College of Nurses of Ontario v. Irving-Kerr, 2020 CanLII 121145

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Sherry Szucsko-Bedard, RN Chairperson

Dawn Cutler, RN Member

Max Hamlyn, RPN Member

Natalie Montgomery Public Member Lalitha Poonasamy Public Member

BETWEEN:

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

• and - )

JESSIE H. IRVING-KERR ) GRANT FERGUSON for

Registration No. HG05394 ) Jessie H. Irving-Kerr

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: December 7, 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 December 7, 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 preventing public disclosure and banning publication or broadcasting of the identity of the patient, or any information that could disclose the identity of the patient, referred to orally or in any documents presented in the Discipline hearing of Jessie H. Irving-Kerr.

The Panel considered the submissions of the parties and decided that there be an order preventing public disclosure and banning publication or broadcasting of the identity of the patient, or any information that could disclose the identity of the patient, referred to orally or in any documents presented in the Discipline hearing of Jessie H. Irving-Kerr.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraph #2(a) in the Notice of Hearing dated October 2, 2020. The Panel granted this request. The remaining allegations against Jessie H. Irving-Kerr (the “Member”) 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 during your employment as a Registered Practical Nurse at Groves Memorial Community Hospital (the “Hospital”) in Fergus, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, in that, on or about July 21 to 27, 2017:

a. you took hold of the chin and/or neck area of [the Patient] by pinching it with your fingers and/or moving it back and forth;

b. you stated to [the Patient], “if you don’t stop complaining, we’ll put you in a room with someone who really snores loud” or words to that effect, in response to the [Patient’s] comment that her roommate was snoring;

c. on one or more occasions, you advised [the Patient] in a rude and/or annoyed manner, that she had to fill her bedpan with more urine before you would remove it;

d. on one or more occasions, you failed to remove and replace the bedpan of [the Patient] promptly;

e. you stated to [the Patient], “Oh God” or words to that effect, after observing the [Patient’s] full bedpan; and/or

f. you removed and re-arranged the blankets covering [the Patient] in a rough and angry manner; and/or

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 during your employment as a Registered Practical Nurse at the Hospital in Fergus, Ontario, you physically, emotionally and/or verbally abused a [patient], in that, on or about July 21 to 27, 2017:

a. [Withdrawn]; and/or

b. you stated to [the Patient], “if you don’t stop complaining, we’ll put you in a room with someone who really snores loud” or words to that effect, in response to the [Patient’s] comment that her roommate was snoring; and/or

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 during your employment as a Registered Practical Nurse for the Hospital in Fergus, Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that, on or about July 21 to 27, 2017:

a. you took hold of the chin and/or neck area of [the Patient] by pinching it with your fingers and/or moving it back and forth;

b. you stated to [the Patient], “if you don’t stop complaining, we’ll put you in a room with someone who really snores loud” or words to that effect, in response to the [Patient’s] comment that her roommate was snoring;

c. on one or more occasions, you advised [the Patient] in a rude and/or annoyed manner, that she had to fill her bedpan with more urine before you would remove it;

d. on one or more occasions, you failed to remove and replace the bedpan of [the Patient] promptly;

e. you stated to [the Patient], “Oh God” or words to that effect, after observing the [Patient’s] full bedpan; and/or

f. you removed and re-arranged the blankets covering [the Patient] in a rough and angry manner.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 2(b), 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) 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 as amended reads, unedited, as follows:

THE MEMBER

1. Jessie H Irving-Kerr (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on June 24, 1987. She resigned her certificate of registration on November 11, 2020.

2. At the time of the incidents, the Member was employed as a full-time staff nurse at Groves Memorial Community Hospital (the “Hospital”) until her resignation in April 2018.

3. The Member resigned her employment at the Hospital as a result of the incidents described below.

THE HOSPITAL

4. The Hospital is a small community hospital. In 2017, the Hospital had 39 inpatient beds. Its services included maternal and child care, complex continuing care, operating room, emergency room, medical surgical, allied health, pharmacy, laboratory and physiotherapy.

5. The Member worked primarily on the 1^st floor inpatient unit, which was a combined unit of nine complex care beds, six surgical beds and three obstetrics beds. On this unit, nursing staff are assigned to patients, but there is sharing of care throughout the shift and it was common that nurses would pitch in and help other nurses.

THE PATIENT

6. (the “Patient”) was 66 years old at the time of the incidents. The Patient had Muscular Dystrophy and, at the time, she used a walker.

7. The Patient broke her femur. She was admitted to the Hospital after surgery for the fractured femur at another facility. She was an in-patient at the Hospital from July 21, 2017 to July 27, 2017. She shared a room with another patient from July 23 to July 27, 2017.

8. During the Patient’s admission at the Hospital, the Member worked nights on July 21 to 23 and 26 to 28, 2017.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Noise Complaint

9. On July 23, 2017, during the night, the Patient rang the call-bell and the Member attended her room. The Patient told the Member she was sensitive to noise and she could not sleep as a result of her roommates snoring. The Patient’s roommate snored, grunted and talked in her sleep.

10. In response to the Patient’s complaint regarding her roommate’s noises while sleeping, the Member was insensitive to the Patient’s concern and made comments to the effect of “if you don’t stop complaining, we’ll put you in a room with someone who really snores loud…we have one right over there,” gesturing to another patient in a different room. It was during this same interaction that the Member made contact with the Patient’s chin using her hand, in such a manner that the Member moved the Patient’s chin with her hand.

11. If the Patient were to testify, she would state that the Member did not physically hurt her, but she was upset and intimidated by the Member touching her chin and viewed the Member’s comments as a warning.

Bedpan Change

12. Due to the Patient’s broken femur, she was restricted in her mobility and confined to her bed. As a result, she used a bedpan for elimination.

13. During the Patient’s stay in the Hospital between July 21 and July 27, 2017, the Patient had a urinary tract infection, which resulted in frequent and foul-smelling urination. At some point during her stay, after using the bedpan, the Patient called for a nurse to dispose of the urine in her bedpan. The Member attended and told the Patient, in a sharp voice, that the Patient had to deposit more urine into her bedpan before the Member would remove it. The Member left foul-smelling urine in the bedpan beside the Patient’s bedside table.

14. On at least one different occasion, when the Patient asked the Member to dispose of the urine in her bedpan, the Member asked the Patient if she had put enough urine in the bedpan, and refused to dispose of the Patient’s bedpan until the Patient had deposited more urine into the bedpan. The Member delayed in disposing of the urine in the Patient’s bedpan in a prompt manner and when requested to do so by the Patient.

15. Near the end of her stay at the Hospital, the Patient consumed a large amount of water to attempt to treat her urinary tract infection. As a result, the Patient urinated into a number of bedpans over several hours, which other nurses removed. Near the end of the Member’s night shift, when the Member responded to the Patient’s call for a nurse to collect her bedpan, the Member asked the Patient if she put enough urine in and looked into the Patient’s full bedpan, by looking between the Patient’s legs while she was on the bedpan. The Member uttered a word of surprise at the volume of urine, which the Patient heard as words to the effect of “oh God”. The Member said she would return to remove the bedpan, but did not do so promptly. The Patient sat on the bedpan for some time waiting for the Member’s return. The Member did not remove the bedpan during her shift.

16. The Member acknowledges that she expressed surprise at the volume of urine, but if she were to testify, she would state that she did not use the specific phrase “oh God”.

17. On July 27, 2017, the Patient’s last morning at the Hospital, the Patient called for a nurse to empty her bedpan. The Member responded to the call and told the Patient that she needed to urinate more into the bedpan before the Member would remove it. When the Patient asked how long she has to stay on the bedpan the Member stated “twenty minutes.” The Patient’s bedpan was subsequently emptied by another nurse who determined there was enough urine to justify emptying the bedpan.

Blanket Adjustment

18. On the Patient’s last night at the Hospital (the night of July 26 to the morning of July 27, 2017), the Patient’s feet were extremely cold and she needed her blankets adjusted. She called for a nurse. The Member responded to a call bell. If the Patient were to testify, she would state that when the Member entered the room, she displayed a strange demeanour, including looking out the window for some time, and that she (the Patient) found the Member’s demeanour frightening.

19. The Patient requested that the Member help her with her blankets. The Member then told the Patient in an aggressive manner “you’re going to wake up the lady in the other bed”. The Member ultimately adjusted the Patient’s blankets in a rough manner.

20. If the Patient were to testify, she would state that the Member’s adjustment of her blankets seemed angry, but did not cause her physical pain. The Patient tried to avoid saying anything to the Member but she was upset and distressed by the interaction.

STANDARDS OF PRACTICE

CNO Standards

21. CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring her or his practice and conduct meets legislative requirements and the standards of the profession. Nurses are accountable for conducting themselves in ways that promote respect for the profession. In addition, Professional Standards provides that nurses are responsible for creating a plan of care that reflects the complexity of a patient’s needs, and addresses the patient’s preferences.

22. CNO’s Professional Standards further provides, in relation to the Ethics standard, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members.

23. CNO’s Professional Standards also provides, in relation to the Relationships standard, that each nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships and a nurse demonstrates this standard by demonstrating respect and empathy for, and interest in patients.

24. The Professional Standards further requires nurses to possess and apply their nursing knowledge as well as requires members to be accountable and an act as advocate for their patients.

25. CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) places the responsibility for establishing and maintaining the therapeutic nurse-patient relationship on the nurse. The TNCR Standard provides that the nurse-patient relationship is built on trust, respect, empathy, professional intimacy and the appropriate use of power.

26. The TNCR Standard provides that nurses use a wide range of effective communication strategies and interpersonal skills to appropriately establish, maintain, re-establish and terminate the nurse-patient relationship. A nurse meets the standard by:

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

b. modifying communication style, as necessary, to meet the needs of the [patient]; and

c. considering the [patient’s] preferences when encouraging the [patient] to advocate on his/her own behalf, or advocating on the [patient’s] behalf.

27. The TNCR Standard also requires nurses to protect the patient from harm by ensuring that abuse is prevented or stopped and reported. With respect to protecting the patient from abuse, a nurse demonstrates having met the standard by:

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

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

28. In addition, the TNCR Standard provides examples of abusive behaviours. Verbal and emotional abuse includes sarcasm, intimidation including threatening gestures/actions, teasing or taunting, insensitivity to the patient’s preferences and an inappropriate tone of voice, such as one expressing impatience.

Expert Opinion

29. CNO obtained an expert opinion from Karen Riddell (the “Expert”) in this matter. The Expert opined that the Member’s conduct fell below the standards of practice.

30. The Expert was provided with a “hypothetical” set of facts upon which to base her opinion, which closely follows the facts set out in this Agreed Statement of Facts.

31. In summary, the Expert opined that:

a. the Patient was vulnerable due to her health conditions and her acute injury.

b. the Member breached standards of practice by:

i. failing to demonstrate empathy or respect to the Patient’s dignity and worth;

ii. failing to consider the Patient’s preferences and advocate on her behalf;

iii. failing to respect the Patient’s opinions and needs and that those elements were identified in the care plan;

iv. failing to meet the standard of accountability in that she did not provide, facilitate, advocate and promote the best possible care for the Patient;

v. failing to act in a situation where the Patient’s well-being was compromised;

vi. failing to establish and maintain a therapeutic relationship,

vii. failing to be aware of her verbal and non-verbal communication style and how patients might perceive it; and

viii. engaging in verbal, physical and non-verbal behaviour towards the Patient that demonstrated disrespect for the Patient and could be perceived by the Patient and/or others as abusive.

32. The Member acknowledges and accepts the Expert’s opinion regarding the standards of practice and her breach thereof. The Member acknowledges that her conduct not only violated the professional standards required of nurses, the Member knew or ought to have known that it was wrong and would bring shame on the profession.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

33. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 (a), (b), (c), (d), (e) and (f) of the Notice of Hearing in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 9 to 32 above.

34. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2(b) of the Notice of Hearing in that she verbally and emotionally abused the Patient, when she made insensitive comments in her response to the Patient’s complaint about her roommate’s snoring, as described in paragraphs 9 to 11 and 21 to 32 above.

35. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3 (a), (b), (c), (d), (e) and (f) of the Notice of Hearing, and in particular her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 9 to 32 above.

36. With leave of the Discipline Committee, CNO withdraws allegation 2(a) of the Notice of Hearing.

Decision

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

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 1(c), 1(d), 1(e), 1(f) and 2(b) of the Notice of Hearing. With respect to allegation 2(b), the Panel finds that the Member emotionally and verbally abused a [patient]. As to allegations #3(a), 3(b), 3(c), 3(d), 3(e) and 3(f), the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonorable and unprofessional.

Reasons for Decision

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

Allegation #1(a) in the Notice of Hearing is supported by paragraphs 9, 10, 11 and 21 through 33 in the Agreed Statement of Facts. The Member admits contact with the Patient’s chin with her hand. The Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) requires nurses to protect the patient from harm by ensuring that abuse is prevented or stopped and reported.

Allegation #1(b) in the Notice of Hearing is supported by paragraphs 9, 10, 11 and 21 through 33 in the Agreed Statement of Facts. The Member admits that she stated “if you don’t stop complaining, we’ll put you in a room with someone who really snores loud” or words to that effect. The College’s Professional Standards requires a nurse to demonstrate respect and empathy for and interest in patients.

Allegation #1(c) in the Notice of Hearing is supported by paragraphs 12 through 17 and 21 through 33 in the Agreed Statement of Facts. The Member admits that she advised the Patient that she had to fill the bedpan with more urine before the Member would take it away. The Member failed to provide a nurse-patient relationship built on trust, respect, empathy, professional intimacy and the appropriate use of power.

Allegation #1(d) in the Notice of Hearing is supported by paragraphs 12 through 17 and 21 through 33 in the Agreed Statement of Facts. The Member admits she failed to remove and replace the bedpan. According to the TNCR Standard, emotional abuse includes threatening gestures/actions, teasing or taunting, insensitivity to the patient’s preferences and inappropriate tone of voice, such as one expressing impatience.

Allegation #1(e) in the Notice of Hearing is supported by paragraphs 12, 15, 16 and 21 through 33 in the Agreed Statement of Facts. The Member admits she uttered exclamations of surprise related to the amount of urine in the bedpan. Again, the Member showed insensitivity to the Patient and used an inappropriate tone of voice in her interaction with the Patient.

Allegation #1(f) in the Notice of Hearing is supported by paragraphs 18 through 33 in the Agreed Statement of Facts. The Member admits that while she was rearranging the Patient’s blankets, the Patient found the Member’s demeanour to be frightening, that she spoke to the Patient in an aggressive manner and adjusted the blankets in a rough manner. Intimidation including threatening gestures/actions is abusive behaviour according to the standards of practice.

Allegation #2(b) in the Notice of Hearing is supported by paragraphs 9 through 11, 29 through 32 and 34 in the Agreed Statement of Facts. The Member admits that her treatment of this Patient was emotionally and verbally abusive.

With respect to allegations #3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) in the Notice of Hearing the Panel finds that the Member’s conduct, in mistreating her Patient and failing to provide appropriate nursing interventions was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing through verbal and emotional abuse of her Patient. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct, namely the removal or lack of removal of the bedpan as the Patient had requested, and her manner of communicating with the Patient, casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within three months

of the date that this Order becomes final.

Attached at Appendix “A” to the Joint Submission on Order was the Member’s undertaking to permanently resign from the College.

Penalty Submissions

College Counsel submitted that the Joint Submission on Order also provides in Appendix “A” an Undertaking by the Member for the Member’s permanent resignation as a member of the College effective December 7, 2020. The Undertaking includes the Member’s commitment not to apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future. College Counsel submitted that the Member’s permanent resignation allows for a limited penalty with no need for terms, limits or conditions or suspension of the Member’s certificate.

College Counsel further submitted that the aggravating factors in this case were related to the fact that the Patient was very vulnerable, with multiple health issues, compounded by an acute injury and also the fact that it involved multiple interactions with this Patient over the course of several days.

The mitigating factors in this case were the Member’s long unblemished history with the College with no prior discipline decisions. The Member has also cooperated with the process, taking responsibility for her conduct and thereby averting the need for a contested hearing.

The proposed penalty provides for general deterrence through the oral reprimand and the undertaking to permanently resign thereby demonstrating to the membership as a whole that conduct of this nature will not be tolerated. It will serve as a reminder to the general membership of the importance of their professional obligations.

Given the Member’s undertaking to permanently resign, the proposed penalty provides for specific deterrence through the reprimand.

Since the Member will no longer be practicing, there is no need to address rehabilitation or remediation.

Public protection is achieved by the Member’s undertaking to resign from the College and not seek registration as a nurse in Ontario or any other jurisdiction again in the future.

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 Gibson (Discipline Committee, 2014). This case was very similar as it involved an Agreed Statement of Facts and a Joint Submission on Order. The penalty included an oral reprimand, a three month suspension of the member’s certificate of registration, three meetings with a Nursing Expert and twelve months of employer notification after return to work.

CNO v Agustin (Discipline Committee, 2019). This case involved more physical violence. It proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty was a four month suspension, two meetings with a Nursing Expert and eighteen months of employer notification.

The Member’s Counsel submitted that the Joint Submission on Order should be accepted as it had been carefully negotiated and addresses the unique circumstances of this matter and the goals of specific and general deterrence and public protection.

It provides for general deterrence by the Member’s undertaking and the reprimand and sends a strong signal which protects the integrity of the process and the profession and shows accountability.

It provides for specific deterrence as the Member’s undertaking means the end of her nursing career.

The public is protected by the reprimand and the Member’s undertaking as there is no risk that the Member will re-offend as she will no longer be practicing.

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. Members of the profession will be reminded that there can be serious consequences when professional standards are not followed.

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

I, Sherry Szucsko-Bedard, 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.