College of Nurses of Ontario v. Yaworski, 2022 ONCNO 145699

Discipline Committee of the College of Nurses of Ontario

PANEL: Sherry Szucsko-Bedard, RN Chairperson Andrea Arkell Public Member Karen Laforet, RN Member Sandra Larmour Public Member Donna May, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ALYSHA SHORE for College of Nurses of Ontario

• and -

CINDY YAWORSKI Registration No. 9719949 MARIE-PIER DUPONT for Cindy Yaworski CHRISTOPHER WIRTH Independent Legal Counsel

Heard: November 21, 22, 29, 30 and December 13, 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”) commencing on November 21, 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 public disclosure and banning the publication or broadcasting of the names of the patients, or any information that could disclose the identity of the patient, referred to orally or in any documents presented at the Discipline hearing of Cindy Yaworski.

The Panel considered the submissions of the College and the Member’s Counsel and decided that there be an order preventing public disclosure and banning the publication or broadcasting of the name of the patient, or any information that could disclose the identity of the patient, referred to orally or in any documents presented at the Discipline hearing of Cindy Yaworski.

The Allegations

The allegations against Cindy Yaworski (the “Member”) as stated in the Notice of Hearing dated July 18, 2022 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 you were employed as a Registered Nurse by Victorian Order of Nurses in Brantford, Ontario (the “Agency”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to [the Patient] in that:

a. on or between August 28, 2019 and September 2, 2019, you failed to turn and/or reposition the patient;

b. on or around September 1, 2019 to September 2, 2019, you failed to administer pain medication prior to bathing the patient; and/or

c. on or around September 1, 2019 to September 2, 2019, you bathed the patient in a rough manner causing bruises and/or abrasions; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that while you were employed as a Registered Nurse at the Agency, you verbally, physically, and/or emotionally abused [the Patient] on or around September 1, 2019 to September 2, 2019 when you bathed the patient in a rough manner causing bruises and/or abrasions; and/or

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while you were employed as a Registered Nurse at the Agency, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to [the Patient] in that:

a. on or between August 28, 2019 and September 2, 2019, you failed to turn and/or reposition the patient;

b. on or around September 1, 2019 to September 2, 2019, you failed to administer pain medication prior to bathing the patient; and/or

c. on or around September 1, 2019 to September 2, 2019, you bathed the patient in a rough manner causing bruises and/or abrasions.

Member’s Plea

The Member denied the allegations set out in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member was employed as a casual Registered Nurse (“RN”) by the Victorian Order of Nurses (“VON”) providing shift nursing since February 2018. She was scheduled to provide palliative care to [the Patient] from 22:00 – 06:00 hours starting on August 28, 2019.

[The Patient] lived in her own house with her son, [ ](“[the Patient’s son]” or the “son”) and had been placed on palliative care approximately 2 years prior due to end-stage emphysema. On August 26, 2019 her palliative care doctor, Dr. Debbie Dooler (“Dr. Dooler”) placed [the Patient] on morphine and midazolam infusions via CADD pump and informed [the Patient]’s daughter, [ ](“[ ]” or the “daughter”) and son that she was at end-of-life with days to live.

The Member met the son of [the Patient] on August 28, 2019 at the start of her shift, and did not speak to or meet the daughter of [the Patient] on that day. [The Patient] was conscious and able to go to the commode that sat next to her bed with assistance. The daughter was in town and was staying at a hotel because [the Patient] and her son smoked.

At the start of the Member’s shift on August 29, 2019 [the Patient’s daughter] who was her mother’s Power of Attorney for Personal Care met with the Member and provided an update. The Member asked about a hospital bed and foley catheter to make [the Patient] more comfortable and [the Patient’s daughter] informed her that her mother had refused these measures. There was also a discussion regarding how [the Patient]’s death pronouncement would occur. [The Patient’s daughter] informed the Member that Nora May Johnson (“Ms. Johnson”), the palliative visiting nurse, would be called as per her mother’s request.

On August 30, 2019 when the Member started her shift, the daughter was not in attendance and the Member received an update from the son that [the Patient] had stopped smoking. The Member documented that [the Patient] was restless and agitated throughout the night and required frequent prn bolus medications.

On August 31, 2019, [the Patient’s daughter] had decided to stay at the home as her mother was continuing to deteriorate. When the Member arrived [the Patient] was in her room with fans on and the window open. During the night there was an incident regarding the Member not flushing the toilet properly and her watching something on her phone while [the Patient’s daughter] tried to sleep on the couch. [The Patient] was more settled with the change in medication orders and the Member elected to let [the Patient] sleep and did not turn her that night. [The Patient’s daughter] discussed her concerns with Ms. Johnson and called the Local Health Integration Network (“LHIN”) regarding the Member not flushing the toilet and the noise caused by leaving fans on in [the Patient]’s room. The LHIN recommended [the Patient’s Daughter] speak with the Member.

Through the day on September 1, 2019, [the Patient’s daughter] discussed her mother’s care with Ms. Johnson and Dr. Dooler as she was concerned her mother was not being turned nor being bathed. At the start of the Member’s shift, the Member and [the Patient’s daughter] had a discussion regarding [the Patient’s daughter]’s concerns. According to the Member, [the Patient’s daughter] became aggressive. [The Patient’s daughter] perceived the Member as defiant. [The Patient’s daughter] told the Member to leave if she was not going to do her job: specifically, giving [the Patient] a sponge bath and turning [the Patient] every 2 hours. [The Patient’s daughter] informed the Member that Dr. Dooler ordered a bolus before bathing or turning. The Member agreed to do as [the Patient’s daughter] asked and proceeded to start the bath. When the Member requested [the Patient’s daughter]’s help, [the Patient’s daughter] asked if the Member had given [the Patient] a bolus and the Member had not. A bolus was given and 5 minutes later the bath was completed and [the Patient] turned. [The Patient’s daughter] assisted the Member in turning her mother 3 times that night. In the morning after the Member left, [the Patient’s daughter] saw skin marks on her mother’s arms, legs and back. She took pictures and notified Dr. Dooler and Ms. Johnson when they arrived. [The Patient’s daughter] stated that when the Member was washing her mother’s back it was like she was rubbing paint off. [The Patient’s daughter] filed a complaint with VON and the LHIN further to this incident.

Having considered the evidence and the onus and standard of proof, the Panel found that the Member committed acts of professional misconduct as alleged in paragraph #1(a) and found that the Member failed to reposition [the Patient]. The Member committed acts of professional misconduct as alleged in paragraph #1(b) as she failed to administer pain medication prior to bathing [the Patient] as requested by the Power of Attorney for Personal Care and as directed by the physician. With respect to allegations #3(a) and (b) in the Notice of Hearing, the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

With regard to allegations #1(c), #2 and #3(c), the Panel did not make findings of professional misconduct as the evidence was insufficient to make these findings. These allegations were therefore dismissed.

Opening Statement of College Counsel

College Counsel stated the Member was scheduled to provide palliative care at night for a 79-year-old patient with end-stage chronic lung disease. The patient was mobile and receiving pain medications via CADD pumps and weighed 50 – 70 pounds. The Member is before the Panel specific to three key issues: Did the Member fail to meet the standards of practice when she:

a) failed to turn a patient who was end of life and receiving pain medication;

b) Did not provide pain medication before bathing the patient as was requested; and,

c) Physically abused the patient causing bruising and abrasions on the skin by bathing the patient in a rough manner?

College Counsel stated the burden of proof is on the College to provide clear, cogent and convincing evidence to support the allegations in the Notice of Hearing.

The Evidence of the College

The Panel received 27 exhibits from the College and heard testimony from four fact witnesses, one participant expert witness and one expert witness.

The College’s Witnesses

The College’s fact witnesses included the Member’s former Manager, the palliative nurse and palliative physician for [the Patient] and [the Patient]’s daughter and son.

Witness #1 – Stephanie Coughler (“Ms. Coughler”)

Examination by College Counsel

Ms. Coughler is a Registered Practical Nurse (“RPN”) and has been registered with the College since 1995. Ms. Coughler was employed by VON starting in April 2013 as manager for shift nursing (“Manager of Care and Service”) and held this position in August 2019. Ms. Coughler’s roles and responsibilities included daily operations and employee performance management. Ms. Coughler provided an overview of the role and responsibilities for a palliative shift nurse that included initial assessment of the patient, determining goals with the patient and family and modifying goals of care based on ongoing assessment. The goals of care include any personal care required and frequency of repositioning/turning.

Ms. Coughler testified that VON’s education department provided orientation for shift nurses that included documentation, clinical policies and procedures and review of clinical skills required for the shift nurses program. She stated that nurses were responsible for charting by exception using flowsheets and narrative notes (Exhibits #4, #5 and #6). Ms. Coughler also testified that the patient chart is kept in the home and records sometimes go missing.

College Counsel directed Ms. Coughler to Exhibit #8, the email sent from the LHIN regarding [the Patient]’s family’s concerns with the Member’s behaviour. Ms. Coughler recalled the email, however, not specifically. She expressed concern regarding the Member’s responding email (Exhibits #9 and #10) in that the information included in the email was not appropriate to be sent to the next nurse. In particular, Ms. Coughler testified that the description of the daughter being demanding and verbally aggressive was not appropriate.

Ms. Coughler testified that she received a complaint from [the Patient]’s daughter via the LHIN that was forwarded to the Senior Manager (Exhibit #12) and this was discussed with the Member (Exhibit #14). She testified that no notes were taken during the escalating situation and that an internal investigation was completed. While Ms. Cougher was unable to recall specific details, she was able to confirm and discuss an investigation that was completed by VON. The results indicated unprofessional behaviour, communication and bedside manner. The investigation at Exhibit #17 was unable to find conclusive evidence regarding the Member causing bruising to [the Patient].

Cross-Examination by the Member’s Counsel

The Member’s Counsel asked for clarification regarding VON’s charting policy. Ms. Coughler testified that VON used a charting by exception model whereby anything not documented in a flow sheet was to be documented in the Narrative Notes. Flowsheets included, but were not limited to CADD pump, medication administration record (“MAR”), Palliative Care guide, generic flow sheets, wound care flow sheet, etc. The Member’s Counsel questioned Ms. Coughler as to the limited documentation provided by VON, specifically that the MAR and wound care flow sheets were missing. Ms. Coughler testified that sheets could be removed before the patient chart was returned.

The Member’s Counsel asked if mouth care would normally be documented in a Narrative Note. Ms. Coughler reiterated that if this was not indicated on the flow sheet then it would be in the Narrative Notes. The Member’s Counsel pointed out that flow sheets for the Member and nurse Franklin were not available and Ms. Coughler testified that she did not know where they were.

Ms. Coughler testified that the concerns about the Member, communicated by Alyce Sutherland from the LHIN, included parking, fans in [the Patient]’s room and toilet flushing.

The Member’s Counsel asked for clarification regarding how a telephone order from a doctor would be shared with the shift nurse. Ms. Coughler testified that physician orders would need to be relayed directly to the nurse.

College Counsel’s Redirect

College Counsel requested further information on how a physician order is communicated to the shift nurse. Ms. Coughler testified that the nurse receiving the order would transcribe it onto the physician order sheet. If the original order was from another agency, the nurse would ask the doctor to send the order to the attending nurse. The time frame for this to occur was unknown by Ms. Coughler.

Witness #2 – Nora May Johnson (“Ms. Johnson”)

Examination by College Counsel

Ms. Johnson has been a Registered Nurse since 1984. She has been employed at St. Elizabeth Health Care (“SEHC”) as a visiting nurse for 25 years. For the last 20 years she has been primarily focused on palliative care with 96% of her patients being palliative. Ms. Johnson testified that visiting nurses provide care for end-of-life patients, palliative patients, those receiving chemotherapy, those requiring medication administration, catheter insertion and anything else to support end-of-life care.

Ms. Johnson testified that she visits patients based on need and these visits could be anywhere from 30 minutes to 3 hours. Ms. Johnson’s responsibilities included managing pain, emotional support, accessing/referring to other team members, completing a physical assessment, and repositioning. Ms. Johnson testified that staying in one position increased congestion, increased pain and skin breakdown. In cases like [the Patient], the family or Personal Support Worker (“PSW”) could reposition the patient. If there was no one else, Ms. Johnson testified that she would do this. Ms. Johnson testified that she had been providing palliative care for [the Patient] for almost 2½ years and had been visiting her almost daily for 6 months prior to her death.

Ms. Johnson testified that she had noticed [the Patient] in the same nightgown for 48 hours and then later stated it had been several days. Ms. Johnson also testified that she had helped [the Patient]’s daughter to do the evening care and mouth care for [the Patient].

When questioned regarding speaking directly with or meeting the Member, Ms. Johnson testified that she did not meet or speak with the Member. When asked by College Counsel if she had spoken about the Member with the daughter, Ms. Johnson failed to answer the question.

College Counsel sought clarification specific to Ms. Johnson being present in the home and if she had charted as set out at Exhibit #19. Ms. Johnson testified that the progress notes were not available for September 1, 2019. Ms. Johnson testified to pronouncing the death of [the Patient] after being called by the shift nurse, Mr. Franklin and the daughter. Ms. Johnson testified that she arrived approximately 10 minutes after receiving the call and recalled observing the daughter taking pictures with her phone while she and the other nurse were cleaning [the Patient] up and estimated it was approximately 20 minutes from the time of death. Ms. Johnson testified to seeing a red/black area on [the Patient]’s coccyx at that time. Ms. Johnson was unable to recall if she had taken the patient chart with her.

Ms. Johnson also testified that she had spoken with [the Patient]’s daughter on the last day of [the Patient]’s life and that on that day or the day before there was a large abrasion on [the Patient]’s arm that had not been there before. Ms. Johnson testified that [the Patient] was able to get up to a commode with assistance until she had the foley catheter inserted on August 29, 2019.

Cross-Examination by the Member’s Counsel

The Member’s Counsel questioned Ms. Johnson regarding documentation and the absence of progress notes for September 1 and 2, 2019 and she testified that sections of the chart were missing.

Ms. Johnson testified that [the Patient]’s level of medication, disease progress and being near end-of-life impacted her ability to turn. Given [the Patient]’s status, regular turning was important as was being bathed at minimum daily. When questioned regarding different agencies having different routines for night nurse duties, Ms. Johnson testified that nurses were to follow the requirements set out by the College. She agreed that daily bathing could be done by a PSW, family member or nurse.

During questioning regarding [the Patient]’s skin being fragile, Ms. Johnson testified that [the Patient] did not have any bruises or abrasions prior to the sponge bath being given on September 1, 2019. Ms. Johnson testified that the daughter mentioned skin changes after the Member had finished the shift. Ms. Johnson also testified that following [the Patient]’s death, while cleaning her up, she noted an area on [the Patient]’s coccyx that looked like a bruise, rather than an ulcer, as it did not appear open.

Ms. Johnson testified that she spoke with the Member only about death pronouncement and she stated the Member “appeared very upset “. She remembered telling the Member that she needed to turn and bathe the patient. Ms. Johnson also testified that she discussed these issues with the daughter, who then discussed her concerns with the LHIN as well because things were not getting done.

Witness #3 – [ ], [the Patient]’s Daughter (“[the Patient’s daughter]”)

Examination by College Counsel

[ ] is [the Patient]’s daughter. She currently lives in Port Hope and worked as an employment counselor, advocate for assaulted women and children and as a front-line worker at the Parkdale Activity Recreational Centre. She was her mother’s Power of Attorney for Personal Care and testified that she was in regular communication with [the Patient]’s primary nurse, Ms. Johnson and palliative physician, Dr. Dooler. She also testified that prior to her coming to her mother’s home a PSW was in her mother’s home for 1 hour a day.

[The Patient’s daughter] testified that she came from Port Hope on August 28, 2019 and that for the first three nights she chose to stay at a hotel because her mother and brother smoked. She moved from the hotel to her mother’s home on August 31, 2019. She testified that her mother was in bed and used a commode that was beside her bed up until a foley catheter was inserted on August 29, 2019. [The Patient’s daughter] testified that she stopped the PSW coming to the house because she was staying with her mother who was receiving full-time nursing care.

[The Patient’s daughter] testified that she did not meet the Member until moving from her hotel to her mother’s house on August 31, 2019. [The Patient’s daughter] recalled speaking with Mr. Franklin on the first night yet was unable to remember the details. [The Patient’s daughter] met the Member on August 29, 2019 when she stayed to meet her and provided an update (Exhibit #6). [The Patient’s daughter] testified that she explained to the Member that [the Patient] was not on a hospital bed and did not have a catheter because she refused both. [The Patient’s daughter] stated that while she was unable to recall words said by the Member during this conversation, she felt an attitude from the Member. The Member asked [the Patient’s daughter] about the death pronouncement and [the Patient’s daughter] testified that she felt awkward and did not know why there appeared to be an issue for the Member as her mother had specifically requested that Ms. Johnson make [the Patient]’s death pronouncement.

When asked by College Counsel to describe the Member’s attitude [the Patient’s daughter] recalled that it felt like the Member was annoyed and inconvenienced regarding the cancelling of the PSW.

[The Patient’s daughter] testified that she moved from the hotel to her mother’s house on August 31, 2019 and was awake when the Member arrived at 22:00 hours. [The Patient’s daughter] recalled the Member appeared upset because she and her brother were watching a movie. Based on [the Patient’s daughter]’s recollection, she did not see the Member go into [the Patient]’s room to provide any care between 22:00 to 02:00 hours and that the Member stayed on the recliner watching TV while she tried to sleep on the couch. [The Patient’s daughter] testified that she heard the Member walking around, using the bathroom, and that she did not see her go into her mother’s room.

[The Patient’s daughter] testified that she felt afraid of the Member, that that the Member was intimidating, and that she seemed mean and angry. [The Patient’s daughter] further testified that she felt vulnerable and that this prevented her from asking the Member to turn the TV down so she could sleep. She was unable to recall if she had a conversation with the Member at the end of the shift at 06:00 hours on September 1, 2019.

[The Patient’s daughter] testified that she spoke with Ms. Johnson and Dr. Dooler regarding the Member not doing anything for her mother and that the Member had not flushed the toilet. She testified that Dr. Dooler suggested [the Patient’s daughter] call the LHIN to make a complaint. [The Patient’s daughter] testified that she contacted the LHIN to complain that the Member was watching something on her cell phone while she was trying to sleep in the living room. She further testified that the LHIN suggested that she have a conversation with the Member regarding the house’s plumbing issue and the care for her mother, including a bath and turning.

[The Patient’s daughter] testified that when the Member returned for the next shift on September 1, 2019 at 22:00 hours she spoke to her regarding the toilet’s plumbing and the Member was argumentative. [The Patient’s daughter] was unable to recall the words of the conversation and indicated that she recalled feeling that the Member was being argumentative. She could not recall speaking to the Member regarding the TV issue. However, she remembered the Member had headphones. With regard to the bed bath, [the Patient’s daughter] recalled giving the Member a directive to give her mother a bed bath and that she needed to be turned. [The Patient’s daughter] testified that the Member mentioned that a doctor had said not to turn palliative patients due to pain and that giving a bed bath was not her job.

College Counsel asked [the Patient’s daughter] if she had a discussion with Ms. Johnson and Dr. Dooler regarding the need to turn her mother. She testified that there was a discussion and that they stated that her mother should be turned every 2 – 4 hours and that she should be given a bolus 10 – 15 minutes before turning or having a bath. She testified that this information was given to the Member and that she recalled the Member was argumentative regarding turning.

[The Patient’s daughter] testified that she felt the need to advocate for her mother and asked the Member to leave if she was not going to do her job. The Member refused to leave and stated that she would do what was asked. [The Patient’s daughter] testified that the last night the Member worked was the only night she gave her mother a bath. [The Patient’s daughter] testified that she probably called the LHIN again concerning the lack of care her mother was receiving.

[The Patient’s daughter] testified that the Member asked for bath supplies, went into [the Patient]’s room, closed the door and shortly thereafter, her mother cried out. [The Patient’s daughter] testified that neither her nor her brother went to investigate. [The Patient’s daughter] testified that the Member asked for help in turning [the Patient] and when she entered her mother’s bedroom, she asked the Member if her mother had received the bolus. The Member confirmed that she had not. [The Patient’s daughter] requested that it be given and testified that the Member waited approximately 5 minutes after giving the bolus before proceeding with care.

[The Patient’s daughter] testified that the atmosphere was tense and she felt she could not argue with the Member. She assisted the Member in turning her mother and saw the Member wash her mother’s back using a rubbing motion like scrubbing paint off. Based on [the Patient’s daughter]’s recall, she testified that this continued for a few minutes and she felt the Member was angry while she was doing her mother’s bath. [The Patient’s daughter] testified that she told her mother she was sorry and she would not let the Member touch her again. [The Patient’s daughter] testified that she did not say anything to the Member regarding her concerns because she was afraid and horrified.

[The Patient’s daughter] testified that she assisted the Member in turning her mother throughout the rest of the Member’s shift. She testified that she went into her mother’s room shortly after the Member left at 06:00 hours and noticed abrasions on her spine, bruises on her arms and legs and that she was able to observe these skin marks without having to remove the clothing. She testified to seeing a large red area and took pictures with her cell phone. She testified that the pictures at Exhibit #15 were taken by her and that Ms. Johnson assisted with the picture of the back.

[The Patient’s daughter] testified that she told Ms. Johnson and Dr. Dooler what had happened when they arrived including how vigorously the Member had washed her mother’s back. She testified that they strongly suggested she call the LHIN and request that the Member not return.

[The Patient’s daughter] testified that the marks on [the Patient]’s arms, spine and legs were not present before the bath or while she was in attendance during the bath.

[The Patient’s daughter] was asked about her brother’s health issues and she testified that he had a brain injury and mood disorder that included losing his temper quickly. She testified that his temper was manifested as verbally aggressive and he had not at any time been physically aggressive towards their mother.

Cross-Examination by the Member’s Counsel

The Member’s Counsel confirmed with [the Patient’s daughter] the chronology of events, specifically those of the first night she stayed at her mother’s home on Saturday, August 31, 2019. The Member’s Counsel also confirmed with [the Patient’s daughter] that she made the complaint to the LHIN on September 1, 2019. [The Patient’s daughter] testified that that was correct. She also testified that the death pronouncement document was missing from the chart and that she called Ms. Johnson regarding her mother’s wish to have her complete the death pronouncement.

[The Patient’s daughter] confirmed the discussion regarding her mother refusing a hospital bed and foley catheter. She recalled that the first night she stayed at her mother’s home, the Member appeared to be upset when she started her shift, so she and her brother shut off the movie they were watching. [The Patient’s daughter] recalled her brother went outside to smoke quite often. However, she could not recall going outside with him. She testified that the Member watched videos on her phone that night.

[The Patient’s daughter] testified that following the Member’s shift that ended at 06:00 hours on September 1, 2019, she spoke with Dr. Dooler regarding her concerns. Dr. Dooler suggested she call the LHIN. [The Patient’s daughter] confirmed calling the LHIN specifically regarding the Member not flushing the toilet, the noise from the Member watching videos and fans being left on in [the Patient]’s room.

[The Patient’s daughter] testified that the LHIN recommended she speak to the Member and she did initiate a conversation with the Member, starting with the toilet issue. [The Patient’s daughter] testified that the Member had an annoyed tone as the conversation moved to her request for the Member to give [the Patient] a sponge bath and turn her every 2 hours. [The Patient’s daughter] stressed during her testimony that the Member’s tone was argumentative and defiant during this period of time but she agreed to do what was asked.

The Member’s Counsel requested clarification regarding what [the Patient’s daughter] observed while the Member was completing a sponge bath on [the Patient]. [The Patient’s daughter] testified that while she was holding [the Patient]’s back she was able to see the Member’s arm moving. She further testified that she did not consider asking the Member to leave following her vow to her mother because she was in shock. The Member’s Counsel sought clarification as [the Patient’s daughter] had earlier asked the Member to leave prior to the sponge bath yet did not do so after her identified concerns with her mother’s care. [The Patient’s daughter] reiterated that she was in shock.

College Counsel Redirect

College Counsel asked for clarification on what [the Patient’s daughter] was able to see while she was assisting with the bath. [The Patient’s daughter] testified that she was standing above her mother and could not see the Member’s hand, only the rubbing motion.

[The Patient’s daughter] testified that she had two separate conversations with the LHIN.

Witness #4 – [ ], [the Patient]’s Son (“[the Patient’s son]”)

Examination by College Counsel

[ ] is [the Patient]’s son. He is on Ontario Disability Support Program following a head injury and lived with his mother from 2013 up to the time of her death in 2019. [The Patient’s son] confirmed that his head injury has resulted in short and long-term memory loss and mood swings that are demonstrated verbally, not physically and that medications control his symptoms.

College Counsel requested [the Patient’s son] recall caregivers to his mother and their activities. [The Patient’s son] testified that he remembered Dr. Dooler, Ms. Johnson, Mr. Franklin and the Member. He testified that the Member sat mostly in the living room while working. He was unable to recall if she went into [the Patient]’s room. He remembered the Member telling him to go to bed. He further testified that when his sister stayed overnight, the Member went into his mother’s room and he heard a yell. He testified that his sister went into the room to check and that when she came out she said their mother had bruises and her back was scraped. He was unable to recall if this was said immediately after leaving their mother’s room.

[The Patient’s son] testified that he did not see his mother until the next day and that Ms. Johnson, Dr. Dooler and his sister were taking pictures of the marks on her back, arms and legs. He further testified that Dr. Dooler stated [the Patient]’s arm was pulled out of the socket.

Cross-Examination by the Member’s Counsel

[The Patient’s son] was unable to recall if the Member explained the night nurse’s role to provide rest for the family members. He testified that he would go outside to smoke for a couple of minutes about 3 times per night and that the night the Member gave his mother a sponge bath, he did not go into his mother’s room.

When the Member’s Counsel asked for clarification regarding his statement about his mother’s arm injury, [the Patient’s son] testified that he may have been mistaken.

Participant Expert – Deborah Dooler (“Dr. Dooler”)

Dr. Dooler is a general practitioner in family medicine with a designation as a palliative care physician with Hospice Niagara - South Palliative Care Team. Her professional background includes previously being a registered nurse working in intensive care, specializing as a sexual assault nurse examiner (“SANE”) for 3 years, and completing a Master of Education. She was accepted to medical school and graduated in 2005. She completed her general practitioner residency in 2007. She worked as a hospitalist with a focus on palliative care and was medical director for the sexual assault/violence center until 2012. At that time, she opened a full-time practice in community palliative care where she continues to practice. She estimates admitting approximately 500 new palliative care patients a year. She is a published author on palliative care, adjunct professor at McMaster teaching palliative care to medical residents and fellows and is a participant expert for legal cases. Dr. Dooler had been [the Patient]’s palliative care doctor since November 2017 (Exhibit #20) and her home visits to [the Patient] were based on patient need and closer to end-of-life may have been daily. College Counsel tendered Dr. Dooler as a participant expert witness citing Westerhof v. Gee Estate (2015) whereby a fact witness with special skill, knowledge, training and/or experience may give opinion evidence formed during the course of events.

The Member’s Counsel did not challenge Dr. Dooler’s qualification as a participant expert but stated that her position on the weight to be given to the evidence of Dr. Dooler would be provided during her closing submissions.

The Panel accepted Dr. Dooler as a participant expert.

Examination by College Counsel

College Counsel asked for Dr. Dooler’s assessment regarding [the Patient’s son]’s ability to care for his mother [ ]. Dr. Dooler testified that he was able to help her stay in her home, the place was well kept, she did not witness any abusive behaviour or any angry outbursts. Dr. Dooler testified that she kept in touch with [ ], the daughter, by providing phone updates.

Dr. Dooler testified that during her visits, she completes a head-to-toe assessment that may vary depending on the patient’s condition. She testified that she checks the skin routinely to look for signs of skin breakdown or ulceration at bony prominences since palliative patients’ skin is frail and skin can easily shear, or they can develop bedsores or ulcers. She testified that open areas on the skin leads to a high risk of infection, they can be painful, are traumatic for the family and patient to look at and take away from the quality of life. Dr. Dooler testified that turning patients every 2 – 4 hours, using pillows to keep heels off the bed, reduces risk for patients who have limited movement or who are unable to move themselves. For patients who are able to move, she testified that their skin still needs to be monitored and it is necessary to ensure they are moving regularly. She further testified that if patients find it painful to move, pain medication in the form of a booster (bolus) may be given 10 – 15 minutes beforehand.

Dr. Dooler described [the Patient]’s health during the last month of her life: she had become increasingly frail, continued to lose weight and was very weak whereby she was unable to get out of bed onto the commode without assistance. She continued to have more difficulty breathing, was restless, agitated and unable to sleep. Dr. Dooler testified that she started [the Patient] on medication for pain and symptom management on August 26, 2019, specifically, morphine and midazolam, and requested a night shift nurse (Exhibit #20). Dr. Dooler had ordered a foley catheter insertion on August 26, 2019, which [the Patient] refused. The foley catheter was inserted on August 29, 2019 (Exhibit #19).

Dr. Dooler testified that when she saw [the Patient] on August 31, 2019, her condition had deteriorated: she was mostly sleeping but would open her eyes when called, her feet and legs were pale and cool. Dr. Dooler testified that the cool extremities indicated decreased circulation heading towards end-of-life organ failure. She increased [the Patient]’s medication to reduce agitation, restlessness and pain.

Dr. Dooler testified that in her progress note of September 1, 2019 (Exhibit #20), she had documented the daughter’s concerns regarding the nurse. She recalled that the daughter stated the nurse was checking [the Patient] from the doorway and would not give her a bath or turn her. Dr. Dooler testified that she called the LHIN and verbally requested the nurse provide appropriate care specific to bathing and turning. Dr. Dooler testified that the LHIN contacted her the next day on September 2, 2019 to clarify her voicemail. Dr. Dooler wrote a clarification on September 2, 2019 to turn patient every 2 – 4 hours overnight and to provide a medication bolus 10 minutes prior to care (Exhibit #20).

Dr. Dooler testified that in her progress note dated September 2, 2019, she noted bruises on left arm and back/spine (Exhibit #20). She further testified that [the Patient’s daughter] took the photos of the left arm and back while she held [the Patient] and that she made note about her right arm as [the Patient’s daughter] and [the Patient’s son] believed she was pulled up by her right arm.

Dr. Dooler was shown photos at Exhibit #15 and confirmed they were an accurate depiction of what she saw and that the marks on the back were not there at the time of her previous examination. Her opinion is that the back area was rubbed aggressively causing sheared skin and that the marks on the arm are petechiae from a new injury likely caused by pulling aggressively or rubbing roughly. Dr. Dooler denied the skin marks could occur at end-of-life.

Cross-Examination by the Member’s Counsel

The Member’s Counsel drew Dr. Dooler’s attention to her progress note of September 1, 2019 at Exhibit #20 whereby she documented [the Patient]’s right shoulder pain with movement. Dr. Dooler testified that this was correct.

Dr. Dooler reaffirmed that she helped [the Patient’s daughter] take pictures of [the Patient]’s back during her visit on the afternoon of September 2, 2019. She testified that she suggested taking the pictures and the ones in Exhibit #20 look like the ones taken that afternoon. She testified that she had not met or spoken to the Member; she had not witnessed the care provided by the Member nor had any independent knowledge of the care provided including frequency of turning. She concurred with the Member’s Counsel that nurses would be in the best position, based on their assessment to determine when a patient required care and turning. Dr. Dooler testified that turning is a medical necessity and her order to turn every 2 – 4 hours was based on the information provided by the family.

Dr. Dooler testified that petechiae, the marks on [the Patient]’s arms cannot be caused by virus or infection and that [the Patient]’s skin was very fragile, not friable since friable skin when touched causes an open wound. She further testified that other causes of the skin marks were not explored as there was not a lot of time before [the Patient] died.

Dr. Dooler testified that the redness seen on [the Patient]’s back was different from pressure because the ribs were white, rather than red and the reddened area on the spine was not pressure related. She testified that the skin damage could have been caused by rubbing aggressively as she observed small open cut areas and redness and had [the Patient] lived, there would have been further signs of bruising. She testified that she made a complaint to the LHIN and assumed this was due to the Member’s care since the timeframe fit.

College Counsel’s Redirect

Dr. Dooler testified that she had not noticed or documented any redness on [the Patient]’s back. She also testified that during her discussion with the LHIN, they confirmed that the Member stated patients who are at end-of-life are not turned in Hamilton.

Expert Witness – Meredith Muscat (“Ms. Muscat”)

Ms. Muscat is a Registered Nurse - Extended Class, registered with the College since 1999. She is currently the Director of Clinical and Transitional Care Programs at Toronto Grace Health Centre (“TGHC”) in Toronto, Ontario. She is responsible for the in-patient palliative care unit, rehabilitation/bariatric unit, critical chronic illness long term ventilation unit and community based transitional units.

Ms. Muscat’s curriculum vitae, marked as Exhibit #21, outlines a long nursing career in pain management and palliative care. In 2004 she completed a Master's Degree in Nursing: Acute Care Nurse Practitioner and worked in acute care at Toronto General Hospital (“TGH”) for 4 years. From 2008 - 2012 she led the pain service team at St. Michael’s Hospital and then from 2012 – 2015 was responsible for perioperative day surgery programs. In 2015 she transitioned to Toronto Central Local Health Integration Network (“TCLHIN”) as the Nurse Practitioner for the community-based Palliative Care Team. Since 2018 she has worked at TGHC and is responsible for palliative care programs, patient care and transitional care programs.

College Counsel tendered Ms. Muscat as an expert on the standard of practise for palliative nursing care. The Member’s Counsel had no issue with this. The Panel qualified Ms. Muscat as an expert on the standard of practise for palliative nursing care.

Examination by College Counsel

Ms. Muscat testified that the opinion she would provide would be non-partisan and objective as indicated in Exhibit #22, the Acknowledgement of Expert’s Duty.

Ms. Muscat was asked by College Counsel if the Professional Standards apply in all practice settings. Ms. Muscat testified that the College’s Professional Standards is the foundation for practice regardless of the setting.

Ms. Muscat was asked by College Counsel if she had experience dealing with patients receiving palliative care in the home, who are immobile, sedated with medication via CADD pumps. Ms. Muscat answered in the affirmative. She was then asked to explain, in general, expectations regarding turning and repositioning patients who are end-of-life. Ms. Muscat testified that patients who were immobile or bed-bound and receiving pain management needed to be turned every 2 hours day and night to ensure the skin does not break down, especially if the patient was not on a hospital bed. The repositioning could take a variety of forms such as changing pillows or turning from side-to-side and anyone, not just nurses could do this. For patients who are on a therapeutic support surface the frequency may be less. She further testified that prevention is most important since pressure ulcers are painful and if not treated could lead to infection and lead to death. Ms. Muscat testified that moving may be painful for patients who are end-of-life and use of pain medication prior to turning helped to mitigate the pain.

College Counsel asked Ms. Muscat if not turning a patient would contravene the Professional Standards. Ms. Muscat affirmed that it would since it is a best practice to turn someone every 2 hours to provide comfort, reduce risk of injury and to complete a patient assessment. When asked by College Counsel whether, if a member elected not to turn a patient so as not to cause pain, would be a contravention of the Professional Standards, Ms. Muscat testified that the rationale for not turning a patient would need to be documented to support that decision. If it was found a member did not turn a patient, the professional standard of accountability would be contravened since the nurse is accountable for providing, advocating and promoting the best possible care on behalf of the client.

College Counsel asked whether, a situation in which the patient was bedridden, receiving pain medication via a CADD pump and had a foley catheter should have led to a turning regime, Ms. Muscat reiterated that once a patient is bedbound the standard of practice is every 2 hours. In addition to contravening the Professional Standards with regard to accountability requirements, Ms. Muscat testified that routinely turning a bed bound patient is a comfort measure and to not so for a patient who is at end-of-life and bed bound contravenes the Professional Standards specific to having the knowledge, skills and abilities to perform in a given role, situation and practice setting.

College Counsel asked Ms. Muscat about pain management prior to turning or other activities. Ms. Muscat testified that it is common for turning to be painful for palliative patients and this is why it is important to provide a bolus beforehand. Nurses need to know the length of time for pain medication to take effect prior to commencing any activity. She testified that while it depends on the medication, it usually takes 10 – 15 minutes for a subcutaneous bolus to take effect.

College Counsel directed Ms. Muscat to the hypothetical situation (Exhibit #24), paragraphs 18 – 23, and asked for her opinion regarding whether what it described was a breach in practice. Ms. Muscat testified that the nurse failed to give the medication enough time to work before proceeding with the bath. In failing to wait for the medication to take effect, the nurse breached the Medication Standard - Competence, specific to knowing the medication and how it works via what route. In Ms. Muscat’s opinion the nurse should have administered a bolus for the patient’s comfort, before giving a bed bath.

College Counsel then asked Ms. Muscat to describe how a nurse would assess pain in a non-verbal patient. Ms. Muscat testified that she would expect the nurse to look for non-verbal cues and ask family members to verify patient behaviours. Ms. Muscat testified that the patient records in the hypothetical situation did not include assessment of pain at any point, nor do the records show medication being administered prior to bathing. She would expect to see documentation to support the nurse’s decision to not medicate prior to the bath or turning. She agreed with Dr. Dooler’s statement that one does not wait for a palliative patient to have pain and she reinforced that the ultimate goal is to provide comfort. The only harm in providing a bolus is if the patient is opioid naïve. However, for this patient, there was no indication the boluses provided were detrimental. Ms. Muscat testified that the medications [the Patient] was on were for symptom management and sedation, not palliative sedation.

College Counsel directed Ms. Muscat to Exhibit #23, in relation to question 1(c) in the hypothetical situation regarding the manner in which the patient was bathed. College Counsel asked, assuming the facts presented in paragraphs 25 – 30 in Exhibit #24 to be true, whether the member handled the patient in a rough manner. Ms. Muscat concluded that the member did handle the patient in a rough manner based on the words used by the daughter and observations made by the palliative nurse and doctor who confirmed the injuries were not seen before. Ms. Muscat stated that if the marks were caused by the bath, the nurse would have breached the Therapeutic Nurse Client Relationship Standard (“TNCR Standard”) by handling a client in a rough manner.

College Counsel directed Ms. Muscat to page 11 of Exhibit #24, the picture of the spine and asked if she had reached any conclusion regarding cause. Ms. Muscat testified that the skin marks looked like friction injury based on the uniform shape of the reddened area. She testified that if this was related to pressure it would have been seen over time. She testified that the red and white areas may be due to pressure as the ribs looked more concave. Ms. Muscat testified that the marks on the arm shown on page 10 looked like a friction injury from the wrist to the elbow. When asked why she suspected friction, she opined that the redness looked like a recent trauma injury.

College Counsel asked Ms. Muscat if patients at end-of-life could have injuries, such as those seen in the photos, due to their fragile, frail skin or if they had a history of bruising. Ms. Muscat testified that if the skin was frail one would expect to see hand or finger marks and if there was a history of bruising, it would be documented and there is nothing in the patient record to indicate this.

Cross-Examination by the Member’s Counsel

The Member’s Counsel asked Ms. Muscat to clarify charting by exception, specifically whether activities such as nursing care and pain assessment would be documented in a narrative note or flow sheet. Ms. Muscat testified that she would expect to see the exception in the narrative notes.

The Member’s Counsel asked Ms. Muscat to clarify her opinion regarding turning sedated, immobile patients every 2 hours. Ms. Muscat testified that, in her opinion, assessment is a component of repositioning and turning. She testified that repositioning is smaller movements like rearranging a pillow or straightening limbs versus turning which is moving the body to a different position. Ms. Muscat concurred that the nurse uses their knowledge, skills and abilities to assess what is needed for the patient regarding turning and repositioning versus a formal, every 2 hour rule. Ms. Muscat disagreed with the Member’s position, based on a statement from a doctor, that it was better to not turn the patient. She stated that for this particular patient maintaining skin integrity was a comfort measure and required repositioning.

The Member’s Counsel directed Ms. Muscat to the issue of providing a bolus medication prior to care or turning. The question put to Ms. Muscat was whether a nurse, using their knowledge, skills and abilities, would be expected to complete an assessment prior to administering a prn medication. The Member’s Counsel questioned whether, if the nurse determined the prn medication was not needed, they still met the Professional Standards. Ms. Muscat concurred that if the assessment had been completed and documented then the Professional Standards would be met. In addition, she stated that there needed to be confirmation that the medications were meeting the patient’s baseline. This would include completing a non-verbal pain assessment.

The Member’s Counsel asked Ms. Muscat if she had seen the pictures without knowing the background, whether she would consider the back skin marks to be a stage 1 or a stage 2 pressure ulcer. Ms. Muscat testified that, based on the redness of the ribs, the marks looked like an injury consistent with scrubbing, not a pressure ulcer.

College Counsel’s Redirect

College Counsel asked Ms. Muscat if a patient refused help to turn, whether one would expect this to be documented. Ms. Muscat indicated that this would be expected.

Ms. Muscat clarified that non-verbal signs of pain would include grimacing, groaning, moaning, increased heart rate and were dependent on the medication the patient was receiving. If a patient was semi-comatose, they may be responsive at times and other times one would see physiological changes. She testified that if a nurse had made an assessment and determined that a bolus medication was not needed or if a family member, or Power of Attorney for Personal Care had requested it and the nurse chose not to administer the medication, this would need to be documented.

Opening Statement of the Member’s Counsel

The Member’s Counsel stated that the events leading to this hearing have been difficult for the Member. She has been unable to work due to allegations of patient abuse. The allegations are unfounded and perceptions, personality and bedside manner are the issues. The Member’s Counsel indicated that the Member would testify to her palliative experience, her education and her work as a shift nurse with VON. She was a technically sound nurse and a bit rough around the edges. For the first three shifts there were no issues. On the fourth shift several things happened: [the Patient’s daughter] stayed, health issues of the Member necessitated her using the washroom frequently and the Member did not turn [the Patient]. On the fifth shift, she received complaints from the family regarding fans and an open window, the toilet and the loud TV. The Member intended to have a conversation with the daughter who mandated she care for her mother. After being asked to leave, the Member chose to stay so [the Patient] would not be without care. The Member did provide gentle care. When she left, [the Patient] was without marks on her body as the documentation and conversation with her manager will reveal.

The Member’s Counsel indicated that their second witness, Ms. Young, would discuss the standard of care for turning and end-of-life medication.

The Evidence of the Member

The Panel received 2 exhibits from the Member’s Counsel and heard testimony from the Member and one expert witness.

The Member’s Witnesses

Witness #1 – Cindy Yaworski (the “Member”)

Examination by the Member’s Counsel

The Member is an RN and has been registered with the College since 1997. She has worked in a correctional facility, psychiatric hospital, long-term care, acute care on a medical-surgical floor, was in independent practice as a foot care nurse, worked as an agency nurse, community shift nursing for Acclaim and started working with VON as a shift nurse in February 2018. She has approximately 3 years of palliative care experience and has attended in-house training with VON. Her education includes an OR post graduate certificate, foot care certificates, and a post graduate certificate in mental health from Algonquin College. The Member described her bedside manner as positive, professional and sometimes a “bit rough around the edges”.

The Member described shift nurse duties for palliative patients. During a day shift, the duties would include bed baths, assessments, assisting with meals or feeds, continence management, administering medications, consulting with physician, palliative team and visiting nurse, and family updates. For night shifts, the objective would be to support the patient and family to sleep and save energy, administer medication, assessment, continence management, repositioning and mouth care, etc.

The Member explained that VON documentation is based on charting by exception using flow sheets and narrative notes for exceptions to standards. Flow sheets included activities of daily living, medication, wound care etc.

The Member provided a summary of her first shift with [the Patient] on August 28, 2019. She stated she met with the son, [ ], received an update from him, read the chart that was available, met with [the Patient] and completed a head-to-toe assessment and checked the CADD pumps. She confirmed speaking with [the Patient] and assisted her to the commode as needed. The Member testified that she got along with [the Patient’s son] and believed that he was happy she was there. He discussed his health issues with her and showed her his medications. During the night she was in [the Patient]’s room, the kitchen or the living room and was able to see [the Patient] from the living room chair. [The Patient’s son] was outside smoking throughout the night or was in his room watching TV. The Member testified that she did not speak with the daughter, [ ].

The Member testified that on her second shift on August 29, 2019, [the Patient’s daughter] was there to meet her and provided the Member with an update. The Member testified that [the Patient] had deteriorated and was unable to get up to the commode. She testified that she spoke with the son, daughter and [the Patient] regarding a hospital bed and that [the Patient] refused a hospital bed. When asked how often she would check [the Patient], the Member stated it was probably every hour.

The Member’s Counsel asked the Member to describe her third shift on August 30, 2019. The Member testified that she received an update from the son, checked notes, saw [the Patient] and checked the CADD pumps. [The Patient] was agitated that night as she had stopped smoking and was unable to settle. The Member testified that she spoke to [the Patient’s daughter] via telephone. The Member testified that the son went into his mother’s room 3 times during the night.

The Member testified that on her fourth shift on August 31, 2019, [the Patient’s daughter] slept over that night. The Member reviewed the chart and noted that the death certificate which would be completed when [the Patient] passed, was missing. The Member completed an assessment of [the Patient] and spoke with [the Patient’s daughter] in the kitchen. The Member testified that [the Patient] was deteriorating and that she did not turn her during the night on the recommendation of Dr. Anne Doyle, whom she had spoken to in February 2019, (not specifically in relation to [the Patient]), but did not explain this to the family. The Member testified that she provided mouth care and pain medication, but did not provide a bed bath to [the Patient].

When the Member arrived for her last shift on September 1, 2019, she received an update from [the Patient’s daughter] and proceeded to assess [the Patient] and check her CADD pumps. When she spoke with [the Patient’s daughter] in the kitchen about the LHIN complaints, the Member testified that [the Patient’s daughter] became verbally abusive, telling the Member that she had called the LHIN to find out what her duties were. [The Patient’s daughter] stated that the Member was mandated to do what she was asked and if she was not going to do so, she could leave. The Member testified that she tried to be professional, however, [the Patient’s daughter] was verbally abusive to her 3 times. The Member agreed to do a bed bath and [the Patient’s daughter] said that she could stay. The Member acknowledged that the scenario was different before and after [the Patient’s daughter] stayed over.

The Member testified that she went into [the Patient]’s room, closed the door for privacy, started the bed bath and that there was no response from [the Patient]. The Member testified that she did a sternal rub and that there was no response. The Member testified that she asked [the Patient’s daughter] to help turn her mother. When she entered the bedroom [the Patient’s daughter] asked the Member if she had given [the Patient] a bolus. The Member stated she had not, even though at the beginning of the shift [the Patient’s daughter] had told her to give [the Patient] a bolus before turning. The Member gave in, despite her earlier assessment, and gave the bolus because [the Patient’s daughter] had been argumentative.

The Member gave a bolus and waited approximately 12 minutes before turning [the Patient] towards [the Patient’s daughter] as [the Patient’s daughter] had mentioned [the Patient]’s right shoulder had been bothering her. The Member testified that she was gentle when providing the sponge bath and did not wash [the Patient] thoroughly due to her very dry skin. The Member testified that there were no marks on [the Patient]’s back. However, she had a pressure ulcer on her tail bone that was covered with a dressing. The Member testified that she charted this on the wound care flow sheet and that following the bath, she changed [the Patient]’s clothes, brushed her hair and changed her position.

The Member testified that she did not notice any marks on [the Patient]. The Member testified that she switched to narrative charting due to the trouble she was having with [the Patient’s daughter]. The Member testified that she understood this was a very difficult time for the family. The Member believed that [the Patient’s daughter] had her own idea of how her mother’s situation would go and when it was not going that way [the Patient’s daughter] became upset.

The Member notified the office that she was not returning to [the Patient]’s house (Exhibit #11) following emails to the office regarding the Member’s concerns (Exhibits #9 and #10). The Member testified that the first time she saw the photos (Exhibit #15) was when she was called to a meeting at VON. The Member testified that there were no marks on [the Patient]’s skin and that if she had observed any marks, she would have documented them and informed the family.

The Member’s Counsel directed the Member to Exhibit #18, the Ministry of Health Report, Item 6. The Member testified that the notes provided to Ms. Coughler were notes written after seeing [the Patient], were from memory and where written close to the time of the events.

Cross-Examination by College Counsel

College Counsel asked the Member if she had addressed her bedside manner through counselling, introspection, applied feedback or College courses specific to the TNCR Standard. The Member testified that she had not.

College Counsel suggested that the Member had not used flow sheets nor documented. The Member testified that she charted on a different CADD flow sheet and that it was missing (Exhibit #5). She confirmed she received the change in medication orders for morphine and midazolam via VON’s electronic records.

College Counsel directed the Member to Exhibit #18, the Ministry of Health Report, Item 6 which is a report received from the Member in response to the complaint. College Counsel asked the Member if in normal circumstances she would go home and type up detailed clinical notes that were not in the VON records. The Member testified that she normally did not type up notes after her shift.

Exhibit #19 showed a discrepancy between SEHC notes page 17 versus Exhibit #18, page 7 regarding [the Patient] using the commode on August 29, 2019. The Member testified that she did transfer [the Patient] to the commode for a bowel movement.

College Counsel directed the Member to her statement that prior to August 31, 2019, [the Patient] was repositioning herself. The Member testified that she did offer to help [the Patient] turn but [the Patient] would sometimes refuse, even with encouragement. The Member stated she would not document [the Patient] refusing help to turn, nor did she raise the concern with the family.

College Counsel questioned the Member regarding the lack of documentation for giving and not giving boluses for pain, nor documenting the coccyx wound. On August 31, 2019 the Member gave [the Patient] multiple boluses and on September 1, 2019, she did not give [the Patient] a bolus before the sponge bath and turning. The Member testified that she did not chart the rationale, nor did she chart completing a sternal rub to illicit a pain response. The Member testified that she documented the presence of a coccyx wound on the wound care flow sheet.

The Member’s Counsel’s Redirect

On redirect, the Member testified that orders sent to the visiting nurse would not be received by another agency providing care to [the Patient] and therefore the order would need to be sent to both agencies. The Member testified that the dressing on the coccyx was in place on her first shift up to the last.

Expert Witness - Tami Young (“Ms. Young”)

The Member’s Counsel tendered Ms. Young as an expert witness. Ms. Young has been registered with the College since 1997. She worked in the United States from 1998 – 2008 in a variety of positions. Since 2008 she has worked in the home and community sector and currently works with Acclaim as a Nursing Care Manager. Ms. Young has completed the Basic/Advanced Learning Essential Approaches to Palliative Care (“LEAP”) in 2019 and is nationally certified in IV and infusion therapy (Canadian Vascular Access Association [CVAA(c)]).

Ms. Young testified that the opinion she would provide would be non-partisan and objective as indicated in Exhibit #30. College Counsel had no issues with Ms. Young being accepted as an expert witness. The Panel qualified her as an expert in palliative nursing care.

Examination by the Member’s Counsel

The Member’s Counsel directed Ms. Young to Exhibit #24, the College’s Professional Standards, Exhibit #25, the TNCR Standard and Exhibit #26, the Medication Standard. Ms. Young testified that she is familiar with these standards and with palliative patients at home who are immobile and sedated with medications such as morphine and midazolam via CADD pumps.

The Member’s Counsel asked Ms. Young if she had reviewed the Member’s charting to assess if it was consistent with charting by exception (“CBE”). Her experience with CBE is with the use of flow charts for the standards of care and narrative or progress notes for something that was not included in the flow sheets. Ms. Young testified that she had reviewed the documentation and noted that the only documents from VON were the progress notes.

The Member’s Counsel directed Ms. Young to Exhibit #30, her report, and asked Ms. Young to speak to the standard of practice for turning and repositioning semi-mobile patients. Ms. Young testified that the nurse has to provide patient-centred, patient-focused support based on the patient’s abilities and compliance. She testified that patients have the choice to live at risk and nurses cannot force them to do anything. Regarding patients who are sedated and immobile, Ms. Young stated that the patient’s condition determines frequency of repositioning and turning, anywhere from every 2 to 4 hours for those with high risk of skin breakdown. If the patient is heavily sedated the goal would be to promote rest, sleep and symptom management. Ms. Young testified that the minimum standard was every 4 hours based on nursing assessment and considerations for those who are high risk. She testified that a 50-pound patient with fragile skin who was elderly and at end-of-life would be easily injured with movement.

Ms. Young testified that the goal for patients at end-of-life care was symptom management. Nurses would be expected to assess the need for repositioning and turning based on patient comfort or signs of discomfort or pain, and skin discolouration. Specific to [the Patient], Ms. Young testified that for the first 3 days, if [the Patient] was saying no to turning, then one was not to proceed. Ms. Young testified that on the fourth shift, so long as the Member was monitoring [the Patient] for pain, comfort and monitoring for skin changes, then the Member’s judgement to not turn [the Patient] would meet the standard of care. Shift nurses have the assessment skills, knowledge and abilities to know what is best for the patient. Ms. Young further testified that the last night where the Member turned [the Patient] every 2 hours at the family’s request, increased [the Patient]’s risk of injury and may not have been in her best interest.

Ms. Young was asked her opinion regarding the amount of pain and sedation medication [the Patient] was receiving. Ms. Young opined that the amounts were large enough to be considered palliative sedation and based on this opinion, she would not have given [the Patient] more medications prior to turning or bathing. The decision to provide a bolus is based on verbal or non-verbal signs and symptoms of pain such as increased heart rate and/or respirations, grimacing, moaning etc. Ms. Young testified that even with a medical order to give a bolus prior to care, the nurse decides, based on their assessment, if the bolus is needed. Based on her review of the file and based on the information available, Ms. Young testified that in her opinion, a bolus was not needed.

Ms. Young was asked if a sternal rub was an appropriate assessment to help assess pain response. Ms. Young testified that it was not typical, however, it is used. Ms. Young testified that no response indicated [the Patient] did not require medication.

The Member’s Counsel directed Ms. Young to Exhibit #15, the first picture showing [the Patient]’s arms. Member’s Counsel asked Ms. Young what could cause this type of skin marks. Ms. Young testified that she thought the marks resembled petechiae and that, especially for persons who are end-of-life, this may be caused by light touch such as adding or removing pillows, turning or repositioning. With regard to the second picture of [the Patient]’s back, Ms. Young opined the red line looked like a pressure ulcer. She further opined that if the back had been scrubbed like rubbing paint off, there would be more skin damage and the area would be more open. In addition, Ms. Young testified that there was no drainage, the sheets were clean with no signs of bleeding or discharge. If this had been an acute trauma, there would have been drainage. Ms. Young testified that the redness in between the ribs did not show any signs of injury and based on the information available, she testified that in her opinion, the injuries were not due to physical abuse.

Cross-Examination by College Counsel

In cross-examination, Ms. Young testified that the frequency of turning a patient is dependent on the patient’s condition, whether there was an existing pressure ulcer, the patient’s end-of-life status, and whether a hospital bed was available. With respect to [the Patient], Ms. Young testified that the treatment plan would be for comfort rather than healing.

College Counsel asked Ms. Young how a nurse would be able to assess skin integrity if the patient was not moved. Ms. Young testified that [the Patient] was at high risk for skin injury due to her fragility but at the same time, would require symptom management to keep pressure off.

Ms. Young testified that conducting a sternal rub was not typical. However, it could be used to elicit a pain response. Ms. Young testified that the pain and sedation medications [the Patient] was receiving were quite heavy and could be considered palliative sedation. Ms. Young testified that midazolam is a hypnotic used to reduce anxiety and that morphine is for pain relief and was why they were given together.

College Counsel directed Ms. Young to her report at Exhibit #30, page 8, specifically to the statement that [the Patient]’s pain was managed based on her weight and dosage. Ms. Young confirmed her opinion indicating the documentation included a PPS score of 20%, the patient slept well except for one night and that other assessments including pain were not available. Ms. Young further testified that, if based on the nurse’s assessment, a bolus medication is not indicated, this would need to be documented. In the absence of VON and SEHC documents Ms. Young was unable to confirm if the Member completed documentation based on VON procedures.

Ms. Young testified that the fact that Mr. Franklin did not document any bruising or skin marks on the body of [the Patient] nor mention family concerns in his notes was relevant. It indicated that the skin marks were not present at the time of his initial assessment nor mentioned by the family when he received his initial report from them.

Final Submissions

College Counsel

College Counsel asked the Panel to make findings of professional misconduct against the Member for breaching the College’s Professional Standards, the TNCR Standard and the Medication Standard, for physical abuse, and for disgraceful, dishonourable, and unprofessional conduct.

College Counsel stated that the Member had denied the allegations so the burden of proof was on the College. In order to make findings of professional misconduct the evidence needs to be assessed and weighed by the Panel to determine if it is more likely than not to have occurred. The Panel needs to assess the quality of the evidence to ensure it is clear, cogent and convincing.

College Counsel summarized the undisputed facts:

• [The Patient] was a 79 year old woman receiving end-of-life care in her home;
• She weighed approximated 50 – 60 pounds;
• She was receiving care from 3 different agencies: Ms. Johnson, visiting nurse with SEHC who saw her 2 – 4 times per day; Dr. Dooler, palliative care physician, and VON night shift nursing from August 27, 2019 – September 2, 2019;
• On August 26, 2019, [the Patient] was receiving pain and sedation medication for symptom management;
• On August 27, 2019, her medication was changed to subcutaneous infusion of morphine and midazolam via CADD infusion pumps;
• On August 28, 2019, [the Patient] was using a commode with assistance;
• On August 29, 2019, [the Patient] had a foley catheter inserted for urinary management and was bed ridden moving forward;
• The Member was assigned night shifts (22:00 – 06:00 hours) from August 28 – September 1, 2019;
• The Member admitted to not turning [the Patient] on August 31, 2019; and
• On September 1, 2019, the Member gave [the Patient] a sponge bath and admitted to not giving her a bolus prior to the bath. The Member admitted to administering a bolus partway through the bath and that she waited approximately 5 minutes before proceeding.

College Counsel submitted that the Panel has heard from six fact witness and two expert witnesses and is required to assess the credibility and reliability for each witness’ testimony. A credibility assessment must include the following considerations:

• Appearance and demeanour;
• Extent of the witness’ power and opportunity to observe;
• Witness’ interest that may taint the evidence;
• Witness’ exhibited partisanship;
• Credibility of the witness;
• Prior and consistency of evidence; and
• Evidence that is consistent or inconsistent.

College Counsel stated that discrepancies do not necessarily discredit the evidence, as perfection cannot be expected. The hallmark factors of a non-credible witness include affirmative answers to the following:

a. Is the witness argumentative or unresponsive to questions;

b. Is there inconsistency from their previous statements;

c. Is there inherent improbability of the witness’ story;

d. Is there convenient selective memory; and

e. Is there refusal to acknowledge unfavourable points.

The Panel should recognize that witnesses may remember some key points and not others. The Panel may accept some, none or all of the evidence.

College Counsel submitted that the witnesses, including the Member were credible and consistent with what they could remember.

[The Patient’s daughter] showed difficulty in remembering which events took place on what nights and how many times she called the LHIN. College Counsel asked the Panel to keep in mind that the passage of time makes recall of timing difficult.

[The Patient’s son] suffers from a brain injury that affects his memory.

Dr. Dooler was a participant expert and at times was argumentative. Dr. Dooler was [the Patient]’s family physician for a long time and would have differing views with the possibility of less objectivity. In College Counsel’s submission there is no reason to give her testimony less credence.

There are 2 points to consider regarding the Member’s credibility. According to the Member, [the Patient] had a Stage 2 pressure ulcer covered by a dry dressing. The preponderance of evidence does not support there was a Stage 2 pressure ulcer and there is no documentation from VON to support the existence of an ulcer. The Member claims documents are missing. However, records for over 2 years from SEHC and Dr. Dooler are detailed and do not mention a dressing. A dressing would require wound care and there is nothing documented to support this.

College Counsel pointed out that both Dr. Dooler and Ms. Johnson noted skin damage on the last day of [the Patient]’s life. Ms. Johnson testified that she had inserted a foley catheter and did not see any skin damage at that time. It therefore defied logic for [the Patient] to have had a pressure ulcer on August 28, 2019. [The Patient] was only recently bed bound and since she was able to get up it did not make sense why there was a dressing for a pressure ulcer. If [the Patient] did indeed have a pressure ulcer, this was even more reason why she needed to be turned.

College Counsel submitted that when considering the evidence of the Member, the Panel should consider that either she had misremembered key pieces of evidence or fabricated the evidence. Other evidence to be considered was the Member’s testimony regarding conducting a sternal rub before the bath. The Member testified that she completed a pain assessment and therefore [the Patient] did not need a bolus. The use of a sternal rub was not mentioned in any pre-hearing documents and was mentioned by Dr. Dooler who was clear it was something she did not use. The Member heard about this during Dr. Dooler’s cross-examination and that it was used by palliative care nurses rather than testing a patient’s responsiveness using a pen on a nail bed. Ms. Young testified that a sternal rub is not generally used in palliative care. Considering [the Patient] was incredibly frail, College Counsel submitted that the Member was not credible when she said that she used a sternal rub as she had co-opted Dr. Dooler’s statement as her own.

College Counsel submitted that Ms. Young was qualified as an expert and the Panel should consider her credibility and the weight of her evidence. Ms. Young was not provided with Dr. Dooler’s evidence therefore her opinion was not based on all of the relevant information. There were gaps in assumptions that Ms. Young relied on therefore her opinion was less helpful and should not be given much weight.

College Counsel submitted that, with regard to the allegations, the questions to be considered were whether the alleged conduct occurred and, if it did, did it amount to a breach of the standards.

Allegation #1(a) is with respect to a failure to turn [the Patient] during the first four shifts. The evidence is clear that the Member did not turn [the Patient] during the August 31, 2019 shift (Exhibit #13). The Member testified that her general practice is, if the patient is able to turn, she offers help or, if unable to do so, she turns them. In the Member’s view patients should be turned every 2 hours. The Member testified that on August 28, 2019, she helped the patient turn unless she refused. On August 29, 2019, [the Patient] had deteriorated and had refused help to turn. The Member testified that on August 30, 2019, she helped [the Patient] to turn. Apart from the Member’s documentation there is no evidence she turned [the Patient] The Member testified that she would have used flow sheets and there is no documentation regarding [the Patient]’s refusal.

[The Patient’s son] is a factual witness and the only person present for all shifts. According to his testimony the Member did not assess his mother and she sent him to his room. He testified that he was unable to perceive what the Member was doing. The house was small, and he testified that he would have heard noises if there was movement.

[The Patient’s daughter] testified that on the nights she was at her mother’s house she did not witness the Member completing care. She testified that she saw the Member ‘pop her head in’ her mother’s room.

Ms. Johnson testified that [the Patient] was immobile in her final days and that her moving to a commode stopped on August 29, 2019. She testified that she spoke to the Member by phone and told her she needed to do a sponge bath and turn [the Patient]. Ms. Johnson testified that she was “shocked” that she had to have this conversation with the Member. She testified that she found [the Patient] in the same clothes and in the same position as she had seen her the night before, leading her to the conclusion that [the Patient] was not being turned.

Ms. Johnson further testified that [the Patient] was immobile once she was placed on the CADD pumps and she was unable to move on her own. Medications started on August 26, 2019 and the Member started on August 29, 2019.

Dr. Dooler’s progress note on August 26, 2019 indicated PPS score 30% and that [the Patient] required total care. Progress notes for August 27, 2019 stated [the Patient] was bed bound and the August 30, 2019 progress note stated PPS score 20% and the patient was unresponsive. Dr. Dooler testified that [the Patient] needed to turn every 2 – 3 hours and viewed this as a responsibility of care givers including family members.

Ms. Muscat concurred that turning was needed, especially since there was no hospital bed. [The Patient] specifically required turning due to her size and condition, she was bedbound with a foley catheter and small movements would not replace turning to relieve pressure. Ms. Muscat opined that the Member breached the Professional Standards of accountability and knowledge.

Ms. Young opined that if a patient is aware they cannot be forced to move. Turning protocols would be based on a client-centered focus on care goals, based on the nurse’s assessment. If a person was high risk and sedated the goal would be to promote rest and turning every 4 hours would be a minimum. The nurse must monitor bony prominences for pressure.

College Counsel submitted that considering all of the facts and considering the Member’s own evidence that she did not turn [the Patient] on August 31, 2019, the Member should be found to have committed an act of professional misconduct. The Member relied on a frail weak patient to turn herself. All 3 experts concurred that failure to move the patient was a breach of the standards. There is no evidence that the Member assessed the patient’s skin therefore she breached the standards.

College Counsel further submitted that in regard to allegation #1(b) the Member failed to provide pain medication prior to bathing or turning [the Patient]. On August 31, 2019, [the Patient’s daughter] in her capacity as Power of Attorney for Personal Care had told the Member to give a bolus before [the Patient]’s sponge bath. Partway through the bath, the Member requested help from [the Patient’s daughter] who asked if the bolus had been given. The Member indicated that it had not. The bolus was given and they waited 5 minutes before continuing the bath and turning [the Patient]. This was a clear admission by the Member that the medication was not given.

College Counsel submitted that the Member’s evidence is that the Member assessed [the Patient] and determined she did not need a bolus. The Member did not conduct a sternal rub and if she did, it was not an appropriate assessment tool for an end-of-life patient.

The evidence provided in this case includes Dr. Dooler’s statement that turning can be painful, therefore a bolus should be given before care or turning. Dr. Dooler testified that [the Patient] was receiving symptom management rather than palliative sedation and a bolus before turning was needed. She also testified that a patient who was non-verbal or non-responsive may still be in pain and a bolus was to be given as a preventative.

College Counsel stated that Ms. Muscat opined that it was common nurses' knowledge that it took approximately 15 minutes for pain medication to take effect. The Member and [the Patient’s daughter] waited 5 minutes following the bolus before proceeding with the sponge bath and this was a breach of the standard since the Member should have known the length of time it took for the medication to take effect.

[The Patient’s daughter] requested a bolus before care or turning and the Member did not follow the directive. If the Member was going against the directive, there needed to be a documented rationale and that documentation was absent.

College Counsel submitted that Ms. Young testified that [the Patient] was receiving palliative sedation based on her weight and the amount of medication she was receiving. Ms. Muscat opined that Ms. Young did not have enough information in the records to form that conclusion. Ms. Young testified that if a nurse goes against a physician order that needed to be documented. That documentation was not available nor was there evidence of a pain assessment before the sponge bath.

College Counsel stated that based on [the Patient’s daughter]’s and the Member’s testimony, the absence of documentation, the fabricated assessment following Dr. Dooler’s testimony, Dr. Dooler and Ms. Muscat’s testimonies that administering a bolus prior to turning or care for palliative end-of-life patients was needed and the deviation from [the Patient’s daughter]'s request, there was clear, cogent and convincing evidence that the Member breached the standard of care.

College Counsel further submitted that in relation to allegation #1(c) that the Member bathed the patient in a rough manner causing bruises and/or abrasions, the evidence was direct and circumstantial.

[The Patient’s daughter] witnessed the bathing event and her testimony was consistent. She had requested that the Member give her mother a sponge bath and the Member and [the Patient’s daughter] entered into a heated discussion. The Member testified that she was upset and felt that [the Patient’s daughter] had been aggressive.

[The Patient’s daughter] and [the Patient’s son] heard [the Patient] scream out and shortly after the Member asked for assistance. [The Patient] was turned toward [the Patient’s daughter] and [the Patient’s daughter] testified that she watched the Member rub [the Patient]’s back like she was scrubbing paint off a pipe.

College Counsel submitted that the circumstantial evidence comes from Ms. Johnson and Dr. Dooler who affirmed the Member was rough. Based on Ms. Johnson’s testimony, she saw [the Patient] 4 times on September 1, 2019 (Exhibit #19) and did not see any marks until her first visit on September 2, 2019. At that time, she witnessed [the Patient’s daughter] taking photos with her phone.

Dr. Dooler documented on September 1, 2019 that [the Patient]’s skin was pale and cool. She noted that the family was having issues with the nurse, leading to the order for turning and bolus before turning and care (Exhibit #20). She documented bruises on September 2, 2019 that were not there the previous day.

Dr. Dooler opined that the marks were due to aggressive rubbing and shearing. She indicated the petechiae was a fresh injury caused by grabbing, pulling or rubbing and commented that she had never seen marks like that before.

Ms. Muscat opined the marks were caused by friction and were not likely to be pressure ulcers since the shape of the marks were uniform and symmetrical. She stated that pressure ulcers do not appear out of nowhere, rather they appear gradually going through stages. She opined the redness between the ribs was not due to friction or shear.

Ms. Young identified the marks on the arms as petechiae and opined that if there was acute trauma as alleged the marks would look different.

The Member testified she did not observe any marks except the dressing on the coccyx when she turned [the Patient] throughout the night.

College Counsel submitted that the skin marks were due to acute injury caused by the Member’s rough treatment as evidenced by [the Patient’s daughter] and therefore was a breach of the TNCR Standard.

College Counsel submitted that allegation #2 was supported by evidence provided for allegation #1(c). Ms. Muscat opined that the manner in which the Member bathed [the Patient] was tantamount to physical abuse and a breach of the TNCR Standard.

With regard to allegations #3(a), (b) and (c), College Counsel submitted that the Member’s conduct would be regarded as disgraceful, dishonourable or unprofessional. College Counsel asked the Panel to consider 2 questions: Was the Panel satisfied the conduct was relevant to the practice of nursing and if so, would the conduct be viewed by members of the profession as disgraceful, dishonourable or unprofessional?

College Counsel submitted that disgraceful, dishonourable or unprofessional are disjunctive terms and only one is needed for professional misconduct to be found. Unprofessional conduct is a serious disregard for one’s obligations. Dishonourable conduct demonstrates an element of moral failing, for example abuse of a patient. Disgraceful behaviour carries increased elements of moral failing that would bring shame on the member as well as the profession.

College Counsel submitted that [the Patient] was extremely vulnerable and shift nursing was started to provide respite for the family and [the Patient] who was heavily medicated and at the end-of-life. The Member seriously disregarded her responsibilities in that she failed to administer medication as requested by [the Patient’s daughter] and the physician, failed to turn [the Patient] on a regular basis to provide comfort and failed to provide a sponge bath to [the Patient] when asked to do so by [the Patient’s daughter]. This failure casts serious doubt on the Member’s ability to meet the public’s expectations for care. The Member demonstrated a lack of empathy and integrity.

College Counsel submitted the following cases to demonstrate similar cases where the member was rough and caused petechiae:

CNO v. Hope (Discipline Committee, 2021): In this case, the misconduct involved physically abusing a patient by grabbing the patient’s arm down, the rough application of a blood pressure cuff and verbally and emotionally abusing patients through the member’s raised voice and rude and abrupt manner with 2 patients. The member’s conduct was found to be a breach of the College’s Professional Standards and the TNCR Standard and was found to be dishonourable, disgraceful and unprofessional.

CNO v. Agustin (Discipline Committee, 2019): In this case, the misconduct involved hitting a patient in the face with a slipper and the member being verbally abusive by raising her voice and using inappropriate language. The member’s conduct was found to be a breach of the TNCR Standard and was found to be dishonourable and unprofessional.

CNO v. Rowe (Discipline Committee, 2017): In this case, the misconduct was related to failure to assist, assess and attend patients' needs whereby the member was verbally and physically abusive to multiple patients. The member’s conduct was found to be dishonourable, disgraceful and unprofessional.

College Counsel submitted that the allegations had been established with clear, cogent and convincing evidence and satisfied the College’s burden of proof. The Member committed acts of professional misconduct and was physically abusive to [the Patient] and her conduct was disgraceful, dishonourable and unprofessional.

The Member’s Counsel

The Member’s Counsel submitted that the Member denies the allegation of physical abuse. The Member worked 5 shifts with [the Patient] and was professional. She admitted to a personality conflict with the family, and this was supported by the testimony and evidence from [the Patient’s daughter].

There were no other witnesses to the alleged physical abuse except for [the Patient’s daughter]. The evidence of the other witnesses was hearsay.

The Member’s Counsel submitted that there are 3 areas with regard to the finding of misconduct:

1. The burden of proof;

2. Addressing the evidence as it applies to the general context and assessing credibility of the evidence; and

3. The need to determine if the evidence the College has provided meets the burden of proof with respect to each allegation.

The Member’s Counsel submitted that the burden of proof rests with the College rather than on the Member to provide an alternative situation. This was a case of client abuse and as such the finding would be as serious as sexual abuse.

The Member’s Counsel submitted the following 11 cases as references that support the burden of proof and the need to determine credibility of the witnesses:

F.H. v. McDougall (Supreme Court of Canada, 2008): This case sets the standard for assessment of credibility and balance of probabilities. “The assessment of credibility rests with [the Panel] and in the absence of a palpable and overriding error [their] perceptions should be respected”.

Stefanov v. College of Massage Therapists of Ontario (Divisional Court, 2016): This case addresses the balance of probabilities required for the proof to be clear, convincing and cogent and is particularly important in cases of abuse allegations. The Panel is required to act with care and caution in assessing and weighing the evidence...such that quality and quantity justify the findings.

Ontario (College of Physicians and Surgeons of Ontario) v. Lee (Divisional Court, 2019): This case cites the Stefanov case in that credibility assessments have 2 key constituent elements: honesty and reliability. The Panel is required to do a proper analysis of both elements to complete a credibility assessment.

The Member’s Counsel reviewed the principles of credibility assessment which include inconsistencies with statements, timeline inherent improbability, selective memory, reluctance to present/support contrary remarks. The Member’s Counsel stated that truthfulness and honesty along with reliability of the witness's testimony are hallmarks of credibility. Witnesses may truly believe and may view the memory in a different way. However, it may not be reliable. The Member’s Counsel submitted that the following two cases support these principles:

Faryna v. Chorny (BC Court of Appeal, 1951): “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject the story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable."

R. v. Morrissey (Court of Appeal for Ontario, 1995): This case provides a framework for assessing credibility. Witness sincerity, truth as the witness believes it to be speaks to a witness’s credibility. The accuracy of the testimony includes the ability to accurately observe, recall and recount the events and speaks to reliability.

The Panel is not required to resolve discrepancies and inconsistencies. Some may not be important, and some may speak to a critical point. The Member’s Counsel cited the following case law to support the legal principle for credibility of witnesses: Takashima v. Ontario College of Teachers (Divisional Court, 2015); the text: Steinecke (burden of proof) 2022; Steinecke (Failure to meet the standards of practice) 2022; Steinecke (DDU) 2022; and Ontario (College of Pharmacists) v. Awad (Discipline Committee, 2022).

The Member’s Counsel addressed 2 points of evidence. The first point was the Member’s insistence of a Stage 2 coccyx ulcer whereby the preponderance of evidence indicated it did not exist. The Member either fabricated the information or misremembered. The Member testified that it was on the flow sheet and College Counsel argued that it was not documented in the SEHC record or in Dr. Dooler’s notes. SEHC records were missing after August 31, 2019. Ms. Johnson testified that there were no marks on the spine on September 2, 2019 and after [the Patient]’s death, when Ms. Johnson and Mr. Franklin turned her over she noted a reddened bruised area on the coccyx. Ms. Johnson’s evidence reinforces there was a coccyx injury. The pressure ulcer was mentioned in SEHC notes in 2019.

The Member’s Counsel submitted that College Counsel stated that the Member fabricated the use of a sternal rub. The Member’s Counsel stated that Ms. Young testified that it was not typical, however, it was used. Dr. Dooler had testified that she would use it on occasion. The Member’s Counsel submitted that the Member’s use of a sternal rub was credible.

The Member’s Counsel submitted that College Counsel had challenged Ms. Young’s credibility because she was not provided Dr. Dooler’s records. The Member’s Counsel submitted that College Counsel did not point to any significant or material facts or missing material facts that would change Ms. Young’s opinion.

The Member’s Counsel submitted that the majority of evidence flowed from [the Patient’s daughter]’s testimony. The evidence was clear that at the least a personality conflict existed between the Member and [the Patient’s daughter]. Friction was identified at the first meeting: [The Patient’s daughter] perceived an “attitude” from the Member and testified that the Member was “annoyed”. [The Patient’s daughter] testified that she was “appalled” that the Member left feces in the toilet. The Member’s Counsel submitted that [the Patient’s daughter]’s impression of the Member regarding this incident coloured her future interactions. [The Patient’s daughter] confirmed in her testimony that she was argumentative with the Member. She demonstrated an obvious dislike for the Member and viewed herself as her mother’s advocate.

The Member’s Counsel stated that the Member testified that she wrote to her manager that [the Patient]’s daughter was verbally abusive and aggressive to her while she was trying to do care. The Supervisor’s notes on September 1 and 2, 2019 (Exhibits #10 and #11) confirms this and the time of these emails was before the allegation of abuse.

The Member’s Counsel submitted that College Counsel had provided two fact witnesses: Ms. Johnson and [the Patient’s son]. The Member’s Counsel stated that Ms. Johnson’s evidence did not support the allegation of abuse as her main source of information was from [the Patient’s daughter]. Ms. Johnson heard about the ‘death certificate’ issue from [the Patient’s daughter] and the toilet issue was also shared by [the Patient’s daughter]. Further, [the Patient’s daughter] told Ms. Johnson that the skin marks were a result of the sponge bath. Ms. Johnson had no direct or independent evidence. Ms. Johnson had poor recollection of the skin injuries. She described the marks on the arm as scrapings and referenced a wound on the coccyx not the spine.

The Member’s Counsel submitted that Ms. Johnson was argumentative and unresponsive to cross-examination. Ms. Johnson was quick to charge the Member for not turning [the Patient] or providing basic care. She testified that one sponge bath a day was reasonable and at the same time stated [the Patient] may need up to 4 sponge baths per day. She testified that it was an exception for her to help with a bath. When asked if a patient had a preferred position, rather than answer the question, Ms. Johnson stated ‘she’ should have turned the patient. Ms. Johnson had a clear opinion of the Member’s care of [the Patient], with information provided by [the Patient’s Daughter] and remained argumentative.

The Member’s Counsel submitted that the second witness, [the Patient’s son] provided no material evidence as he agreed that he did not see anything, did not witness the alleged abuse or see the care provided. He admitted that the knowledge he had was from what his sister, [the Patient’s daughter] told him. At one point during his testimony, he had said the doctor told him [the Patient]’s shoulder was pulled out of its socket and then later during cross-examination he had testified that he was mistaken.

The Member’s Counsel stated that the Member’s evidence confirmed that she was direct and could be rough around the edges. The Member testified that she had been working on her bedside manner, albeit informally. In general, the Member’s practice as a shift nurse would be to speak to the family, get an update, look at the patient’s records, talk to the patient and complete an assessment. The Member provided evidence that she had difficulty with [the Patient’s daughter]. The Member testified that she had brought up the LHIN complaint to clear the air and [the Patient’s daughter] became aggressive when she did so.

With regards to the evidence generally, the Member’s Counsel discussed patient records and submitted that not all of the documentation was available for a variety of reasons. SEHC notes were missing past August 31, 2019. The fact that these notes were missing spoke to a lack of documentation for Ms. Johnson’s observations regarding the marks on [the Patient]’s body, the times she visited, and medication checks on September 2, 2019. The Member’s Counsel stated that the Member testified that she documented on flow sheets. Ms. Cougher testified that [the Patient]’s records were missing, and Ms. Young mentioned the limited documentation available. The Member’s Counsel stressed that one could not assume that if the documentation was not present the care was not done.

With regard to allegation #1(a), the Member’s Counsel submitted that if an expert witness stated that a standard had been breached, the Panel determined if that was the case. In text: Steinecke at 6.43 (December 13, 2022) it states that a finding of professional misconduct is a serious manner and there is a difference between failing to maintain the standard of practice versus momentary lapses without departure from basic principles of practice. The Member’s Counsel stated that Dr. Dooler was accepted as a participant expert in palliative care and was not qualified as an expert in nursing practice. The nursing practice experts put forward before the Panel were Ms. Muscat and Ms. Young.

The Member’s Counsel submitted that the College’s case rested on an order from Dr. Dooler, which was not necessarily an order. Dr. Dooler called the LHIN to clarify her expectations for turning and providing an extra bolus before turning. There was no evidence to confirm her phone call to the LHIN nor was it clear if that information made it to the Member on September 1, 2019. The Member did not see the order on September 2, 2019 as she did not return to [the Patient]’s home. While College Counsel submitted that the Member disregarded the medical order, the Member’s Counsel submitted that it was not really an order. The Member’s Counsel stated that if a similar order was sent on September 1, 2019, it was not documented in SEHC’s and VON’s charts.

The Member’s Counsel submitted that with regard to turning [the Patient], Ms. Young confirmed that frequency of turning was subjective and based on patient assessment and if the patient was agreeable or not. Ms. Muscat testified that if the patient was semi-mobile the standard of practice was to offer and assist with repositioning and turning. Member’s Counsel stated that the Member testified that she offered [the Patient] support with turning and repositioning on August 28, 2019. [The Patient’s daughter] in her testimony had agreed that her mother was semi-mobile at this point, getting up with help to the commode. The Member testified that she offered [the Patient] assistance with turning for the next 2 shifts. The Member testified that [the Patient] was still turning and moving on her own.

The Member’s Counsel submitted that Ms. Young testified that turning and repositioning every 2 – 4 hours was the standard of care. Ms. Young testified that [the Patient] was at high risk and was heavily sedated to promote rest and therefore small movements such as adding or removing a pillow constituted repositioning. The Member had testified and documented that [the Patient] was restless and required increased prn boluses on August 30, 2019. The Member testified that she did not turn [the Patient] during the August 31, 2019 shift based on information from another doctor. The Member had testified that she was providing care and regularly assessing [the Patient]. The Member’s Counsel submitted that according to Ms. Muscat, regular patient assessment would meet the standard of care. The Member testified that on September 1, 2019 she turned [the Patient]. The Member’s Counsel submitted that the Member met the standard of practice and asked the Panel to make no findings for allegation #1(a).

The Member’s Counsel submitted that with regard to allegation #1(b), failure to administer pain medication prior to bathing the patient, the College’s position was that the standard of practice was to give the medication as ordered. The Member’s Counsel stated that Ms. Young testified that there was no standard of practice requiring a bolus before bathing. The nurse was to use their knowledge, skills and judgement at the time of assessment to determine if a bolus was required. The Member’s Counsel submitted that Dr. Dooler testified mainly about principles of palliative care rather than the standard of practice for prn bolus administration. The Member’s Counsel stated that Ms. Muscat testified that if a prn medication was not given documentation was not required. The Member had testified that she completed a sternal rub and based on the non-response, determined [the Patient] did not require a bolus prior to the sponge bath.

The Member’s Counsel submitted that the Member was straight forward and honest regarding giving a bolus when [the Patient’s daughter] asked during the bath and that they waited 5 minutes before continuing. The Member’s Counsel asked the Panel to make no findings to the allegation that the Member failed to administer pain medication prior to bathing.

The Member’s Counsel submitted that with regard to allegation #1(c), that the Member bathed the patient in a rough manner causing bruises and/or abrasions, do the factual elements meet the burden that this most likely occurred. The evidence for this allegation rests solely on [the Patient’s daughter]’s evidence. The Member’s Counsel stated that the suspected cause of the marks and the photos are circumstantial. Although the Member cannot recall everything that happened, she was adamant that there were no marks on [the Patient] when she finished her shift on September 2, 2019 at 06:00 hours.

The Member’s Counsel stated that [the Patient’s daughter] and [the Patient’s son] testified that they heard their mother scream while the Member was in the room. College Counsel submitted that after days of their mother being non-verbal, they did not go to investigate; rather they sat and waited. The Member asked for help shortly after. The Member’s Counsel questioned why, if the Member was bathing in an angry manner as indicated by [the Patient’s daughter], she would ask [the Patient’s daughter] for help, especially as [the Patient’s daughter] would be a witness. The Member’s Counsel submitted that this contention was improbable and not cogent. The Member’s Counsel stated that the Member testified that [the Patient’s daughter] and she turned [the Patient] together. [The Patient’s daughter] testified that the Member was scrubbing [the Patient]’s back like rubbing off paint and yet [the Patient] did not respond, nor did [the Patient’s daughter].

The Member’s Counsel stated that [the Patient’s daughter] testified that she was in shock. However, she was not hesitant to ask for a bolus, nor was she hesitant to mandate the Member provide a sponge bath and turn her mother. [The Patient’s daughter] testified that she could see the Member’s hand and cloth, but not the skin. This statement was questionable. The Member’s Counsel submitted that the evidence provided by [the Patient’s daughter] was not cogent or convincing, specifically about rubbing skin like scrubbing off paint. The marks were on the arm and back of [the Patient]. There was no evidence from [the Patient’s daughter] or other witnesses that speaks to the skin marks on the arm. [The Patient’s daughter] saw something on the back and therefore it was circumstantial.

The Member’s Counsel stated that Ms. Young opined that the marks could be caused by light touch or by regular movements in [the Patient]’s care routine. Therefore, they could have been caused by anyone in her care. There is no preponderance of evidence as to what the marks are. Dr. Dooler and Ms. Muscat were not in agreement on what caused the trauma. Dr. Dooler testified that the marks were on the spine itself while Ms. Muscat testified that the marks were on the side of the spine. Ms. Young opined this was the beginning of a pressure ulcer and more damage would have been seen if the skin had been scrubbed. Further Ms. Young testified that if there was an injury caused as described, there would have been drainage or blood on the sheets.

The Member’s Counsel submitted that the witnesses were not in agreement as to what the marks were on the spine. Ms. Young opined there could be many causes for the petechiae on the arms. Dr. Dooler testified that they could only be caused by shear pulling on the arm. There was consensus that [the Patient]’s frailty may have been a factor for increased risk of skin damage.

The Member’s Counsel stated that [the Patient’s daughter] testified that the marks occurred early in the morning and Ms. Johnson testified that she did not see the marks on the back until after death. Dr. Dooler’s testimony is less reliable on this point in that she readily accepted it was the night nurse that caused the marks. Dr. Dooler also testified that the Member caused pain in the shoulder on the night of September 1, 2019. However, Dr. Dooler’s notes show a different time frame (Exhibit #20).

The Member’s Counsel submitted that the Member was there, the marks showed up after the end of her shift and therefore the evidence as to their origin was circumstantial. Ms. Muscat’s testimony was less reliable on this point as she opined the marks could only come from an injury. There were no other questions asked or investigation done to identify why the marks occurred.

The Member’s Counsel queried whether the College had proven the Member roughly bathed [the Patient] causing skin injuries. The Member’s Counsel submitted that the College’s evidence regarding the physical abuse was not clear, cogent or convincing as it was linked to [the Patient’s daughter]’s word. There was no evidence linking the marks to the Member. She did not see the marks on the skin while bathing nor did she testify about [the Patient]’s arm. There was no consensus as to the cause of the skin damage. The Member’s Counsel asked the Panel to dismiss the allegation that the Member physically abused [the Patient].

With regard to the Member’s conduct being dishonourable, disgraceful and unprofessional, the Member’s Counsel submitted that the terms do not need to be all or none. For conduct to be considered unprofessional it does not need or require any dishonesty or moral failing. The Member’s Counsel directed the Panel to the Awad decision for an analysis of disgraceful, dishonourable and unprofessional conduct including that the terms may be used disjunctively.

The Member’ Counsel directed the Panel to 3 points:

a. [The Patient’s daughter] testified that following the sponge bath by the Member, she told her mother she would not allow the Member to come near her again. The Member completed her shift, [the Patient’s daughter] assisted the Member in turning her mother 3 times that night. This increases the improbability of [the Patient’s daughter]’s evidence;

b. Once [the Patient’s daughter] made the allegation that the Member caused the lesions there was no further investigation. No one knows what happened once the Member left and anything could have caused the skin lesions; and

c. The discussion regarding missing documentation is unresolved. However, SEHC documents are missing, the death certificate disappeared and reappeared and as stated earlier if the documentation was not available one could not assume the care was not provided.

In conclusion, the Member’s Counsel asked the Panel to make no findings of professional misconduct. The Member met the standard of practice for turning, medication administration and did not in any way cause physical injury or abuse. Her conduct was not disgraceful, dishonourable and unprofessional.

College Counsel’s Response

College Counsel stated that the Professional Standards applied to all cases of misconduct and the evidence provided was clear, cogent and convincing meeting the balance of probabilities threshold.

College Counsel submitted that Ms. Johnson did not see the photos on September 2, 2019. However, she was able to recollect the skin injuries from memory. She testified that there was no ulcer on the coccyx and there was one on the spine.

College Counsel submitted that [the Patient’s son] was not wrong regarding his mother’s sore shoulder. Dr. Dooler had documented this in progress notes. His memory of events was fairly clear.

College Counsel submitted that [the Patient’s daughter]’s failure to do anything following the potential abuse during the sponge bath does not lessen her testimony. The allegation that the personality conflict coloured her perception of the Member was suspect. The suggestion that there was only one witness to the abuse, was in fact sufficient to meet the burden of proof. [The Patient’s daughter]’s testimony had been put forward as circumstantial. However, the photos and testimony from Ms. Johnson and Dr. Dooler lead to the conclusion that more likely than not something occurred. The marks were not there one day, then they were the next. College Counsel submitted that the allegation that no other investigations took place was based on the fact that there was no evidence to suggest that anything else happened and no one else provided care after [the Patient’s daughter] and Dr. Dooler saw the marks. Therefore, there was only one explanation, and it was more likely than not that the Member performed the bath in a rough manner.

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), #3(a) and (b) of the Notice of Hearing. As to allegations #3(a) and (b), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be unprofessional and dishonourable.

The Panel did not find that the Member committed acts of professional misconduct as alleged in paragraphs #1(c), #2 and #3(c) and therefore dismissed these allegations.

Reasons for the Decision

In assessing the credibility of witnesses, the Panel considered the following factors where relevant:

(a) the witness’s appearance and demeanor;

(b) the witness’s opportunity to observe;

(c) the witness’s capacity to remember;

(d) the probability or reasonability of the evidence;

(e) the internal consistency or inconsistency of the evidence;

(f) the external consistency or inconsistency of the evidence; and

(g) the witness’s interest in the outcome of the case.

The Panel also understood that it could accept all, part or none of a witness’s testimony and that minor discrepancies between the evidence of different witnesses does not necessarily discredit their evidence.

With respect to allegation #1(a) in the Notice of Hearing, the Member breached the Professional Standards, when she failed to reposition [the Patient] on a regular basis during her scheduled shifts between August 28, 2019 and September 1, 2019.

The Panel considered the recollection and consistency of the testimony of [the Patient’s daughter], who was present in the home on August 31, 2019 and September 1, 2019, as well as the Member’s testimony. The Panel determined that the evidence provided by the witnesses was reasonable, and consistent. The misconduct is supported by [the Patient’s daughter]’s testimony whereby she stated that on the first evening she stayed at [the Patient]’s house which was confirmed to be August 31, 2019, she did not observe the Member entering [the Patient]’s room between 22:00 hours on August 31, 2019 and 02:00 hours on September 1, 2019. [The Patient’s daughter] testified that she could hear the Member moving around after 02:00 hours while she was resting on the couch. However, she was unable to verify if [the Patient] was turned at any time during the rest of the shift. On the morning of September 1, 2019, after the Member’s shift, Ms. Johnson testified that [the Patient] was in the same position as at the time of her visit the previous night.

[The Patient’s daughter] testified that she had asked the Member to turn [the Patient] every 2 hours following a discussion with Dr. Dooler and Ms. Johnson on September 1, 2019. She recalled the Member stating, “a doctor said not to turn palliative patients due to pain” indicating the Member’s rationale for not turning [the Patient]. The Member admitted to not turning [the Patient] during the August 31, 2019 shift. The misconduct is further supported by the Member’s documentation in an email dated September 3, 2019 (Exhibit #13) and the patient’s narrative progress notes (Exhibit #6).

The Panel accepted the evidence of the College’s expert witness, Ms. Muscat, who testified that repositioning is a standard of care for patients who are immobile to reduce risk of skin breakdown and alleviate discomfort. She testified that the Member breached the Professional Standards, specifically the Accountability Standard when she failed to verify with [the Patient]’s doctor if she should or should not reposition [the Patient]; as well as failing to provide a plan of care to reduce risk of skin breakdown based on available evidence and best practice guidelines.

Ms. Muscat further testified that the Professional Standards—Accountability Standard states that each nurse is accountable to the public and responsible for ensuring that her/his practice and conduct meets legislative requirements and the standards of the profession. The nurse demonstrates this by providing, advocating and promoting the best possible care for patients. The Member knew, or ought to have known that turning patients regularly is a comfort measure for palliative and end-of-life patients. [The Patient’s daughter] requested that [the Patient] be turned every 2 hours. By failing to follow [the Patient’s daughter]’s request and to use best-practice guidelines and evidence to assess Dr. Anne Boyle’s recommendation to not turn patients, the Member compromised the therapeutic nurse-client relationship and failed to promote and provide the best possible care for [the Patient] at end-of-life.

In addition, the Member’s own expert witness, Ms. Young testified that turning and repositioning at end-of-life is the standard of practice for patients and is based on a patient-centered, patient-focused approach. The standard minimum is every 4 hours considering patient condition, skin integrity, pain and symptom management.

With respect to allegation #1(b) in the Notice of Hearing, the Member breached the Professional Standards by failing to administer pain medication prior to bathing or turning [the Patient] and breached the Medication Standard by failing to wait for the prescribed time before initiating care.

The Panel considered the recollection and consistency of the testimony of [the Patient’s daughter] who was present at the time of the incident on September 1, 2019, Dr. Dooler’s documentation, as well as the Member’s testimony. The Panel determined that the evidence provided by the witnesses for this allegation was clear, cogent and convincing.

On September 1, 2019, during the daytime, Dr. Dooler, participant expert witness, provided orders that [the Patient] should be repositioned/turned every 2 – 4 hours overnight for comfort and to provide a bolus 10 minutes prior to care as per standard of palliative care (Exhibit #20). [The Patient’s daughter] testified that these instructions were provided to her and Ms. Johnson.

[The Patient’s daughter] testified that she informed the Member at the beginning of the September 1, 2019 shift, that Dr. Dooler ordered a bolus of pain medications be given before care or turning.

The Member testified that she received the order for a bolus of pain medication prior to care or turning and that she understood the order came from Dr. Dooler.

During the September 1, 2019 shift, the Member started to give [the Patient] a bed bath and asked [the Patient’s daughter] to assist with turning [the Patient] [The Patient’s daughter] entered the room and asked the Member if a pain bolus had been given. The Member stated that it had not. [The Patient’s daughter] requested the bolus for Morphine and Midazolam be given. The Member gave the boluses. College Counsel specifically asked if they waited 10 – 15 minutes before proceeding. [The Patient’s daughter] stated “not even 5 minutes”. The Member stated she waited about 12 minutes during her testimony.

Ms. Muscat testified that providing pain medication before repositioning mitigates pain. The Medication Standard indicates that nurses are required to know how medications work via what route and to know how long it takes for medication to take effect. Regarding the medications [the Patient] was receiving, Ms. Muscat indicated it would take 10 – 15 minutes for a subcutaneous injection to have effect. Dr. Dooler’s order stated 10 minutes. [The Patient’s daughter] testified that the Member and her did not wait even 5 minutes before proceeding with the bath.

Ms. Young, in her assessment, determined [the Patient] was receiving palliative sedation dosing and as such based on a nurse’s assessment, may not have required a bolus mediation prior to care or turning. A pain assessment would be required to make the final decision. Dr. Dooler testified that [the Patient] was receiving pain and symptom management, not palliative sedation and therefore bolus medication prior to care was appropriate and required for [the Patient]. Ms. Young testified that she would complete an assessment to determine if the patient needed it or not.

Ms. Muscat testified that failure to administer a bolus of pain medication prior to care or when repositioning for patients who are end-of-life prior was a breach of the Professional Standards. The Member contravened the Professional Standards when she failed to provide the best possible care for [the Patient]. The Member testified that she conducted a pain assessment prior to initiating care and determined a bolus was not required. When [the Patient’s daughter] requested the bolus, the Member did not provide [the Patient’s daughter] with her rationale for withholding the bolus dose of pain medication as ordered. In the Member’s testimony she admitted to forgetting to administer the bolus.

The Member contravened the TNCR Standard by failing to ensure her professional behaviours and actions met the therapeutic needs of [the Patient]. [The Patient’s Daughter], acting as Power of Attorney for Personal Care, specifically asked the Member to medicate [the Patient] to ensure her comfort as per Dr. Dooler’s orders. The Member testified that she did not have access to the order. However, [the Patient’s daughter] conveyed these orders at the beginning of the shift. The Member, in choosing to not administer the bolus as requested, failed to provide patient-centered care and failed to provide comfort for [the Patient].

The Member breached the Medication Standard in that she knew or ought to have known the amount of time it would take following administering a bolus for [the Patient] to feel the effects of the medication. Despite the difference in wait times heard during testimony—[the Patient’s Daughter] stated it was 5 minutes and the Member stated 12 minutes, the Member failed to demonstrate that she confirmed the medication was in effect before proceeding with care. Furthermore, the Member breached the TNCR Standard when she failed to act on the daughter’s concerns regarding bathing and turning.

With respect to allegations #3(a) and (b) in the Notice of Hearing, the Panel finds that the Member’s conduct in failing to reposition [the Patient] regularly and not administering medication prior to care or turning was clearly relevant to the practice of nursing. It was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in breaching the Professional Standards, the TNCR Standard and the Medication Standard. The Member failed to meet the standards of practice expected when providing care for a palliative patient and showed a serious disregard for her professional responsibilities.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing when she failed to provide pain and symptom management for a patient at end-of-life and comfort measures that included regular repositioning. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional.

The Panel did not find the Member’s conduct to be disgraceful. While the Member’s conduct was not correct for this patient, her responses showed thoughtful consideration for her practice, therefore, not demonstrating serious doubt about her ability to discharge the higher obligations the public expects professionals to meet.

With regard to allegations #1(c), #2 and #3(c), the Panel did not find sufficient evidence nor direct linkage to the manner in which the Member bathed [the Patient] and to the marks on her skin.

The Panel considered the recollection and consistency of the testimony of [the Patient’s daughter], [the Patient’s son], Ms. Johnson and Dr. Dooler and the available documentation of the Member, Mr. Franklin and Ms. Johnson. The Panel determined that the evidence provided was not sufficiently clear, cogent or convincing to make findings of professional misconduct for these allegations.

[The Patient’s daughter] testified that she did not actually observe the Member abusing [the Patient] due to her position when holding [the Patient] during the bed bath. [The Patient’s daughter] assisted the Member in turning [the Patient] 3 times following the bed bath and did not mention the bruises to the Member at any time.

There were inconsistencies in [the Patient’s daughter]’s testimony at the time of the alleged trauma and at the time of the hearing. [The Patient’s daughter] testified that she felt uncomfortable and intimidated by the Member. At the same time, she testified that she was definitely firm with the Member when mandating she give [the Patient] a bed bath and to turn her every 2 hours and testified that she asked the Member to leave if she did not want to do her job.

[The Patient’s daughter] stated she would not let the Member touch [the Patient] again after witnessing the bed bath. However, she assisted the Member in turning [the Patient] 3 times afterward. [The Patient’s daughter] testified that she did not see bruises on [the Patient]’s arms, legs or spine during the bed bath and testified that she noted the bruising on [the Patient]’s spine, bruise on her arm and legs shortly after the Member left around 06:00 hours. [The Patient’s daughter] testified that she did not need to move [the Patient] to see the bruising and that she walked around and took pictures at that time.

The timing of the pictures is inconsistent and bears significance. [The Patient’s daughter] testified that Ms. Johnson was present when she took the picture of [the Patient]’s back on September 2, 2019 shortly after 06:00 hours when the Member left. Ms. Johnson testified that the back picture was taken approximately 20 minutes after death. Based on the investigation completed by VON, Mr. Franklin’s statement supports Ms. Johnson’s statement (Exhibit #16).

Based on the documented evidence available, Ms. Johnson arrived around 08:00 hours that morning and Dr. Dooler arrived at 13:00 hours (Exhibits #19 and #20). Dr. Dooler testified that she assisted in taking photos, however, Ms. Johnson testified that she was present when the photos were taken on her first visit on September 2, 2019. Dr. Dooler's comments regarding the cause of the skin bruising are also based upon hearsay as she was not present when the care was received, arriving in the afternoon rather than early morning as stated in her testimony.

Ms. Johnson testified that on September 1, 2019, there were no bruises on [the Patient]’s arms or legs and then on September 2, 2019, there was a ‘big mark’ on [the Patient]’s left forearm and bruising on the left side. There is no documentation to support these findings. While the progress note for Ms. Johnson’s visit on September 2, 2019 is not available, the data sheet documented urine o/p and cleared pump (Exhibit #19). The absence of any documentation regarding the noted change in skin is inconsistent with the testimony provided. Ms. Johnson’s testimony regarding the cause of the marks being caused by rough bathing is hearsay since she was not present at the time the bed bath was given nor was she an expert qualified to provide expert testimony as to the cause of the marks.

Mr. Franklin reported that bruising on the back and arm was not visible to him and stated that [the Patient’s daughter] was upset due to a bad experience with a previous nurse who was rough with her mother during the bath (Exhibit #16). Mr. Franklin’s documentation on September 2, 2019 does not indicate any bruising or skin damage, nor any concerns from [the Patient’s daughter] (Exhibit #6).

[The Patient’s daughter] testified that she did not actually observe the Member abusing [the Patient]. The other Witness statements were based on secondary information. The timing of the photographs is inconsistent and the witness testimony regarding when the skin marks were observed and photographed is contradictory. Mr. Franklin’s documentation on September 2, 2019 does not include any mention of skin marks. A number of witnesses, including the Member, testified that there are several missing documents. Based on this information, the Panel concluded that the College failed to provide clear, convincing and cogent evidence to make a finding on the balance of probabilities of misconduct for allegations #1(c), #2 and #3(c) and therefore dismissed these allegations.

Resumption of Hearing for Penalty

Given the Panel’s determinations in this Decision, the Panel is prepared to resume the hearing on May 26, 2023 to address the issue of penalty.

I, Sherry Szucsko-Bedard, RN, sign this decision and reasons on Liability as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.