College of Nurses of Ontario v. Jeremy Hayden, 2018 ONCNO 90849

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Margaret Tuomi Public Member, Chairperson

Laura Caravaggio Member

Renate Davidson Public Member Deborah Graystone, NP Member George Rudanycz, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) BONNI ELLIS for

) College of Nurses of Ontario

• and - )

JEREMY HAYDEN ) NO REPRESENTATION for Reg. No. 13553683 ) Jeremy Hayden

) CHRIS WIRTH

) Independent Legal Counsel

) Heard: May 9, 2018

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 9, 2018 at the College of Nurses of Ontario (“the College”) at Toronto.

Publication and Broadcasting 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 Jeremy Hayden (the “Member”) or any information that could disclose the identity of the client, including any reference to the client’s name obtained in the allegations in the Notice of Hearing and any exhibits filed with the Panel. The Member consented to the order sought.

The Panel considered the request 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

The allegations against Jeremy Hayden (the “Member”) as stated in the Notice of Hearing dated January 10, 2018 are as follows.

IT IS ALLEGED THAT:

1. You have committed an act or acts 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 paragraph 1(1) of Ontario Regulation 799/93 in that, on or about September 26, 2015, while working as a Registered Nurse at Waypoint Center for Mental Health Care (the “Facility”) in Penetanguishene, Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession when you struck client [the Client] with a closed fist, approximately three times, in or around the torso.
2. You have committed an act or acts 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 paragraph 1(7) of Ontario Regulation 799/93 in that, on or about September 26, 2015, while working as a Registered Nurse at the Facility, you verbally, physically and/or emotionally abused client [the Client] when you struck him with a closed fist, approximately three times, in or around the torso.
3. You have committed an act or acts 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 paragraph 1(37) of Ontario Regulation 799/93 in that, on or about September 26, 2015, while working as a Registered Nurse at the Facility, you engaged in conduct that having regard to all the circumstances would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional when you struck client [the Client] with a closed fist, approximately three times, in or around the torso.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2 and 3 in the Notice of Hearing. The panel received a written plea inquiry which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admissions were 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. Jeremy Hayden (the “Member”) obtained a diploma in nursing from Georgian College in 2011. The Member then obtained a degree in nursing from York University in 2013.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on November 17, 2011. The Member then registered with the College as a Registered Nurse (“RN”) on July 26, 2013. The Member resigned his RPN certificate of registration on December 8, 2013.

3. The Member was employed at Waypoint Centre for Mental Health Care (the “Facility”) from October 17, 2011 to December 7, 2015, when his employment was terminated as a result of the incident below.

THE FACILITY

4. The Facility is located in Penetanguishene, Ontario. It is a 301-bed psychiatric hospital and forensic mental health research facility.

5. The Member worked as a full-time staff nurse at the Facility. At the time of the incident, the Member was working in the role of charge nurse. In that role, he was responsible for 20 beds and he had five unit nurses reporting to him.

6. The Member was first employed at the Facility as a Personal Care Assistant. He then moved into an RPN role and then RN role. At the time of the incident in question, the Member was working as an RN.

THE CLIENT

7. [The Client] (the “Client”) was 31 years old at the time of the incident.

8. He was admitted to the Facility’s Forensic Assessment Program from the North Bay Jail at 1315 on September 25, 2015, for the purpose of assessing whether he was not criminally responsible (“NCR”) in relation to various charges. The charges included forcible confinement, assault with a weapon and uttering death threats. The incident that led to the charges included multiple acts of violence towards his girlfriend.

9. At the time of his admission, the Client had been diagnosed with a substance use disorder, antisocial, borderline and narcissistic personality disorders, schizotypal personality traits, factitious disorder and malingering. The Client was on various medication.

10. The Client also self-reported to the Facility that he was a carrier of Hepatitis C.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

11. The Client was assessed by a physician shortly after his admission to the Facility on September 25, 2015 and was placed in seclusion for a safety assessment and, specifically, over concerns about whether he posed a threat to the safety of others. His first day was relatively uneventful. According to the Inter-Professional Progress Notes, however, he became increasingly frustrated by early afternoon the following day due to his continued seclusion and not being provided with an opportunity to shower.

12. By late afternoon on September 26, 2015, the Client’s behaviour had escalated to the point that he was cursing at staff. It was noted in his Interdisciplinary Progress notes that he was “angry+++”, “ripping clothes and sheets”, “punching mattress”, ”thrashing his room”, and “enraged.” By 1900, he was threatening to kill staff.

13. By 2000, the Client was noted to have “broken plexi glass covering tv and had fashioned a weapon.” After lengthy negotiations, the weapon was removed from his room. At that time, a decision was made to remove the Client from his room and place him in restraints in another room (“the restraint room”). According to the nursing note, “the extraction was performed with much resistance.”

14. The restraint of the Client was captured on video. The video does not capture any audio. In the initial half of the video, staff prepared the restraints on the bed prior to the Client’s arrival.

15. The Client was escorted into the room at approximately 2051 on the video.

16. The Client walked in the room, with each arm restrained by one staff member and a third staff member holding his head in a chin lock from behind. A fourth staff person shepherded the Client from behind. All four of the staff escorting the Client were wearing personal protective equipment.

17. Once the Client entered the room, seven staff members were involved in placing the Client in restraints, including the Member, who assisted by securing the Client’s right leg. The Member, who was not involved in extracting the Client from his room, but subsequently joined his colleagues to provide assistance, was not wearing personal protective equipment. Once in the restraint room, the Client continued to struggle and exhibit aggressive behaviour.

18. At approximately 2149 on the video, the Client spat at the Member’s face. The Member recoiled. He then responded immediately by punching the Client in the right flank with a closed fist. The Member then punched the Client two more times, once just below the rib cage and once in the upper left quadrant of his torso, again with a closed fist.

19. Two staff members pulled the Member away from the Client, with one staff member continuing to remove him from the room.

20. The Client was assessed for injuries but he reported no tenderness or discomfort. However, in the days following the incident, the Client referenced what had occurred in a manner that suggested he thought it might happen again.

21. The Member attended the hospital to be assessed for exposure to bodily fluids, including Hepatitis C.

22. The Client was discharged to the North Bay Jail on October 16, 2015 once his NCR assessment was complete.

23. The Member was initially placed on leave while the Facility investigated the incident. When the Member was interviewed as part of that investigation, he expressed shame and embarrassment for how he had acted, but was unable to explain why he reacted the way he did. The Member did, however, advise the Facility that he had been dealing with some stress in his life and had been receiving treatment in relation to that. The Member provided the Facility with documentation from his treating healthcare professional, which confirmed that his health would not interfere with his ability to provide safe and effective nursing care as a nurse working with an unpredictable psychiatric population.

24. Although the Facility acknowledged that the Member’s conduct was out of character, he was ultimately terminated over concerns that there was no explanation for his conduct and the Member could find himself in a similar situation in the future and react in a similar manner.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

25. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing, and as described in paragraphs 11 to 24 above, in that he contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, when he struck the Client with a closed fist, approximately three times, in or around the torso on September 26, 2015.

26. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, in that he physically and emotionally abused the Client when he struck him with a closed fist, approximately three times, in or around the torso on September 26, 2015, as described in paragraphs 11 to 24 above.

27. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, and in particular, that he engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, when he struck the Client with a closed fist, approximately three times, in or around the torso on September 26, 2015, as described in paragraphs 11 to 24 above.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities 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, 2 and 3 of the Notice of Hearing. As to allegation #1 and #2 the Member contravened the standard of practice of the profession and failed to meet the standard of practice of the profession when he struck the client [the Client] with a closed fist, approximately three times, in or around the torso and physically and emotionally abused client [the Client]

As to Allegation #3 the Member engaged in conduct that having regard to all the circumstances would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional when the Member struck the client approximately three times with a closed fist.

Reasons for Decision

The panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1 in the Notice of Hearing is supported by paragraphs #17, #18, #19, #25 and #26 in the Agreed Statement of Facts.

Allegation #2 in the Notice of Hearing is supported by paragraphs #17, #18, #19, #25 and #26 in the Agreed Statement of Facts.

With respect to Allegation #3 the panel finds that the Member’s conduct when he struck the client [the Client] with a closed fist, approximately three times, in or around the torso was dishonourable and unprofessional as it demonstrated a serious and persistent disregard for his professional obligations.

Finally, the panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct of striking the client [the Client] with a closed fist, approximately three times, in or around the torso casts serious doubt on the Member’s 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 on Order 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 his 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, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Therapeutic Nurse-Client Relationship,

3. Conflict Prevention and Management,

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

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

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

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify his 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 his 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, was not represented by Counsel but did agree with those submissions.

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

1. The Member was embarrassed, remorseful and ashamed of his behaviour.

2. The Member admits to dealing with stressors in his life that required treatment.

3. It was determined that this behaviour was “out of character” for the member.

The aggravating factors in this case were:

1. The client in this case was in a vulnerable state.

2. The client was in the process of being restrained.

3. The Member admits to punching the client with a closed fist three times.

The proposed penalty provides for general deterrence through the four month suspension along with the terms, limits and conditions placed on the Member’s certificate of registration. It sends a strong message to the profession that physical and emotional abuse of a client will not be tolerated.

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

The proposed penalty provides for remediation and rehabilitation through the following;

1. The Member will be required to attend two meetings with a nursing expert at his own expense, within six months from the date of the Order.

2. The Member must review relevant College publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable).

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

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

Case #1 – CNO v Gillette (Discipline Committee, 2015) was similar in that it contained aspects of physical and emotional abuse of a client. The client diagnosed with autism was also vulnerable. The differing factors were that in the Gillette case the member’s conduct was deliberate and intentional. The Member in the Gillette case demonstrated physical abuse by using excessive force to restrain the client while attempting to sit for lunch, grabbing the client’s shirt with sufficient force to rip his shirt without reasonable justification. Emotional abuse was evidenced by provoking 2 other clients to act out.

Whereas Mr. Hayden’s behaviour was a “snap reaction” to being spat on by a patient known to be Hepatitis C positive. The penalty in the Gillette case was the immediate revocation of the member’s certificate of registration.

Case #2 – CNO v Wreaks (Discipline Committee, 2017) was also similar in that it contained aspects of physical and emotional abuse of a client. This case demonstrated similarities in that the client was again vulnerable and was initially on an involuntary admission to a psychiatric facility. The member in this case also struck the client several times while attempting to restrain the client. The differing component was that the client, although attempting to leave the unit, was not physically resistant. Similar penalties were imposed including a 4 month suspension of the member’s certificate, 2 meetings with a Nursing expert and a 12 month period of employer notification regarding this Discipline committee’s decision.

Case #3 – CNO v Lupp (Discipline Committee, 2011) was similar in that the member struck a vulnerable client who was diagnosed with severe dementia and neurological deterioration. The client was admitted to regional mental health center specializing in diagnosis, treatment and rehabilitation of the severely psychiatrically disabled. The member in this case physically struck the client after observing him undress another client of the facility. A similar penalty was imposed including a 4 month suspension of the member’s certificate, 3 meetings with a Nursing Expert along with a twelve month period of employer notification regarding the findings of this decision.

Penalty Decision

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

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

2. The Executive Director is directed to suspend the Member’s certificate of registration for 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 his 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, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Therapeutic Nurse-Client Relationship,

3. Conflict Prevention and Management,

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

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

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

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify his 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 his 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. The panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection.

A 4 month suspension of the Member’s certificate demonstrates to the Member, the public and other members of the profession that the use of excessive force and emotional abuse will not be tolerated by this College.

The requirement of 2 meetings with a Nursing Expert including completion of a self-directed learning package, the review of relevant College publications and the completion of a Reflective Questionnaire, online learning module and decision tools, demonstrates to the public that his penalty is consistent with the mandate of public interest and safety. A 12 month period of employer notification also demonstrates future consideration of public confidence and protection.

The penalty is in line with what has been ordered in previous cases.

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 as listed below:

Chairperson Date