College of Nurses of Ontario v. Thompson, 2019 ONCNO 132967

PANEL: Dawn Cutler, RN Chairperson Catherine Egerton Public Member Linda Marie Pacheco, RN Member Jane Walker, RN Member Richard Woodfield Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DENISE COONEY for ) College of Nurses of Ontario

and - ) STEVEN THOMPSON ) ANNA LICHTY for Registration No.: 9609553 ) Steven Thompson ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: November 26, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on November 26, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(c), 2(b) and 3(c) of the Notice of Hearing dated October 9, 2019. The Panel granted this request. The remaining allegations against Steven Thompson (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 practicing as a Registered Nurse at Glengarry Memorial Hospital (the “Hospital”), you contravened a standard of practice of the profession, or failed to meet the standards of practice of the profession, in that on or about July 4, 2018:

a. you failed to engage in therapeutic communications with [the Patient];

b. you pushed [the Patient];

c. [withdrawn]; and/or

d. you used excessive force and/or held [the Patient] down on his stretcher.

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 practicing as a Registered Nurse at the Hospital, you verbally, physically, or emotionally abused [the Patient], in that on or about July 4, 2018:

a. you pushed [the Patient];

b. [withdrawn]; and/or

c. you used excessive force and/or held [the Patient] down on his stretcher.

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 practicing as a Registered Nurse at the Hospital, you engaged in conduct relevant to the practice of nursing that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that on or about July 4, 2018:

a. you failed to engage in therapeutic communications with [the Patient];

b. you pushed [the Patient];

c. [withdrawn]; and/or

d. you used excessive force and/or held [the Patient] down on his stretcher.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 1(b), 1(d), 2(a), 2(c), 3(a), 3(b) and 3(d) 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

Steven Thompson (the “Member”) obtained a diploma in nursing from St. Lawrence College in 1995.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on January 5, 1996.
The Member was employed at Glengarry Memorial Hospital (the “Hospital”) from April 2013 until July 6, 2018, when his employment was terminated for cause following the incidents described below.
On February 20, 2019, the Inquiries, Complaints and Reports Committee suspended the Member’s certificate of registration on an interim basis.

THE PATIENT

The Hospital is a facility located in Alexandria, Ontario.
[The Patient] (the “Patient”) was 92 years old at the time of the incident.
The Patient was transported to the Hospital by ambulance at approximately 0800 hours on July 4, 2018, with complaints of recurring abdominal pain. He was exhibiting increased irritation due to complaints of pain.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Member attended to the Patient at approximately 1100 hours on July 4, 2018. At that time, the Patient was in an assessment area, and was attempting to get out of his bed. The Patient was angry, and swearing.
The Member spoke to the Patient in a tone which a witness described as loud and aggressive. The Member used words to the effect of, “there’s children here, you’re going to have to watch your language”, and, “you’re going to break a hip if you don’t sit down”. The Member’s conduct further agitated the Patient.
Unprovoked, the Member forcefully pushed the Patient onto the bed, pinning the Patient down using the Member’s elbow or forearm to put pressure on the Patient’s upper chest/neck area. He held the Patient down while the Patient struggled.
A “Code White”, for violent person, was called in relation to the Patient.
As a result of the Member’s conduct, the Patient sustained bruising to his right eye, his left jaw line, his bicep, the upper right area of his chest, and a scrape to the end of his nose.

HOSPITAL POLICIES

Standards for Inpatient Care

The Hospital’s Standards for Inpatient Care, revised June 2015, provides:

Every patient has the right to be treated with courtesy and respect an in a way free from psychological and physical abuse.

The Standards for Inpatient Care identifies that the Hospital has a “least restraint policy” and that “least restraints intervention” must be “tried, documented and proven unsuccessful” prior to escalating to a more restrictive means of restraint.

Least Restraint Policy

The Hospital’s Least Restraint Policy , revised June 2015, defines “restraints” as:

physical, chemical or environmental measures used to control the physical or behavioural activity of a person or a portion of his/her body.

All nursing staff are required to:

abide by the Patient Restraints Minimization Act and ensure all possible alternative interventions to promote patient safety are exhausted before initiating a restraint.

Patient Abuse Policy

The Hospital’s Patient Abuse policy, updated January 2006 (“Patient Abuse Policy”), defines “patient abuse” as, “mistreatment or injury, or threat to mistreat or injure a patient by a health care provider...”.
The Patient Abuse Policy lists types of patient abuse, including “physical abuse”, defined as, “any unnecessary action that results in bodily harm, discomfort or injury caused by another person”.
Pursuant to the Patient Abuse Policy, the related policies and procedures are included in the orientation for new employees.

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 [or Patient] 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-patient 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:

a. …being aware of her/his verbal and non-verbal communication style and how [patients] might perceive it;

b. modifying communication style, as necessary, to meet the needs of the [patient] (for example, to accommodate a different language, literacy level, developmental stage or cognitive status); …

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

d. recognizing that all behaviour has meaning and seeking to understand the cause of a [patient’s] unusual comment, attitude or behaviour… [and]

e. reflecting on interactions with a [patient] 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.
The TNCR Standard defines “abuse” as:

The misuse of the power imbalance intrinsic in the nurse-client relationship. It can also mean the nurse betraying the [patient’s] trust, or violating the respect or professional intimacy inherent in the relationship, when the nurse knew, or ought to have known, the action could cause, or could be reasonably expected to cause physical, emotional or spiritual harm to the [patient]. Abuse may be verbal, emotional, physical, sexual, financial or take the form of neglect. The intent of the nurse does not justify a misuse of power within the nurse-client relationship.

The TNCR Standard includes examples of abusive behaviours. Verbal and emotional abuse includes sarcasm, retaliation or revenge, teasing or taunting, and an inappropriate tone of voice, such as one expressing impatience. Physical abuse includes hitting, pushing, using force, and handling a patient in a rough manner.
Nurses are required to protect patients from abuse. The TNCR Standard sets out indicators by which the nurse meets this standard:

a. …not engaging in behaviours toward a [patient] that may be perceived by the [patient] and/or others to be violent, threatening or intended to inflict physical harm; … [and]

b. not exhibiting physical, verbal and non-verbal behaviours toward a [patient] that demonstrate disrespect for the [patient] and/or are perceived by the [patient] and/or others as abusive…

c. not neglecting a [patient] 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 7-11, above.

Professional Standards

CNO’s Professional Standards (“Professional Standards”) provides that “[e]ach nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships.” One way of doing so is “demonstrating respect and empathy for, and interest in [patient].”
In terms of accountability, the standard sets out indicators nurses must demonstrate, including:

… ensuring practice is consistent with CNO’s standards of practice and guidelines as well as legislation; [and]
taking action in situations in which [patient] safety and well-being are compromised…

The Member admits that he contravened the Professional Standards through his conduct as described at paragraphs 7-11 above.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1 (a), 1(b), 1(d), 2 (a), and 2 (c) of the Notice of Hearing, as described in paragraphs 7-11 above, in that the Member failed to engage in therapeutic communication with the Patient, pushed the Patient, and used excessive force and held the Patient down on his stretcher.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3(a), 3(b), and 3(d) of the Notice of Hearing, and in particular, that his conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 7-11 above.
With leave of the Discipline Committee, CNO withdraws the following allegations in the Notice of Hearing:

a. 1(c);

b. 2(b); and

c. 3(c).

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in the Notice of Hearing. In particular, the Panel found that the Member committed acts of professional misconduct as alleged in 1(a), 1(b), 1(d), 2(a), 2(c), 3(a), 3(b) and 3(d) in the Notice of Hearing in that the Member failed to meet the standards of practice of the profession and he verbally, physically and emotionally abused a patient by using non therapeutic communication and by pushing and using excessive force to hold a patient down on a stretcher. As to allegations 3(a), 3(b) and 3(d), the Panel finds that the Member engaged in conduct that would reasonably be considered by members of the profession as 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, 20-31 and 32 in the Agreed Statement of Facts when the Member spoke to the patient in a tone which was described as “loud” and “aggressive”. This shows that the Member failed to communicate in a therapeutic manner with the patient.

Allegation 1(b) in the Notice of Hearing is supported by paragraphs 10, 12, 20-28 and 32 in the Agreed Statement of Facts when the Member actually pushed the patient.

Allegation 1(d) in the Notice of Hearing is supported by paragraphs 10, 12, 20-28 and 32 in the Agreed Statement of Facts when the Member used unprovoked excessive force to pin the patient who sustained bruising from the incident.

Allegation 2(a) in the Notice of Hearing is supported by paragraphs 10, 12, 17, 18, 25-28 and 32 in the Agreed Statement of Facts that the Member used physical force when he pushed the patient.

Allegation 2(c) in the Notice of Hearing is supported by paragraphs 10, 12, 17, 18, 25-28 and 32 in the Agreed Statement of Facts when the Member used excessive force when he held the patient down on the stretcher which caused bruising.

With respect to Allegations 3(a), 3(b) and 3(d) in the Notice of Hearing, these allegations are supported by paragraphs 9, 10, 12, 32 and 33 in the Agreed Statement of Facts. The Panel finds that by the Member’s own admission his conduct was disgraceful, dishonourable and unprofessional.

The Member repeatedly breached the Standards of the profession when he failed to engage in therapeutic communications with the patient, pushed the patient and used excessive force when he held the patient down on the stretcher. This conduct demonstrates a serious and persistent disregard for his professional obligations, which members of the profession would reasonably be regarded as unprofessional.

The Member failed to engage in therapeutic communication with a patient. The Member pushed and used force with a patient. The Panel found that by this conduct, the Member verbally, physically and emotionally abused the patient. The Member’s disregard for his patient’s well-being and his obligation as a nurse shames the Member and by extension the profession. The conduct cast serious doubts on the Member’s inherent ability to discharge the higher obligations the public expects health professionals to meet. This conduct would reasonably be regarded by members of the profession as both disgraceful and dishonourable.

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 6 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 that this Order becomes final. If the Expert determines that a greater number of session are required, the Expert will advise the Director, 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 from the date that the Member obtains an active certificate of registration. To comply, the Member is required to ensure that:

i. The Expert has expertise in Nursing Regulation and has been approved by 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:

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,
Code of Conduct, and
Therapeutic Nurse-Client Relationship;

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

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.

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

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 and the Member’s Counsel.

College Counsel submitted that the aggravating factors in this case were:

The allegations are serious;
There was physical and emotional harm; and
The Member showed poor judgement.

The mitigating factors in this case were:

The Member co-operated with the College;
The Member accepted responsibility for the allegations; and
The Member had no prior incidents with the College.

The proposed penalty provides for general deterrence through:

The publication of this decision which will send a strong notice to the profession and the general public that this behaviour will not be tolerated.

The proposed penalty provides for specific deterrence through:

The Penalty includes meetings with a Nursing Expert along with 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:

The Member has received an oral reprimand along with the specific deterrence which should improve the Member’s practice.

Overall, the public is protected because:

The overall proposed penalty provides both specific and general deterrence. The proposed penalty demonstrates that the College takes matters of patient care seriously.

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 vs Rowe (Discipline 2017). This case involved a pattern of disrespectful communication and abusive behaviours towards vulnerable clients. The member took responsibility, participated in the hearing and admitted to the allegations. The member was given a reprimand, a six month suspension, had to attend two meetings with a Nursing Expert and had 18 months of employer notification.

CNO vs Cook (Discipline 2018). In this case, the member did not attend the hearing. The allegations were that the member had made inappropriate comments, threw bunched up paper towels at a clients as well as punch[ed] them in or around the face. The member was given a reprimand, a six month suspension, had to attend two meetings with the Nursing Expert and had 18 months of employer notification.

CNO vs Smith (Discipline 2017). This case involved a member admitting by way of an Agreed Statement of Fact to a hit, or slap of the client, or to grabbing of the client’s shoulder. The member was issued a reprimand and agreed to permanently resign from the College by way of an undertaking.

The Member’s Counsel asked the Panel to accept the Joint Submission on Order and outlined the following mitigating factors:

The Member has co-operated;
The Member was remorseful;
The Member had been a dedicated nurse since 1996 and has a good reputation as a proficient professional;
The Member has taken courses; and
The Member has been suspended since February 2019 such that the total time off work with the six month suspension will be fifteen months.

The Member’s Counsel read out excerpts from letters from patients’ family members and colleagues to show that the Member is a positive nurse.

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 6 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 in advance of the meetings;

ii. At least seven 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,
Code of Conduct, and
Therapeutic Nurse-Client Relationship;

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

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.

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

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 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.

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

I, Dawn Cutler, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.