College of Nurses of Ontario v. Gordon-Neblette, 2016 CanLII 114389

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Spencer Dickson, RN Chairperson Tanya Dion, RN Member Robert MacKay Public Member George Rudanycz, RN Member Catherine Ward Public Member

BETWEEN: Appearances

COLLEGE OF NURSES OF ONTARIO ) Bonni Ellis for ) College of Nurses of Ontario

• and - )

AUDREY GORDON-NEBLETTE ) Self-represented Reg. No. 0080952 )

) Heard: June 29, 2016¹

DECISION AND REASONS

Introduction

This was a hearing held on June 29, 2016 at Toronto (the “Hearing”) before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”).

Publication Ban

At the outset of the Hearing College counsel brought a motion pursuant to s. 45(3) of the Health Professions Procedural Code of the Nursing Act, 1991 (the “Code”) for an order banning the publication or broadcasting of the name of the patient or any information that would disclose the identity of the patient referred to during this Hearing or in any document or other material filed at this Hearing. Ms. Ellis submitted that personal matters may be disclosed at the Hearing, namely personal health information or other information that may identify the patient. The motion was uncontested by the member whose conduct is at issue, Audrey Gordon-Neblette (the “Member”).

The Panel concluded that the desirability of avoiding public disclosure of those matters outweighs the desirability of adhering to the principle that hearings be open to the public. Therefore the Panel made the following order:

No person shall publish or broadcast or otherwise disclose the name of the patient or any information that would disclose the identity of the patient referred to during the Hearing or in any document or other material filed at the Hearing.

The Allegations

The allegations against the Member were set out in the Notice of Hearing dated June 6, 2016. The Notice of Hearing was entered as Exhibit 1 at the Hearing; the allegations contained in the Notice of Hearing were as follows.

IT IS ALLEGED THAT:

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, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession when you:

a. failed to obtain informed consent prior to providing care to client [the Client].;

b. failed to accurately and/or sufficiently document client [the Client]’s condition;

c. failed to accurately and/or sufficiently document the treatment you provided to client [the Client];

d. assessed and/or treated client [the Client]; and/or

e. failed to send client [the Client] to the hospital for assessment and/or treatment in circumstances where you knew or ought to have known that [the Client] may have suffered a fractured nose.

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, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, you abused a client physically and/or emotionally when you provided care to client [the Client] including, but not limited to, when you manipulated and/or attempted to straighten client [the Client]’s fractured nose.

3. 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 1.12 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, you failed to advise the Client to obtain services from another health professional where you knew or ought to have known that the Client had a condition which was outside your scope of practice and, in particular, you failed to send client [the Client] to the emergency department of a hospital for assessment and/or treatment in circumstances where you knew or ought to have known that [the Client] may have suffered a fractured nose.

4. 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 1.14 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, you falsified a record relating to your practice when you failed to note in client [the Client] record that:

a. his nose appeared broken, deformed or fractured; and/or

b. you manipulated and/or attempted to straighten his nose.

5. 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 1.19 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, you contravened the Nursing Act, the Regulated Health Professions Act, 1991, or the regulations under either those acts and, in particular, you contravened s. 27(1) of the Regulated Health Professions Act, 1991 when you performed a controlled act by attempting to manually straighten or set client [the Client]’s nasal fracture.

6. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.37 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, you engaged in conduct that having regard to all the circumstances would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional and, in particular:

a. your documentation regarding your observations and interactions with client [the Client] was inaccurate and/or misleading;

b. you failed to obtain informed consent prior to providing care to client [the Client];

c. your assessment and/or treatment of client [the Client] was insufficient and/or inappropriate;

d. you failed to send client [the Client] to the hospital for assessment and/or treatment in circumstances where you knew or ought to have known that [the Client] may have suffered a fractured nose;

e. you physically and/or emotionally abused client [the Client] in the context of providing care including, but not limited to, when you manipulated and/or attempted to straighten client [the Client]’s fractured nose; and or

f. you contravened s. 27(1) of the Regulated Health Professions Act, 1991 when you performed a controlled act by attempting to manually straighten or set client [the Client]’s nasal fracture.

7. You are incompetent as defined by subsection 52(1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and, in particular, your professional care of client [the Client] at the Ottawa Carleton Detention Centre on or about April 21, 2013, displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates you are unfit to continue to practise or that your practice should be restricted.

Member’s Plea

At the outset of the Hearing the Member admitted all of the allegations in the Notice of Hearing, in particular paragraphs numbered 1 through 7 of Exhibit 1. The Panel received a written plea inquiry which was signed by the Member and entered it as Exhibit 2. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admissions were voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the Panel that agreement had been reached between the Member and the College on the facts. Ms. Ellis introduced an Agreed Statement of Facts (“ASF”) signed by the parties which the Panel entered as Exhibit 3 and it provided as follows (the appendices referred to in the ASF are not reprinted here):

THE MEMBER

1. Audrey Gordon-Neblette (the “Member”) obtained a degree in nursing from Jamaica in 1998.

2. The Member registered with the College of Nurses of Ontario (the “College”) in the General Class as a Registered Nurse (“RN”) in November 2000. The Inquiries, Complaints and Reports Committee made an interim order suspending the Member’s certificate of registration on January 21, 2016, pending the disposal of this matter by the Discipline Committee.

3. The Member was employed as an RN at the Ottawa-Carleton Detention Centre (the “OCDC”) between at least April 2009 and July 2013, when her employment ended as a result of the incidents described below.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

April 21, 2013

4. At approximately 1930 on April 21, 2013, an inmate at the OCDC, [the Client], sustained a fractured nose during an altercation with another inmate. The Member came to assess the client in the presence of three correctional officers in an area equipped with a video monitor.

5. As a result of the altercation, [the Client]’s nose was not straight on his face. Without explaining to [the Client] the course of her treatment and without obtaining informed consent from him, the Member placed one finger on each side of [the Client]’s nose and then applied pressure to straighten his nose, which created an audible crunching noise. The Member then stepped back to briefly examine [the Client]’s nose, and re-approached to repeat the movement, which created a second crunching noise. The crunching noise created by the Member’s manipulation of [the Client]’s nose caused one of the correctional officers to feel nauseous to the point that she needed to leave the room.

6. The Member then gave [the Client] an ice pack and told him to sit with his head back and nose pinched.

7. The Member returned to the room approximately 20 minutes later, at which time she cleaned the blood from [the Client]’s face in a forceful manner.

8. Excerpts from OCDC’s video monitor showing video, but not audio, of the Member’s care of [the Client] are attached as Appendix “A”.

9. The Member arranged for [the Client] to be placed on medical observation and contacted the physician to explain her care.

10. If the Member were to testify, she would state that prior to providing care to [the Client], she had asked [the Client] if she could help him. She now realizes that she failed to obtain informed consent by failing to explain the course of treatment to[ the Client], including the nature of it, any benefits, risks, alternative courses of action and likely consequences of not having the treatment.

The Member’s Documentation and Explanations Regarding her Treatment

11. The Member documented her treatment of [the Client] in three separate documents: [the Client]’s health record, an Occurrence Report, and an Accident/Injury Report.

12. The Member documented on [the Client]’s health record that there was moderate bleeding from [the Client]’s nostrils, which were slightly swollen, but there was no sign of fracture. The Member did not document that she manipulated or attempted to straighten [the Client]’s nose.

13. The Occurrence Report prepared by the Member also failed to mention that she manipulated or attempted to straighten [the Client]’s nose. She wrote that she “applied pressure to one side of the nostrils (bridge) in order to assess bleeding and any fracture. I did this to both side [sic] of the nostrils”. The Member also documented that the bleeding became less profuse, that [the Client] was breathing without difficulty, and that she instructed him to pinch both of his nostrils and lean his head backwards. She indicated that she then provided him with an ice pack and that she subsequently reassessed him, concluding that his bleeding had subsided and although his nostrils remained swollen, his nose was not evidently deformed, such that he did not require an attendance at the hospital.

14. An Accident/Injury Report was also completed at the OCDC. The section filled in by the Member reported that [the Client]’s nostrils were bleeding and slightly swollen, that an ice pack was applied, pain medication was given and the bleeding subsided. There was no mention that [the Client]’s nose looked broken, deformed or fractured or that the Member attempted to adjust or straighten his nose.

15. If the Member were to testify, she would state that she thought her documentation was sufficient at the time, but now realizes that it was neither sufficient nor accurate, as she failed to document that [the Client]’s nose appeared to be broken, deformed or fractured, and she failed to document that she had manipulated or attempted to straighten [the Client]’s nose.

16. In her response to the ICRC, the Member explained her treatment of [the Client] as follows:

• observed [the Client]’s face was drenched with blood and he was constantly spitting and coughing up blood into the sink; there were copious amounts of blood on the floor and in the sink;

• cleaned [the Client]’s face and observed displacement of lower external cartilage and upper nasal spongy to touch;

• upon questioning, [the Client] confirmed that he had previously broken his nose, that since that time it slips and bleeds, but he puts it back into place and stops the bleeding by applying pressure as ER staff had advised him;

• queried upper hairline fracture and/or lower displaced nasal fracture, determined situation did not require 911 unless life threatening;

• communicated nursing care plan to [the Client];

• advised [the Client] to sit in a chair and lean his head slightly backwards to stop the bleeding;

• applied firm pressure to upper nasal bridge to minimize bleeding;

• realized that spongy area on the nasal was blood clots so massaged the area while applying firm pressure, while encouraging [the Client] to cough to remove the clots and breathe through his mouth;

• while coughing, clots went from the back of [the Client]’s throat into his mouth, at which time she released her fingers from his nose and he spat the clots into the sink;

• when all of the clots were removed, [the Client] shouted “you fixed me, I feel much better, no more clots and the bleed is small”. [the Client] also stated that the bridge of his nose felt straight again; and

• advised [the Client] to sit on the chair and lean his head forward as this is the best position for a nose bleed.

17. Ultimately, the Member denied having interfered with [the Client]’s nasal fracture. The Member also attributed [the Client]’s nosebleed to a punch in the forehead on the basis that his nasal would have been scattered by a punch to the nose given the previous fracture.

Subsequent Care of [the Client].

18. Another RN first saw [the Client] at approximately 0200 on April 22, 2013. [the Client] did not voice any concerns at the time, but he was provided with ice and Motrin.

19. The physician the Member advised about her care of [the Client] assessed [the Client] on April 22, 2013. The physician noted “mild headache, RT orbital swelling, no bony abnormality, no diplopia, vision good, no nasal obstruction, epistaxis Rt nostril, Rx: observation”.

20. The same RN who saw [the Client] on April 22, 2013 was asked to see him again on April 26, 2013 at approximately 1600, due to bleeding. The RN provided [the Client] with Motrin but when his bleeding had increased when she returned to re-assess him at 2000, she arranged to have [the Client] transferred to the Ottawa Hospital at approximately 2100.

21. The physician at the Ottawa Hospital diagnosed [the Client] as having a clinical fracture in his nose. The physician’s note further indicated that “left deviation of bridge of nose on [r]ight side does not reduce with forced pressure”.

22. A letter prepared by the physician at the Ottawa Hospital to the OCDC physician indicated that [the Client]’s “nasal dorsum is deviated to the left and the septum has a mild deformity to the right”. It further noted that [the Client] had advised that his nose was quite straight before this incident and “[i]t would seem that he has sustained the fracture with some deformity”.

23. If [the Client] were to testify, he would state that the Member straightened his nose.

COLLEGE STANDARDS AND RELEVANT LEGISLATION

24. The Member acknowledges that the following College Standards of Practice were in place at the time of the incident and reflect the standards expected of a nurse at that time:

• Professional Standards, Revised 2002, attached as Appendix “B”;

• Decisions about Procedures and Authority, attached as Appendix “C”;

• Documentation, attached as Appendix “D”; and

• Therapeutic Nurse-Client Relationship, attached as Appendix “E”.

Decisions about Procedures and Authority

25. Pursuant to the Decisions about Procedures and Authority Standard, a nurse must determine if the performance of a procedure promotes safe and effective client care, and whether it is appropriate for a nurse to perform the procedure. A nurse meets the standard by:

• having sufficient knowledge, skill and judgment to determine the appropriateness of performing the procedure at a given time for a particular client ...;

• advocating for the appropriate health care provider to perform the procedure;

• determining whether the procedure fits within a professional nursing role ...;

• declining to perform the procedure when it does not support safe, effective and ethical client care; and

• ensuring that informed consent includes the information that a nurse is performing the procedure.

26. The Standard further indicates that a nurse must ensure that he/she has the appropriate authority before performing procedures. In particular, a nurse meets the standard by:

• knowing the scope of practice of nursing, the legislated authority and what the practice setting has approved as a nurse’s role and responsibilities;

• ensuring that client records reflect the procedures that were performed;

• initiating the performance of controlled act procedures within the boundaries of legislation, competence and agency policy; and

• ensuring that client records reflect the initiated procedures.

27. The Standard also indicates that nurses must ensure that they are competent in both the cognitive and technical aspects of a procedure prior to performing it. In particular, a nurse meets the standard by:

• demonstrating cognitive and technical competence to perform the procedures;

• declining to perform procedures that she/he is not competent to perform;

• determining the appropriateness of the procedure for the specific client in a specific situation;

• demonstrating knowledge of the following components of procedures:

o purpose (assessment or treatment),

o indications,

o contraindications,

o risk to the client,

o expected outcomes,

o actions to take if complications occur, and

o health teaching and decision support;

• applying knowledge, best evidence, skill, judgment and appropriate authority to make and act on decisions required during the procedure;

• consulting when she/he reaches the limits of her/his knowledge, skill and judgment;

• communicating with other health care team members as necessary for safe, effective and ethical client care; and

• reflecting on and continuously improving knowledge, skill and judgment in relation to practice.

28. “Controlled acts” are defined under s. 27(2) of the Regulated Health Professions Act. Under s. 27(2)3, a controlled act includes “[s]etting or casting a fracture of a bone or a dislocation of a joint”.

29. An RN is entitled to perform certain authorized acts as set out by ss. 4 and 5 of the Nursing Act, 1991 and s. 15 of Ontario Regulation 275/94. Neither the Act nor the Regulation permit an RN to perform the controlled act of setting a fracture of a bone or a dislocation of a joint.

Documentation

30. According to the Documentation Standard, a nurse must ensure that documentation presents an “accurate, clear and comprehensive picture of the client’s needs, the nurse’s interventions and the client’s outcomes”. In particular, a nurse meets the standard by:

• ensuring that documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessment, planning, intervention (independent and collaborative) and evaluation;

• documenting informed consent when the nurse initiates a treatment or intervention authorized in legislation

Therapeutic Nurse-Client Relationship

31. The Therapeutic Nurse-Client Relationship Standard states that the relationship between a nurse and a client is based on trust, respect, empathy and professional intimacy.

32. Nurses must use a number of effective communication strategies and interpersonal skills to appropriately establish, maintain, re-establish and terminate the nurse-client relationship. In particular, a nurse meets the standard by “providing information to promote client choice and enable the client to make informed decisions”.

33. Nurses are also responsible for protecting clients from harm by ensuring that abuse is prevented, or stopped and reported.

34. Physical abuse is defined to include “using force” and “handling a client in a rough manner”.

Consent

35. Although not a College Standard, the College has also published Consent, a Practice Guideline regarding consent. Nurses are accountable for obtaining consent under the Standards.

36. Under s. 11(1) of the Health Care Consent Act, 1996 (“HCCA”) and as set out in the Practice Guideline, consent to treatment must be informed, be given voluntarily and must not be obtained through misrepresentation or fraud.

37. Under s. 11(2) of the HCCA and as set out in the Practice Guideline, consent is informed if, before giving it,

• the person received the information about the treatment that a reasonable person in the same circumstances would require to make a decision; and

• the person received responses to his/her requests for additional information about the treatment.

38. Section 11(3) of the HCCA and the Practice Guideline further indicate that the information must include the following:

• nature of the treatment;

• expected benefits of the treatment;

• material risks and side effects of the treatment;

• alternative courses of action; and

• likely consequences of not having the treatment.

39. Under s. 10(1) of the HCCA, “[a] health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered unless,

a. he or she is of the opinion that the person is capable with respect to the treatment and the person has given consent, or

b. he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.”

40. A “health practitioner” is defined as a member of a College under the Regulated Health Professions Act, which includes RNs.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

41. The Member admits that she breached the above standards of practice of the profession by engaging in the conduct described in paragraphs 4 to 23 above.

42. In particular, the Member admits that she breached the standards of practice of the profession when she failed to obtain informed consent prior to providing care to [the Client], when she failed to accurately and/or sufficiently document [the Client]’s condition and the treatment she provided to him, when she assessed and/or treated [the Client] and when she failed to send [the Client] to the hospital for assessment and treatment when she knew or should have known that [the Client] may have suffered a fractured nose.

43. The Member admits that she abused [the Client] physically and/or emotionally when she manipulated and/or attempted to straighten [the Client]’s fractured nose.

44. The Member admits that she failed to advise [the Client] to obtain services from another health professional by sending him to the hospital when she knew or should have known that [the Client] may have suffered a fractured nose.

45. The Member admits that she falsified a record when she failed to note in [the Client]’s health record that his nose appeared to be broken, deformed or fractured and that she manipulated or attempted to straighten his nose.

46. The Member admits that she performed a controlled act under the Regulated Health Professions Act that she was not authorized to perform when she attempted to manually straighten or set [the Client]’s nasal fracture.

47. The Member admits that she is incompetent, as her care of [the Client] on April 21, 2013 at the OCDC displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that she is unfit to continue to practise or that her practise should be restricted.

General

48. The Member admits that she engaged in the conduct described in paragraphs 4 to 23 above, and that through her conduct, she engaged in professional misconduct and demonstrated that she is incompetent, as alleged in the Notice of Hearing at paragraphs:

• 1(a)-(e);

• 2;

• 3;

• 4(a)-(b);

• 5;

• 6(a)-(f), in that the conduct is both unprofessional and dishonourable; and

• 7, in that the Member is incompetent.

Decision

The Panel heard submissions by Ms. Ellis on behalf of the College, and the Member was given the opportunity to make submissions with respect to the ASF. The Panel deliberated on the basis that the ASF constituted the evidence at this Hearing.

The Panel accepted the ASF and found that the facts contained in the ASF provided a sufficient foundation for the findings of professional misconduct admitted to by the Member. In particular, the Panel found that the Member committed acts of professional misconduct as alleged in paragraphs numbered 1 through 6 of the Notice of Hearing in that:

− The Member committed professional misconduct as provided by subsection 51(1)(c) of the Code and defined in paragraph 1.1 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession when she:

a. failed to obtain informed consent prior to providing care to client [the Client];

b. failed to accurately and/or sufficiently document client [the Client]’s condition;

c. failed to accurately and/or sufficiently document the treatment you provided to client [the Client];

d. assessed and/or treated client [the Client]; and/or

e. failed to send client [the Client] to the hospital for assessment and/or treatment in circumstances where she knew or ought to have known that [the Client] may have suffered a fractured nose.

− The Member committed professional misconduct as provided by subsection 51(1)(c) of the Code and defined in paragraph 1.7 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, she abused a client physically and/or emotionally when she provided care to

− client [the Client] including, but not limited to, when she manipulated and/or attempted to straighten client [the Client]’s fractured nose.

− The Member committed professional misconduct as provided by subsection 51(1)(c) of the Code and defined in paragraph 1.12 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, she failed to advise the Client to obtain services from another health professional where she knew or ought to have known that the Client had a condition which was outside her scope of practice and, in particular, she failed to send client [the Client] to the emergency department of a hospital for assessment and/or treatment in circumstances where she knew or ought to have known that [the Client] may have suffered a fractured nose.

− The Member committed professional misconduct as provided by subsection 51(1)(c) of the Code and defined in paragraph 1.14 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, she falsified a record relating to her practice when she failed to note in client [the Client]’s record that:

a. his nose appeared broken, deformed or fractured; and/or

b. she manipulated and/or attempted to straighten his nose.

− The Member committed professional misconduct as provided by subsection 51(1)(c) of the Code and defined in paragraph 1.19 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, she contravened the Regulated Health Professions Act, 1991 and in particular, she contravened s. 27(1) of the Regulated Health Professions Act, 1991 when she performed a controlled act by attempting to manually straighten or set client [the Client]’s nasal fracture.

− The Member committed professional misconduct as provided by subsection 51(1)(c) of the Code and defined in paragraph 1.37 of Ontario Regulation 799/93 in that, on or about April 21, 2013, while working as a Registered Nurse at the Ottawa Carleton Detention Centre, she engaged in conduct that having regard to all the circumstances would reasonably be regarded by members of the profession as dishonourable and unprofessional and, in particular:

a. her documentation regarding her observations and interactions with client [the Client] was inaccurate and/or misleading;

b. she failed to obtain informed consent prior to providing care to client [the Client];

c. her assessment and/or treatment of client [the Client] was insufficient and/or inappropriate;

d. she failed to send client [the Client] to the hospital for assessment and/or treatment in circumstances where she knew or ought to have known that [the Client] may have suffered a fractured nose;

e. she physically and/or emotionally abused client [the Client] in the context of providing care including, but not limited to, when she manipulated and/or attempted to straighten client [the Client]’s fractured nose; and or

f. she contravened s. 27(1) of the Regulated Health Professions Act, 1991 when she performed a controlled act by attempting to manually straighten or set client [the Client]’s nasal fracture.

Further, the Panel considered the ASF and found that the facts support a finding of incompetence and found that the Member is incompetent as alleged in paragraph 7 of the Notice of Hearing in that:

− Her professional care of client [the Client] at the Ottawa Carleton Detention Centre on or about April 21, 2013, displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates her as unfit to continue to practise or that her practice should be restricted.

Reasons for Decision

The Member admitted the facts described in paragraphs 4 through 23 of the ASF. She further admitted that these facts constitute breaches of standards of practice of the profession in paragraph 41 of the ASF. These admissions satisfied the Panel with respect to allegation 1 of the Notice of Hearing.

The facts admitted in paragraphs 4 through 23 and the Member’s admissions of misconduct in paragraphs 43 through 47 of the ASF were sufficient to support the Panel’s findings of professional misconduct as alleged in the Notice of Hearing for allegations 2, 3, 4, and 5.

As to allegation 6 in the Notice of Hearing, the Panel found this Member’s conduct to be unprofessional as it would be the considered view of the consensus of the members of the profession that Ms. Gordon-Neblette’s actions demonstrate a serious disregard for her professional obligations. Similarly the Panel found the members of the profession would regard this Member’s conduct as dishonourable when she, among other things, was deceitful in her response to the Inquiries, Complaints and Reports Committee as admitted in the ASF paragraph 16. In addition the Member herself admits her conduct in this regard was both unprofessional and dishonourable in paragraph 48 of the ASF. This assisted the Panel in making the finding with respect to allegation 6 of the Notice of Hearing.

Similarly, the Panel was aided in finding the Member incompetent as alleged in paragraph 7 of the Notice of Hearing in that she admitted in paragraph 48 of the ASF that her conduct as detailed in paragraphs 4 through 24 demonstrate that she is incompetent. Furthermore, the Panel’s finding in this regard was supported by the Member’s denial of having interfered with [the Client]’s nasal fracture, as set out at paragraph 17 of the ASF.

Penalty

Counsel for the College advised the Panel that a Joint Submission as to Order (“JSO”) had been agreed upon. The JSO was entered as Exhibit 4 and it invited the Panel to make the following order:

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 six 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 a minimum of two meetings with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. If the Expert determines that a greater number of sessions are required, the Expert will advise the Member and write to the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 18 months of the date of the 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 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, online learning modules and online participation forms (where applicable):

1. Professional Standards,

2. Decisions about Procedures and Authority,

3. Documentation, and

4. 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 and to be incompetent,

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

3. strategies for preventing the misconduct and incompetence 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) The Member shall successfully complete at her own expense, with a minimum passing grade of 65%, nursing courses (with clinical or other practical components) that have received prior approval from the Director regarding: clinical assessment and response; documentation and communication; consent; and controlled acts. The Member must provide the Director with proof of enrolment and successful completion of the courses with a minimum passing grade of 65% by January 31, 2018.

c) When the Member returns to the practice of nursing, and until the Member completes the requirements set out in subparagraph 3(b), the Member will notify each current and new employer 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. Only practise nursing for an employer who agrees to, and does, forward a report to the Director within 14 days of the commencement or resumption of the Member’s employment in any nursing position, confirming:

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;

d) Until the Member completes the requirements set out in subparagraph 3(b), the Member shall not practise independently in the community and shall only engage in the practice of nursing in a non-clinical position in which the Member is not providing direct client care and for which the Member has provided a job description to the Director and has obtained approval from the Director prior to commencing employment; and

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

Penalty Submissions

Counsel for the College submitted that in view of the facts and admissions set out in the ASF and the findings of professional misconduct and incompetence, the proposed penalty, although significant, is fair. In support of the notion that the proposed penalty order was in the usual range a member could expect with respect to these findings, Ms. Ellis provided and reviewed with the Panel the College’s Book of Authorities. It contained four decisions which the College stated had similar elements to the present case, and which the Panel could use as guidance with respect to a range of penalties. They were; CNO v. Gyasi, (Discipline Committee, 2014); CNO v. Steinhoff, (Discipline Committee, 2014); CNO v. Cecilioni, (Discipline Committee, 2008) and CNO v. Lazarte (Discipline Committee, 2012).

Ms. Ellis submitted that the order contains deterrents that were specific to the Member and general to the profession.

College Counsel submitted that some of the aggravating factors in this matter were the seriousness of the conduct. For example, the Member performed a controlled act beyond her scope, and used abusive force in cleaning the client’s face which Ms. Ellis stated was self-evident on the video². Mitigating factors were the Member’s willingness to admit her wrongdoing saving the time and expense of a contested hearing. Also it was submitted that the Member has never before been disciplined at this College.

The Member was then given an opportunity to make submissions on the JSO. However, she declined to make oral submissions with respect to the JSO.

Penalty Decision

The Panel accepted the Joint Submission as to Order and accordingly made the following orders:

1. The Member shall 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 six 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 a minimum of two meetings with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. If the Expert determines that a greater number of sessions are required, the Expert will advise the Member and write to the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 18 months of the date of the 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 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, online learning modules and online participation forms (where applicable):

1. Professional Standards,

2. Decisions about Procedures and Authority,

3. Documentation, and

4. 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 and to be incompetent,

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

3. strategies for preventing the misconduct and incompetence 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) The Member shall successfully complete at her own expense, with a minimum passing grade of 65%, nursing courses (with clinical or other practical components) that have received prior approval from the Director regarding: clinical assessment and response; documentation and communication; consent; and controlled acts. The Member must provide the Director with proof of enrolment and successful completion of the courses with a minimum passing grade of 65% by January 31, 2018.

c) When the Member returns to the practice of nursing, and until the Member completes the requirements set out in subparagraph 3(b), the Member will notify each current and new employer 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. Only practise nursing for an employer who agrees to, and does, forward a report to the Director within 14 days of the commencement or resumption of the Member’s employment in any nursing position, confirming:

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;

d) Until the Member completes the requirements set out in subparagraph 3(b), the Member shall not practise independently in the community and shall only engage in the practice of nursing in a non-clinical position in which the Member is not providing direct client care and for which the Member has provided a job description to the Director and has obtained approval from the Director prior to commencing employment; and

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

Reasons for Penalty Decision

The Panel concluded that the proposed penalty was reasonable and in the public interest. The College’s Book of Authorities was helpful in that regard.

The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for her actions.

The Panel found that the penalty contained in this order was such that it serves as a deterrent to the Member specifically and the profession in general. The order serves to maintain confidence in the College’s ability to fulfill its mandate to regulate nursing in the public interest, and to provide remediation to the Member. The penalty is heavy on remediation which is appropriate in the circumstance due to the finding of incompetence. The six month suspension of the Member’s certificate of registration was seen as significant, but appropriate given the seriousness of the finding in this matter.

I, Spencer Dickson, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below:

Spencer Dickson, RN, Chairperson Date

Panel members:

Spencer Dickson, RN

Tanya Dion, RN

Robert MacKay, Public member

George Rudanycz, RN

Catherine Ward, Public member

Footnotes

1. 1Also present at the Hearing were: Mr. Peter Charn, Court Reporter; [ ], Prosecutions Clerk; and [ ], Hearing Administer.
2. 2Appendix “A” of the ASF