DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Grace Fox, NP Chairperson Carolyn Kargiannakis, RN Member Heather Stevanka, RN Member Devinder Walia Public Member Richard Woodfield Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) DENISE COONEY for ) College of Nurses of Ontario
- and - )
TARA FRATER ) JANE LETTON for Registration No. 9729781 ) Tara Frater
) CHRISTOPHER WIRTH
) Independent Legal Counsel
) Heard: February 19-21, 2020
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on February 19, 2020 to February 21, 2020 at the College of Nurses of Ontario (the “College”) at Toronto.
Publication Ban
College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order banning the disclosure, including the publication, and broadcasting of the names of the patients or any information that could disclose the patients’ identities referred to in the Discipline Hearing of Tara Frater due to the privacy interests of the patients.
The Panel considered the submissions of the College and decided that there be an order prohibiting disclosure including a ban of the publication and broadcasting of the names of the patients or any information that could disclose the patients’ identities referred to in the Discipline Hearing of Tara Frater.
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 banning the disclosure, including the publication, and broadcasting of the names of other facility staff or any information that could disclose the other facility staff’s identities referred to in the Discipline Hearing of Tara Frater due to the privacy interests of the other facility staff.
The Panel considered the submissions of the College and decided that there be an order prohibiting disclosure including a ban of the publication and broadcasting of the names of the other facility staff or any information that could disclose the other facility staff’s identities referred to in the Discipline Hearing of Tara Frater.
The Allegations
College Counsel advised the Panel that the College was seeking leave to withdraw Allegations #1(a), #1(d), #1(e), #1(h)(ii), #4(a), #4(d), #4(e) and #4(h)(ii) in the Notice of Hearing dated September 18, 2019. The Panel granted leave to withdraw these allegations. Accordingly, the remaining allegations against Tara Frater (the “Member”) are as follows:
IT IS ALLEGED THAT:
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:
a. [withdrawn];
b. while employed as a Registered Nurse at Lakeridge Health, on or about 25 occasions listed in Appendix “B”, you called in sick at Lakeridge Health and were paid, and worked at Toronto South Detention Centre and were paid;
c. while employed as a Registered Nurse at Lakeridge Health, on or about February 15, 2015, July 2, 2015, March 21, 2016, March 22, 2016 and June 2, 2016, you took unpaid emergency time at Lakeridge Health, and worked at Toronto South Detention Centre and were paid;
d. [withdrawn];
e. [withdrawn];
f. while employed as a Registered Nurse at Toronto South Detention Centre, on or about 18 occasions listed in Appendix “C”, you called in sick at Toronto South Detention Centre and were paid, and worked at Lakeridge Health and were paid;
g. while employed as a Registered Nurse at Toronto South Detention Centre, on or about September 7, 2015, you provided inadequate care to [Patient A], and/or inadequately documented the care you provided to [Patient A], including but not limited to the following:
i. you failed to appropriately assess and/or maintain appropriate documentation with respect to your assessment of [Patient A];
ii. you failed to initiate screening tools for alcohol and/or drug withdrawal with respect to [Patient A];
iii. you failed to identify [Patient A] as being at risk of alcohol and/or drug withdrawal;
iv. you failed to ensure that [Patient A] was seen by a physician within an appropriate time frame; and/or
v. you failed to inform your colleagues that [Patient A] should be monitored;
h. while employed as a Registered Nurse at Toronto South Detention Centre, on or about October 13, 2015, you provided inadequate care to [Patient B], and/or inadequately documented the care you provided to [Patient B], including but not limited to the following:
i. you failed to appropriately assess and/or maintain appropriate documentation with respect to your assessment of [Patient B]; and/or
ii. [withdrawn]; and/or
i. on or about May 1, 2017, you sent an email to your colleagues at Toronto South Detention Centre in which you referred to inmates and/or clients using unprofessional language.
- 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(8) of Ontario Regulation 799/93, in that while working as a Registered Nurse, you misappropriated property from a workplace with respect to the following incidents:
a. while employed at Lakeridge Health, on or about 25 occasions listed in Appendix “B”, you called in sick at Lakeridge Health and were paid, and worked at Toronto South Detention Centre and were paid; and/or
b. while employed at Toronto South Detention Centre, on or about 18 occasions listed in Appendix “C”, you called in sick at Toronto South Detention Centre and were paid, and worked at Lakeridge Health and were paid.
- 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 paragraph 1(13) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at Toronto South Detention Centre, you failed to keep records as required, and in particular:
a. on or about September 7, 2015, you failed to maintain appropriate documentation with respect to your assessment of [Patient A];
b. on or about October 13, 2015, you failed to maintain appropriate documentation with respect to your assessment of [Patient B].
- 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 you engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to the following incidents:
a. [withdrawn];
b. while employed as a Registered Nurse at Lakeridge Health, on or about 25 occasions listed in Appendix “B”, you called in sick at Lakeridge Health and were paid, and worked at Toronto South Detention Centre and were paid;
c. while employed as a Registered Nurse at Lakeridge Health, on or about February 15, 2015, July 2, 2015, March 21, 2016, March 22, 2016 and June 2, 2016, you took unpaid emergency time at Lakeridge Health, and worked at Toronto South Detention Centre and were paid;
d. [withdrawn];
e. [withdrawn];
f. while employed as a Registered Nurse at Toronto South Detention Centre, on or about 18 occasions listed in Appendix “C”, you called in sick at Toronto South Detention Centre and were paid, and worked at Lakeridge Health and were paid;
g. while employed as a Registered Nurse at Toronto South Detention Centre, on or about September 7, 2015, you provided inadequate care to [Patient A], and/or inadequately documented the care you provided to [Patient A], including but not limited to the following:
i. you failed to appropriately assess and/or maintain appropriate documentation with respect to your assessment of Client [Patient A];
ii. you failed to initiate screening tools for alcohol and/or drug withdrawal with respect to [Patient A];
iii. you failed to identify [Patient A] as being at risk of alcohol and/or drug withdrawal;
iv. you failed to ensure that [Patient A] was seen by a physician within an appropriate time frame; and/or
v. you failed to inform your colleagues that [Patient A] should be monitored on an ongoing basis;
h. while employed as a Registered Nurse at Toronto South Detention Centre, on or about October 13, 2015, you provided inadequate care to [Patient B], and/or inadequately documented the care you provided to [Patient B], including but not limited to the following:
i. you failed to appropriately assess and/or maintain appropriate documentation with respect to your assessment of [Patient B]; and/or
ii. [withdrawn]; and/or
i. on or about May 1, 2017, you sent an email to your colleagues at Toronto South Detention Centre in which you referred to inmates and/or clients using unprofessional language.
APPENDIX “B”
Date
May 11, 2015
May 21, 2015
July 31, 2015
October 8, 2015
October 31, 2015
November 1, 2015
November 5, 2015
November 24, 2015
November 28, 2015
December 13, 2015
December 16, 2015
December 17, 2015
December 25, 2015
December 26, 2015
January 5, 2016
January 6, 2016
January 15, 2016
June 26, 2016
July 14, 2016
July 19, 2016
July 23, 2016
July 24, 2016
July 28, 2016
July 29, 2016
APPENDIX “C”
Date
January 30, 2015
March 30, 2015
June 5, 2015
September 11, 2015
September 16, 2015
October 3, 2015
October 4, 2015
November 14, 2015
November 15, 2015
January 22, 2016
January 29, 2016
April 8, 2016
April 13, 2016
April 14, 2016
April 26, 2016
April 30, 2016
May 1, 2016
July 10, 2016
Member’s Plea
The Member admitted the allegations set out in paragraphs #1(b), #1(c), #1(f), #2(a), #2(b) and #4(b), #4(c), #4(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.
The Member denied the following allegations set out in paragraphs #1(g)(i), #1(g)(ii), #1(g)(iii), #1(g)(iv), #1(g)(v), #1(h)(i), #1(i), #3(a), #3(b), #4(g)(i), #4(g)(ii), #4(g)(iii), #4(g)(iv), #4(g)(v), #4(h)(i) and #4(i) set out in the Notice of Hearing.
Overview
The Member has been a Registered Nurse since September 12, 1997. The Member worked at Lakeridge Health Ajax Hospital (“Lakeridge Health”) from October 6, 2008 to January 23, 2017, when she was terminated from her position for allegedly not cooperating with an investigation as a result of incidents that occurred over a one-and-a-half-year period. The Member was also employed at the Toronto South Detention Centre (“TSDC”) from June 8, 2008 until her termination on January 15, 2020. The TSDC is an adult, male only correctional facility. It is a maximum-security facility and is the largest detention centre in Canada. Inmates at the TSDC are serving sentences of up to 2-years-less-a-day or are in custody waiting to go to trial.
The Member admitted to having taken paid and unpaid sick/emergency time from one employer and then working at another employer that same day and being paid, resulting in approximately 48 incidents between 2015 and 2016.
It is also alleged that the Member provided inadequate care and documentation and failed to keep records as required with respect to [Patient A] and [Patient B] at the TSDC.
Lastly, the Member sent an email on May 1, 2017 to the Administrator, Manager(s), Deputy of Programs, Superintendent, Physicians and approximately 100 staff members at TSDC regarding a pilot project for take-home Naloxone Kits which was alleged to contain unprofessional language. In the email, the Member expressed her concern regarding the appropriateness of giving the Inmate/Patient health teaching and rationale on the use of Naloxone. The Member stated “inmates are high or withdrawing they do not want the drug effects taken away, nor do they have the ability to judge or concentrate on giving themselves Naloxone”. The Member suggested the Naloxone Kit and health teaching should be given on discharge before the Inmate/Patient is released.
The Panel considered 30 exhibits, which were entered into evidence. The exhibits included documents and standards of the College, as well as policies from the Ministry of Community Safety and Correctional Services. In addition, the exhibits included the health records of two patients, Correctional Services documents, an Investigation Report, a Verdict of the Coroner’s Jury, and a Crown Employees Grievance Settlement Board decision.
The Panel heard from three witnesses: [Witness 1], the Manager of [ ] at TSDC, who was the Member’s manager at the time, Expert Witness Linda Ogilvie, and the Member.
The issues are as follows:
Did the Member commit professional misconduct by?
(a) knowingly taking paid and unpaid time from one employer and then working at another employer on 48 instances between 2015 and 2016;
(b) providing inadequate care, inadequately documenting that care, or failing to keep records as required, for [Patient A] and [Patient B]; and/or
(c) sending an email to staff with concerns/issues she had regarding a pilot project for take-home Naloxone Kits in which she referred to inmates and/or clients using unprofessional language.
The College withdrew Allegations #1(a), #1(d), #1(e), #1(h)(ii), #4(a), #4(d), #4(e) and #4(h)(ii) in the Notice of Hearing.
The Panel found that the Member committed acts of professional misconduct as alleged in paragraphs 1(b), 1(c), 1(f), 1(g)(i), 1(g)(ii), 1(g)(iii), 1(g)(v), 2(a), 2(b), 3(a), 3(b). As to Allegations #4(b), #4(c), #4(f), the Panel found that the Member’s conduct was dishonourable and unprofessional. As to Allegations #4g(i), #4(g)(ii), #4(g)(iii), and #4(g)(v), the Panel found that the Member’s conduct was unprofessional.
The Panel dismissed the remaining allegations.
The Evidence
Agreed Statement of Facts
College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on some of the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:
THE MEMBER
Tara Frater (the “Member”) obtained a diploma in nursing from Centennial College in 1997.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on September 12, 1997.
The Member was employed at Lakeridge Health Ajax Hospital (“Lakeridge Health”) from October 6, 2008 to January 23, 2017. Her employment was terminated because she failed to cooperate with Lakeridge Health’s investigation into the incidents giving rise to these allegations of professional misconduct.
The Member was employed at the Toronto South Detention Centre (“TSDC”) beginning in June 2008 on a part-time basis, and on a full-time basis from July 2014. Her employment at TSDC was terminated on January 15, 2020 as a result of the overlapping shifts between Lakeridge Health and TSDC described below.
FACTS RELATED TO OVERLAP OF SHIFTS BETWEEN LAKERIDGE HEALTH AND TSDC
- On the following 25 dates, the Member called in sick at Lakeridge Health and received paid sick time. On the same dates, she worked at TSDC and was paid:
February 14, 2015
May 11, 2015
May 21, 2015
July 31, 2015
October 8, 2015
October 31, 2015
November 1, 2015
November 5, 2015
November 24, 2015
November 28, 2015
December 13, 2015
December 16, 2015
December 17, 2015
December 25, 2015
December 26, 2015
January 5, 2016
January 6, 2016
January 15, 2016
June 26, 2016
July 14, 2016
July 19, 2016
July 23, 2016
July 24, 2016
July 28, 2016
July 29, 2016
- On the following five dates, the Member took unpaid emergency time at Lakeridge Health. On those same five dates, the Member worked at TSDC and was paid:
February 15, 2015
July 2, 2015
March 21, 2016
March 22, 2016
June 2, 2016
- On the following 18 dates, the Member called in sick at TSDC and received paid sick time. On the same dates, she worked at Lakeridge Health and was paid:
January 30, 2015
March 30, 2015
June 5, 2015
September 11, 2015
September 16, 2015
October 3, 2015
October 4, 2015
November 14, 2015
November 15, 2015
January 22, 2016
January 29, 2016
April 8, 2016
April 13, 2016
April 14, 2016
April 26, 2016
April 30, 2016
May 1, 2016
July 10, 2016
FACTS RELATED TO TSDC
TSDC is a correctional facility operated by the Ontario Ministry of Community Safety and Correctional Services. TSDC is an adult, male-only provincial detention centre. It is a maximum-security facility and is the largest detention centre in Canada.
TSDC’s patient population is made up of adult male inmates serving a sentence of up to 2-years-less-a-day, and offenders who have been remanded into custody while awaiting trial. TSDC currently houses 1,200 inmates but has the capacity to hold 1,650. The majority of inmates range in age from 18 to 64 years old. The average length of stay for an inmate at TSDC is 10 days.
The Ministry has developed a number of policies and procedures in relation to Health Care Services provided to patients at correctional facilities, including TSDC. The following policies were in force at the time of the incidents:
(a) Admission, Readmission, Transfer and Release of Inmate (dated October 1999);
(b) Management of Opioid Withdrawal (dated May 24, 2012); and
(c) Management of Alcohol Withdrawal (dated May 13, 2013).
FACTS RELATED TO PATIENT [A]
At the relevant time, [Patient A] was a 36-year-old male. He was admitted to the Facility on September 7, 2015. [Patient A] had previously been admitted to the Facility within the last six months. Information regarding [Patient A]’s previous admissions and alerts regarding those previous admissions were available in the Facility’s Offender Tracking Information System (“OTIS”).
The Member conducted the readmission health care assessment of [Patient A] on or about September 7, 2015. The Member completed the TSDC Readmission Health Care Assessment Form for [Patient A].
The Member did not initiate the Clinical Opioid Withdrawal Scale, or the Clinical Institute Withdrawal Assessment for Alcohol Scale, Revised[.] After completing the assessment, the Member admitted [Patient A] to TSDC’s Special Needs Unit. She assigned [Patient A] to see a physician two days later, on September 9, 2015.
On September 8, 2015, at 1151, [Patient A] was found unresponsive in his cell. He was later pronounced deceased. His death was determined by the Office of the Chief Corner to have been caused by Acute Cocaine Toxicity.
FACTS RELATED TO PATIENT [B]
At the relevant time, [Patient B] was a 78-year-old male. He was admitted to the Facility on October 13, 2015. [Patient B] had been previously admitted to the Facility within the last six months.
The Member conducted the readmission health care assessment of [Patient B] on or around October 14, 2015.
CNO STANDARDS
CNO has published nursing standards to set out the expectations for the practice of nursing. CNO’s standards inform nurses of their accountabilities and apply to all nurses regardless of their role, job description, or area of practice.
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.”
CNO’s Professional Standards state that ethical nursing includes acting with integrity, honesty and professionalism in all dealings, including with health care team members.
CNO’s Ethics standard describes the ethical values that are most important to the nursing profession in Ontario. One of the most important ethical values in providing nurse care is truthfulness.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1 (b), (c), and (f), 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 5 to 7 above. The Member acknowledges that it is a breach of the standards of practice, specifically ethical standards, to take paid sick and/or unpaid emergency time from one employer, and to then work at another employer that same day.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a) and (b), in that on the dates described in paragraphs 5 and 7, she called in sick at one employer and received paid sick time, and worked and was paid at her other employer, thus misappropriating pay.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 4 (b) (c), and (f), and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 5 to 7 above.
Evidence on contested facts
During the hearing, in addition to the Agreed Statement of Facts, the Panel received 30 exhibits and received oral testimony from three witnesses including the Member.
College Counsel presented two witnesses in this case:
Witness: #1
[Witness 1] is an RN and she has been a registered member of the College since [ ]. [Witness 1] has worked in the prison system for many years, first at the [ ] for [ ] years, where she was the Health Care Manager and [ ] she went to the TSDC as the [ ] Manager.
The Member and [Witness 1] worked together at TSDC up until the Member’s termination on January 15, 2020. [Witness 1] was the Member’s direct manager and oversaw doctors, nursing staff and lab results. [Witness 1] was also responsible for planning appropriate clinics. [Witness 1] was familiar with the Member because the Member reported directly to her and they worked together without issues for many years. In regard to [Patient A], [Witness 1] testified to the following:
[Witness 1] testified that the Position Description Report for General Duty Nurses clearly explains the Member’s role at TSDC. [Witness 1] testified that the Member was expected to assess, evaluate, and develop a specific plan of care for all inmates/patients in her care. [Witness 1] testified the Member was responsible for ensuring that inmate/patient healthcare, treatment, condition, behaviour, evaluation of health care status be assessed according to the CNO’s Professional Standards and the Ministry policy dated October 1999.
[Witness 1] testified that there is the Health Care Serviced Policy and Procedures that the Member “should know.” [Witness 1] stated “it’s the protocol or guidelines.” “It’s on the website, and there is a printed version in areas where staff are.” “Nurses are expected to know this policy.” The Admission, Readmission, Transfer and Release of inmate policy clearly outlines the nurse's responsibilities. This policy dated October 1999 is 19 years old. The Member had the Management of Opioid Withdrawal policy dated May 24, 2012 and Management of Alcohol Withdrawal dated May 13, 2013 available to her.
[Witness 1] stated that a baseline “is needed for each patient”. [Witness 1] gave examples of medication and when last administered. [Witness 1] testified that the policy required the nurse to confirm the Patient’s medication, in this case, the methadone that [Patient A] was on.
[Witness 1] testified that in “the Special Needs Unit” (“SNU”), the inmate/patient is checked every 20 minutes by a Corrections Officer (“CO”). The Member did not initiate the Clinical Institute Withdrawal Assessment (“CIWA”) Scale or the Clinical Opioid Withdrawal Scale (“COWS”) assessment tools for inmate/patient [Patient A], which is “required” by the policy.
[Witness 1] testified that drug and alcohol abuse is “prevalent” in the correctional system. [Witness 1] stated, “if we miss it could be life-threatening.” [Witness 1] added there has been “homebrew found on the unit.” “The Member has an obligation to inform her peers and the COs of any concerns she might have regarding the inmate/patient and pass on any new or relevant information.” [Witness 1] stated “you need to be mindful of this inmate/patient due to [Patient A]’s history” and that “this inmate/patient would have been flagged for the morning if they felt there was an urgent need to be seen.” [Witness 1] states “nurses are responsible for making the clinical assessment.”
In regard to [Patient B], [Witness 1] testified as follows:
[Witness 1] testified that the Member failed to complete a proper medication list for [Patient B] stating “he was on 10 to 12 medications on his previous admission” and that “he is there all the time, he is well known, and he has many health issues such as Dementia and Parkinson’s.” The Member should have been mindful of the safety risks. [Witness 1] states the Member “did not sign her nursing notes, and the inmate/patient had a cognitive decline.” The inmate/patient was flagged to have another interview the next day, adding “he was always better the next day, in the morning.”
In regard to the May 2017 email the Member sent, [Witness 1] testified as follows:
[Witness 1] testified that the Member sent an email to many correctional staff regarding her thoughts of the Naloxone Kit and health teaching given at point of admission. [Witness 1] testified that “there are better ways to express yourself,” and other ways of voicing concerns, such as “give the manager a call or look at the minutes of the staff meetings” as there had been weeks of talking it up and there were meetings over lunch where it could have been discussed.
[Witness 1] testified that the Naloxone Kits were a pilot project and that health teaching and the kit would be given to each inmate/patient that reported using opioids. [Witness 1] states, “they would be able to assist another person in the community.” and that “it could/would save lives.”
[Witness 1] reported that the email contained inappropriate language when the Member stated that the inmates/patients are “often drunk and high,” when they present to the prison. [Witness 1] found this comment “judgmental, unprofessional” and that it went against the Professional Standards as set out by the College.
[Witness 1] was unable to explain why the Member never had a performance appraisal saying “I don’t know” and adding “staff have never charted by exception.”
Witness: #2
Linda Ogilvie (“L.O.”) was called as an expert witness by College Counsel. L.O. is an RN and has been a Member of the College for the past 40 years. L.O. obtained her diploma in nursing, then her Bachelor of Science in Nursing (BScN), and her Masters of Science in Nursing (MScN). L.O. has an impressive resume and extensive work history, with many years working in the correctional system. L.O. reported several issues regarding policies, documentation, expectations regarding policies, documentation, expectations regarding working in the correctional facilities.
The Panel accepted L.O. as an expert witness in the areas of scope of practice for Registered Nurses and Nurse Practitioners, on the Professional Standard, Documentation Standard and Ethics Standard as set out by the College.
L.O. testified in regard to the correction system and the flow of the inmate admission process. L.O. stated “the system can be chaotic,” “the inmate/patients can be aggressive, and this might be their first time as an inmate. The nurse needs to use the full degree of their skills to manage these patients.” “The nurse has to ensure the assessment is complete, that there is a plan of care in place and provide a safe manner to address issues quickly and safely.”
L.O. pointed out the policies and processes at TSDC are consistent with the Standards of Practice and provide for safe care and thorough assessment of each inmate/patient.
L.O. testified that the assessments of [Patient A] and [Patient B] were “skeletal with little information and gaps in documentation,” that “you need to look at the old charts and compare so you can obtain a baseline,” that “the failure to complete the documentation is concerning,” and that “the expectation is the nurse will review the charts of all inmates.”
L.O. made comments regarding the use of several words the Member allegedly used. L.O. testified that the Member’s use of the phrase “drunk and high” in an email sent out to many staff at TSDC was unprofessional. L.O. stated “we are all accountable for our language. It’s critically important all nurses reflect on use of words including the Member.” L.O. testified that nurses need leadership skills stating, “they must be careful not to judge,” “must be patient focused,” and that they “must clearly communicate a plan of care to peers, because the admitting nurse may never see this person again.” L.O. explained the importance of clear, concise, and comprehensive documentation stating, “a large number of people rely on the information.”
Following the conclusion of the College’s case, the Member’s Counsel called the Member as the sole witness for the Defence.
Witness: #3
The Member obtained a diploma in nursing from Centennial College in 1997. The Member registered with the College as a Registered Nurse (“RN”) on September 12, 1997. The Member was employed at Lakeridge Health from October 6, 2008 to January 23, 2017. The Member’s employment was terminated because she failed to cooperate with Lakeridge Health’s investigation into the incidents giving rise to these allegations of professional misconduct. The Member was employed at TSDC beginning in June 2008 on a part-time basis, and on a full-time basis from July 2014. Her employment was terminated on January 15, 2020.
The Member testified to the following:
Her role at TSDC was to assess inmates brought to the detention centre. The Member testified she has to process 50 inmates in her 12-hour shift, which leaves a scant amount of time to do any follow-up.
In regard to Allegations #1b, 1c and 1f, the Member took full responsibility for her actions and came to an agreement with the College regarding these issues. The Member admitted she called in sick at Lakeridge Health and was paid and worked at TSDC and was paid. The Member also admitted that she took unpaid emergency time at Lakeridge Health and worked at TSDC and was paid.
In regards to [Patient A] the Member testified as follows:
In regard to her assessment of [Patient A], she filled out the Readmission Health Care Assessment form. The Member stated, “I found him to be more depressed than under the influence of alcohol or street drugs.”
The Member had reported that this inmate/patient had no allergies on the readmission form, yet the Member had written in fish. The Member states, “inmates often say they have an allergy to fish, but it is a food preference, not an allergy.”
The Member noted that the inmate/patient had cellulitis and spent nine days in Mount Sinai Hospital. The Member testified that the cellulitis was resolved. No action was required.
The Member noted that [Patient A] reported he had rib pain. The Member had no additional notes and testified that “If anything, I would have documented it.” In regard to bed bugs and Hepatitis C+, the Member testified she would have looked for bug bites, and [Patient A] had a history of Hepatitis C+. The Member explained that she charts by exception, stating there is no time to elaborate. The Member added, “I was never told my charting was insufficient.” The Member reported she has never been spoken to directly or indirectly regarding her charting. The Member was not informed about any issues in the [Patient A] case for eighteen months. The Member added, “I have charted that way (by exception) since I started working there in 2008.”
The patient reported drinking 26 ounces of liquor. The protocol on the readmission form states “use CIWA scale if weekly consumption is >40 drinks.” As there was no evidence the patient reported he had drunk more than 26 ounces of vodka, the Member felt the CIWA scale was not required.
The Member reported that she did chart “CIWA not done” for patient [Patient A] because she did not think he was withdrawing from anything. The Member gave testimony that the full patient charts were not within reach of the nurses providing assessment and they were in fact in another area that would require the nurse to go and retrieve the chart “if they could find it.” The Member testified “a lot of nurses just start a new page. I try to go and add my documentation to the chart that is open.” The patients’ old charts are held on the second floor, which is not easy access for nursing staff. The Member also testified, “I wrote notes, and they were on the chart and now they are gone. I know what I wrote.”
The Member testified she admitted [Patient A] to the SNU, stating “I know the mental health nurses aren’t as busy as we are, so I knew he would be assessed right away.”
The Member testified that there is an overlapping of documentation and that although some of the forms are not complete, there are other documents that would show she did the full assessment and sent the inmate/patient to the appropriate area. The Member does not have the luxury of time to go and review patient history in old charts.
The Member testified she was never alerted to any debriefing when [Patient A] died. The Member stated that the evidence would show the Member was not informed of any issues for eighteen months after the death of [Patient A]. The Member was given a four-week suspension in relation to the death of inmate/patient [Patient A] but the Member had not been informed that [Patient A] was placed in segregation instead of the SNU. The Member stated that the evidence showed that she won her grievance, and it was struck from her record. The Grievance Settlement Board document (Exhibit 30 page 5) stated “discipline must be imposed within a reasonable time frame. In this case the employer had no reason other than “significant workload issues and insufficient staffing,” “also given the griever was not made aware that her conduct was being questioned there is inherent prejudice such as what occurred in this case.”
In regard to [Patient B] the Member testified as follows:
The Member reported the inmate/patient [Patient B] was confused, unwilling to talk or answer questions. The Member placed [Patient B] in the medical unit as a result of her assessment.
The Member reported that there is an overlapping of documentation and that although some of the forms are not completed, there are other documents that would show she did the full assessment and sent [Patient B] to the appropriate area.
The Member testified she has always charted by exception as there is no time to elaborate and that if patients do not want to talk, she moves on to the next one, as she had over 50 people to assess. The Member testified that she was never told that her charting was insufficient nor was she ever approached or spoken to directly or indirectly regarding her charting. The Member also testified that she had never had a performance appraisal in twelve years, nor had she been approached regarding any concerns.
The Member arranged for [Patient B] to be assessed by the doctor the following day. The Member took responsibility for not dating and timing her entry on the nurse’s notes (Exhibit 16 page 504).
The Member explained at length how charts are left in the patient’s folder for the clerk in the morning so that the patient’s printed medical labels can be applied, to the documents such as nurse’s notes.
In regard to the email, the Member testified as follows:
In the email sent to multiple staff members at TSDC the Member expressed her concern regarding the appropriateness of giving the inmate/patient health teaching and rationale on the use of Naloxone at the time of entry. The Member stated “inmates are high or withdrawing, they don’t want the drug effects taken away, nor do they have the ability to judge or concentrate on giving themselves Naloxone.” The Member suggested the Naloxone Kit and health teaching be given on discharge before the inmate/patient is released.
The Member pointed out that the inmate/patients are not receptive to health teaching at the point of entry stating, “because they have been sitting in a holding cell for hours, they are tired and hungry, they are often under the influence of a substance, they are not open to discussing their addiction.”
The Member admits to using the term drunk and high and states “a lot of the inmates come in that way, they don’t want to lose the high.”
The Member reported that the use of drunk and high is a common practice and stated, “we use those words and worse at times, every single day in the institution” and “I have heard those words out of my managers mouth ([Witness 1]).” “I was instructed verbally, to get to the heart of the matter.” The Member added “I believe I was doing the best I could.” “I always gave 100%, when they called and asked me to work overtime I always went to help out.”
Final Submissions
College Counsel
College Counsel acknowledged that the College has the onus to prove the allegations set out in the Notice of Hearing based on the balance of probabilities. College Counsel asked the Panel to consider the evidence and requested that the Panel make findings that the policies and Standards of Practice were routinely not followed by the Member. College Counsel submitted that there is no evidence of any systemic problems and the testimony of [Witness 1] and L.O. were clear, concise and the Members conduct when compared to the Standards shows that “the Member fell below the Standards and expectations with the care of both [Patient A] and [Patient B].” College Counsel submitted that the Member took sick time/unpaid emergency time at one employer and worked for the other employer on 48 occasions. This was a breach of the Standards. The Member was unprofessional, dishonorable, and disregarded her professional obligations which are clearly set out in the Standards. College Counsel submitted that the evidence satisfied the allegations and submitted the Panel should find misconduct against the Member. College Counsel acknowledged that the practise setting was challenging but that did not relieve the nurse of her obligations. College Counsel added that all nurses must meet the standards of practice regardless of the area of work. Where there is a prevalence of substance abuse, nurses meet the standards by completing the substance abuse tools and ensuring risk of intoxication and withdrawal protocols are followed. TSDC’s policies, procedures, COWS and CIWA are all consistent with the Standards of practice. They are mandatory considering increased use of alcohol and opioids. These tools identify any pre-existing health conditions and risks related to withdrawal. The Member failed to assess and document her findings regarding [Patient A] leaving no true sense of the patient's health. The Member was unprofessional and showed a persistent disregard for her professional obligations. The Member was dishonorable as her conduct was a marked departure from her obligations, and she should have known it was not acceptable. Lastly, College Counsel submitted that the Member’s language was unprofessional and dishonourable when she used derogatory words that she should have known were unacceptable. College Counsel requested that the Panel make findings on all allegations as laid out.
Defence Counsel
Defence Counsel submitted that the Panel should dismiss the contested allegations.
Defence Counsel submitted that the Member was trying to get understanding, and that was transparent. The Member admitted to some allegations and some allegations had been withdrawn. Defence Counsel added that the Member genuinely believed that she was providing appropriate care.
Defence Counsel asked the Panel to review the evidence to see how the Member came to her conclusions as to how things were done at TSDC.
Defence Counsel submitted that the Member was not unprofessional as this is what the Member understood the policies of the institution to be.
With respect to the contested allegations, Defence Counsel submitted that the events occurred in a correctional facility which is not in a usual healthcare setting. It could be chaotic, and the patients were not there voluntarily.
As well, there was a lengthy period of time before the employer’s concerns were raised with the Member and the College.
In the present case, the Member went 16 months unaware that there were issues with her conduct and Defence Counsel asked the Panel not to draw a negative inference with respect to her recollection because this delay had an impact on it.
The documentation, such as Exhibit 10, shows that there was a wide divergence at TSDC between its policies and practices. Defence Counsel stated that she was not saying that [Witness 1] was not credible, but rather not reliable with respect to the practices at TSDC given all of these failures where policies were not routinely enforced.
Given the situation that the Member faced and the practice at TSDC, her charting by exception was not inappropriate. Further, with respect to [Patient A], she triaged him and put him in what she thought was the most appropriate unit, the SNU, where she thought he would be assessed by a mental health nurse. Given the lack of clarity in charting by exception everywhere else, Defence Counsel submitted that it would be hard to find that what the Member was doing was inappropriate.
With respect to [Patient B], the Member placed his chart in a folder and expected labels to be prepared by the administration staff. She got the information she was able to from [Patient B]. She did not engage in a serious disregard for the patient’s care nor was it unreasonable for her to rely on the administrative staff to prepare a sticker.
With respect to the email, while her reference to “drunk and high” was not an elegant way to express it, they deal with challenging patients who struggle with substance issues and she did not intend her comments to be disrespectful. Rather she was raising concerns she had.
The Member’s Counsel indicated this was an unusual case where the Member had admitted some of the allegations and taken responsibility for those but with respect to the balance, there was no consistency in the procedures at the TSDC and as a result the Member’s conduct was not a departure from her professional obligations.
In reply, College Counsel submitted that there was not enough evidence to establish that policies were not routinely followed nor was there a systemic problem that relieved the Member of her professional obligations.
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 of the standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1(b), #1(c), #1(f), #1(g)(i), #1(g)(ii), #1 (g)(iii), #1(g)(v), #2(a), #2(b), #3(a) and #3(b) of the Notice of Hearing. As to Allegations #4(b), #4(c) and #4(f), the Panel finds that the Member engaged in conduct that would reasonably be regarded by the members of the profession as dishonourable and unprofessional. As to Allegations #4(g)(i), #4(g)(ii), #4(g)(iii) and #4(g)(v), the Panel finds that the Member engaged in conduct that would reasonably be regarded by the members of the profession as unprofessional.
The Panel dismissed Allegations #1(g)(iv), #1(h)(i), #1(i), #4(g)(iv), #4(h)(i) and #4(i).
Reasons for Decision
Allegations Admitted by the Member
With respect to the allegations which the Member admitted to, the Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct for those allegations as alleged in the Notice of Hearing.
Allegation #1(b) in the Notice of Hearing is supported by paragraphs 5 to 7 and 17 to 21 in the Agreed Statement of Facts. The Member was employed at Lakeridge Health from October 6, 2008 to January 23, 2017. The Member was terminated for failing to cooperate with an investigation. The Member was employed at the TSDC beginning on June 8, 2008. She started as part-time then went to full-time from July 2014 to her termination on January 15, 2020 as a result of overlapping shifts between her two employers. The Panel was satisfied that on or about 25 occasions, the Member called in sick at Lakeridge Health and was paid and worked at TSDC and was paid. The Panel finds that the Member’s conduct was a breach of the College’s Ethics Standard.
Allegation #1(c) in the Notice of Hearing is supported by paragraphs 5 to 7 and 17 to 21 in the Agreed Statement of Facts. The Panel was satisfied that the Member on five occasions took unpaid emergency time at Lakeridge Health on the same five dates she worked at TSDC and was paid and finds that the Member’s conduct was a breach of the College’s Ethics Standard.
Allegation #1(f) in the Notice of Hearing is supported by paragraphs 5 to 7 and 17 to 21 in the Agreed Statement of Facts. The Panel was satisfied that the Member called in sick at TSDC on 18 occasions and was paid while she worked at Lakeridge Health and was paid. The Panel finds that the Members conduct was a breach of the College Practice Standard which states “all nurses are accountable for their decisions and actions. The Panel also finds that the Member’s conduct was a breach of the College’s Ethics Standard.
Allegations #2(a) and (b) in the Notice of Hearing are supported by paragraphs 5 to 7 and 22 in the Agreed Statement of Facts. The Member agreed with the College that she knowingly and willingly called in sick at Lakeridge Health on 25 occasions and was paid while she worked at TSDC and was paid. Further, the Member called in sick at TSDC on 18 occasions and was paid while she worked at Lakeridge Health and was paid. The Panel finds that the Member’s conduct constituted misappropriation of property from a workplace.
Allegations #4(b), (c) and (f) in the Notice of Hearing are supported by paragraphs 5 to 7 and 23 in the Agreed Statement of Facts. The Member admitted her actions were dishonourable and unprofessional. The Member’s conduct, when she took pay that she was not entitled to, contravened the College’s Ethics Standard and showed a serious and persistent disregard for her professional obligations. The Member’s conduct was also dishonourable as it contained an element of dishonesty and the Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.
Allegations Denied by the Member
With respect to the testimony of the witnesses, the Panel was alive to its obligations regarding the assessment of the credibility of the witnesses and applied, as necessary, the factors as set out in Re Pitts v. Director of Family Benefits Branch of the Ministry of Community and Social Services, namely:
(a) the witness’s appearance and demeanor;
(b) the witness’s opportunity to observe;
(c) the witness’s capacity to remember;
(d) the probability or reasonability of the evidence;
(e) the internal consistency or inconsistency of the evidence;
(f) the external consistency of the evidence; and
(g) the witness’s interest in the outcome of the case.
The Credibility of [Witness 1]
The Panel found [Witness 1] to be receptive at the beginning of the hearing, but less credible through her testimony. [Witness 1] referred to herself as having her Addiction Certificate, but when asked about the signs and symptoms of opioid withdrawal, she was unable to answer. [Witness 1] was not able to address and give feedback regarding the Naloxone Kits.
The Panel found the testimony of [Witness 1] vague at times, and on several occasions, [Witness 1] stated “you would need to talk to corporate about that.” [Witness 1] appeared to be protecting herself rather than giving testimony regarding the Member and her alleged misconduct. The Panel found her defensive and dismissive at times during questioning.
[Witness 1] did not have the opportunity to observe the Member directly because the Member was on steady night shift. [Witness 1] did not testify that she observed the Member assessing inmates/patients. [Witness 1] based her evidence on the thoughts and opinions of others and was inconsistent at times during her testimony and was not able to answer some basic and direct questions of the Panel.
The Credibility of L.O.
The Panel found this witness to be forthcoming and she gave information on the protocols in place at TSDC, the type of charting and assessments required and the expectations of each nurse. This witness testified in a manner that was consistent with the documentary evidence, which indicated she has an appointment at TSDC and is currently employed there. The witness was professional, direct and to the point.
However, notwithstanding that L.O. was professional and direct, the Panel found that her evidence was of little assistance with respect to the Member, as she did not have the opportunity to observe the Member at work but was relying on information that [Witness 1] had shared with her. Some of this witness’ testimony had no proof. Accordingly, L.O.’s evidence with respect to the Member was given little weight.
The Panel is also concerned that, although L.O. was put forward as an expert, and the Panel accepted her expertise, L.O. may have had a conflict of interest.
The Naloxone Kit was L.O.’s project and the Member, by sending out the email voicing her concerns, may have embarrassed and brought questions about the appropriateness of health teaching at the point of entry.
The Credibility of the Member
The Panel found the Member to be forthcoming and she reported accurately according to her observations. While the Member did not recall all of the points, her answers were reasonable. The Member admitted to several allegations and took responsibility for her actions. The Member took responsibility for the email she sent out to her superiors and peers. The Member denies that she did this out of malice; the Member was attempting to outline and present her rationale as to why health teaching at the point of entry was futile.
The Member was inmate/patient focused and was advocating for her patient population and pointed out the benefits of giving health teaching and support regarding Naloxone at the point of discharge.
There was no evidence presented that showed the Member had ever been disciplined, reprimanded orally or in writing by her employer in regard to her work performance, assessments, care plans or her documentation.
Furthermore, the Panel found an imbalance of power in this case. The Nursing expert L.O. is involved and knew of the situation with the Member and the death of inmate/patient [Patient A]. The Member’s manager [Witness 1] was under the tutelage of the nursing expert L.O. and the Member was hierarchically under both witnesses.
In coming to its determinations regarding the allegations denied by the Member, the Panel considered the evidence before it, including the documentary exhibits, the Agreed Statement of Facts where appropriate, and the testimony of the witnesses.
Allegations #1(g)(i), (ii), (iii), (v) in the Notice of Hearing are supported by paragraphs 10 and 11 in the Agreed Statement of Facts. The Member agreed with the College, that she knowingly failed to review previous admissions and alerts in the Facility’s Offender Tracking Information System (“OTIS”), and accepted responsibility for her actions. The Member admitted that she did not administer the “CIWA or COWS” withdrawal scales even though [Patient A] had a long and well documented history of substance abuse dating back to 2012 per “OTIS” report.
The Panel made no finding and dismissed Allegation # 1(g)(iv) in the Notice of Hearing. The Panel found that the Member did assess and arrange for [Patient A] to be assessed by the doctor on September 9, 2015. It was documented in the Members nursing notes (Exhibit #10, page 442 per evidence submitted). The Member had no concerns regarding [Patient A]’s health and in fact testified “he seemed more depressed to me than anything.” The Member arranged for [Patient A] to be admitted to the SNU, where the Member testified that “he would be seen by the Mental Health Nurse right away because they aren’t that busy.” The Panel found the Member had no control over [Patient A] being sent to segregation. The evidence showed [Patient A] made threats toward the COs and that is why he was not admitted to the SNU.
The Panel made no finding and dismissed Allegations #1(h)(i) and 4(h)(i) in the Notice of Hearing. The Panel found the Member did assess and arrange for [Patient B] to be assessed by the doctor the following day, which was October 19, 2015. The Member documented in her nursing notes (Exhibit #6, page 504) that “inmate difficult to understand. Booked for MD Oct. 19/15.” The Member testified that [Patient B] was confused and difficult to understand.
Allegations #3(a) and (b) in the Notice of Hearing are supported by paragraphs 10 to 20 in the Agreed Statement of Facts. The Panel found that the evidence showed a lack of proper documentation for [Patient A] and [Patient B]. The evidence showed holes in the Members documentation. The evidence showed areas of the assessment that required more detailed information and follow-up. The College’s standard Documentation, Revised 2008, states that as regulated health care professionals, nurses are accountable for ensuring that their documentation is accurate and meets the College’s Practice Standard. The Member testified that she charts by exception. The evidence shows the Member was not informed that there were concerns with 22 of her charts. There was no evidence presented that the Member has had a performance appraisal in years.
Allegations #4(g)(i), (g)(ii), (g)(iii) and (v) in the Notice of Hearing are supported by paragraphs 10 to 13 in the Agreed Statement of Facts. Further, the Member admitted that she did not initiate the CIWA or COWS Scale when she assessed [Patient A]. The Member testified the scales were not required. The Member testified her documentation at the time seemed understated. The Member took responsibility for her actions or lack thereof when she testified “I was doing the best that I could”. The evidence shows that [Patient A] was negative for opioids therefore the COWS was not administered. The Member testified that she did not do the CIWA stating “I didn’t because I didn’t feel he was withdrawing from anything”. “He looked more depressed to me this time.” The Member knew the policy but decided to go with her own assessment of [Patient A] presentation. The Panel found that the Member's conduct was unprofessional but did not meet the criteria for disgraceful or dishonourable.
The Panel made no finding and dismissed Allegation #4(g)(iv) in the Notice of Hearing. The Panel found that the Member arranged for [Patient A] to be assessed within two days. The Member testified [Patient A] was more depressed. The Health Care Services Policy and Procedures (Exhibit #4, page 390) provides that where possible, every inmate shall be assessed by a registered nurse within 48 hours of admission to a jail or detention centre. In some cases, the initial assessment shall consist of an assessment of immediate health care concerns and medications followed by a more-in-depth assessment to meet admission requirements as soon as practicable. The Member testified and the Panel accepted, that she had no immediate health care concerns regarding [Patient A]. The Member placed [Patient A] in the SNU so the Mental Health Nurse could assess him. The Member was not aware that [Patient A] was sent to a different unit.
The Panel made no finding and dismissed Allegations #1(i) and 4(i) in the Notice of Hearing. The Professional Standards Revised 2002 states that a nurse demonstrates the Standard by creating environments that support safe, effective and ethical care. Being aware of how the practice environments affect professional practice, the Panel finds that the language used by the Member in this environment would not be considered by members of the profession to be unprofessional but more of the culture of the institution.
Given the Panel’s findings, the parties are hereby directed to make arrangements through the Hearings Administrator for a hearing date for submissions on penalty.
I, Grace Fox, NP, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.