DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Margaret Tuomi, Chairperson Public Member

Dawn Cutler, RN Member Samantha Diceman, RPN Member David Edwards, RPN Member

Catherine Egerton Public Member

BETWEEN:

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

• and - ) ) NO REPRSENTATION for ) Stacy Hinton STACY HINTON ) Registration No. JJ03301 ) ) LUISA RITACCA ) Independent Legal Counsel ) Heard: February 22-24, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on February 22, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

As Stacy Hinton (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening the Panel noted that the Member was not in attendance. Having been satisfied that the Member was properly notified of the date and time for the hearing, the Panel decided to proceed in the Member’s absence.

The Panel ordered a ban of the publication and broadcasting outside of the hearing room of the names of the clients referred to in the Discipline Hearing of the Member or any information that could reasonably disclose the clients’ identities, including any reference to client names contained in the allegations in the Notice of Hearing and in any exhibits filed with the panel.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated September 15, 2016 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 working as a registered practical nurse at Lakeridge Health Corporation, you contravened a standard of practice of the profession or failed to meet a standard of practice of the profession in that:

a. between December 2014 and February 2015, you advised colleagues that you administered Gravol to clients that was not ordered, and encouraged colleagues to administer Gravol to clients that was not ordered;

b. between December 2014 and February 2015, you failed to provide a blanket to a client, [Client A] when the client requested a blanket;

c. in or about January 2015, you placed your hands on the mouth of your client,[Client B], while she was screaming, pushed the client’s head back into the pillow, and/or told the client to “shut the fuck up” or words to that effect;

d. between December 2014 and February 2015, on more than one occasion, you mocked your client, [Client C], who has aphasia, by parroting or imitating the client’s vocalizations;

e. between December 2014 and February 2015, you used profanity with clients, including using the phrases:

i. “you’re a fucking asshole”; and/or

ii. “Ok, Let’s go, you fucking idiot. Let’s go get ready”;

f. between December 2014 and February 2015, on more than one occasion, you made obscene hand gestures towards clients when they were not looking; and/or

g. between December 2014 and February 2015, on more than one occasion, you told your colleagues unsolicited information about your sexual activities, including stating “I just got it on in the car with my boyfriend and could now feel him coming out of me” or words to that effect; and/or

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 working as a registered practical nurse at Lakeridge Health Corporation, you verbally, physically and/or emotionally abused a client and in particular:

a. in or about January 2015, you placed your hands on the mouth of your client,[Client B], while she was screaming, pushed the client’s head back into the pillow, and/or told the client to “shut the fuck up” or words to that effect;

b. between December 2014 and February 2015, on more than one occasion, you mocked your client,[Client C], who has aphasia, by parroting or imitating the client’s vocalizations;

c. between December 2014 and February 2015, on more than one occasion, you used profanity with clients, including using the phrases:

i. “you’re a fucking asshole”; and/or

ii. “Ok, Let’s go, you fucking idiot. Let’s go get ready”; and/or

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 working as a registered practical nurse at Lakeridge Health Corporation, 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, in particular:

a. between December 2014 and February 2015, you advised colleagues that you administered Gravol to clients that was not ordered, and encouraged colleagues to administer Gravol to clients that was not ordered;

b. between December 2014 and February 2015, you failed to provide a blanket to a client, [Client A] when the client requested a blanket;

c. in or about January 2015, you placed your hands on the mouth of your client,[Client B], while she was screaming, pushed the client’s head back into the pillow, and/or told the client to “shut the fuck up” or words to that effect;

d. between December 2014 and February 2015, on more than one occasion, you mocked your client, [Client C], who has aphasia, by parroting or imitating the client’s vocalizations;

e. between December 2014 and February 2015, you used profanity with clients, including using the phrases:

i. “you’re a fucking asshole”; and/or

ii. “Ok, Let’s go, you fucking idiot. Let’s go get ready”;

f. between December 2014 and February 2015, on more than one occasion, you made obscene hand gestures towards clients when they were not looking; and/or

g. between December 2014 and February 2015, on more than one occasion, you told your colleagues unsolicited information about your sexual activities, including stating “I just got it on in the car with my boyfriend and could now feel him coming out of me” or words to that effect.

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member, a Registered Practical Nurse (“RPN”) with the College since November 1, 1999, was employed at Lakeridge Health Whitby (“the Facility”) from June 6, 2011 to February 6, 2015 when her employment was terminated. The Member was employed on the [ ] unit at the Facility. The Facility at the time had 24 beds and most clients were geriatric and were awaiting transfer to a long term care facility or had care requirements that could not be managed in a long term care facility.

It was alleged that between December 2014 and January 2015 that the Member told several co-workers that she administered Gravol to the clients to assist them in sleeping even though it was not ordered and encouraged her staff to do the same. Further, it was alleged that the Member failed to provide a patient with blanket after the patient had rang the call button. The Member also mocked a patient who had aphasia. The Member used profanity when communicating with clients. The Member on more than one occasion was seen making obscene hand gestures and told unsolicited information to her coworkers about her sexual activities on her break at work.

It is alleged that in or about January 2015 that the Member inappropriately covered the mouth of a patient with her hands and used profanity.

The Panel heard from 7 witnesses and 17 exhibits were filed, including administration records, workplace policies, employee schedules and College Standards. The issues the Panel were asked to consider are as follows:

1. Did the Member administer Gravol to a patient when an order had not been prescribed?

2. Did the Member not provide a blanket to a patient who had requested one?

3. Did the Member inappropriately touch a patient, use profanity, mock and make rude gestures either in front of or behind the patients?

4. Did the Member discuss her sexual activities while on her break at work?

Having considered the evidence and the onus and the standard of proof, the Panel found that the Member committed acts of professional misconduct as alleged in paragraphs 1(b), 1(c), 1(d), 1(e)(ii), 1(f) and 1(g) in the Notice of Hearing. The Panel found the Member verbally, physically and emotional abused a client as alleged in paragraphs 2(a) and verbally and emotionally abused as alleged in 2(b) and 2 (c)(ii). The Member engaged in conduct that would be reasonably regarded by the members of the profession as disgraceful and unprofessional as alleged in paragraphs 3(b) and 3(g). It also noted that the Member engaged in conduct that would be reasonably regarded by the members of the profession as disgraceful, dishonourable and unprofessional as alleged in paragraphs 3(c), 3(d), 3(e)ii and 3(f).

The Panel did not find that the Member had administered Gravol that was not prescribed as stated in paragraph 1(a) and 3(a) in the Notice of Hearing. College Counsel asked that we make no findings on allegations 1(e)i, 2(c)i, and 3(e)i as none of the witnesses were able to confirm that the Member had used the precise language “you’re a fucking asshole” as described in the Notice of Hearing.

The Evidence

The Facility

Lakeridge has two facilities - Oshawa and Whitby. The occurrences happened at the Whitby site. The Member and the witnesses from the facility all worked in the [ ] Unit at the Whitby site at the time of the allegations.

The Panel heard from the [Witness 1]. [Witness 1] testified that she has been a Registered Nurse (“RN”) with the College since 1988 and with the Facility for 28 years. She also testified that she has been in her current role as Patient Care Manager for 7 years. [Witness 1] told the Panel her role is to oversee the staff, patients and assist the families. She also assists with discharges from the facility.

[Witness1] described the clients housed in the [ ] unit of the Facility as mostly elderly, suffering from various forms of dementia and typically waiting for long term beds. She also confirmed the various shifts that the nurses were scheduled on which included 8 hour day, afternoons or nights shifts or 12 hour rotations. She also broke down the assignment of nurses per patient. She also confirmed the ratio of nurses to patient varied based on the time of day. During the day shift it is 1 nurse to 5 patients, afternoons 1 nurse to 6 patients and the night shift was 1 nurse to 8 patients. [Witness 1] also informed the Panel that on the night shift there was 1 RN and 2 RPNs.

[Witness 1] confirmed that on all the shifts nursing staff were responsible for personal care, medication and assisting with meals.

She stated that the Member had been with the unit since 2013 and had previously worked at the Oshawa site a year and half prior. [Witness 1] said that the Member had started working the 12 hour shift rotations in October of 2014. She also stated that the Member was aware of the Facility’s policies and procedures as this information was provided as part of the mandatory training she underwent at the time of her being hired.

[Witness 1] testified that there are medications on site, which include over the counter medicine (“OTC”), that do not have a sign out sheet but should be documented on the patient’s chart.

[Witness 1] told the Panel that two nurses, [Witness 2] and [Witness 4], brought a complaint/concern regarding the Member to her attention on February 2, 2015. The nurses advised [Witness 1] that they had concerns that the Member was misusing Gravol on patients to get them to sleep and they were also concerned about an incident of physical abuse by the Member toward patient [Client B]. As a result of the information she received, [Witness 1] spoke with another nurse, [Witness 3] and the patient [Client B]. She filed an incident report dated February 2, 2015 and sent the Member a letter, dated February 6, 2015, informing the Member that she would be placed on administrative leave pending the completion of the Facility’s investigation. [Witness 1] confirmed that the Member did not return to the Facility, did not provide a response to the allegations and did not contact her union representative for assistance. [Witness 1] confirmed that the Member was ultimately terminated from her employment and that a report was sent to the College.

[Witness 1] explained that in the course of her investigation, she spoke with 13 staff members, at which time other issues involving the Member were revealed. She also confirmed which staff were working with the Member at the time of the reported abuse of [Client B]Finally, she confirmed that prior to these allegations the Member had no prior reports of any issues.

The Witnesses from the Facility

[Witness 2] an RPN since 2012 is currently at the Oshawa Facility. [Witness 2] worked with the Member at the Whitby site from November 2012 until November 2015. She testified she had worked with the Member for “a couple of months” on the 12 hour shifts.

[Witness 3] an RN since 2011 and is currently at the Whitby site. She has always worked at the Whitby site and says she had only worked with the Member “a handful of times” on the 12 hour shifts. [Witness 3] noted that that she started her maternity leave in January of 2015.

[Witness 4] an RPN since 2012 is currently at the Whitby site and started working there in February 2013. She stated that she only worked a “handful of shifts” with the Member and only worked with her when two nurses were needed for client care.

[Witness 5] an RPN since 2008 currently works at the Oshawa site. [Witness 5] worked at the Whitby site from 2012 to 2015. She testified she had worked one to two shifts per week with the Member.

[Witness 6] an RN since 2013 currently at the Oshawa site. [Witness 6] worked at the Whitby site from November 2013 until January 2016. She testified she had worked with the Member “a handful of times”.

Allegation 1(a) and 3(a)

The Member had told colleagues that she administered Gravol to clients to assist them in sleeping, even when it was not prescribed.

[Witness 2] said she never witnessed the Member giving Gravol but did hear her say jokingly “Give Gravol to all patients to help them sleep”. [Witness 3] also said she never witnessed the Member giving Gravol but did admit she heard the Member jokingly mentioning it a few times. [Witness 4] testified that she did not see pills in the cup. [Witness 5]. testified that she did see the Member on one occasion put Gravol in the cup but was not sure of its intended purpose. [Witness 6] also testified she never witnessed the Member giving the actual Gravol but the Member jokingly talking about it.

Allegation 1 (b) and 3 (b)

[Client A] was an elderly client that was easily agitated if the staff failed to attend to his requests immediately. One of his request was on a nightly basis, he would use his call bell and request a blanket.

[Witness 3] told the Panel that the Member would comply with the request for the blanket but complain about it. [Witness 4] mentioned that she would often bring blankets to the client as the Member as the member didn’t want to do. [Witness 5] said the Member refused to give [Client A] a blanket. [Witness 5] testified “Whenever the Member was assigned to him[Client A], she would refuse to provide him with a blanket because he was on a Long Term Care waiting list and upon discharge to Long Term Care it would be a rude awakening as we are spoiling him by providing the warm blanket”.

Allegation 1(c), 2(a) and 3(c)

According to the time sheets confirmed by [Witness 1], on December 12, 2014, the Member was working with [Witness 2] and [Witness 3] on morning personal care for [Client B]. [Client B] has dementia with mood swings and will target nurses at random according to the testimony of [Witness 2]. The morning of the allegation, the Member, [Witness 2] and [Witness 3] where doing early morning rounds together as some patients require two nurses attending. [Client B]’s bed is closest to the door and [Witness 3] was attending to the client in the next bed with her back to [Client B]. This room is a semi private with only two beds. [Witness 2] was on one side of the bed explained to [Client B] that they needed to change her and the Member was on the other side of the bed to assist the Member with the personal care of [Client B]. [Client B] was agitated and not calming down when the Member took her hand(s) and pushed [Client B]’s head into the pillow and said words to effect of “shut the fuck up”. [Witness 3] testified that she heard the comments turned around immediately to see the Member’s hand on the client and told her to stop. The Member did stop and nothing more was discussed.

Allegation 1(d), 2(b) and 3(d)

[Client C] has been diagnosed with aphasia and can only make one sound which she repeats when she is trying to communicate. She is unable to form words and often becomes frustrated. [Witness 2] testified that on various occasions, she observed the Member mimicking the sound that [Client C] would make and mocking her while providing care to her. She also testified that the client was clearly upset by this action and she observed it once or twice.

Allegation 1(e)(ii), 2 (c)(ii) and 3(e)(ii)

[Witness 4] and [Witness 2] confirmed that the Member would use profanity often, including when communicating with clients. In particular, both witnesses confirmed that they had heard the Member use phrases like “OK Let’s go you fucking idiot let’s go get ready” when addressing patients. The witnesses noted that the Member had used such expressions with various clients on the floor as the Member would get a reaction from the clients and felt it was “therapy”.

Allegation 1(f) and 3(f)

The testimony of both [Witness 5]. and [Witness 2] confirmed that the Member would make obscene hand gestures when the clients were not looking. They had both witnessed the Member making hand gestures behind the back of [Client A].

Allegation 1(g) and 3(g)

Three of the witnesses [Witness 5], [Witness 6] and [Witness 2]) testified that the Member would describe her sexual encounters to them. These discussion where not solicited by her co-workers. [Witness 2] testified that one time when the Member was late returning from coffee break, she told her that “I just got it on in the car with my boyfriend and can now feel him coming out of me” or words to that effect.

The last witness was Karen Riddell, RN. Ms. Riddell was the College’s expert witness. The Panel received and reviewed Ms. Riddell’s curriculum vitae and accepted her as an expert on Nursing Standards, in the areas of Professional Standards, Therapeutic Nurse Client Relationships and Ethics. Ms. Riddell when presented with a series of hypothetical situations comparable to the allegations against the Member on the breach of the Practice of Standards for nursing she felt that based on the information provided to her that the Member had breached several of the Standards or Practice. Ms. Riddell explained that the Member’s comments could have been overheard by the staff and visitors therefore nurses must maintain professional relationships with staff inside and outside work to promote professionalism. She further stated that this conduct demonstrates serious disregard of the Member’s professional obligation.

Final Submissions

Counsel for the College reminded the Panel that the College had the burden of proving on a balance of probabilities that the Member engaged in professional misconduct as described in the allegations set out in the Notice of Hearing. Counsel indicated that based on the witness testimony and the expert evidence of Ms. Riddell, the Panel should have no difficulty finding against the Member. Counsel summarized the evidence, which she said revealed a serious lack of regard for her clients and a continuing pattern of conduct following well below acceptable standards. She also argued that the conduct was such that it would reasonably be regarded by members of this profession as disgraceful, dishonourable and unprofessional.

Counsel also reminded the Panel that given the Member’s absence, there was not competing evidence available for the Panel’s consideration.

College Counsel reminded the Panel to look at the credibility and reliability of the witnesses taking into account:

• Appearance and demeanour;

• Opportunity to observe;

• Capacity to remember;

• Probability or reasonability of the evidence;

• Internal consistency or inconsistency of evidence;

• External consistency of the evidence; and

• Interest in the outcome

The College also reminded the Panel that the Member’s colleagues described her as being outspoken, loud, intimidating, and smart and that she swore on a consistent basis. College Counsel also noted that the Member was overly informal during her discussions of personal matters and showed little empathy for her clients.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

Having considered the evidence, the onus and the standard of proof, the Panel found that the Member committed acts of professional misconduct as alleged in paragraphs 1(b), 1 (c), 1(d), 1(e)ii, 1(f) and 1(g) in the Notice of Hearing. The Panel found the Member verbally, physically and emotionally abused a client as alleged in paragraphs 2(a) and verbally and emotionally abused a client as alleged in 2(b) and 2(c)ii. The Member engaged in conduct that would be reasonably regarded by the member of profession as disgraceful and unprofessional as alleged in paragraphs 3(b) and 3(g). It also noted that the Member engaged in conduct that would be reasonably regarded by the member of profession as disgraceful, dishonourable and unprofessional as alleged in paragraphs 3(c), 3(d), 3(e)ii and 3(f).

The Panel did not find that the Member had administered Gravol that was not prescribed as stated in paragraph 1(a) and 3(a) in the Notice of Hearing. College Counsel asked that we make no findings on allegations 1(e)i, 2(c)i, and 3(e)i and none of the witnesses used the quote “you’re a fucking asshole” as described in the Notice of Hearing.

Reasons for Decision

The Panel accepted the evidence of the Member’s co-workers in that they had all worked with the Member at the time of the allegations. They were all consistent in their overall assessment of the Member and her conduct at the time of the allegations. None of the witnesses had anything to gain from providing the evidence they did.

The Panel agreed that the Member demonstrated moral failing when she denied the necessities of comfort by not suppling a blanket to a client. The Member had no regard for the Standard in that she physically and verbally abused her clients. The Member also appeared to have no filter or respect for her colleagues, when choosing to discuss very personal events with them, which were not relevant to the practice of nursing.

The Member’s conduct breached the Therapeutic Nurse Client Relationship Standard, the Ethics Standard and, and the Professional Standards, Revised 2002 of the College’s published standards of practice in all the allegations.

The Panel found the Member’s conduct would must certainly be regarded by others in this profession as disgraceful, dishonorable and unprofessional. She displayed a persistent and callous disregard for her clients and colleagues. She was physically and verbally abusive and appeared to have no real concern for her clients’ needs.

Penalty

The College submitted that the Panel should 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 immediately revoke the Member’s Certificate of Registration.

Penalty Submissions

The College presented the Panel with two Penalty Orders to consider:

The first choice was:

1. Reprimand

2. Revocation

The second choice presented to the Panel was:

1. 1. Reprimand
2. 2. An eights month Suspension on the Member’s Certificate of Registration
3. 3. Two Meetings with a Nursing Expert
4. 4. A 24 month reporting notification from the time the Member returned to practice

College Counsel submitted that revocation in this case serves both as general and specific deterrent. The revocation will protect the public, give general deterrence to the profession and specific deterrence to the Member as she will no longer be allowed to practice as a nurse.

The aggravating factors are as follows:

1. 1. The Member did not attend meetings at the Facility and has never provided the Facility or anyone else with an explanation for the conduct.
2. 2. There is no information from the Member to convince the Panel that she could be rehabilitated.
3. 3. The nature of the conduct is significant, and pattern of verbal and physical abuse is serious.
4. 4. The persistence and number of clients involved in the allegations.
5. 5. The Member showed no respect for her co-workers and no remorse or accountability for her actions.

The College noted that the only mitigating factor was that the Member had no previous disciplinary action at the College.

The Panel also received and reviewed two previous cases that had come before the Discipline Committee.

CNO vs Muzylowsky (Discipline Committee 2016). In this case, the member had resigned and agreed never to practice nursing.

CNO vs Lewis (Discipline Committee 2013). This case involved verbal abuse of clients and staff as well as medication and charting errors. This was an Agreed Statement of Fact matter and in this case a six month suspension, three meetings with a nursing expert and 24 month notification to the employer was ordered.

Penalty Decision

The Panel makes the following Order as to penalty:

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 immediately revoke the Member’s Certificate of Registration.

Reasons for Penalty Decision

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has not taken any action or responsibility at any time during the facility’s investigation or the College’s process. The Member has shown she is ungovernable and revocation was the only option.

The Panel agreed the Member needs to be held accountable and that any form of physical and emotional abuse is not to be tolerated.

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