College of Nurses of Ontario v. Paula M. Theodossiou, 2020 ONCNO 45698

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Dawn Cutler, RN Member Mary MacNeil, RN Member Devinder Walia Public Member Richard Woodfield Public Member

BETWEEN:

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

• and -

PAULA M. THEODOSSIOU Registration No.: 8202160 JANE LETTON for Paula M. Theodossiou

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: January 31, 2020

DECISION AND REASONS

This matter came on for a hearing before a panel of the Discipline Committee (the “Panel”) on January 31, 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 name of the patient or any information that could disclose the patient’s identity referred to in the Discipline Hearing of Paula M. Theodossiou due to the privacy interests of the patient.

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 name of the patient or any information that could disclose the patient’s identity referred to in the Discipline Hearing of Paula M. Theodossiou.

The Allegations

The allegations against Paula M. Theodossiou (the “Member”) as stated in the Notice of Hearing dated November 1, 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 during your employment as a Registered Nurse at Sault Area Hospital (the “Hospital”) in Sault Ste. Marie, 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 December 17, 2017:

a. you initiated and/or participated in an intervention with [the Patient] during which you and/or your colleague(s) obtained a blood sample from [the Patient], without appropriate consent;

b. you initiated and/or participated in an intervention with [the Patient] during which you and/or your colleague(s) physically and/or chemically restrained [the Patient] for the purpose of obtaining a blood sample; and/or

c. you failed to consult with a physician after [the Patient] refused to have her vital signs taken and/or her blood taken; 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(9) of Ontario Regulation 799/93, in that during your employment as a Registered Nurse at the Hospital in Sault Ste. Marie, Ontario, you engaged in an act for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose in a situation in which a consent is required, without such a consent, in that on or about December 17, 2017:

a. you initiated and/or participated in an intervention with [the Patient] during which you and/or your colleague(s) obtained a blood sample from [the Patient], without appropriate consent; 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 Nurse for the Hospital in Sault Ste. Marie, 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 December 17, 2017:

a. you initiated and/or participated in an intervention with [the Patient] during which you and/or your colleague(s) obtained a blood sample, without appropriate consent;

b. you initiated and/or participated in an intervention with [the Patient] during which you and/or your colleague(s) physically and/or chemically restrained [the Patient] for the purpose of obtaining a blood sample; and/or

c. you failed to consult with a physician after [the Patient] refused to have her vital signs taken and/or her blood taken.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), 1(b), 1(c), 2(a), 3(a), 3(b) and 3(c) 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. Paula M Theodossiou (the “Member”) obtained a diploma in nursing from Cambrian College in 1981.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) in the General Class on January 1, 1982. The Member entered the Non-Practicing Class on December 30, 2018.

3. The Member was employed at the Hospital as a full-time staff nurse in the Emergency Department (“ER”) from April 2004 to March 2018. She was terminated as a result of the incident described below.

4. The Member has no prior complaints or reports to the CNO and no prior disciplinary history. If the Member were to testify she would say that she had no prior disciplinary history with the Hospital.

THE PATIENT

5. The Patient was discharged from the Mental Health Unit of the Hospital on the morning of December 16, 2017.

6. The Patient was subsequently admitted to the ER at the Hospital at approximately 1630 the same day on a Form 1 under the Mental Health Act. The Patient was to be transferred from the ER to the Mental Health Unit where a bed was available for her, once she was medically cleared which included having her vitals and bloodwork completed.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

7. When the Patient was in the ER, she was assigned to Nurse 1, and a Personal Support Worker (“PSW”) for constant 1:1 observation. The Patient was placed in one of two “lock down rooms” in the ER.

8. The Hospital’s practice was to complete bloodwork and a vital sign check in the ER before a patient would be transferred to the Mental Health Unit. During the day shift, the Patient refused to provide consent for vital sign checks or bloodwork required to complete the transfer. Nurse 1 documented the refusal on three occasions during her shift.

9. The Member was the Charge Nurse on duty from 1900 to 0700, with between one and three assigned patients. During this shift, the Patient was assigned to Nurse 2. Nurse 2 was relatively new to the ER at the time of the incident, but was not new to the profession or to the Hospital.

10. Throughout the evening, the Patient continued to refuse to consent to provide blood or a vital sign check.

11. The Member did not consult with a physician at any time about the Patient’s refusal to have her vital signs and blood taken. The Member was aware of the Hospital’s practice to complete bloodwork and a vital sign check before transfer from the ER to the Mental Health Unit.

12. The Patient Flow Supervisor inquired on more than one occasion as to the reason for the delay in the Patient’s transfer, as her role is to ensure the efficient flow of patients through the Hospital.

13. If the Member were to testify she would state that Nurse 2 told her that the Patient Flow Supervisor instructed them to call a Code White to obtain bloodwork from the Patient.

14. A Code White is used at the Hospital to call for help from other staff to manage violent or aggressive patients.

15. At approximately 2300, the Member asked Nurse 2 if she was “ready to get this going.” If Nurse 2 were to testify, she would state that she understood that the Member had decided to restrain the Patient to obtain the bloodwork. The Member acknowledges and admits that she intended to participate in the restraint of the Patient to obtain the bloodwork.

16. If the Member were to testify, she would state that she understood, at the time of the incident, that based on the body language and actions of others, a restraint was appropriate and she did not object. However, the Member acknowledges and admits that it was her professional obligation to consider whether restraint was appropriate without the consent of the Patient, and that she failed to do so.

17. If the Member were to testify, she would state that she was acting on the Patient Flow Supervisor’s instructions when she took steps to obtain bloodwork from the Patient. The Patient Flow Supervisor is not a nurse or healthcare practitioner. The Member acknowledges and admits that she should have been aware that the Patient Flow Supervisor was not a clinician and thus could not direct clinical interventions, and that the Member was required to assess the appropriateness of the course of action in her role as Charge Nurse, which she failed to do.

18. Before approaching the Patient, the Member called the Mental Health Unit to request assistance from psychiatric attendants. She spoke to a nurse on the unit, Nurse 3. If Nurse 3 were to testify, she would state that she (Nurse 3) told the Member that she could not restrain someone to take bloodwork to which the Member replied that they could and that she had her supervisor’s permission. The Member denies that this exchange occurred. Nurse 3 encouraged the Member to call a Code White. Nurse 3 subsequently sent two attendants to assist in the ER.

19. Prior to entering the Patient’s room, the Member prepared 2mg of Lorazapam IM and 2mg Haldol IM in case the Patient became agitated during the restraint. The order for these medications was a PRN order for “severe agitation if the medication ordered by mouth was refused.”

20. Two attendants from the Mental Health Unit as well as two security guards arrived in the ER. The Member and Nurse 2 did not call a Code White.

21. At approximately 1212, the Member, Nurse 2, the PSW, two security guards and two psychiatric attendants entered the Patient’s room. The interaction in the Patient’s room was video-recorded.

22. When they first entered the Patient’s room, the Patient was lying on the floor with her head under a stretcher. At the time, the Patient was not exhibiting aggressive or violent behaviours; she was calm.

23. The attendants and security restrained the Patient while the Member removed the stretcher. The Member then assisted in the restraint of the Patient, the purpose of which was to obtain blood from her. Nurse 2 administered the PRN medication to the Patient and took blood. The Patient became agitated during the interaction.

24. During the restraint, the Patient complained that she could not breathe. Her lips were bluish. The Member instructed the PSW to remove his hand from the Patient’s neck area as it was obstructing her airway, which he did.

25. At 0500, the Member reported by email to the ER supervisor that during a Code White the Patient indicated she could not breathe. The Member also completed an incident report in which the Member identified that the PSW’s hold was improper, but did not raise any concern about her decision to restrain the Patient to obtain blood without consent.

26. In addition, at shift change, the Member reported the events to the oncoming nurse and was surprised when the nurse told her that it was inappropriate to restrain a patient to obtain blood.

27. The Patient lodged a complaint with the Hospital about the incident.

28. The Hospital investigated the incident and decided to terminate the Member’s employment.

CNO STANDARDS & GUIDELINES

29. 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 practice of the profession. As well, each nurse is expected to continually improve the application of professional knowledge. A nurse demonstrates this standard by actions such as:

a. Providing, facilitating, advocating and promoting the best possible care for clients;

b. Seeking assistance appropriately and in a timely manner;

c. Ensuring practice is consistent with CNO’s standards of practice and guidelines as well as legislation; and

d. Taking action in situations in which client safety and well-being are compromised.

30. CNO’s Consent practice guideline standard provides that consent is required for any treatment except treatment provided in certain emergency situations. The consent must be: related to the treatment provided, be informed, be voluntary and not have been obtained through misrepresentation or fraud. In addition, the guideline clarifies that an emergency situation is when the client is “experiencing severe suffering or risk of sustaining serious bodily harm if the treatment is not administered promptly.”

31. CNO’s Decisions about Procedures and Authority standard provides that nurses are required to “ensure that they have the appropriate authority before performing procedures.” The standard further clarifies that a nurse meets the standard by ensuring that informed consent includes the information that the nurse is performing the procedure.

32. The Hospital’s policy, which was in accordance with CNO’s Restraint standard that was in force at the time, required the use of least restraint, which requires alternative interventions to be exhausted before deciding to use a restraint.

33. The Member acknowledges and admits that she breached the standards of practice in her care of the Patient. In particular, she was required to have the consent of the Patient prior to taking a blood sample, which she did not have. The Member acknowledges that she did not consider whether she required consent from the Patient, and wrongly concluded that she did not require consent.

34. The Member acknowledges and admits that she breached the standards of practice for consent and least restraint when she participated in an intervention to obtain a blood sample from the Patient, using physical restraint, and improperly using a PRN medication as a chemical restraint.

35. The Member acknowledges and admits that in the circumstances, she was required to consult with a physician after the Patient refused to provide a blood sample to assess an appropriate course of action, and that she failed to do so.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

36. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a) to (c) of the Notice of Hearing in that she contravened a standard of practice of the profession or failed to meet the standards of the profession, as described in paragraphs 7 to 35 above.

37. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2(a) of the Notice of Hearing, and in particular that she participated in an intervention during which she and her colleague obtained a blood sample from the Patient without appropriate consent, as described in paragraphs 7 to 35 above.

38. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3 (a) to (c) of the Notice of Hearing, and in particular her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 7 to 35 above.

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), 2(a), 3(a), 3(b) and 3(c) of the Notice of Hearing. As to Allegations #3(a), 3(b) and 3(c), 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 8, 10, 11, 13, 15, 16, 17, 18, 23, 25, 26, 29, 30, 31, 32, 33, 34 and 36 in the Agreed Statement of Facts. Nurse 1 documented the refusal of consent on three occasions during her shift as throughout the evening the Patient continued to refuse consent and the Member did not consult with a physician at any time about the Patient’s refusal. The Member acknowledges and admits that it was her professional obligation to consider whether restraint was appropriate without the consent of the Patient and that she failed to do so. The Member would further state that she was acting on the Patient Flow Supervisor’s instructions when she took the steps to obtain the blood work, but this person is not a nurse or a healthcare practitioner. The Member denied a conversation between herself and a nurse from the Mental Health Unit whereby that nurse states she informed the Member that she could not restrain someone to take bloodwork. The Member breached the Professional Standards Guideline, the Consent Practice guideline, the Decisions and Procedures and Authority standard as well as the Hospital’s policy on consents and alternative interventions before use of restraints.

Allegation #1(b) in the Notice of Hearing is supported by paragraphs 7, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 29, 30, 31, 32, 34, 35 and 36 in the Agreed Statement of Facts. At approximately 2300, the Member asked Nurse 2 if she was “ready to get this going.” If Nurse 2 were to testify, she would state that she understood that the Member had decided to restrain the Patient to obtain the bloodwork. The Member acknowledges and admits that she intended to participate in the restraint of the Patient to obtain the bloodwork. The Member acknowledges and admits that it was her professional obligation to consider whether restraint was appropriate without the consent of the patient, and that she failed to do so. Prior to entering the Patient’s room, the Member prepared 2mg of Lorazapam IM and 2mg of Haldol IM in case the Patient became agitated during the restraint. The order for these medications was a PRN order for “severe agitation if the medication ordered by mouth was refused” when they first entered the Patient’s room, the Patient was lying on the floor with her head under a stretcher. At the time the Patient was not exhibiting aggressive or violent behaviours; she was calm. The interaction in the Patient’s room was video-recorded. The Member assisted in the restraint of the Patient, the purpose of which was to obtain blood from her. Nurse 2 administered the PRN medication to the Patient and took the blood. The Patient became agitated during the interaction.

Allegation #1(c) in the Notice of Hearing is supported by paragraphs 34, 35 and 36 in the Agreed Statement of Facts. The Member acknowledges and admits that she breached the standards of practice for consent and least restraint when she participated in an intervention to obtain a blood sample from the Patient, using physical restraint and improperly using a PRN medication as a chemical restraint. The Member acknowledges and admits that in the circumstances, she was required to consult with a physician after the Patient refused to provide a blood sample to assess an appropriate course of action and that she failed to do so.

Allegation #2(a) in the Notice of Hearing is supported by paragraphs 8, 10, 11, 13, 15, 16, 23, 25, 26, 29, 30, 31, 33, 34 and 37 in the Agreed Statement of Facts. The Member initiated and/or participated in an intervention with the Patient during which the Member and/or her colleague obtained a blood sample from the Patient without appropriate consent. The Member admits that she committed the act of professional misconduct by doing so.

With respect to Allegations #3(a), 3(b) and 3(c), the Panel finds that the Member’s conduct in inappropriately restraining the Patient both physically and chemically with the intention of obtaining a blood sample without consent and failing to consult a physician 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 dishonesty and deceit through preparing 2mg of Lorazapam and 2mg of Haldol with the intention of using them regardless of the actual wording of the order for these medications.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s conduct of physically and chemically restraining the Patient who continuously refused to consent to a blood sample 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 and requested 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.

The Joint Submission on Order included the Member’s signed Undertaking for permanent resignation as Appendix “A”.

Penalty Submissions

College Counsel submitted that the College was only seeking a reprimand as the Member has resigned from the College and has provided an Undertaking not to re-apply and has thereby permanently resigned.

The mitigating factors in this case were that the Member accepted responsibility throughout, including the Plea Agreement, and cooperated with the College throughout the process resulting in an uncontested hearing and an Agreed Statement of Facts. This in turn avoided the need for a contested hearing and for others to testify. The Member had no past discipline history with the College or the Hospital. The Member voluntarily entered the Non-Practicing Class in 2018 while she waited for the process to conclude, she showed remorse and freely admitted that her actions showed a complete lack of judgement.

The aggravating factors in this case were that the Patient was vulnerable and experiencing a mental health issue significant enough to require a Form 1. The Patient had made it quite clear that she was refusing consent and the repeated refusals showed she was clear in her intent.

The proposed penalty provides for general deterrence through the Member agreeing to an Undertaking whereby she voluntarily gave up her Registration with the College of Nurses and will never again use the title of Nurse or engage in the practice of nursing in any capacity.

The proposed penalty provides for specific deterrence through the oral reprimand and also through the Member the relinquishing her registration with the College of Nurses.

Overall, the public is protected because the Member will never have the opportunity to practice again.

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

In CNO v O’Neill (Discipline 2016), this member attempted to force a patient to take medication and assaulted the patient when she refused. It resulted in a criminal conviction for assault and culminated in an agreement, by the member, to permanently resign as a member of the College.

In CNO v Gilford (Discipline 2016), the member did not attend or participate in the hearing process. The member forced a pill into the mouth of a patient which constitutes abuse. The member also administered the wrong medication to a patient and failed to document vital signs in response to the error. The member had her certificate of registration suspended for seven months along with specific terms and conditions on it.

In regard to these cases, College Counsel acknowledged that neither of these cases were particularly analogous to this case but that they do represent a range of penalties.

The Member’s Counsel submitted that in December 2018, the Member went into the non-practicing class while she waited for this matter to be resolved. She had no discipline history with the College or her employer and was remorseful, profoundly sorry, cooperated throughout and has resigned.

Independent Legal Counsel stated that the primary goals of the Panel’s order are to ensure the protection of the public and to maintain confidence in nursing and self-regulation. He also stressed the importance of general and specific deterrence, as well as rehabilitation and remediation if applicable. He stated that the College and the Member have reached an agreement on the order and that it has been negotiated by experienced counsel. He stated that the Panel is obliged to accept the order unless it was so disproportionate to the offence in question, that to accept it would bring the administration of justice into disrepute or be contrary to the public interest.

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. As the Member has permanently resigned, it was unnecessary for the penalty order to address rehabilitation and remediation. Members of the profession will be reminded of the importance of client-centered care. Public protection is achieved as the Member will never practice nursing in any capacity in the future. The penalty is in line with what has been ordered in previous cases.

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.