DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Catherine Egerton, Public Member Chairperson Tanya Dion, RN Member Deborah Graystone, NP Member Devinder Walia Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario
- and - ) CAROL STREET for ) Larissa Van de Walle
LARISSA VAN DE WALLE ) Reg. No. 14039603 ) JUSTIN SAFAYENI ) Independent Legal Counsel ) ) Heard: July 18-20, 2017 ) September 5-6, 2017
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee on July 18-20 2017 and on September 5-6, 2017 at the College of Nurses of Ontario (“the College”) at Toronto.
Publication Ban
College Counsel brought a motion pursuant to section 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 at this hearing 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 did not oppose the ban. The panel granted the publication ban.
The Allegations
The allegations against Larissa Van De Walle (the “Member”) as stated in the Notice of Hearing dated May 15, 2017, are as follows:
IT IS ALLEGED THAT:
- 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 St. Joseph’s Health Care London, 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, K.W., striking a client, [the Client], and/or placing him in a headlock on or about March 31, 2015, when you had observed this conduct.
- 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 Nurse at St. Joseph’s Health Care London, 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, K.W., striking a client, [the Client], and/or placing him in a headlock on or about March 31, 2015, when you had observed this conduct.
- 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 St. Joseph’s Health Care London, 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, K.W., striking a client, [the Client], and/or placing him in a headlock on or about March 31, 2015, when you had observed this conduct.
Member’s Plea
The Member denied the allegations set out in the Notice of Hearing.
Overview
The Member is a Registered Nurse and has been a registered with the College of Nurses (the “College”) since April 27, 2014. The Member was employed at St. Joseph’s Health Centre, Parkwood Hospital (the “Facility”) at the time of incident. The Member was hired at the London Psychiatric Hospital in London in November of 2014 and was part transitioned to the current Facility in early 2015. The Member was part-time and tended to work on units G3 or H3 on the afternoon/evening shifts.
The Unit on which the Member worked the day of the incident was G3, a 24 bed unit with secured doors. The security doors where accessible by monitoring bracelets which had various degrees of access for the client. The clients on this unit had various psychosis, including some with schizophrenia.
On March 31, 2015, the Member was working night shift and was assigned seven (7) clients. [The Client], as referred to in allegations #1 to #3 was not assigned to the Member on her assignment sheet. The shift started at 1900 hours and the Member was in the nurse’s station listening to the previous shift report.
[The Client] had a diagnosis of schizo-affective disorder. This client had been admitted under an involuntary admission under the Mental Health Act. His behavior on the unit was disruptive at first, but he was removed from seclusion on the morning of March 30, 2015 as stated in the client charts that were entered into evidence.
The nursing station received a call, when the shift change was in progress, that [the Client] had left the unit and security would be returning him back to the G3 unit. [The Client’s] bracelet was obviously not working properly as he did not have permission to leave the unit and the doors should not have opened when he approached them.
Shortly after [the Client] was returned to the unit and before security could confirm that the unit had been locked down, [the Client] was seen walking quickly to the exit door. [Colleague B] followed him and tried to stop him but she fell. At this time the Member had left the nurses’ station and saw that [the Client] had fallen and did not know if she was pushed by [the Client]. The Member could also see K.W. bringing [the Client] down to the floor. The Member says she was focused on securing the legs of [the Client] which she was able to do.
A video camera footage showed K.W. took down [the Client], placed him in a head lock and used excessive force by striking him more than once in the upper head and neck region.
After the incident the Member went back to the nursing station where she finished listening to the daily report. The Member says there was no debrief nor did she discuss the event with any of her colleagues.
There was no report of the incident until the family of [the Client], along with another nurse, [Colleague C], who also helped secure [the Client’s] legs, reported the incident on April 1, 2015. When the Member was approached on or about April 7, 2015 she said she did not witness K.W.’s abuse of [the Client].
The central factual question in this hearing was, did the Member witness her colleague, K.W., strike [the Client] and/or place the client in a headlock? The panel heard testimony from three witnesses for the College which included one administrator, one Nurse who was present at the time of the allegation and one expert witness. The College also presented a book of documents which included 19 documents all submitted as evidence and included two (2) videos of the allegations from different vantage points in the hall. The Member’s counsel called an expert witness and the Member herself. The Member’s counsel also entered five (5) exhibits which included diagrams of the layout of the nursing station, schedules and related information from the expert witness.
In order to determine whether or not the Member committed acts of professional misconduct as set out in paragraphs 1 through 3 of the Notice of Hearing, the panel addressed the following issues:
Is the evidence of the witnesses called by the College credible and reliable?
Does the documentary and video evidence confirm or refute the allegations against the Member?
Did the Member actually observe the event and failed to report?
If the Member committed the act as alleged, does that constitute a breach of the standards of practice of the profession?
Does the conduct represent conduct that would reasonably be regarded as dishonorable, disgraceful and/or unprofessional behaviour?
The Evidence
Witness # 1
The first witness College Counsel called was [Colleague D] (“[Colleague D]”) who has been a registered nurse since 2010. [Colleague D] is currently the Coordinator of Complex Care at St. Joseph’s Health Care, London. At the time of the event in question, [Colleague D] was the coordinator at Parkwood Mental Health and was responsible for staffing of the units G3 and H3, including scheduling, clinical practice issues, training and handling of complaints, just to mention a few of her duties.
[Colleague D] confirmed the number of beds on the unit as a population of the clients that had severe psychotic disorders with most diagnosed with schizophrenia. [Colleague D] confirmed Exhibit #2 that the Member was in current standing with the CNO; she also confirmed Exhibit #3, the layout of the Floor (G3), the location of the nursing station, the staffing for the shifts and daily task of each shift. College counsel questioned [Colleague D] about the security system that was in place at the time of the allegations referring to Exhibit #4. [Colleague D] confirmed that there had been issues with the security bracelet system and she further went on to say that every nurse carries a “staff alarm” in case of emergencies and that there are cameras throughout the hallways, shared client spaces and seclusion rooms.
[Colleague D] was asked and confirmed training for the staff on how to de-escalate situations and the safe use of restraints known as “PICS” training. The panel was referred to Exhibit #5, Emergency Use Restraints Policy and Exhibit # 6, Minimal Use of Restraints. The panel was also referred to Exhibit #7, a memo on Policy dated 2015-08-04, which was confirmed by [Colleague D] and which outlines the responsibility of each individual’s obligation to participate and to “identifying incidents of workplace violence and opportunities for addressing and reporting these immediately to his or her leader”. The Policy goes further to state that anyone in violation of the policy is subject to disciplinary action up to and including termination.
[Colleague D] stated she knew the Member and had no issues prior to this allegation with her work. She also stated that the Member had completed her PICS training and was within the two- year review window as well as finishing her online learning.
[Colleague D] was then taken to Exhibit #9, which was the assignment sheet for March 31, 2015. It confirmed that the Member was working that evening and that she was not assigned to [the Client]. In fact, it was [Colleague B] who was assigned the client for that particular shift. Upon further review of Exhibit #10, the charts of [the Client], revealed that on March 29, 2015 the client was admitted under a “Form #4” (Involuntary Admission). Exhibit #10 which are excerpts from [the Client’s] medical chart tell us that the client was paranoid, had delusions and could be verbally aggressive. The notes also showed that on March 31, 2015, [the Client] was under Special Observation and Emergency Restraints had been used but no mention of physical abuse during the incident.
[Colleague D] testified that she found out on April 1, 2015 that [the Client’s] family had concerns. She also received a phone call from [Colleague C] (“[Colleague C]”), an RPN on the same shift, around 3:00 p.m. that same day, concerning the incident of K.W. and of [the Client] being “punched in the head”.
[Colleague D] confirmed that [the Client’s] medical chart notes that on April 1, 2015 the family was concerned and wanted to talk about what precipitated the restraints being used the night prior and any physical punching/hitting from K.W.. On the same day [Colleague D] did receive a call from [Colleague C] reporting what she saw happened the night prior and her concern for [the Client] and the manner in which he was treated. On April 2, 2015 [Colleague D] met with [the Client], the mother of [the Client] and [Colleague C] about how [the Client] was brought to the ground and punched in the head. The reason [the Client] was put in seclusion for the remainder of the evening of March 31, 2015 was also discussed. [Colleague D] then stated she met with the Director of Program, and reviewed the chart and safety report about the seclusion event.
On or about April 2nd and 3rd 2015, [Colleague D] met in person with [Colleague C], K.W., [Colleague B] and the Member. Present at these meetings were also a representative from Human Resources and a Union representative. Some notes were taken by Human Resources. [Colleague D] also requested the video footage of the incident. As a result of these meetings, K.W. was put on a paid leave suspension.
On April 7, 2015 [Colleague D] spoke with the Member about her observations of K.W. and the client [the Client]. The Member told [Colleague D] that she was out into the hallway where [Colleague B] was already on the floor at the end of the hallway. The Member said K.W. blocked the view of [the Client] and she did not see her bring the client to the floor. The Member told [Colleague D] that K.W. held [the Client] with her arm around his “shoulders” holding him down. When [Colleague D] asked if it was a head lock the Member replied “no” but could have been perceived that way. The Member said she did not observe K.W. striking [the Client]. The Member also told [Colleague D] that [the Client] was mumbling and was inaudible when K.W. asked “if he had enough?”
[Colleague D] asked the Member if she understood the seriousness of the allegations and the Member responded that she knew her obligations to report and she felt that there were no concerns as there was no client abuse. Following this meeting, [Colleague B] and the Member were also put on paid leave.
There was a further debrief of all the staff involved in the allegation over a period of the week following the meeting of April 07, 2015. On April 13, 2015 the Member was involved in a meeting where she was asked again to recall the events of the allegations and that video security footage had been obtained. The Member told [Colleague D] that K.W.’s arms were around [the Client’s] shoulders but she denied seeing K.W. strike the patient. The Member said she did not hear K.W. say “have you have enough?” to [the Client] and that [the Client] was mumbling and she could not understand [the Client].
[Colleague D] told the panel there were no other meetings and the matter was referred to Human Resources along with three Directors for review. The Member was terminated from her job which is the letter dated April 15, 2015 at Exhibit # 13.
[Colleague D] also testified that in her view the Member was not forthright nor honest about the incident. She failed to appropriately report it to her employer. She stated that she also believed that the Member observed K.W.’s conduct, including observing K.W. strike the client.
The Member grieved her termination, which was eventually resolved by way of settlement.
In cross-examination, [Colleague D] was asked about the “code white” leading up to the events in question. She was also asked if she would have been surprised if the Member had experienced this kind of event in the past, given that she was a novice nurse and given that this was not a daily event. It was conceded that the other nurse involved had much more experience than the Member.
Counsel for the Member, Ms. Street, showed [Colleague D] the security footage in slow motion several times and stated that the Member’s recall of the allegation was that she did not observe the striking of [the Client] nor the headlock. Ms. Street stated to [Colleague D] that the Member was involved in a high risk “code white” and maybe that is why the Member may not have accurately perceived what happened.
Ms. Street then referred [Colleague D] to the Patient Safety Report (Exhibit #11) in which [Colleague C] had not stated the [the Client] was injured. The report went on to say that “Patient was increasingly agitated, not following staff direction. Behaviour unpredictable, threating harm. Code white called. Patient secluded.” This should have been reported the day of the incident and [Colleague C] was obligated to report this as a witness.
Ms. Street noted that [Colleague C] had no disciplinary action taken against her.
Ms. Street inquired of [Colleague D] her concern that the Member was not interviewed until April 7, 2015 and the inconsistencies in [Colleague C’s] version of the events of the allegations. [Colleague D] acknowledged that there had been some inconsistencies to define a “headlock” with [Colleague C].
Witness # 2
[Colleague C] (“[Colleague C]”) is Registered Practical Nurse (“RPN”) with the College of Nurses since 2007. She has been with St. Joseph’s Health Care, Parkwood Mental Health since March 2015. [Colleague C] has worked in the Mental Health field most of her nursing career. [Colleague C] told the panel she was responsible to the RN in charge. [Colleague C] was asked about the security cameras which she stated were in all the hallways and there was no security on the unit but that the staff wears “panic alarm buttons”. [Colleague C], when asked about the security, explained they were located at the front of the hospital and there were also camera screens in the nursing station which shows 10 -15 different views but that only four views appear on the screen at one time. [Colleague C] was knowledgeable in the bracelet system that each client has and depending on their clearance, where they were allowed to go in the hospital. She also knew that [the Client] was on a level 0 which is the highest level of security with no off floor privileges.
[Colleague C] testified that the staff had received Prevention Intervention in Crisis (PICS) training and a refresher every two (2) years and that they were taught how to de-escalate and restrain clients. [Colleague C] told the panel she had worked about 10 times with the Member on both G3 and H3 units prior to the allegation. She would also describe their working relationship as collegial and friendly. She also claimed that after the allegation she felt uncomfortable working with the Member.
[Colleague C] was on the 1900 – 0700 shift the night of March 31, 2015 and listed the staff on duty which included [Colleague B], K.W., [Colleague E] and the Member. [Colleague C] told the panel that [Colleague B] was assigned to [the Client] and [Colleague E] was on constant care and observation with one client.
When [Colleague C] arrived for her shift, she was with the Member, [Colleague B] and K.W. listening to report in the nursing station. [Colleague E] was in the common area lounge with her one client that was assigned to her. Report was left from the prior shift as voicemail which was on the speaker phone. During report a call came in from security that [the Client] was off the unit at 1910 and [Colleague B] met with security. [The Client] was located on H3 and returned by security to G3. [Colleague C] went on to explain that [Colleague B] told her she engaged in conversation with [the Client] who seemed alert and was told to stay on the unit. The bracelet had obviously failed and security was asked to lock the front door. [The Client] was walking down another hallway and they continued with report until [the Client] came down the hallway that has the exit sign and [Colleague B] and K.W. left to talk to the client. [Colleague C] can see on the security camera that [the Client] starts “jog / run” towards the exit. [Colleague C] saw [Colleague B] follow [the Client] to catch up and stop [the Client] when she falls on to her knee. [The Client] turned towards [Colleague B] and that was when [Colleague C] observed on the camera K.W. grabbing and bringing [the Client] to the ground. [Colleague C] stated she came out of the nurse’s station and walked toward the incident. [Colleague C] stated she was the closest to the seclusion room so she unlocked it and hit the panic alarm as she did not like what she saw and wanted to help. She said she walked slowly as she was scared and wanted to keep herself safe.
[Colleague C] observed that K.W. had [the Client’s] head through her arm and was punching [the Client] in the back of the head and neck. She thought she observed this from 15 feet away. The client was not resisting while the staff held him face down and K.W. had her arm around his neck. [Colleague B] held his lower body right side closest to the nursing station and K.W. no longer had [the Client’s] head through her arm in a hold. [Colleague C] does not remember the Member being there. She testified that she was frightened by the violence against [the Client]. It was not until she viewed the security footage that she realized the Member had come out of the nursing station ahead of her.
[Colleague C] said she saw the video for the first time March, 2017, two (2) years after the incident. There was no audio on the footage but [Colleague C] remembered [the Client] saying “Why did you hit me” and K.W.’s response of “trying to slow you down” after security arrived. [Colleague C] also recalled K.W. asking [the Client] “have you had enough”. [The Client] was not resisting while on the ground and did not speak.
The security footage from both angles was reviewed by [Colleague C] which confirmed the chain of events that occurred on March 31, 2015. The videos were reviewed in detail and were paused intermittently to show the sequence of events and how they unfolded. The witness confirmed that her view of the incident was unobstructed.
In the longer video with the angle facing towards the exit door, the panel saw [Colleague B], K.W. and [the Client] in the hallway at 0220 and the Member in the hall at 0220. [Colleague C] was not seen in the footage till 0233 when she entered the hallway. The panel observed the “head lock” and the striking of [the Client] between 0237– 0239. [Colleague C] was taken to 0248 on the video where the panel observed the left arm back around the neck, right arm underneath the chin and [the Client] facing down. At 0257 [Colleague C] is seen calling out to a co-worker to call a “code white”, there is no audio but [Colleague C] stated that at 0303 – 0321 [the Client] was reassured when one of the nurses said, “it’s going to be OK”. Security was shown to arrive at 0353. The client was taken to the seclusion room at 0425.
Following the incident, [Colleague C] said she went back to the nursing station and continued with care for her assigned client. [Colleague C] noted that she was not part of the conversation immediately after but did observe [the Officer], the officer in charge of the shift, along with the Member, K.W., and [Colleague B] and was not sure if security was part of the conversation but that they were present on G3.
[Colleague C] told the panel she did not participate in the discussion after as she did not trust nor had confidence in the officer in charge as she would see through what she had to say and she was good friends with K.W. [Colleague C] did overhear K.W. admitting to hitting [the Client] and wanted to view the security footage but there was a process and nurses cannot “log in”. During this conversation, the Member, along with a female security guard, [Colleague B] and K.W. were present. Twice that evening, [Colleague C] stated that she heard K.W. refer to the incident and changed her comment to “pet him”. The Member was present but said nothing.
When asked to describe the demeanour of her colleagues, [Colleague C] responded “excitement”, as she was scared and worried about [the Client] and fearful for herself to report the incident. [The Client] was young and vulnerable as well as ill. [Colleague C] was concerned about [the Client’s] future and making sense of not only his mental health but now his physical health after the striking. [Colleague C] lamented if [the Client] might have a headache, bruising, pain, time in seclusion and lack of trust in nursing after this incident.
At 1955, March 31, 2015 [Colleague C] created a Safety Report. She asked [Colleague B] to assist her with the Report. At that time, [Colleague B] told the witness that [the Client’s] behaviour was unpredictable and that there was a real concern that the client was not doing what he was being asked to do. [Colleague B] and K.W. shared with [Colleague C] that [the Client] had said something about “killing” “death”.
[Colleague C] stated after the shift was over at 0700, she went home and thought about what had happened. At 1645 she called [Colleague D] to report the incident. [Colleague C] said she had an interview with [Colleague D] on April 2, 2015. No notes were taken during that meeting. [Colleague C] said after the incident it was difficult to be at work. She felt bullied by the friends of the staff involved in the incident. She felt that she had no support and that this lack of support, as a result, gave her a feeling of low self-confidence. [Colleague C] further stated it was hard emotionally, and that she felt guilty for not reporting the matter sooner.
On cross examination, Ms. Street confirmed with [Colleague C] that when she originally reported the matter, she did not remember that the Member was present. It was two years later that she became aware of the Member’s presence. Ms. Street also noted that [Colleague C] was unaware of the Member leaving the nurse’s station before her and could not be aware of what the Member saw or heard.
Ms. Street brought to the panel’s attention that [Colleague C] had 10 years of nursing experience, and that she had more experience, training and exposure than the Member to violent assaults by clients. She confirmed with [Colleague C] the use of the 5-point restraint and the need to report. After the incident [Colleague C] was moved to WG 3 immediately.
Ms. Street pointed out to [Colleague C] the lack of information in the report in that there was no mention of [the Client’s] behaviour prior to the incident, that the client was not following directions, that he was reported to say “killing” ”death.”. There was no mention of [the Client] being agitated, skipping in the hallway away from staff that could be perceived as “teasing”. The report also did not mention that K.W. and [Colleague B] agreed with her that the “abuse” should not have happened.
[Colleague C] was shown the shorter video footage and at 0023 the time of the first strike. [Colleague C] said she was focused on K.W. and [the Client]. Ms. Street suggested that [Colleague C] didn’t want to insert herself into the violence as there were already two (2) nurses present.
Ms. Street asked [Colleague C] to clarify why she did the report when [Colleague B] was assigned to [the Client] and no mention in the report of [the Client] asking “why did she punch me?” when the response was to slow him down. [Colleague B] was on the unit, she should have completed the report as Ms. Street stated.
Ms. Street asked if [Colleague C] was aware that K.W.’s husband was an RPN at the facility. [Colleague C] was aware and she had seen him over the past two years but had no interactions with him.
[Colleague C] was then shown the other footage and at 0252, Ms. Street questioned the position of [the Client], if he was still in a “head lock” when security arrived, which [Colleague C] answered “no” too. Ms. Street stated it was a strange position being held by the shoulders. Ms. Street inquired as to [Colleague C’s] perception of a “headlock” with an arm around the neck and controlling the head.
Ms. Street confirmed that [Colleague C] felt the officer in charge was untrustworthy and she might be afraid of her. Ms. Street also reminded [Colleague C] of various interviews with the College since March 2001.
The first interview on October 20, 2015, [Colleague C] had said K.W. punched the client three times. [Colleague C] did not recall saying that and stated that it was a series of fast strikes and difficult to count. [Colleague C] also recalled the statement “have you had enough” but not “why did you punch me”.
Ms. Street brought to the panel’s attention that K.W. had been trying to contact staff at home. [Colleague C] told the panel she never responded to K.W. nor did she know if the Member had been contacted.
During the meeting with the College on March 3, 2017, [Colleague C] admitted that her memory about the Member’s presence in the hallway at the time of the incident was not accurate. On June 28, 2017, during a further interview with the College, the witness acknowledged that she could not recall the Member’s actions.
On examination, the witness explained that having witnessed such a traumatic event, her memory of some of the details had been impacted.
Witness # 3
Marjory Whitehouse, RN (“M.W.”) is a member of the College and had been involved with Mental Health for the past 33 years. The panel was given a CV for M.W. as Exhibit #14. M.W. was presented as an expert in Standards of Practice, given her experience in professional obligations in psychiatric inpatient units. The Member did not oppose qualifying M.W. as an expert in the field. The panel qualified the witness to provide her opinion on the Standards of Practice in the setting of psychiatric inpatient units.
M.W. testified that under the Psychiatric Nurse Mental Health Standards, the primary role of the mental health nurse is to provide dignified, respectful care. It was also noted that all behaviours have meaning and when possible, the nurse should engage clients in a calm manner, to diffuse negative or dangerous behaviours. The witness testified that only in extreme situations should restraint be used, if it has to be used and that the least amount of restraint as possible should be used. The witness explained that if interventions were not timely it can cause behaviours to escalate.
When asked about physical restraints, M.W. commented that a nurse needs to adhere to the least restraint policy and every other alternative should be tried first including early intervention. She noted a care plan should be prepared, so that a quick plan can be implemented.
At Exhibit #16, tab 2, M. W. had been sent in advance a hypothetical fact scenario and the video of the incident. When M.W. was asked the question on page 372, #1, “did the Member have a professional obligation to report Nurse A’s conduct of striking the client, as an incident of unsafe practice of unethical conduct of a health care provider?” M.W. testified that if the client safety was comprised by the abuse of hitting, using force or handling in a rough manner, the obligation was to report. Reporting and adhering to reporting is required by all members assuming the Member saw and perceived this.
At Exhibit #16, Tab 2, page 372 #2, the expert was asked, did the Member contravene a standard of practice of the profession or failed to meet the standard of practice of the profession when she reported to the facility that she did not observe Nurse A strike the client?” M.W. responded that a nurse has the obligation to intervene and report, scan the situation and use critical thinking. If the strike was observed the Member should have reported. The length of tenure or age has no relevance to adhering to the Standard. Times of crisis can be stressful and disturbing. A debrief in the circumstances was necessary. Managing disturbed behaviour by a mental health client is part of the job.
Cross Examination by Ms. Street clarified that there was no audio on the video nor any statement from the Member. [Colleague D] conceded that in giving her opinion, she assumed that the Member had the opportunity to see the client abuse. [Colleague D] stated that in her view it appeared the Member saw how the client ended on the floor, as she was running to the incident. M.W. was also certain in her opinion that the Member saw and perceived the striking of the client.
Member’s Case
Dr. Jay Pratt was called by the defence as an expert in the field of visual cognition, a subset in the field of psychology. His research includes visual cognition and attention to measure eye movements and perception, tools like that of highly controlled video games. Dr. Pratt has also been an associate for various journal reports about visual cognition. Dr. Pratt has received various grants in his field and created his own courses in “Attention and Performance” which he is the current Vice-Dean at the University of Toronto, Department of Psychology. A CV of Dr. Pratt is Exhibit # 20.
Counsel for the College, Ms. Emily Lawrence, questioned Dr. Pratt that his visual cognition was mostly in a lab setting and a subset of psychology and not forensic psychology. Ms. Lawrence made reference to the “real world” application of his field of study and that there were legal implications if applied inappropriately. Ms. Lawrence stated that visual perception was no expertise in regards to memory or bias as it relates to a crime. She further stated that Dr. Pratt had no knowledge of mental health as it relates to nurse training nor the knowledge of psychiatric units and how they operate.
The panel decided to allow Dr. Pratt to testify and to decide what weight to place on his evidence at the end of the hearing.
Ms. Street proceeded with Dr. Pratt and discussed that he had received the two videos. He explained that the normal range of vision is 150 degrees as related to the oval shape of the eye. He further described the only three degrees of detail and colour which is about the length of your arm and the width of your thumb.
Dr. Pratt went on to explain how the brain builds the scene it can see. He went on further to say that while a person is aware of visual stimuli, that person’s waking cognitive perception fails to see things at every working moment. This phenomena can cause failure or separation of what goes into the brain and what we perceive. The example he gave was based on a video where people are asked to count something and a gorilla walks in, in the background. Twenty-five to fifty percent of the people in the study did not report seeing the gorilla. This is a form of passive and unintentional blindness also known as a part of “change blindness”.
Ms. Street took Dr. Pratt to the footage on the longer video at 02:38 where it appeared the Member looked right at K.W. as she strikes [the Client] Dr. Pratt said all four factors came into play. He elaborated by saying the active part of the brain has an intentional control set, which in this case was the Member’s focus on the restraining of the lower body. The Member was filtering information that was important to the task and goal at hand. The other factor was the Perceptual Load and that would include the stress, how busy the Member was and her inexperience. Dr. Pratt opined that there was no way to objectively measure what a person does or does not see.
On cross-examination, Ms. Lawrence pointed out to the witness that there was no sound in the gorilla experiment and that if noise was present it may have changed the results. She put to the witness that if both visual and auditory stimuli were present that there was a higher chance and more likelihood of observation. Dr. Pratt agreed. Dr. Pratt testified that brightly coloured items will also have some stimuli and increase the probability of observation.
Dr. Pratt addressed “Why she would turn her head?” He opined that there was a failure of the brain to perceive information which was a problem of the brain not sending enough information to immediate memory, in other words no memory of the event. There is a gap between sensation and light hitting the retina which cause unintentional blindness. Therefore if information was not perceived by stimuli then it will not be part of the conscious awareness. Dr. Pratt said people are always surprised to learn that it was possible that, in this case, the Member had no perception of the incident.
The Member
The Member is a 26 year old. She is a graduate from the collaborative program at Fanshawe College and The University of Western Ontario, London, Ontario. The Member graduated in the spring of 2014 and started her employment at St. Joseph’s Health Care London, Ontario in Geriatric Psychiatry that same year. After her first three months in that unit, she was moved to a new facility at Parkwood Institute – Mental Health, on Wellington Road. The Member explained that the new facility was a different layout with each client having his/her own room. The unit was now called G3. The Member told the panel that in May, 2015 there was a week of training when they moved to the new building. The PICS (Prevention and Intervention in Crisis Training) training was two days with only her and one other staff member. The Member felt this was less than adequate training especially when it came to restraint training. The Member was taught how to assist and if present to secure limbs in the restraint process in that the “leader” would be at the client’s head and others would secure the client’s arms and legs.
Ideally, there are five staff members on a shift. The G3 floor has 24 beds and can have up to 25 clients. When asked what type of patients, the Member explained to the panel that the client population was comprised of patients with psychosis symptoms, including those with schizophrenia and some with drug induced psychosis. The clients tend to be violent and unpredictable. The Member was part time and picked up shifts on G3 and H3. She would average 75 hours every 2 weeks.
The Member was asked about the security system and she told the panel that it did not always work appropriately. The Member told us that [the Client] had been transferred to G3 two days prior to the incident and that she was not assigned to [the Client’s] primary care. The Member knew that [the Client] was in his early 20’s, had schizo-affective disorder and was originally admitted under an involuntary form. The member knew that [the Client] was 5’9” and had an argument with an elderly client in the past. [The Client] could be intimidating and was known to yell and argue with the elderly.
On the day of the incident, the Member stated she was not assigned to [the Client] and had no interaction with the client on a previous shift (Exhibit #24). The Member was setting up for the 1900 hour shift to start review of the previous shift’s report on the phone. She was with K.W., [Colleague B], and [Colleague C]. The Member notes that [Colleague E] was in a constant care room.
There was a call from security that a client was “off unit” and that there had been a “breach” of a bracelet at Elevator #6 just outside the unit. The security bracelet was not functioning properly. Two security guards returned [the Client] to the unit. The Member was in the nursing station when [the Client] was returned. She was present for a conversation where it was decided that the entire unit would be locked down for approximately five minutes The Member told the panel that from the nursing station she could see G3172, G3170 and G3173 and was able to see the right hand hallway (Exhibit #3). The Member said [the Client] passed by the door to the nurse’s station with no eye contact. [Colleague B] exited the nurses’ station to redirect [the Client]. The Member was unable to hear what [Colleague B] said. The next nurse to exit was K.W. who rose quickly according to the Member. At this point, only the Member and [Colleague C] remained in the station. The Member thought the other nurses would redirect [the Client] but when she exited the room she saw [Colleague B] had fallen. The Member was not aware of the “cause” of [Colleague B’s] fall. While the Member had no experience with psychotic clients trying to leave a locked unit, she thought that she should assist. The Member knew she needed to assist with the restraint using the knowledge she have from training. The Member went running around K.W. and [Colleague B] as can be seen in the video footage. The Member testified that she was not aware of K.W.’s hand in the air at this point and that she was only focussed on securing the client’s feet. The Member also stated she was not aware of [Colleague C’s] participation in the incident until the Facility’s investigation.
The Member was then shown the other video footage which shows the Member exiting the nurse’s station and that at 0231, K.W. grabbing [the Client] by the head and shoulders. The Member explained that she was unable to see the grabbing as K.W. and [Colleague B] were blocking her view of [the Client] The Member stated that she did not see K.W. strike [the Client] as she was restraining his ankles and was looking at his feet. The Member explained to the panel that now, looking at the video, she was able to see how K.W. was securing the client’s upper body. She did not perceive this hold as a “headlock”.
The Member told the panel that the security took [the Client] to the seclusion room. She did not observe any signs of injury. The Member then went to the laundry to retrieve hospital clothing but could not remember who delivered them. The Member then returned to the nursing station where she was at the desk (marked with an X on Exhibit #25) and was operating the phone for report. The Member recalled that [Colleague B], K.W., [Colleague C], two security guards and the officer in charge, “[the Officer]”, where present. The Member stated she was not involved in the discussion of K.W. attempting to review the security footage of the incident. The Member also stated she does not recall [Colleague C’s] comments about how it would be inappropriate to view the footage or her leaving the station. The Member said she did not recall K.W. using the words “petting” or “tapping”. The Member told the panel she was waiting to resume report and thought her actions of securing the ankles were appropriate. When asked about her perception of the incident she told the panel that she saw [Colleague B] take a face plant and knew she needed to assist in the restraint by securing the ankles. After [the Officer] left, she finished report and prepared meds for the night shift. The Member says she did not contribute any more than mentioning [Colleague B] falling and securing the ankles. The Member knew that [Colleague C] had completed a Safety Report and did not recall her as being part of the incident.
When asked if the Member had any conversations with K.W. at any point during the shift she replied she did not. The Member was terminated and after a grievance was filed she was able to change her status to “resigned”.
The Member was asked about her relationship with K.W. which she said was professional and that she and [Colleague C] were Facebook friends. The Member had never been contacted by K.W. after the incident. The Member said she never saw K.W. strike [the Client] and had no reason to withhold the information. When questioned about the obligation to report she said was not intimidated by anyone and was not lying.
The Member went on to tell the panel that she enjoyed working in mental health and she is now employed at London Health Science. The Member has since reviewed the Standards and policies and wrote a self-reflection paper before returning to work.
Cross examination by Ms. Lawrence started with a review of how to avoid violent outburst by clients. It was agreed by the Member that physical restraint is the last resort. The Member also noted that nurses were to use redirection to distract and this was a key tool. Ms. Lawrence asked the Member if she had experienced outbursts of violence in the past and she said she had. She also confirmed that she had had training in de-escalating these sorts of situations. The Member agreed that “chasing” [the Client] would have agitated the client. The Member further acknowledged that given the appropriate holding techniques she had learned, K.W. should have been in the prone position during the incident. The Member acknowledged that K.W. did not make the best decision in this incident.
Ms. Lawrence asked again and the Member confirmed she did not hear [the Client] ask K.W. “why did you hit me?” but she did hear him mumbling something and that she could not make sense of it. When Ms. Lawrence asked her if the position K.W. had [the Client] in could be defined as a “headlock” the Member was reluctant to reply.
The Member was shown the video at different angles and at different times. She maintained that she did not see K.W. strike the client”.
Ms. Lawrence inquired about the activities back at the nurses’ station after the incident. It was confirmed that the officer in charge, “[the Officer]”, was present to ensure everyone was alright. The Member told the panel that there was no formal debrief and that she was not involved with those who wanted to review the footage on the video security camera.
Ms. Lawrence stated that the Member had not told her current employer of the incident.
On re-examination, the Member admitted that she did not tell her co-ordinator about this matter until she was advised that the matter had been sent to the CNO and the Disciplinary Committee. The Member also confirmed that her evidence with respect to the alleged “headlock” and the comments by the nurse involved had not changed from when she was first interviewed by her employer.
Final Submissions – The College
Ms. Lawrence summarized the legal principles by stating that burden of proof was on the College and that the standard of proof was proof on a balance of probabilities. She submitted that the allegations have been proven on a balance of probabilities using clear, cogent and convincing evidence and it is more likely than not.
Ms. Lawrence asked the panel to consider that if the Member did observe the “headlock” and/or the striking of the client, did she have an obligation to report and was that a failure under the standards.
With respect to the credibility and reliability of the evidence, Ms. Lawrence stated that the panel had received evidence from several witnesses about the time prior to, during and after the incident. The two security videos provided the panel with a clear recording of exactly what happened. Further, there was really no dispute of [Colleague C’s] evidence which confirmed that K.W. had struck the client.
Ms. Lawrence said that in assessing the credibility and reliability of the Member‘s testimony versus that of [Colleague C’s], the panel should consider how each of their version of events hangs together and whether they had a reasonable opportunity to observe.
Ms. Lawrence noted to the panel that the video footage was a critical piece of evidence and the two different angles showed a clear and accurate demonstration on where the Member was during the incident. It clearly showed that the Member could see her colleague strike the client when her head was turned towards K.W. when she was delivering the “blow”. The video shows it was more likely than not that the Member did observe this.
[Colleague D’s] evidence is not in dispute about the security and the information about the unit. [Colleague D] told the panel about the investigation and interviews she had prior to viewing the video.
[Colleague C], a colleague who raised the concern, was a credible and reliable witness and observed the interaction of the incident on the security screen prior to entering the hallway. [Colleague C] had no reason to misstate or give false testimony as she had nothing to gain. The Member was a participant of the debrief comments of “pet” and “hit”. The College argued that [Colleague C’s] credibility does not change by not remembering that the Member was one of the participants in the incident. The fact that [Colleague C] did not recall exactly what was on the video demonstrates human frailty and not an omission of memory. Ms. Lawrence discussed the expert testimony of M.W. The panel was reminded that M.W. had stated that if the Member observed the strike she was required to report. Reporting is at the heart of public confidence and in her opinion not reporting amounted to a breach of the Standard of Practice.
Dr. Pratt told the panel about visual cognition and gave scientific information. Ms. Lawrence said the scientific understanding does show the frailties of vision and she acknowledged that the doctor could give us his opinion based on his field of study. She argued that this evidence was ultimately not relevant to the issue before the panel.
Ms. Lawrence then pointed out the Member’s evidence was a review in contrast to the video and testimony of [Colleague C] The Member denied observing the strikes and stated she was focused on the ankles. Given the Member’s reaction to the incident it was not plausible that she did not see K.W.’s behaviour and that it was more likely that she did observe and was simply reluctant to report.
Ms. Lawrence told the panel a plea agreement had been made with K.W.
Ms. Lawrence said in regards to the three allegations as set out in the Notice of Hearing and referring to the Standards of Practice and the failing to report that the panel should find these to be disgraceful and dishonourable conduct if the Member observed the strike and failed to report. Ms. Lawrence went on to explain that failure to report has element of moral failing. The public can lose confidence in self-regulation and this failure brings serious discredit to the profession.
Final Submission for the Member
Ms. Street told the panel that the burden of proof is on the College. Ms. Street stated that the College failed to meet its burden.
Ms. Street explained that the outcome of this discipline hearing will have serious implications on the Member’s career, which was still in its early stages.
Ms. Street took us to a book of Authorities and first case of Bernstein vs College of Physicians and Surgeons of Ontario (1977), 15 OR (2d) 477 (Sup Ct). In this case Dr. Bernstein was accused of engaging in a sexual relationship with a client in 1977 who had a psychiatric and fantasy history. There were some business men who want to “get even” with doctors for some financial losses and convinced the client to make false claims against the doctor. The doctor was found guilty and won on appeal proving the poor credibility of the client as result of the balance of probabilities.
The next case Ms. Street took us to, Tab #2, FH vs McDougall (2008) 2008 SCC 53, 3 SCR 41. Ms. Street took the panel to various paragraphs about the balance of probabilities in both civil and criminal cases.
The case talked about “a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegation or consequences”. It was also noted from the case “evidence must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”. “In the end, believing the testimony of one witness and not the other is a matter of judgement”. Ms. Street summarized this by saying there was a need to consider but do not change the standard of proof.
The next case, at Tab #3, College of Nurses of Ontario v. Manning 2010 ONSC 1510. In this case Ms. Street took us to the paragraphs regarding “the applicable standard of review is reasonableness, “the quality of the evidence should be clear, cogent and compelling, but the standard of proof remains throughout the balance of probability.
At Tab #4, the case of Ontario Racing Commission v Wallis and Piroski, 2011 98292 (ONRC) refers back to the Bernstein case at Tab #1 and also “Vigilance of a high order is required in assessing the evidence and determining that the proper inferences are drawn.”
Tab #5, Stefanov v College of Massage Therapist of Ontario, including Leave to Appeal denied; Endorsement of CA May 25, 2016. This case makes references back to both Bernstein (Tab #1), and FH (Tab #2). Additionally, it makes reference to the fact that the Panel is required to act with care and caution in assessing and weighing all the evidence. This case also makes clear that a panel may fall into error where it finds a witness more credible than another, where there are serious and obvious inconsistencies in that witness’ evidence.
Tab #6, Discipline Committee of the College of Nurses v Wreaks and Tab #7 Discipline Committee of the College of Nurses v Fisher. The Panel was not referred to these cases as they have not yet been made public.
Ms. Street argued that it is possible that a person was not able to visually record everything they see at every moment. In the case of [Colleague C] she had failed to have visual cognition of the Member being beside her during the incident, but this did not change her ability to assist. The same phenomenon occurred with the Member failing to see [Colleague C] during the incident or to see the “strike”.
Ms. Street commented that some of the factors of being frightened, along with the urgency and a threatening situation can lessen the ability to observe. Only the Member can testify to what she saw. The Member has denied seeing anything as alleged. The Member has no motive to lie.
The College’s evidence rests on a split second of a surveillance video. With respect to the “headlock”, Ms. Street argued that the video evidence does not show K.W. with an arm around the client’s neck. She argued that the evidence of [Colleague C] regarding having seen K.W. strike [the Client] is not supported with clear and convincing evidence. Further, Ms. Street argued that [Colleague C] did not witness the “headlock”. Ms. Street submitted that if [Colleague C] did see the incident as she said, why was it not in the report she submitted? [Colleague C] did see [Colleague B] fall but did not see what caused the fall. She also did not see [the Client] brought to the ground, and did not call the restraint a “headlock”.
Ms. Street submitted that the testimony of [Colleague D] made the assumption that the Member had seen the physical abuse, “the Member would have seen something”, when all she had was the information from [Colleague C]. [Colleague D] did not have an open mind to the fact the Member did not see the taking down of [the Client] to the ground or the striking as she was focused on the feet. [Colleague D] had no evidence of friendship between K.W. and the Member to show she would lie for her.
Ms. Street went back to [Colleague C] and stated there were inconsistencies and confusion in the evidence. Ms. Street asked the panel to consider [Colleague C’s] credibility and whether she had the opportunity to observe. Was it a flawed observation and does not affect the ability to tell the truth? Was [Colleague C] focused on a stressful situation and may not have been able to accurately perceive that incident? Was the attention focused on the client who was scared and in trauma? The panel was then asked to consider that [Colleague C] did not trust [the Officer], the officer in charge, and whether [Colleague C] was fearful of K.W.? There was also the issue that [Colleague C] did not remember the Member being at the incident as [Colleague C] asked [Colleague B] what to write on the report.
Ms. Street reminded the panel that the Member had been consistent with her story and consistent with how Dr. Pratt explained to the panel that this sort of visual cognition can distort what people can perceive. When it comes to the Member’s credibility Ms. Street told the panel to believe in the Member in the matter of judgement and summarized criteria. It was a stressful situation.
Final Submissions - College’s Reply Submissions
In response to the Member’s submission, Ms. Lawrence told the panel that summarizing evidence is not evidence and to rely on our notes. Ms. Lawrence reminded the test is clear, cogent and convincing evidence and that there is a higher standard with professionals.
Ms. Lawrence pointed out that the case of FH vs McDougall on the balance of probabilities is one of a civil standard and the quality of evidence should be clear, cogent and convincing/compelling. Ms. Lawrence used the expression “more likely than not”.
Ms. Lawrence also told the panel we cannot apply a different balance of probabilities related to the seriousness of consequences. In regards to [Colleague C], Ms. Lawrence said to review our notes as there was a notation the Member was at the debrief.
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 and the onus and standard of proof, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 2(a) and
3(a) of the Notice of Hearing. In particular, the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional by not reporting an incident of unsafe practice were a client had been physically abused by a colleague.
Reasons for Decision
There was no dispute that the Member was present and peripherally involved in the incident on March 31, 2015. It was clear from the video evidence that the Member had ample time to observe the sequence of events, including the headlock and the strike. The Member stated she was focused on the client’s ankles, but it was clear that she needed to move around K.W. to get in her position and that she clearly glanced up at K.W. when K.W. delivers a strike to the client. During the time the Member was holding the ankles she had time and opportunity to observe if K.W. had the patient in a headlock. The panel does not find it credible that the Member did not see the abuse as it was clearly visible on the video.
The panel finds that the Member did actually observe the event and as such the Member should have reported the incident to her supervisor. At the very least, she should have conducted a self-debrief to submit to her supervisor that night. The panel also noted the failure of the Facility to conduct a formal debrief. That was not acceptable as this was a code “white” situation.
In reaching our conclusion, the panel did consider the evidence of Dr. Pratt. While the panel
accepts that the witness was highly knowledgeable in the area of visual cognition, given the clear video evidence available, the panel did not accept as credible the proposition that the Member simply did not see what she was clearly looking at.
The video shows the Member turning her head in reaction to the hitting. In the circumstances, the panel did not accept Dr. Pratt’s evidence.
The Member told the panel that she did not see the strike nor the “headlock”. Even if that was true, the Member failed to document her involvement at all, which is contrary to in the
Emergency Use of Restraints Policy (Exhibit #5) page 6 where it clearly states that “the staff member witnessing the event that led to the use of seclusion or restraints shall document the details of the incident in the health record and the Patient Safety Reporting System (PSRS)”. This is a breach of the Standard in not documenting an incident that involved restraint of a client.
There is no doubt that the Member observed an incident involving restraint of a client.
The Member stated she did not receive all the necessary “PICS” training from the Facility and yet if the Member did not feel she was fully trained there was no documentation to support this claim. Working in the area of Mental Health it is as described in the Health and Safety Policy (Exhibit #7) page 143, “Every individual is accountable for actively participating in and contributing to the health and safety program”, also mentioned on page 144 of the same exhibit, “Identifying incidents of workplace violence and opportunities for addressing and reporting these immediately to his or her leader.”
In this incident there was a breach in the public protection and a failure in the transparency of nursing practice.
Nurses are held to high standards and public protection should always be first and foremost. The panel reviewed all the evidence present including five witnesses, two security videos and 25 Exhibits put into evidence.
The panel reviewed the video footages several times to capture as close as possible the sequence of events.
I, Catherine Egerton, 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