with the social worker at [Facility B], [ ], about the incident. She was concerned about her son being treated in the same manner as the boy who had been restrained.

[Client C’s mother] also recalled an incident when she was trying to speak to a nurse about her son. The nurse, whose name she could not recall, was sitting at the nursing station when [Client C’s mother] went to speak with her about the exchange she had with her son earlier in the day. The nursing station was enclosed in glass and the door was locked. When [Client C’s mother] knocked on the glass to speak with the nurse, the nurse would not come out so [Client C’s mother] tried to speak with her through the door. The nurse eventually came out and spoke with her. They walked to [Client C]’s room and talked there. [Client C’s mother] does not recall the specifics of the conversation. She felt exasperated that the nurse would not come out of the nursing station to speak with her. In her experience, other nurses came out of the nursing station or opened the door when she came to speak with them.

After the nurse returned to the nursing station, [Client C’s mother] could hear raised voices but she could not hear what was being discussed.

Affidavit of [RN F]

[RN F] has been registered with the College as an RN since 1999. She is currently employed full-time as an RN at [another facility] and as a casual, part-time RN in the mental health unit at [Facility B].

On or about May 19, 2012, she was working on the PICU at [Facility B] with the Member. At approximately 1545, the Member and [RN F] were sitting at the nursing station which was enclosed in glass when [Client C’s mother] approached the nursing station. [RN F] recalls that the Member was looking at watches or bags on the computer. The Member was assigned to [Client C] that evening and [Client C’s mother] was attempting to speak to the Member about [Client C] through the window. The Member did not open the door to speak with [Client C’s mother]. Eventually, [Client C’s mother] asked the Member whether she could come closer to speak to her. The Member then exited the nursing station. [Client C’s mother] was apologetic to the Member and proceeded to ask the Member if there was some kind of tension between them and whether the Member did not like her son. [Client C’s mother] and the Member then walked down the hall and [RN F] did not hear the rest of the conversation. The Member returned to the nursing station and said, “Who the fuck does she think she is that she needs to be so close?”, or words to that effect.

[RN F] understood the Member had interpreted [Client C’s mother]’s request to come closer to her as a way to become friends. [RN F] explained to the Member that [Client C’s mother] only wanted to speak to her outside the nursing station and not through the glass so they could hear each other.

Approximately one week later, [RN F] spoke to her manager about what had occurred that evening.

Expert Evidence

Witness #5 – [ ] (Expert Witness)

[Witness #5] was tendered by College counsel as an expert witness with regard to nursing standards in mental health and the impact and use of restraints in mental health units.

Her formal education includes the following:

• B.Sc. in Nursing – University 2011

• Leadership and Management in Nursing Certificate 2011

• Canadian Psychiatric Mental Health Nurse Certificate 2009-2010

• Dorothy Wylie Nursing Leadership Certificate 2003

She first became a Registered Nurse [overseas] in 1977. She is a member of this College, a member of the Registered Nurses Association of Ontario and a member of the American Society for Health Risk Management. The witness has written journal articles to engage police in learning about mental illness using simulation. She has also published abstracts relating to learning units which benefit and challenge staff, students and faculty in a Mental Health Practicum. She has also made numerous presentations with regard to mental illness.

The panel determined after reviewing [Witness #5]’s curriculum vitae [ ] and hearing her responses to questions posed by College counsel that she qualifies as an expert witness in the areas of nursing standards applicable to mental health facilities, including the use of restraints. The expert witness testified that she understood her duty to the panel and that her evidence would be fair, objective, neutral and non-partisan and confined to the matters that are within her area of expertise.

[The expert] testified to the importance of understanding behaviours that require the intervention of restraints within a mental health environment. She stated that the client with a mental health condition or disorder is extremely vulnerable. The nurse takes on a very special role when caring for clients who have mental health conditions and can easily use that power to access clients’ vulnerability in providing the care required in some situations.

[The expert] identified the hypothetical scenario given to her by the College. As to “Client A”, where the hypothetical facts matched up with the evidence regarding [Client A], [the expert] testified to the following concerns.

• [Client A] was newly diagnosed with a mental health illness and did require the use of restraints early on in the admission to the Mental Health Unit.

• On November 20-21, 2011, [Client A] presented as calm when she approached the nursing station several times to seek assistance from the Member. She was told to go back to her room on several occasions.

• [Client A] was then isolated in her room when the HRO locked the door. [Client A] did become frustrated but did not show any aggression toward self or others. She had no interactions with staff. She appeared frightened and scared. [The expert] testified that this could have caused further distress and escalation of her behaviour.

• Five-point restraints were applied to [Client A] who was co-operative and following directions given by the Member. [The expert] stated that the Member contravened the College’s standards of practice when providing care to [Client A]. She ignored clear guidelines set out by the unit’s policy on the use of restraints. By applying restraints with no justification, the Member made the situation worse. There was a lack of autonomy, respect and care. The Member refused to acknowledge the impact of applying restraints to a client who showed no signs of aggression and harm to self or others.

• After reviewing the nursing documentation and video, [the expert] testified that the interactions between the Member and [Client A] were minimal. No attempts were made by the Member to de-escalate the situation or provide PRN medications.

• It seemed to [the expert] that [Client A] was a nuisance to the Member.

• The Member was aware that the client had difficulty swallowing and attempted to give the client a PRN medication during the night when she was lying flat in bed.

• The client was found incontinent of urine.

• The client was to be on constant observation with safety checks to be done, which were ignored by the Member.

• No adherence to the hospital and unit policies was found in the documentation reviewed by the expert.

• From 2200-0245, there were no interactions between the client and the Member. From 0959-0245, all monitoring of the client was done via the nursing monitor. The therapeutic nurse-client relationship standard was contravened since it is difficult to provide care through a monitor.

• The Member was occupied shopping online and watching videos throughout the night.

• The client was fully controlled and strapped to the bed, which completely violates the standards of practice and legislation. The client’s condition did not warrant this behaviour and communication needs to occur between the nurse and client.

• The Member provided no care, exhibited no empathy or reassurance and no physical assessment was done.

• Large gaps in monitoring occurred throughout the night.

• The Member did enter the room during the night and found that the waist restraints had moved from the client’s abdomen to her chest. The Member made no attempt to re-adjust the restraint and proceeded to cover the client then leave the room.

• The client became agitated, banging on the rails for fifteen minutes prior to her falling out of the bed. Even after the event, the client was brought to the bathroom and then restraints were re-applied even though the client was calm and cooperative. The client remained that way until 0700 that morning.

In sum, the expert witness testified that the Member contravened the standards of practi[c]e of the profession in several ways throughout the night of November 20-21, 2011. The specific published College standards identified by the expert as relevant were the Professional Standards, Revised 2002 and the Therapeutic Nurse-Client Relationship Standard, Revised 2006. The Member provided a non-caring environment, which had a negative impact on the client, especially when the Member threatened that a family visit was not going to happen. The Member had a responsibility to provide a caring environment, to promote safety and assume accountability for the client. Her duties were to support, respect, promote trust and treat the client with dignity, which she failed to do. The expert witness also testified that privacy screens should have been used when the client was attempting to disrobe and that many alternatives could have been provided to the client prior to applying unnecessary restraints. The Member’s behaviour was neglectful. Withholding care, using an inappropriate verbal tone, threatening, and gesturing violate the role of the nurse and duty of service to the client. She contravened the standards of practi[c]e of the profession.

In addition to a breach of standards, [the expert] testified that the Member’s conduct was also abuse. She gave testimony as to the definition of what constitutes abusive behaviour, referenced in [ ] the Therapeutic Nurse-Client Relationship Standard, Revised 2006. She testified that abuse can take many forms including verbal, emotional, physical, neglect, sexual and financial.

By neglecting the client’s care, using a tone of contempt while conversing with her and using control through the power of her position, the Member’s conduct would be considered abuse. The Member dismissed the client’s needs by holding her hand up toward the [client], indicating, “leave me alone”. She also threatened the client with “an injection” and by telling her that she would not be able to contact her father if she continued to bother her. The Member’s manner was intimidating and she used threatening gestures and actions toward the client. She also used offensive language and spoke to the client in an inappropriate tone of voice. This was displayed when the client approached the nursing station several times. The Member showed signs of neglecting the client by non-therapeutic confinement or isolation of the client in her room. The use of five-point restraints when not warranted was abusive. The Member also denied the client care by not meeting her basic needs, by not properly monitoring the client throughout the night while she was in restraints and by minimizing communication with her. The expert testified that all of these incidents amounted to verbal and emotional abuse including neglect.

The expert also gave her opinion with regard to a client identified in her hypothetical scenario as “Client B”. The hypothetical facts assumed for this client matched the allegations and evidence given regarding [Client B]. The expert testified that the Member’s conduct contravened the standards of practice and violated the requirement to foster collegial relationships. The Member’s use of profanity was unprofessional and models aggressive behaviour and conflicts with the goal of calming the client. The expert also testified that the Member’s conduct violates the Therapeutic Nurse-Client Relationship standard.

Final Submissions

College counsel submitted that the College has the onus to prove the allegations set out in the Notice of Hearing on the balance of probabilities.

The first allegation is that the Member failed to maintain the professional Standards of Practi[c]e. College counsel asked the panel to rely on the expert’s evidence and determine whether the Member’s behaviour failed to meet the professional standards of the College.

The second allegation is abuse. Again, College counsel referred to the evidence of the expert witness. The Member had a responsibility to provide a safe environment and be accountable for her actions. Her role was to support and respect the client’s needs and promote trust and dignity to the client. The client was not capable to care for herself due to her illness, leaving her exposed and vulnerable. The Member was neglectful and disrespectful and it rose to the level of verbal, physical and emotional abuse.

The third allegation is falsification of a record relating to the Member’s practice. College counsel referred to the medical records of [Client A] and the Member’s documentation and submitted they did not correlate with the video evidence submitted, nor the testimony of witnesses. College counsel noted that medical records have a privileged place in the legal system and that nursing records are considered true and accurate. The Member’s deceptive charting was used to justify the Member’s conduct and paints an inaccurate picture of [Client A]’s condition and describes what appears to be setbacks in [Client A]’s progress. The video evidence also clearly demonstrates a discrepancy between the medication administration record documentation and proves a failure to apply medication as ordered.

The final allegation is that the Member engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. College counsel submitted that a finding of disgraceful, dishonourable and unprofessional is warranted based on the multiple standards of practice that were breached including the Ethics Standard, Therapeutic Nurse-Client Relationship Standard and the Medication Standard. The Member’s conduct amounts to abuse. The dishonesty and deceit involved in falsifying records further supports a finding. College counsel asked the panel to consider the Member’s overall conduct, which showed a complete disregard for the standards of practice as well as for the welfare and safety of an extremely vulnerable individual. Her conduct illustrated a significant abuse of power, all of which would reasonably be considered as disgraceful, dishonourable and unprofessional by members of the profession.

College counsel submitted that it had proved all allegations in the Notice of Hearing on the balance of probabilities, except for allegations 3(i) and 4(g)(ix) which were withdrawn.

Decision

The panel considered the evidence and that fact that the College bears the onus of proving the allegations in accordance with the balance of probabilities. The proof must be clear and convincing based on cogent evidence accepted by the panel.

The panel finds that the Member has committed professional misconduct in that she contravened and failed to meet the standards of practi[c]e of the profession as set out in allegations 1(a) through (h).

The panel finds that the Member committed professional misconduct in that she abused a client as set out in allegations 2(a) through (f).

The panel finds that the Member committed professional misconduct in that she falsified a record relating to nursing practi[c]e as set out in allegation 3(a) through (h) and 3(j).

The panel finds that the Member committed professional misconduct in that she engaged in conduct or performed an act, relevant to the practise of nursing, that, having regard to all of the circumstance, would reasonably be regarded by the members of the profession as disgraceful, dishonourable and unprofessional with respect to allegations 4 (a) through (i) and 4(k). With respect to allegations 4 (j), (l), and (m), the panel finds that the Member engaged in conduct that was unprofessional.

Reasons for Decision

The panel assessed the credibility of the witnesses who testified by taking into account the appearance and demeanour of the witness, each witness’ opportunity to observe and capacity to remember, the probability or reasonability of each witness’ evidence, any internal and external inconsistencies in the evidence, and each witness’ interest in the outcome. The panel found the witnesses to be credible based on the testimony they gave under solemn affirmation, and their recall of the events that occurred on the night in question. The oral evidence was corroborated and supported by other evidence, such as the DVD. There is no indication that the witnesses had any personal interest in the outcome of this hearing and there were few inconsistencies amongst the witnesses. Any inconsistencies that arose were not material.

For the evidence presented through affidavits, the panel reviewed each individual affidavit and determined the appropriate weight of each. The panel considered that the Member had been provided with the College’s intention to admit the affidavits as evidence and had [not] objected or provided any response. Cross-examination of the evidence was not an issue as the Member was not present, nor was she represented by counsel. The panel found that the evidence within the affidavits was unchallenged, consistent, and there was no evidence to suggest a motive to fabricate on behalf of the affiants.

Overall, the evidence was clear, cogent and convincing that the facts occurred as alleged by the College in the Notice of Hearing. In light of these facts, the panel accepted the opinion of the expert witness who testified that the actions of the Member constituted abuse and contravened the College’s published Professional Standards, Revised 2002 [ ] and the Therapeutic Nurse-Client Relationship Standard, Revised 2006 [ ].

The panel considered all of the evidence supporting allegation 3, including the health records of [Client A], witness testimony and the DVD evidence. The panel finds that the Member falsified records in a deliberate and sustained manner in order to justify the Member’s conduct. The records she authored provide an unreliable and inaccurate reflection of [Client A]’s condition and progress. The video evidence clearly shows the discrepancy between the Medication Administration Record and reality. It is obvious through the video footage that [Client A]’s behaviour and demeanour is not accurately reflected in the nursing documentation completed by the Member that night. The Member’s documentation of the shift, including her interactions with [Client A] and nursing interventions provided to [Client A], are undermined through the testimony of witnesses and the video evidence. The Member should have known that falsifying records is an abuse of power as it robbed [Client A] of her dignity, undermined her recovery and exposed her to greater risk.

The panel found that the Member’s disregard for her professional obligations as a nurse is a serious matter. In addition, the Member engaged in conduct that had elements of moral failing. She should have known, or ought to have known, that her conduct was seriously wrong.

Penalty

The College submitted that, since the Member resigned her certificate of registration prior to this hearing, there is no longer any certificate that this panel can revoke, suspend and/or put terms, conditions and limitations on. However, the College asked the panel to indicate that the appropriate order in this case would have been revocation.

The panel has reviewed the cases submitted by the College and deliberated on the proposed order. The panel agrees that in light of the serious nature of the panel’s findings, the appropriate order in this case is revocation. Had the Member had an active certificate of registration, this panel would have ordered revocation. The Member was in a position of authority and abused her position while caring for clients.

The panel trusts that should the Member decide to apply to return to the practi[c]e of nursing, our decisions and reasons would be considered by the College.

I, Megan Sloan, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Lorenza Barron, RN

Grace Fox, NP

Mary MacMillan-Gilkinson, Public Member

Margaret Tuomi, Public Member