College of Nurses of Ontario v. Cross, 2018 ONCNO 95640

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Catherine Egerton, Public Member Chairperson

Carly Gilchrist, RPN Member Deborah Graystone, NP Member Devinder Walia Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

• and - )

HELEN RITCHIE M. CROSS ) TIM HANNIGAN for

Reg. No. 8839375 ) Helen Ritchie M. Cross

) CHRIS WIRTH

) Independent Legal Counsel

) Heard: May 16, 2018

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on May 16, 2018 at the College of Nurses of Ontario (“the College”) at Toronto. The Member was present and was represented by counsel.

The Allegations

Counsel for the College advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(e), 2, and 3(e) of the Notice of Hearing dated May 3, 2018. The Panel granted this request. The remaining allegations against Helen Ritchie M. Cross (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 practising as a Registered Nurse at Mount Sinai Hospital in Toronto, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, and in particular:

(a) on or about February 20, 2016, you used excessive force when handling an infant client, including by holding the client’s head down with force;

(b) on or about March 2-3, 2016,

(i) you used excessive force when handling an infant client, including by hitting the client’s hand and/or arm down and/or holding the client’s arm down;

(ii) you unnecessarily and/or inappropriately removed an infant client’s breathing mask; and/or

(iii) you stated, when providing care to an infant client, “I don’t fucking have time for this, this isn’t even my baby” or words to that effect;

(c) on or about March 11-12, 2016, you used excessive force when handling an infant client, including by grabbing the client by the clothing and shaking the client;

(d) on or about March 11-12, 2016, you used excessive force when handling an infant client, including by:

(i) forcefully placing the client’s arms to his or her side, and/or

(ii) being rough while positioning the client for an x-ray;

(e) [Withdrawn];

2. [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 practising 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, and in particular:

(a) on or about February 20, 2016, you used excessive force when handling an infant client, including by holding the client’s head down with force;

(b) on or about March 2-3, 2016,

(i) you used excessive force when handling an infant client, including by hitting the client’s hand and/or arm down and/or holding the client’s arm down;

(ii) you unnecessarily and/or inappropriately removed an infant client’s breathing mask; and/or

(iii) you stated, when providing care to an infant client, “I don’t fucking have time for this, this isn’t even my baby” or words to that effect;

(c) on or about March 11-12, 2016, you used excessive force when handling an infant client, including by grabbing the client by the clothing and shaking the client;

(d) on or about March 11-12, 2016, you used excessive force when handling an infant client, including by:

(i) forcefully placing the client’s arms to his or her side, and/or

(ii) being rough while positioning the client for an x-ray;

(e) [Withdrawn].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a); 1(b)(i),(ii),(iii); 1(c); 1(d)(i),(ii);

3(a), 3(b)(i),(ii),(iii); 3(c); and 3(d)(i) and (ii) in the Notice of Hearing. The Panel 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 an agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Helen Ritchie M. Cross (the “Member”) obtained a certificate in nursing following a three year nursing program in the United Kingdom on April 1, 1980.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on June 8, 1988. The Member registered in the non-practising class on January 26, 2018.

3. The Member was employed at Mount Sinai Hospital (the "Hospital") from November 2, 1987 to April 7, 2016, when her employment was terminated as a result of the incidents below.

THE FACILITY

4. The Hospital is located in Toronto, Ontario.

5. The Member worked at the Hospital in the Neonatal Intensive Care Unit ("NICU" or the “Unit”).

6. The NICU is a large intensive care unit that provides care to premature or acutely sick babies born at the Hospital or elsewhere in the community. The NICU is divided in to three zones (A, B and C) and each zone has 20 rooms.

7. Over 200 registered staff work in the NICU – they work 12 hour shifts, either the day shift from 0730 to 1930 or the night shift from 1930 to 0730.

8. On any given shift, there are between 23 and 29 staff on duty. The staff to client ratio is either 1:1 for very sick clients, 1:2 for semi-stable clients or 1:3 for stable clients.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Incident on February 20, 2016

9. On February 20, 2016, the Member worked the day shift, from 0730 to 1930.

10. (“Client A”) was born prematurely on January 17, 2016. She was admitted to the NICU on February 7, 2016. She was 3.219 pounds and was in an incubator, requiring a CPAP mask to assist with breathing.

11. The Member was not assigned to provide care to Client A on February 20, 2016.

12. Around 1730, Client A’s CPAP mask came completely disconnected, which prompted Client A’s mother to ring the call bell. The Member attended, because Client A’s assigned nurse was on a break, and the Member was the buddy nurse to the assigned nurse that shift.

13. The Member flipped Client A over and held Client A’s head down roughly for 20-30 seconds. Client A began to cry, which Client A’s mother would say was unusual, and Client A’s mother began to cry as well. Client A’s mother then interrupted the Member to say that she would take over and would settle Client A herself. The Member left the room without putting the CPAP mask back on or closing the incubator door. Client A’s mother placed the mask back on Client A and settled her.

14. Client A’s mother reported the incident verbally to the charge nurse that day, and then to the Hospital on February 22, 2016, via email.

15. Client A was discharged from the Hospital on March 23, 2016.

16. The Member acknowledges that she was rough with Client A while trying to replace her CPAP mask, to the extent that she caused both Client A and her mother to cry.

Incidents on March 2-3, 2016

17. The Member worked the night shift on March 2-3, 2016, from 1930 to 0730.

18. (“Client B”) was born prematurely on January 31, 2016. He was admitted the same day. Client B required oxygen, with high levels on the ventilator, to assist with breathing and to ensure his lungs did not deflate.

19. The Member was not assigned to provide care to Client B, but she was the buddy nurse to the assigned nurse.

20. While the assigned nurse was on break, Client B vomited and his bedding needed to be changed. Around 0230, the Member called [Respiratory Therapist A],Respiratory Therapist (“RT”) to assist. If [Respiratory Therapist A] were to testify, she would say she could hear the ventilation alarm in the background during her call with the Member.

21. While she was changing the bed sheets, the Member removed Client B’s oxygen mask as a result of the vomit. The mask was off for a prolonged period of time. When [Respiratory Therapist A] entered the room, Client B was dusky in colour. [Respiratory Therapist A] and another RT grabbed the breathing bag and turned up the oxygen. Client B began to breathe and his colour returned to normal.

22. [A Colleague], RN, was at the nursing station when the incident with Client B occurred. She could see the Member in Client B’s room when Client B’s oxygen mask came off and the ventilator alarm sounded. [The Colleague] entered the room and asked the Member if she required assistance – the Member replied that she did not because the RT, [Respiratory Therapist A] was on her way.

23. [The Colleague] returned to the nursing station but continued to watch the Member and Client B. As the Member was changing the bedding, she was slapping/pushing Client B’s arms down and holding them down when he tried to lift them up.

24. Throughout her interaction with Client B, the Member was swearing and saying she was not assigned to Client B and did not want to clean his bed. The Member said, “I don’t have fucking time for this – this is not even my baby,” or words to that effect. If [Respiratory Therapist A] and [the Colleague] were to testify, they would say that, in addition to swearing, the Member was angry, frazzled and upset during the course of her interaction with Client B.

25. Client B was discharged on April 29, 2016.

26. The Member acknowledges that she unnecessarily removed Client B’s breathing mask for a prolonged period of time. She also admits that she used excessive force when she pushed and held Client B’s arms down. Lastly, the Member admits that she used profanities in front of her colleagues and Client B.

Incidents on March 11-12, 2016

27. The Member worked the night shift, from 1930 to 0730, on March 11-12, 2016. Three incidents occurred with respect to two clients during this shift.

Client C

28. (“Client C”) was born prematurely on March 3, 2016 and admitted that same day. The Member was Client C’s assigned nurse.

29. Around 2100, the Member was weighing Client C prior to his feeding. The privacy screens were partially up in Client C’s room because he was going to be breastfed after his weigh in.

30. [Respiratory Therapist A] was in the hall when she heard Client C’s alarm go off. When she looked in Client C’s room, she saw him on the scale. [Respiratory Therapist A] would testify that the Member was grabbing Client C’s pyjamas on both sides and shaking Client C with force, which caused him to start crying. The Member would testify that Client C’s parents were present, and raised no concern about these events.

31. Client C was discharged on March 13, 2016.

32. The Member acknowledges that she handled Client C more roughly than necessary when she placed him on the scale to weigh him.

Client D

33. The other two incidents that night occurred with respect to (“Client D”), who was born on February 19, 2016. Client D was a twin. The Member was assigned to provide care to Client D, who was intubated on high settings and required intense care and monitoring. On the Member’s prior shift, Client D had to be re-intubated and he was therefore unstable. He was at risk of having a collapsed lung.

34. At some point during the Member’s shift, Client D knocked out his breathing tube (self-extubated). The Member called [Respiratory Therapist B], RT, who attended the client’s room.

35. [Respiratory Therapist B] and the Member were standing on either side of the clear, plastic incubator, about two feet apart. [Respiratory Therapist B] stabilized Client D’s head and kept the NG tube still while the Member put the breathing tube back in.

36. The Member’s hands were shaking and she was flustered as she inserted the breathing tube. She handled Client D forcefully, including holding his arms down at his side when he raised them in response to the new breathing tube being inserted.

37. If [Respiratory Therapist B] were to testify, he would say the Member was visibly upset and frazzled during her interaction with Client D.

38. After the Member replaced the nasal gastric tube, Client D required a chest x-ray. He had a standing order for chest x-rays every 12 hours, one of which was due at 0600. The x-ray technician brought a portable x-ray machine to Client D’s room around 0530. [Respiratory Therapist C], RT, was present in the room with the Member.

39. The Member was positioning Client D in a supine position so the technician could get a proper x-ray. The Member handled Client D roughly while positioning him for the x-ray.

40. Client D was discharged on June 1, 2016.

41. The Member acknowledges that she forcefully held Client D’s arms to his side while she inserted a new nasal gastric tube, and that she was rough with Client D when positioning him for an x-ray.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

42. The Member admits that she committed the acts of professional misconduct as described in paragraphs 9 to 41 above, and as alleged in the Notice of Hearing, as follows:

• 1(a) in that she used excessive force when handling Client A, including holding her head down;

• 1(b) in that she:

o (i) used excessive force when handling Client B, including hitting Client B’s hand and/or arm down and/or holding Client B’s arm down;

o (ii) unnecessarily removed Client B’s breathing mask;

o (iii) stated words to the effect of, “I don’t fucking have time for this, this isn’t even my baby”;

• 1(c) in that she used excessive force with Client C, including grabbing him by the pyjamas;

• 1(d) in that she used excessive force with Client D when she:

o (i) forcefully placed Client D’s arms at this side;

o (ii) roughly positioned Client D for an x-ray.

43. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3 (a), (b)(i), (ii) and (iii), (c) and (d)(i) and (ii) of the Notice of Hearing, and in particular her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 9 to 41 above.

44. With leave of the Discipline Committee, the College withdraws the following allegations from the Notice of Hearing:

• 1(e);

• 2(a);

• 2(b)(i), (ii) and (iii);

• 2(c);

• 2(d)(i) and (ii)

• 3(e)

Decision

The Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a); 1(b)(i),(ii),(iii); 1(c); 1(d)(i) and (ii) of the Notice of Hearing. As to allegation 3(a); 3(b)(i),(ii),(iii); 3(c); and 3(d)(i) and (ii), the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that the 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, 16 and 42 in the Agreed Statement of Facts. The evidence within these paragraphs indicate that the Member admitted to flipping Client A over and holding Client A’s head down roughly for 20-30 seconds to the extent that she caused both the Client and her mother to cry. The Member acknowledged that she committed acts of professional misconduct.

Allegation #1(b)(i) in the Notice of Hearing is supported by paragraphs 23, 26 and 42 in the Agreed Statement of Facts. It was observed by another Registered Nurse that when the Member was changing Client B’s bedding, she slapped/pushed Client B’s arms down and held them down when he tried to lift them up. The Member admits that she used excessive force when she pushed and held Client B’s arm down.

Allegation #1(b)(ii) in the Notice of Hearing is supported by paragraphs 21, 26 and 42 in the Agreed Statement of Facts. The Member admitted to unnecessarily removing an infant client’s breathing mask. The Member had removed Client B’s oxygen mask as a result of emesis. The mask was off for a prolonged period of time that the Client was dusky in colour.

Allegation #1(b)(iii) in the Notice of Hearing is supported by paragraphs 24, 26 and 42 in the Agreed Statement of Facts. The Member admits that she used profanities in front of her colleagues and Client B. Throughout her interaction with Client B, the Member swore and said “I don’t have fucking time for this- this is not even my baby”, or words that that effect.

Allegation #1(c) in the Notice of Hearing is supported by paragraphs 30, 32 and 42 in the Agreed Statement of Facts. It was observed that the Member grabbed Client C’s pyjamas on both sides, shaking Client C with force which caused him to start crying. The Member acknowledges that she handled Client C more roughly than necessary.

Allegation #1(d)(i) in the Notice of Hearing is supported by paragraphs 36, 39, 41 and 42 in the Agreed Statement of Facts. It was observed by a Respiratory Therapist that the Member forcefully held Client D’s arms down when he raised them in response to a new breathing tube being inserted.

Allegation #1(d)(ii) in the Notice of Hearing is supported by paragraphs 39, 41 and 42 in the Agreed Statement of Facts. The Member admitted that during an x-ray while Client D was in a supine position the Member handled Client D roughly while positioning.

With respect to Allegation #3, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s unprofessional verbal abuse and repeated excessive physical conduct casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects nursing professionals to meet. Inappropriate verbal and physical contact is unacceptable. The Member’s conduct is considered dishonourable as she repeatedly acted with such a gross over use of power by making inappropriate verbal and physical responses while working with such a vulnerable population. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a),(b)(i), (ii) and (iii); 3(c) and 3(d)(i) and (ii) of the Notice of Hearing and, in particular, her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 9 to 41 above.

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.

Penalty Submissions

Submissions were made by College Counsel and the Member’s Counsel indicated he agreed with those submissions. College Counsel submitted that the Member has signed an undertaking with the College (the “Undertaking”) in which she undertakes, acknowledges and agrees to the following:

• She will permanently resign as a member of the College;

• She will not reapply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future; and

• The public portion of the Register maintained by the College will indefinitely reflect that she entered into the Undertaking to permanently resign as a member of the College as part of an agreed resolution of allegations of professional misconduct heard by a Panel of the Discipline Committee; and

• The College is authorized to and may, in its sole discretion, provide a copy of the Undertaking and/or its terms to a governing body that regulates nursing in Canada or elsewhere in response to an inquiry or otherwise.

In light of the Undertaking, College Counsel submitted that the proposed penalty order supported general deterrence, protection of the public interest and maintained the public’s confidence in the ability of the nursing profession to self-regulate.

The Member has entered into a rigorous Undertaking to resign her membership with the College and to not pursue registration in the future. As well, the Undertaking includes a provision for the College to inform regulators in other jurisdictions should the Member attempt to gain registration in those areas. This outcome should inspire public confidence in the profession’s ability to regulate members, as the Undertaking was given within the context of an admission by the Member and an entry on the public record as opposed to a simple resignation for the College. Specific deterrence and rehabilitation are not essential components of the penalty to be ordered by the Panel as the Member has permanently resigned from 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.

College of Nurses of Ontario v. M. Smith (March 2, 2017). In this case, the member hit/slapped a client and/or grabbed the client by the shoulder and/or blouse and/or shook the client on one or more occasions. The penalty was an oral reprimand and the member entered into an Undertaking with the College to permanently resign her membership with the College.

College of Nurses of Ontario v. P. Wood (December 6, 2012). In this case, the member engaged in personal and social relationship with a client in a mental health setting. The member admitted that he breached the standards of practice of the profession with respect to nurse-client relationship. The penalty was an oral reprimand and the member entered into an Undertaking with the College to permanently resign his membership with the College.

Penalty Decision

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

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

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, and public protection. The penalty is in line with what has been ordered in previous cases.

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