College of Nurses of Ontario v. Prendergast, 2016 CanLII 153067

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Samantha Diceman, RPN Member George Rudanycz, RN Member Catherine Ward Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

• and - )

JOSEPH PRENDERGAST ) ROBERT STEPHENSON for Registration No. 0193250 ) Joseph Prendergast

) Heard: August 15, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on August 15, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(a), 1(b), 2(a), 2(b), 5(a) and 5(b) of the Notice of Hearing dated July 12, 2016. With respect to allegation 5, the College requested leave to withdraw the allegation that the conduct would reasonably be considered by members to be disgraceful or dishonourable. The panel granted this request. The remaining allegations against Joseph Prendergast (the “Member”) are as follows.

IT IS ALLEGED THAT:

1. [Withdrawn]

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 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 November 4, 2014:

(a) [Withdrawn]

(b) [Withdrawn]

(c) you conducted a breast examination of client [ ] without a reasonable basis for doing so;

(d) you failed to communicate adequately to client [ ] that you intended to conduct a breast examination, and/or the reasons for the examination;

(e) you failed to obtain client [ ]’s consent before conducting a breast examination;

(f) you failed to document that you conducted a breast examination of client [ ];

(g) you failed to communicate adequately to client [ ] that you intended to conduct an abdominal examination, and/or the reasons for the examination;

(h) you failed to obtain client [ ]’s consent before conducting an abdominal examination.

3. You have committed an act of professional misconduct, as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S. O. 1991, c. 32, as amended, and defined in paragraph 1(9) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at the Facility, you did something to a client for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose in a situation in which a consent was required by law, without such consent, and in particular, on or about November 4, 2014:

(a) you failed to obtain client [ ]’s consent before conducting a breast examination;

(b) you failed to obtain client [ ]’s consent before conducting an abdominal examination.

4. You have committed an act of professional misconduct, as provided by subsection 51 (1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S. O. 1991, c. 32, as amended, and defined in paragraph 1(13) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at the Facility, you failed to keep records as required, and in particular, on or about November 4, 2014:

(a) you failed to document that you conducted a breast examination of client [ ].

5. 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 unprofessional, and in particular:

(a) [Withdrawn]

(b) [Withdrawn]

(c) you conducted a breast examination of client [ ] without a reasonable basis for doing so;

(d) you failed to communicate adequately to client [ ] that you intended to conduct a breast examination, and/or the reasons for the examination;

(e) you failed to obtain client [ ]’s consent before conducting a breast examination;

(f) you failed to document that you conducted a breast examination of client [ ];

(g) you failed to communicate adequately to client [ ] that you intended to conduct an abdominal examination, and/or the reasons for the examination;

(h) you failed to obtain client [ ]’s consent before conducting an abdominal examination.

Member’s Plea

The Member admitted the allegations in the Notice of Hearing set out in paragraphs 2(c), (d), (e), (f), (g), (h); 3(a), (b); 4(a) and 5(c), (d), (e), (f), (g), (h) in that the conduct was unprofessional. The panel received a written plea inquiry which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College and the member advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Joseph Prendergast (the “Member”) obtained a diploma in nursing in Jamaica.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) in the General Class in August 2002.

3. The Member was employed at the North York General Hospital (the “Hospital”) from August 2001 until November 2014.

PRIOR HISTORY

4. The Member has no prior disciplinary findings with the College and has worked at the Hospital for his entire career in Canada. The Hospital had never received any other complaints about the Member’s care or conduct.

THE FACILITY

5. The Hospital is located in North York, Ontario.

6. The Member had been a full-time staff nurse at the Hospital since 2003 and worked night shifts in the Emergency Department.

THE CLIENT

7. (the “Client”) was 45 years old at the time of the incident. She had a history of breast cancer and was undergoing chemotherapy.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

8. On November 4, 2014, the Client attended the Emergency Department of the Hospital complaining of fever and an intermittent dry cough. She was accompanied by her mother-in-law, [A].

9. The Client was triaged at approximately 1140 hours and placed in an Acute Care room.

10. The Client was assessed by a physician at approximately 1200 hours. She was diagnosed with pneumonia, admitted, and the physician ordered an intravenous antibiotic.

11. The Member worked the 1900 to 0700 shift and was assigned to the Client. At around 1900, the day nurse introduced the Member.

12. Shortly after the shift change at 1900, [A] noted that the Client’s IV line was backing up with blood. She left to report this to the Member. Soon after [A] returned to the room, the Member arrived and changed the IV bag.

13. The Member auscultated the Client’s chest wall using a stethoscope by moving the stethoscope across the Client’s gown and placing it above the Client’s left breast. If the Member were to testify, he would say that during auscultation he noticed that the Client’s left breast appeared swollen.

14. The Member then asked the Client which side her surgery was on, to which she replied it had been on her left side. Without explanation and without consent, the Member palpated the Client’s left breast. He then pulled up the Client’s gown, and again, palpated her left breast.

15. The Member asked the Client where her incision was and she showed him the scar. The Member pulled the Client’s gown back down and advised the Client that her left breast looked and felt swollen. The Client denied that her breast was swollen.

16. Without explanation and without consent, the Member then pulled the Client’s pants down to auscultate her abdomen.

17. The Member then left the Client’s room.

18. The Member documented his assessment of the Client, but did not document having conducted a breast examination, or the concern that gave rise to it.

19. If the Client were to testify, she would say that she felt uncomfortable with the Member’s conduct during this interaction and became upset the more she thought about it. She called the Hospital on November 10, 2014 to report the Member’s conduct as she wondered why the Member had touched her breasts and whether the Member was qualified to do a breast examination.

20. If the Member were to testify, he would say that while auscultating the Client’s chest wall, he became concerned that the Client’s left breast seemed firm and possibly swollen. He therefore conducted a breast examination to allay his concerns. However, the Member acknowledges that he should have explained his intended actions prior to examining the Client’s breasts and conducting an abdominal examination, and that he should have obtained consent from the Client prior to touching her breasts and conducting an abdominal examination. Furthermore, having conducted the examination, he ought to have documented that he did so, as well as his reasons for doing so.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

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

• Therapeutic Nurse-Client Relationship;

• Professional Standards, Revised 2002; and

• Documentation.

22. The Member admits that he breached the above standards of practice of the profession when he:

• conducted a breast examination of the Client without a reasonable basis for doing so;

• failed to communicate adequately to the Client that he intended to conduct a breast examination and/or the reasons for the examination;

• failed to obtain the Client’s consent before conducting a breast examination;

• failed to document that he conducted a breast examination of the Client;

• failed to communicate adequately to the Client that he intended to conduct an abdominal examination, and/or the reasons for the examination; and

• failed to obtain the Client’s consent before conducting an abdominal examination.

23. The Member admits that he failed to obtain consent, when he conducted a breast, and later, an abdominal examination.

24. The Member further admits that he failed to keep records as required when he failed to document that he conducted a breast examination of the Client.

25. The Member admits that he committed the acts of professional misconduct as described in paragraphs 8 to 20 above and as set out in the following paragraphs of the Notice of Hearing:

• 2(c), (d), (e), (f), (g), (h);

• 3(a), (b);

• 4(a); and

• 5(c), (d), (e), (f), (g), and (h) in that the conduct was unprofessional.

OTHER

26. With leave of the Panel of the Discipline Committee, the College withdraws the following particulars: paragraphs 1(a), 1(b), 2(a), 2(b), 5(a) and 5(b).

Decision

The panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 2(c), (d), (e), (f), (g), (h); 3(a), (b); 4(a); 5(c), (d), (e), (f), (g), and (h) of the Notice of Hearing. For allegation 5, the panel’s finding is that the conduct would reasonably be considered by members as unprofessional.

Reasons for Decision

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

Allegation #2(c) in the Notice of Hearing is supported by paragraphs 13, 14, 15, and 20 in the Agreed Statement of Facts.

Allegation #2(d) in the Notice of Hearing is supported by paragraphs 13 and 20 in the Agreed Statement of Facts.

Allegation #2(e) in the Notice of Hearing is supported by paragraphs 14 and 20 in the Agreed Statement of Facts.

Allegation #2(f) in the Notice of Hearing is supported by paragraphs 18 and 20 in the Agreed Statement of Facts.

Allegation #2(g) and 2(h) in the Notice of Hearing is supported by paragraphs 16 and 20 in the Agreed Statement of Facts.

Allegation #3(a) in the Notice of Hearing is supported by paragraphs 14 and 20 in the Agreed Statement of Facts.

Allegation #3(b) in the Notice of Hearing is supported by paragraphs 16 and 20 in the Agreed Statement of Facts.

Allegation #4(a) in the Notice of Hearing is supported by paragraphs 18 and 20 in the Agreed Statement of Facts.

Allegation #5(c) in the Notice of Hearing is supported by paragraphs 13, 14, 15, and 20 in the Agreed Statement of Facts.

Allegation #5(d) in the Notice of Hearing is supported by paragraphs 13 and 20 in the Agreed Statement of Facts.

Allegation #5(e) in the Notice of Hearing is supported by paragraphs 14 and 20 in the Agreed Statement of Facts.

Allegation #5(f) in the Notice of Hearing is supported by paragraphs 18 and 20 in the Agreed Statement of Facts.

Allegation #5(g) and 5(h) in the Notice of Hearing is supported by paragraphs 16 and 20 in the Agreed Statement of Facts.

With respect to Allegation # 5, the panel finds that the Member’s conduct in not effectively communicating to the patient, failing to obtaining consent and not documenting an assessment as per the Standards of Practice was unprofessional. It demonstrated a serious disregard for his professional obligations.

Penalty

Counsel for the College and the Member advised the panel that a Joint Submission on Order had been agreed upon. The Joint Submission requests that this panel make an order as follows.

1. Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for one month. 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 his own expense and within six months from 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 12 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. Therapeutic Nurse-Client Relationship;

3. Documentation; and

4. Consent

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify his 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 his 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

Submissions were made by College Counsel and the Member’s Counsel to illustrate that the Joint Submission on Order is in the public interest.

The parties agreed that the mitigating factors in this case were:

a) there has been no previous misconduct by this Member;

b) this was an isolated incident;

c) the Member cooperated fully with the College; and

d) the Member admitted the misconduct and expresses remorse and willingness to cooperate with the terms and conditions of the Order

No aggravating factors were presented.

Counsel submitted that the proposed order meets all criteria for public protection as well as specific deterrence for the Member and general deterrence for the membership with the reprimand, one month suspension and employer notification for 12 months.

The proposed penalty provides for remediation and rehabilitation through a reprimand, meetings with an expert and employer notification for 12 months. This demonstrates to the public and members generally that this behaviour will not be tolerated, and to this Member that this is a fair and appropriate penalty.

Counsel submitted cases to the panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

In CNO v. Lekiqi (Discipline Committee, 2013) the Member failed to obtain informed consent, failed to properly assess and /or document care and his assessment, and breached therapeutic boundaries. There were five clients affected and the behaviour was persistent. The penalty in this case was: a reprimand, 2 month suspension, meetings with a nursing expert and 12 months of employer notification. The Lekiqi case was more serious than the current case, and there were criminal proceedings.

CNO v. O’Connor (Discipline Committee, 2011) was presented as a deliberate and sexual interaction with a student, involving a breast examination done without purpose. In O’Connor the penalty included a 2 month suspension, reprimand, meetings with an expert, employer notification and no preceptorship for 12 months.

CNO v. Ovington (Discipline Committee, 2011) has less relevance as to the type of conduct. Its similarity was that the Member failed to document and there was no clear justification for the behaviour of the Member. The mitigating factors were the same as in the present case, but there were aggravating factors. This penalty was a suspension of one month, a reprimand, meetings with a nursing expert, and employer notification for 12 months.

The cases presented demonstrate the fairness of the Joint Submission on order.

Penalty Decision

The panel accepted the Joint Submission as to Order and accordingly ordered:

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 one month. 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 his own expense and within six months from 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 12 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. Therapeutic Nurse-Client Relationship;

3. Documentation; and

4. Consent

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify his 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 his 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.

Reasons for Penalty Decision

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

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. The penalty is in line with what has been ordered in previous cases.

I, GRACE FOX, 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