College of Nurses of Ontario v. Lucy Susan Johnston, 2021 ONCNO 130856

Discipline Committee of the College of Nurses of Ontario

PANEL: Carly Gilchrist, RPN Chairperson Dawn Cutler, RN Member Carly Hourigan Public Member Heather Riddell, RN Member Lalitha Poonasamy Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO JEAN-CLAUDE KILLEY for College of Nurses of Ontario

-and -

LUCY SUSAN JOHNSTON Registration No. IJ05463 NO REPRESENTATION for Lucy Susan Johnston

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: March 10-11, 2021

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”) commencing on March 10, 2021, via videoconference.

As Lucy Susan Johnston (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not in attendance.

College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing on December 3, 2020 by way of an affidavit from [ ], Prosecutions Clerk, dated December 18, 2020, confirming that [the Prosecutions Clerk] sent correspondence, which included the Notice of Hearing, on December 3, 2020 to the Member’s last known address on the College Register. As well, College Counsel provided the Panel with a further affidavit from [the Prosecutions Clerk], dated March 9, 2021, which detailed the College’s efforts to contact the Member, confirmation of her current address and that the courier package containing the hearing documents had been delivered to her.

The Panel was satisfied that the Member had received adequate notice of the time, place and purpose of the hearing and of the fact that if she did not participate in the hearing, it may proceed without her participation. Accordingly, the Panel decided to proceed with the hearing in the Member’s absence.

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 the public disclosure and banning the publication or broadcasting of the identities of the patients, or any information that could disclose the identities, of the patients referred to orally or in any documents presented in the Discipline hearing of the Member.

The Panel considered the submissions of College Counsel and decided that there be an order preventing the public disclosure and banning the publication or broadcasting of the identities of the patients, or any information that could disclose the identities, of the patients referred to orally or in any documents presented in the Discipline hearing of the Member.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated December 2, 2020 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while practising as a Registered Practical Nurse at Trent Valley Lodge in Trenton, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular

(a) in or around late 2016 and/or early 2017, on one or more occasions, you administered insulin by injection to [Patient A] without that [patient]’s consent, including by administering the injection without advance warning to the [patient];

(b) in or around July to August 2017 and before, on one or more occasions, you forced or attempted to force [Patient B] to eat and/or drink after the [patient] had refused food and drink, including by placing food into the [patient]’s mouth after the [patient] had refused food, and/or you yelled at [Patient B] in the dining room;

(c) in or around August to September 2017 and before, on one or more occasions, you forced or attempted to force [Patient C] to eat and/or drink after the [patient] had refused food and drink, including by putting a cup to the [patient]’s face after the [patient] had refused drink;

(d) in or around September 2017 and before, on one or more occasions, including but not limited to September 21, 2017, you yelled at, and/or shook, [Patient D] while attempting to wake the [patient] and/or you forced or attempted to force [Patient D] to eat;

(e) in or around September 2017 and before, on one or more occasions, including but not limited to September 19, 2017 and/or September 21, 2017, you yelled at, and/or shook, [Patient E] while attempting to wake the [patient] and/or you forced or attempted to force [Patient E] to eat and/or drink after the [patient] had refused food and/or drink;

(f) in or around September 2017 and before, on one or more occasions, you yelled at [Patient F] while asking the [patient] to drink, and/or you forced or attempted to force [Patient F] to drink after the [patient] had refused drink, including by putting a cup to the [patient]’s face after the [patient] had refused drink;

(g) in or around September 2017 and before, you forced or attempted to force [Patient G] to ingest medication without the [patient]’s consent, including by forcing or attempting to force the [patient] to ingest food in which medication had been crushed;

(h) on or about September 20, 2017, with respect to [Patient H],

i. you failed to remove the [patient] from the dining table when the [patient] began to vomit at the table;

ii. in front of the [patient] and other [patients] and staff, you stated words to the effect of “if you stand her up I will put a suppository in her bum it might make her feel better”; and/or

iii. you forced or attempted to force the [patient] to drink after the [patient] had refused drink;

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that, while practising as a Registered Practical Nurse at Trent Valley Lodge in Trenton, Ontario, you abused a client verbally, physically, or emotionally, and in particular:

(a) in or around late 2016 and/or early 2017, on one or more occasions, you administered insulin by injection to [Patient A] without that [patient]’s consent, including by administering the injection without advance warning to the [patient];

(b) in or around July to August 2017 and before, on one or more occasions, you forced or attempted to force [Patient B] to eat and/or drink after the [patient] had refused food and drink, including by placing food into the [patient]’s mouth after the [patient] had refused food, and/or you yelled at [Patient B] in the dining room;

(c) in or around August to September 2017 and before, on one or more occasions, you forced or attempted to force [Patient C] to eat and/or drink after the [patient] had refused food and drink, including by putting a cup to the [patient]’s face after the [patient] had refused drink;

(d) in or around September 2017 and before, on one or more occasions, including but not limited to September 21, 2017, you yelled at, and/or shook, [Patient D] while attempting to wake the [patient] and/or you forced or attempted to force [Patient D] to eat;

(e) in or around September 2017 and before, on one or more occasions, including but not limited to September 19, 2017 and/or September 21, 2017, you yelled at, and/or shook, [Patient E] while attempting to wake the [patient] and/or you forced or attempted to force [Patient E] to eat and/or drink after the [patient] had refused food and/or drink;

(f) in or around September 2017 and before, on one or more occasions, you yelled at [Patient F] while asking the [patient] to drink, and/or you forced or attempted to force [Patient F] to drink after the [patient] had refused drink, including by putting a cup to the [patient]’s face after the [patient] had refused drink;

(g) in or around September 2017 and before, you forced or attempted to force [Patient G] to ingest medication without the [patient]’s consent, including by forcing or attempting to force the [patient] to ingest food in which medication had been crushed;

(h) on or about September 20, 2017, with respect to [Patient H],

i. you failed to remove the [patient] from the dining table when the [patient] began to vomit at the table;

ii. in front of the [patient] and other [patients] and staff, you stated words to the effect of “if you stand her up I will put a suppository in her bum it might make her feel better”; and/or

iii. you forced or attempted to force the [patient] to drink after the [patient] had refused drink;

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(9) of Ontario Regulation 799/93, in that, while practising as a Registered Practical Nurse at Trent Valley Lodge in Trenton, Ontario, you did something to a client for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose in a situation in which a consent was required by law, without such consent, and in particular:

(a) in or around late 2016 and/or early 2017, on one or more occasions, you administered insulin by injection to [Patient A] without that [patient]’s consent, including by administering the injection without advance warning to the [patient];

(b) in or around September 2017 and before, you forced or attempted to force [Patient G] to ingest medication without the [patient]’s consent, including by forcing or attempting to force the [patient] to ingest food in which medication had been crushed;

4. 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 practising as a Registered Practical Nurse at Trent Valley Lodge in Trenton, 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, and in particular:|

(a) in or around late 2016 and/or early 2017, on one or more occasions, you administered insulin by injection to [Patient A] without that [patient]’s consent, including by administering the injection without advance warning to the [patient];

(b) in or around July to August 2017 and before, on one or more occasions, you forced or attempted to force [Patient B] to eat and/or drink after the [patient] had refused food and drink, including by placing food into the [patient]’s mouth after the [patient] had refused food, and/or you yelled at [Patient B] in the dining room;

(c) in or around August to September 2017 and before, on one or more occasions, you forced or attempted to force [Patient C] to eat and/or drink after the [patient] had refused food and drink, including by putting a cup to the [patient]’s face after the [patient] had refused drink;

(d) in or around September 2017 and before, on one or more occasions, including but not limited to September 21, 2017, you yelled at, and/or shook, [Patient D] while attempting to wake the [patient] and/or you forced or attempted to force [Patient D] to eat;

(e) in or around September 2017 and before, on one or more occasions, including but not limited to September 19, 2017 and/or September 21, 2017, you yelled at, and/or shook, [Patient E] while attempting to wake the [patient] and/or you forced or attempted to force [Patient E] to eat and/or drink after the [patient] had refused food and/or drink;

(f) in or around September 2017 and before, on one or more occasions, you yelled at [Patient F] while asking the [patient] to drink, and/or you forced or attempted to force [Patient F] to drink after the [patient] had refused drink, including by putting a cup to the [patient]’s face after the [patient] had refused drink;

(g) in or around September 2017 and before, you forced or attempted to force [Patient G] to ingest medication without the [patient]’s consent, including by forcing or attempting to force the [patient] to ingest food in which medication had been crushed;

(h) on or about September 20, 2017, with respect to [Patient H],

i. you failed to remove the [patient] from the dining table when the [patient] began to vomit at the table;

ii. in front of the [patient] and other [patients] and staff, you stated words to the effect of “if you stand her up I will put a suppository in her bum it might make her feel better”; and/or

iii. you forced or attempted to force the [patient] to drink after the [patient] had refused drink.

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member is a Registered Practical Nurse (“RPN”) who was employed with Trent Valley Lodge (the “Facility”) in Trenton, Ontario. She worked full time caring for the vulnerable population in this long-term care home. Her responsibilities were to supervise the care that was given by the PSWs and Activity staff on her shift, hand out medications to the [patients] and perform treatments on them, such as dressing changes. The Member worked extensively with a group of staff for a number of years and late in 2017, the staff became concerned for the [patients] and discussed her behaviour with the Registered Nurse (“RN”) in charge, who advised them to take their concerns to management. Some staff would state that they had seen her conduct go on for too long and felt it had to stop.

College Counsel called six witnesses who had all worked with the Member at the Facility. They testified as to a number of matters pertaining to the Member’s conduct involving eight different [patients] as set out in the Notice of Hearing. In some cases, the [patients] were forced to eat or drink as the Member would place food or fluid in their mouth even when they refused. The Member was also seen administering insulin injections to another [patient] even though he clearly refused the medication and the care plan distinctly stated he was to be allowed to refuse it. College Counsel also called an investigator with the College and an expert witness who testified as to the standards of practice.

After considering the evidence and College Counsel’s submissions, the Panel found that the Member had committed acts of professional misconduct as alleged in the Notice of Hearing except for a few allegations for which there was no evidence.

The Evidence

The Panel heard evidence from eight witnesses, some of whose testimony overlapped. Not all of the witnesses saw everything; some saw some of the behaviours, some others. The five staff members all had numerous opportunities, (sometimes on a daily basis) to observe the behaviour of the Member.

Witness #1 [ ]

[Witness 1] is an RN who was the Director of Care at the Facility at the time of the alleged professional misconduct. The Facility houses 102 [patients] over 3 floors. Staffing included one RPN on each floor, responsible for medication passes and dressings. One RN charge nurse floated between floors and called physicians as necessary. There were four PSW’s per floor who carried out the main portion of [patient] care. [Witness 1] remembered the Member well and worked many shifts at the same time as the Member. [Witness 1] did not actually see any of the incidents, but dealt with the complaint about the Member’s conduct as it had come in from several staff members who were also on duty. At a prearranged staff meeting unrelated to the Member’s conduct, six or seven staff came forward with concerns about the Member’s conduct, mostly related to [patient] care issues and most often in the dining room during meal times.

[Witness 1] appeared calm and answered questions directly while making eye contact. [Witness 1]’s demeanor was mostly composed but at one point she became weepy while admitting she found it difficult discussing issues of alleged abuse toward vulnerable elderly [patients].

[Witness 1] placed the Member on administrative leave while she interviewed every staff member that had made complaints. All meetings included management and union representation. At the end of the investigation the lawyer for the Facility was consulted and it was decided that the Member’s employment would be terminated. Exhibit #5 put before the Panel was the termination letter dated September 28, 2017.

[Witness 1] led the Panel through the care plans for eight different [patients] in the Facility and explained that care plans usually averaged 14-15 pages per [patient]. The Panel was walked through the relevant contents of the care plans, including age, diagnosis, activities of daily living and mobility issues and advanced directives. [Witness 1]’s testimony was clear and concise and the Panel was satisfied that she was credible and they could accept her evidence.

Witness #2 [ ]

[Witness 2] is an employee of the College and has been an investigator for seven years. She attested to the fact that she was assigned to this case and completed the investigation. She described how typically the investigator does not speak with the Member but communicates through disclosure documents that are sent to the Member, who is then given the opportunity to submit a response by a specified date. In this circumstance, the Panel was shown Exhibit #7 which was an interview summary of a phone conversation she had with the Member whereby the conversation ended abruptly when it was disconnected mid-conversation and [Witness 2] related that she was unable to reconnect with the Member. [Witness 2] confirmed that this document was made at the time of her phone call with the Member and was an accurate recording of her recollection of that call at the time.

[Witness 2] then also sent relevant documentation to the Member’s email address on file with the College but garnered no response from her.

[Witness 2] was calm, spoke plainly and answered the questions directly while making eye contact. She seemed well versed in her position and responsibilities. The Panel found her to be credible and her testimony to be reliable.

At this point in the proceedings, College Counsel addressed the use that the Panel could make of Exhibit #7, [Witness 2]’s interview summary of her phone call with the Member and submitted that the Panel could rely upon it as evidence of past recollection recorded and cited in R v. M.S., 2014 ONSC 3255 from the Ontario Superior Court of Justice as authority for this. This ruling pertains to when the witness has no present memory of the events, but is able to confirm that the record made at the time of the events is accurate. The concerns around hearsay are reduced and it is assumed that the record was accurate at the time it was created if the witness testifies as to its accuracy.

Witness #3 [ ]

[Witness 3] is a PSW who has been employed at the Facility for fourteen years. [Witness 3] remembers the Member well as she worked with her on many shifts, almost on a daily basis. [Witness 3] was one of the group of staff that expressed concerns to management regarding the Member’s conduct, in particular the Member forcing [patients] to eat and drink and shaking them forcefully to wake them if they nodded off during the meal and getting angry with them if they left the dining room during the meal. [Witness 3] noted that [Patient C] had bad teeth and did not like cold things in his mouth, but that the Member would force him to eat and drink. [Witness 3] also testified that the Member would forcefully shake [Patient D] yelling at her to eat and drink. [Witness 3] also saw the same type of behaviour by the Member towards [Patient E] and [Patient F]. [Witness 3] saw no other staff especially nurses behave that way towards any [patients]. [Witness 3] also said, that something had to be done.

[Witness 3] seemed very sure of her facts and was convinced that her concerns regarding the Member’s conduct were valid. [Witness 3] answered the questions honestly and appeared humble as she mentioned most of the [patients] by name that the Member had “picked on”. [Witness 3] felt that it was her responsibility to report the abuse to management. The Panel felt [Witness 3]’s testimony was sincere and completely credible.

Witness #4 [ ]

[Witness 4] is a PSW who worked at the Facility for sixteen years and testified that she worked with the Member daily for five or six years as they were both full time and often on the same shifts. [Witness 4] spoke with management of the Facility about the Member’s behaviour. [Witness 4] noted that the Member yelled at “a bunch of residents to eat and drink, in a loud tone of voice”. This was not the tone of voice any other nurse used. [Witness 4] testified that the Member shoved a spoon in the mouth of [Patient C] when he was yelling “no” and with [Patient D], she shook her forcefully to wake her and then shoved a spoon in her mouth. Regarding [Patient E], the Member would shake him forcefully to wake him, while yelling in a loud tone of voice and then force him to eat and drink.

Although [Witness 4] seemed slightly vague at times and often referred to her notes, the Panel believed that she was credible and accepted her testimony as valid.

Witness #5 [ ]

[Witness 5] has been a PSW at the Facility for approximately eighteen years and worked frequently with the Member. She testified that all of the staff in the dining room saw the Member’s behaviour while at meals and she said they got together to report it to management because it had to stop. [Witness 5] testified to the fact that the Member forced [Patient C] to eat and drink, and she saw [Patient D] being forcefully shaken by the Member to make her wake up. [Witness 5] agreed that the time frame was around September 2017. [Witness 5] also testified that when [Patient H] was reluctant to eat, the Member loudly said that if the staff took her back to her room she would put a suppository in her bum and that would make her feel better. Everyone in the dining room could hear these words.

[Witness 5] seemed entirely sure of her facts, calm and focused and answered honestly. As a result, the Panel found her to be credible and believed her testimony.

Witness #6 [ ]

[Witness 6] worked as a Restorative Care Aide at the Facility for approximately twenty years. [Witness 6]’s responsibility included working with physiotherapists and arranging activities although she also used to be a PSW. She testified that she often worked with the Member on the second floor as her shifts overlapped with her. During mealtimes, both Activity Aides on duty helped in the dining room, either serving or feeding [patients] and there was one nurse in the dining room too. [Witness 6] went to management with her concerns that the Member “pushed the issue with residents not drinking, she was too forceful and it was not comfortable to watch and no other staff behaved this way.” [Witness 6] observed the Member administering insulin to [Patient A] even when he had clearly refused the injection. [Witness 6] also testified to the forcing of food and fluid on [Patient C] and the forceful shaking of [Patient D] as well as the forcing of food and fluid by the Member on [Patient E] and [Patient H]. [Witness 6] went on to say that the Member was loud, she had an opinion about everything and her behaviour made the floor hectic.

[Witness 6] appeared to be well informed and informative. [Witness 6] took her time answering the questions and answered in great detail and seemed confident. The Panel was confident that her testimony was credible and accurate.

Witness #7 [ ]

[Witness 7] was also an Activity Aide and had worked at the Facility for twelve years. [Witness 7] recalled working with the Member mostly in the dining room during breakfast or lunch. [Witness 7] spoke of a general concern with the Member’s behaviour and how she treated the [patients] during meals, particularly in or around the fall of 2017. [Witness 7] testified to the Member giving insulin to [Patient A] after he had openly refused the injection, yelling at [Patient D] loudly to wake her and then forcing her to eat and drink, yelling at [Patient E] and forcing [Patient G] to take crushed medications without her consent. [Witness 7] testified that these behaviours happened regularly and always made the [patients] agitated and visibly upset.

[Witness 7] did not seem to need to refer to notes, but answered clearly and calmly with open honesty. [Witness 7] explained that the staff on the floor discussed the Member’s behaviour then told the charge nurse who sent them to the office to report to management. The Panel judged her testimony to be credible and reliable.

Witness #8 Susan Ash (“Ms. Ash”) - Expert

Ms. Ash is presently a Nurse Specialist in long term care in the Region of Peel. Ms. Ash’s C.V. included mention of receiving the RNAO Best Practice Spotlight, being a member of the LTC Advisory Committee with the College and being part of an LTC initiative with the local LHIN regarding education and development of Nurse Practitioners into nursing homes and designating a group of them who are now available as resources in LTC. The Panel was shown Exhibit #9 which was a file of Expert Documentation, including a copy of Ms. Ash’s C.V. The Panel accepted that she had the qualifications and experience to be an expert witness, particularly regarding the standards of practice for long term care and qualified her as an expert in this area.

Ms. Ash was led through copies of the College’s standards of practice, the Therapeutic Nurse-Client Relationship Standard and the Medication Standard, all of which she agreed were relevant and dated for the time of the allegations. The Documentation file also included the Resident Care Plans for the eight [patients] who had been allegedly abused by the Member and she agreed that all of it was included in what the College had sent to her for review. Page C 177 of the Documentation file was where the Hypothetical sent by the College to Ms. Ash began. Ms. Ash agreed that she had reviewed it and that was how she came to her conclusions.

The facts organized in the hypothetical were organized by [patient], eight in total and the facts are set out for each one. Ms. Ash testified as follows with respect to the hypotheticals:

[Patient A] - The Member’s behaviour falls well below the standards of practice, specifically the Medication Standard because she clearly did not have consent to administer the insulin injection. The care plan specifically states that according to the Power of Attorney he had the right to refuse insulin injections and glucometer readings. The preferred behaviour would have been to back away and reapproach at a later time or contact the doctor for further direction.

[Patient B] - Using a loud voice and yelling at a [patient] to wake up to eat and drink is a breach of the standards of practice because [patients] require and deserve a quiet respectful environment to enjoy dining. The behaviour of the Member was inappropriate, demeaning and constitutes verbal abuse. The abusive conduct was characterized by yelling in a voice loud enough to carry across the dining room. This is a breach of the Therapeutic Nurse-Client Relationship Standard as it shows insensitivity to the [patient]’s preferences and intimidation.

[Patient C] - Putting food in a [patient]’s mouth without consent is also a breach of the Therapeutic Nurse-Client Relationship Standard. Staff cannot force feed a [patient] without consent. Using force or handling a [patient] in a rough manner definitely breaches the standards of practice. Once again the doctor should have been notified for further consultation and instruction.

[Patient D] - Shaking the [patient], yelling and putting food in her mouth without her consent are all examples of abuse. It would have been appropriate to try to rouse the [patient], but the way the Member did it would only increase her level of anxiety and reduce the opportunity for an enjoyable meal.

[Patient E] - This type of abusive behaviour was repeated when this [patient] would fall asleep during mealtime and the Member forcefully shook him and yelled, which only served to agitate him, so that even if she forced food into his mouth, the food would fall back out.

[Patient F] - This was a small lady who did not like to eat and drink a lot. The Member would make this [patient] sit and drink everything she had at mealtimes and even if she spit it out the Member would keep forcing her to eat. The therapeutic nurse-client relationship is based on trust, respect, empathy and professional intimacy and requires appropriate use of the power inherent in the care provider’s role. The Member’s behaviour towards each of these [patients] equates to misuse of that power.

[Patient G] - The Member’s behaviour towards this [patient] breached both the Medication Standard and the Therapeutic Nurse-Client Relationship Standard, because she did not have consent to force food into her mouth when her mouth was closed and some of that food was medications disguised in the applesauce.

[Patient H] - This [patient] was failing and often would not eat, would hold food in her mouth, hold her mouth shut or shake her head and hold her hand up. The Member would continue to push food and fluid into her mouth. On one occasion, the [patient] vomited but the Member failed to remove her from the table. This was particularly upsetting for her fellow tablemates and certainly did nothing to enhance the quiet enjoyable dining experience. After the meal, the Member loudly instructed the staff member to “stand her up so I can put a suppository in her bum to make her feel better.” Again, this breaches the Therapeutic Nurse-Client Relationship Standard, but in addition it is a breach of confidentiality because several other [patients] and staff were able to hear the statement about the suppository which was totally inappropriate and demeaning. The standard of practice related to ethics means promoting the values of [patient] well-being, respecting [patient] choice, assuring privacy and confidentiality, among others. Clearly the Member’s conduct fell well below the standard.

The standard of practice relating to leadership states that each nurse demonstrates his/her leadership by providing, facilitating and promoting the best possible care/service to the public. The RPN on each floor was in the position of leadership with the intention of guiding the PSW’s and other staff to give the best possible care to the [patients]. By her abusive and disrespectful behaviour towards the [patients], the Member did not facilitate good quality care, and instead caused chaos and stress both to the staff and the [patients] and certainly fell well below the leadership standard required by the College and deserved by the Facility.

The standard of practice relating to professional relationships requires that they are based on trust and respect and result in improved [patient] care. The Member breached this standard to the extent that her co-workers went together as a group to discuss her behaviour with management with the intention of putting a stop to the abuse.

Final Submissions

College Counsel’s submissions asked the Panel to determine what occurred and then decide whether the Member’s conduct based upon those facts contravened the standards of practice, were physical, verbal or emotional abuse and/or were disgraceful, dishonourable or unprofessional. The Panel was reminded that [Witness 1] gave evidence on the meeting at the Facility, between the Member, management and the union representative, where the Member demonstrated how the shaking of the [patients] took place and it was obviously inappropriate. The Member demonstrated her conduct and so it is an admission against interest which can be relied upon. The evidence from the witnesses was consistent and should allow the Panel to find that the Member’s behaviour towards the [patients] fell well below the standards expected of a professional nurse.

According to expert witness, Ms. Ash, whom the Panel had decided was an expert in the standards of practice relating to long term care, the Member’s conduct went well beyond technical breaches of the standards and reached the fundamental level of impropriety. Multiple standards were breached, including ethics, leadership, the Medication Standard and the Therapeutic Nurse-Client Relationship Standard and all of it would be said to be abuse. It appeared to Ms. Ash that the Member prioritized her own objectives rather than the rights of the [patients].

College Counsel also submitted that all of the Member’s conduct was disgraceful, dishonourable and unprofessional and also identified a few allegations for which there had been no evidence presented.

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), (c), (d), (e), (f), (g), (h)(ii), (iii), 2(a), (c), (d), (e), (f), (g), (h)(ii), (iii), 3(a), (b), 4(a), (c), (d), (e), (f), (g), (h)(ii) and (iii) of the Notice of Hearing. With respect to allegations 2(a), (c), (d), (e), (f), (g), (h)(ii) and (iii), the Panel finds that the Member verbally, physically and emotionally abused the [patients]. As to allegations 4(a), (c), (d), (e), (f), (g), (h)(ii) and (iii), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

With respect to allegations 1(b), 1(h)(i), 2(b), 2(h)(i), 4(b) and 4(h)(i), the College did not lead any evidence on these specific allegations and therefore they are dismissed.

Reasons for Decision

The Panel deliberated and considered the testimony and the credibility of the eight witnesses. The Panel decided that the evidence of all eight witnesses was reliable and credible and accepted their evidence. The Panel relied on this evidence to find that the Member abused [patients] verbally, emotionally and physically by forcing food, fluids and medications on them against their will and without consent. The Member administered medications to [patients] who had clearly refused, either in pill form, crushed in applesauce, or by injection. She attempted to force food on a spoon into the closed mouth of another [patient] and force fed numerous others, all the while yelling loudly to wake them.

The Panel accepted the evidence of the expert, Ms. Ash, that the Member’s conduct was a breach of the standards of practice. The expert’s opinion evidence as to how it constituted a violation of the standards of practice was reasonable and clear.

The Panel also found that the Member breached subsection 1(9) of Ontario Regulation 799/93 when she administered insulin by injection to [Patient A] without his consent and by forcing or attempting to force [Patient G] to ingest medication without her consent.

Finally, the Panel found that the Member’s actions would be considered by members of the profession to be disgraceful, dishonorable and unprofessional, because of the abuse of vulnerable [patients] of this Facility by forcing medications without consent, when such consent is required by law; the yelling at another [patient] and forcing food and fluid on several others; and by breaching confidentiality boundaries while yelling for staff to take the [patient] to her room for a suppository. Nurses who follow the standards of practice in their work would reasonably find the behaviour of the Member to be well below the standard expected of nurses by the public, and that her conduct demonstrates a moral failing, and therefore was totally unacceptable.

As a result, the Member’s conduct displayed a serious or persistent disregard for her professional responsibilities. She knew or ought to have known that it was unacceptable and fell below the standards of a professional. It shamed the Member and by extension, this profession.

Penalty

Penalty Submissions

College Counsel submitted that, in view of the Panel’s findings of professional misconduct, it should make an order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 9 months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption as long as the Member remains in a practicing class.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at her own expense and within 6 months from the date the Member obtains an active certificate of registration. If the Expert determines that a greater number of session are required, the Expert will advise the Director, Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date the Member obtains an active certificate of registration. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director in advance of the meetings;

ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. 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):

1. Code of Conduct,

2. Professional Standards,

3. Therapeutic Nurse-Client Relationship,

4. Medication, and

5. Consent;

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 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. 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:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any 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 18 months from the date the Member returns to the practice of nursing, the Member will 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:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. 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:

1. that they received a copy of the required documents, and

2. 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; and

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

4. All documents delivered by the Member to CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

The Panel was reminded that the primary goal of a penalty is not to punish the Member, but to protect the public by providing for specific deterrence, general deterrence and where applicable rehabilitation and remediation. College Counsel submitted that the proposed penalty was a reasonable one in light of the seriousness of the Panel’s findings against the Member.

College Counsel submitted that the proposed penalty provides for all of the basic principles of penalty orders. It provides public protection and confidence in the College through the suspension, remediation components and the 18 months of monitoring. It provides general deterrence in that it sends a message to the membership that these actions will not be tolerated and specific deterrence to the Member by the suspension and oral reprimand. The penalty allows the Member an opportunity for remediation and to return to work, with monitoring. The proposed suspension of nine months reflects the seriousness of the misconduct.

The aggravating factors were the seriousness of the Member’s misconduct and the large number of standards which the Member breached.

With respect to mitigating factors, as the Member did not attend the hearing, the Panel has no information as to whether she is remorseful and to her willingness to remediate and so the only mitigating factor is that she has no prior discipline history.

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

CNO v. Thompson (Discipline Committee, 2019). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The facts are similar although not as excessive as the present case as it involved only one patient. The penalty included an oral reprimand, a six month suspension, two meetings with a Regulatory Expert, 18 months of employer notification and 18 months of no independent practice in the community.

CNO v. Mymryk (Discipline Committee, 2020). This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. College Counsel submitted that this case was closest in comparison with the present one, although the member in this case attended the hearing and accepted responsibility. The penalty included an oral reprimand, a seven month suspension, two meetings with a Regulatory Expert, 24 months of employer notification and 24 months of no independent practice in the community.

CNO v. Agustin (Discipline Committee, 2019). This case involved only one patient, on two different dates. It also proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty included an oral reprimand, a 4 month suspension, two meetings with a Nursing Expert and 18 months of employer notification.

Penalty Decision

The Panel accepts the College’s Submission on Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 9 months. This suspension shall take effect from the date the Member obtains an active certificate of registration and shall continue to run without interruption as long as the Member remains in a practicing class.

3. 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 a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at her own expense and within 6 months from the date the Member obtains an active certificate of registration. If the Expert determines that a greater number of session are required, the Expert will advise the Director, Professional Conduct (the “Director”) regarding the total number of sessions that are required and the length of time required to complete the additional sessions, but in any event, all sessions shall be completed within 12 months from the date the Member obtains an active certificate of registration. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director in advance of the meetings;

ii. At least 7 days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. 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):

1. Code of Conduct,

2. Professional Standards,

3. Therapeutic Nurse-Client Relationship,

4. Medication, and

5. Consent;

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 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. 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:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any 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 18 months from the date the Member returns to the practice of nursing, the Member will 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:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. 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:

1. that they received a copy of the required documents, and

2. 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; and

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

4. All documents delivered by the Member to 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

After careful consideration of the seriousness of the Member’s actions, the Panel accepted that the College’s proposed order was appropriate. The Member breached several standards of practice and verbally, physically and emotionally abused numerous [patients] who were vulnerable and unable to look after or speak up for themselves. The penalty protects the public, which is paramount, sends a significant message to the Member and the membership as a whole that this conduct will not be tolerated and allows the Member to rehabilitate and learn from her mistakes to become a better nurse.

Aggravating factors were the seriousness of the allegations and the sheer number of [patients] affected by the Member’s abusive behaviour. The fact that the Member disassociated herself from the proceedings, prevented the Panel from receiving from her any mitigating factors and so the only mitigating factor is that the Member had no prior discipline history with the College.

The penalty sends a message to the public that the College will enforce its mandate of public protection diligently and is also consistent with previous decisions of this Committee in similar circumstances.

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