College of Nurses of Ontario v. Jeffrey Klein, 2019 ONCNO 129302 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL:

Grace Fox, NP Chairperson

Dawn Cutler, RN Member George Rudanycz, RN Member Christopher Woodbury Public Member

Richard Woodfield Public Member

BETWEEN:

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

and - )

JEFFREY KLEIN ) MICHAEL MANDARINO for Registration No.: 11447561 ) Jeffrey Klein

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: September 18, 2019

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on September 18, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order banning the disclosure, including the publication and broadcasting of the names of the [patients] or any information that could disclose the [patients]’ identities referred to in the Discipline Hearing of Jeffrey Klein. The Member’s Counsel did not oppose the request.

The Panel considered the submissions of the College and decided that there be an order prohibiting disclosure including a ban of the publication and broadcasting of the names of the [patients] or any information that could disclose the [patients]’ identities referred to in the Discipline Hearing of Jeffrey Klein.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(c)iii; 2(a); 2(b); 2(c)iii and 3(c)iii of the Notice of Hearing dated August 29, 2019. The Panel granted this request. The remaining allegations against Jeffrey Klein (the “Member”) 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 you were employed as a staff nurse at St. Joseph’s Healthcare in Hamilton, Ontario, 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. in or around July 28, 2012, raised your voice in an inappropriate, unprofessional and/or non-therapeutic manner when dealing with [Patient 1];

b. in or around July 22, 2016, lay on the floor in the hallway with [Patient 2] and while she was crying made inappropriate, unprofessional and/or non-therapeutic comments, such as “all your problems are your own fault, your family doesn’t want you,” and/or “you’ve been mean to them, you’ve done this to yourself” or something to that effect; and/or

c. with respect to [Patient 3], in or around July or August 2016:

i. made the following comments to [Patient 3], “you are a very bad girl,” “bad [Patient 3]” or something to that effect;

ii. left the client naked crying on her bed and repeatedly told her to dress herself; and/or

iii. [withdrawn]; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that while you were employed as a staff nurse at St. Joseph’s Healthcare in Hamilton, Ontario, you abused client(s) verbally, physically and/or emotionally as follows:

a. [withdrawn];

b. [withdrawn]; and/or

c. with respect to [Patient 3], in or around July or August 2016:

i. made the following comments to [Patient 3], “you are a very bad girl,” “bad [Patient 3]” or something to that effect;

ii. left the client naked crying on her bed and repeatedly told her to dress herself; and/or

iii. [withdrawn]; and/or

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 you were employed as a staff nurse at St. Joseph’s Healthcare in Hamilton, Ontario, 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. in or around July 28, 2012, raised your voice in an inappropriate, unprofessional, non-therapeutic and/or abusive manner when dealing with [Patient 1];

b. in or around July 22, 2016, lay on the floor in the hallway with [Patient 2] and while she was crying made inappropriate, unprofessional, non-therapeutic and/or abusive comments, such as “all your problems are your own fault, your family doesn’t want you,” and/or “you’ve been mean to them, you’ve done this to yourself” or something to that effect; and/or

c. with respect to [Patient 3], in or around July or August 2016:

i. made the following comments to [Patient 3], “you are a very bad girl,” “bad [Patient 3]” or something to that effect;

ii. left the client naked crying on her bed and repeatedly told her to dress herself; and/or

iii. [withdrawn].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 1(b), 1(c)i, 1(c)ii, 2(c)i, 2(c)ii, 3(a), 3(b), 3(c)i and 3(c)ii 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’s Counsel 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

Jeffrey Klein (the “Member”) obtained a Baccalaureate Degree in nursing from York University in August 2010.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on March 29, 2011.
The Member was employed at St. Joseph’s Healthcare Hamilton in Hamilton, Ontario (the “Facility”) from July 11, 2011 to September 27, 2016. His employment was terminated as a result of the incidents described below.

THE FACILITY

The Member worked on the Mental Health Inpatient Unit of the Facility (the “Unit”) as a full-time staff nurse.
The Unit contained 30 beds for patients with acute mental health diagnoses, including patients with co-occurring medical conditions and addictions. Many of the patients in the Unit suffer from personality disorders. They are often repeat patients that have previously been admitted to the Unit and are well-known to the staff.
Patients were generally admitted to the Unit for approximately two weeks, though some patients might remain as in-patients in the Unit for up to a year.
The atmosphere on the Unit was often high-stress given the particular characteristics and conduct of the patient population.

THE MEMBER'S ROLE ON THE UNIT

The Member was one of two male nurses on the Unit. He often acted in a leadership role as the Charge Nurse.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

PATIENT 1

Patient 1 had a history of substance-induced psychosis and polysubstance dependence.
On or about July 28, 2012, the Member was assigned to care for Patient 1 at 1900 hours.
If the Member were to testify, he would state that Patient 1 had asked the Member to retrieve her cellular phone so she could get a number from it. The Member was unable to locate her cellular phone and advised her to wait until after he had completed medication rounds so he could look for it more thoroughly. The patient became increasingly agitated and aggressive. She began to yell, swear, slam doors and bang the walls.
The Member asked Patient 1 to calm down and told her that she cannot be screaming on the Unit. He asked her to go to her room to calm down, but Patient 1 refused to return to her room.
In a raised voice that was overheard by colleagues and patients on the Unit, the Member shouted at Patient 1 that if she did not calm down and comply with his request, he would call security and she would be put into seclusion. The volume of the Member’s voice was loud enough to be heard through areas of the Unit which generally do not carry noise from conversations.
The Member then called Security and Patient 1 was placed in seclusion.
Some of the Member’s colleagues who overheard the exchange reported to management the next day that the Member threatened to put Patient 1 into seclusion. Two patients also reported having heard yelling in the Unit.
The Facility investigated the Member’s conduct and determined that the Member had fallen below the standards of practice including the Professional Standards and the Therapeutic Nurse-Client Relationship. The Facility suspended the Member for three shifts.
If the Member were to testify, he would say that he spoke in what he intended to be a loud and assertive tone of voice so that he would be heard by Patient 1.
However, the Member acknowledges that his volume and tone were not acceptable, regardless of the patient’s conduct. The Member admits that it was his responsibility to de-escalate the situation, and to respond to Patient 1 in a clinically-appropriate manner. The Member acknowledges that he was in a position of power over Patient 1, and his conduct could have caused distress to Patient 1, and to the patients who overheard the interaction.

PATIENT 2

Patient 2 was an elderly patient with a diagnosis of dementia, depression, and bipolar affective disorder. She was admitted to the Facility in June 2016.
Patient 2 was admitted to the Facility in June 2016. She was brought to the emergency department by a member of her family, who up to that point had been collaborating to care for Patient 2 in her home. However, Patient 2’s family described that her condition had deteriorated over the prior two months, during which she exhibited moody and verbally abusive behaviour, as well as risky behaviour causing concern for her safety. The family was overwhelmed and felt unable to continue to care for her.
During her stay at the Facility, Patient 2 repeatedly remarked that her family did not love her. Patient 2 was frequently observed to be crying and upset about needing clinical care. She repeatedly commented that her children did not love her, and expressed being upset about the need to live in a retirement home rather than with her children.
On or about July 22, 2016, the Member and Patient 2 had a discussion, a part of which was overheard by one of the Member’s colleagues. The Member was overheard saying to Patient 2 words to the effect that her situation was her own fault, that she had done this to herself, and that her family did not want to continue caring for her at home because she had been mean to them.
If the Member were to testify, he would say that he had a lengthy discussion with Patient 2 during which he was attempting to advise Patient 2 that her situation could be improved if she could maintain a more positive relationship with her children. The Member would also testify that his intentions were to help Patient 2 gain insight into why her family had found it difficult to care for her so that she could correct her behaviour and mend her relationships with her family.
It was not part of Patient 2’s care plan to approach her distress at being hospitalized in this way, and the Member now acknowledges that, given Patient 2’s diagnoses, this was an inappropriate way to discuss these issues with Patient 2.

PATIENT 3

Patient 3 was a developmentally delayed individual with the mental status of an eight- or nine-year-old child. She was admitted to the Facility in May, 2016, after exhibiting aggressive and violent behaviour over the previous several weeks.
Patient 3 was often resistant to prompts for using the toilet and/or showering. She was also resistant to prompts to get dressed or change clothes. She regularly stripped her clothes and/or threw herself to the floor to resist certain requests.
Patient 3's Care Plan called for using firm limits when Patient 3 needed to be redirected, and to remind Patient 3 to use nice words if she was crying or yelling.
In or around July or August 2016, the Member was overheard saying, “Bad, [Patient 3]” and “No, [Patient 3]”, or words to that effect, in a raised voice (using Patient 3’s name where indicated in the quotes above). The Member’s voice was loud enough that two of the Member’s co-workers overheard him from some distance away on the Unit.
One of the Member’s co-workers, [the Co-worker], went into the room to check what was happening. Patient 3 was sitting undressed on the floor of the shower with the shower door open. The Member stood beside Patient 3 repeating, “Bad, [Patient 3]”. [The Co-worker] asked if she could assist, but the Member declined any help.
Shortly afterward, [the Co-worker] again heard the Member loudly speaking to Patient 3. [The Co-worker] again went to check on the situation. Patient 3 was sitting naked on her bed crying. The Member was sitting in a chair in the room directing Patient 3 to get dressed. [The Co-worker] inquired whether the Member needed help, but the Member again declined.
If the Member were to testify, he would say that he understood Patient 3 to require firm direction. The Member would testify that he did not use these phrases to scold or demean Patient 3, but to communicate with her in a manner that she could understand.
The Member acknowledges, however, that his language and tone of voice would reasonably be perceived as demeaning and disrespectful towards the patient. The Member acknowledges that it was not appropriate to call the Patient “bad [Patient 3’s name]” in a raised voice.
On reflection, the Member acknowledges that his conduct was not clinically appropriate. He admits that he should have demonstrated greater respect and empathy to Patient 3, and should have considered the inherent power imbalance in the nurse-client relationship, particularly given the vulnerability of the patient in question.

FACILITY POLICIES

The Facility’s Code of Conduct/Standards of Behaviour (“Code of Conduct”), created October 1, 2014, notes that all employees must align their conduct with the “C.A.R.E. Standards” of Compassion, Attitude, Responsiveness, and Excellence.
The Code of Conduct provides the following guidelines:

We behave in an orderly manner appropriate to the workplace when dealing with patients, visitors, volunteers and colleagues.
We do not engage in loud, abusive, threatening, intimidating or profane language …

In addition, the Facility’s Prevention of Violence in the Workplace Policy, issued March 23, 2015, prohibits “threats or threatening behaviour” and “intrusive conversation or shouting”.

CNO STANDARDS

CNO has published nursing standards to set out the expectations for the practice of nursing. CNO’s standards inform nurses of their accountabilities, and apply to all nurses regardless of their role, job description, or area of practice.

Therapeutic Nurse-Client Relationship Standard

CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) provides guidance to nurses on establishing and maintaining appropriate relationships with patients. The TNCR Standard notes that the therapeutic relationship with patients is at the core of the practise of nursing.
The TNCR Standard places the responsibility for establishing and maintaining the therapeutic nurse-client relationship on the nurse. Therapeutic nursing services “contribute to the [patient’s] health and well-being” and the relationship is based on “trust, respect, empathy and professional intimacy, and requires the appropriate use of power inherent in the care provider’s role.”
The TNCR Standard specifies that nurses meet the standard for “therapeutic communication” through “effective communication strategies and interpersonal skills”. In addition, a nurse meets the standard by:
…being aware of her/his verbal and non-verbal communication style and how clients might perceive it;
modifying communication style, as necessary, to meet the needs of the client (for example, to accommodate a different language, literacy level, developmental stage or cognitive status); …

listening to, understanding and respecting the client’s values, opinions, needs and ethnocultural beliefs and integrating these elements into the care plan with the client’s help; ... [and]

reflecting on interactions with a client and the health care team, and investing time and effort to continually improve communication skills…
Nurses are responsible for ensuring that all professional behaviours and actions meet the therapeutic needs of the patient.
A nurse meets the standard for protecting patients from abuse under the TNCR Standard by:
…not engaging in behaviours toward a client that may be perceived by the client and/or others to be violent, threatening or intended to inflict physical harm; … [and]
not exhibiting physical, verbal and non-verbal behaviours toward a client that demonstrate disrespect for the client and/or are perceived by the client and/or others as abusive…
not neglecting a client by failing to meet or withholding his/her basic assessed needs
The Member admits that he contravened the TNCR Standard through his conduct as described in paragraphs 9 to 33 above.
If the Member were to testify, he would say that he is a loud speaker and that his normal speaking voice is sometimes mistaken for a raised voice.
If the Member were to testify, he would say that all his interactions with patients at the Facility, and the interactions specifically described above in paragraphs 9 to 33, were engaged in by the Member with the intention of assisting the patients in the Unit and not to cause them any harm.
The Member now realizes that the communications described above in paragraphs 9 to 33, amounted to inappropriate and disrespectful behaviour. He should not have threatened to impose seclusion in order to achieve desired behaviours, as he did with Patient 1. He communicated with Patient 2 in a way that could reasonably have been expected to be upsetting to her, and that a reasonable observer would have perceived as inappropriate, in that it risked causing her to feel responsible for her own distress. He communicated with Patient 3 in a way that was disrespectful, failed to respect her dignity, and failed to account for the inherent power imbalance in the nurse-client relationship, and was therefore abusive under the TNCR Standard.
The Member also failed to be aware of his own verbal communication style and how it might be perceived by patients. His communications were perceived as shouting and intimidating.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 1(c)i, 1(c)ii, 2(c)i, and 2(c)ii of the Notice of Hearing, as described in paragraphs 9 to 33 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3(a), 3(b), of the Notice of Hearing, and in particular, his conduct was dishonourable and unprofessional, as described in paragraphs 9 to 33 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3(c)i, and 3(c)ii of the Notice of Hearing, and in particular, his conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 9 to 33 above.

In response to an inquiry from the Panel, College Counsel and Member’s Counsel confirmed that it was agreed between the parties that:

(a) “Patient 1” as referred to in the Agreed Statement of Facts was “[Patient 1]” as referred to in paragraphs 1(a) and 3(a) of the Notice of Hearing;

(b) “Patient 2” as referred to in the Agreed Statement of Facts was “[Patient 2]” as referred to in paragraphs 1(b) and 3(b) of the Notice of Hearing; and

(c) “Patient 3” as referred to in the Agreed Statement of Facts was “[Patient 3]” as referred to in paragraphs 1(c), 2(c) and 3(c) of the Notice of Hearing.

Further, both Counsel agreed that, for the purposes of Allegation 2 in the Notice of Hearing, the facts contained in the Agreed Statement of Facts established verbal abuse by the Member, but not physical or emotional abuse.

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), 1(b), 1(c)i, 1(c)ii, 2(c)i, 2(c)ii, 3(a), 3(b), 3(c)i and 3(c)ii of the Notice of Hearing. With respect to Allegations 2(c)i and 2(c)ii, the Panel found that the Member verbally abused clients. As to Allegations 3(a) and 3(b), the Panel finds the Member’s conduct to be dishonourable and unprofessional. With regard to Allegations 3(c)i and 3(c)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 this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation 1(a) in the Notice of Hearing is supported by paragraphs 9 through 18 and also 43 through 48 in the Agreed Statement of Facts. In a raised voice that was overheard by colleagues and patients on the Unit, the Member shouted at Patient 1 that if she did not calm down and comply with his request he would call security and she would be put into seclusion. The volume of the Member’s voice was loud enough to be heard through areas of the Unit which generally do not carry noise from conversations.

Allegation 1(b) in the Notice of Hearing is supported by paragraphs 19 through 24 and also 43 through 48 in the Agreed Statement of Facts. The Member had a discussion with Patient 2 a part of which was overheard by one of his colleagues whereby he said words to the effect that her situation was her own fault, that she had done this to herself and that her family did not want to continue caring for her because she had been mean to them.

Allegations 1(c)i and 1(c)ii in the Notice of Hearing are supported by paragraphs 25 through 33 and also 43 through 48 in the Agreed Statement of Facts. Again with Patient 3, the Member’s voice was loud enough that two co-workers overheard him from some distance away. The Member stood beside the Patient while she was sitting undressed on the floor of the shower with the shower door open, saying Bad (Patient 3) and No (Patient 3). The Member acknowledges that his language and tone of voice would reasonably be perceived as demeaning and disrespectful towards the Patient. The Member acknowledges that it was not appropriate to call the Patient Bad (Patient 3) in a raised voice and that his conduct was not clinically appropriate.

Allegations 2(c)i and 2(c)ii in the Notice of Hearing are supported by paragraphs 25 through 33 and also 43 through 48 in the Agreed Statement of Facts. The Member communicated with Patient 3 in a way that was disrespectful, failed to respect her dignity and failed to account for the inherent power imbalance in the nurse-client relationship and was therefore verbally abusive under the Therapeutic Nurse-Client Relationship Standard. The Member also failed to be aware of his own verbal communication style and how it might be perceived by patients. His communications were perceived as shouting and intimidating.

With respect to Allegations 3(a) and 3(b), the Panel finds that the Member’s conduct in shouting, demeaning and verbally abusing Patients 1 and 2, was dishonourable and unprofessional as it demonstrated a serious and persistent disregard for his professional obligations. It was inappropriate and improper for the Member to be threatening Patient 1 with seclusion as punishment for her behaviour and inappropriate to discuss the family relationships and living conditions of Patient 2.

Finally with respect to Allegations 3(c)i and 3(c)ii, the Panel finds that the Member’s conduct towards Patient 3 was disgraceful, dishonourable and unprofessional as that conduct shames the Member and by extension the profession. His conduct was also well below the standards of a professional and was unacceptable, as the Member ought to have known. As such, his conduct represented a serious disregard for his professional obligations.

The conduct of the Member in this respect casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member’s Counsel 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:

Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 5 months. This suspension shall take effect from the date this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at his own expense and within 6 months from the date this Order becomes final. If the Expert determines that a greater number of session are required, the Expert will advise the Director of Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months of the date this Order becomes final. 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 7 days before the first meeting, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

Professional Standards;
Therapeutic Nurse-Client Relationship;
Code of Conduct;

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

v. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, and online participation forms;

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

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
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:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
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 18 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:

that they received a copy of the required documents, and
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
All documents delivered by the Member to CNO, 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 mitigating factors in this case were that the Member accepted responsibility and admitted to professional misconduct, which avoided the need for a contested hearing. As well, this was the Member’s first issue with the College and the Member thought his interventions were for the patients’ best interest with no malice intended. The Member feels he has gained insights into appropriate interactions with patients.

The aggravating factors in this case were that the nature and seriousness of the misconduct including verbal abuse was chronicled over a period of years and toward three different patients.

The proposed penalty provides for general deterrence as the publication of this decision and penalty will send a strong signal to the profession and the public at large that the College will not tolerate this sort of behaviour and in particular behaviour involving abuse of patients.

The proposed penalty provides for specific deterrence through a significant suspension, required meetings with the Regulatory Expert and the various terms and conditions that will be imposed on the Member’s certificate of registration upon his return to practice

The proposed penalty provides for remediation and rehabilitation through two meetings with a Regulatory Expert, including completion of related Reflective Questionnaires, online learning modules, decision tools and review of Professional Standards, Therapeutic Nurse-Client Relationship and Code of Conduct of the College.

Overall, the public is protected by this proposed penalty because it provides a specific deterrence and a general deterrence. The proposed penalty demonstrates that the College takes matters of verbal abuse of patients seriously.

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

CNO v Rowe (Discipline Nov 7, 2017)

The member was suspended for six months, was instructed to attend two meetings with a nursing expert and was required to notify her employers of this decision and penalty for a period of 18 months. This conduct was deemed to be more serious because it included physical abuse of patients and bedside care issues therefore incurring a more severe penalty.

CNO v Lento (Discipline September 27, 2017)

The member received a five month suspension of his certificate of registration, two meetings with a nursing expert and was required to notify his employers for a period of 24 months of his hearing. This case involved communication related misconduct and verbal abuse so the conduct was similar and resulted in a similar penalty.

CNO v Agustin (Discipline January 14, 2019)

The member’s certificate of registration was suspended for four months, two meetings with a nursing expert were ordered here and the Member was required to notify employers of his professional misconduct for a period of 18 months. These circumstances occurred over two days and involved only one patient, so it was more limited in scope than the Member’s conduct, but involved physical abuse of the patient.

The Member’s Counsel indicated that he agreed with College Counsel’s submissions concerning the proposed penalty. He reminded the Panel that this was the Member’s first time before the Discipline Committee, that he had cooperated with the investigation, admitted to the allegations and accepted responsibility. The Member thought he was assisting the patients and that he had no malice as his intentions were good. He has now gained insight into his practice and is remorseful.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 5 months. This suspension shall take effect from the date this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

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 7 days before the first meeting, the Member provides the Expert with a copy of:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;

Professional Standards;
Therapeutic Nurse-Client Relationship;
Code of Conduct;

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

v. At least 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, and online participation forms;

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

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
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:

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into his behaviour;

b) For a period of 18 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:

that they received a copy of the required documents, and
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
All documents delivered by the Member to CNO, 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 proposed 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 for the reasons provided by College Counsel. 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.