College of Nurses of Ontario v. Avraham Oleg Unger, 2017 CanLII 146975

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Ingrid Wiltshire-Stoby, RN Chairperson Tammy Hedge, RPN Member Shiraz Irani, RN Member Robert MacKay Public Member Devinder Walia Public Member

BETWEEN:

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

• and -

AVRAHAM OLEG UNGER Reg. No. 0503813 ROBERT STEPHENSON for Avraham Oleg Unger

Heard: April 18, 2017

DECISION AND REASONS

October 2, 2017, Addendum: Following the release of our Reasons for Decision, it was brought to the panel’s attention that the Notice of Hearing was reproduced with the patient’s initials replaced with “Client A” and the name of the facility removed in allegation 1. This was done in error. We have corrected the errors below.

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on April 18, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

The allegations against Avraham Unger (the “Member”) were 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 Mackenzie Health in Richmond Hill, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, and in particular:

a) on or about December 19, 2013, you pushed [the Client] into a wall and immobilized him there, and/or you said to [the Client] words to the effect of “you will listen to me,” and/or you attempted to turn the client’s head to face you, and/or you restrained the client by holding one of the client’s wrists in each of your hands, and/or while holding the client’s wrists you made the client sit on a chair and continued to immobilize him, all without any proper clinical basis for doing so;

b) on or about December 19, 2013, you failed to document your interaction with and/or restraint of [the Client];

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(7) of Ontario Regulation 799/93, in that, while practising as a Registered Nurse at the Facility, you abused a client verbally, physically, or emotionally, and in particular:

a) on or about December 19, 2013, you pushed [the Client] into a wall and immobilized him there, and/or you said to [the Client] words to the effect of “you will listen to me,” and/or you attempted to turn the client’s head to face you, and/or you restrained the client by holding one of the client’s wrists in each of your hands, and/or while holding the client’s wrists you made the client sit on a chair and continued to immobilize him, all without any proper clinical basis for doing so;

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(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:

a) on or about December 19, 2013, you failed to document your interaction with and/or restraint of [the Client];

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 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:

a) on or about December 19, 2013, you pushed [the Client] into a wall and immobilized him there, and/or you said to [the Client] words to the effect of “you will listen to me,” and/or you attempted to turn the client’s head to face you, and/or you restrained the client by holding one of the client’s wrists in each of your hands, and/or while holding the client’s wrists you made the client sit on a chair and continued to immobilize him, all without any proper clinical basis for doing so;

b) on or about December 19, 2013, you failed to document your interaction with and/or restraint of [the Client].

Member’s Plea

The Member admitted to the allegations set out in paragraphs 1(a), 1(b), 2(a), 3(a), 4(a), and 4(b) of the Notice of Hearing. The Panel 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 and counsel for 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. Avraham Oleg Unger (the “Member”) obtained a diploma in nursing in Moldova in 1987 and upgraded his diploma in Israel. He has been practising nursing for approximately 31 years and has no prior disciplinary history with the College.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on January 21, 2005.

3. The Member was employed at MacKenzie Health – MacKenzie Richmond Hill Hospital (the “Hospital”) from April 2006 to January 16, 2014. He resigned his employment after the incident described below.

THE FACILITY

4. The Hospital is located in Richmond Hill, Ontario.

5. The Member was employed as a full-time staff nurse on the psychiatric in-patient unit (3-South). He was frequently the Most Responsible Nurse on the unit.

6. The unit contains both a main psychiatric unit as well as a Psychiatric Intensive Care Unit (“PICU”). The PICU is a locked unit that is monitored 24 hours a day and can house up to four clients. Clients in the PICU receive 1:1 care. A number of security cameras are placed throughout the PICU in part so that staff can monitor the PICU from the nursing office.

7. At the time of the incident described below, the Client was in the PICU. He was moved from the general unit into PICU shortly before December 19, 2013 because he was exhibiting escalated behaviour and was acting out.

8. The Client had been on an open unit on December 18, 2013, but due to his escalation, he was moved back to PICU. On December 18, 2013 he required the administration of injectable IM prn meds, including Haldol, but in spite of this he was eventually placed in 5-point restraints during the night shift.

9. At the start of the Member’s shift on December 19, 2013 the Client was still very agitated. This was the day before the Client was scheduled to appear before a review board in order to determine whether he should be discharged from the hospital. The Client was repeatedly saying he wanted out of the hospital and that he would not take any medication.

THE CLIENT

10. [The Client] was 22 years old at the time of the incident.

11. The Client had some cognitive impairment and was described as “whiny” – he would get upset and cry loudly, running up and down the halls, crying and wailing.

12. The Client could usually be re-directed and de-escalated verbally, and rarely required PRN medication. Most staff reported that he was not physically aggressive.

13. On December 19, 2013, however, the Client was upset. He was starting to escalate (crying and wailing) shortly after the day staff arrived and the night staff had left.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

14. On December 19, 2013, the Member worked the day shift, 07:15 to 19:15. He was the Most Responsible Nurse on shift. There were at least six other regulated staff on shift with the Member.

15. After receiving initial reports from the night staff, the nursing staff conducted rounds. [Co-worker A], an RPN, stayed in the nursing office to watch the PICU monitors while the others went around to check on the clients. As [Co-worker A] was checking medications, she noticed the Member entering the PICU. [Co-worker A] watched the PICU monitor because colleagues had previously been injured by clients in the PICU.

16. The interaction that followed was captured on video, and was witnessed by [Co-worker A] While the security cameras do not capture sound, [Co-worker A] stated she could hear at least some of the Member’s interactions with the Client.

17. The Client was pacing in and out of the dining room and the corridor of the PICU. He then walked into the dining room, and the Member followed him in. The Member talked to the Client abruptly and authoritatively. The Client appeared to respond dismissively, walking out of the dining room, and the Member followed him into the corridor.

18. The Client then proceeded down the corridor, and turned around at the end of the corridor, while the Member watched him. When the Client came back up the corridor, the Member grabbed him by his right arm and said, “Please listen to me.”

19. The Member then turned the Client around, pushed him into the wall and held him to the wall. The Client’s face was against the wall and the Member’s hand was on the back of the Client’s upper shoulder. The Member also used his left leg to hold the Client against the wall.

20. The surveillance video shows the Member speaking to the Client as he was held against the wall. The Client was struggling to get away from the Member, but he was not being aggressive. When the Client was able to move away from the wall, the Member continued to hold his arm before letting go.

21. After the Member let go of the Client, the Client walked back into the dining room where he was pacing back and forth. The Member followed him into the dining room. The Member used one hand to push the Client into the wall, so his back was against the wall, and the Member grabbed one or both of the Client’s arms so he could not get away. The Client struggled to get away from the Member, but he was not violent.

22. The Member backed the Client up by holding onto his arms and sat him down forcefully on one of the stools in the dining room. After the Client was seated, the Member continued to hold both of his arms and began speaking to him for approximately 30 seconds, before the Client got up and struggled to get his arms free from the Member. The Member finally let go and the Client walked out of the dining room and down the corridor. The Member then left the dining room through a locked door.

23. The Member did not document the incident with the Client. The Client was not injured.

24. If the Member were to testify, he would say that the Client was very agitated at the start of his shift on December 19, 2013. When the Client walked into the dining room, the Member became concerned because another client, [ ], was in a room at the end of the dining room. [ ] was a particularly dangerous and violent client. Approximately one month prior, the Member was attacked by [ ]. He was punched several times and knocked to the ground. [ ] required the effort of security and other staff to restrain him and get him off the Member. The Member suffered injuries to his right wrist. The assault was fresh in the Member’s mind so he was concerned that the Client’s agitation would cause [ ] to act up.

25. The Member would further testify that, in the corridor, the Member was attempting to counsel the Client in advance of his review board appearance. The Member became frustrated when the Client did not seem responsive to his advice, and the Member grabbed the Client. The Client then proceeded into the dining area where he was still very agitated and noisy. At this point, the Member attempted to talk to him to calm him down. The Member would testify that he was trying to calm the Client down because he did not want [ ] to become agitated as a result of the Client’s behaviour. The Member acknowledges that his treatment of the Client was wrong and totally inappropriate.

26. The Member would testify that he is very disappointed in himself and the conduct he engaged in with the Client.

27. The Member would further testify that as part of his reflection on the incident, he voluntarily completed the College’s self-directed learning package, One is One too Many.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

28. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1(a) of the Notice of Hearing, as described in paragraphs 14 to 26 above, in that he pushed the Client into a wall and immobilized him there, and/or he said to the Client words to the effect of “please just listen to me,” and/or he attempted to turn the Client’s head to face him, and/or he restrained the Client by holding one of the Client’s wrists in each of his hands, and/or while holding the Client’s wrists he made the Client sit on a chair and continued to immobilize him, all without any proper clinical basis for doing so.

29. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 2(a) of the Notice of Hearing, as described in paragraphs 14 to 26 above, in that he abused the Client verbally, physically and emotionally when he pushed the Client into a wall and immobilized him there, and/or he said to the Client words to the effect of “you will listen to me,” and/or he attempted to turn the Client’s head to face him, and/or he restrained the Client by holding one of the Client’s wrists in each of his hands, and/or while holding the Client’s wrists he made the Client sit on a chair and continued to immobilize him, all without any proper clinical basis for doing so.

30. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1(b) and 3(a) of the Notice of Hearing, as described in paragraphs 14 to 26 above, in that he failed to document his interactions with the Client.

31. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs:

• 4(a) of the Notice of Hearing in that his conduct was dishonourable (and) unprofessional, as described in paragraphs 14 to 26 above;

• 4(b) of the Notice of Hearing, in that his conduct was unprofessional as described in paragraph 23 above.

Decision

The Panel considered the plea of the Member and the Agreed Statement of Facts and found that the facts support findings of professional misconduct. In particular the Panel found that the Member committed the acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 2(a), 3(a) of the Notice of Hearing in that he failed to meet the standard of practice of the profession by verbally, physically, and emotionally abusing [the Client] and failed to properly document his interaction with the Client.

As to allegation 4(a) and 4(b), the Panel found that the Member engaged in conduct that would reasonably be considered by members of the profession as dishonorable and unprofessional.

Reasons for Decision

Having considered the Agreed Statement of Facts and the Member’s plea, the Panel found that the evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegations 1(a) and 2(a) in the Notice of Hearing are supported by the facts in paragraphs 18, 19, 20, 21, 22, and 25 in the Agreed Statement of Facts. These facts, among other things, detail admissions by the Member that he grabbed, forcefully held down, and pushed the Client.

Although no specific published College standards were referenced, this kind of abuse, which includes physical abuse of a vulnerable client, is obviously a breach of the standards expected of members of the College, which the Member himself now recognizes.

Allegations 1(b) and 3(a) in the Notice of Hearing are supported by the fact in paragraph 23 in the Agreed Statement of Facts where the Member admits to not documenting the incident with the Client.

With respect to allegation 4(a), the Panel found that the conduct of the Member in verbally, physically and emotionally abusing the Client rises to the level of conduct that would be regarded by members of this profession as dishonourable and unprofessional, due to a moral failing. However in the facts before us this failure did not appear ongoing and is more likely an isolated incidence, and therefore the Panel did not find that the conduct would be regarded as disgraceful.

And with respect to allegation 4(b) failing to document the interaction with the Client that is described in paragraphs 18, 19, 20, 21, 22, and 25 the Panel found this to be unprofessional as it demonstrates a failure to live up to the standards expected of him.

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

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

a) The Member will attend two meetings with a Nursing Expert (the “Expert”), at his own expense and within six months from the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires, online learning modules and online participation forms (where applicable):

1. Professional Standards

2. Therapeutic Nurse-Client Relationship

3. Restraints

4. Conflict Prevention and Management

iv. 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;

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 18 months from the date the Member’s suspension ends, 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

College Counsel submitted that the proposed penalty order supported general deterrence, specific deterrent, protection of the public interest and maintained public confidence in the ability of the nursing profession to self-regulate.

With respect to mitigating factors the College offered five documents which the Panel accepted and marked as Exhibits 5 through 9. These exhibits were awards and memos that documented some of the achievements of the Member and skills he has demonstrated since the events of December 19, 2013.

College Counsel submitted three cases to the Panel to demonstrate that the proposed penalty fell within the range of penalties imposed in similar cases from this Discipline Committee. Although it was agreed no cases are directly on point, the cases reviewed were similar to the present case and so the College submitted that the Panel could rely on them for guidance.

CNO v. Munro (Discipline Committee, 2011), also dealt with physical abuse, however in that case the abuse was prolonged and the member had a previous finding of a different nature. This resulted in a penalty order that is similar to the one sought here, with a longer suspension of 3 months.

CNO v. Guilbeau (Discipline Committee, 2010), came to a panel as a contested matter differing from this which is presented as an agreement. Guilbeau was ultimately found to have engaged in abuse of a physical and emotional nature. In addition the member was found to have failed to report a criminal finding to the College. The resulting penalty include a 3 month suspension.

CNO v. Pottruff (Discipline Committee, 2006), was most on point with a finding of emotional, verbal and physical abuse of a client and no significant differing factors. The penalty order included a 2 month suspension of the member’s certificate of registration.

Counsel for the Member stated that in addition to the comments of College Counsel he would note that the Member had already made efforts to educate himself and complete the College continuing education course called “One is One Too Many”. Counsel drew the Panel’s attention to some of praise for the Member contained in Exhibits 5, 6, 7, 8, and 9. He also offered a bundle of documents which the Panel marked as Exhibit 10. This exhibit contained some 8 letters and emails speaking to the Member’s good character.

In reply, College Counsel noted for the Panel that the documents in Exhibit 10 predated the events of December 19, 2013 and could not be used to assess the character of the Member prior to the allegations before the Panel.

Penalty Decision

The Panel accepted the Joint Submission on Order and accordingly ordered:

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

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

a) The Member will attend two meetings with a Nursing Expert (the “Expert”), at his own expense and within six months from the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires, online learning modules and online participation forms (where applicable):

1. Professional Standards

2. Therapeutic Nurse-Client Relationship

3. Restraints

4. Conflict Prevention and Management

iv. 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;

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 18 months from the date the Member’s suspension ends, 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 the proposed penalty, has accepted responsibility.

The Panel found that the penalty satisfies the principles of general deterrence and specific deterrence by a 2-month suspension of the Member’s certificate of registration and an oral reprimand demonstrating that such misconduct will not be tolerated.

Rehabilitation and public protection is achieved through the order to attend two meetings with a Nursing Expert under detailed conditions and 18 months of employer notification.

Public protection is further supported in that the College will publish the findings from this Hearing.

The penalty is in line with what has been ordered in previous similar cases.

I, Ingrid Wiltshire-Stoby, 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:

Ingrid Wiltshire-Stoby

Tammy Hedge Shiraz Irani Robert MacKay

Devinder Walia