DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Dawn Cutler, RN Chairperson Sylvia Douglas Public Member Grace Fox, NP Member Linda Marie Pacheco, RN Member Devinder Walia Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for ) College of Nurses of Ontario
- and - )
BARBARA ANN ROGERS ) NIITI SIMMONDS for Registration No. 0390955 ) Barbara Ann Rogers
) CHRISTOPHER WIRTH
) Independent Legal Counsel
) Heard: April 17, 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 April 17, 2020 via conference call.
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 names, or any information that could disclose the identities, of the patients referred to orally or in any documents presented in the Discipline hearing of Barbara Ann Rogers.
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 names, or any information that could disclose the identities, of the patients referred to orally or in any documents presented in the Discipline hearing of Barbara Ann Rogers.
The Allegations
The allegations against Barbara Ann Rogers (the “Member”) as stated in the Notice of Hearing dated April 6, 2020 are as follows:
IT IS ALLEGED THAT:
- You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at Northumberland Hills Hospital in Cobourg, Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to the following incidents:
a. you administered Amitriptyline to [Patient A] in the morning, on or about March 2, 2016, when the physician’s order for the medication was for bedtime, as needed (HS PRN);
b. you failed to complete a transfer of accountability with nursing staff on the next shift at the end of your own shift, on or about March 2 or 3, 2016;
c. you failed to understand the purpose of administering Fentanyl to a client, and/or failed to communicate appropriately with pharmacy and other staff regarding that purpose, on or about September 14, 2016; and/or
d. you kissed [Patient B] on the lips, after providing care, commenting to a co-worker that “you get further with honey”, or words to that effect, on or about December 9, 2016.
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 subsection 1(7) of Ontario Regulation 799/93 in that, while employed as a Registered Nurse at Northumberland Hills Hospital in Cobourg, Ontario, you abused a client verbally, physically and/or emotionally with respect to kissing [Patient B] on the lips, after providing care, commenting to a co-worker that “you get further with honey”, or words to that effect, on or about December 9, 2016.
You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at Northumberland Hills Hospital in Cobourg, 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 with respect to the following incidents:
a. you administered Amitriptyline to [Patient A] in the morning, on or about March 2, 2016, when the physician’s order for the medication was for bedtime, as needed (HS PRN);
b. you failed to complete a transfer of accountability with nursing staff on the next shift at the end of your own shift, on or about March 2 or 3, 2016;
c. you failed to understand the purpose of administering Fentanyl to a client, and/or failed to communicate appropriately with pharmacy and other staff regarding that purpose, on or about September 14, 2016; and/or
d. you kissed [Patient B] on the lips, after providing care, commenting to a co-worker that “you get further with honey”, or words to that effect, on or about December 9, 2016.
Member’s Plea
The Member admitted the allegations set out in paragraphs 1(a), (b), (c), (d); 2; 3(a), (b), (c) and (d) 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
Barbara Ann Rogers (the “Member”) obtained a diploma in nursing from Fleming College in 2003.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on May 22, 2003.
The Member was employed at Northumberland Hills Hospital (the “Hospital”) from June 9, 2003 to May 4, 2017, when her employment was terminated as a result of the incidents below.
THE FACILITY
The Hospital is located in Cobourg, Ontario.
The Member worked as a full-time staff nurse on the inpatient rehabilitation unit (the “Unit”) at the Hospital.
The Member worked as the charge nurse on the Unit and had been working on the Unit for approximately 10 years at the time of the incidents below. Prior to working on the Unit, the Member had worked in the Hospital’s medical/surgical units, and in chronic long-term care and palliative care.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
Medication Error on March 2, 2016
[Patient A] was admitted to the Hospital in February 2016 after a hip fracture.
On March 2, 2016, the Member covered for [Nurse A], who was responsible for [Patient A]’s care, as [Nurse A] had to attend a medical appointment on her break.
The Member administered a 25mg dose of Amitriptyline at 0924 hours for pain, believing that the physician had ordered it PRN. The Member charted its administration.
When [Nurse A] returned, the Member reported that she had administered the Amitriptyline to [Patient A].
[Nurse A] pointed out to the Member that this was a medication error, as the order was for “HS PRN”, which was at bedtime, as needed. [Nurse A] also advised the Member that [Patient A] was at risk of falling and given the sedative effect of the drug, this was not an appropriate drug to give the patient during the daytime.
The Amitriptyline had been ordered as a sleep aid, and it had not been prescribed to [Patient A] for pain.
[Nurse A] indicated that when she pointed out the error to the Member and stated she would have to write-up the error, the Member told her “it was fine”.
If the Member were to testify, she would state that her comments to [Nurse A] were intended to convey agreement with the course of action proposed by [Nurse A]. She took responsibility for this medication error and in a meeting with Hospital management in May 2016, she committed to being more attentive to avoid future errors, and has acted diligently since that time.
Failure to Transfer Accountability on March 3, 2016
On March 3, 2016, the Member was coming off a night shift. She had seven patients under her care that night.
At approximately 0700 hours on March 3, 2016, the Member provided report to the charge nursing coming on shift for six of her seven patients.
The Member failed to complete one more transfer of accountability report for her remaining patient prior to going off shift.
If the Member were to testify, she would state that the nurse responsible for the remaining patient was busy at the time she tried to give report, and the Member forgot to complete the report before she left. On her way home, the Member was reminded by text message that she had not provided report for this patient. The Member pulled over on the side of the highway to provide report by phone, but the nurse advised she was too busy to take the call. If she testified, the Member would state she left her phone number for the nurse to call her back but was not later contacted. The Member took responsibility for this error during a meeting with Hospital management in May 2016 and expressed her commitment to ensuring that a report is provided for each patient assigned to her prior to leaving her shift.
Failure to Understand and/or Communicate Appropriately regarding the use of Fentanyl on September 14, 2016
On September 14, 2016, the Member was charge nurse for the Unit.
A nurse found the Member to report that a patient in the Unit was crashing.
When the Member and the nurse entered the patient’s room, a physician, [Doctor A], was present, with two other nurses and the crash cart. If she testified, the Member would state [Doctor A] instructed her to send someone to get the respirologist.
After the respirologist arrived, [Doctor A] asked the Member if IV Fentanyl could be dispensed from the Pyxis machine. The Member opened the Pyxis for [Doctor A] and they both noted that it did not dispense IV Fentanyl. [Doctor A] instructed the Member to dispatch someone to the emergency department (“ED”) to get the IV Fentanyl, as well as get an order for the medication from the pharmacy.
The Member dispatched a clerk to the ED to bring IV Fentanyl to the Unit.
The Member wrote out [Doctor A]’s request for the medication and faxed it to the pharmacy. If she were to testify, the member would state she did this, in part, to ensure that the administration of the medication would be entered on the electronic medication administration record, which occurs when medication orders are faxed to the pharmacy.
The pharmacist called the Member moments later to inquire about the IV Fentanyl order because IV Fentanyl was only given in the ICU, ED or critical care units.
The pharmacist indicated that the Member was abrupt and dismissive in her communications with her and disconnected the call.
If the Member were to testify, she would state that she disconnected the call because she was frustrated with the pharmacist. She was in a code situation and the only RN in the unit responsible. She did not feel that the pharmacist understood her explanations and she needed to attend to the patient who was crashing.
While the Member completed her charting after the incident, she received another call from the pharmacist. The Member told the pharmacist that the medication had already been given by the ED staff under [Doctor A]’s order, that she could not answer the pharmacist’s questions, and if the pharmacist wanted more information, she should ask [Doctor A] or check the chart.
When the Hospital’s Professional Practice Lead, [ ], followed up with the Member regarding this incident, [the Professional Practice Lead] reported that the Member advised that she did not know why [Doctor A] had chosen to order Fentanyl or why it was indicated in the circumstances, and that she had “no idea” that there were certain medications that could not be given on the rehab Unit in code situations. If [the Professional Practice Lead] were to testify, she would state that the impression she got from the Member was that if the ED nurse had not attended at the unit, she would have given the medication, if directed by the doctor.
When [the Professional Practice Lead] spoke to the Member about the restrictions on administering this medication, the Member responded by saying something to the effect of, “Well, we give a ton of meds down here and we don’t know the indications for all of them.”
If the Member were to testify, she would state that she was familiar with Fentanyl and that it was a high risk medication, but admits that she did not know why it was clinically indicated in the patient’s circumstances in this particular case. She would also state that she spoke to [Doctor A] after the incident and he confirmed it was the correct medication to give in the circumstances.
If the Member were to testify, she would further state that she was flustered during her interactions with the pharmacist and [the Professional Practice Lead], and acknowledges that she did not communicate appropriately with them.
Kissing [Patient B] on December 9, 2016
[Patient B] was an 84-year-old patient who suffered a stroke and was experiencing advanced dementia. He exhibited aggressive, agitated and erratic behaviours during his stay in the Hospital.
On December 9, 2019, a nurse was attempting to take [Patient B]’s blood pressure. The Member came to assist. The nurse and the Member were able to complete their task for [Patient B] working together.
The nurse observed the Member leaning over and kissing [Patient B] on the lips and standing up and saying to the nurse, “you catch more with honey” and walking away. The nurse observed that there did not appear to be any sexual intention.
If the Member were to testify, she would state that there was no sexual intention in kissing [Patient B], but she thought that being kind to him would help in managing his behaviours. However, the Member acknowledges that kissing the patient was not an appropriate strategy for dealing with this or any other patient.
CNO STANDARDS
- The Professional Standards practice standard sets out the following standards for nurses:
o Each nurse is accountable to the public and responsible for ensuring that her/his practice and conduct meets legislative requirements and the standards of the profession.
o Each nurse possesses, through basic education and continuing learning, knowledge relevant to her/his professional practice.
o Each nurse continually improves the application of professional knowledge.
o Each nurse demonstrates her/his leadership by providing, facilitating and promoting the best possible care/service to the public.
o Each nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships.
- In particular, the Professional Standards indicate that a nurse demonstrates the above standards by:
o providing, facilitating, advocating and promoting the best possible care for clients;
o providing a theoretical and/or evidence-based rationale for all decisions;
o ensuring that practice is based in theory and evidence and meets all relevant standards/guidelines;
o recognizing limits of practice and consulting appropriately;
o using best-practice guidelines to address client concerns and needs;
o role-modelling professional values, beliefs and attributes;
o acting as a role model and mentor to less-experienced nurses;
o maintaining the boundaries between professional therapeutic relationships and non-professional personal relationships;
o ensuring clients’ needs remain the focus of nurse-client relationships;
o role-modelling positive collegial relationships;
o using a wide range of communication and interpersonal skills to effectively establish and maintain collegial relationships;
o demonstrating knowledge of and respect for each other’s roles, knowledge, expertise and unique contribution to the health care team;
o demonstrating effective conflict-resolution skills.
The Therapeutic Nurse-Client Relationship standard (the “TNCR standard”) places the responsibility for establishing and maintaining the limits and boundaries in the therapeutic nurse-client relationship on the nurse.
The TNCR standard states:
Crossing a boundary means that the care provider is … behaving in an unprofessional manner with the client.
- The TNCR standard sets out the following standards that nurses are expected to follow in their interactions with patients:
o Nurses use a wide range of effective communication strategies and interpersonal skills to appropriately establish, maintain, re-establish and terminate the nurse-client relationship.
o Nurses work with the client to ensure that all professional behaviours and actions meet the therapeutic needs of the client.
o Nurses are responsible for effectively maintaining the limits or boundaries in the therapeutic nurse-client relationship.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that she breached the Professional Standards when she made the medication error on March 2, 2016 with [Patient A], failed to transfer accountability on March 3, 2016 and failed to understand the purpose of administering Fentanyl and failed to communicate appropriately with the pharmacy and other staff at the Hospital on September 14, 2016.
The Member admits that she breached the Professional Standards and the TNCR standard when she kissed [Patient B] on the lips and commented that “you get further with honey” or words to that effect on December 9, 2016.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing and as described in paragraphs 7-36 above in that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession as follows:
o 1(a) in that she administered Amitriptyline to [Patient A] in the morning of March 2, 2016, when the physician’s order for the medication was for bedtime, as needed (HS PRN);
o 1(b) in that she failed to complete a transfer of accountability with nursing staff on the next shift at the end of her own shift on March 3, 2016;
o 1(c) in that she failed to understand the purpose of administering Fentanyl to a patient and failed to communicate appropriately with pharmacy and other staff regarding that purpose on September 14, 2016; and
o 1(d) in that she kissed [Patient B] on the lips after providing care, commenting to a co-worker that “you get further with honey” or words to that effect on December 9, 2016.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing in that she abused a patient emotionally, as described in paragraphs 33-36 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, and in particular her conduct was unprofessional with respect to 3(a), (b) and (c), and dishonourable and unprofessional with respect to 3(d), as described in paragraphs 7-36 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), (b), (c), (d); 2 (that the Member abused a patient emotionally); 3(a), (b), (c) and (d) of the Notice of Hearing. As to Allegations #3(a), (b) and (c), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members to be unprofessional. As to Allegation #3(d), the Panel finds the conduct to be both unprofessional and dishonourable.
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 7 to 14, 37, 38, 42 and 44 in the Agreed Statement of Facts in that the Member inappropriately gave a medication at a different time than prescribed.
Allegation #1(b) in the Notice of Hearing is supported by paragraphs 15 to 18, 37, 38, 42 and 44 in the Agreed Statement of Facts. The Member failed to complete a transfer of accountability to oncoming staff.
Allegation #1(c) in the Notice of Hearing is supported by paragraphs 19 to 32, 37, 38, 42 and 44 in the Agreed Statement of Facts. The Member failed to understand the purpose of the administration of Fentanyl and failed to communicate appropriately to members of the inter professional team.
Allegation #1(d) in the Notice of Hearing is supported by paragraphs 33 to 41, 43 and 44 in the Agreed Statement of Facts. The Member kissed a client diagnosed with dementia on the lips in order to manage his aggressive behaviour. In particular, this was a breach of both the Professional Standards, Revised 2002 and the Therapeutic Nurse-Client Relationship, Revised 2006.
Allegation #2 in the Notice of Hearing is supported by paragraphs 33 to 41, 43, 44 and 45 in the Agreed Statement of Facts. The Member emotionally abused a client when she kissed a client diagnosed with dementia on the lips in order to manage his aggressive behaviour.
With respect to Allegations # 3(a), (b) and (c), the Panel finds that the Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. This is supported by paragraphs 7 to 36 and 46 in the Agreed Statement of Facts.
The Panel also finds that the Member’s conduct in Allegation #3(d) was unprofessional and dishonourable. Although the conduct had no sexual intention, it was unprofessional as it demonstrated a serious disregard for the Member’s professional obligations and was also dishonourable in that the Member knew or ought to have known that the conduct was unacceptable and inappropriate for any client, for any purpose. This is supported by paragraphs 7 to 36 and 46 in the Agreed Statement of Facts.
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:
Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 3 months. This 3 month suspension shall take effect from July 6, 2020 and shall continue to run without interruption as long as the Member remains in the practising class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend two meetings with a Regulatory Expert (the “Expert”), at her own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:
i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;
ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):
Professional Standards,
Code of Conduct,
Medication, and
Therapeutic-Nurse Client Relationship;
iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;
v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, and online participation forms and Nurses’ Workbook;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;
viii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;
b) For a period of 12 months from the date this Order becomes final during which the Member is engaged continuously in the practice of nursing (i.e. not including the period during which the Member’s certificate of registration is suspended), the Member shall notify her employers of the decision. To comply, the Member is required to:
i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
ii. Provide her employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to the CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
Penalty Submissions
Submissions were made by College Counsel.
The mitigating factors in this case were:
The Member accepted responsibility for her actions;
The Member has no previous conduct history with the College;
The Member has cooperated with the College in the investigation and agreement was reached by way of an Agreed Statement of Facts and Joint Submission on Order.
The aggravating factors in this case were:
The seriousness of the conduct;
The Member illustrated a problematic mind set as a charge nurse.
The proposed penalty provides for general deterrence through the 3 month suspension and a clear message to the membership that this conduct will not be tolerated.
The proposed penalty provides for specific deterrence through the reprimand and a 3 month suspension.
The proposed penalty provides for remediation and rehabilitation through the review of the College’s publications, completion of the reflective questionnaires and online learning tools on the College Standards of Practice prior to the two meetings with the Nursing Expert. Employer notification will also support the Member in her return to practice.
Overall, the public interest is protected by the terms, conditions and limitations which provide for the Member’s remediation and for employer notification and because this decision will send a clear message that this type of conduct will not be tolerated by the profession, which is capable of self-governance. Further, the Member will return to the practice of nursing with a greater understanding of her professional obligations while at the same time having support and monitoring by her employer(s).
College Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases by this Discipline Committee.
CNO v. Carruthers (Divisional Court, 1996). In this case a vulnerable 29 year old mental health patient was put into restraints daily and the member distracted the patient by kissing the patient. This was found by the Discipline Committee to be a form of physical abuse and the member was suspended for 3 months. On appeal, the Divisional Court upheld the Discipline Committee’s decision.
CNO v. Guilbeau (Discipline Committee, 2010). The member failed to report a conviction of guilt. The member also pushed an elderly uncooperative patient by the shoulders down a hallway for about 45 feet. The member was given a 3 month suspension.
The Member’s Counsel submitted the following mitigating factors:
This was the first time that the Member had an issue with the College since her registration;
There was no physical harm to her clients;
The Member has gained insight into her practice;
Her admissions have preserved resources;
The Member is remorseful.
Member’s Counsel further submitted that in CNO v. Guilbeau (2010), the member did not attend the hearing and the College had to prove its case. Member’s Counsel also submitted cases to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.
CNO v. Andrew (2016). This proceeded by way of Agreed Statement of Facts and Joint Submission on Order. The male member who was employed in a home care setting was found to have made inappropriate sexual remarks. There were numerous other conduct issues such as: inadequate documentation practices, removal of the chart from the home and late entries not documented as late entries. The member received a 2 month suspension and 18 month employer notification along with the reprimand and meetings with a Nursing Expert.
CNO v. Gibson (2014). This case proceeded as an uncontested hearing. The member handled a frail elderly client roughly when attempting to insert a rectal suppository and rudely told the personal support worker to leave the patient in a wheelchair in the bathroom. This conduct was more egregious and illustrated a moral failing in the physical and emotional abuse of the client. The member received a 3 month suspension, 3 meetings with a Nursing Expert and 12 months of employer notification, as well as a reprimand.
R. v. Cook (2016). This decision of the Supreme Court of Canada was presented by the Member’s Counsel to support that Joint Submissions on Order should be accepted as they are vitally important to the criminal justice system. Counsel are well placed and experienced in the negotiation of such orders and as such this protects the public interest.
The Member’s Counsel also made submissions as to why the commencement of the suspension is deferred. This was requested by the Member and both parties were agreeable. At this time, in the setting of long term care, it would be difficult to find a replacement for the Member, while attempting to reduce the transmission of COVID-19. There is a risk to patients by introducing new staff from another facility. The Panel has the legal authority to exercise its discretion to defer the suspension pursuant to section 51(4) of the Health Professions Procedural Code (the “Code”).
In reply, College Counsel stated the Panel in making the order as agreed to in the Joint Submission on Order is exercising its authority pursuant to section 51(2) of the Code to suspend for a specific period of time and consequently there was no need for the Panel to exercise its discretion under section 51(4) of the Code. Further, both parties agreed on the merit of deferring the suspension.
Independent Legal Counsel (“ILC”) added that the Panel could take notice of the COVID-19 situation pursuant to Section 16 of the Statutory Powers Procedure Act (“SPPA”) and that as per section 51 of the Code, the Panel can set a date for the suspension.
Further, the public is protected as the Member’s employer is aware and supportive of the Joint Submission on Order.
Penalty Decision
The Panel accepts the Joint Submission on Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 3 months. This 3 month suspension shall take effect from July 6, 2020 and shall continue to run without interruption as long as the Member remains in the practising class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) The Member will attend two meetings with a Regulatory Expert (the “Expert”), at her own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:
i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;
ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):
Professional Standards,
Code of Conduct,
Medication, and
Therapeutic-Nurse Client Relationship;
iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;
v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, and online participation forms and Nurses’ Workbook;
vi. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into her behaviour;
viii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;
b) For a period of 12 months from the date this Order becomes final during which the Member is engaged continuously in the practice of nursing (i.e. not including the period during which the Member’s certificate of registration is suspended), the Member shall notify her employers of the decision. To comply, the Member is required to:
i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;
ii. Provide her employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;
iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:
that they received a copy of the required documents, and
that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to the CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.
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, rehabilitation and remediation, and public protection.
The public is protected as this decision sends a clear message to the public and the profession that this type of conduct will not be tolerated by the profession. This illustrates that the profession is capable of self-governance. The Member will return to the practice of nursing with a greater understanding of her professional obligations while at the same time having support and being monitored by her employer.
The penalty is in line with what has been ordered in previous cases.
With respect to the request that the suspension of the Member take effect on July 6, 2020, pursuant to section 16 of the SPPA, the Panel took notice of the current COVID-19 pandemic and its impact on long term care facilities and given that it would currently be difficult for the Member’s employer to find a replacement for her, the risk of transmission by the introduction of new staff and the fact that the Member’s employer was aware of and supportive of the Joint Submission on Order, including the date for the commencement of the Member’s suspension, the Panel was satisfied that in the circumstances, it was in the public interest that the Member’s suspension commence on July 6, 2020.
I, Dawn Cutler, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.