DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Dawn Cutler, RN Chairperson
Margarita Cleghorne, RPN Member Mary MacMillan-Gilkinson Public Member George Rudanycz, RN Member
Devinder Walia Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for
) College of Nurses of Ontario
- and - )
IAN DAVID LOUGHREY ) NO REPRESENTATION for Registration. No. 8435646 ) Ian David Loughrey
) CHRISTOPHER WIRTH
) Independent Legal Counsel
) Heard: July 15-18, 2019
AMENDED DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) beginning on July 15, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.
As Ian David Loughrey (the “Member”) was not present, the hearing recessed for 10 minutes past the scheduled start time to allow time for the Member to appear. Upon reconvening the Panel noted that the Member was not in attendance and was not represented.
College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing on June 14, 2019. The Panel was satisfied that the Member had received adequate notice of the time, date, place and nature of the hearing. The Panel, therefore, proceeded with the hearing in the Member’s absence. The Member was deemed to deny the allegations.
Publication Ban
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 names of the patients 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 patients, including a ban on the publication or broadcasting of this information.
The Panel considered the submissions of College Counsel and decided that there be an order preventing the public disclosure of the names of the patients 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 patients, including a ban on the publication or broadcasting of this information.
Sealing Orders
Sealing Orders
College Counsel also 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 Exhibits #35, #37, #39, #41, #43 presented in the Discipline hearing of the Member, including a ban on the publication or broadcasting of this information.
The Panel considered the submissions of College Counsel and decided that there be an order preventing the public disclosure of Exhibits #35, #37, #39, #41, #43 presented in the Discipline hearing of the Member, including a ban on the publication or broadcasting of this information.
The Allegations
The Allegations
The allegations against the Member as stated in the Notice of Hearing dated June 11, 2019, 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 working as a Registered Nurse at the Royal Ottawa Health Care Group (the “Hospital”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:
a) on or about July 2, 2015, you stated to your client, [Client A], “now get in there and scrub the black off and don’t come back until you’re a white man” or words to that effect;
b) on or about July 12, 2015, you stated to your client, [Client A], “do you want to come out and be [ ]’s slave” or words to that effect;
c) on or about May 3 to 27, 2016, you failed to assess one or more of your clients and/or failed to document your assessment of one or more of your clients, as set out in Appendix “A”;
d) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client B], in that:
i. you failed to administer ordered medications at bedtime (Clonidine 0.2mg, Divalproex Sodium EC 750mg, Quetiapine 50mg, Beclomethase AQ 50mcg spray, and/or Pantoprazole 40mg);
ii. you failed to take your client [Client B’s] blood pressure before administering Clonidine 0.2mg tablet at bedtime and/or failed to document those blood pressure readings;
iii. you failed to document the administration of ordered medications (Clonidine 0.2mg, Divalproex Sodium EC 750mg, Quetiapine 50mg, Beclomethase AQ 50mcg spray, and/or Pantoprazole 40mg); and/or
iv. you failed to complete an assessment and/or document your assessment, rationale for administration, and effect of a PRN medication, Nabilone 1mg;
e) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client C], in that:
i. you failed to administer ordered medications at bedtime (Penlac, Mirtazapine 45mg, and/or Quetiapine 50mg/ml syrup); and/or
ii. you failed to document the administration of ordered medications (Penlac, Mirtazapine 45mg, and/or Quetiapine 50mg/ml syrup);
f) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client D], in that:
i. you failed to administer ordered medications at bedtime (Aripiprazole 10mg, Melatonin S/L 6mg, and/or Clonazepam 1.0mg);
ii. you administered Clonazepam 0.5mg instead of Clonazepam 1.0mg, which was ordered; and/or
iii. you failed to document the administration of ordered medications (Aripiprazole 10mg, Melatonin S/L 6mg, and/or Clonazepam 1.0mg);
g) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client E], in that:
i. you failed to administer ordered medications at bedtime (Seroquel suspension 100mg and/or Trazadone 150mg); and/or
ii. you failed to document the administration of ordered medications (Seroquel suspension 100mg and/or Trazadone 150mg);
h) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client F], in that:
i. you failed to administer ordered medications at bedtime (Olanzapine 20mg); and/or
ii. you failed to document the administration of ordered medications (Olanzapine 20mg);
i) on or about May 26, 2016, you left your night shift approximately one half hour before the end of the shift and/or before you provided report to your colleagues; and/or
j) on or about February 7, 2017, you failed to observe your client, [Client G], despite a physician’s order for constant observation; 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(13) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at the Hospital, you failed to keep records as required, in that:
a) on or about May 3 to 27, 2016, you failed to document assessments of your clients, as set out in Appendix “A”;
b) on or about May 25 to 26, 2016, you failed to document the administration of ordered medications (Clonidine 0.2mg, Divalproex Sodium EC 750mg, Quetiapine 25mg, Beclomethase AQ 50mcg spray, and/or Pantoprazole 40mg) to your client, [Client B];
c) on or about May 25 to 26, 2016, you failed to document the blood pressure readings of your client, [Client B], before administering Clonidine 0.2mg at bedtime;
d) on or about May 25 to 26, 2016, you failed to document your assessment, the rationale for administration, and effect of a PRN medication, Nabilone 1mg, which you administered to your client, [Client B];
e) on or about May 25 to 26, 2016, you failed to document the administration of ordered medications (Penlac, Mirtazapine 45mg, and/or Quetiapine 50mg/ml syrup) to your client, [Client C];
f) on or about May 25 to 26, 2016, you failed to document the administration of ordered medications (Aripiprazole 10mg, Melatonin S/L 3mg, and/or Clonazepam 1.0mg) to your client, [Client D];
g) on or about May 25 to 26, 2016, you failed to document the administration of ordered medications (Seroquel suspension 100mg and/or Trazadone 150mg) to your client, [Client E]; and/or
h) on or about May 25 to 26, 2016, you failed to document the administration of ordered medications (Olanzapine 20mg) to your client, [Client F]; 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 employed as a Registered Nurse at the Hospital, 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, as follows:
a) on or about July 2, 2015, you stated to your client, [Client A], “now get in there and scrub the black off and don’t come back until you’re a white man” or words to that effect;
b) on or about July 12, 2015, you stated to your client, [Client A], “do you want to come out and be [ ]’s slave” or words to that effect;
c) on or about May 3 to 27, 2016, you failed to assess your clients and/or failed to document your assessment of your clients, as set out in Appendix “A”;
d) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client B], in that:
i. you failed to administer ordered medications at bedtime (Clonidine 0.2mg, Divalproex Sodium EC 750mg, Quetiapine 50mg, Beclomethase AQ 50mcg spray, and/or Pantoprazole 40mg);
ii. you failed to take your client [Client B’s] blood pressure before administering Clonidine 0.2mg tablet at bedtime and/or failed to document those blood pressure readings;
iii. you failed to document the administration of ordered medications (Clonidine 0.2mg, Divalproex Sodium EC 750mg, Quetiapine 50mg, Beclomethase AQ 50mcg spray, and/or Pantoprazole 40mg); and/or
iv. you failed to complete an assessment and/or document your assessment, rationale for administration, and effect of a PRN medication, Nabilone 1mg;
e) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client C], in that:
i. you failed to administer ordered medications at bedtime (Penlac, Mirtazapine 45mg, and/or Quetiapine 50mg/ml syrup); and/or
ii. you failed to document the administration of ordered medications (Penlac, Mirtazapine 45mg, and/or Quetiapine 50mg/ml syrup);
f) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client D], in that:
i. you failed to administer ordered medications at bedtime (Aripiprazole 10mg, Melatonin S/L 6mg, and/or Clonazepam 1.0mg);
ii. you administered Clonazepam 0.5mg instead of Clonazepam 1.0mg, which was ordered; and/or
iii. you failed to document the administration of ordered medications (Aripiprazole 10mg, Melatonin S/L 6mg, and/or Clonazepam 1.0mg);
g) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client E], in that
i. you failed to administer ordered medications at bedtime (Seroquel suspension 100mg and/or Trazadone 150mg); and/or
ii. you failed to document the administration of ordered medications (Seroquel suspension 100mg and/or Trazadone 150mg);
h) on or about May 25 to 26, 2016, you provided inadequate care and/or inadequately documented the care you provided to your client, [Client F], in that
i. you failed to administer ordered medications at bedtime (Olanzapine 20mg); and/or
ii. you failed to document the administration of ordered medications (Olanzapine 20mg);
i) on or about May 26, 2016, you left your night shift approximately one half hour before the end of the shift and/or before you provided report to your colleagues; and/or
j) on or about February 7, 2017, you failed to observe your client, [Client G], despite a physician’s order for constant observation.
Appendix A
Date
Client
Nature of Assessment/Documentation
1
May 3, 2016
[Client H]
ADL Assessment, Suicide Risk, Aggressive Incident Scale, and Privilege Level Forensic Interventions, Mental Status Assessment;
2
May 7, 2016
[Client I]
Mental Status Assessment;
3
May 8, 2016
[Client I]
Mental Status Assessment;
4
May 10, 2016
[Client J]
Mental Status Assessment;
5
May 26 to 27, 2016 (night shift)
[Client K]
Mental Status Assessment;
6
May 27 to 28, 2016 (night shift)
[Client L]
Mental Status Assessment;
7
May 25 to 26, 2016 (night shift)
[Client M]
Progress Note of status during shift;
8
May 25 to 26, 2016 (night shift)
[Client B]
Progress Note of status during shift;
9
May 25 to 26, 2016 (night shift)
[Client C]
Progress Note of status during shift;
10
May 25 to 26, 2016 (night shift)
[Client N]
Progress Note of status during shift;
11
May 25 to 26, 2016 (night shift)
[Client O]
Progress Note of status during shift;
12
May 25 to 26, 2016 (night shift)
[Client D]
Progress Note of status during shift;
13
May 25 to 26, 2016 (night shift)
[Client E]
Progress Note of status during shift; and/or
14
May 25 to 26, 2016 (night shift)
[Client F]
Progress Note of status during shift
Member’s Plea
Member’s Plea
Given that the Member was not present nor represented, he was deemed to have denied the allegations in the Notice of Hearing. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.
Overview
Overview
The Member has been registered with the College since 1984. He has been an employee of the Brockville Mental Health Centre, which is a part of the Royal Ottawa Health Care Group, his entire nursing career. The Member worked primarily in the Forensic Treatment Unit (“FTU”) but also took shifts in the Secure Treatment Unit (“STU”). Both units contained high acuity clients. The FTU housed individuals who were interacting with the criminal justice system. Some clients were being assessed to determine if they were not criminally responsible for the criminal acts with which they had been charged and if they were fit to stand trial. Others had been assessed as not criminally responsible or fit to stand trial and were receiving treatment. The STU was a part of the Ministry of Corrections. It was a hybrid unit. It housed clients who had serious mental diagnoses who had been found guilty of criminal acts and who were sentenced to incarceration.
The Member is alleged to have committed professional misconduct, in regard to a number of standards of practice, in both units of the Hospital during the period of time between July 2015 and February 2017. These allegations include: making racial slurs to a client of colour on two separate occasions, leaving his shift early without providing the required report to his colleagues, failing to comply with a doctor’s order for constant observation of a client, and failing to assess clients and keep records.
The issues to be determined are as follows: (a) did the Member make racial slurs to a client on two separate occasions? (b) did the Member leave his shift early without giving report? (c) did the Member fail to provide constant observation to a client as required by a doctor’s order? (d) did the Member fail to assess clients? (e) did the Member fail to keep records? (f) did the Member fail to provide adequate care? (g) did the Member commit professional misconduct by engaging in conduct that would be regarded by members of the professions to be disgraceful, dishonourable or unprofessional?
The Panel heard from 5 fact witnesses and a qualified expert in nursing. The Panel was given 60 exhibits to consider. The Panel found that the Member committed professional misconduct by failing to meet the standards of practice, failing to keep records as required and engaging in conduct that would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.
The Evidence
The Evidence
Did the Member Make Racial Slurs Toward a Client?
Did the Member Make Racial Slurs Toward a Client?
[Witness 1], the Member’s Program Manager, testified that she received an email from [Witness 2], an RPN at the Hospital, regarding two incidents involving the Member and a client of colour (Exhibit #4). In her email, [Witness 2] quoted the Member as saying to [Client A] as he was about to shower “now get in there and scrub the black off and don’t come back until you’re a white man.” On another occasion, [Witness 2] quoted the Member as saying to [Client A] “you want to come out and be [ ]’s slave.” Following the receipt of the email, [Witness 1] met with [Witness 2] and then reported the incidents to Human Resources as well as her Director. [Witness 1] also met with the Member who admitted the first incident saying that what he said was done in a “tongue and cheek” manner. The Member denied the second incident saying that his words might have been misinterpreted as he had a tendency to mumble.
[Witness 2] was definite in her testimony that the words she reported were the ones used by the Member. She testified that she felt “astonished and appalled” when she heard such a “racial slur”. She acknowledged that she did not report the first incident initially because of “fear” as she was a new hire, a casual RPN and because the Member was her Team Lead.
[Witness 1] testified that in light of the evidence and the Member’s admission regarding the first incident, the Hospital concluded that he made both comments. The Member was given a 30 day unpaid suspension and was required to review specific College modules in order to improve his nursing practice. (Exhibit #7). The Member, according to [Witness 1], completed the requirements after his return to work and after prompting from his union.
The Panel deemed [Witness 1] to be a credible witness. She had generally good recall and readily admitted if she could not remember some facts. Her answers were straight forward and direct.
[Witness 2] was also deemed to be a credible witness as she presented the facts with confidence and was able to recall the emotions she felt during the incidents. [Witness 2’s] memory of the Member’s statements were clear and did not falter.
Professional Standards and Hospital Policies
Professional Standards and Hospital Policies
[Witness 1] testified to the Respectful Workplace Policy of the Royal Ottawa Health Care Group in Exhibit #6. It states, “Disrespectful behaviour, discrimination and harassment in connection with the workplace are unacceptable and will not be tolerated.”
The Panel received Expert Opinion evidence from Kamini Kalia (“Ms. Kalia”) who was accepted by the Panel as an expert in standards of care and professional obligations for nursing in psychiatric in-patient units. Ms. Kalia provided her expert opinion on a Hypothetical (Exhibit #55) provided to her by the College. She opined that conduct, such as what was described in the Hypothetical (paragraphs 13-15), where a Member uses phrases such as “scrub the black off” and “be [ ]’s slave” is a breach of the standards of practice.
The Panel was referred to Exhibit #58 which is the Therapeutic Nurse-Client Relationship document Revised 2006. Ms. Kalia stated that such comments are “racist” and “discriminatory” and are in violation of this standard and should “never be used by a professional.” She stated that a nurse is expected to work collaboratively with clients so that trust can develop and professionalism can be maintained. Communication needs to be done with kindness, compassion and empathy so that collaborative goals can be established with the client. Ms. Kalia stated that humour can be used but that it is a “slippery slope”. On page 16 of the Therapeutic Nurse-Client Relationship Revised 2006, it states that verbal and emotional abuse can take the form of “sarcasm” and “cultural/racial slurs.”
Did the Member Leave his Night Shift early and Fail to give Report?
Did the Member Leave his Night Shift early and Fail to give Report?
[Witness 1] testified that the Member had “floated” to the STU on the night of May 25, 2016 because they were short an RN. [Witness 1] testified that the Member assumed the role of charge nurse when he was there. [Witness 3], RN testified and provided evidence regarding the morning of May 26, 2016. She was the on-coming nurse in the STU when the Member, as Team Lead, was finishing his night shift. [Witness 3] testified to the role and responsibilities that the Member had as night Team Lead. These included giving a report to on-going staff. She testified that she did not receive a report from the Member. She also discovered that the assignment sheet had been completed by the Member for the wrong unit. [Witness 3] sought out the Member and found him at the elevator as he was about to leave the unit approximately one half hour prior to the end of shift. The Member returned to the unit on her request. According to [Witness 3], the Member then stated that he had nothing to report and nothing to say. When asked about a specific, high acuity client who had recently transferred into the unit and was assigned to the Member, the Member reportedly replied, “Who is that?” The Member then left the unit without making any further comments or contributions. [Witness 3] reported that [ ], the charge nurse, was present as well as other day shift nurses when the incident occurred.
[Witness 3] was deemed to be a credible witness. She spoke calmly and confidently. She effectively communicated the context and the atmosphere of the unit the morning of May 26, 2016. Her recollection of the incident was good and what she could not remember, she did not comment on. She gave clear direct answers to questions.
Professional Standards
Professional Standards
The expert witness, Ms. Kalia, testified that the Member failed to meet the standards of practice when he left the unit a half hour before the end of shift. This expectation is referenced under Accountability in the document Professional Standards, Revised 2002. On page 4 of the Professional Standards, it states that an indicator of accountability is when nurses share their knowledge and expertise with others to meet client needs. It also states that a nurse in an administrator role needs to ensure that staffing decisions are in the best interests of clients and professional practice. Ms. Kalia stated that the requirement to stay until the end of shift would be an expectation of employment, as well as a union requirement. Failing to give report can affect continuity of care, patient safety, care planning and team collaboration. Ms. Kalia testified that, by not giving report, it suggests that care may not have been provided to the client during the shift. Ms. Kalia stated that this would be “neglect”.
Did the Member fail to keep Records during the month of May 2016, fail to assess clients, fail to administer and document ordered medications, and administer an incorrect dose?
Did the Member fail to keep Records, assess clients, and administer medications?
Although the Member worked primarily in the FTU, he also completed shifts in the STU. [Witness 1] explained the different documentation requirements in each unit. In the FTU, nurses are required to assess and electronically document five assessments at least once per shift for each client. These assessments include: Mental Health Assessments, Activities of Daily Living, Aggressive Incidents Scale, Suicide Risk and Privileges Level Assessment. Although [Witness 1] testified that these are all checklist assessments, there is a section where Progress Notes could be added if needed. [Witness 1] testified that it was “not permissible”, however, to use Progress Notes in lieu of the assessment requirement. As the Member was not given the role of medication nurse in the FTU, he did not have to document the administration of medications there.
[Witness 1] explained that on the STU, paper documentation was used for patient records. Nurses were to complete their Mental Health Assessments and other assessments as progress notes on long blank sheets of paper. On the STU, nurses were required to administer medications to their clients and document the administration of these medications in the medication administration record (“MAR”). [Witness 1] testified that when she met with the Member, he admitted not documenting medications in the MAR.
On the morning of May 26, 2016, the Member’s conduct on the STU precipitated an investigation into his charting. Exhibit #10 is an email from [ ] to [Witness 1] which states that on May 25, “Ian failed to chart on all but one of the assigned residents. 2100 hours medications were not signed.” Exhibit #29 is the assignment sheet for STU for May 25, 2016 which indicates the initials of the 8 clients who were assigned to the Member. It also includes the hand-written notes by [Witness 3] who wrote that those clients were not charted and that [Client E’s] chart was illegible. In her testimony, [Witness 3] stated that she completed the additional notes (except one) on the bottom of Exhibit #29 which listed the various tasks not completed by the Member. These included not completing the group names on the white board, not doing the Kardex, not doing the changeover sheet from 3E and not providing a report. The following are clients that were assigned to the Member for the May 25-May 26th, 2016 shift in the STU.
[Client M]: Exhibit #60 shows no progress notes completed by the Member for [Client M].
[Client B]: Exhibit #34 shows no progress notes completed by the Member. Exhibit #35 is the MAR for [Client B]. It shows that the 5 medications that were ordered were not documented as given even though they were withdrawn by the Member (Exhibit #30). The Nursing Expert stated in her testimony that if it is not documented, it did not happen. Exhibit #34 does not indicate that the Member took [Client B’s] blood pressure and if he determined whether the prescribed Clonidine should be held or given. There is no documentation showing that the Member gave Clonidine to [Client B]. [Witness 1] testified that it is the expectation that the assigned nurse would initiate a blood pressure reading as it is needed to determine whether it is safe to give Clonidine. Nabilone was ordered as a PRN for [Client B] as noted in Exhibit #35. The Member did not document whether it was given to [Client B] even though it had been withdrawn. The Member did not complete or document any assessments of [Client B] during his entire shift. The Nursing Expert stated that Nabilone is a controlled substance and, as a result, requires “increased management”.
[Client C].: Exhibit #36 shows no progress notes completed by the Member for [Client C]. Exhibit #37 is the MAR for [Client C]. The Member did not sign the medications as being given to [Client C].
[Client N]: Exhibit #32 shows no progress notes completed by the Member for [Client N].
[Client O]: Exhibit #33 shows no progress notes completed by the Member for [Client O].
[Client D]: Exhibit #38 shows no progress notes completed by the Member for [Client D]. Exhibit #39 is the MAR for [Client D]. It does not show that the Member administered the ordered medications. Exhibit #30 is the Acudose-RX Events for [Client D]. It shows that in regard to [Client D], the Member was required to remove 1.0 mg (two packets of .5 mg) of Clonazepam but only .5 mg was withdrawn. It also states, “Discrepancy Created – Expected 38, end QTY 39”.
[Client E]: Exhibit #40 shows some illegible writing in the progress notes of May 25, 2016. Exhibit #41 shows that the Member gave the ordered Seroquel and signed the MAR but he did not give the ordered Trazadone. Exhibit #30 is the Acudose-RX Station report. It indicates that a 50mg tablet of Trazadone was removed by the Member. There is no record of Seroquel being removed.
[Client F]: Exhibit #42 shows no progress notes completed by the Member for [Client F]. Exhibit #43 is the MAR and it does not show that the Member administered the ordered medications for [Client F].
The following are the Member’s clients that were assigned to him in the FTU during the month of May 2016.
[Client H]: Exhibit #19 shows that no assessments were completed by the Member during his May 3, 2016 shift for [Client H].
[Client I]: Exhibit #22 shows that the Member did incomplete charting on [Client I] during his May 7, 2016 shift. The Member did 4 assessments but did not do the Mental Health Status Assessment.
[Client I]: Exhibit #23 shows that the Member did incomplete charting on [Client I] during his May 8, 2016 shift. The Member did 4 assessments but did not do the Mental Health Status Assessment.
[Client J]: Exhibit #24 shows that the Member did incomplete charting on [Client J] during his May 10, 2016 shift. The Member did 4 assessments but did not do the Mental Health Status Assessment.
[Client K]: Exhibit #26 shows that the Member did incomplete charting on [Client K] during his May 26 to 27, 2016, night shift. The Member did 4 assessments but did not do the Mental Health Status Assessment.
[Client L]: Exhibit #28 shows that the Member did incomplete charting on [Client L] during his May 27 to 28, 2016, night shift. The Member did 4 assessments but did not do the Mental Health Status Assessment.
Professional Standards and Expectations regarding Record Keeping
Professional Standards and Expectations regarding Record Keeping
Ms. Kalia, the Nursing Expert, testified as to the College’s standards in regard to Professional Standards, Revised 2002, Documentation, Revised 2008 and the Therapeutic Nurse-Client Relationship, Revised 2006. She was asked by College Counsel to refer to the Hypothetical in Exhibit #55.
Ms. Kalia emphasized the importance of a nurse completing all required checklist assessments including the Mental Health Status Assessment, Daily Living Assessment (ADL), Aggressive Incidents Scale, Suicide Risk Assessment and the Privileges Level Assessment. She stated that the purpose of the checklist format, within these assessments, is to standardize documentation for nurses and other staff. Its purpose is to make the trends more visible and to determine if a client has made progress. It also addresses the conditions of a disposition. She stated that you cannot trend a narrative. It’s not standard. She testified that, especially in a FTU, it is integral that a nurse assess the changes in a client’s mental health by completing the Mental Health Status Assessment and by evaluating various categories in it such as the client’s: mood, behaviour, cognition, thought content and perceptions. Progress notes cannot replace the checklist. The assessments are done with an emphasis on engagement. Although the Mental Health Assessment is done, at a minimum, once per shift, on-going assessment is needed to determine if there have been any changes to the baseline.
Throughout her testimony, Ms. Kalia, reiterated that if a member has failed to conduct a required assessment the member is in breach of the standards of practice. She stated that the Member is in “breach of the standards of practice.” If a member did not administer ordered medications or did not document, she opined that the member would be in breach of the standards of practice for Medication. Ms. Kalia referred the Panel to the Documentation Standard (Exhibit #57) which states that a nurse meets the standard by “ensuring that documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessments, planning, intervention (independent and collaborative) and evaluation” and by “documenting both objective and subjective data”.
Ms. Kalia was asked by College Counsel to opine on medications that are withdrawn and not documented as given by a nurse. Ms. Kalia opined that that would be a “breach of the Medication standard” as an order requires that medication is prescribed at a particular frequency. If the medication was not given, those reasons would have to be documented, for example if it was refused, if it was wasted, or if it was returned to the ADM.
Ms. Kalia was asked by College Counsel to opine on a situation where a member failed to take a client’s blood pressure when the client had been prescribed Clonidine. Ms. Kalia opined that the member would be in “breach of the standards of practice for Medication” as the nurse would not be following the specific order which required that the medication would be held if the client’s blood pressure was too low. Clonidine is an anti-hypertensive medication. She further commented that if a nurse took the blood pressure but did not document it “It did not happen if it was not documented.”
Ms. Kalia was asked by College Counsel to opine about the PRN administration of Nabilone. Ms. Kalia opined that before administering a PRN medication, an assessment must be done. When PRN medications are given, a nurse also needs to do follow-up and determine whether it is effective and/or if there are any side effects. Again, Ms. Kalia stated that if an assessment is not documented, it is not done and is a breach of the Documentation Standard.
Ms. Kalia was asked regarding the importance of legible documentation. She referred the Panel to the Documentation Standard which states that a nurse meets the standard by “ensuring that hand-written documentation is legible.”
Did the Member fail to provide Constant Observation to a Client as Required by a Doctor’s Order?
Did the Member fail to provide Constant Observation to a Client?
[Witness 4] is an RN who has been registered with the College since 1994. She is currently working at the Brockville Mental Health Centre. She testified to the events involving the Member that occurred on February 7, 2017. [Witness 4] stated that the Member had completed the night shift and was working over-time until 1130 hours. The Member was not assigned a patient load nor was he expected to document or administer medications. Instead, [Witness 4], as Team Lead, assigned the Member to do constant observation (C.O.) on [Client G] from 0700 to 0900 hours. She spoke to him personally to give him his assignment. Exhibit #48 is the assignment sheet stating the Member’s assignment as the Constant Observation nurse. The expectation, according to [Witness 4], was that the Member needed to be with [Client G] at all times while staying an arm’s length distance away from him. If the client was in his room, the Member was expected to stay in the hallway. At approximately 0840 hours, [Witness 4] attended the Safety Huddle in the nursing care station. She recalled that the Member was there and providing a “lot of reporting”. [Witness 4] stated that, if a staff member was on C.O., he/she was not expected to be in the Safety Huddle. The Safety Huddle was interrupted when an upset client came and stated that he had been hit by [Client G]. [Witness 4’s] first response, was to ask, “Who’s on constant?” She acknowledged that she had not memorized the assignment sheet. When she reviewed the assignment sheet, she noted it was the Member. The Panel viewed video documentation (Exhibit #49) of the STU from 0700 until approximately 0846. Between 0815 until 0845 [Client G] was seen heading to the washroom, having breakfast and wandering around the hallways. At 0846, [Client G] was observed striking another client. [Witness 4] was not part of the follow-up investigations regarding the Member.
[Witness 4] was deemed to be a credible witness. Her observations were detailed and she provided context regarding the incident. [Witness 1’s] testimony corresponded with [Witness 4’s]. Exhibit #46 is a written account of the verbal order of [the Physician] who stated, “Patient will be on constant observation from 0700H to 1900H, unless patient is in his room then implement routine observation overnight from 1900H to 0700H.”
Standards and Policies regarding Constant Observation (C.O.)
Standards and Policies regarding Constant Observation (C.O.)
[Witness 1] interpreted [the Physician’s] C.O. order (Exhibit #46) to mean that [Client G] would be on routine observation when in his room and on constant observation when he was out of his room. She stated that [Client G’s] nurse would be responsible for following him around “wherever he went” while maintaining an arm’s length distance. It was expected, according to [Witness 1], that there would be no barriers (such as furniture) between the nurse and the client. [Witness 1] was taken to Exhibit #47 which is the Levels of Observation and Authorized Passes for the Royal Ottawa Health Group. On section 6.5.2, it states that “The patient’s HCP (health care provider) is responsible and will be held accountable to: Ensure the patient on C.O. remains in their view and under their direct supervision at all times.” [Witness 1] reviewed the video footage after the incident. The Member was put on leave February 10, 2017 as noted in Exhibit #50 which is a letter from the Director of Patient Care, [ ] to the Member. On February 15, 2017, the Member’s employment was terminated immediately (Exhibit #51), and a report was sent to the College regarding the Member’s termination.
The Nursing Expert, Ms. Kalia, opined that the Member “did not meet the standards of practice relating to Mental Health Standards” in failing to be aware that [Client G] was not in his room. She stated that most mental health patients require increased monitoring and support and interactions with staff. Constant Observation is “not just watching”; it is utilizing the expectations inherent in the Therapeutic Nurse-Client Relationship, Revised 2006. Engagement is required, not just keeping an arm’s length distance. The Member would be required to see him at all times and have conversations with him. The Member’s conduct, Ms. Kalia opined, is a “breach of the standards of practice by not providing Constant Observation to the most sick patients.” She stated that increased monitoring and assessment is necessary to prevent any incidents of harm. She stressed the importance of maintaining a close proximity (i.e. arm’s length distance) to the client under C.O. She noted that in the Hypothetical the Member was described as being in the nursing station.
Final Submissions
Final Submissions
College Counsel acknowledged that the burden of proof rests with the College. The standard of proof is on the balance of probabilities based on clear, cogent and convincing evidence. College Counsel submitted that the evidence reveals that the Member demonstrated a distinct lack of empathy, professionalism and respect. The Member’s conduct shows a concerning laxity in assessment and documentation.
The Member, College Counsel stated, elected not to participate in the Disciplinary process and was therefore deemed to have denied all the allegations. His absence, as a result, does not give the Panel a competing narrative or additional evidence that might help with its analysis. College Counsel asked the Panel to use the seminal case of Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services (1985), 1985 2053 (ON HCJ), 51 O.R. (2d) 302 when determining the credibility of the witnesses who testified.
Regarding the July 2015 incidents, being the allegations that the Member used racial slurs, [Witness 2], directly observed and heard the Member’s two comments. Her summary of the events is in Exhibit #4. College Counsel submitted that [Witness 2] was reliable and credible and that she had nothing to gain by reporting the Member’s conduct. When the Member was first investigated, he did admit saying the first comment but tried to lessen its impact by saying that it was meant “tongue in cheek”. College Counsel submitted that we can rely on his admission. Although the Member denied the second comment, he has not come forward, under oath, to deny it at this disciplinary hearing. The Nursing Expert gave opinion evidence and stated that cultural or racial slurs constitute “verbal abuse”. She further stated that racist statements, made even in jest, have no place in discussions between nurses and their patients. College Counsel submitted that the Member’s comments, especially in this context are disgraceful, dishonourable and unprofessional.
Regarding the May 2016 incidents relating to a failure to keep records and administer medications, [Witness 1] gave evidence regarding her audit of the Member’s charts. In her audit, she discovered that there were gaps in the Member’s charting. [Witness 1] described, in her testimony, the documentation obligations in the FTU and the STU. Both units require the nurses to complete a Mental Health Assessment on each patient at least once a shift. Ms. Kalia, the Nursing Expert, testified that this is not just this Hospital’s requirement but rather a generally accepted standard of mental health nursing.
The evidence showed that there were 14 incidents with clients when documentation was missing. There is evidence that shows that the Member was working the particular shifts in question. Both FTU and STU charts were reviewed and marked as exhibits. [Witness 1] gave evidence regarding the different charting requirements in the FTU and STU. Exhibits #13 - #17 are blank copies of the 5 required assessments in the FTU. The Panel received excerpts of charts where it could be seen how charting was supposed to occur in the FTU and was able to compare it to what the Member did. In the FTU, [Client H] had no assessments completed. [Clients I, J, K, and L] had some assessments done but the Mental Status Health Assessments were not done by the Member for any client. College Counsel submitted that the Panel has sufficient evidence from the exhibits to make a finding that the Member failed to assess and failed to document. The Nursing Expert stated that if a nurse does not document, it did not happen. The Member had an obligation to document in order to demonstrate he had done the assessments. College Counsel submitted that the Panel can make a finding on failure to assess and on a failure to document.
In the STU, nurses were also required to document assessments. Their documentation was to be done in the Progress Notes (which were hand written). [Witness 1] took the Panel through the Progress Notes for the 8 clients assigned to the Member for the night shift on May 25 to 26, 2016. The only documentation during that shift was illegible notes regarding [Client E]. The Nursing Expert testified that illegible notes do not constitute sufficient documentation. [A Manager] (Exhibit #10) completed an audit in the STU and found that the 2100 hours medications were not signed for by the Member. The Member also admitted to [Witness 1] that he did not administer medications that he withdrew. College Counsel submitted that the Panel can rely on this because the Member made admissions against his own interest. College Counsel submitted that this evidence, together with the evidence of the Nursing Expert, established that the failure to administer and document are both breaches of the standards of practice and that a failure to document is a failure to keep records.
In regard to the allegation that the Member left his shift early without giving report, College Counsel referred the Panel to the testimony of [Witness 3]. She was struck by the Member’s conduct when he left early and did not give a report particularly around a high acuity client. The Nursing Expert, Ms. Kalia, stated that leaving a shift early and failing to provide a substantive report is a breach of the standards of practice regarding Accountability.
College Counsel asked the Panel to make a finding that the Member’s conduct would be regarded by members of the profession as disgraceful, dishonourable and unprofessional.
As the Member was not present or represented, the Panel did not receive any additional submissions.
Decision
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 1(a), (b), (c), (d)(i)(ii)(iii)(iv), (e)(i)(ii), (f)(i)(ii)(iii), (g)(i)(ii), (h)(i)(ii), (i), (j), 2(a), (b), (c), (d), (e), (f), (g) and (h). In regards to Allegations #3(a), (b), (c), (d)(i)(ii)(iii)(iv), (e)(i)(ii), (f)(i)(ii)(iii), (g)(i)(ii), (h)(i)(ii), (i) and (j), the Panel finds that the Member committed acts of professional misconduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional by failing to keep records and by engaging in conduct that casts serious doubt on the Member’s moral fitness and his inherent ability to discharge the higher obligations the public expects professionals to fulfill.
Reasons for Decision
Reasons for Decision
The Panel heard from 5 fact witnesses and reviewed 60 Exhibits to determine whether the Member committed acts of professional misconduct. The Panel carefully evaluated the evidence as it related to the major issues in the allegations and when assessing credibility, used the factors set out in Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services. As the Member did not participate in the disciplinary process, the Panel was not provided with any additional information that might have given the Panel an increased insight into the Member’s conduct.
Allegations 1(a) & (b): Did the Member make Racial Slurs Toward a client?
Allegations 1(a) & (b): Did the Member make Racial Slurs Toward a client?
The Panel relied heavily on the email sent by [Witness 2] (Exhibit #4) describing the incidents on July 2, & July 15, 2015. [Witness 2’s] testimony corresponded with her email. It was her shock at such comments that caused her to report the Member’s conduct to [Witness 1]. She did this while being fearful because of the fact she was a casual RPN and the Member was her Team Lead. The Member’s admission, to [Witness 1], regarding allegation 1(a) was accepted by the Panel. The Member’s denial to [Witness 1] of the second incident on July 12, 2015 could not be accepted by the Panel given his admitted misconduct on July 2, 2015. Given [Witness 2’s] clear and unchanging recollection of what occurred, the Panel is convinced both incidents did, in fact, happen. The Panel also accepts the Nursing Expert’s opinion that is corroborated by the Therapeutic Nurse-Client Relationship document which states that verbal and emotional abuse includes “sarcasm” and any “cultural/racial slur.” The Member’s conduct is a clear breach of the standards of practice.
Allegations 1(i), 3(i): Did the Member leave his night shift approximately one half hour before the end of shift and fail to report?
Allegations 1(i), 3(i): Did the Member leave his night shift early and fail to report?
The Panel relied heavily on the testimony of [Witness 3] who testified that she found the Member at the elevator attempting to leave the unit one half hour before his shift ended on May 26, 2016. He had not given a report to the on-coming staff or completed the assignment sheet for the on-coming staff. Her concern regarding his conduct was reinforced when the Member returned to the unit stating he had nothing to say regarding his clients and when he did not seem to recognize the name of a high acuity client who had been on his caseload that evening. The Member then left the unit without further comment. [Witness 3] was a credible witness who spoke clearly and directly and had a good recall of the events. Her testimony was accepted as credible by the Panel. The Panel accepted the Nursing Expert’s opinion that the Member’s conduct in this allegation is a breach of the standards relating to Accountability in the Professional Standards document where it references the importance of sharing nursing knowledge and expertise with others.
Allegations 1(c), 1(d) (ii), 1(d) (iv), 2(a), 3(c), 3(d) (ii), 3(d) (iv): Did the Member fail to assess clients?
Allegations 1(c), 1(d) (ii), 1(d) (iv), 2(a), 3(c), 3(d) (ii), 3(d) (iv): Did the Member fail to assess clients?
The Panel received many documents into evidence relating to the Member’s failure to assess clients in the FTU and in the STU. In the FTU, the Panel accepts that the Member was negligent in completing the electronic Mental Status Assessments of 5 clients during the month of May 2016. On most occasions the Member completed the other 4 assessments but on May 3, 2016 one client, [Client H], underwent no assessments. In the STU, the Panel accepts that the Member failed to complete Progress Notes on the 8 clients who were assigned to him the night shift of May 25 to 26, 2016. The Panel viewed several exhibits which showed the redacted documentation of other nurses. Within those, there was clear evidence of the Member’s lack of assessment. This failure to assess is a disservice to the clients as it is only with assessment that proper programming and medication dosages can be determined.
In regard to [Client B], the Member failed to assess his blood pressure. This was a requirement of the order (Exhibit #35) because, if the client’s blood pressure was less than 90/50, the Clonidine was supposed to be held. The Member also failed to assess [Client B] before or after Nabilone was withdrawn (Exhibit #30). The Panel accepts the Nursing Expert’s testimony relating to the importance of assessing a client prior to giving a PRN medication especially when it is a medication that is a controlled substance. The Panel agrees with the Nursing Expert when she testified that this conduct is a breach of the standards of the profession. If a member does not assess, interventions cannot be completed.
Allegations 1(d) (i), 1(d) (iii), 1(e) (i), 1(e) (ii), 1(f) (i), 1(f) (ii), 1(f) (iii), 1(g) (i), 1(g) (ii), 1(h) (i), 1(h) (ii), 2(b), 2(c), 2(e), (f), (g), (h), 3(d) (i), 3(d) (iii), 3(e) (i), 3(e) (ii), 3(f) (i), 3(f) (ii), 3(f) (iii), 3(g) (i), 3(g) (ii), 3(h) (i), 3(h) (ii): Did the Member fail to administer and document ordered medications?
Allegations 1(d) (i), 1(d) (iii), 1(e) (i), 1(e) (ii), 1(f) (i), 1(f) (ii), 1(f) (iii), 1(g) (i), 1(g) (ii), 1(h) (i), 1(h) (ii), 2(b), 2(c), 2(e), (f), (g), (h), 3(d) (i), 3(d) (iii), 3(e) (i), 3(e) (ii), 3(f) (i), 3(f) (ii), 3(f) (iii), 3(g) (i), 3(g) (ii), 3(h) (i), 3(h) (ii): Did the Member fail to administer and document ordered medications?
For [Clients B, C, D, E, F and G] the Panel was assured by looking at the assignment sheet (Exhibit #25) that the Member was working the night of May 25 to 26, 2016.
Regarding [Client B], Exhibit #30 shows that the medications listed in the allegations were withdrawn but not documented as given in the MAR (Exhibit #35).
Regarding [Client C], Exhibit #37 is the MAR and does not indicate that the ordered medications were given to [Client C].
Regarding [Client D], Exhibit #39 is the MAR for [Client D]. It does not show that the Member administered the ordered medications.
Regarding [Client E], Exhibit #41 shows that the Member gave the ordered Seroquel and signed the MAR but did not administer Trazadone or document why it was not given.
Regarding [Client F], Exhibit #43 shows that the Member did not give the ordered medications as noted by the blank column under May 25 in the MAR.
The Panel accepts the Nursing Expert’s opinion that if something is not documented, it did not happen. The Panel accepts that the Member paid no heed to the requirements of his profession as delineated in the Documentation Standard. Failing to administer and document the administration of ordered medication is, as the Nursing Expert testified, a “breach of the standards”. The Panel concurs.
Allegations 1(f) (ii), 3(f) (ii): Did the Member administer an incorrect dose of Clonazepam to [Client D]?
Allegations 1(f) (ii), 3(f) (ii): Did the Member administer an incorrect dose of Clonazepam to [Client D]?
Exhibit #30 is the Acudose-RX Events for [Client D]. It shows that [Client D] was required to receive 1.0 mg (two packets of .5 mg) of Clonazepam but only .5 mg was withdrawn. This is a scheduled medication. The MAR is blank under May 25, so it is unclear if any Clonazepam was administered at all by the Member. This is medication that was ordered to be given at bedtime. The Panel accepted the evidence of the Nursing Expert who stated that if a medication is not documented, it is not administered. This is a breach of the standards of practice relating to Documentation.
The Documentation Standard is definitive and clear when it states that a nurse meets the standard by “ensuring that documentation is a complete record of nursing care provided and reflects all aspects of the nursing process including assessment, planning, intervention (independent and collaborative) and evaluation”.
Allegations 1(j), 3(j): Did the Member fail to provide Constant Observation to a client?
Allegations 1(j), 3(j): Did the Member fail to provide Constant Observation to a client?
The Panel relied on the testimony of [Witness 4] who the Panel deemed to be a credible witness. She gave good information and provided context into the incident. The Panel referred to Exhibit #46 which was the doctor’s order for Constant Observation. The Panel also took into account the Policy of the Royal Ottawa Health Care Group (Exhibit #47) regarding Constant Observation. The Panel relied heavily on the video footage which clearly showed the client wandering the hallways of the unit unsupervised. [Witness 4] had a clear recollection that the Member was in the nurses’ station as she recalled him actively engaging in discussions while his client went unsupervised. This is contrary to [the Physician’s] orders and contrary to the Constant Observation policy of the Hospital. The Panel accepted the Nursing Expert’s opinion that the Member did not meet the standards of practice relating to Mental Health Nursing when he did not follow the requirements of Constant Observation and that the Member’s conduct is in breach of the Therapeutic Nurse-Client Relationship. By not fulfilling his professional obligations, the Member put many individuals at risk of harm including [Client G], other clients (including the one who was struck) and staff members.
Allegations 3(a), (b), (c), (d), (e), (f), (g), (h) and (i): Was the Member’s conduct or actions disgraceful, dishonourable or unprofessional?
Allegations 3(a), (b), (c), (d), (e), (f), (g), (h) and (i): Was the Member’s conduct or actions disgraceful, dishonourable or unprofessional?
The Panel is convinced by the volume of evidence before it, by the credible witnesses who testified as well as by the expertise of the Nursing Expert that the Member has committed acts of professional misconduct that would reasonably be regarded by members of the profession to be disgraceful, dishonorable and unprofessional. The Member has engaged in a pattern of conduct that is disrespectful to his clients, to his profession and to the public. His conduct strikes at the heart of what it means to be a nurse.
The Member took advantage of his role as an authority figure when he made racist comments to a vulnerable, mentally ill client. He attempted to justify his conduct to his manager by saying the comments were made in “jest”. The statements by the Member would never have been found humorous by a person of colour and his attempt to minimize their impact speaks to the Member’s lack of sensitivity. The serious and repetitive nature of the comments is unprofessional. His conduct is dishonourable as the Member ought to have known that his conduct fell well below the standards of a professional when he used such racist language. The Member’s conduct is also disgraceful as it casts serious doubt on his ability to discharge the higher obligations the public expects professionals to meet.
The Member’s failure to assess his clients and then document those assessments as well as his failure to administer ordered medications is disgraceful, dishonourable and unprofessional. The Member’s conduct is unprofessional as it was repetitive in nature in that it occurred over a period of a month. The Member’s conduct is dishonourable as clients put their trust in him, as a professional, to ensure that they received their ordered medications. Many of the medications were anti-psychotics and were needed so that the clients could stabilize or remain stable. The Mental Health Assessments that were not completed by the Member were integral to the progress of each client and to the nursing team as a whole in determining trends and the implementation of best strategies. Such lack of attention to the requirements of his profession and to the needs of his clients shows that the Member’s conduct is both dishonourable and disgraceful. This misconduct has an element of moral failing and again casts serious doubt on the Member’s ability to discharge the higher obligations required by the public.
The Member’s conduct when he left his shift a half hour early without providing report to his colleagues is disgraceful, dishonourable and unprofessional. It demonstrates a lack of accountability to his clients, his colleagues and his workplace. Even when he was asked by a colleague to return to the unit, he did so reluctantly and continued to refuse to fulfill his professional obligations. By not providing a report, the Member’s misconduct had the potential to affect the continuity of care for his clients. This conduct shows serious and persistent misconduct which is unprofessional. Leaving the unit before his shift ended is dishonest and dishonourable as he left without permission. Such misconduct has the effect of shaming the Member and, by extension, the profession thus meeting the definition of disgraceful.
The Member’s conduct, when he neglected to provide Constant Observation (CO) to an unpredictable and mentally ill patient, is also unprofessional, dishonourable and disgraceful. The Member’s conduct was serious and persistent and therefore unprofessional as he neglected to supervise his client when he was required to do so. His conduct was dishonest and dishonourable when he accepted the assignment of CO and then willfully ignored his professional obligations. The fact that his CO [Client G], struck another vulnerable and ill client, attests to the necessity and importance of the Member complying with his assigned task and following the doctor’s order. The Member ought to have known that his conduct was putting others at risk. This is disgraceful as it shames the Member and, by extension, the profession.
Penalty
Penalty Submissions
Penalty
College Counsel provided the Panel with a written Submission on Order.
It requested the Panel to make an order in the following form:
Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final; and
Directing the Executive Director to immediately revoke the Member’s certificate of registration.
College Counsel described the range of objectives relating to Penalty. They include:
Protection of the public;
General and specific deterrence;
Where appropriate, remediation and rehabilitation; and
The maintenance of public confidence in the College’s regulatory power.
College Counsel submitted that the seriousness of the conduct warrants a significant regulatory response. She stated that the Panel has made findings of professional misconduct on allegations that occurred over a period of 2 years. They include:
Making racist statements to a patient;
Failing to do Mental Health Assessments;
Failing to document assessments of patients;
Failing to give ordered medications;
Failing to document medications;
Failing to give report to colleagues;
Leaving his shift early; and
Failing to maintain Constant Observation on an unpredictable patient.
College Counsel stated that the Member displayed an utter disregard for his obligations to the vulnerable patient population that he cared for. The patients in both the FTU and the STU have serious mental illnesses and have come to be involved in the criminal justice system. They are being held in the facility because they were either incarcerated or because a court ordered them to be assessed and/or to receive treatment. College Counsel stated that it is important to acknowledge that this misconduct occurred in a setting that dealt with individuals with mental illness and that those individuals were not there voluntarily. The Member should have considered these facts. A nurse’s responsibility is to ensure that patients receive client centred care. Patients deserve to be treated with respect. The Member’s racist comments, the fact that he did not provide ordered medications to stabilize patients and that he did not maintain Constant Observation on an unpredictable patient demonstrates that he does not respect his patients or other patients in the facility. His conduct showed an indifference to his role in the criminal justice system for mentally ill patients. The Member’s lack of assessment and documentation means that there is less information available to the courts who would evaluate the patients’ health and risk to the public.
College Counsel submitted that the Member cannot be penalized for not attending the hearing. However, when considering the possibility of rehabilitation and remediation, there is no evidence of the Member’s remorse, insight, acceptance of responsibility or a willingness to improve. The Member’s employer required the Member to complete learning modules from the College. There is no evidence that the Member learned from these interventions or from his unpaid suspension.
College Counsel provided the Panel with the case of Law Society of Upper Canada v. David Harris, 2011 ONLSHP 190, 2011 ONLSHP 0190. This case provides an in-depth analysis regarding governability including its definition. It also refers to Fenik [58] which states a “finding of ungovernability is based on a case-by-case analysis” and that “The guiding principle is the public interest”. It then states many of the facts relating to ungovernability including: the nature, duration and repetitive nature of the misconduct, any prior history, any character evidence, no evidence of remorse, no other evidence that explains the misconduct, the likelihood of future misconduct, and the member’s on-going cooperation with the Society.
College Counsel reminded the Panel that the Member did not attend this Disciplinary hearing. She reiterated that there is no evidence that with this Member, remediation would be successful or would be appropriate. The Panel should consider general deterrence to the membership so that they will know that conduct such as this will not be tolerated. The Panel was also asked to consider the need to ensure public protection and the need to ensure public confidence in the regulatory process.
College Counsel then addressed both mitigating and aggravating factors as they relate to the Member.
Mitigating Factors:
- The Member has had a long career in nursing and has no past history of involvement with the College. This is the only mitigating factor.
Aggravating Factors:
The seriousness of the conduct;
The vulnerable and sick population of clients;
The impact of the Member’s conduct on the patients, his colleagues and the criminal justice system;
The misconduct occurred over a two-year period; and
The Member’s misconduct continued despite him completing a learning plan and receiving disciplinary action from his employer.
College Counsel provided the Panel with 2 cases to consider in regard to penalty. Although this case warrants revocation, these two previous cases did not suggest revocation. The purpose of providing these 2 cases was to help the Panel see how other panels have dealt with similar cases.
CNO v. Daljit Mann (Discipline Committee, 2012). This case had similar facts. It contained several allegations relating to the administration and documentation of medication. One allegation was that the member attempted to administer oral medication that had been handled or mouthed by another patient. Another allegation was that the member administered medications at the wrong time. Another allegation was that the member failed to make observations in the progress notes. It was also alleged that the member made inappropriate comments and that the member failed to complete a scheduled shift. The member had been practising 6 years. The panel ordered a reprimand, the completion of a refresher course prior to resuming her practice, 24 months of employer notification with random spot audits and a requirement that the member only practice with registered staff present.
College Counsel stated the order in the Mann case had a heavy emphasis on monitoring and education. College Counsel stated that this only works if a member is committed to rehabilitation. The requirement to complete a refresher course serves as an indefinite suspension until it is completed. This, College Counsel, stated is a significant regulatory response.
In CNO v. Lori Simeone (Discipline Committee, 2017), the allegations involved a failure to provide care to a patient, improperly delegating a task, a failure to document a medication and a failure to keep records. The case proceeded as an Agreed Statement of Facts. The member was given a five month suspension, 18 months employer notification, random spot audits and no independent nursing in the community for 18 months.
The College’s focus is on remediation and rehabilitation when appropriate. However, in the case at hand, the Member has demonstrated a pattern of behaviour that warrants a significant regulatory response.
College Counsel submitted that the Member’s lack of accountability between 2015 and 2017 requires revocation. It is the only way, and the best way, to protect the public.
Penalty Decision
Penalty Decision
The Panel makes the following order as to penalty:
The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final; and
The Executive Director is directed to immediately revoke the Member’s certificate of registration.
Reasons for Penalty Decision
Reasons for Penalty Decision
The Panel deliberated and agrees with College Counsel that revocation is the only appropriate penalty. The Member worked with a vulnerable mental health population who required specific assessments, timely medications and increased monitoring. They deserved respect. The Member’s colleagues deserved to have a colleague who was an active and contributing member of a care team. The Member’s employer deserved to have an employee who followed his professional standards and the hospital protocols. The public needs, and deserves, to feel confident in the nursing profession and in nursing regulation. The public needs to be protected from members of the nursing profession who engage in unprofessional conduct. The Member has committed multiple acts of professional misconduct over a two-year period and conducted himself in a reckless, unorthodox manner. Because the Member chose not to participate in the disciplinary process, the Panel is not aware of any mitigating factors that might have explained his conduct. There is no evidence that the Member has accepted responsibility for his actions and is willing to be held accountable. There is no evidence to suggest that remediation would be accepted by the Member.
As protection of the public is paramount, the Panel concludes that the penalty of revocation is reasonable and appropriate given the seriousness and the repetitive nature of the conduct.
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.