DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Margaret Tuomi, Chairperson Public Member

Dawn Cutler, RN Member David Edwards, RPN Member Mary MacMillan-Gilkinson Public Member

Susan Roger, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

• and - )

MELISSA MCLELLAN ) ROBERT STEPHENSON for Reg. No. 0001784 ) Melissa McLellan

) LUISA RITACCA

) Independent Legal Counsel

) Heard: March 20-21, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on March 20, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

Counsel for the College advised the Panel that the College, on consent of the Member, was requesting leave to withdraw the allegations set out in 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), 2(a), 3(b), 3(c), 3(d), 3(e), 3(f), and 3(g) of the Notice of Hearing dated October 20, 2016. The Panel granted this request.

The remaining allegations against Melissa McLellan (the “Member”) 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 Nurse at Lady Isabelle Nursing Home, 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 failed to ensure that narcotics prescribed to [Client A], namely 27 Hydromorphone tablets, were secured prior to destruction and disposal, on or about May 17, 2015;

(b) [withdrawn]

(c) [withdrawn]

(d) [withdrawn]

(e) [withdrawn]

(f) [withdrawn]

(g) [withdrawn]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(8) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at Lady Isabelle Nursing Home, you misappropriated property from Lady Isabelle Nursing Home and/or [Client A], in that:

(a) [withdrawn]

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 Nurse at Registered Nurse at Lady Isabelle Nursing Home, 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 failed to ensure that narcotics, namely 27 Hydromorphone tablets, were secured prior to destruction and disposal, on or about May 17, 2015;

(b) [withdrawn]

(c) [withdrawn]

(d) [withdrawn]

(e) [withdrawn]

(f) [withdrawn]

(g) [withdrawn]

Member’s Plea

The Member admitted the allegation set out in paragraph 1(a) but denied allegation 3(a) in the Notice of Hearing. The Panel received a written plea inquiry with respect to the Member’s admission, which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission with respect to allegation 1(a) 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 provides as follows.

THE MEMBER

1. Melissa McLellan (the “Member”) obtained a diploma in nursing from Canadore College in 1999.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on October 13, 1999.

3. The Member was employed at Lady Isabelle Nursing Home (the “Facility”) from March 19, 2012 to May 28, 2015, when her employment was terminated as a result of the incident described below.

PRIOR HISTORY

4. On April 8, 2016, a panel of the Discipline Committee accepted an Agreed Statement of Facts and found that the Member committed professional misconduct.

5. The Member and the College submitted a Joint Submission on Order and the Member was suspended by the Discipline Committee between April 8, 2016 and August 8, 2016. She also received an oral reprimand and had terms, conditions and limitations placed on her certificate of registration. She fulfilled all aspects of the order.

6. The Panel’s Order, dated April 8, 2016, is attached as Appendix A. The Decision and Reasons of the panel of the Discipline Committee is attached as Appendix B.

THE FACILITY

7. The Facility is a long-term care home located in Trout Creek, Ontario.

8. The Member worked at the Facility as a full-time staff nurse on day, evening and night shifts. She occasionally worked as the charge nurse on duty.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

9. The Facility’s drug disposal policy requires two registered staff to count, document and dispose of wasted narcotics. Two nurses together are required to:

a. count and record the quantity of every narcotic medication to be wasted and destroyed, the reason for destruction, and the name of the resident to whom the narcotic was prescribed on the Drug Destruction Disposal Sheet;

b. double sign the Drug Destruction Disposal Sheet;

c. double sign an Individual Monitored Medication Record that corresponds to each narcotic medication (on a per prescription basis). Nurses will list the remaining medication after every administration of the medication, which confirms the quantity of medication remaining for waste and disposal;

d. place the narcotics and each accompanying Individual Monitored Medication Record, and the Drug Destruction Disposal Sheet through a slot in a locked and monitored drug storage box (“lockbox”) located in one of the medication rooms of the Facility.

10. For each step above, both nurses must witness the count, recording and placement of the narcotic medication in lockbox.

11. It is not possible to retrieve the narcotics placed in the lockbox without a key to the lockbox. Following the events set out below, the Facility discovered that there were two keys to the lockbox; one key was with the pharmacist and one key (of which the pharmacist was not previously aware) was located in the desk of the Facility Administrator’s office, who was also not aware of the second key.

12. A pharmacist retained by the Facility attends the Facility on a regular basis to destroy and dispose of wasted narcotics. The pharmacist retrieves wasted narcotics from the lockbox for destruction and performs a count to ensure that the narcotics in the lockbox match the Drug Destruction Disposal Sheet and every Individual Monitored Medication Record in the lockbox. Once the count and paperwork review is complete, the pharmacist destroys and disposes of the narcotics. To do so, the pharmacist crushes the tablets in a cup, adds iodine and creates a slush. She then pours the slush through a hole in the lid of a pail (the “slurry pail”). The lid is hammered on and it is impossible to get into the pail to remove anything.

13. On or about May 17, 2015, the Member was working the nightshift, 1900 to 0700, on the B Wing of the Facility. [The RPN] was working the evening shift, 1500 to 2300 on the B Wing. Near the end of [the RPN]’s shift, [the RPN] asked the Member to assist with the disposal of medications for [the RPN]’s clients, including two Hydromorphone ampoules and 27 Hydromorphone tablets for [Client A], a recently deceased client, along with five Hydromorphone tablets to be destroyed for another client, [Client B].

14. The Member and [the RPN] performed the count together. Both initialed the Drug Destruction Disposal Sheet listing the two Hydromorphone ampoules and 27 Hydromorphone tablets for [Client A], and five Hydromorphone tablets for [Client B].

15. Contrary to Facility policy, the Member said she would take care of placing the medication in the lockbox, and told [the RPN] to go home as it was the end of her shift. [The RPN] left the Facility without witnessing the Member place the two Hydromorphone ampoules and 27 Hydromorphone tablets for [Client A], five Hydromorphone tablets for [Client B], the Individual Monitored Medication Records and the Drug Destruction Disposal Sheet in the lockbox.

16. On May 25, 2015, approximately eight days later, the pharmacist attended at the Facility. When the pharmacist went to retrieve the narcotics from the lockbox, she and the Facility’s Facilitator found that 27 Hydromorphone tablets and its Individual Monitored Medication Record were missing, which was inconsistent with the Drug Destruction Disposal Sheet. The two Hydromorphone ampoules, the five Hydromorphone tablets and their accompanying Individual Monitored Medication Records and the Drug Destruction Disposal Sheet were located in the lockbox when it was opened by the pharmacist.

17. If the Member were to testify, she would state that she forgot to place the medication in the lockbox and does not know what happened to the medication.

18. If the pharmacist were to testify she would state that she, the Facility’s Facilitator and the Director of Care searched for the missing medication only in the medication room in which the lockbox is located. If the Facilitator were to testify, she would say that she and the pharmacist searched medication carts, treatment carts, shelves, garbage cans, the vaccine fridge, and the other medication room. If the Director of Care were to testify, she would say she assisted in the search of the medication room in which the lockbox was located, and may have searched the other medication room but cannot recall.

19. The medication was never found. It is not possible to know whether the 27 Hydromorphone tablets were ever placed (and then removed) from the lockbox, or placed in the slurry pail, nor is there any other information available about what happened to them. The Member admits that she did not place the Hydromorphone tablets (or the other medication) in the lockbox or the slurry pail.

19(a). The Medication standard, revised 2015 describes nurses’ accountabilities when engaging in medication practices, such as administration, dispensing, medication storage, inventory management and disposal. There are three principles which outline the expectations related to medication practices that promote public protection. The principles are authority, competence and safety.

20. Under the safety principle, a nurse must promote and/or implement the secure and appropriate storage, transportation and disposal of medication and promote and/or implement strategies to minimize the risk of misuse and drug diversion.

21. As soon as this matter was brought to her attention by the Facility, the Member readily acknowledged that she failed to follow the Facility’s protocol for securing wasted narcotics for destruction and disposal and has consistently admitted this fact and has cooperated throughout.

22. The Member also acknowledges that she failed to promote and implement the secure and appropriate storage, transportation and disposal of medication and promote and/or implement strategies to minimize the risk of misuse and drug diversion.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

23. The Member admits that she committed the act of professional misconduct as alleged in paragraph 1(a) of the Notice of Hearing, as described in paragraphs 9 to 22 above, in that she failed to ensure that 27 tablets of Hydromorphone were secured prior to destruction and disposal.

Summary of Parties’ Submissions

While the College and the Member agreed on the facts to be presented to the Panel, they did not agree that the facts as admitted amounted to professional misconduct as described in paragraph 3(a) of the Notice of Hearing. The parties provided the Panel with lengthy legal submissions on this one issue.

The College submitted that the conduct admitted, namely the failure to following the Facility’s protocol for securing wasted narcotics, would reasonably be regarded by members of the profession as “unprofessional”. The College made clear that it was not alleging that the conduct would be regarded as “dishonourable” or “disgraceful”.

In contrast, the Member took the position that the conduct would not reasonably be regarded by fellow members as “unprofessional”. The Member argued that she made a mistake and that her failure to following the Facility’s protocol in this one instance did not amount to “unprofessional” conduct.

Decision

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a) of the Notice of Hearing. As to Allegation # 3(a), the Panel considered the submissions of Counsel for the Member and Counsel for the College very closely. The Panel also considered our Independent Legal Counsel’s advice to review the facts and this allegation separately from Allegation 1(a). Having done so, and in light of the facts agreed upon, the Panel finds that members of the profession would reasonably regard this conduct as unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that the evidence regarding Allegation 1(a) supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1(a) in the Notice of Hearing is supported by paragraphs 9 (a), (b), (c), (d), 10, 13, 14, 15, 17, 19, 19(a), 20, 21, and 22 in the Agreed Statement of Facts.

With respect to Allegation 3(a), as set out above, both the College and Member agreed on the factual evidence but disagreed on the legal characterization of the conduct. Given the dispute between the parties, the Panel undertook a separate analysis in considering whether the evidence admitted amounted to a breach as described in allegation 3(a).

Both parties relied on a 2009 Memorandum prepared by the Discipline Committee’s independent legal counsel, which deals specifically with allegations of disgraceful, dishonourable or unprofessional conduct (“DDU”). The 2009 Memorandum provides in part that, “(m)any courts have found that unprofessional conduct includes ‘a serious or persistent disregard for one’s professional obligations’.” The parties did not take issue with that portion of the 2009 Memorandum and both relied upon it to urge the Panel to find in accordance with their respective positions.

The Panel thoroughly reviewed and evaluated the cases presented by the College and the Member . The parties acknowledged the challenges in finding cases that were similar to this particular one. The issue in this case, which is unusual, is that it deals with the safety and security of medications that are not needed for immediate use. It also deals with a situation where the parties do not disagree on the factual background or on the fact that the conduct amounted to a breach of the standards.

The Panel assessed each case individually and determined that there was no case that was instructive in determining whether this Member’s conduct amounted to conduct that would be considered by her peers as “unprofessional”. Many of the cases presented were cases where the College and Member had agreed on the facts and the appropriate findings. Other cases presented were older and predated the 2009 Memorandum, which has changed the way the parties and the Discipline Committee have approached these types of issues. Finally, other cases presented involved situations where the Member did not participate in the discipline process at all.

The Panel understands that it does not require expert evidence to assist it in determining whether this conduct would be consider “unprofessional” by members, acting reasonably.

The Panel concluded that there were two separate decisions and actions made by the Member. The Panel determined that it was an error in judgement, and not unprofessional conduct, when the Member decided to send her colleague home at the end of her shift without witnessing the placement of the medication into the lockbox.

The Panel, however, concluded that the Member’s conduct was serious and ought to be regarded as unprofessional when she failed to immediately secure the narcotics in the lockbox after sending her colleague home. The Member admitted that she forgot to follow through on securing the medication. She also admitted that she did not know what happened to the missing medication. The Member had worked full time at the Facility for approximately 3 years and has been a Registered Nurse since 1999. She should have been well versed in the Medication standard which outlines the importance of safety when storing, transporting and disposing of medication. This is a professional requirement. The Panel concluded that the Member should have been aware of, and must have known, the Facility’s policy for disposing of medications when she and her colleague completed most of the requirements on the night in question.

The Panel determined that the Member’s failures in this regard were unprofessional. They showed a serious disregard for her professional obligations.

The Panel acknowledges that the Member’s unprofessional conduct was not an example of persistent behaviour. It was one instance. However, the seriousness of losing 27 Hydromorphone tablets with no recollection as to what happened to them, deeply troubled the Panel. This inattention to her professional obligations had the potential to cause significant harm if the narcotics were to get into the wrong hands.

The Panel concluded that the nursing profession would view the Member’s conduct as unprofessional in that it demonstrated a serious disregard for her professional obligations.

Allegation #3(a) in the Notice of Hearing is supported by paragraphs 3, 8, 9(a), (b), (c), (d), 10, 13, 14, 15, 16, 17, 19 and 22 in the Agreed Statement of Facts.

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 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 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. Medication,

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 her 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 her certificate of registration;

b) For a period of 18 months from the date the Member returns to the practice of nursing, the Member will notify her 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 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. 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

Counsel for the College referred the Panel to the Joint Submission on Order. She submitted that the proposed order meets the objectives of the College in that it considers the interests of the public, the profession and the Member.

The parties agreed that the mitigating factors in this case were that the Member cooperated with her employer and the College. She participated in the process. In accepting an Agreed Statement of Facts, the Member eliminated the need for a longer hearing.

One aggravating factor in this case was the seriousness of the Member’s conduct. An additional aggravating factor was the fact that the Member had a prior disciplinary history with the College. Although, the conduct in this case differed from the conduct addressed in her previous case.

The proposed penalty provides for general deterrence through the two- month suspension and the oral reprimand. It sends a clear message to the profession that this conduct will not be tolerated.

The proposed penalty provides for specific deterrence to the Member in that, in addition to her two- month suspension, she is required to notify her employer for 18 months of this decision.

The proposed penalty provides for remediation and rehabilitation through the reprimand and the two meetings with a Nursing Expert. This will help the Member to gain insight into her actions.

Overall, the public is protected because, during the Member’s proposed two-month suspension, she will be given the opportunity to update her professional skills and consolidate her knowledge base. For 18 months, the Member’s employers will be aware of this decision and will have the opportunity to monitor her conduct to ensure that she is in compliance with all standards.

Counsel submitted one case to the Panel to demonstrate that the proposed penalty is appropriate. College Counsel acknowledged, however, that there is no case exactly like the Member’s.

In CNO v. MacLeod (Discipline 2013), the member failed to maintain appropriate narcotic safeguards and, as a result, narcotics went missing. In addition, the member agreed that she disclosed personal health information without the client’s consent, accepted money as a gift and inappropriately disclosed information about herself. She was given a four-month suspension and a reprimand.

The College views the Member’s proposed two-month suspension as falling within the range of penalties for serious misconduct. The College believes that the penalty would be proportionate and equivalent to the misconduct found. The College submitted that experienced counsel carefully negotiated this Joint Submission on Order and that it balances both the mitigating and aggravating factors.

Defence Counsel agreed with the College’s penalty submissions.

Penalty Decision

The Panel accepted the Joint Submission as to Order and ordered:

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 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. 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, 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. Medication,

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 her 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 her certificate of registration;

b. For a period of 18 months from the date the Member returns to the practice of nursing, the Member will notify her 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 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. 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 acknowledges the seriousness of the Member’s conduct when she did not ensure unneeded narcotics were secured in the lockbox as per her Facility’s policy. The Panel also deemed her failure to follow the safety principles stated in the Medication standard as equally concerning.

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 that involve serious misconduct.

I, Margaret Tuomi Public Member 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