College of Nurses of Ontario v. Brown, 2019 ONCNO 129290

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Grace Fox, NP Chairperson Margarita Cleghorne, RPN Member Dawn Cutler, RN Member Mary MacMillan-Gilkinson Public Member Devinder Walia Public Member

BETWEEN:

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

• and -

KATHLEEN BERNICE BROWN Registration No.: HD08163 NO REPRESENTATION for Kathleen Bernice Brown

PATRICIA HARPER Independent Legal Counsel

Heard: June 27, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on June 27, 2019 at the College of Nurses of Ontario (the “College”) at Toronto. Kathleen Bernice Brown (the “Member”) participated by teleconference.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing the public disclosure of the name of the patient referred to orally or in any documents presented in the Discipline hearing of the Member or any information that could disclose the identity of the patient, including a ban on the publication or broadcasting of these matters.

The Panel considered the submissions of the parties and decided that there be an order preventing the public disclosure of the name of the patient referred to orally or in any documents presented in the Discipline hearing of the Member or any information that could disclose the identity of the patient, including a ban on the publication or broadcasting of these matters.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated June 24, 2019 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while employed by Bluewater Health (the “Hospital”) as a Registered Practical Nurse, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

   a. on the evening of April 7, 2016, you failed to monitor, assess, intervene, and/or seek assistance for [the Patient], a [patient] in the care of the Hospital, including but not limited to:

    i. failing to observe [the Patient] while he was in his locked room while he engaged in self-harm and/or rang his call bell;
   
    ii. failing to de-escalate his behaviour; and/or
   
    iii. failing to document his self-harm in an incident report;
   

   b. on the evening of April 7, 2016, during a discussion about [the Patient] with a colleague, you used profanity and in particular, you stated words to the effect of “he’s not my fucking patient.”

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, while employed by the Hospital as a Registered Practical Nurse, in that 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 as disgraceful, dishonourable or unprofessional in that:

   a. on the evening of April 7, 2016, you failed to monitor, assess, intervene, and/or seek assistance for [the Patient], a [patient] in the care of the Hospital, including but not limited to:

    i. failing to observe [the Patient] while he was in his locked room while he engaged in self-harm and/or rang his call bell;
   
    ii. failing to de-escalate his behaviour; and/or
   
    iii. failing to document his self-harm in an incident report; and/or
   

   b. on the evening of April 7, 2016, during a discussion about [the Patient] with a colleague, you used profanity and in particular, you stated words to the effect of “he’s not my fucking patient.”

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a) (i), (ii), (iii); 1(b); 2(a) (i), (ii), (iii); and 2(b) 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 admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:

THE MEMBER

1. Kathleen Bernice Brown (the “Member”) obtained a Certificate in nursing from Fanshawe College.

2. The Member registered with the College of Nurses of Ontario (the “CNO”) as a Registered Practical Nurse (“RPN”) on January 1, 1984.

3. The Member was employed at Bluewater Health (the “Hospital”) from September 1987 until she retired in January 2017. At that time, she resigned her certificate of registration with CNO.

THE FACILITY

4. The Hospital is located in Sarnia, Ontario.

5. The Member worked as a full-time staff nurse at the Hospital on the Mental Health Unit (the “Unit”).

6. The Unit has approximately 20 beds, with an Observation Area with four locked rooms with their own locked lounge area called the vestibule. The Observation Area has a nursing station, and there is another nursing station outside the Observation Area within the Unit.

7. The nursing station in the Observation Area (“Nursing Station”) has video feeds of each patient room; as does the nursing station in the Unit outside the Observation Area.

8. Each patient room has a call bell that also connects to the Nursing Station. Nurses in the Nursing Station can speak to patients in their rooms using a white phone receiver in the Nursing Station. The call bell also rings in the other nursing stations in the Unit (those located outside the Observation Area).

9. Patients in the Observation Area are not on constant observation as a matter of course, but one nurse is required to be present in the area and to have “eyes and ears” on patients at all times.

10. The Hospital’s practice requires one staff member to be in the Nursing Station at all times. The staff member in the Nursing Station must have the ability to monitor the cameras, hear the audio and physically walk to the patient’s room.

11. Staff are not permitted to enter a patient’s room alone; they are required to go in pairs. If there is only one staff member in the Nursing Station, the staff member can call security or the Unit Lead to act as a partner to enter a patient’s room.

12. Staff are able to utilize the RPN stationed in the middle of the Unit or the Unit Lead to provide coverage in the Observation Area when required.

13. The Hospital had an unwritten policy that only one patient could be in the vestibule at any one time, and only one door to a patient room could be unlocked at any one time.

14. Responding to patients is not strictly assignment-based. If a nurse sees or hears something while in the Observation Area or the Nursing Station, he or she must take steps to respond regardless of whether it involves his or her assigned patient.

15. In addition to the video feeds from the four Observation Area rooms, the Observation Area had cameras that recorded the hallways of the Observation Area.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Patient

16. [The Patient] (the “Patient”) was a [ ] developmentally delayed individual, with numerous past admissions for depression with psychotic features, paranoid/delusional thinking and suicidal ideation, among other things.

17. On April 3, 2016, the Patient was admitted as a result of aggression towards a worker [ ], and he had numerous outbursts in the Hospital from April 3-7, 2016, including head-banging. He was bedded in one of the four Observation Area rooms.

18. The Patient did not like to be in his room and preferred to be in the vestibule area. All staff knew this and it was recorded in his chart. The Patient was usually quite calm in the vestibule area.

19. On several occasions on April 4-6, 2016, he became agitated when he was placed in his room, and bit his arm, hit his door, and banged his head. In the early hours of April 7, 2016, he became agitated and engaged in similar behaviour. He received PRN mediations to calm him on several occasions between April 4-7, 2016.

20. On April 7, 2016, the Member was scheduled to work in the Observation Area from 1500 to 2300 with another RPN (“RPN A”). An RN (the “RN”) was the Charge Nurse/Unit Lead on that day and evening.

21. In the evening, the Member was assigned to six patients, including patients who were bedded in the part of the Unit that is outside the Observation Area.

22. The Patient was assigned to RPN A. The Patient had spent most of the day shift sitting in the vestibule. He became anxious and disruptive when he was required to go back to his room.

23. The Patient was escorted to his room at 1840 by security guards, to clear the vestibule for an admission coming from the emergency department. RPN A was tasked with completing this new admission.

24. Between 1845 and 1910, RPN A was attending to another patient who was new to the Unit. During this time, the Member was responsible for the Patient and the other patients in the Observation Area.

25. Between 1845 to 1854, the Patient banged the door to his room, banged his body and head against the door and wall of his room and repeatedly used the call bell. The Member spoke to him at his door at 1848 and spoke to him on the call bell receiver at 1851 and 1853.

26. At 1854, the RN attended the Observation Area and attempted to calm the Patient down. She told the Patient through the window that RPN A was doing a new admission and was almost done.

27. In the Nursing Station, the RN told the Member to take the Patient out of his room as soon as the vestibule was open. The Member responded “he’s not my fucking patient.”

28. The RN spoke to the Patient on the microphone at the Nursing Station and returned to her work station outside the Observation Area. The Patient was calm for a few minutes before he resumed banging.

29. At 1903, the Member spoke to the Patient again on the call bell receiver as he continued to be agitated and engaging in self-harm. He did not settle for any length of time.

30. From 1906 to 1910, the Member and RPN A were sitting at the desk in the Nursing Station while the Patient continued to bang on the door. RPN A left the Nursing Station at 1910.

31. From 1910, and thereafter, the vestibule was empty. The Patient continued to ring the call bell. The Member was charting and occasionally speaking to the Patient through the microphone in the Nursing Station. Other staff came in and out of the Nursing Station.

32. At 1934, RPN A entered the Patient’s room, with security, and administered a PRN injection. The Patient was then relatively calm until 2015.

33. Between 2015 and 2107, the Patient was in his room, ringing his call bell. During this time, he banged the back of his head and smacked the wall there numerous times. RPN A and the Member were in and out of the Nursing Station but not in the Observation Area (that is, they were in the Unit outside the Observation Area). There are periods of 5-20 minutes where no staff is in the Nursing Station.

34. At 2107, RPN A allowed the Patient to enter the vestibule area.

35. If RPN A were to testify, she would state that the Patient appeared uninjured when he exited his room at 2107.

36. The Patient engaged in significant head-banging and use of the call bell from 0239 to 0259, after the Member and RPN A had completed their shifts and another RPN was assigned to the Patient. Security spoke to the Patient through his door at 0250, and had a physical altercation with him at 0257.

37. At 0406, the Patient’s assigned RPN observed that the Patient was bruised and swollen from banging his head. The following day, he had black eyes and swelling. He received a CT scan, which confirmed that he did not suffer any long-term damage.

38. The Hospital disciplined the Member.

Standards of Practice

39. CNO retained an expert who opined that the Member’s conduct fell below the standards of practice. In particular, the Professional Standards require a nurse to:

• engage in respectful collegial relationships;

• provide, facilitate, advocate and promote the best possible care for clients;

• seek assistance appropriately and in a timely manner;

• take action in situations in which client safety and well-being are compromised;

• take responsibility for errors when they occur and take appropriate action to maintain client safety;

• demonstrate respect and empathy for, and interest in clients; and

• ensure clients’ needs remain the focus of nurse-client relationships.

40. CNO’s expert opined that the Member failed to engage in positive and respectful collegial relationships when she told her colleague that the Patient was “not her fucking patient”.

41. CNO’s expert also opined that the Member was required to take steps to observe and de-escalate the Patient, and that she failed to do so. In particular, the Member failed to establish or demonstrate respect or empathy for the Patient, in a situation where the Patient was effectively restrained and secluded. The Member was responsible for the Patient’s care throughout the shift but in particular while RPN A was attending to the new admission. She failed to observe the Patient, a high acuity patient, in an appropriate manner. As the Patient escalated, the Member should have had continual interaction with him, preferably face-to-face, and considered other steps to de-escalate his behaviour. She should have taken steps to release the Patient into the vestibule as quickly as possible, and advocated to her colleague, RPN A, to do so.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

42. The Member agrees with the CNO’s expert’s opinion. The Member also acknowledges and admits that her conduct fell below the standards of practice. She admits that she did not take adequate steps to assess, intervene, seek assistance and/or de-escalate the Patient’s behaviour. The Member observed or could have observed his agitation and self-harming behaviour, and took no steps to ensure that he was released from his room as quickly as possible. She also admits that she should have and could have taken steps to de-escalate the Patient’s behaviour, including having ongoing conversation with him over the call bell, going to the door of his room to engage him, asking RPN A to move the admission to another area to allow him to access the vestibule, and/or administering a PRN medication.

43. The Member also acknowledges that she failed to complete an incident report, which is required when a patient engages in self-harm.

44. The Member also admits and acknowledges that her comment to her colleague was discourteous and unacceptable.

45. If the Member were to testify, she would say that that the Unit was under resourced when the incident occurred. The Member acknowledges that she was nevertheless responsible for monitoring the Patient and that failed to monitor, observe, assess and intervene appropriately.

46. The Member admits that she committed the acts of professional misconduct as described in paragraphs 4 to 38 above, in that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as alleged in the Notice of Hearing, as follows:

• 1(a) in that she failed to monitor, assess, intervene and/or seek assistance and/or appropriately document her care of the Patient on April 7, 2016 as follows:

o 1(a)(i) in that she failed to observe him while he was locked in his room and engaging in self-harm and/or ringing his call bell;

o 1(a)(ii) in that she failed to de-escalate his behaviour; and

o 1(a)(iii) in that she failed to document his self-harm in an incident report.

• 1(b) in that she used profanity and told her colleague “he’s not my fucking patient”.

47. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a) (i), (ii), and (iii), and 2(b) of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 4 to 38 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(a) (i), (ii), (iii); 1(b); 2(a) (i), (ii), (iii); and 2(b) in the Notice of Hearing.

As to Allegations 2(a) (i), (ii), (iii); and 2(b), the Panel finds that the Member engaged in conduct that would reasonably be considered by members of the profession to be dishonorable 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) (i) in the Notice of Hearing is supported by paragraphs 4 through 38 in the Agreed Statement of Facts. RPN A was attending to another patient who was new to the unit. The Member was responsible for the Patient in the absence of her co-worker. Paragraph 9 states that one nurse is required to be in the observation area and to have “eyes and ears” on patients at all times and paragraph 14 states that if a nurse sees or hears something, he or she must take steps to respond regardless of whether it involves his or her assigned patient. The Member failed to observe the Patient while he was locked in his room and engaging in self-harm and/or ringing his call bell. The Panel found the Member’s conduct fell below the standards of practice of the profession. In particular, the College’s Professional Standards.

Allegation 1(a) (ii) is supported by paragraphs 4 through 38 in the Agreed Statement of Facts. The Member failed to respond to the cries of the Patient. Paragraph 18 states that the Patient did not like to be in his room. All staff knew this and it was recorded in his chart. The Patient was usually quite calm in the vestibule area, but became anxious and disruptive when he was required to go back to his room. The Member did not respond when the Patient banged the door to his room, banged his body and head against the door and wall of his room and repeatedly used the call bell. The Member failed to meet the standards of practice as set out in the College’s Professional Standards.

Allegation 1(a) (iii) is supported by paragraphs 4 through 38 in the Agreed Statement of Facts. Paragraph 37 states that at 0406 the Patient’s assigned RPN observed that the Patient was bruised and swollen from banging his head. The Member failed to document the incident and complete an incident report, which is required when a patient engages in self-harm. The Member admits and the Panel finds that the Member contravened and failed to meet the standards of practice of the profession.

Allegation 1(b) is supported by paragraphs 4 through 38 in the Agreed Statement of Facts and in particular paragraph 27. The RN told the Member to take the Patient out of his room as soon as the vestibule was open. The Member admits that she responded “he’s not my fucking patient.” By using profanity and responding in such a manner, the Member failed to engage in positive and respectful collegial relationships with her colleague. This is a contravention of the standards of practice as set out in the College’s Professional Standards.

With respect to Allegations 2(a) (i), (ii), (iii) and 2(b), the Panel finds that the Member’s conduct would reasonably be regarded by members of the profession to be unprofessional and dishonourable. Failing to observe the Patient while he was in his locked room, failing to de-escalate his behaviour, failing to document in an incident report his self-harm, and using profanity towards a colleague was unprofessional and dishonorable as it demonstrated a serious and persistent disregard for the Member’s professional obligations. It demonstrated an element of dishonesty and deceit by her not reporting and recording the Patient’s behaviour as required.

Penalty

College Counsel and the Member advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order included the Member’s signed Undertaking for permanent resignation and 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. College Counsel submitted that the Joint Submission on Order was negotiated carefully between the College and the Member and that it meets the goals of penalty which, in this case, are specific and general deterrence and protection of the public. Overall the public is protected because the Member has agreed to resign and never seek membership to be a nurse at this College at any time in the future.

College Counsel noted that the mitigating factors in this case were that the Member has had a very long career registered with the College and no past history of discipline. This hearing was originally scheduled as a contested hearing but the Member took responsibility for her actions and accepted an Agreed Statement of Facts and a Joint Submission on Order.

The aggravating factors in this case were the seriousness of the Member’s conduct and the consequences to the Patient when the Member failed to take appropriate steps to ensure the safety of the Patient and protect him from self-harm.

The proposed penalty provides for general deterrence through a verbal reprimand.

The proposed penalty provides for specific deterrence through the fact that the Member signed an Undertaking with the College to resign her membership.

Overall, the public is protected because the nurse has resigned her nursing registration and will never apply to be registered again.

The Member agreed with the submissions made by the College.

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

CNO V Blum Heard: February 5, 2019

This case was similar in that the member failed to meet the standards of practice by failing to monitor, assess, intervene, seek assistance or properly document the care of the client. The member also swatted and/or slapped the hand or hands of the client and/or told the client “don’t hit me or I will not help you” and/or “stop pawing me” or words to that effect, in a rude and/or annoyed tone. This member received a verbal reprimand, a three month suspension of her certificate of registration and two meetings with a Regulatory Expert. The member was required to notify her employers of the decision for a period of twelve months.

CNO V Phillips Heard: September 26, 2018

The member committed an act of professional misconduct by borrowing money from a client’s husband. College Counsel acknowledged that the facts were not analogous to the present case. In this case, a Joint Submission on Order was signed and the member had undertaken to permanently resign his certificate of registration.

Penalty Decision

The Panel accepts the Joint Submission on 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.

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, protection of the public 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, Grace Fox, NP, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.