College of Nurses of Ontario v. Brooke Steinhoff, 2014 CanLII 90720

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Nancy Sears, RN Chairperson Susannah McGeachy (formerly Handley), RN Member April Plumton, RPN Member Renate Davidson Public Member Margaret Tuomi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) SHANE SMITH for ) College of Nurses of Ontario

• and - )

BROOKE STEINHOFF (formerly Rasinaho) ) CAROL STREET for Registration No. 0554998 ) Brooke Steinhoff

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: October 29, 2014

PENALTY DECISION AND REASONS

Penalty

On October 15, 2014, the panel released its decision and reasons for decision with respect to its findings of professional misconduct. The panel reconvened on October 29, 2014, at the College of Nurses of Ontario (the “College”) to hear submissions as to the appropriate order.

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

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two meetings with a Nursing Expert (the “Expert”), at her own expense and within six months 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,

2. Therapeutic Nurse-Client Relationship,

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

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

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any [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 the Member’s suspension ends, 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

3. 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

The panel heard submissions from Counsel for the College and the Member regarding the Joint Submission on Order.

College Counsel submitted that the proposed penalty is reasonable, in the public interest, and falls within the range of penalties previously issued by Discipline Committee panels in cases of professional misconduct with similarities to this case. College Counsel further submitted that the proposed penalty meets the requirement of providing specific and general deterrence, remediation, and public protection.

College Counsel submitted that both specific and general deterrence are provided through the proposed three-month suspension of the Member’s certificate of registration, which reflects the seriousness of the Member’s actions and sends a clear message to the Member and other professional members that conduct of this nature will not be tolerated.

College Counsel submitted that the proposed penalty also provides for education, remediation, and rehabilitation of the Member through required review of professional standards, meetings with a nursing expert, and completion of learning modules.

The proposed penalty addresses the issue of public protection through the three-month suspension, the twelve-month employer notification period, as well as the proposed educational and rehabilitative program.

College Counsel submitted that mitigating factors in this case included:

1. The Member has no prior record of disciplinary proceedings with the College; and

2. The Member cooperated with the College with regard to developing the Agreed Statement of Facts and the Joint Submission on Order.

College Counsel submitted that aggravating factors included:

1. The seriousness of the activity which formed the basis for the finding of professional misconduct; and

2. The client’s vulnerable status at the time of the Member’s misconduct.

College Counsel submitted three prior Discipline Committee decisions to aid the panel in determining that the Joint Submission on Order falls within the range of penalty orders made by previous panels in similar cases. These cases included CNO v. Clitheroe (Discipline Committee, 2008), CNO v. Andrews (Discipline Committee, 2009), and CNO v. Guilbeau (Discipline Committee, 2010). While College Counsel acknowledged that each of these cases contain a unique set of facts which distinguish them from the current case, he submitted that these cases are instructive as they include similar elements of professional misconduct: for example, failing to protect a client from abusive treatment (CNO v. Clitheroe, 2005), and engaging in emotional and/or physical abuse of a vulnerable client (CNO v. Andrews, 2009; CNO v. Guilbeau, 2010). In these cases, penalties included the same elements proposed in the Joint Submission on Order, including an oral reprimand, a period of suspension, a rehabilitative program, and a period of employer notification. The variation in penalty orders in these cases lies in the length of suspension period, ranging from three months (CNO v. Guilbeau, 2010) to seven months (CNO v. Andrews, 2009). College Counsel submitted that this variation reflects differing levels of severity of the emotional and physical abuse found in these cases, along with other factors.

College Counsel reminded the panel of their responsibility to accept Joint Submissions on Order except when doing so would be contrary to the public interest or bring the discipline process into disrepute. College Counsel submitted that in the case before the panel, the proposed penalty, including a three-month suspension, is reasonable given the serious nature of the professional misconduct and falls within the range of acceptable outcomes.

Defence Counsel agreed with College Counsel’s submissions and reinforced his submission that, in most cases, the Joint Submission on Order agreed to by both parties should be accepted by the panel.

Defence Counsel drew the panel’s attention to a recently published Discipline Committee decision, CNO v. Russell (Discipline Committee, 2014), in which a panel found that Ms Russell, the Member’s former colleague, committed acts of professional misconduct relating to the same incident at issue in the current case. The penalty ordered in CNO v. Russell includes identical elements to the proposed penalty for the Member, with the exception that in Ms Russell’s case, a two-month suspension was ordered. Defense Counsel submitted the difference in proposed lengths of suspension can be attributed to Ms Russell’s less direct involvement in the abusive activity during the incident.

Defence Counsel noted in her submission that the Member’s career, financial stability, and home life have been profoundly affected by the incident which has been the subject of this hearing. She also noted that the nature of her client’s work at the time of the incident was challenging in that understaffing and client crowding in the emergency department at her hospital made management of [client] flow difficult, creating a high stress, problematic work environment for nurses.

Defence Counsel also reiterated an earlier submission that, while at the time of the incident the Member felt that she was “doing the right thing,” she now acknowledges she was wrong and has taken positive remedial steps by cooperating with the College since the outset of these proceedings. Furthermore, the Member has demonstrated her willingness to comply with the terms of the Joint Submission on Order. For example, the Member has already arranged meetings with a nursing expert, has completed the One is [One] Too Many workbook, and has made her current employer aware of these proceedings and that an upcoming suspension is likely.

Penalty Decision

After deliberating on the submissions from both Counsel on penalty, the panel accepts the Joint Submission as to Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for three months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a. The Member will attend two meetings with a Nursing Expert (the “Expert”), at her own expense and within six months 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,

2. Therapeutic Nurse-Client Relationship,

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

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

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any [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 the Member’s suspension ends, 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

3. 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

After reviewing details of the case, penalty orders in similar cases, and submissions made by College and Defence Counsel, the panel concluded that the proposed penalty is reasonable, in the public interest, and serves to strengthen public confidence in the College’s successful regulation of its professional members. The panel is satisfied that the penalty addresses issues of specific deterrence, general deterrence, and rehabilitation/remediation. In its deliberations, the panel duly considered that Joint Submissions on Order should not be overturned lightly.

The panel is satisfied that specific and general deterrence is achieved through the three-month suspension of the Member’s certificate of registration, oral reprimand, and the terms, limitations, and conditions to be placed on the Member’s certificate of registration, including a twelve-month employer notification period.

Rehabilitation and remediation are addressed with the meetings with a Nursing Expert, review of professional standards in relation to the behaviour at issue, review of other relevant educational materials, and development of an ongoing learning plan.

Furthermore, the panel finds that the goal of public protection will be served through the period of suspension and employer notification, and through the prescribed rehabilitative program. The panel finds that the penalty is in line with previous cases with similarities to the case at hand. In considering both mitigating and aggravating factors, the panel finds that the penalty is within the range of reasonable outcomes.

The panel considered the seriousness of the Member’s conduct an aggravating factor in weighing the appropriateness of the penalty outlined in the Joint Submission on Order. The Member’s conduct represents a significant and troubling breach of trust in the therapeutic relationship, upon which nursing practice and public trust in the profession so heavily relies.

The panel also acknowledges significant mitigating factors in this case, including the Member’s cooperation with the College from the outset of proceedings, her admission and acknowledgement of the unacceptability of her actions, and her willingness to engage in remedial action. The panel is indeed reassured to hear that the Member has taken proactive steps in the remediation process.

I, Nancy Sears, RN, sign this decision and reasons for the penalty decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Susannah McGeachy (formerly Handley), RN

April Plumton, RPN

Renate Davidson, Public Member

Margaret Tuomi, Public Member