College of Nurses of Ontario v. Rosemary Fisher, 2017 ONCNO 49375

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Dawn Cutler, RN Member Tammy Hedge, RPN Member Margaret Tuomi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ALYSHA SHORE for College of Nurses of Ontario

• and -

ROSEMARY FISHER Reg. No. HD08395 GRANT FERGUSON for Rosemary Fisher

Heard: March 10, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on March 10, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

The Panel ordered a ban on the publication and/or broadcasting outside of the hearing room of the name of the client referred to in the Discipline Hearing of Rosemary Fisher (“the Member”), as well as of any information that could reasonably disclose the client’s identity, including any reference to the client’s name contained in the allegations in the Notice of Hearing and in any exhibits filed with the Panel.

The Allegations

College counsel asked the Panel to amend the Notice of Hearing and remove certain language from the allegations. The allegations against the Member as stated in the Notice of Hearing dated November 25, 2016 following the requested amendments are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to the following incidents:

(a) you reported to your employer that you had not observed your nursing colleague, [Colleague A], striking a client, [the Client], on or about March 31, 2015, when you had observed this conduct.

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(25) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the Facility], you failed to report an incident of unsafe practice or unethical conduct of a health care provider with respect to the following incidents:

(a) you reported to your employer that you had not observed your nursing colleague, [Colleague A], striking a client, [the Client], on or about March 31, 2015, when you had observed this conduct.

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Practical 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 with respect to the following incidents:

(a) you reported to your employer that you had not observed your nursing colleague, [Colleague A], striking a client, [the Client], on or about March 31, 2015, when you had observed this conduct.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2 and 3 in the Notice of Hearing. 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. Rosemary Fisher (the “Member”) obtained a certificate in nursing from Fanshawe College in 1984.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on January 1, 1984.

3. The Member was employed at [the Facility] from July 2, 1986 to April 15, 2015, when her employment was terminated as a result of the incident below. The Member grieved her termination and it was converted to a resignation.

THE FACILITY

4. The Facility is located in [ ], Ontario.

5. The Member worked on the inpatient mental health unit (the “Unit”) as a full-time staff nurse on the day and night shift.

6. The Unit is a 24-bed mental health unit [ ]. The Unit was newly-built and opened in November 2014.

7. Clients on the Unit typically suffered from psychotic disorders, including those with a diagnosis of schizophrenia.

8. The Unit is a secure unit. It had a very new security system in which electronic wristbands worn by clients would lock or open doors to and within the Unit as a client approached, depending on a client’s security access. The Client was able to leave the Unit despite the fact that he was wearing an electronic wristband that was supposed to limit his movement by locking the main door to the Unit upon approach.

9. The Member had worked in the Unit for a few months.

THE CLIENT

10. [The Client] (the “Client”) was 20 years old at the time of the incident.

11. He had a diagnosis of schizoaffective disorder.

12. The Client was admitted to the Facility on February 13, 2015 but was moved to the Unit on March 29, 2015. His behaviour on the Unit was disruptive at first, but he was removed from seclusion on the morning of March 30, 2015.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

13. On March 31, 2015, the Member was the Client’s assigned nurse. The Member was working the night shift.

14. At 19:00, a shift change was in progress. The Member had just come on shift and was at the nursing station when a call came in advising that the Client had been found in the seclusion area of another unit [ ]. Two security personnel brought the Client back to the Unit.

15. The Client was able to leave the Unit despite the fact that he was wearing an electronic wristband that was supposed to limit his movement by locking the main door to the Unit upon approach. In response, staff requested that security lock down the Unit, for all clients, given the malfunction of the Client’s wristband. This process takes approximately five minutes.

16. After security left and before security could advise that they had locked down the Unit, the Client started walking towards the door that exits the Unit. The Member called out to him by name and asked him to return to the common area, but the Client kept walking.

17. The interaction that followed was captured on video. The entire interaction lasted seconds.

18. The Member attempted to intercept the Client, by walking up behind him and reaching for him, but did not make contact. She tripped and fell to her knees.

19. Another nurse, [Colleague A], was behind the Member. [Colleague A] rushed past the Member and to the Client and pulled him to the floor, pulling his weight onto her and holding him. The Client’s upper body was on [Colleague A’s] upper body.

20. The Member approached the Client and [Colleague A] while they were on the floor, and kneeled at [Colleague A’s] side.

21. While the Member was kneeling next to [Colleague A] and the Client, [Colleague A] struck the Client four or five times in the head and neck region, then readjusted her body to hold him around the shoulder area.

22. Another nurse, [Colleague B], approached from down the hall. She moved past [Colleague A’s] head and around to [Colleague A] and the Client’s feet (behind the Member) while [Colleague A] was striking the Client. [Colleague B] restrained the Client’s ankles and the Member restrained one of his arms while he is on top of [Colleague A]. The Member observed the Client resisting as [Colleague A] held him.

23. Another nurse, [Colleague C], approached while the Client was being restrained. She hit the panic alarm and the Client was eventually moved to seclusion. He declined medical assistance.

24. The Member, [Colleague A], [Colleague C] and [Colleague B] discussed the incident afterwards and [Colleague C] prepared a patient safety report. The Member charted the incident in the Client’s chart as follows:

[The Client] continued to move towards the door. When staff reached for client he ran for the door. Staff put hands on to restrain client and prevent him from leaving unit. He was resistive, struggling with staff. Code white was called. Client placed in seclusion with assist of security and ward staff.

25. In her first meeting with the Facility, the Member said she could not remember seeing [Colleague A] and the Client go down to the floor, but recalled [Colleague A] grappling around his shoulder area as the Client resisted. She denied seeing [Colleague A] put the Client in a headlock or striking the Client.

26. Several days later, the Member recalled that she did see [Colleague A] strike the Client a number of times with a closed fist.

27. If the Member were to testify, she would say that she did not want to make a report without a clear recollection that [Colleague A] struck the Client. After reflecting on the events, the Member recalled that [Colleague A] struck the Client and she attempted to correct and clarify her initial statement.

28. The Member would further testify that the video, which she observed only after her interviews with her employer, depicts events differently than she remembered them at the time of the incident or during her initial interview.

29. In any event, the Member acknowledges that she saw [Colleague A] strike the Client and that she breached the College’s practice standard by not reporting [Colleague A’s] conduct to the Facility during her initial interview with her employer.

30. The College’s practice standard, Professional Standards, states that a nurse demonstrates accountability by:

reporting to the appropriate authority any health care team member or colleague whose actions or behaviours toward clients are unsafe or unprofessional, or indicate physical, verbal and emotional abuse [;]

ADMISSIONS OF PROFESSIONAL MISCONDUCT

31. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1(a) and 2(a) of the Notice of Hearing, as described in paragraphs 13 to 29 above, in that she failed to report to the Facility that she observed [Colleague A] strike the Client on March 31, 2015.

32. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 (a) of the Notice of Hearing, and in particular that her conduct was unprofessional, as described in paragraphs 11 to 23 above.

Decision

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2 and 3 of the Notice of Hearing. As to allegation #3, the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be 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 #1 in the Notice of Hearing is supported by paragraphs 25, 26, 27, 28, and 29 in the Agreed Statement of Facts. The Panel accepts that it is a breach of the standards of practice of the profession to fail to be truthful in making a report concerning the abuse of a client by another nurse. The Member’s reasons for failing to be truthful do not excuse her conduct.

Allegation #2 in the Notice of Hearing is supported by paragraphs 25, 26, 27, 28 and 29 in the Agreed Statement of Facts. The evidence was clear that the Member failed to report an incident of unsafe practice or unethical conduct of a health care provider with respect to this incident.

Allegation #3 in the Notice of Hearing is supported by paragraphs 25, 26, 27, 28, 29 and 30 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in failing to report the witnessed abuse of a client was unprofessional as it demonstrated a serious and persistent disregard for her 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 her 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

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

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

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

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

Submissions were made by College Counsel and the Member’s Counsel. The parties were largely in agreement.

(a) Submissions by College Counsel

College Counsel submitted that the mitigating factors in this case included that the Member has worked for the Facility since 1986. She has had a significant number of years of good practice with no complaints against her. The Member has demonstrated remorse, accepted responsibility, and has co-operated with the College.

The aggravating factors in this case included that the allegations were serious in that failing to report a witnessed abuse can cause significant harm to members of the public. It causes discredit to the profession and shows a disregard for the Member’s professional obligations.

The proposed penalty provides for general deterrence through the suspension, which will deter other members of the profession from engaging in similar conduct by helping them understand the importance of their obligation to report abuse, when witnessed.

As to specific deterrence, the proposed penalty is significant enough to deter the Member from engaging in the same conduct. Each element of the penalty works toward the Member fully understanding how significant her lack of action was.

The proposed penalty provides for remediation and rehabilitation through the reprimand, and the terms conditions and limitations. The meetings with the expert provide the opportunity for the Member to reflect and learn.

Overall, the public is protected because the penalty is in line with getting good nurses back to practice once they are safe to do so.

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

The first case was CNO v. Wilcox (Discipline Committee, September 25, 2012). This case proceeded by way of an agreed statement of facts case with a joint submission on order. The client involved reported to the member that a previous nurse had touched her inappropriately. The member did not document this conversation, nor did she elicit further information regarding the complaint, causing her to not fully appreciate the nature of the complaint. The member received an oral reprimand and terms, conditions and limitations on her certificate of registration. The member in Wilcox was not given a suspension.

The second case was CNO v. Clitheroe (Discipline Committee, 2008). This case involved a failure to report unsafe practice by members of the profession. This case differs in facts as the member was also involved in the abuse of a client. The gravity of the situation is greater. The member in this case received a 4 month suspension.

(b) Submissions by Member’s Counsel

Counsel for the Member agreed with the submissions made by the College, and added further that the Member herself did not engage in the abuse of the client. Counsel advised that the Member accepts responsibility for the delay caused by her silence regarding what she witnessed. The Member was confused by what she saw, and it was not until later that she realized exactly what had happened. The Member’s counsel admitted that this situation was more severe than in CNO v. Wilcox.

The mitigating factors in this case were that the Member took responsibility for her actions early on in the process, saving the client and the client’s family from possible further harm by participating in a hearing. The Member is not currently practicing in nursing. This is the Member’s first offence, occurring at the end of a lengthy career. There was no act of dishonesty.

Counsel emphasized that general deterrence will be achieved, as the membership will understand through publication of this decision that failing to report suspected abuse is a serious matter.

Counsel also submitted there will be specific deterrence, and that the Member will gain valuable insight and education through remediation.

Penalty Decision

The Panel accepts the Joint Submission as to Order and accordingly orders:

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

2. The Executive Director is directed to suspend the Member’s certificate of registration for 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 her 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,

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

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

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

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

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 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, Michael Hogard, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.

Chairperson Date