College of Nurses of Ontario v. Doane, 2020 ONCNO 119454

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Terry Holland, RPN Panel Chair

Sylvia Douglas Public Member

Shaneika Grey, RPN Member

Mary MacNeil, RN Member

Natalie Montgomery Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DENISE COONEY for

) College of Nurses of Ontario

• and - )

MACRINA ARLENE DOANE ) EDWARD CHADDERTON for

Registration No. 8005811 ) Macrina Arlene Doane

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: ­­October 2, 2020

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on October 2, 2020, via videoconference.

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 prohibiting public disclosure and banning publication or broadcasting of the names of the patients, or any information that could disclose the identities of the patients, referred to orally or in any documents presented in the Discipline hearing of Macrina Arlene Doane. The Member’s Counsel did not have any objections.

The Panel considered the submissions of the parties and decided that there be an order prohibiting public disclosure and banning publication or broadcasting of the names of the patients, or any information that could disclose the identities of the patients, referred to orally or in any documents presented in the Discipline hearing of Macrina Arlene Doane.

The Allegations

The allegations against Macrina Arlene Doane (the “Member”) as stated in the Notice of Hearing dated September 22, 2020 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while practicing as a Registered Nurse at Waypoint Centre for Mental Health Care in Penetanguishene, Ontario (the "Facility") you contravened a standard of practice of the profession, or failed to meet the standard of practice of the profession, in that on or about April 9, 2017:

a. you provided inadequate care to [the Patient], including but not limited to:

i. you transferred [the Patient] without using appropriate assistive devices;

ii. you failed to use appropriate fall prevention strategies for [the Patient];

iii. you pulled [the Patient] down the hallway;

iv. you pushed [the Patient] into her room;

v. you turned off the light(s) in [the Patient]’s room before she had been transferred to her bed; and/or

vi. you failed to ensure that [the Patient] was safely transferred to her bed; and/or

b. you failed to appropriately establish and/or maintain professional relationship(s) with [Colleague A].

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that while practicing as a Registered Nurse at the Facility you verbally, physically, and/or emotionally abused [the Patient], in that on or about April 9, 2017:

a. you pulled [the Patient] down the hallway;

b. you pushed [the Patient] into her room;

c. you turned off the light(s) in [the Patient]'s room before she had been transferred to her bed; and/or

d. you failed to ensure that [the Patient] was safely transferred to her bed.

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while practicing as a Registered Nurse at the Facility you engaged in conduct relevant to the practice of nursing that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, in that on or about April 9, 2017:

a. you provided inadequate care to [the Patient], including but not limited to;

i. you transferred [the Patient] without using appropriate assistive devices;

ii. you failed to use appropriate fall prevention strategies for [the Patient];

iii. you pulled [the Patient] down the hallway;

iv. you pushed [the Patient] into her room;

v. you turned off the light(s) in [the Patient]'s room before she had been transferred to her bed; and/or

vi. you failed to ensure that [the Patient] was safely transferred to her bed; and/or

b. you failed to appropriately establish and/or maintain professional relationship(s) with [Colleague A].

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a)(i), (ii), (iii), (iv), (v), (vi); 1(b); 2(a), 2(b), 2(c), 2(d), 3(a)(i), (ii), (iii), (iv), (v), (vi) and 3(b) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member’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

1. Macrina Arlene Doane (the “Member”) obtained a diploma in nursing from George Brown College and registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on January 1, 1980.

2. The Member was employed as a full-time staff nurse on the 28-bed inpatient geriatric psychiatry unit at the Waypoint Centre for Mental Health in Penetanguishene (the “Facility”) between January 1, 2005 and May 19, 2017. The Facility intended to terminate the Member’s employment for cause following the incidents described below, however, agreed to allow her to voluntarily retire instead. According to the Member, this led to a decrease in her pension.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

3. The Patient was a 64-year old female. She had an extensive history of mental health issues. She often used a wheelchair because she was at very high risk of falls.

4. On April 9, 2017, the Member was the charge nurse on the overnight shift at the Facility. At approximately 8 p.m. the Member requested permission from her supervisor to go home early due to illness and was denied this request.

5. At around bedtime on Saturday evening April 9, 2017, the Patient was in the dining room. One of the Member’s nursing colleagues, [Colleague A], tried to stand the Patient up to take her to bed, but found the Patient was unsteady on her feet. [Colleague A] returned the Patient to her dining room chair and went to search for the Patient’s wheelchair.

6. When [Colleague A] returned to the dining room with a wheelchair for the Patient, she found that the Member was standing the Patient up and walking with her. [Colleague A] asked the Member if they could place the Patient in the wheelchair, however, the Member said she had assessed the Patient and she was fine.

7. [Colleague A] observed the Member as she walked the Patient down the hall, and she perceived that the Patient was unsteady and wobbly. At least once, [Colleague A] asked the Member to transfer the Patient into the wheelchair, but the Member told her, “Go I’m fine”.

8. The Member then walked down the hallway with the Patient, with one arm extended behind her, holding onto one or both of the Patient’s wrists. Both of the Patient’s arms were extended as the Member pulled the Patient down the hall in a way that two of the Member’s nursing colleagues described as “forcefully” and “very quickly”. If the Member were to testify, she would say that she did not intend to use force in transporting the Patient, nor did she intend to move too quickly for the Patient.

9. The Member then manoeuvred the Patient around so that the Patient was in front of the Member. The Member used one or both of her hands to push the Patient into her room in a way that was perceived by the Member’s nursing colleagues as forceful, turned off the lights in the room, and closed the door. If the Member were to testify, she would say she did not intend to push the Patient, but only intended to direct the Patient towards her room.

10. One of the Member’s nursing colleagues attended at the door to the Patient’s room to ensure that the Patient had got into bed, which she had.

CNO STANDARDS

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

Professional Standards

12. CNO’s Professional Standards (“Professional Standards”) provides that “[e]ach nurse is accountable to the public and responsible for ensuring that her/his practice and conduct meets the legislative requirements and the standards of the profession.” A nurse demonstrates the standard by “providing facilitating, advocating and promoting the best possible care” for patients, and “taking action in situations in which [patient] safety and well-being are compromised”.

13. The Professional Standards requires that “[e]ach nurse establishes and maintains respect, collaborative, therapeutic and professional relationships.” A nurse demonstrates the standard in a number of ways, including by “recognizing the potential for [patient] abuse” and “preventing [abuse] when possible”.

14. The Professional Standards also provide that “professional relationships are based on trust and respect, and result in improved [patient] care.” A nurse demonstrates the standard by “using a wide range of communication and interpersonal skills to effectively establish and maintain collegial relationships”.

15. The Member admits that she contravened the Professional Standards through her conduct as described at paragraphs 5-10 above. The Member acknowledges she ought to have known that the conduct described above was unacceptable, and fell well below the standards expected of a professional.

Therapeutic Nurse-Client [or Nurse-Patient] Relationship Standard

16. 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 practice of nursing.

17. 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.”

18. Nurses are required to protect patients from abuse. The TNCR Standard defines “abuse” as:

The misuse of the power imbalance intrinsic in the nurse-[patient] 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-[patient] relationship.

19. The TNCR Standard provides that abuse can take many forms, including physical abuse and neglect. Examples of physical abuse include pushing, using force, and handling a patient in a rough manner. Examples of neglect include non-therapeutic confining or isolation, ignoring and withholding.

20. The Member admits that she contravened the TNCR Standard through her conduct as described in paragraphs 5-10 above. She further admits that pulling the Patient down the hallway and pushing the Patient into her room constitute physical abuse, and that turning off the lights in the Patient’s room before the Patient got into bed, and failing to ensure that he Patient was safely transferred to her bed, constitute neglect.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

21. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 (a) of the Notice of Hearing, as described in paragraphs 5-10 above, in that the Member provided inadequate care to the Patient, and as alleged in paragraph 1(b) of the Notice of Hearing, as described in paragraphs 6-7 above, in that she failed to appropriately establish and maintain professional relationships with her nursing colleague, [Colleague A].

22. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a), 2(b), 2 (c), and 2(d) of the Notice of Hearing, and as described in paragraphs 8-10 above, in that she pulled the Patient down the hallway, pushed the Patient into her room, turned off the light(s) in the Patient’s room before she had gotten into bed, and failed to ensure that the Patient was safely transferred to her bed.

23. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a) and 3(b) of the Notice of Hearing, and in particular, that her conduct, was dishonourable and unprofessional, as described in paragraphs 5-10 above.

Counsel Submissions

College Counsel and the Member’s Counsel made submissions in addition to the Agreed Statement of Facts.

College Counsel

College Counsel submitted that it is not necessary to parse out specific elements of abuse. In this case, the Member admitted to pushing the Patient into the room and turning out the lights without ensuring the Patient was safely in bed. College Counsel submitted that this conduct constituted physical and emotional abuse.

Member’s Counsel

The Member’s Counsel submitted the Agreed Statement of Facts did not provide a basis of emotional abuse as there was no evidence of impact to the Patient.

College Counsel’s Reply

College Counsel responded that the Patient’s perception of abuse does not negate the fact that abuse took place.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1(a)(i), (ii), (iii), (iv), (v), (vi); 1(b); #2(a); 2(b); 2(c) and 2(d) of the Notice of Hearing. With respect to allegations #2(a); 2(b); 2(c) and 2(d), the Panel finds that the Member physically and emotionally abused the Patient. As to allegations #3(a)(i), (ii), (iii), (iv), (v), (vi) and 3(b), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonorable and unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that the evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegations #1(a)(i), (ii), (iii), (iv), (v) and (vi) in the Notice of Hearing are supported by paragraphs 3, 5 through 10, and 12 through 21 in the Agreed Statement of Facts. The Patient often used a wheelchair and had a history of being at high risk for falls. The Patient had also been assessed by a colleague to be unsteady on her feet. Despite this, the Member did not use appropriate fall prevention strategies and failed to use the available wheelchair to transfer the Patient to her room. Nursing colleagues witnessed the Member pulling the Patient down the hallway “forcefully” and moving “very quickly”. Colleagues also witnessed the Member pushing the Patient into her room in a way they perceived as forceful. The Member admitted turning off the lights and closing the door before the Patient had transferred to her bed. The Member also admitted she failed to ensure the Patient safely reached her bed. Nursing professional standards dictate nurses are to create a respectful and therapeutic relationship with patients to provide the best possible care while also ensuring patient safety. The Member should have known her conduct did not meet these basic professional standards.

Allegation #1(b) in the Notice of Hearing is supported by paragraphs 6, 7, 12 through 15 and 21 in the Agreed Statement of Facts. [Colleague A] offered a wheelchair at least twice to the Member in order to help transfer the Patient. The Member did not engage with [Colleague A] to understand her concerns. Instead, the Member declined [Colleague A]’s offers and dismissed her. Nursing professional standards dictate nurses are to foster trusting and respectful professional relationships with colleagues in order to improve the quality of patient care. This is done by using appropriate communication and interpersonal skills to establish and maintain these collegial relationships. The Member should have known her conduct did not meet these basic professional standards.

The Panel finds the evidence supports findings of physical and emotional abuse as stated in allegations #2(a), (b), (c) and (d) in the Notice of Hearing. These allegations are supported by paragraphs 8 through 10, 12 through 20 and 22 in the Agreed Statement of Facts. Nursing colleagues witnessed the Member pulling the Patient down the hallway “forcefully” and moving “very quickly” as well as pushing the Patient into her room in a way that was forceful. The Member also admitted to this allegation. Therapeutic nursing services support the patient’s well-being and are based on trust, respect, empathy and appropriate use of power inherent in the care provider’s role. When the Member pulled the Patient down the hallway in the manner described in paragraph 8 of the Agreed Statement of Facts, she betrayed this trust, she disrespected the Patient and she abused the power she had over an elderly lady with mental health issues. Pushing the Patient into her room was an equal betrayal of trust, disrespect and abuse of power. The Member also admitted she turned off the lights in the room and closed the door before the Patient had transferred to her bed. The action was a form of neglect and abuse as she knowingly left the Patient alone and in the dark to make her way unassisted to her bed. The Member’s actions were not empathetic and lacked care. The Member also admitted she did not ensure the Patient safely reached her bed. This neglectful behavior did not support the Patient’s well-being and violated the trust the Patient had in her. The Member should have known these actions were abusive in nature; caused the Patient physical and emotional harm and also contravened the standards of the profession.

With respect to allegations #3(a)(i), (ii), (iii), (iv), (v) and (vi) in the Notice of Hearing, the Panel finds that the allegations are supported by paragraphs 3, 5 through 10, 12 through 20 and 23 in the Agreed Statement of Facts. The Patient was unsteady and had a history of fall risk but the Member disregarded the Patient’s need for a wheelchair. The Member also abused the Patient when she pulled and pushed the Patient and then abandoned the Patient in a dark room. The Member also failed to ensure the Patient had safely transferred to bed. The Member’s actions showed a persistent disregard for her professional obligations. She ought to have known her conduct was unacceptable and fell below the standards of the profession. The Member’s conduct also had an element of moral failing and showed her inability to meet the higher obligations the public expects nurses to meet. Accordingly, the Panel finds that the Member committed acts of professional misconduct and engaged in behaviour that would reasonably be regarded by members of the profession as dishonourable and unprofessional.

With respect to Allegation #3(b) in the Notice of Hearing, the Panel finds that the Member acted in a dishonorable and unprofessional manner. This allegation is supported by paragraphs 6, 7, 12 through 15 and 23 in the Agreed Statement of Facts. The Patient had been assessed by [Colleague A] to be unsteady on her feet. Despite this assessment combined with the Patient’s history of fall risk, the Member did not engage with [Colleague A] to understand her colleague's assessment. As well, when [Colleague A] witnessed the Patient walking unsteadily down the hall and asked the Member a second time to transfer the Patient to a wheelchair, the Member dismissed her by saying “Go, I’m fine”. The Member’s actions showed a disregard for her professional obligation to work collaboratively with her colleague for the Patient’s best interest. Her behavior showed an element of moral failing in that she ought to have known this conduct fell below the standards of the profession.

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:

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

Penalty Submissions

College Counsel

Submissions were made by College Counsel who advised the Panel that the Member has signed an undertaking with the College (the “Undertaking”) in which she undertakes, acknowledges and agrees to the following:

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

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

• The public portion of the Register maintained by the College will reflect this agreement.

• The Member acknowledges that the College has an obligation to inform other regulators in Canada of this Undertaking.

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

The Member has entered into a rigorous Undertaking which acknowledges that she resigned her membership with the College and will not pursue registration in the future. As well, the Undertaking includes a provision for the College to inform regulators in other jurisdictions should the Member attempt to gain registration in those areas. This outcome promotes general deterrence in sending a message to members of the profession that professional misconduct is taken seriously with serious consequences. It should inspire public confidence in the profession’s ability to regulate members, as the Undertaking was given in the context of an admission by the Member as opposed to a simple resignation. The Member has also cooperated with the College, accepted responsibility for her actions and has agreed to not return to practice. Specific deterrence is met through the reprimand. Rehabilitation and remediation are not a component of the penalty as the Member has permanently resigned from the profession.

Overall, the Member’s agreement to the Undertaking provides the ultimate form of public protection since the Member has agreed to no longer practice nursing.

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

CNO v. Groulx (Discipline Committee, 2019). The member admitted to making inappropriate comments about a patient and their family. The member showed disregard for a physician’s order and handled a patient in a rough way. The member signed an undertaking to resign. The resulting penalty was an oral reprimand.

CNO v. Smith (Discipline Committee, 2017). The Member grabbed a patient and shook her. The Member admitted to the breach of professional standards. The member signed an undertaking to resign. The resulting penalty was an oral reprimand.

Member’s Counsel

The Member’s Counsel made submissions on the Member’s lengthy career and decades of service with no record of discipline with the College. The Member was feeling unwell at the time of the incidents but was denied permission to go home early. The Member has taken responsibility for her actions, has remorse and decided to retire following the incident after a forty year career.

Penalty Decision

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

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

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility. The Panel finds that the penalty satisfies the principles of specific and general deterrence and public protection. The reprimand provides specific deterrence. General deterrence is accomplished by sending a message to the profession that conduct of this nature is not tolerated. The College is also obligated to publicly report the undertaking to resign which will support protection of the public. In light of the Member’s resignation, it is not necessary for the penalty to address rehabilitation and remediation.

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

I, Terry Holland, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.