College of Nurses of Ontario v. [The Member], 2016 ONCNO 106566

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Susannah McGeachy, NP Chairperson Samantha Diceman, RPN Member Robert MacKay Public Member Ashleigh Molloy Public Member Susan Roger, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ( JEAN-CLAUDE KILLEY for ( College of Nurses of Ontario -and- ( [The Member] ( CAROL STREET for Reg. No: [ ] ( [the Member] ( JOHANNA BRADEN ( Independent Legal Counsel ( Heard: April 11-14, 2016 and ( August 9-10, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on April 11-14, 2016 and August 9-10, 2016, at the College of Nurses of Ontario (“the College”) in Toronto.

The Allegations

The allegations against [the Member] (the “Member”) as stated in the Notice of Hearing dated November 30, 2015, are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular, on or about February 1, 2014, you hit [the Client] across the face;

2. You have committed an act of professional misconduct, as provided by subsection 51 (1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S. O. 1991, c. 32, as amended, and defined in paragraph 1(7) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at [the Facility], you abused a client verbally, physically and/or emotionally, and in particular, on or about February 1, 2014, you hit [the client] across the face; and

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at [the Facility], you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, and in particular, on or about February 1, 2014, you hit [the Client] across the face.

Member’s Plea

The Member denied the allegations set out in the Notice of Hearing.

Overview

The Member is a registered nurse and has worked with high-acuity psychiatric patients for most of his career. He was employed continuously at [the Facility] (“[ ]”) from 1990 until his employment was terminated in 2014 as a result of the allegations at issue in this hearing.

The parties agree that on February 1, 2014, the Member was working on [the Unit], which is a high acuity unit, focusing mainly on clients with schizophrenia and schizoaffective disorders. The Member was supervising clients eating dinner in the dining room. One client, [the Client], tried to take her tray of food out of the dining room, presumably to eat it in her room. The Member told [the Client] she could not take food to her room. [The Client] dropped her tray, and became agitated. She tried to drink hand sanitizer from a dispenser outside the dining room. Her primary nurse, [Witness 4], eventually took her to her room. [The Client’s] agitation continued, and she was attended to by [Witness 4], the Member, and another nurse, [Witness 2].

The College alleges that at some point following the dining room incident on February 1, 2014, the Member struck [the Client] across the face two times.

The issues are as follows: (a) did the Member abuse a client verbally, physically or emotionally by hitting a client across the face; (b) did the Member fail to meet the standards of practice of the profession by hitting a client across the face; and (c) did the Member commit professional misconduct by engaging in conduct that would be reasonably regarded by members of the profession as disgraceful, dishonourable or unprofessional by hitting a client across the face?

The Member agreed that if he had slapped the client across the face, it would be professional misconduct in the three ways alleged in the Notice of Hearing. His position was that he never slapped the client.

The Panel heard from five witnesses and received twenty-seven exhibits for their consideration. Based on the evidence presented, the Panel was unable to find that the Member had slapped the patient as alleged. The allegations are dismissed.

Publication Ban

On April 11, 2016, the Panel ordered a ban of the publication or broadcasting of the identity of the client referred to in the Discipline Hearing of [the Member] or any information that could disclose the identity of the client (the “Initial Order”).

At the time the Initial Order was made, it was contemplated that only one client would be identified during the Discipline Hearing. Subsequently, evidence was led at the hearing that identified other clients of [the Facility]. Consequently, the Panel on its own motion raised the issue of whether the Initial Order should be varied. On hearing submissions of counsel, both of whom consented to an expanded order, and pursuant to subsections 45(3) and 45(8) of the Health Professions Procedural Code of the Nursing Act, 1991, the Panel made a further order banning the publication or broadcasting of the identity of any clients referred to or identified in the Discipline Hearing of [the Member], or any information that could disclose the identity of any clients.

The Evidence

Evidence was heard from five witnesses: the Member, [the Client] (also referred to as the “Client”), two nurses who were present during all or a portion of the alleged incident, and the Member’s former manager from [the Facility].

Witness #1 – [Witness 1], Manager

[Witness 1] was the Manager of [the Unit] at [the Facility] at the time of the alleged incident. It was his testimony that [the Unit] cares for clients with “higher acuity” mental health disorders such as schizophrenia, mood disorders and forensic involvement. [Witness 1] identified documents including the Staffing Report for February 1, 2014 and the Nursing Assignment for February 1, 2014. He described the usual staffing complement for the unit including the assignment of “Team Leader” to the most senior staff member on shift. He testified that the Member was assigned to the Team Leader role on February 1, 2014, and that the Member would have had an adjusted client assignment in addition to his Team Leader responsibilities. Other nurses working on [the Unit] at the same time as the Member included [Witness 2] and [Witness 4]. [Witness 1] identified [the Unit] Floor plan, and identified the location of the dining room, nurses’ station and medication room for the Panel.

The Panel accepted the Member’s training transcript dated January 15, 2016 as an exhibit that identified the Member’s internal training schedule from August 21, 2003 to June 17, 2015. It was [Witness 1’s] testimony that this transcript identified that the Member had successfully completed the Workplace Violence Prevention training (dated 02-02-2013) and that the Member was registered to complete the “Initiation of Emergency Use of Seclusion and Mechanical Restraints” (dated 02-01-2013). The Panel accepted into evidence [the Facility] policies referenced in these training packages. Under cross-examination, [Witness 1] was unable to account for the Member’s status note on the training transcript as “passed” for a training program dated June 17, 2015, which was after the Member had been terminated from his position at [the Facility]. [Witness 1] agreed that the training transcript was not a completely accurate document.

[Witness 1] testified that staff awareness of the corporate Workplace Violence policy would lead staff to “immediately” report an instance of client abuse and that all staff were trained in the particulars of this policy.

It was [Witness 1’s] testimony that he received a call on Monday, February 3, 2014 from [Witness 2], RN. [Witness 2] told [Witness 1] that she needed “to speak with (him) urgently” and that she had witnessed [the Member] strike the Client across the face twice during her shift on Saturday, February 1st.

[Witness 1] testified that on February 2, 2016 both [Witness 2] and [Witness 4] had submitted an incident report called a SCORE Report, and he reviewed the SCORE Reports after receiving [Witness 2’s] call. He also reviewed security footage of the incident outside the dining room. He further testified that he conducted an interview with the Client. It was [Witness 1’s] testimony that he did not review the Client’s file or review the Client’s psychological assessment as part of his investigation. [Witness 1] also interviewed [the Facility] staff members involved.

A written psychological assessment of the Client from 2013 was entered into evidence as exhibit 10 and reviewed with [Witness 1]. [Witness 1] confirmed that there was documentation of the Client’s “significant intellectual challenge”. Further, the Panel received as exhibit 11 the Client’s progress note dated 01-Feb-2014 at 19.30 hours, authored by [Witness 4], who was the Client’s primary nurse. The progress note described the Client to be “demonstrating attention seeking behaviours.” [Witness 1] confirmed that there was no evidence of the alleged hitting documented in that progress note.

Under cross-examination, [Witness 1] reviewed the SCORE Reports for the Panel and confirmed that there were no injuries to the Client documented, no code white was called, the nursing supervisor was not contacted, nor were the police called. [Witness 1] confirmed that there was no mention of the precipitating events from the dining room in the SCORE Reports. [Witness 1] testified that [Witness 4’s] SCORE Report, entered on Sunday, February 2nd, stated that she entered the room when the alleged incident was over, and made no reference to [Witness 2] being present. [Witness 1] testified that [Witness 4’s] charting and documentation from February 1st does not contain any reference to slapping or hitting, nor does it record any redness, swelling or bruising sustained by the Client.

Witness #2 – [Witness 2], RN

[Witness 2] testified that she had been licensed as a registered nurse having graduated from Dalhousie University in 2012. She had been employed initially at the Hospital for Sick Children and began working at [the Facility] in October 2013. [Witness 2] worked with the Member’s team frequently in her four months at [the Facility] prior to February 1, 2014.

It was [Witness 2’s] testimony that on Saturday, February 1, 2014 at approximately 1715 hours, she heard a “commotion,” such as “yelling and screaming,” from her position at the nursing station. She proceeded to the Client’s room to assist. [Witness 2] testified to the following sequence of events:

• When [Witness 2] arrived, the Client was on the bed, the Member was standing a few feet away and [Witness 4] was picking medications up off the floor.
• [Witness 4] left the Client’s room to collect new medications for the Client.
• The Client began to bang her head, continued yelling and was lying with her face to the wall.
• [Witness 2] and the Member were making attempts to verbally de-escalate the Client when the Client began to strike out at [Witness 2] and the Member – hitting and kicking.
• [Witness 2] grabbed the Client’s ankles, and may have been struck in the chest by the Client. The Member went to the head of the Client’s bed to restrain the Client’s arms and upper body.
• The Member held the Client’s two wrists together with one hand and slapped the Client across the face with the other. The Client “broke free”, the Member switched his grip on the Client’s wrists and “hit” the Client across the face again.
• The Client stopped fighting and [Witness 2] and the Member released the Client. [Witness 2] turned around and noticed that [Witness 4] had reentered the Client’s room.
• [Witness 2] and the Member left the room and [Witness 4] remained with the Client.

[Witness 2] testified that the following day (Sunday, February 2, 2014) [Witness 4] approached her and stated that the Client had reported that the Member had “hit her” during the previous evening’s incident. [Witness 2] testified that she began to cry and acknowledged that she felt “very intimidated and overwhelmed by the situation”. It was her testimony that [Witness 4] initiated the discussion of reporting the incident, and together they decided to speak with a nursing colleague to counsel them on how to proceed. [Witness 2] testified that they contacted this colleague [Colleague 1] and discussed this incident with him for approximately 15 minutes. It was [Witness 2’s] testimony that she and [Witness 4] completed separate SCORE incident reports and reviewed them together prior to submitting them electronically. [Witness 2] testified that she then left a phone message for her manager, [Witness 1], and then contacted him again on Monday (February 3rd at approximately 1000 hours) and came in to discuss the incident with him personally.

[Witness 2] testified that, prior to the alleged incident, she had disagreed with the Member’s judgment on two occasions. One instance regarded proper technique for administration of an intramuscular (IM) injection. The second instance occurred over the weekend of the alleged incident. [Witness 2] testified that she had consulted with the Member as Team Leader about seclusion for another patient on their unit. When the Member did not agree with her assessment, [Witness 2] contacted the duty doctor and the nursing supervisor for support and consultation. The duty doctor assessed the patient and seclusion was not ordered.

Witness #3 – [the Client] (“the Client”)

[The Client] currently lives in a group home and testified that she had admissions to [the Facility] in 2013 and 2014. She could not recall the date of the alleged incident. She testified that she has a diagnosis of paranoid schizophrenia and takes medications that make her “very tired”. [The Client] testified that she had hallucinations at the time of her initial diagnosis. She could not recall if she had hallucinations during her admissions in 2013 and 2014.

On the alleged incident, [the Client] testified that she remembered being “out of control” and that “he smacked me across the face”. [The Client] indicated that the nurse’s name was “[the Member]”. She could not recall how many times she had been slapped or the nurse’s last name. [The Client] testified that she was unable to recall details of the incident, such as who was in the room with her, where the incident occurred or to whom she reported this incident. She testified that she did not recall anyone ever pulling her hair.

Witness #4 – [Witness 4], RN

[Witness 4] testified that she had been a registered nurse for 3 years at the time of the alleged incident and worked at [the Facility] since her graduation from York University. She testified that she was the Client’s primary nurse. During her shift on February 2, 2014, the Client reported to her that a “male nurse was very aggressive to me”, that he had “hit” the Client twice and pulled her hair and that she “didn’t deserve that”.

[Witness 4] testified that she took the Client into the treatment room and the Client told her that “[the Member]” had “hit” her and that she didn’t want him near her again. [Witness 4] testified that she asked the Client if she wanted to press charges against the male nurse and offered her emotional support. [Witness 4] stated that she asked [Witness 2] into the laundry room and asked her “Did [the Member] hit [the Client]?” and [Witness 2] confirmed to her that had happened.

[Witness 4] testified that after this conversation on February 2nd, she and [Witness 2] telephoned [Colleague 1] as he had been a mentor to [Witness 4] in the past. It was her testimony that he counseled them to report the incident. Following this conversation, [Witness 4] testified that she completed the SCORE incident report by herself at the nursing station.

[Witness 4’s] testimony of the alleged incident was:

• The Client had been difficult to deal with the whole day (February 1st) following an altercation with two other clients and subsequently had taken breakfast in her room.
• At dinner-time, the Client wanted to eat in her room again, but was stopped by the Member. The Client threw her tray onto the floor and kicked it away.
• The Client proceeded to pump hand sanitizer and drink it.
• [Witness 4] and the Member walked down the hallway with the Client towards her room. The Client was swearing at the Member using racial slurs.
• [Witness 4] proceeded to the medication room to get a prn medication for the Client.
• The Member was with the Client in the Client’s room when [Witness 4] returned with the medications. The Client threw the medications on the floor and [Witness 4] bent to pick them up.
• [Witness 2] entered the Client’s room when [Witness 4] left to obtain a second set of prn medications.
• The Client was sitting up and on her bed.
• As [Witness 4] re-entered the room after getting the second set of prn medications, she heard a “slapping sound” like “skin to skin” and observed the Client’s head to swing from right and corrected to the left. The Client’s body was on the bed, lying down.
• [Witness 4] could not see the Client directly as she was in the doorway.
• [Witness 4] approached the Client at the head of her bed, administered the medications, and told the Client she would get her another food tray.
• [Witness 2] and the Member left the Client’s room.
• After providing emotional support to the Client, [Witness 4] left the room.

[Witness 4] testified that immediately following this incident, she and the Member went back to the Client’s room, having heard banging. The Client was attempting to barricade herself in her room and started taking her clothes off and saying that she would run around the unit. The Member unbarricaded the door. The Client settled when the Member left the room.

On cross examination, [Witness 4] agreed that her progress notes from February 1st do not document the alleged “slapping sound,” the movement of the Client’s head, or any marks or redness on the Client’s face. Furthermore, nothing in [Witness 4’s] progress notes or charts from February 1st document the presence or participation of [Witness 2] in the Client’s care during and after dinner. Her progress notes do document the participation of the Member in attending to the Client, but do not say that the Client had to be restrained by either the Member, [Witness 2], or anyone else.

It was [Witness 4’s] testimony that a further incident with the Client occurred that day. At the end of [Witness 4’s] shift, the Client reported to [Witness 4] that she had found a “pill” on the washroom floor and had taken it. [Witness 4] reported this to the Member and called the duty doctor. The duty doctor ordered monitoring and “q15min vitals”. These incidents were documented in [Witness 4’s] progress notes for the Client and the Panel accepted them into evidence.

[Witness 4] testified to having had three to four meetings with her manager, [Witness 1] as part of the investigation of the alleged incident – at least one of them being one-to-one. However, [Witness 1] could not locate any notes from a meeting with [Witness 4] alone.

Witness #5 – [the Member], RN (‘the Member”)

The Member testified that he originally registered as a nurse in [ ], [ ] in 1983. He worked at [ ] there for five years prior to immigrating to Canada. He registered with the College of Nurses of Ontario in January 1990 and has had continuous employment at [the Facility] since that time. From 2001, he has also been employed by [ ] as a visiting nurse on a casual basis. The Member was the second most senior staff nurse on [the Unit] at the time of the incident. He testified that he was compliant with the annual refresher program for corporate policies such as physical abuse.

The Member testified that he was [Witness 4’s] preceptor when she started on his unit approximately one year prior and that he thought they had a good working relationship.

The Member described his relationship with [Witness 2] as “not as friendly” and that she “did not welcome any kind of helpful advice”. The Member recounted three separate instances having occurred within the last six weeks whereby [Witness 2] was not receptive to his advice: first, [Witness 2] administered an IM injection and caused the client to bleed, and then argued with the Member when he tried to advise her about appropriate injection technique; second, [Witness 2] failed to complete the usual process of faxing a change to a client’s Form 3 to Health Records which could have had serious legal and medical implications; and, third, on February 1, 2014, there was a dispute regarding placing a client in seclusion. On this last issue, the Member testified that [Witness 2] came to him on the afternoon of February 1, 2014, requesting to put another client in seclusion following an episode of this client being physically threatening in the morning. The Member testified that he did not think that putting a client in seclusion hours after the threatening episode was appropriate, and that steps should have been taken at the time of the episode instead. The Member also testified that [Witness 2] did not need his approval to seclude this patient. Following their conversation, [Witness 2] made a call to the nursing supervisor and requested that a male nurse observe said client in seclusion. [Witness 2] then called the duty doctor who assessed the client and determined that seclusion was not required.

The Member testified that he knew [the Client], and that she had been admitted to [the Unit] for approximately one week prior to February 1, 2014. He described her behavior as attention-seeking in that she would always “display behaviours where staff could see her” such as banging her head. However, she would generally not cause herself injury.

The Panel received video footage and a documented video timeline into evidence that identified the events outside of the dining room and in the elevator lobby during the dinner hour on February 1, 2014. There is no audio on the video recording.

The video shows direct access of the door leading from the lobby to [the Unit]. The door to the unit is locked and requires a code to open. The Member was initially present with the Client and [Witness 4] in the lobby area. The Member can be seen speaking to the Client as the Client tried to take her food tray from the dining room into the unit. The Client dropped her tray and food spilled on the floor. The Client can be seen in front of the hand sanitizer dispenser, with her back to the camera. The Client can be seen kicking the food tray. [Witness 4] is seen on the video, speaking to the Client, presumably in an effort to calm her. [Witness 4] then coded the Client into the unit, returned to the dining room to hand over a clipboard, and then went back into the unit. The Member remained in the lobby area outside the unit for about 20 seconds after [Witness 4] went into the unit. Then the Member coded open the unit door and entered the unit.

Some 17 minutes later, the video shows the Member re-entering the lobby area and using a towel to clean up the spill from the Client’s food tray on the floor. There is no video footage of the Client’s room.

During this 17 minute interval, it was the Member’s testimony that:

• He could hear “sounds” that the Client was escalating and went into the unit to assist [Witness 4]. [Witness 4] was outside the Client’s room talking to the Client.
• They opened the Client’s door and the Client sat on the edge of her bed on the right side of the room.
• [Witness 4] obtained prn medications for the Client who threw the cup and the pills on the floor.
• [Witness 4] offered the Client another meal tray, and [Witness 4] and the Member left the Client’s room.
• As [Witness 4] and the Member were returning to the dining room, they heard “banging” and they returned to the Client’s room. The Client had barricaded her door with a chair and was moving the bed towards the door.
• [Witness 2] did not come to assist.
• The Member and [Witness 4] pushed the door open and moved the bed to the left side of the room.
• The Client began to disrobe. [Witness 4] picked up her gown and helped her back into her clothes.
• The Member did not touch the patient at this time.
• [Witness 4] went to the medication room to obtain a second set of prn meds.
• The Client’s door was open and no-one else was present in the room.
• The Client was sitting at the top of the bed and banging her head against the wall.

The Member put his left hand on the back of the Client’s head and the Client grabbed the Member’s forearm with her right hand and dug her fingernails into his skin.

• The Member testified that he moved towards the door to prevent any further escalation and [Witness 2] then entered the room, through the open door. She began talking to the Client. The Member testified that he returned to clean up the spill and was not present when [Witness 4] returned with the second prn medications.

The Panel received a photo taken by the Member as evidence of the Member’s injury from the Client’s fingernails. The Member admitted that he did not think his injuries were serious enough to report as per [the facility] policy and that he took the photograph after he was contacted by his manager, [Witness 1], who informed the Member that he was on paid suspension related to an incident with the Client.

The Member did not recall the Client uttering any racial slurs on February 1, 2014.

The Member testified that at no time did he and [Witness 2] restrain the Client together as both [Witness 2] and [Witness 4] had testified. It was put to the Member that he restrained the Client’s wrists with one hand and slapped her with his other hand while she was fighting him; it was his testimony that he would be unable to restrain the Client as described.

Final Submissions

Counsel for the College submitted that there was a very narrow factual issue for the Panel’s determination: did the Member hit the Client? The Panel was reminded that two of the College’s witnesses had direct knowledge of the incident – the Client and [Witness 2]. [Witness 4] had additional information bearing on the incident. The Member testified to a very different version of events. It was College Counsel’s position that inconsistencies in the witnesses’ testimony should be considered by the Panel in its credibility assessment, and the Panel could consider appropriate explanations for these inconsistencies.

College Counsel went through the evidence, drawing to the Panel’s attention the consistencies and inconsistencies in the witnesses’ testimony. For example, he noted that [Witness 4’s] contemporaneous documentation of the incident (as per the SCORE Report she completed on February 2, 2014) and her testimony at this hearing had no material differences. However, he noted that the Member was confident in his recollection of the event in the absence of contemporaneous documentation, and that to accept the Member’s evidence, [Witness 4’s] Medication Administration Record entries must be wrong.

While [the Client’s] testimony was limited, College Counsel asserted that it was supported by [Witness 4] and [Witness 2]. [Witness 4] and [Witness 2] had no personal stake in this incident and there was no logical reason that they would fabricate corroboration with [the Client’s] story.

College Counsel submitted to the Panel that the Member’s evidence was inconsistent with other witnesses’ testimony and the documents created by others at the time of the alleged incident, that the Member’s evidence had changed over time, and that it was unsupported by corroborating evidence of its own.

The Member’s Counsel agreed with the College that the burden of proof on the College required the College to prove the allegations on the balance of probabilities, but she also asked the Panel to consider the implications of the allegations. She relied on the case of Stefanov v. College of Massage Therapists of Ontario, 2016 ONSC 848 (Div. Ct.) (“Stefanov”), and in particular on paragraph 62 where the Divisional Court wrote: “Given the consequences of such a finding, the Panel is required to act with care and caution in assessing and weighing all the evidence. In doing so, the Panel must ensure that the evidence is of such a quality and quantity to justify a finding of sexual abuse.” Counsel for the Member stated that a similar caution should be exercised in this case, where the allegation is one of physical abuse.

The Member’s Counsel urged the Panel to consider the College’s witnesses’ testimony as being inconsistent, and “shifting”, and described it as evidence that in of itself, was not of such a quality to support the allegations. The Member’s Counsel argued that the contemporaneous progress note made regarding the Client by her primary nurse on February 1st at 1829 hours made no mention of [Witness 2] or her assistance with this client, and that the progress note’s reference to the Client being attended by “staff” referred to the Member only. On February 1st, [Witness 2] made no note nor discussed this incident with anyone – despite her further testimony that she was “intimidated” by the Member. Member’s Counsel reminded the Panel of other instances whereby [Witness 2] demonstrated considerable confidence and had previously challenged the Member’s judgment and gone “above his head” when she felt it necessary.

The Member’s Counsel said [Witness 2’s] testimony showed “an inclination to fill in the details.” Specifically, she referenced the matter where [Witness 2] said she saw bruises on herself one week following the incident and could only speculate that they were from the Client kicking her on February 1, 2014. She also pointed to [Witness 2’s] suggestion that the Member could restrain the client’s wrists with one hand while the Client was thrashing, slap the Client once, and subsequently repeat that maneuver and again slap the Client across the face. The Member’s Counsel described this as implausible, given that the Client is a larger woman who would have been thrashing and fighting if [Witness 2’s] account is believed.

In addition, the Member’s Counsel referred the Panel to [Witness 2’s] completed SCORE report noting that “immediate” action must be taken when abuse is witnessed. However, [Witness 2] took no action until the following day, and even then only after being approached by [Witness 4] and a telephone consultation with a colleague.

The Member’s Counsel suggested that [Witness 4’s] recollection of the slapping sound and head turning were not possible and did not follow a logical sequence of events. Additionally, there is no reference to such details within her submitted SCORE report on February 2nd.

The Member’s Counsel reminded the Panel that the Member’s demeanor on video was calm and deliberate as he cleaned the floor with the towel. If the allegations were true, this would have occurred right after the Member had slapped a client across the fact twice in the presence of another nurse.

In reply, College Counsel submitted that the Panel should not rely on Stefanov as increasing the burden of proof beyond a balance of probabilities. He also submitted that the Panel could not rely on previous consistent statements made by the Member as enhancing the Member’s credibility. Finally, College Counsel asked the Panel to focus on the totality of the evidence.

The Panel requested advice from Independent Legal Counsel regarding the standard of proof in discipline cases as raised by the Member’s Counsel. The Panel was advised to rely on the decision of the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41, which described the burden as: were the allegations “more likely than not” to have occurred? In making this determination, the Panel was urged to carefully examine credibility of all witnesses and determine the evidence in its totality. The standard of proof does not apply to each piece of evidence individually, but to the evidence as a whole. The evidence needed to be clear and convincing and cogent, but the standard of proof applied should never be higher than the balance of probabilities.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel is unable to find that the Member has committed acts of professional misconduct as alleged in paragraphs 1, 2 and 3 of the Notice of Hearing. Accordingly, the Panel dismisses allegations 1, 2 and 3 against the Member.

Reasons for Decision

The Panel undertook a credibility assessment of each witness, using the criteria as set out in Re Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), 1985 2053 (ON SC), 51 O.R. (2d) 302 (Div. Ct.). The Panel then considered the evidence of each of the witnesses both individually and taken together, with attention to their evidence, explanations for any inconsistencies, and the potential impact any inconsistencies would have on their credibility and reliability.

With regards to [Witness 1’s] testimony, he provided the factual context to the allegations while referring to the unit layout, staffing records, organizational policies and [the Facility] investigation following the incident. He was forthright in examination and cross-examination.

[Witness 2] demonstrated an understanding of the appropriate processes for reporting to a nursing supervisor and duty doctor regarding other matters prior to the alleged incident. However, when she allegedly witnessed a matter of physical abuse – that is, slapping a patient - she took no immediate action to report to the nursing supervisor, duty doctor, or anyone else. [Witness 2’s] explanation for this, that she was shocked and felt intimidated, was not convincing to the Panel, as she had demonstrated that the Member did not intimidate her on at least two other occasions. The way she reported behaving, that is, to not take any action in response to the alleged incident until the following day when approached by [Witness 4], is not consistent with her previous actions and it therefore seemed unlikely to the Panel that she would have failed to act upon this matter the evening it allegedly occurred. Neither did the Panel accept her explanation of the potential impact to her colleague as a satisfactory reason for delayed reporting. This detracts considerably from [Witness 2’s] credibility.

[The Client] was unable to recall or recollect details of the incident. The nature of the evidence that she was able to provide to the Panel lacked specificity, and could therefore not be heavily relied upon by the Panel.

[Witness 4] had limited insight into the alleged incident. It was [Witness 4’s] testimony that she could not see the Client directly during the alleged incident. [Witness 4’s] reports of “hearing a slap” and then seeing the Client’s head move and swing back from outside the room, seemed implausible to the Panel. The Panel therefore questioned [Witness 4’s] opportunity to observe the alleged incident, and found her evidence with regards to seeing and/or hearing the alleged hit unreliable. Furthermore, [Witness 4] only took action in response to the alleged abuse following a report by the Client on February 2nd. She did not take action as a result of any direct observations she made or sounds she heard on February 1st. [Witness 4’s] evidence at the hearing about what she thought she heard and saw on February 1st is inconsistent with the fact that she, herself, took no action to report, or even ask questions and investigate on February 1st. In addition, the Panel found it unbelievable that, had [Witness 4] witnessed evidence of a client being hit by a nurse, she would fail to act on that information by reporting it immediately.

The Panel was not presented with supporting testimony from [Colleague 1], the colleague that [Witness 4] and [Witness 2] say they spoke to on February 2nd before making their allegations.

The Panel determined that while [Witness 2] and [Witness 4’s] testimony had similarities, their documented actions on February 1st were not consistent with having just witnessed some or all portions of the alleged slapping incident. This made their testimony about the slapping incident not believable.

The Panel heard from [Witness 2], [Witness 4] and the Member differing stories of the time they were together in the Client’s room, where and how the furniture was placed, the sequence of events surrounding the alleged slaps, and the barricading of the door by the Client. The Panel found that the explanations for the inconsistencies in [Witness 2’s] and [Witness 4’s] evidence were not logical. [Witness 4] testified that she was outside the Client’s room at the time of the alleged incident, however she said she heard a “slap” and then saw the Client’s head move. [Witness 4’s] evidence on the key issues was unclear and her explanation of events seemed implausible to the Panel.

The Panel considered the Member’s demeanor recorded on the video security footage and noted that there appeared to be no significant change – between pre- and post-incident – in the Member’s body language or conduct that would lead one to believe that he was agitated by the Client’s behaviour.

The Panel considered the inconsistencies found in the Member’s testimony. There were some changes in the Member’s own evidence over time. There were some errors in his recall. The Panel believed that these inconsistencies did not reflect negatively on the Member’s credibility. His recall of the day in question would likely be “inconsistent” to a certain degree if nothing untoward or unusual had occurred on this shift, as the Member claimed. The fact that the Member initially recalled an interaction with the Client occurring at lunch time and now testified it occurred at dinner time did not trouble the Panel, as the Panel found it believable that the Member would have no particular reason to recall the time of day of a routine de-escalation of a client, and had no access to contemporaneous documentation to assist his recall immediately following the incident. Similarly, the Panel was not troubled by the Member’s lack of recall as to whether he had cleaned the floor before or after the incident, as this was not a significant detail nor relevant to the allegation, and his change in recall from February 2014 to now as to when he had cleaned the floor is again consistent with memory of “an ordinary day” at work, with no particular reason to recall specific details.

The Panel did consider some significant inconsistencies between the Member’s testimony and that of [Witness 2] and [Witness 4], specifically that the Member testified that he was never in the Client’s room with both [Witness 2] and [Witness 4], but [Witness 2] and [Witness 4] both clearly testified that the three of them were all in the room at the same time at one point. While the Panel was troubled by this inconsistency, it did not find it sufficient to significantly undermine the Member’s credibility when he denied having hit the Client. Furthermore, given the Member’s 33 years of experience dealing with clients with severe mental health challenges, the Panel finds it unlikely that the precipitating events at dinnertime and afterward would lead the Member to strike out at a client. The Panel noted that the Member had no former record of such behavior and the Panel observed no change in his recorded demeanour as shown on the video before and after the alleged incident. Overall, the Panel found the Member’s testimony reasonable and his denials plausible.

Ultimately, in carefully considering the standard of proof, that being a balance of probabilities, given the totality of the evidence before it, the Panel was unable to find that the incident as alleged is more likely than not to have occurred.

I, Susannah McGeachy, NP, 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:

Susannah McGeachy, NP, Chairperson Samantha Diceman, RPN Robert MacKay, Public Member Ashleigh Molloy, Public Member Susan Roger, RN