College of Nurses of Ontario v. Alyson Mayne, 2022 CanLII 135821

minicounsel

PANEL: Susan Roger, RN Chairperson

Sylvia Douglas Public Member

Tomoko Fukushima, RN Member

Mary MacNeil, RN Member

Lalitha Poonasamy Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for

) College of Nurses of Ontario

and - )

ALYSON MAYNE ) MAE NAM for

Registration No. 9134925 ) Alyson Mayne

) KIMBERLEY ISHMAEL

) Independent Legal Counsel

) Heard: December 1, 2022

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 December 1, 2022, 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 preventing the public disclosure and banning the publication or broadcasting of the identities of the patients or family members of the patients, or any information that could disclose the identities, of the patients or family members of the patients referred to orally or in any documents presented in the Discipline hearing of Alyson Mayne.

The Panel considered the submissions of College Counsel and Member’s 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 family members of the patients, or any information that could disclose the identities, of the patients or family members of the patients referred to orally or in any documents presented in the Discipline hearing of Alyson Mayne.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegation set out in paragraph 2(a) in the Notice of Hearing dated October 20, 2022. The Panel granted this request. The remaining allegations against Alyson Mayne (the “Member”) are as follows:

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at The Hospital for Sick Children in Toronto, Ontario (“Hospital”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, in that:

(a) in or about 2016 or 2017, you hit an infant patient (name unknown) in the face with a cloth, after the patient vomited;

(b) on or about August 5, 2018, you documented and/or advised the oncoming nurse that you had pulled an umbilical venous catheter for an infant patient, [Patient A], when you had not done so;

(c) on or about August 31, 2018, you patted an infant patient, [Patient B], hard on top of the patient’s incision and stoma;

(d) on or about May 2019, you stated to the father of an infant patient, [Patient C] , that his technique during diapering care could give the patient E-coli, when you knew that the patient’s twin had recently died of E-Coli sepsis;

(e) in or about 2019, you stated to one or more infant patients “if your parents loved you they would let you die” or words to that effect;

(f) in or about 2019, you told one or more parents of infant patients that their infant had “screamed all night for you” or “the baby is missing you” or words to that effect to persuade the parents to attend the Hospital, when your report about the infant’s night or demeanour was not true;

(g) on or about June 21, 2019, you ripped and/or forcefully removed the ostomy bag of an infant patient, [Patient D], and/or caused bleeding at or near the site of the ostomy bag and/or told the patient’s parents that you were “not good” at ostomy bag care or words to that effect;

(h) on or about June 21, 2019, you hit or poked the eye of an infant patient, [Patient D], while administering eye drops;

(i) on or about June 21, 2019, you engaged in unprofessional communication and/or behaviour towards the parents of an infant patient, [Patient D], including;

i) telling the parents that they know nothing and need help to understand or words to that effect;

ii) telling the parents that they should not speak in their own language to their baby or words to that effect;

iii) telling the parents that they should speak English while at the bedside or words to that effect; and/or

iv) placing a blanket on and/or touching the patient’s father while he was praying by the patient’s crib; and/or

(j) on or about June 21, 2019, you failed to lower the oxygen levels from 500cc to 20cc for an infant patient, [Patient D], for approximately nine hours, following his return to your care after a procedure and/or you failed to check the oxygen levels for the patient during hourly checks from approximately 1252 to the end of your shift; and/or

(a) [Withdrawn]; and/or

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(15) of Ontario Regulation 799/93, in that while registered as a Registered Nurse at The Hospital for Sick Children in Toronto, Ontario, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, in that:

(a) on or about August 5, 2018, you documented that you had pulled an umbilical venous catheter for an infant patient, [Patient A], when you had not done so; and/or

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 Hospital for Sick Children in Toronto, Ontario (“Hospital”), you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that:

(a) in or about 2016 or 2017, you hit an infant patient (name unknown) in the face with a cloth, after the patient vomited;

(b) on or about August 5, 2018, you documented and/or advised the oncoming nurse that you had pulled an umbilical venous catheter for an infant patient, [Patient A], when you had not done so;

(c) on or about August 31, 2018, you patted an infant patient, [Patient B], hard on top of the patient’s incision and stoma;

(d) on or about May 2019, you stated to the father of an infant patient, [Patient C], that his technique during diapering care could give the patient E-coli, when you knew that the patient’s twin had recently died of E-Coli sepsis;

(e) in or about 2019, you stated to one or more infant patients “if your parents loved you they would let you die” or words to that effect;

(h) on or about June 21, 2019, you hit or poked the eye of an infant patient, [Patient D], while administering eye drops;

(i) on or about June 21, 2019, you engaged in unprofessional communication and/or behaviour towards the parents of an infant patient, [Patient D], including;

i) telling the parents that they know nothing and need help to understand or words to that effect;

ii) telling the parents that they should not speak in their own language to their baby or words to that effect;

iii) telling the parents that they should speak English while at the bedside or words to that effect; and/or

iv) placing a blanket on and/or touching the patient’s father while he was praying by the patient’s crib; and/or

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), (b), (c), (d), (e), (f), (g), (h), (i)(i), (ii), (iii), (iv), (j), 3(a), 4(a), (b), (c), (d), (e), (f), (g), (h), (i)(i), (ii), (iii), (iv) and (j) 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

The Member first registered with the College of Nurse of Ontario (“CNO”) as a Registered Nurse (“RN”) on June 5, 1991.
At the time of the incidents described below, the Member was employed as a full-time nurse in in the neonatal intensive care unit (“NICU”) at the Hospital for Sick Children (the “Hospital”) in Toronto, Ontario, until September 2019, when she was terminated. She had been employed by the Hospital since September 1999.
The Member has not worked as a nurse since her termination from the Hospital.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The NICU is made up of four to six beds for infant patients in one room. Staff nurses provided care on a staffing ratio of one RN to one to two infants.

Rough Handling of Infants

Unidentified Patient

In 2016 or 2017, the Member was caring for a baby in the NICU.
After the baby vomited, the Member loudly stated, “oh my God he is vomiting again” and then forcibly wiped the baby’s face with a wet cloth, causing the baby’s face to turn rapidly to one side. If the Member were to testify, she would state that she had intended to clean the baby's face, but acknowledges that her actions may have been more forceful then she had intended.

Patient [B]

Patient [B] was born premature and had a significant surgery on his stoma in August 2018. The Member was not assigned to his care.
On August 31, 2018, [Patient B] appeared uncomfortable. The Member patted [Patient B] hard on top of the area of his incision and stoma. [Patient B]’s parent was upset by the member’s actions and asked that the Member not be assigned to care for [Patient B] in the future.
If the Member were to testify, she would state that she intended to settle [Patient B] and used her experience to apply firm but not significant force. However, she recognizes that she did not explain her rationale for a firm pat to [Patient B]’s parents or pay appropriate attention to its proximity to his incision.

Inappropriate and Unprofessional Communications with Infant Patients and their Parents

Patient [C]

In May 2019, the Member told the parent of an infant patient, [Patient C], that the way the parent was wiping [Patient C] during a diaper change could give [Patient C] E-coli.
[Patient C]’s twin had recently died of E-Coli sepsis. The Member’s comment distressed [Patient C]’s parent.
If the Member were to testify, she would state that when she made the statement, she had not considered the fact that [Patient C]’s twin sibling had recently died of E-Coli sepsis. The Member would testify that she did not intend to cause distress, concern, or additional grief to [Patient C]’s parent and was trying to provide health education about diapering. The Member would testify that upon reflecting on this incident she regrets and feels terribly about it.

Other Comments to Infant Patients and their Parents

In or around June 21, 2019, the Member was overheard by a nurse colleague saying, “if your parents loved you, they would let you die” or words to that effect to two infant patients. The Member was also overheard by the same colleague saying words to the effect of, “better off dead” and “this is cruel, they don’t love you”.
If the Member were to testify, she would state that she said words to this effect in relation to infants who she believed may be heading to palliative care, but acknowledges that this language is never appropriate even if the infant cannot understand it.
In June 2019, the Member was overheard by one of her colleagues telling a patient’s parents, “[the] baby screamed all night for you,” when the infant had not screamed all night and that their infant, “missed them”. She advised colleagues that she did so in an attempt to persuade the patient’s family to visit the patient in the Hospital more.
If the Member were to testify, she would state she would encourage parents who were struggling with their infant’s condition to visit frequently. She now recognizes that she was obliged to be truthful to parents about their infant’s status and needs.

Patient [A]

Patient [A] had an Umbilical Venous Catheter (“UVC”). For infants in NICU, UVCs are used because it can be difficult to access veins. After insertion, UVCs are x-rayed to ensure they are properly placed, as there is a risk that the UVC can go into the heart and/or liver if placed too deep. Once properly placed, there are numbers/markings on the outside of the UVC to record the appropriate placement. Adjusting the UVC so it is properly placed based on the markings is a routine and important task for NICU nurses. A physician and the assigned nurse complete the adjustment of UVC together.
On August 5, 2018, during the Member’s shift, she told the physician that it was not a good time to touch the baby (i.e., pull back the UVC line). The Member did not pull back the UVC line during her shift although it was part of her duties to do so.
At 1828, nearing the end of her shift, the Member documented that [Patient A]’s UVC had been pulled back and the tubing changed.
The Member admits that her documentation was not accurate. If the Member were to testify, she would state that she documented that [Patient A]’s UVC had been pulled back in error, due in part to her difficulties adapting to an electronic charting system that had been newly implemented at the time.
On the same day, at the end of the Member’s shift, she advised an oncoming nurse that [Patient A]’s UVC had been “pulled back”.
The Member admits that she dd not provide the oncoming nurse with an accurate report. If the Member were to testify, she would state that she based her verbal report on the information she had incorrectly charted earlier in the day, but she did not intend to provide false information to the oncoming nurse.

Patient [D]

[Patient D] was a three-month old infant who was born very premature and had multiple health conditions.
In or around June 21, 2019, the Member forcefully removed an ostomy bag from [Patient D] in a manner that caused bleeding to the patient’s stoma. During this incident, the Member remarked to [Patient D]’s parents “I am not good at this”, or words to that effect. She admits that her technique to remove the bag caused some bleeding, which she could have avoided with more care.
In or around June 21, 2019, while the Member was attempting to dispense eye drops to [Patient D], she inadvertently hit [Patient D]’s eye with an eye dropper. She admits that she could have avoided hitting [Patient D]’s eye if she had proceeded with more care.
In or around June 20 or 21, 2019, the Member told [Patient D]’s parents that they know nothing and need help to understand, or words to that effect. Additionally, the Member told [Patient D]’s parents that they should not speak their own language to their baby, and that they should speak English while at the baby’s bedside, or words to that effect.
In or around June 20 or 21, 2019, while [Patient D]’s father was praying beside [Patient D]’s crib, the Member placed a blanket on [Patient D]’s father and rubbed his shoulders, causing [Patient D]’s father to become very upset.
If the Member were to testify, she would state that she believed [Patient D]’s father was asleep in a chair and that she placed a blanket on him and rubbed his shoulders to comfort him. The Member would testify that she has reflected upon this incident and is now more aware of how people from other cultures pray.
While in the NICU, [Patient D] received low flow oxygen by nasal prongs at a rate of 15-30cc/minute.
On June 21, 2019, [Patient D] had a procedure in a unit of the Hospital outside of the NICU. He left the unit with a portable oxygen tank, where the lowest setting was 500cc/minute.
When [Patient D] returned to the Member’s care in the NICU between 12 and 1 p.m., she failed to remove [Patient D] from the portable oxygen tank and reattach [Patient D] to the low flow oxygen on the wall.
On June 21, 2019, at approximately 7:15 p.m., after the Member’s shift had ended, another nurse on the night shift of the NICU noticed that the Member had forgotten to reattach [Patient D] to the low flow oxygen on the wall. [Patient D] received higher than intended levels of oxygen for over seven hours, contrary to his care plan.

STANDARDS OF PRACTICE

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

Professional Standards

CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.
CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standard of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.
Additionally, CNO’s Professional Standards provides that each nurse possesses, through basic education and continuing learning, knowledge relevant to their professional practice. A nurse demonstrates this standard by actions such as having knowledge of how bio-psychosocial needs and cultural background relate to health care needs.
Further, CNO’s Professional Standards provides that each nurse continually improves the application of professional knowledge. A nurse demonstrates this standard by actions such as:

ensuring that practice is based in theory and evidence and meets all relevant standards/guidelines;
recognizing limits of practice and consulting appropriately; and
Identifying and addressing practice-related issues.

Finally, CNO’s Professional Standards provides that each nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships. A nurse demonstrates this standard by actions such as:

a. demonstrating respect and empathy for, and interest in [patients];

b. ensuring [patients’] needs remain the focus of nurse-client relationships;

c. developing collaborative partnerships with [patients] and families that respect their needs, wishes, knowledge, experience, values and beliefs.

Therapeutic Nurse-Client Relationship Standard

CNO’s Therapeutic Nurse-Client Relationship standard makes clear therapeutic nursing services contribute to the patient’s health and well-being and the nurse- patient relationship is based on trust, respect, empathy and professional intimacy, and requires the appropriate use of power inherent in the care provider’s role.
Under this standard, nurses must focus on patient-centered care, and be aware of their verbal and non-verbal communication style and how patients might perceive it, and modify their communication style, as necessary, to meet the needs of the patient. Nurses must also respect a patient’s values, needs and ethnocultural beliefs, and engage in culturally competent care. Nurses must also protect patients from abuse.

Documentation Standard

CNO’s Documentation Standard helps nurses understand the importance of accurate and timely documentation, and how to apply the standards to their individual practice.
The Documentation Standard provides that nurses are accountable for:

ensuing their documentation of patient care is “accurate, timely and complete”; and
ensuring that documentation presents an “accurate, clear, and comprehensive picture of the [patient’s] needs, the nurse’s interventions, and the [patient’s] outcomes”.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

If the Member were to testify, she would state that she was experiencing a difficult period in 2016 to 2019, and felt burned out by the work of the NICU. Regardless, the Member admits and acknowledges that she contravened CNO’s Professional Standards, Therapeutic Nurse-Client Relationship Standard and Documentation Standard in her care and treatment of the infant patients in the incidents described above.
In particular, the Member admits and acknowledges that regardless of her intent, she handled [Patient B], [Patient D], and the unidentified patient in a manner that was rougher than she should have, especially given their age, health condition, and vulnerability. In respect of allegation 1(a) and 3(a), the Member admits that she forcibly wiped the unidentified patient’s face (as opposed to “hit” the patient), and acknowledges that for the purposes of making findings of professional misconduct, the fact that she forcibly wiped the baby’s face is sufficient to discharge the College’s onus to prove these allegations.
The Member admits that her communications to various infant patients, including “if your parents loved you, they would let you die”, “better off dead” and “this is cruel, they don’t love you” were contraventions of the standards of practice, and in particular, CNO’s Professional Standards and Therapeutic Nurse-Client Relationship standard.
The Member admits that her communications with family members of patients to persuade them to visit their infants, including “[the] baby screamed all night for you,” were contraventions of the standards of practice, and in particular, CNO’s Professional Standards and Therapeutic Nurse-Client Relationship standard.
The Member admits that her comment to [Patient C]’s parent, that the way the parent was wiping [Patient C] during a diaper change could give [Patient C] E-coli, was insensitive and a contravention of the standards of practice, and in particular, CNO’s Professional Standards and Therapeutic Nurse-Client Relationship standard.
The Member admits and acknowledges that she contravened CNO’s Documentation Standard and she signed or issued a document in her professional capacity that she ought to have known contained a false statement when she documented that she had pulled [Patient A]’s UVC when she had not done so. She also admits that verbally communicating to a nursing colleague that she had pulled [Patient A]’s UVC when she had not was a contravention of the standards of practice, and in particular, CNO’s Professional Standards and Therapeutic Nurse-Client Relationship standard.
The Member admits that she breached basic clinical standards relating to the care of [Patient D] when she failed to lower his oxygen levels following his return to her care, which she would have discovered if she had conducted adequate hourly checks of [Patient D].
The Member admits that her communications and conduct with the family members of [Patient D] were patronizing and culturally insensitive, and did not instil trust and confidence in her nursing skills. Her conduct was a contravention of the standards of practice, and in particular, CNO’s Professional Standards and Therapeutic Nurse-Client Relationship standard.
The Member admits that she committed the acts of professional misconduct as described in paragraphs 5 to 32 and 44 to 50 above, and as alleged in paragraphs 1 (a) to (j) of the Notice of Hearing, in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession.
The Member admits that she signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement as described in paragraphs 17 to 22 above, and as alleged in paragraph 3(a) of the Notice of Hearing.
The Member admits that she committed the acts of professional misconduct as described in paragraph 5 to 32 and 44 to 50 above, and as alleged in paragraphs 4(a) to (j) of the Notice of Hearing, and in particular that her conduct was dishonourable and unprofessional. The Member admits and acknowledges that she knew or ought to have known her conduct was unacceptable, that her actions demonstrated a disregard for her professional obligations and brought shame to herself and the profession, and casted doubt on her moral fitness and inherent ability to discharge the obligations expected of nurses.
CNO seeks leave to withdraw the allegation of professional misconduct set out at paragraph 2(a).

Submissions on liability were made by College Counsel.

College Counsel submitted that with regard to allegations #1(a) and #4(a), the Member admitted that she forcibly wiped the baby’s face after vomiting to the extent that the baby’s head turned rapidly to one side. The Member also admitted that she used more force than she intended. College Counsel submitted that forcibly wiping the baby’s face causing it to turn rapidly to one side was sufficient to prove the allegation that the Member ‘hit the baby’ with a cloth. College Counsel submitted that it is not a perfect parallel in language, but the Member admits to the allegation and also the facts are sufficient to support the allegation. College Counsel also submitted that handling a patient roughly is a breach of the standards and is conduct that would be considered unprofessional and dishonourable.

College Counsel submitted that with regard to allegations #1(c) and #4(c), Patient [B] who was a premature baby had an incision and an opening in the abdomen. The Member patted the area so hard that her actions upset the parents. The Member admitted to a breach of the standards and that her conduct was unprofessional and dishonourable.

College Counsel submitted that with regard to allegations #1(b), #3(a) and #4(b), the Member admitted that she deferred the physician from completing the adjustment to the umbilical venous catheter (UVC) for Patient [ A]. The Member also made an inaccurate documentation into Patient [A]’s record documenting that she had pulled back the UVC when she had not. She also advised a colleague that she had adjusted the UVC. College Counsel submitted that the Member did not do an important task but gave the impression both in her documentation and orally that she had pulled back the UVC. College Counsel submitted that the Member’s conduct was a breach of the College’s standards, unacceptable and dishonourable and unprofessional.

College Counsel submitted that with regard to allegations #1(d) and #4(d), the Member made an extremely insensitive and thoughtless comment to the father of Patient [C]. This was a clear breach of the College’s standards that requires nurses to engage in professional communications that supports patient centered care. The Member admitted that she made the comment and that it was inappropriate. College Counsel submitted that considering the Member’s experience working in a neonatal intensive care she should have known better. The Member’s conduct was a breach of the standards of practice and should be considered to rise to the level of unprofessional and dishonourable conduct.

College Counsel submitted that with regard to allegations #1(i)(i), (ii), (iii) and (iv), the Member admitted to the allegations. The Member breached basic clinical standards resulting in [Patient D] receiving higher amounts of oxygen for a sustained length of time. The Member’s communication to [Patient D]’s parents was also patronizing and culturally insensitive. College Counsel submitted that the Member’s conduct was a breach of the Professional Standards and the basic clinical standards as well as the Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”). The Member knew or ought to have known better. College Counsel acknowledged the evidence that the Member would have testified that she was experiencing burn out in 2019 as a result of working in a neonatal intensive care unit (“NICU”), an intense environment. This provides some context for the Member’s behaviour, but it does not excuse it. College Counsel submitted that the Member has admitted to the allegations and based on the Member’s admissions and detailed facts, that the College has discharged its burden to prove the allegations.

Submissions on liability were made by the Member’s Counsel.

The Member's Counsel submitted that the Member was not disputing College Counsel’s submissions. The Member has reflected deeply on the experience and regrets her 33-year career is coming to an end in this manner. The Member is a very senior nurse and has dedicated three decades to the profession with passion and dedication, caring for thousands of patients. As an experienced professional, the Member has taken the allegations very seriously and is saddened and devasted that her career is coming to a close. The Member's Counsel submitted that the Member was going through a challenging time with personal and workplace stressors and the allegations stemming from the incidents do not sum up her career. The Member has helped many vulnerable patients, takes great pride in receiving consistently positive appraisals and also positively influencing others on her team. She has received many positive comments from parents about her great care. The Member accepts responsibility and knows that she did not meet expectations and admitted that she should have stepped back from nursing before this. The Member also has a great deal of respect for the profession.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b), (c), (d), (e), (f), (g), (h), (i)(i), (ii), (iii), (iv), (j), 3(a), 4(a), (b), (c), (d), (e), (f), (g), (h), (i)(i), (ii), (iii), (iv) and (j) of the Notice of Hearing. As to allegations #4(a), (b), (c), (d), (e), (f), (g), (h), (i)(i), (ii), (iii), (iv) and (j) the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be unprofessional and dishonourable.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegations #1(a), (b), (c), (d), (e), (f), (g), (h), (i)(i), (ii), (iii), (iv) and (j), in the Notice of Hearing are supported by paragraphs 5 to 51 in the Agreed Statement of Facts. The Panel reviewed each of the allegations and the paragraphs in the Agreed Statement of Facts and found breaches of the College’s standards as follows:

The Member breached the College’s Professional Standards when on or about 2016 or 2017, the Member admitted to forcibly wiping an infant’s face with a cloth after the infant vomited. The Panel accepted College Counsel’s submission that forcibly wiping the infant’s face to cause the infant’s head to turn quickly to the side was sufficient to substantiate allegation #1(a). On or about August 31, 2018 and June 21, 2019, the Member also admitted to handling Patient [B] and [Patient D] respectively, in a rough manner. The parents of Patient [B] were upset by how the Member patted the premature infant’s stoma incision and stoma site. The Member also forcibly removed an ostomy bag from [Patient D] causing bleeding to Patient [D]’s stoma and also administered eye drops in a careless manner. The Member also failed to lower the oxygen delivered to Patient [D] for approximately nine hours and failed to conduct hourly checks during that time.

Handling vulnerable, fragile and critically ill premature and/or neonatal patients requires delicate and cautious interactions. As a pediatric nurse of 20 years, the Member should have been aware of this basic standard of neonatal care. When she handled the infants in a rough and/or careless manner, she was not applying basic knowledge related to neonatal care and was not meeting basic care standards for the critically ill infants in her care. Her rough and careless handling also did not foster respect for the profession and was not therapeutic. Failing to lower the oxygen delivery for a critically ill premature infant was also a failure of applying her neonatal intensive care knowledge and basic neonatal intensive care standards regarding the impact of high oxygen levels for the premature infant. Accordingly, the Member breached a number of care expectations that nurses are expected to follow according to the Professional Standards.

The Professional Standards also require nurses to have knowledge and adjust care according to the psychosocial and cultural needs of the patients and families in care. The Professional Standards require nurses to be respectful, empathetic and create collaborative therapeutic relationships with patients and families. Values and beliefs are to be respected and care adjusted accordingly. In 2019, the Member had numerous interactions with parents of infants in her care that were culturally inappropriate, showed insensitivity and were disrespectful. On or about May 2019, the Member told the father of Patient [C] that his diapering technique could cause E-Coli sepsis when the patient’s twin had recently died of E-Coli sepsis. This was a highly uncaring comment and did not show empathy toward the father considering the recent loss of his child. Also in 2019, the Member stated to one or more infant patients “if your parents loved you they would let you die” or words to that effect. She also told one or more parents of infant patients that their infant had “screamed all night for you” or “the baby is missing you” simply to persuade the parents to attend the Hospital regardless of whether this was true. These comments did not foster a collaborative therapeutic relationship with the parents and were mean-spirited. On June 21, 2019 the Member also engaged in unprofessional communication and/or behaviour toward the parents of Patient [D] telling them they knew nothing, they need help to understand and that they should also not speak their own language, but rather should speak English while at the bedside. The Member also acted inappropriately while the father of Patient [D] was praying. The Member’s comments and conduct with the parents of Patient [D] were extremely disrespectful and culturally insensitive and are further examples of how the Member failed to meet the basic standards and accordingly breached the Professional Standards expected of nurses.

The Member breached the TNCR Standard in the incidents described above, particularly those involving inappropriate interactions and communications in or about 2019 and also with the parents of Patient [C] and Patient [D], the Member’s conduct threatened the inherent trust that is required in the nurse-patient-family relationship. Her conduct may have caused the parents to question whether they could trust a nurse to provide adequate care for their infant when that same nurse made a callous comment while criticizing the diapering technique of a parent. Similarly, berating a parent regarding their knowledge or acceptable use of language would also be perceived as harsh and uncaring and cause the parents to question if the Member could be trusted to provide compassionate care. Nurses are expected to be aware of their verbal and non-verbal communication style and how it may be perceived. Values, needs and ethnocultural beliefs must also be respected. The Member ignored these standards and by doing so, failed to meet the expectations of the TNCR Standard.

The Member breached the Documentation Standard when on August 5, 2018 Patient [A] required their UVC to be pulled back and the Member did not pull back the UVC, but documented that it had been pulled back. The Member also reported to a colleague on the next shift that the UVC had been pulled back. The Documentation Standard supports basic nursing knowledge that documentation needs to be accurate, timely and complete in order to present a clear picture of patient needs, nursing interventions and patient outcomes. Documenting that the UVC was pulled back when it had not, was a breach of the Documentation Standard. The Member’s conduct in this incident was also a breach of the Professional Standards in that she did not apply her nursing knowledge to ensure documentation and communication with a colleague was accurate. In addition, Patient [A] and their parents were trusting the Member to follow basic nursing care principles and standards that would contribute to Patient [A]’s health and well-being. Not pulling back the UVC when it was required and then documenting it had been pulled back, could have led to improper decision making with regards to ongoing care or use of the UVC. By breaching the nurse-patient-family trust to provide and document care that was required, the Member’s conduct in this incident also breached the TNCR Standard.

The Panel was satisfied that the Agreed Statement of Facts supported the allegation of professional misconduct and that the Member had contravened numerous standards of the profession as outlined above.

Allegation #3 in the Notice of Hearing is supported by paragraphs 17 to 22, 48 and 52 in the Agreed Statement of Facts. The Member admitted that on August 5, 2018 she documented that she had pulled back Patient [A]’s UVC when she had not done so. As a nurse with over 20 years experience, the Member knew or ought to have known that it was completely inappropriate to document that she had pulled back the UVC when she had not actually done so. The Panel finds that these facts establish that the Member signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement.

Allegations #4(a), (b), (c), (d), (e), (f), (g), (h), (i)(i), (ii), (iii), (iv) and (j) in the Notice of Hearing are supported by paragraphs 5 to 50 and 53 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations. The allegations spanned a number of years from 2016 - 2019 and showed a pattern of inadequate care and inappropriate communications with the infants and families in her care. A number of the College’s standards were also breached, showing the Member’s poor judgment and inattention to expectations and standards that exist for nurses.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing, particularly regarding her interactions and communications with parents. She showed gross insensitivity to the father of Patient [C] who had recently lost a child, she was blatantly disrespectful and showed cultural ignorance to the parents of Patient [D]. The Member ought to have known her conduct fell well below the standards expected of nurses. The Member also knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Penalty

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

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

Penalty Submissions

Submissions on penalty were made by College Counsel.

College Counsel submitted that the Joint Submission on Order also provides in Appendix “A” an undertaking and agreement by the Member for the Member’s permanent resignation as a member of the College effective November 30, 2022 (the “Undertaking”). The Member undertakes, acknowledges and agrees to:

a) Permanently resign as a member of the College, effective from the date the Member signs the Undertaking;

b) Not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future;

c) Agree that the public portion of the College’s Register will indefinitely reflect that the Member entered into an Undertaking with the Executive Director to permanently resign as a member of the College as part of an agreed resolution of allegations of professional misconduct;

d) No longer have a right to the issuance or reinstatement of her Certificate of Registration from the College;

e) No longer have a right to use the title “Nurse”, “Registered Nurse”, “Registered Practical Nurse”, “RN”, “RPN” or a variation, an abbreviation or an equivalent in another language;

f) No longer have a right to hold herself out as a Nurse, Registered Nurse, Registered Practical Nurse or as a person who is qualified to practise in Ontario as a Nurse, Registered Nurse or Registered Practical Nurse;

g) No longer have a right to engage in the practice of nursing in any capacity; and

h) Agree that the College is authorized to and may, in its sole discretion, provide a copy of the Undertaking and/or its terms to a governing body that regulates nursing in Canada or elsewhere in response to an inquiry or otherwise.

In light of the Undertaking, College Counsel and the Member submitted a Joint Submission on Order requiring the Member to appear before the Panel for an oral reprimand within 3 months of the date that the Order becomes final.

The aggravating factors in this case were:

The Member’s conduct involved different infant patients and families over multiple years with the majority of incidents in 2019;
The incidents involved vulnerable care episodes where the Member did not display care and tenderness that the public would normally expect of a nurse; and
The Member’s conduct was insensitive to the stress families were experiencing as a result of having a sick infant in hospital.

The mitigating factors in this case were:

The Member admitted that she was experiencing personal and professional stressors at the time of the incidents;
The Member has had a long career with no prior discipline history with the College;
The Member has taken accountability by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College; and
The Member has cooperated with the College, saving lengthy hearing time for witnesses to be examined.

Specific deterrence is not essential in this case because the Member has already undertaken to permanently resign from the practice of nursing. In such circumstances, the penalty of an oral reprimand is sufficient.

General deterrence is achieved through the oral reprimand and the fact that the findings will be publicly posted indefinitely and sends a clear message to other members of the profession that this type of conduct will not be tolerated.

Overall, the public is protected by the resignation of the Member’s certificate of registration and the ability of the College to communicate this to any governing body that regulates nursing in Canada. Accordingly, the Panel does not need to impose further conditions in order to achieve protection of the public.

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

CNO v. Cross (Discipline Committee, 2018): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member worked at a hospital and had multiple incidents while caring for infants where she roughly handled the infants and also made inappropriate comments. The penalty included an oral reprimand and the member signed an Undertaking to permanently resign as a member of the College.

College Counsel submitted that the Joint Submission on Order sets a very high threshold and must be accepted unless the terms would bring the administration of justice into disrepute or would not be in the public interest. In this case, College Counsel submitted, in light of the Undertaking signed by the Member, the penalty is reasonable and appropriate.

The Member’s Counsel agreed with College Counsel’s submissions.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

The Member is required to appear before the Panel to be reprimanded within 3 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. In the normal course, this is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility.

In this case, because the Member has undertaken to permanently resign, the oral reprimand is a sufficient penalty and no other specific deterrence is required.

Furthermore, because of the Member’s resignation, it is not necessary to consider remediation and rehabilitation in determining the appropriate penalty.

General deterrence is also addressed as the Panel concluded had the Member’s situation been different and no Undertaking given, the Panel would have ordered a suspension, and terms, conditions and limitations on the Member’s certificate of registration which would have been in line with previous penalties.

Finally, the penalty of a reprimand is appropriate because the public is already protected through the permanent resignation and the Undertaking to never apply for registration as a nurse in Ontario again in the future.

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

I, Susan Roger, 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.