College of Nurses of Ontario v. Lumibao, 2021 ONCNO 154454

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Dawn Cutler, RN Chairperson Sylvia Douglas Public Member Marnie MacDougall Public Member Martin Sabourin, RN Member Michael Schroder, NP Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO DENISE COONEY for College of Nurses of Ontario

• and -

ELENITA LUMIBAO Registration No. 8123648 ZOE HOUNTALAS for Elenita Lumibao

PATRICIA HARPER Independent Legal Counsel

Heard: September 22, 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”) on September 22, 2021, via videoconference.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order prohibiting public disclosure and banning the publication or broadcasting of the names of the patients, or any information that could disclose their identities, referred to orally or in any documents presented in the Discipline hearing of Elenita Lumibao.

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

The Allegations

The allegations against Elenita Lumibao (the “Member”) as stated in the Notice of Hearing dated September 15, 2021 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 employed as a Registered Nurse at the University Health Network – Toronto Rehabilitation Institute, in Toronto, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession as follows:

a. on or about June 9 and 10, 2018, you provided inappropriate and/or inadequate care and treatment to [the Patient], and/or you inadequately documented the care and treatment you provided to [the Patient], including but not limited to:

i. you failed to take appropriate action with respect to your nursing colleagues’ application of restraints to [the Patient];

ii. you failed to document the application of restraints to [the Patient];

iii. you failed to appropriately observe and/or monitor [the Patient] following the application of restraints;

iv. you failed to appropriately assess and/or inadequately documented the ongoing need for restraints on [the Patient];

v. you failed to initiate appropriate interventions after finding [the Patient] appeared to be deceased;

vi. after determining [the Patient] was deceased, you transported him to his bed;

vii. after determining [the Patient] was deceased, you failed to notify a manager that he was deceased; and/or

viii. you failed to appropriately document information about [the Patient]’s death;

b. in or about June and July 2018, you provided inaccurate information to the Facility in its investigation of [the Patient]’s death; and/or

c. in or about June and July 2018, you agreed with J.P., RN, to provide inaccurate information to the Facility in its investigation of [the Patient]’s death.

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 employed as a Registered Nurse at the Facility, you verbally, physically or emotionally abused a client when on or about June 9 and 10, 2018, you failed to take appropriate action with respect to your nursing colleagues’ application of restraints to [the Patient].

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 paragraph 1(13) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at the Facility, you failed to keep records as required, and in particular, on or about June 9 and 10, 2018:

a. you failed to document the application of restraints to [the Patient];

b. you failed to appropriately document your observation and monitoring of [the Patient] following the application of restraints;

c. you failed to appropriately document the ongoing need for restraints on [the Patient]; and/or

d. you failed to appropriately document information about [the Patient]’s death.

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 employed as a Registered Nurse at the Facility, 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, as follows:

a. on or about June 9 and 10, 2018, you provided inappropriate and/or inadequate care and treatment to [the Patient], and/or you inadequately documented the care and treatment you provided to [the Patient], including but not limited to:

i. you observed and/or permitted your nursing colleagues to apply restraints to [the Patient] without assessing the appropriateness and/or need for restraints;

ii. you observed and/or permitted your nursing colleagues to apply restraints to [the Patient] without assessing alternatives to the application of restraints;

iii. you observed and/or permitted your nursing colleagues to apply restraints to [the Patient] without obtaining an order for the application of restraints and/or failed to implement a medical directive for the application of restraints;

iv. you failed to document the application of restraints to [the Patient];

v. you failed to appropriately observe and/or monitor [the Patient] following the application of restraints;

vi. you failed to assess and/or inadequately documented the ongoing need for restraints on [the Patient];

vii. you failed to initiate appropriate interventions after finding [the Patient] appeared to be deceased;

viii. after determining [the Patient] was deceased, you transported him to his bed;

ix. after determining [the Patient] was deceased, you failed to notify a manager that he was deceased; and/or

x. you failed to document information about [the Patient]’s death;

b. in or about June and July 2018, you provided inaccurate information to the Facility in its investigation of [the Patient]’s death; and/or

c. in or about June and July 2018, you agreed with J.P., RN, to provide inaccurate information to the Facility in its investigation of [the Patient]’s death.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), 1(b), 1(c), 2, 3(a), 3(b), 3(c), 3(d), 4(a)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), 4(b) and 4(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. Elenita Lumibao (the “Member”) obtained a diploma in nursing from Royal Adelaide Hospital Nursing School in Adelaide, Australia in 1976.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on January 1, 1981. The Member was administratively suspended for non-payment of fees from February 2, 2019 until March 17, 2020, when her certificate of registration expired.

3. As a result of the non-renewal of her certificate of registration, the Member is not currently entitled to practise.

4. The Member was employed as a full-time RN at the University Health Network – Toronto Rehabilitation Institute (the “Facility”) in Toronto, Ontario from September 1, 1981 until December 31, 2018, with intermittent periods of employment at other facilities, including Kensington Health Centre in Toronto, Ontario from June 1, 2003 until June 6, 2019.

5. The Member has no prior discipline history with CNO.

THE FACILITY

6. The Facility is a rehabilitation hospital that aims to help patients overcome or live with disabling injuries, illnesses, or age-related health concerns.

7. The Geriatric Psychiatry Unit (the “Unit”) is a specialized unit of the Facility. The Unit’s goal is to help reduce harmful patient behaviours, thereby improving patients’ quality of life.

8. There are 20 beds on the Unit. Patients on the Unit have a diagnosis of some form of dementia and are usually admitted because of challenging behaviours that make it difficult for them to remain unsupervised. These behaviours include but are not limited to resisting medical support, restlessness, wandering, aggression, screaming and sexual inappropriateness.

9. The Member had worked as an RN at the Facility for approximately 37 years at the time of the misconduct set out below. During her tenure, at least 25 years were spent on the Unit and 20 years were spent on night shifts. The Member was a senior member of the staff, with a depth of experience regarding Facility process and expectations.

Facility Policies

10. The Facility’s expectations and requirements with respect to the application of restraints to patients are described in its Medical Directive for Initiation of Mechanical Restraints (the “Medical Directive”) and Patient Restraints Minimization Policy (the “Restraints Policy”).

11. The Facility’s expectations and requirements with respect to the care provided after a patient is deceased is set out in its Care After Death Policy (the “CAD Policy”).

The Medical Directive

12. In compliance with the Patient Restraints Minimization Act, 2001, S.O. 2001, c. 16, the Facility minimizes the use of restraints on patients.

13. The Medical Directive authorizes all RNs and RPNs at the Facility who have completed its Restraints Minimization Education, and who have reviewed and understood the Medical Directive and the Restraints Policy, to implement the Medical Directive and to apply mechanical restraints to patients who meet the indications set out in the Medical Directive.

14. The Facility defines “mechanical restraint” as a device applied to restrain the movement of the whole or a portion of a patient’s body to control his or her activities. Mechanical restraints must be selected with the patient’s unique circumstances in mind and are only to be applied for the “shortest period of time in accordance with the [Restraints Policy].”

15. The Medical Directive states that, “mechanical restraint use should be evaluated and reordered as indicated in the [Restraints Policy].”

16. The Medical Directive further provides that,

[r]estraints should only be used to prevent a patient from sustaining or inflicting serious bodily harm to himself/herself or others. Mechanical restraints are to be used only after all appropriate alternatives have been tried and failed or in an emergency situation when there is an imminent risk of bodily harm or to others.

The Restraints Policy

17. The Restraints Policy provides that restraints are used only after all appropriate alternatives have been considered and/or exhausted and, if applied, represent the least restrictive restraint necessary for the particular patient.

18. The Restraints Policy includes a detailed procedure for assessing the need for restraining a patient, exploring alternatives to restraints, obtaining informed consent from the patient or their substitute decision-maker, and documentation of the application of restraints.

19. The Restraints Policy provides that restraints are only to be applied after a health care team assessment and analysis of the patient’s behaviour has been completed, a physician’s order specific to a particular patient has been obtained, or the Medical Directive has been implemented.

20. A healthcare provider’s implementation of restraints and reasoning justifying the use of restraints on a particular patient must be documented in the Physical Restraint Monitoring Record. Staff are also required to complete the corresponding Consent to Physician Restraints Form and Restraint Monitoring Tool, in accordance with the Restraints Policy and Medical Directive.

21. A patient’s Physical Restraint Monitoring Record must be completed with each check in accordance with the schedule set out in the Restraints Policy.

The Care After Death Policy

22. The CAD Policy applies to patients through the dying process, from end-of-life care through to when deceased patients leave the Facility.

23. Central to the CAD Policy is the respect shown to the deceased patient’s physical, religious and spiritual wishes, as well as those of the patient’s family and friends, where circumstances permit. For example, the Facility tries to accommodate requests for personal time, prayers or special religious rites around this extremely challenging time for patients and their loved ones.

24. Upon determination that a patient has died, the Facility requires staff nurses to follow the CAD Policy by notifying the attending physician and Unit manager or manager-on-call that a death has occurred before initiating the preparation of the deceased patient’s body and personal belongings for transfer to the morgue.

25. In cases where coroner autopsies are required or requested, the staff nurses are to leave the deceased patient’s body “as is at the time of death.” Staff are also expected to complete a series of forms, such as adding the Medical Certificate of Death to the patient’s health care record.

Facility Training

26. The Member completed the Facility’s annual Restraint Minimization Geriatric Program Professional Development in November 2015 and December 2016.

27. The training, delivered by an advanced practising nurse educator, reviewed policies, expectations and duties with respect to restraint assessment, application, documentation, and evaluation.

28. The presentation set out the Facility’s policy that physical restraints require careful consideration before their application, and require ongoing monitoring and timely interdisciplinary clinical note entries once applied.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Unit Night Shift Complement

29. The Member worked alongside three other nursing colleagues on June 9, 2018 23:00 to June 10, 2018 07:30 night shift on the Unit.

30. The Member’s colleagues were Zahra Mollanedjad, RPN; Joan Brooks, RPN; and Joanne Pacione, RN.

31. The Member was the Charge Nurse on the night shift. As Charge Nurse, the Member was the designated point person whose responsibilities included supporting colleagues as necessary while on shift, and overseeing coverage of patients while colleagues were on break.

32. Ms. Brooks and Ms. Pacione regularly worked on the Unit. Ms. Mollanedjad usually worked at one of the Facility’s satellite locations. The Unit was not her “home site”. As Charge Nurse, the Member’s accountabilities included supporting Ms. Mollanedjad with any orientation or any limitations she had because she did not work regularly on the Unit.

33. There were approximately 17 patients in the Unit at the time of the incidents. Each nurse was assigned between four and six specific patients.

34. It is Facility practice for all nurses to monitor each other’s patients while their nursing colleagues are on 1 – 1.5-hour breaks or are supporting other patients requiring complex care. Each nurse has primary responsibility for documenting with respect to their individual patient assignments, but nurses are expected to update patient charts during the assigned nurse’s break to ensure documentation is an accurate reflection of patients’ health status.

[The Patient]

35. [The Patient] was a 79-year-old patient with moderate to advanced dementia. He was admitted to the Unit on April 23, 2018.

36. [The Patient] suffered from seizures. He presented as sporadically unsteady on his feet. He did not use any assistive devices for ambulation. He was occasionally restrained when agitated to mitigate fall risk.

37. The following entries were documented in [the Patient]’s chart by other members of the healthcare team immediately before the night shift began. At 17:00 on June 9, 2018, a colleague documented:

Pt observed in group this PM. Pt calm. Smiling & winking at staff at times tried to stand x2, said “I need to pee.” Nurse informed, walked & toileted, settled well back to group. Pt con’t to observe & was alert throughout.

38. The next entry in [the Patient]’s chart was documented by a colleague at 22:00 on June 9, 2018 as follows:

Received Pt sitting in [illegible] with clip alarm in the dining room. Calm + quiet on approach. Medication crushed + given with Jam. Ate supper 100% with total assist. Extremely verbally and physically aggressive with HS [illegible] hitting yelling, grabbing caregiver’s hand during care. Care done be x3 staff. Settled to bed @ 2030 hrs @ 2140 hrs attempt to get up, refused to settle to bed, very aggressive with transferring to w/c. He [illegible] in w/c with clip alarm place in the dining room. Unable to check VS.

39. Ms. Mollanedjad was [the Patient]’s assigned nurse during the June 9-10, 2018 night shift (23:00 - 07:30).

40. At the start of her shift at 23:00, Ms. Mollanedjad documented the following in [the Patient]’s chart:

Received Pt was sitting in w/c with clip alarm in the dining room. Refused going back to bed. Transferred to geri-chair. No further concern noted. ---------

Inappropriate Assessment, Application and Undocumented Restraint of [the Patient]

41. The dining room and surrounding corridors on the Unit are equipped with video surveillance cameras. As such, the following events were captured on camera, without audio.

42. From approximately 22:45 to 23:55, [the Patient] was sitting in a wheelchair in the Unit’s dining room. He appeared calm.

43. At approximately 23:41, the Member brought a Broda chair with a Posey pelvic restraint on the seat into the dining room and subsequently left the room. A Posey pelvic restraint is an approved physical restraint at the Facility and the only type of mechanical restraint used on the Unit.

44. At approximately 23:57, the Member and her nursing colleagues – Ms. Mollanedjad, Ms. Brooks and Ms. Pacione – entered the dining room wearing gloves in anticipation of physical contact with a patient.

45. The Member flattened and adjusted the Posey pelvic restraint on the seat of the empty Broda chair.

46. All four nurses then transferred [the Patient] to a Broda chair.

47. Neither the Member nor any of her colleagues documented that [the Patient] was transferred from a wheelchair to a Broda chair, or the reason for the transfer.

48. At approximately 23:59, Ms. Brooks and Ms. Pacione applied a Posey pelvic restraint to [the Patient] while the Member was in the room.

49. As the Charge Nurse on the Unit, and a nurse in a leadership position, the Member’s accountabilities towards [the Patient] included ensuring that the Medical Directive and Restraints Policy were followed. When staff are unfamiliar or unsure about the Unit’s expectations and processes, the Charge Nurse is expected to provide resources, guide them through the process and ensure that the policies are being followed to ensure patient safety. As Ms. Mollanedjad did not usually work on the Unit, and she was [the Patient]’s assigned nurse, the Member had a heightened accountability to ensure that [the Patient] was receiving appropriate care in accordance with the Facility’s “least restraint” protocol.

50. Neither the Member nor any of her nursing colleagues followed the Medical Directive and Restraints Policy with respect to the application of physical restraints to [the Patient]. They did not document the application of a physical restraint to [the Patient], the rationale for the application of the physical restraint, indicate if an alternative option was considered prior to the application of the physical restraint, or complete the required documentation in accordance with the Medical Directive and Restraints Policy. The Member also did not take any steps to ensure that Ms. Mollanedjad appropriately documented the restraint application.

Failure to Appropriately Observe and/or Monitor [the Patient]

51. The Restraints Policy requires that, once restraints are applied, a patient must be monitored every 15 minutes for the first hour, 30 minutes thereafter for one hour, and subsequently every hour until the restraint is released. The restraints must be released every two hours to provide patient care.

52. Shortly after [the Patient] was restrained in the Broda chair at 23:59, Ms. Mollanedjad, Ms. Pacione and Ms. Brooks exited the dining room. [The Patient] remained restrained in the Broda chair in the dining room.

53. Ms. Mollanedjad returned briefly to the dining room at approximately 00:04 and put pillows behind [the Patient]’s head and under his feet. [The Patient] remained physically restrained. Ms. Mollanedjad exited the dining room. She did not assess him, release the restraint, or complete any documentation with respect to the interaction.

54. At approximately 00:22, the Member entered the dining room, turned off the lights and exited. She did not approach or assess [the Patient]. He remained restrained in the Broda chair. She did not complete any documentation with respect to the interaction.

55. [The Patient] attempted to stand but was unable to do so due to the restraint. The blanket slipped off his lap.

56. At approximately 00:29, Ms. Brooks entered the dining room with a second patient. She did not turn the lights back on. She approached [the Patient], tossed a pillow onto his lap and checked that the restraint was still in place. She left the blanket that had fallen from [the Patient]’s lap on the floor. She did not otherwise assess him.

57. From approximately 01:15 until 02:15, Ms. Mollanedjad and Ms. Pacione went on breaks. The Member and Ms. Brooks were responsible for providing coverage to [the Patient] during Ms. Mollanedjad’s break.

58. On the video footage, from approximately 01:00 until 01:30, [the Patient] can be seen trying to reach for the blanket that had by that time fallen to the floor. He adjusted his gown, lifted his legs, and strained forward with outstretched limbs.

59. From approximately 01:50 until 02:00, [the Patient] continuously struggled against the restraint, with his limbs rigidly stretching outward, kicking, and holding in a tension pose.

60. By approximately 01:58, [the Patient]’s movements appear increasingly rigid.

61. From 02:00 until 02:10, [the Patient] rocked back and forth.

62. Ms. Brooks entered the dining room at 02:10. She approached [the Patient], picked up a pillow that had fallen on the ground and put behind [the Patient]’s head. She did not assess the ongoing use of the pelvic restraint, release the restraint, or otherwise assess [the Patient]. Ms. Brooks did not document this interaction in [the Patient]’s chart. This was the last time any of the four nurses observed [the Patient].

63. Other than this interaction, neither the Member nor Ms. Brooks entered the dining room to check on [the Patient] at any time during their colleagues’ break to monitor and assess the ongoing need for restraint. The Member did not follow the schedule in the Restraints Policy for monitoring and releasing the restraints as required or ensure that Ms. Brooks was following the Restraints Policy.

64. From approximately 02:30 until 05:00, the Member and Ms. Brooks went on a 2.5-hour break. Ms. Mollanedjad and Ms. Pacione were responsible for providing care to [the Patient] during this time.

65. Between 02:10 and 03:35, no one entered the dining room.

66. [The Patient]’s last physical movement is visible at 02:12.

67. Ms. Mollanedjad inaccurately documented in [the Patient]’s chart that, at 04:15 on June 10, 2018, his status had not changed since her last entry at 23:00: “no further concern noted.”

68. The Member admits that appropriate monitoring of [the Patient], in accordance with the Restraints Policy, required monitoring [the Patient] every 15 minutes for the first hour, every 30 minutes for the second hour and every hour thereafter, including a full removal of the restraint every two hours to provide patient care. The Member acknowledges that she did not personally comply with this requirement in the Restraints Policy, and she did not ensure that her nursing colleagues complied with the Restraints Policy with respect to [the Patient].

Failure to Follow CAD Policy

69. At 05:28, the Member and Ms. Brooks entered the dining room. Ms. Brooks walked toward [the Patient], and upon seeing him, pointed at the Member, and then gestured back toward [the Patient].

70. The Member believed [the Patient] was deceased immediately upon seeing him.

71. At the time she saw him, the Member was unaware of the Patient’s code status. She did not approach him to conduct a visual or physical assessment to conclude whether his breathing was shallow or laboured, or confirm if he was deceased.

72. The Member exited the dining room at 05:28. Ms. Brooks remained in the dining room and prepared to remove the other patient in the dining room.

73. At 05:29, Ms. Brooks paused mid-transfer of the second patient, returned to [the Patient] and touched his right leg. She did not conduct any other assessment. Ms. Brooks turned immediately back to the second patient and wheeled her out of the dining room.

74. The Member returned to the dining room, along with Ms. Pacione and a vitals machine, at 05:29. The Member picked up the blanket that had remained on the ground beside [the Patient], threw it on his lap from a distance, and walked away.

75. Although suspecting that [the Patient] was dead, the Member did not take [the Patient]’s vital signs. Neither the Member nor any of her colleagues touched him, checked his pupils, or identified if he had a weak pulse in the dining room. Instead, the Member prepared to move the body.

76. At approximately 05:30, Ms. Pacione unlocked the wheel locks on both sides of [the Patient]’s Broda chair. Ms. Pacione removed [the Patient] from the dining room and transported him to his room.

77. At the same time, the Member exited the dining room and left the vitals machine along a side wall in the corridor, before wheeling it into [the Patient]’s room.

78. Ms. Mollanedjad entered [the Patient]’s room at 05:33.

79. By 05:35, all four nurses were in [the Patient]’s room.

80. Over approximately the next 20 minutes, the four nurses went in and out of [the Patient]’s room with fresh laundry hampers, soiled linen bins and a supply cart. The interactions between the Member and her colleagues during this time were not recorded because there was no video camera in [the Patient]’s room.

81. At some point during this 20-minute timeframe, Ms. Pacione and the Member procured one or more fresh blankets that, if the Member were to testify, she would state that Ms. Pacione remarked to her were required to “keep the body warm”. The Member admits that the collective intention was to make it appear that [the Patient] died in bed or more recently than the Member suspected.

82. At approximately 05:42, the Member left [the Patient]’s room, pushing a supply cart and leaving it along a side wall in the corridor near [the Patient]’s room.

83. If [the Patient] was alive but in medical distress or declining when he was found by any of the nurses, he should have been immediately assessed.

84. According to the Facility’s CAD Policy, if [the Patient] was found deceased in the dining room, [the Patient] should not have been transferred to his room and, subsequently, out of the Broda chair and into his bed. The Member ought to but failed to notify a manager on finding [the Patient] deceased. The Member acknowledges she did not follow the CAD Policy.

Documentation of [the Patient]’s death

85. Ms. Mollanedjad documented the following entry in [the Patient]’s chart on June 10, 2018. She documented the time at 05:15.

Noted he was sounds sleeping. back to bed had large BM 3 staff ♀ VS. T = 35.4 noted vital sign was absent @ 0520 No respiration pupel fixed & he is in bed @ present of charting. Dr on called by RN to informed @ 0550.

86. This documentation was inaccurate. [The Patient] remained restrained in the Broda chair in the dining room at 05:15. He was not in bed at 05:15 as Ms. Mollanedjad’s charting indicates. Rather he was moved to his room by the Member and her colleagues. The Member admits and acknowledges that she failed to document any information about [the Patient]’s death, and/or to ensure that Ms. Mollanedjad’s documentation was accurate.

87. The Member admits and acknowledges that she did not follow the CAD Policy in relation to [the Patient].

88. The Facility was ultimately unable to determine the correct time of [the Patient]’s death, due to the conduct of the Member and her colleagues.

Inaccurate Information Provided During Facility Investigation

89. On June 11, 2018, the manager of the Unit (the “Manager”) learned of [the Patient]’s death. She reviewed [the Patient]’s health record and found the Member’s entry about his death unclear. As a result, the Facility conducted an internal investigation into [the Patient]’s death.

90. The Manager called the Member on June 13, 2018. During the call, the Member’s account of what occurred changed twice. First, she inaccurately told the Manager that she and her colleagues collectively noticed that [the Patient] was unresponsive at 05:13 while completing rounds and that the Member called the on-call physician at 05:30 notifying him that [the Patient] had died. Then, toward the end of the call, she stated that Ms. Mollanedjad and Ms. Pacione found [the Patient] “sleeping” in the dining room at 05:00 and that it was not until they transferred [the Patient] to his bed at 05:15 that the four nurses noticed he was unresponsive. The Member admitted to not taking vitals at any time during hers and her colleagues’ interactions with [the Patient].

91. The Facility held its first formal investigation meeting with the Member into [the Patient]’s death on June 27, 2018. The Member made the following inaccurate statements during the meeting:

• The Member told the Facility that she could not remember whether [the Patient] was ever put in restraints, and whether he was restrained when she assisted with transferring him from the Broda chair to his bed. However, the Member admits that she was present for the decision and the application of the restraint, that [the Patient] was restrained for the duration of the night shift, and that she failed to appropriately observe, monitor, and continually assess the ongoing need for restraints throughout the night shift.

• The Member told the Facility that she performed a physical check of [the Patient] at 02:30 and confirmed he was breathing. However, the Member acknowledges that she did not approach [the Patient] at that time and/or assess him.

• The Member told the Facility that she and her three colleagues entered the dining room at 05:15 and found [the Patient] breathing, pale and with his eyes closed. However, the Member admits that she did not see his chest move and that she cannot explain why she retrieved the vitals machine if that was case.

92. Between the conclusion of this meeting and the two subsequent discussions with the Facility, the Member and Ms. Pacione spoke on the telephone at least three times to ensure they were “on the same page”. The Member and Ms. Pacione decided that they would tell the Facility that [the Patient] was alive when they found him in the dining room and that he died in his bed.

93. The Member and Ms. Pacione agreed to tell the Facility that [the Patient] died in his bed and that he was transferred by all four nurses to his room so he would be “more comfortable” as he usually “sleeps on his side, facing the door” and he was restricted to sitting at a near 90-degree angle in the Broda chair.

94. The Member and Ms. Pacione also decided that they would tell the Facility that Ms. Mollanedjad and Ms. Brooks should have been charting their observations throughout the night shift.

95. The Facility held a second fact-finding meeting with the Member on July 10, 2018 and a third fact-finding meeting on July 12, 2018. The Member admits that she made the following inaccurate statements at those meetings:

• The Member once again told the Facility that she could not remember whether [the Patient] was ever put in restraints and whether he was restrained when she assisted with transferring him from the Broda chair to his bed. However, the Member admits that she was present for the decision and the application of the restraint, that [the Patient] was in fact restrained for the duration of the night shift, and that she failed to appropriately observe, monitor and continually assess the ongoing need for restraints throughout the night shift.

• The Member told the Facility that she observed [the Patient] at 02:15 and confirmed he was breathing by observing him from the dining room entrance way, and that she did not approach him to conduct a physical examination at any time during her shift. However, the Member acknowledges that she did not observe [the Patient] at that time and/or assess him.

96. The Member acknowledges that her statements to the Facility on June 27, 2018, July 10, 2018 and July 12, 2018 were false. In particular, the Member admits that she provided the Facility with inaccurate information relating to [the Patient]’s death and agreed with Ms. Pacione to provide incorrect information to the Facility.

CNO STANDARDS OF PRACTICE

97. CNO publishes nursing standards to set out the expectations for the practice of nursing. CNO’s standard of practice inform nurses of their accountabilities and apply to all nurses regardless of their role, job description, or area of practice.

Documentation Standard

98. CNO’s Documentation Standard provides that nurses are accountable for ensuring their documentation of patient care is accurate, timely and complete. The standard further clarifies that a nurse meets the standard by:

a. ensuring documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessment, planning, intervention (independent and collaborative) and evaluation;

b. documenting in a timely manner and completing documentation during, or as soon as possible after, the care or event;

c. indicating when an entry is late as defined by organizational policies; and

d. ensuring that relevant [patient] care information is captured in a permanent record.

Ethics Standard

99. The Ethics practice standard sets out the ethical values relating to nursing care, including, amongst other things, dedication to patient well-being, and maintaining commitments to nursing colleagues through truthful and respectful interactions. One of the most important ethical values in providing nurse care is truthfulness.

100. The standard states that “[t]eam cohesiveness is necessary to promote the best possible outcome for [patients]. In situations in which [patient] safety and well-being are compromised, however, nurses’ primary responsibility is to their [patients]. Nurses, therefore, take action when team members put [patients] at risk or are abusive to [patients] in any way.”

Professional Standards

101. CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring that their practice and conduct meet legislative requirements and the practice standards of the profession.

102. A nurse demonstrates this standard by actions such as:

a. providing, facilitating, advocating and promoting the best possible care for patients;

b. assessing/describing the patient situation using a theory, framework or evidence-based tool and identifying/recognizing abnormal or unexpected patient responses and acting appropriately;

c. advocating on behalf of patients;

d. seeking assistance appropriately and in a timely manner;

e. providing direction to, collaborating with, and sharing knowledge and expertise;

f. acting as a role model and mentor to less-experienced nurses and students; and

g. taking action in situations in which patient safety and well-being are compromised.

Therapeutic Nurse-Client Relationship Standard

103. CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) provides guidance to nurses on establishing and maintaining appropriate relationships with patients. The TNCR Standard notes that the therapeutic relationship with patients is at the core of the practice of nursing.

104. The TNCR Standard places the responsibility for establishing and maintaining the therapeutic nurse-patient relationship on the nurse. Therapeutic nursing services “contribute to the [patient’s] health and well-being” and the relationship is based on “trust, respect, empathy and professional intimacy, and requires the appropriate use of power inherent in the care provider’s role.”

105. The TNCR Standard specifies that nurses meet the standard for patient-centred care by working with the patient to ensure that all professional behaviours and actions meet the therapeutic needs of the patient.

106. Nurses violate the therapeutic relationship they are expected to develop with their patients when unacceptable conduct occurs. The TNCR Standard defines “abuse” as betraying a patient’s trust or violating the respect or professional intimacy inherent in the relationship when the nurse knew, or ought to have known, the action could cause or could be reasonably expected to cause, physical, emotional or spiritual harm to the patient. Abuse may be verbal, emotional, physical, sexual, financial or take the form of neglect. The intent of the nurse does not justify the neglect.

107. A nurse meets the standard by:

a. gaining an understanding of the patient’s abilities, limitations and needs related to his/her health condition and the patient’s needs for nursing care or services;

b. recognizing that the patient’s well-being is affected by the nurse’s ability to effectively establish and maintain a therapeutic relationship; and

c. engaging the patient in evaluating the nursing care and services that the patient is receiving.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

108. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a), 1(b) and 1(c) of the Notice of Hearing, as described in paragraphs 29-96 above, and that she failed to meet the standard of practice of the profession in her interactions with, and provision of care for, [the Patient] on or about June 9 and 10, 2018 and when she coordinated with her nursing colleague to provide inaccurate information to the Facility during its investigation into [the Patient]’s death. In particular, the Member admits that her actions breached the standards of practice articulated in CNO’s Documentation Standard, Ethics Standard, Professional Standards and TNCR Standard.

109. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, as described in paragraphs 41-68 above, in that she physically and emotionally abused [the Patient] when she failed to take appropriate action with respect to her nursing colleagues’ application of restraints.

110. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a), 3(b), 3(c) and 3(d) of the Notice of Hearing, as described in paragraphs 41-88 above, in that she failed to keep records, as required, in relation to the application of restraints and ongoing assessment, observation and monitoring provided to [the Patient] on or about June 9 and 10, 2018, including information about his death.

111. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 4(a), 4(b) and 4(c) of the Notice of Hearing, as described in paragraphs 29-96 above, and that such conduct brings shame to herself and to the profession, and was disgraceful, dishonourable and unprofessional.

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)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), 1(b), 1(c), 2, 3(a), 3(b), 3(c), 3(d), 4(a)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), 4(b) and 4(c) of the Notice of Hearing. With respect to allegation #2, the Panel finds that the Member physically and emotionally abused the Patient. As to allegations #4(a)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), 4(b) and 4(c), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable 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.

Allegations #1(a)(i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in the Notice of Hearing are supported by paragraphs 29-88, 97-107 and 108 in the Agreed Statement of Facts. The Member was a Charge Nurse amongst three other nurses on the Geriatric Psychiatry Unit (the “Unit”) at the University Health Network - Toronto Rehabilitation Institute (the “Facility”). The Member failed to apply the Facility‘s Medical Directive for Initiation of Mechanical Restrains (the “Medical Directive”) and the Patient Restraints Minimization Policy (the “Restraints Policy”) with respect to the application of restraint to [the Patient]. The Member failed to monitor [the Patient] as per the frequency set out in the Facility’s Restraints Policy. The Member failed to document the application of the restraint to [the Patient], the rationale for the application of the restraint and any alternatives tried prior to the application of the restraint. The Member failed to provide care to the [the Patient] every 2 hours while the restraint was applied as outlined in the Facility’s Restraints Policy. After the Member found that [the Patient] appeared to have died, the Member did not complete a proper assessment to confirm that [the Patient] was deceased. The Member did not follow the Facility’s Care After Death Policy (the “CAD”) as the Member assisted with transferring [the Patient] from a Broda chair to his bed. Additionally, the Member did not notify a manager as per policy when she discovered that [the Patient] had died. The Member failed to document any details pertaining to [the Patient]’s death and failed to ensure her co-worker correctly documented the details surrounding [the Patient]’s death.

The Member failed to meet the standards set out in the College’s Documentation Standard as the documentation did not reflect a complete record of the nursing care provided to [the Patient]. The Member violated the College’s Therapeutic Nurse-Client Relationship Standard (the “TNCR Standard”) as she abused [the Patient] physically and emotionally by inappropriately initiating restraints and failing to appropriately monitor [the Patient] after application of restraints. The Member violated the College’s Professional Standards in the capacity of a Charge Nurse by not sharing her knowledge and expertise surrounding the Facility’s Restraints Policy with her colleagues, one of whom was new to the Unit.

Allegation #1(b) in the Notice of Hearing is supported by paragraphs 89-96 in the Agreed Statement of Facts. During the Facility’s investigation into [the Patient]’s death in June 2018, the Member provided several false statements. The Member indicated that she could not remember if [the Patient] was restrained. The Member recounted that she performed a check of [the Patient] when she had not. The Member stated that she had found [the Patient] breathing at 05:15 when this was not the case according to video footage. The Member violated the College’s Ethics Standard as she did not provide truthful statements during the course of the Facility’s investigation into [the Patient]’s death.

Allegation #1(c) in the Notice of Hearing is supported by paragraphs 92-94 in the Agreed Statement of Facts. After the Facility’s preliminary investigative meeting with the Member, the Member admitted that she spoke on the phone with her colleague, Joanne Pacione (“Ms. Pacione”) three separate times to ensure that they were “on the same page”. The Member and Ms. Pacione decided to tell the Facility that [the Patient] was alive when they found him and that he had died in his bed. The Member violated the College’s Ethics Standard as she conspired with a colleague to provide statements which were not true during the course of the Facility’s investigation into the death of [the Patient].

Allegation #2 in the Notice of Hearing is supported by paragraphs 41-68 and 109 in the Agreed Statement of Facts. The Member assisted her colleagues with the application of the restraint to [the Patient]. The Member failed to initiate proper monitoring of [the Patient] while he was restrained in the Broda chair. The Member did not provide care to [the Patient] at 2 hour intervals while he was restrained in the Broda chair. [The Patient] exhibited distress due to the restraint as evidenced by him struggling against the restraint, kicking and holding a tension pose while restrained. The Member’s neglectful actions with respect to her duties to a patient who was restrained constitutes both physical and emotional abuse.

Allegations #3(a), 3(b), 3(c) and 3(d) in the Notice of Hearing are supported by paragraphs 52, 54, 62, 67, 85-88, 98 and 110 in the Agreed Statement of Facts. The Member failed to document as there is an absence of charting related to the application of the restraint, the rationale for the restraint and any alternatives tried before deciding to apply a restraint. The Member admits that she did not comply with the Facility’s Restraints Policy concerning the documentation of ongoing observation and monitoring following the application of the restraint to [the Patient]. The Member failed to document the ongoing need for the restraint. The Member did not document any information on [the Patient]’s death. The Member did not confirm that her colleague had accurately documented the events of [the Patient's] death.

Allegations #4(a)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), 4(b) and 4(c) in the Notice of Hearing are supported by paragraphs 29-96 and 111 in the Agreed Statement of Facts. There is an absence of documentation from the Member which speaks to the appropriateness of the restraint, alternatives considered to restraint, the use of the restraint, an order to apply the restraint, a justification of the ongoing need for the restraint and observations and monitoring following the application of a restraint. The Member failed to accurately document the events related to the death of [the Patient]. The Member provided inaccurate information during the Facility’s investigation and agreed with a co-worker to provide inaccurate information during subsequent investigative meetings by the Facility.

The Panel finds that the Member’s conduct in not documenting appropriately with respect to both the restraint and the events of [the Patient]’s death 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 as it demonstrated an element of dishonesty and deceit through providing inaccurate and misleading information during the Facility’s investigation and conspiring with her co-workers to move a deceased Patient to give the impression that the Patient had died in his hospital bed rather than restrained to a Broda chair. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The conduct of conspiring with her co-workers to move a deceased Patient to give the impression that the Patient had died in his hospital bed rather than restrained to a Broda chair demonstrates a disregard for the Patient’s dignity. The Member‘s physical and emotional abuse of the Patient by not taking appropriate action with respect to restraints casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

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

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

Penalty Submissions

Submissions were made by College Counsel.

College Counsel submitted that along with the Joint Submission on Order, an Undertaking by the Member for the Member‘s permanent resignation as a member of the College effective September 16, 2021 was provided as Appendix “A”. The Undertaking includes the Member’s commitment not to apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future. The Member is no longer entitled to a certificate of registration from the College. The Member acknowledges that she can no longer use the title “Nurse” or any of its variations. The Member can no longer engage in the practice of nursing in any capacity. The Member agrees that the public portion of the College’s Register will indefinitely reflect that the Member has agreed to enter into this Undertaking as part of a resolution of allegations of professional misconduct. College Counsel submitted that the Member’s undertaking to permanently resign allows for a limited penalty with no need for terms, limitations or conditions or suspension of the Member’s certificate of registration. The Undertaking includes a provision for the College to inform regulators in other jurisdictions about the Undertaking and/or it’s terms, should the Member attempt to pursue registration elsewhere.

The aggravating factors in this case were that the Member was an extremely experienced nurse and was a leader on the Unit. The Member stood by and watched as her colleagues applied restraints to a vulnerable Patient. The Member did not ensure that there was an appropriate need for the restraints. There was no documentation by the Member outlining that the restraint had been applied. The Member left the Patient alone and restrained overnight for a period of 5 hours during which, at some point, he died. The Member along with her colleagues agreed to transfer the Patient to his bed to make it appear that he had died in bed rather than restrained in his Broda chair. The Member along with a colleague misled the Facility during its investigation. The events bring into question the Member’s ability to discharge the higher obligations that the public expects nurses to meet.

The mitigating factors in this case were that the Member has taken responsibility for her actions by pleading guilty to all allegations and by entering into an Agreed Statement of Facts and a Joint Submission on Order. The Member has entered into a resolution with the College. The Member had a lengthy history of registration with the College and this is her first appearance before the Discipline Committee.

In light of the Member’s permanent resignation, the proposed penalty provides for general deterrence through an oral reprimand. This will signal to other members of the nursing profession that there are serious consequences for this kind of misconduct.

The goals of rehabilitation and remediation are not applicable as the Member has undertaken not to return to the practice of nursing.

The oral reprimand satisfies the goal of specific deterrence in this case.

Overall, the public is protected as the Member has entered into an undertaking to resign her membership with the College and not to pursue reinstatement in the future. This resolution provides the public with the ultimate form of protection as the undertaking to resign removes the Member from practice permanently. With this resolution, the public will be confident in the College’s ability to regulate nurses.

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. Mollanedjad (Discipline Committee, 2021): This case involved one of the other members who was involved in this incident. The Decision and Reasons are not yet available. The penalty ordered includes an oral reprimand, a 4 month suspension, attendance at a minimum of 2 meetings with a Regulatory Expert, 24 months of employer notification, 6 random spot audits and 24 months of no independent practice.

CNO v. Farah (Discipline Committee, 2020): In this case, the member admitted to failing to assess, reassess, and document the patient’s need for restraints. The patient was 92 years old and had Parkinsons and dementia. The penalty included an oral reprimand, a 2 month suspension, a minimum of 2 meetings with a Regulatory Expert and 12 months of employer notification.

CNO v. Blum (Discipline Committee, 2019): In this case, the member worked in a hospital. The member failed to de-escalate a patient’s self-harm behaviours. The member failed to document an assessment around the need for a chemical restraint. The member did not follow up once the patient was restrained. The member also admitted to slapping the hand of the patient and making verbally abusive comments towards the patient. The penalty included an oral reprimand, a 3 month suspension, two meetings with a Regulatory Expert and 12 months of employer notification.

CNO v. Popo (Discipline Committee, 2020): This case involved concerns on the member’s documentation on the death of a patient. The member failed to appropriately monitor a post-surgical patient. The member falsely documented that she had checked the patient. The member failed to take appropriate action after finding the patient without vital signs. The penalty included an oral reprimand, a 3 month suspension, a minimum of 2 meetings with a Regulatory Expert and 18 months of employer notification.

CNO v. Van De Walle (Discipline Committee, 2017): This case involved deceit and dishonesty as part of an employer’s investigation. This case proceeded by way of a contested hearing given that the member had denied the allegations. The member falsely reported to her employer that she had not seen a colleague strike a patient. The panel found that the member had observed her colleague strike a patient and put the patient in a headlock. The penalty proceeded by way of a Joint Submission on Order which included an oral reprimand, a 2 month suspension, 2 meetings with a Nursing Expert and 12 months of employer notification.

The Member’s Counsel provided submissions to the Panel.

Member’s Counsel submitted that the Member has taken responsibility for her actions. The Member has worked closely with the College to produce a Joint Submission on Order. The proposed penalty is sufficient to address the professional misconduct. By entering into a Joint Submission on Order, the Member has saved the College the time and expense of a fully contested hearing. The Member was employed at the Facility from 1981 to 2018. The Member had a lengthy nursing career and had no prior discipline history with the College. The Member is currently not practicing nursing. The Member’s certificate of registration expired following an administrative suspension for non-payment of fees. The Member has resolved any of the College’s concerns of her future practice by entering into an Undertaking to resign.

The Member’s Counsel submitted a case to the Panel to demonstrate that the proposed penalty should be accepted by the Panel.

R. v. Anthony-Cook (Supreme Court of Canada, 2016): This case is from the Supreme Court of Canada and is a seminal case for the test for Joint Submissions on Order. The test provides that a panel must accept a Joint Submission on Order unless doing so would be contrary to the public interest or would otherwise bring the administration of justice into disrepute.

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, a proposed penalty and an Undertaking, has accepted responsibility. The penalty and Undertaking send a clear message to the membership that this type of conduct will not be tolerated. The resolution provides the public with the ultimate form of public protection as the Member is removed from future nursing practice as a result of the Undertaking of the Member’s permanent resignation from the practice of nursing. The principles of general and specific deterrence are achieved through the oral reprimand. Rehabilitation and remediation are not applicable as the Member has agreed not to return to the practice of nursing.

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

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.