College of Nurses of Ontario v. Kimberley Margaret Wreaks, 2017 CanLII 50201

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: David Edwards, RPN Chairperson

Renate Davidson Public Member Grace Fox, NP Member Carly Gilchrist, RPN Member

Mary MacMillan-Gilkinson Public Member

BETWEEN:

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

• and - )

KIMBERLEY MARGARET WREAKS ) CAROL STREET for

Reg. No. 8721672 ) Kimberley Margaret Wreaks

) Heard: April 25, 2017

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on April 25, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.

Publication Ban

College Counsel brought a motion pursuant to s. 45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order banning the publication and broadcasting of the identity of the client referred to in the Discipline Hearing of Kimberley Margaret Wreaks (the “Member”) or any information that could 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 Member consented to the order sought.

The Panel considered the submissions of the parties and ordered a ban of the publication and broadcasting of the name of the client and any information that could reasonably disclose the identity of the client referred to in the Discipline Hearing of the Member.

The Allegations

Counsel for the College advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(b), 2(b) and 3(b) of the Notice of Hearing dated December 1, 2017. The Panel granted this request.

Counsel for the College also asked the Panel to review allegations 1(a), 2(a), and 3(a), particularly the nuanced phrase “and/or placing him in a headlock”. College Counsel advised the Panel that there was no factual evidence that the Member placed the Client in a headlock and asked the Panel not to make a finding regarding this portion of the allegations. The Panel granted this request.

Finally, College Counsel advised the Panel that the Member had agreed that her actions constituted physical and emotional abuse as alleged in paragraph 2, and acknowledged that there was no admission, or facts, regarding verbal abuse. College Counsel asked the Panel not to make a finding of verbal abuse. The Panel also granted that request.

The remaining allegations against 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 [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 restrained a client, [the Client], using excessive force, including punching him in the head and neck areas four or five times and/or placing him in a headlock on or about March 31, 2015; and/or

(b) [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(7) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at [the Facility], you abused a client physically, verbally and emotionally with respect to the following incidents:

(a) you restrained a client, [the Client], using excessive force, including punching him in the head and neck areas four or five times and/or placing him in a headlock on or about March 31, 2015; and/or

(b) [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 [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 restrained a client, [the Client], using excessive force, including punching him in the head and neck areas four or five times and/or placing him in a headlock on or about March 31, 2015; and/or

(b) [withdrawn]

Member’s Plea

The Member admitted the revised allegations set out in paragraphs 1(a), 2(a), and 3(a) in the Notice of Hearing. As indicated above, the Member’s admissions did not include an admission that she had placed the client in a headlock, and did not include an admission that her actions involved verbal abuse.

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. Kimberley Margaret Wreaks (the “Member”) obtained a diploma in nursing from St. Clair College in 1986.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on January 21, 1987.

3. The Member was employed at [the Facility] (the “Facility”) from September 2, 1986 to April 10, 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.

4. The Member has no prior disciplinary findings with the College

THE FACILITY

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

6. The Member worked in mental health nursing her entire career. At the time of the incident, she worked on the inpatient mental health unit (the “Unit”) as a full-time staff nurse on the day and night shift. She was the assigned Charge Nurse on shift when the incident took place.

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

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

9. The Unit is a secure unit. It had a very new security system in which electronic wristbands worn by clients were intended to lock or open doors to and within the Unit as a client approached, depending on a client’s security access.

10. The Member had worked in the Unit for a few months when the incident occurred. Issues with the electronic security system had occurred with some regularity from the time the Unit first opened up to and including the time of the incident.

THE CLIENT

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

12. He had a diagnosis of schizoaffective disorder.

13. The Client was admitted to the Facility on February 13, 2015 but was moved to the Unit on March 29, 2015. He was an involuntary admission under the Mental Health Act. His behaviour on the Unit was disruptive at first, but he was removed from seclusion on the morning of March 30, 2015. He was then verbally aggressive to an elderly patient on the Unit. The Member was aware of this information but was personally unfamiliar with the Client because he was new to the Unit.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

14. On March 31, 2015, the Member was working the night shift, starting at 19:00. Another nurse, [Colleague A], was the Client’s assigned nurse.

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

16. 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 and requires security to go two floors down from the Unit.

17. 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. [Colleague A] came out of the nursing station and spoke to him but he moved away from her, continuing towards the exit door. [Colleague A] called out to him by name and asked him to return to the common area, but the Client kept walking. The Member also came out of the nursing station to assist [Colleague A].

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

19. [Colleague A] attempted to intercept the Client, but did not make contact. She fell to her knees. The Member was a few steps behind [Colleague A]. If the Member were to testify, she would explain that she could not tell what had caused [Colleague A] to fall, or whether she was injured, and that she believed she had to stop the Client from exiting the Unit again.

20. When [Colleague A] fell, the Member rushed to the Client and pulled him to the floor. She was initially kneeling over him, but as she tried to secure him, she ended up on her back beneath him, with his head pushed into her upper chest, on his knees, with his knees between her legs. [Colleague A] approached the Member and the Client while they were in this position on the floor, and kneeled at the Member’s side. With his upper body on her upper body, the Member struck the Client four or five times in the neck, head and upper shoulder region, then readjusted her body to hold him around the head/neck shoulder area.

21. If the Member were to testify, she would say that she felt deeply embarrassed, upset and afraid by the position she was in beneath the Client, that he was muttering and laughing, and that she struck him in an attempt to get him off her.

22. In the meantime, another nurse, [Colleague B] had also left the nursing station and ran toward the Member, [Colleague A], and the Client. As she approached from down the hall, and moved past the Member’s head and around to the Member and the Client’s feet (behind [Colleague A]) the Member was striking the Client. [Colleague B] kneeled and restrained the Client’s ankles and [Colleague A] restrained one of his arms while he was on top of the Member. [Colleague A] observed the Client resisting as the Member held him.

23. Another nurse, [Colleague C], then also left the nursing station and approached while the Client was being restrained. [Colleague C] and [Colleague B] heard the Member state during the altercation “have you had enough yet?” to the Client after striking him. If the Member were to testify, she would say she was asking the Client if they could stop and that her tone was not threatening or abusive.

24. [Colleague C], from down the hall, asked whether she should call a Code White and the Member responded affirmatively. Security personnel returned, and the Client was eventually moved to seclusion. He declined medical assistance. There was no evidence he was injured.

25. The Member, [Colleague A], [Colleague C] and [Colleague B] discussed the incident afterwards and [Colleague C] prepared a patient safety report.

26. During the Facility’s investigation, the Member denied striking the Client, even after watching the video, and said he was resistive. After further reflection, however, the Member now admits that she used excessive force when she struck the Client in the neck, head and upper shoulder area four or five times, and that in doing so, she abused the Client physically and emotionally.

27. The Member would further testify that as part of her reflection of the incident, she voluntarily completed the College’s self-directed learning package, One is One too Many. She has also now reviewed the following College publications:

• Professional Standards

• Therapeutic Nurse-Client Relationship

• Documentation

• Restraints

• Conflict Prevention and Management

28. The Member acknowledges that she should have responded less aggressively to the situation with the Client.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

29. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1(a) of the Notice of Hearing, as described in paragraphs 13 to 28 above, in that she restrained the Client using excessive force when she struck him in the neck, head and upper shoulder area four or five times on March 31, 2015.

30. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2(a) of the Notice of Hearing, as described in paragraphs 13 to 28 above, in that she abused the Client physically and emotionally when she used excessive force to restrain him by striking him in the neck, head and upper shoulder area four or five times on March 31, 2015.

31. 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, her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 13 to 28 above.

32. The College withdraws allegations 1(b), 2(b) and 3(b).

Decision

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a) and 2(a) of the Notice of Hearing. As to allegation 3(a), the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable and unprofessional. The Panel agrees that there are no facts that establish that the Member placed the Client in a headlock. The Panel also acknowledges that there is no evidence that any verbal abuse occurred.

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(a) in the Notice of Hearing is supported by paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 in the Agreed Statement of Facts. The Member tried to prevent a mentally ill Client from leaving a secure unit in a mental health facility. The Client was there as a result of an involuntary admission. The Member grabbed the Client and pulled him to the floor to prevent him from exiting. The Client managed to get on top of the Member with his upper body on her upper body. The Client’s legs ended up between the Member’s legs. Out of embarrassment and fear, the Member struck the Client four or five times in the head, neck and shoulder area. Although no standards were provided to the Panel, it is clear that the use of excessive force is professional misconduct. In particular, it violates the principle “Do no harm.”

Allegation 2(a) in the Notice of Hearing is supported by paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 in the Agreed Statement of Facts. The Member’s use of excessive physical force, in order to restrain a Client, was abusive. In fact, the Panel considered the whole interaction with the Client to be emotional abuse arising out of physical abuse.

Allegation 3(a) in the Notice of Hearing is supported by paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28. As to Allegation 3 (a), the Panel finds that the Member’s conduct was unprofessional. It was the Member who initiated the physical contact with the Client by pulling him to the floor. It was the Member’s actions that resulted in the situation escalating. Ultimately, this resulted in the Member striking the Client four or five times in the neck, head and shoulder area. This conduct demonstrates a serious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. The Member ought to have known that her conduct was unacceptable. Her actions fell well below the standards expected of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s use of excessive force on a vulnerable Client, with a mental health diagnosis, casts serious doubt on her moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

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 four 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. Therapeutic Nurse-Client Relationship,

3. Documentation,

4. Restraints,

5. 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, 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 12 months from the date the Member’s suspension ends, 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

Submissions were made by College Counsel. The Member’s Counsel indicated that she agreed with those submissions.

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

• the Member is remorseful;

• the Member has voluntarily untaken remediation work;

• the Member is present and has agreed to the facts and to a Joint Submission on Order, avoiding a contested hearing, and demonstrating that she has taken responsibility for her actions;

• the Member provided several letters of reference that speak to her positive character; and

• the Member has had no past disciplinary history in her lengthy nursing career.

The aggravating factor in this case was the seriousness of the Member’s conduct when she pulled a mental health Client to the floor and struck him four or five times in the head, neck and upper shoulder area.

The proposed penalty provides for general deterrence through the suspension and terms, conditions and limitations. It sends a strong message to the profession that physical altercations between members and clients will not be tolerated.

The proposed penalty provides for specific deterrence through the four month suspension and the terms, conditions and limitations to the Member’s certificate.

The proposed penalty provides for remediation and rehabilitation through the two meetings with a Nursing Expert. This will help the Member to reflect on her actions so that they will not be repeated. It will also help the Member to develop tools that will better assist her in any future dealings with aggressive and unpredictable clients.

Overall, the public is protected because the Member will be required to notify her employers of this decision for a period of 12 months after the suspension ends. The proposed penalty also promotes public confidence in the College’s ability to regulate itself.

Penalty Decision

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

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

2. The Executive Director is directed to suspend the Member’s certificate of registration for four 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. Therapeutic Nurse-Client Relationship,

3. Documentation,

4. Restraints,

5. 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, 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 12 months from the date the Member’s suspension ends, 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 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. She has avoided the need for a lengthy, contested hearing. The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Members of the profession will be reminded that excessive physical restraint will not be tolerated.

Although no similar cases were provided to the Panel, the Panel finds that the penalty is appropriate in order to protect the public.

I, David Edwards 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