College of Nurses of Ontario v. Hoare, 2024 CanLII 120503

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Susan Roger, RN Chairperson

Tina Colarossi, NP Member Jane Hess, RN Member Sandra Larmour Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JOSEPH BERGER for

) College of Nurses of Ontario

• and - )

CORBETT HOARE ) NO REPRESENTATION for

Registration No. 9721093 ) Corbett Hoare

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: February 5 and 6, 2024

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 February 5, 2024, via videoconference.

As Corbett Hoare (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not in attendance. The Member did not attend on any day of the hearing.

College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing on December 5, 2023 by way of an affidavit from Ashley Yoannou (“Ms. Yoannou”), Prosecutions Associate, dated January 29, 2024, confirming that Samantha Harry (“Ms. Harry”), Prosecutions Clerk sent correspondence, which included the Notice of Hearing, on December 5, 2023 via courier to the Member’s last known address on the College Register, as well as to an alternate mailing address identified in a skip trace. Also on December 5, 2023, Chanelle Garcia-Branton (“Ms. Garcia-Branton”), Prosecutions Assistant sent an email to the Member's last known email address on the College Register with instructions on how to access the Notice of Hearing via SharePoint.

As set out in Mr. Yoannou’s affidavit, many attempts were made to notify the Member of the discipline matter against him prior to and after the Notice of Hearing was sent to the Member. On August 15, 2023, Ms. Yoannou sent the Member a letter via email and courier outlining the Member’s options for resolving the discipline matter on either a contested or uncontested basis (“Participation Letter”), which was returned to the College by Purolator on or around August 23, 2023. On October 24, 2023, Ms. Yoannou sent the Participation Letter again to the Member via email and courier informing the Member that the discipline hearing dates were set for February 5 and 6, 2024 and that a formal Notice of Hearing was forthcoming. This was returned to the College by Purolator on or around November 2, 2023.

On October 30, 2023, the College had Benard + Associates conduct a skip trace to confirm the Member’s contact information or, alternatively, identify updated contact information to facilitate successful delivery of confidential disclosure materials and the Notice of Hearing. On November 13, 2023, Benard + Associates investigator, Sophia Tucker, submitted a memo to the College indicating that she was unable to identify a current mailing address, active telephone number or email address for the Member but reported an address connected to the Member’s driver’s licence. On December 5, 2023, Ms. Harry sent to the Member by courier to his last known address in the College’s records and to the alternative mailing address identified in the skip trace memo, the Notice of Hearing in which the referred allegations, hearing date, time and location were clearly set out. On December 5, 2023, Ms. Garcia-Branton sent the Member instructions on how to access the Notice of Hearing via SharePoint. Ms. Garcia-Branton sent these instructions to the Member’s last known email address on file. The email did not bounce back as undeliverable. On December 6, 2023, the Notice of Hearing courier arranged by Ms. Harry to the address identified in the skip trace memo was delivered and signed for by an adult 18 years of age or older at the residence. On December 13, 2023, Ms. Garcia-Branton sent the Member instructions on how to access the initial disclosure via SharePoint. The initial disclosure included the same Notice of Hearing that had been previously sent to the Member, in addition to an affidavit in which Ms. Harry affirmed that the Notice of Hearing was sent to the Member on December 5, 2023. On January 26, 2024, Ms. Harry sent the Member further disclosure, enclosing Notice Pursuant to Section 35 of the Evidence Act, and information about the College's expert witness, including the witness's C.V., summary of opinion and retainer, to the Member’s last known email address on file. Ms. Harry also sent the Member the further disclosure package via courier to the address identified in the skip trace memo. Also on January 26, 2024, Ms. Garcia-Branton sent the Member instructions on how to access further disclosure and Notice Pursuant to Section 35 of the Evidence Act via SharePoint. Ms. Garcia-Branton sent these instructions to the Member’s last known email address on file.

The Notice of Hearing is also linked to the Member’s Find A Nurse public register profile on the College’s website.

College Counsel referred to the affidavit of Ms. Yoannou dated January 29, 2024 which sets out that the Member’s certificate of registration has expired, so he cannot currently practice, however, his misconduct relates to the period of time when he had a certificate of registration. Therefore, the Panel has jurisdiction over the matter.

Based upon the foregoing, the Panel was satisfied that the Member had received adequate notice of the time, place, date and purpose of the hearing and of the fact that if he did not attend it, the hearing may proceed in his absence. Accordingly, the Panel decided to proceed with the hearing in the Member’s absence.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing 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 Corbett Hoare.

The Panel considered the submissions of the College 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 Corbett Hoare.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated November 30, 2023 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 working as a Registered Nurse at Brant Community Healthcare System The Brantford General Hospital, in Brantford, Ontario, you contravened a standard or practice of the profession or failed to meet the standards of practice of the profession, as follows:

a. On or about March 4, 2021, you failed to provide adequate care to [the Patient], and/or failed to document care provided to [the Patient], in that you failed to:

i. conduct and/or document your observations, assessments, and/or interventions regarding [the Patient]’s abdomen;

ii. administer medications and/or document administering medications, as ordered; and/or

iii. take [the Patient]’s vitals and/or to document [the Patient]’s vitals, as ordered;

b. In or about March 2021, including but not limited to March 15, 2021, you failed to wear Personal Protective Equipment, as required;

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(13) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Brant Community Healthcare System – The Brantford General Hospital, in Brantford, Ontario, you failed to keep records as required, as follows:

a. On or about March 4, 2021, you failed to document care provided to [the Patient], in that you failed to:

i. conduct and/or document your observations, assessments, and/or interventions regarding [the Patient]’s abdomen;

ii. administer medications and/or document administering medications, as ordered; and/or

iii. take [the Patient]’s vitals and/or to document [the Patient]’s vitals, as ordered;

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 working as a Registered Nurse at the Facility, you engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows:

a. On or about March 4, 2021, you failed to provide adequate care to [the Patient], and/or failed to document care provided to [the Patient], in that you failed to:

i. conduct and/or document your observations, assessments, and/or interventions regarding [the Patient]’s abdomen;

ii. administer medications and/or document administering medications, as ordered; and/or

iii. take [the Patient]’s vitals and/or to document [the Patient]’s vitals, as ordered; and/or

b. In or about March 2021, including but not limited to March 15, 2021, you failed to wear Personal Protective Equipment, as required.

Member’s Plea

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

Overview

The Member worked as a Registered Nurse (“RN”) at Brant Community Healthcare System, the Brantford General Hospital (the “Facility”), in Brantford, Ontario in the Emergency Department where the allegations took place. There were three allegations: (1) the Member failed to meet the standards of practice of the profession; (2) the Member failed to keep records as required; and (3) the Member engaged in conduct relevant to the practice of nursing, that having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. College Counsel described two incidents of misconduct that occurred in March 2021 in the Facility’s Emergency Department. The first incident was that the Member failed to provide adequate care to [the Patient] and failed to document care provided to [the Patient]. The Member failed to conduct an assessment which is required within his role. The Member failed to administer medications or document administering medications. The Member failed to take [the Patient]’s vital signs or document [the Patient]’s vitals as ordered. All three heads of professional misconduct refer to care for [the Patient]. The second incident that occurred in March 2021 was that the Member failed to wear Personal Protective Equipment (“PPE”), as required for those working in the Emergency Department at the Facility.

The Evidence

The Panel received thirteen exhibits from the College and heard testimony from three witnesses, two of whom are fact witnesses who worked with the Member and a third witness who is an expert on the standards of the profession.

In March 2021, it was the Facility's policy to screen all patients for COVID-19 like symptoms. Those symptoms would help identify precautions that would be required based on a patient’s presentation to the Emergency Department. Cough, congestion, fever, abdominal pain, nausea, vomiting or weakness were some of the triage questions that the nurse would ask patients on arrival to the Emergency Department and if any of them had one or more of those symptoms they would be classified as requiring droplet precautions. Every healthcare provider would wear a gown, gloves and a mask when interacting with a patient and proper signage was posted.

Witness #1 – Brittany Lancaster (“Ms. Lancaster”)

Ms. Lancaster is a Registered Practical Nurse (“RPN”) who has worked full-time at the Facility since September 2017. In March 2021, she was working in the Emergency Department in the See and Treat Area which was for rapid assessment and less acute cases than the regular Emergency Department. At that time, she worked with the Member, was the Member’s nursing partner on multiple shifts and worked with the Member 3 out of 4 weeks. Ms. Lancaster testified that she had concerns with the Member’s use of PPE in that the Member failed to abide by infectious control procedure. Ms. Lancaster testified that the Member demonstrated a persistent refusal to wear PPE, failed to put up proper signage, clean the room appropriately and to put on gloves and gowns as required. Ms. Lancaster testified that the Member failed to wear his PPE appropriately at “almost every interaction” she had with the Member. Ms. Lancaster testified that she voiced her concern to her manager, Tammy Coates. Ms. Lancaster testified that a physician assistant also made comments regarding the Member’s use of PPE and cleaning procedure. Ms. Lancaster testified that she also put in a report online.

Witness #2 – Tammy Coates (“Ms. Coates”)

Ms. Coates, the nursing manager of the Emergency Department is an RN and has been registered with the College since June 2006. In March 2021, she was working at the Facility as a Clinical Nurse Manager in the Emergency Department. Ms. Coates testified that the See and Treat Area is part of the Emergency Department but is a separate area within the Emergency Department where they treat less acute patients. The patients are all triaged in the main emergency and if deemed appropriate they would go to the See and Treat Area. The See and Treat Area was not open 24/7. It was open from 11:00 am to 11:00 pm. It was staffed by a total of five staff members, including an ER physician, a physician assistant, a clerk, an RN and an RPN. Ms. Coates testified that she hired the Member around June 2017 to work in the Emergency Department and was his clinical manager who he reported to for the entire duration of his employment which was a job share. The Member’s employment ended sometime between April and July 2021, following a meeting with the HR Department. His employment ended after the Facility had gone through progressive discipline with the Member over a number of incidents. Ms. Coates testified that the Facility follows a just philosophy where if a policy or process or a College standard is not followed, they go through a process of education, coaching, and acknowledgement that the individual intends to follow the policy. The Member went through all the steps of the discipline process with no intention to change as reported by Ms. Coates and his employment was terminated with cause.

Ms. Coates provided testimony regarding the Member’s failure to meet the College’s standards of the profession with specific regard to obtaining vital signs, completing focussed assessments and documentation. Ms. Coates testified that the Emergency Department’s physician assistant had made complaints regarding the Member’s assessments and documentation. There were numerous concerns identified on an audit of [the Patient]’s record on March 4, 2021.

Ms. Coates testified that it was a policy for all staff to wear PPE and that all nurses received training on PPE and are expected to follow the PPE policy. Ms. Coates testified that the Member received training on appropriate use of PPE. In March 2021, the requirements for PPE in the See and Treat Area were for staff to wear googles, face mask, and on entering a patient room appropriate hand washing, and gloves were to be applied. On exiting the patient room, gloves were to be removed and appropriate hand washing was to be completed. Education was offered to all staff in the Emergency Department on how to don and doff PPE. Also, at shift change the education was repeated and audits and feedback were also done. The overall compliance was excellent by the time March 2021 came around and it was part of nursing practice. Ms. Coates went through the Novel Respiratory Viruses and Emerging Pathogens Policy (the “NRVEP Policy”), and it was entered as Exhibit #3. The NRVEP Policy is quite broad and discusses respiratory illness and the PPE required. It is the road map on providing safe care to patients with respiratory illness. The NRVEP Policy has been in place for a long time and was issued in February 2020. Ms. Coates testified that she observed the Member not wearing PPE every time she came to the Emergency Department. Ms. Coates had a conversation with him and explained to him the importance of the PPE Policy, however, she testified that the Member said he did not like wearing it because it made him hot and uncomfortable. Ms. Coates testified that she had numerous conversations with the Member and followed the Facility’s progressive disciplinary procedures. The numerous concerns identified were discussed with the Member. Ms. Coates testified that she heard from other staff that the Member was not wearing PPE, that she would go down and ask the Member why he was not wearing it, wait for him to apply it and would reiterate the importance of wearing PPE. In March 2021, in almost every interaction that she had with the Member, he was not wearing PPE. In addition, some staff would tell her that he was not changing his gown when he would go from one patient to the next and when Ms. Coates would ask him, he would say he “forgot”. Ms. Coates observed him not wearing any PPE, including not wearing a face mask, and no eye wear, which was required. He would also drink his coffee at the nursing station, which was not permitted and which Ms. Coates testified she observed. Gowns and gloves were not required outside of patient care. However, if you were working in the hot zone area you were required to wear gowns and gloves at all times because it is a high-risk zone. The Member was working in the hot zone in November 2021, but Ms. Coates took him out of the hot zone because he was not complying with PPE in that high-risk area. Ms. Coates would insist that he put on the PPE while she was standing there because he would laugh it off and she did not have faith that he would comply. The education had no impact on the Member. He was not wearing the proper PPE, and when Ms. Coates questioned him, he said he understood, but PPE “makes him hot”. Education was offered, he acknowledged that he understood, but did not comply going forward. The Member’s practice did not change, instead he became more flippant. He was given formal warnings regarding PPE and received a verbal warning in March 2020. In March 2021, Ms. Coates testified that she observed him not wearing PPE every shift that he worked.

Ms. Coates testified that in the See and Treat Area the RN and RPN work at the same time and that the RN would be expected to do a primary assessment. The [Patient] would have been triaged and the RN would go through a thorough assessment with the patient focussing on the main complaint. The assessment needs to be documented in the patient’s emergency chart which is a handwritten chart. There is a portion where the triage record is completed in the electronic record, but everything else is captured on the paper chart. Vital signs need to be documented in the handwritten portion as physicians do not look at the electronic chart.

Ms. Coates testified that the Emergency Department’s Nursing Standards of Care Policy (“NSC Policy”) is a road map when providing care in the Emergency Department. It is evidence-based and aligns with best practice. The NSC Policy which was in force in March 2021, was issued in October 2015 and revised in January 2019 and is entered as Exhibit #4. The Emergency Department NSC Policy states what a nurse needs to document when providing care. It aligns with the College’s policy on documentation. Nurses are to document subjective and objective data, which is required when completing a comprehensive nursing assessment.

With regard to [the Patient], the Member failed to document medications, failed to document vital signs in the paper record and only documented the vital signs in one section of the electronic record which was not available to physicians. The orders stated that [the Patient] was to get 2 boluses of fluids and vital signs to be taken after each bolus, but the Member only documented one bolus and there was no documentation as to why [the Patient] did not receive the second bolus. Ms. Coates testified that she confronted the Member about this, and he said, “you know I'm not good at documenting”.

Exhibit #5, [the Patient]’s medical records dated March 4, 2021 were reviewed with Ms. Coates. Ms. Coates testified that in the See and Treat Area if [the Patient] had required an ultrasound it needed to be booked in the morning. The physician assistant reviewed the chart in the morning, and it was flagged and sent to Ms. Coates. It was flagged because [the Patient]’s reason for visiting the Emergency Department was for abdominal pain. [The Patient] would have been assessed in the See and Treat Area and moved over to the Emergency Department because abdominal pain can be many things and the lack of charting was concerning to the physician assistant. Ms. Coates had a conversation with the Member in the HR setting regarding lack of charting, which occurred approximately 2 weeks after [the Patient] came to the Emergency Department.

Many conversations about documentation and audits were done by Ms. Coates with the Member and many audits showed that the Member was not following documentation policy. Ms. Coates testified that she believed that a number of charts showed a pattern of a lack of documentation, but [the Patient]’s chart was the tipping point. [The Patient]’s records began at triage. [The Patient] was a 25 year old female who arrived at the Emergency Department at 18:17 on March 4, 2021. The triage notes indicate that [the Patient] came in at 18:16, but the other notes indicate that she walked in at 18:17. According to Ms. Coates, the different time is not an issue because it would depend on which clock the nurse looked at. [The Patient] came in with abdominal pain for a duration of one week. The triage nurse collected the history from [the Patient]. The information taken at triage was done by a different nurse. A COVID screen would be done, vital signs taken, and a comprehensive assessment from the triage nurse. The triage nurse asked questions such as if appendix or gallbladder were removed, and where the abdominal pain was. The triage nurse asked questions regarding age-appropriate information and found out that she was breast feeding, which is important regarding some medications and breast feeding.

[The Patient] was assigned to the See and Treat Area at 19:54. The Member acknowledged that he took [the Patient] from the Emergency Department to the See and Treat Area at 19:54. The Member was responsible for the assessment and reporting any findings to the physician, he was also responsible for any medical directives that would apply to [the Patient]’s care. The Member assessed [the Patient] and documented his assessment and the written chart was given to the physician. The Member became the primary nurse at 20:05. In the written record completed by the Member, Ms. Coates testified that she did not see anything mentioned about vital signs and that the only vital signs documented were from triage. There were check marks by the physician orders, but check marks are not signatures. Beside the medication administration the entry for 20:19 for Motrin was checked off. The check marks may have been from the Member, but it is not known for sure. Therefore, the check marks on page 1 of [the Patient]’s documentation may have been done by the Member and everything written by hand on page 2 was done by the Member. On page 2 the Member used abbreviations which are not acceptable when charting. The Member wrote, patient complained of 2-week history of abdominal pain. No urinary concerns, normal BM and 21:29 IV was started and fluids running per order. Those 4 lines do not comply with policy, is not appropriate documentation and is a very minimal assessment. The Member only asked how long the pain was present and about urinary concerns. There was no indication that a thorough assessment was completed or that any further assessment was completed according to Ms. Coates.

Ms. Coates testified that for an assessment a nurse would observe first, a nurse is not going to touch a patient's abdomen before a nurse observes, then a nurse moves to palpation and a nurse would also do a pain assessment. A nurse would ask about appetite. There are prompts on the assessment to help a nurse, for example, listening to bowel sounds was not documented. Charting is by exception in the Emergency Department, but because of the nature of the problem, a nurse should listen for bowel sounds and document if the abdomen was distended. The physician did his own assessment and ordered Motrin for pain. After a pain medication is given, it is important to follow up and document the effectiveness of the medication. Vital signs should have been part of the assessment, and they were not documented. The only vital signs listed were from triage. Also, the nurse assessment signature was blank on page 1 and should have been filled out by the Member and therefore there is no way to know whether the medication was initialed by the Member, or that the 4 lines of notes were actually from the Member.

The physician ordered N/S 2000 cc bolus. The second order was for an immediate ibuprofen PO. The physician wanted BHCG added to the blood work that was previously ordered. The physician wanted a faxed U/S requisition sent over to radiology. In addition, there was an immediate dose of Clavelin and one dose to go was ordered. The physician wanted recheck vitals after the bolus. Check marks would be assumed that once orders are completed it would be checked off by the primary nurse but check marks are not appropriate. Most likely the check marks are from the Member. Typically, the most responsible nurse would be responsible for the orders, and it was checked off 1000 N/S had gone in at 21:00. The order was for 2000 cc. A N/S bag comes in 1000 ml. The primary nurse would document the second bag of N/S and if not given there needed to be documentation, the physician needed to be notified and the physician would need to write a new order. It did not appear that the physician wrote a new order for only 1000 cc. Motrin is the brand name and ibuprofen is the generic name. There is no indication that the other orders written by the physician were administered. There is no indication that the vital signs were taken post bolus or why only 1000 ml was given. Also, there is no documentation that the Clavelin was administered or documentation of an additional dose to go with [the Patient] and health teaching provided. If [the Patient] left before administrating, then that would be documented and flagged for the physician assistant in the morning. At 22:29 vital signs were entered by the Member, but Ms. Coates was not sure what they were for. The bolus was started at 21:00 and 1000 cc went in and may have been post bolus. However, vital signs should not be entered into the electronic record because the physician will not see it. [The Patient] was discharged at 23:27.

There is no documentation that the Member documented subjective or objective notes. One set of vitals that are tied by the Member’s electronic signature indicates when [the Patient] left the Emergency Department, then there were 4 lines of charting that occurred of the written record on page 2 and on the medication administration of the one medication and the 1000 cc of N/S and the documentation of the insertion of the IV canula. On pages 9, 10, 11, 12 and 13 are Laboratory Records of [the Patient]’s chart and the Member would not be involved in the creation of these records. The last page is safe patient discharge. This is for identifying vulnerable individuals to make sure they can safely leave the Emergency Department and identify if the patient has any of these risk factors. The most responsible nurse is to fill this out and it had been left blank. The Member was the most responsible nurse. It is to be issued if discharging a patient late at night and [the Patient] was discharged at 23:30 and thus it would be expected that this page should have been filled out. This was an unwell female patient to be discharged late at night. The parking lot is across the street. Ms. Coates testified that a security escort would have been offered to [the Patient] to her car after 19:00. If [the Patient] declined this offer it would be expected to be documented. This chart was reviewed by HR with the Member.

The Member was placed on paid leave until after the investigation was completed. Ms. Coates testified that she asked the Member if he actually assessed [the Patient] and why it was not documented. Ms. Coates had concerns regarding assessments, documentation, interventions, administration of medications, documenting of vitals and when these concerns were raised with the Member he stated that he works fast, and he was not good at documentation. His response was the same every time he was given feedback from other audits. The audit results were to be given in the moment to provide feedback. He acknowledged the lack of documentation. He acknowledged and was able to identify everything that was not completed in [the Patient]’s chart. Ms. Coates testified to how serious this was as [the Patient] did not receive appropriate care. The physician orders were not completed, assessments not completed, vital signs not completed, [the Patient] did not receive the bolus as intended and did not receive the antibiotic. [The Patient] was discharged with no evidence of health teaching or discharge instructions. These things would be expected to be seen charted. Ms. Coates testified that the Member spent time with the educator after audits.

Ms. Coates testified that there were a number of issues involving shortcuts by the Member that were not in the best interest of [the Patient]’s care.

Ms. Coates testified that there were several patient complaints that came to her, that the Member did not answer their questions, was impatient and did not follow up with them. Other staff also went to Ms. Coates about the Member’s lack of assessment or follow up and that he required a lot of coaching to follow through with providing safe practice. The Member had issues with receiving feedback. He was identified on audits conducted by Ms. Coates on infection control. His patterns of behaviour and breaches did not change. He was offered education so that he would understand the process of donning and doffing PPE, but he still did not follow policy. Ms. Coates had to speak to him, and other staff went to her with concerns regarding infection control not being maintained and putting patients at risk. All of these events were laid out and it was decided that he was ungovernable. He did not show any action to change his practice and was let go with cause.

Witness #3 – Celine Callender (“Ms. Callender”)

Ms. Callender was an expert witness who has been registered as an RN at the College since 2004. Her CV was entered as Exhibit #6. She obtained a BScN from the University of Toronto with honours in 2004 and a Master of Nursing from the University of Toronto in 2009. She had additional nursing education, including a trauma nursing core course from the Emergency Nursing Association in 2005 and ongoing education on triage nursing and she has been certified since 2008 with the most recent renewal in 2022 in triage nursing. She has obtained an Advanced Cardiac Life Support Provider from Heart and Stroke Canada with the most recent certificate renewal in 2023. In 2022 she obtained an American Trauma Care Nursing Provider from the Society of Trauma Nurses. She has been employed at St. Michael’s Hospital since 2004 in various roles in the Emergency Department, including team leader, charge nurse, triage nurse, staff nurse and more recently educator, all within the Emergency Department at St. Michael’s Hospital. She was working in the Emergency Department during parts of the COVID pandemic. She was working in the Emergency Department in March 2021. Her roles included mentoring University nursing students, mentoring newly hired nurses during their probation period and she mentored experienced nurses moving to another role in the Emergency Department. She would mentor them on assessments, documentation and PPE. In October 2021, she moved to a clinical educator role within the Emergency Department. She educated staff on changes in policy, PPE, guidelines, audits and documentation. She is familiar with the College’s polices and guidelines.

Ms. Callender’s Acknowledgement of Expert’s Duty dated January 5, 2024 was entered as Exhibit #7. She agreed to provide opinion evidence that is fair, objective and non-partisan. She stated that she understood her duty. The Panel accepted her as an expert in nursing care, and documentation in the Emergency Department and in the application of the College’s standards in the Emergency Department.

A letter dated January 4, 2024 from Ashley Yoannou, Prosecutions Associate, Professional Conduct to Ms. Callender was entered as Exhibit #8. A Hypothetical Fact Scenario was entered as Exhibit #9. The Practice Standard Code of Conduct dated January 2019 was entered as Exhibit #10. The Practice Standard Documentation, Revised 2008 was entered as Exhibit #11. The Practice Standard, Professional Standards, Revised 2002 was entered as Exhibit #12. The Practice Standard, Therapeutic-Nurse Client Relationship, Revised 2006 (“TNCR Standard”) was entered as Exhibit #13. Ms. Callender acknowledged that she received all of these documents.

Ms. Callender testified that the Code of Conduct sets out the way nurses are expected to behave with colleagues and patients. On page 4, the 6 principles were read by Ms. Callender and are as follows: 1. Nurses respect the dignity of patients and treat them as individuals; 2. Nurses work together to promote patient well-being; 3. Nurses maintain patients’ trust by providing safe and competent care; 4. Nurses work respectfully with colleagues to best meet patients’ needs; 5. Nurses act with integrity to maintain patients’ trust; and 6. Nurses maintain public confidence in the nursing profession. Ms. Callender testified that these 6 principles highlight the Code of Conduct.

Ms. Callender testified that the purpose of the Documentation Standard is that it describes the legislative and regulatory requirements of the standard to ensure that nurses apply the standard to their individual practice, ensuring that information is documented for the patient. On page 6 of this standard, the indicators that Ms. Callender deemed important are: a) ensuring that documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessment, planning, intervention (independent and collaborative) and evaluation; b) documenting both objective and subjective data; c) ensuring that the plan of care is clear, current, relevant and individualized to meet the client’s needs and wishes; d) minimizing duplication of information in the health record; e) documenting significant communication with family members/significant others, substitute decision-makers and other care providers; g) providing a full signature or initials, and professional designation (RPN, RPN[Temp], RN, RN[Temp] or NP) with all documentation; h) providing full signature, initials and designation on a master list when initialling documentation; i) ensuring that hand-written documentation is legible and completed in permanent ink; j) using abbreviations and symbols appropriately by ensuring that each has a distinct interpretation and appears in a list with full explanations approved by the organization or practice setting; k) documenting advice, care or services provided to an individual within a group, groups, communities or populations (for example, group education sessions); l) documenting the nursing care provided when using information and telecommunication technologies (for example, providing telephone advice); m) documenting informed consent when the nurse initiates a treatment or intervention authorized in legislation; and n) advocating for clear documentation policies and procedures that are consistent with the College’s practice standards. Ms. Callender testified that most of these indicators apply to nurses working in the Emergency Department.

Ms. Callender testified that the Professional Standards provide a guide of the knowledge, judgment, and skills required to practice safely, what each nurse is accountable for in practice, performance criteria and nurses scope of practice. Ms. Callender testified that there are seven standards that would apply for nurses working in the Emergency Department which are as follows: Accountability; Continued Competence; Ethics; Knowledge; Knowledge Application; Leadership; Relationships; and Professional Relationships.

Ms. Callender testified that for a nurse working in the Emergency Department, it is important to, as set out in the TNCR Standard, develop and maintain trust and respect when assessments or examinations are done, ensure professional boundaries and professional intimacy and empathy is maintained and be aware of the power a nurse holds and the power dynamics. This standard applies to Emergency Department nurses.

[The Patient]’s medical records were provided to Ms. Callender along with the Hypothetical Fact Scenario. Ms. Callender testified that in her opinion the nurse in [the Patient]’s documentation failed to document observations and assessments in regard to the abdominal assessment and breached the following standards: Documentation Standard, Code of Conduct, Professional Standards and TNCR Standard.

Ms. Callender testified that according to the Hypothetical Fact Scenario, the nurse failed to administer medications or document medications for [the Patient] as alleged in the Notice of Hearing. He breached the following standards: Documentation Standard, Code of Conduct, Professional Standards and TNCR Standard. Ms. Callender testified that the nurse did not do the vitals in the proper timing, and that he was supposed to take the vitals after the second bolus, but took them after the first bolus or one litre. His actions and inactions breached the following standards: Documentation Standard, Code of Conduct, Professional Standards and TNCR Standard.

According to the Code of Conduct, as it relates to [the Patient], Ms. Callender testified that the nurse breached the Code of Conduct. He was likely working in a fast paced, high acuity environment, but was still responsible for his own actions. Therefore, he breached Section 6.1 of the Code of Conduct which provides that nurses are accountable for their own actions and decisions, as well as Section 5.3 which provides that nurses take prompt action to prevent and protect patients from harm.

According to the Documentation Standard and the Hypothetical Fact Scenario, as it relates to [the Patient], Ms. Callender testified that the nurse breached this standard as his charting failed to ensure that documentation was a complete record of the nursing care provided and did not reflect all aspects of the nursing process, failed to document both objective and subjective data, failed to document significant communication with family members, failed to provide a full signature or initials and professional designation with all documentation and failed to document informed consent when initiating a treatment or intervention. He also failed to document in a timely manner and complete documentation during, or as soon as possible after, the care or event and failed to document the date and time that care was provided and when it was recorded.

According to the Professional Standards and the Hypothetical Fact Scenario, as it relates to [the Patient], Ms. Callender testified that the nurse breached the Accountability Standard which provides that a nurse demonstrates this standard by: providing, facilitating, advocating and promoting the best possible care for clients; advocating on behalf of clients; sharing nursing knowledge and expertise with others to meet client needs; ensuring practice is consistent with the College’s standards of practice and guidelines as well as legislation; and taking action in situations in which client safety and well-being are compromised. In regard to the Continuing Competence Standard, Ms. Callender testified that she did not know what the nurse’s level of competence was. In regard to the Knowledge Application Standard, Ms. Callender testified that the nurse breached this standard as he failed to identify/recognize abnormal or unexpected client responses and take action appropriately. Ms. Callender testified, as part of emergency nursing, knowledge application is expected and that he did not respond appropriately for [the Patient]. He also failed to plan his approaches to providing care/service with the client, failed to create plans of care that addressed client needs, preferences, wishes and hopes, and failed to evaluate/describe the outcomes of specific interventions and modify the plan/approach.

According to the TNCR Standard, and the Hypothetical Fact Scenario, as it relates to [the Patient], Ms. Callender testified that the nurse did not use his training to help [the Patient] who had placed her trust in him and that there was an element of neglect and abuse. Under Therapeutic communication, the nurse breached this standard as he failed to give the client time, opportunity and ability to explain herself, and listen to the client with the intent to understand and without diminishing the client’s feelings or immediately giving advice; and failed to provide information to promote client choice and enable the client to make informed decisions. Ms. Callender testified that in regard to listening to the concerns of the family and significant others and acting on those concerns when appropriate and consistent with the client’s wishes, it is unknown if this was breached as there is nothing documented. As well, under Client-centred care, it is unclear if he breached the requirement to engage the client in evaluating the nursing care and services that the client is receiving. Ms. Callender testified that she does not believe he breached anything on boundaries. These breaches resulted from a lack of documentation and a lack of assessments that he was expected to do.

Ms. Callender testified that, in regard to the Hypothetical Fact Scenario, paragraphs 14 to 20, the nurse breached the College standards when he failed to wear PPE.

The Code of Conduct was breached regarding the nurse’s failure to wear PPE as follows: Section 3.7 Nurses use accurate sources of information, such as research, to inform their practice. According to Ms. Callender this was breached because guidance came from the Ministry to wear PPE in order to keep ourselves and patients safe and this guidance was based on research. Also breached was: Section 4.5 Nurses take action to stop unsafe, incompetent, unethical or unlawful practice, including any type of abuse; Section 5.3 Nurses take prompt action to prevent and protect patients from harm; and Section 6.1 Nurses are accountable for their own actions and decisions. According to Ms. Callender if you do something different you need the knowledge, skills and judgment to safely do this. Section 6.4 requires Nurses to advocate for improving the quality of their practice setting to support safe patient care.

The Professional Standards provide that a nurse demonstrates the standard by: ensuring practice is consistent with the College’s standards of practice and guidelines as well as legislation; providing, facilitating, advocating and promoting the best possible care for clients; understanding the legislation and standards relevant to nursing and the practice area; taking action in situations in which client safety and well-being are compromised; and identifying personal values and ensuring they do not conflict with professional practice. According to Ms. Callender, the Member did not do this because he placed his own personal values over safety and therefore breached this standard. In addition, a nurse demonstrates the standard by: creating environments that promote and support safe, effective and ethical practice; providing a theoretical and/or evidence-based rationale for all decisions; being aware of how practice environments affect professional practice; understanding and promoting nursing as a knowledge-based and research-informed profession; ensuring that practice is based in theory and evidence and meets all relevant standards/guidelines and role-modelling professional values, beliefs and attributes. These were also breached.

Final Submissions

College Counsel submitted that although the hearing took place in the Member’s absence, the College bears the onus of proving the case on a balance of probabilities. The Panel must be satisfied by the evidence that it is more likely than not that the Member committed the acts as alleged in the Notice of Hearing. College Counsel submitted that the evidence in this case is clear, cogent and convincing and was neither contested nor disputed. Therefore, the College met the onus.

College Counsel submitted that the Panel heard from the witnesses and the Panel should make findings of professional misconduct. There were three allegations in the Notice of Hearing with a number of particulars under each allegation. There were two baskets of professional misconduct. The first basket had to do with care and documentation and the second basket had to do with persistent refusal to wear PPE.

College Counsel submitted that the College’s witnesses were clear, cogent and convincing and that the Panel should find their evidence to be accurate and find the allegations of professional misconduct to be proven. Both fact witnesses provided evidence on the key points that was convincing and credible. Both the fact witnesses gave evidence to the best of their recollection, understanding that the alleged incidents occurred 3 years ago. The fact witnesses acknowledged when they could not remember something. There were points in the evidence that did not align, such as the hours that the Member worked. Ms. Lancaster said the Member worked with her 3 weeks whereas, Ms. Coates said 2 weeks because of a job share.

These memory lapses by fact witnesses should be expected given the time that had passed. The evidence of the two fact witnesses did align on the issues that both witnesses testified to. Both gave evidence about what had occurred in March 2021 and both said the Member almost never wore PPE properly. Even though their evidence may not align perfectly, the evidence of the two fact witnesses was consistent regarding the behaviours of the Member. Their evidence was consistent in that there was a theme of the Member’s disregard for following established standards of practice despite receiving numerous reminders and despite indicating that he knew what he should be doing, and that he would try and improve, but never did, and he was dismissed with cause as a result. The Member was working in the Emergency Department with vulnerable patients during the COVID pandemic. There were ongoing concerns regarding documentations which the audits showed. The Panel heard from Ms. Coates regarding lack of documentation of [the Patient]. The Member failed to conduct and or document assessments related to [the Patient]. The Panel heard what assessments would be expected which did not occur. All that was documented in [the Patient]’s chart was 4 handwritten notes. This information could have been gathered from the triage notes. The Member failed to document and administer medications ordered for [the Patient]. He failed to take vitals and document after the 2 bolus and did not write in the record. There was no documentation of the Member’s assessment. Also, the Member almost never wore PPE in March 2021 which was a concern that dated back to November 2020, it was not a one time occurrence. The Member received repeated warnings and was disciplined, but continued not to use PPE because it made him feel hot and was uncomfortable. The Member’s conduct and care for [the Patient] and his failure to wear PPE constitute breaches of professional conduct requirements. The Member breached the Code of Conduct, the Documentation Standard, the Professional Standards and the TNCR Standard.

College Counsel submitted that the Panel heard from an expert witness, Ms. Callender who testified that the Member breached the standards of the profession. According to Ms. Callender in regard to allegations #1(a)(i), (ii) and (iii), the Member breached the Code of Conduct, the Documentation Standard, the Professional Standards and the TNCR Standard. In regard to allegation #1(b), the Member breached the Code of Conduct and the Professional Standards. College Counsel submitted that the Panel has all the evidence to make a finding of professional misconduct in regard to allegations #1(a)(i), (ii), (iii), (b) and #2(a)(i), (ii) and (iii) of the Notice of Hearing.

In regard to allegations #3(a)(i), (ii), (iii) and (b) of the Notice of Hearing that involves engaging in conduct or performing 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. The College is not seeking a disgraceful finding. Dishonourable conduct involves some element of moral failing. The Member knew that he was not meeting standards as he received numerous reminders, education and discipline. He did not correct his behaviour even though his behaviour was reported by his colleagues and manager. It involved an element of moral failing. He put his comfort and needs ahead of his professional obligations. Therefore, the Member engaged in conduct that would be regarded as dishonourable and unprofessional. College Counsel asked the Panel to make findings of professional misconduct on all the allegations set out in the Notice of Hearing.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1(a)(i), (ii), (iii), (b), #2(a)(i), (ii), (iii) and #3(a)(i), (ii), (iii) and (b) of the Notice of Hearing. As to allegations #3(a)(i), (ii), (iii) and (b), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

The credibility of each witness was assessed by the Panel. The Panel determined that the evidence provided by the witnesses was clear, cogent and convincing, as can be seen from the extensive summary of the evidence above. The Panel found all of the witnesses to be credible and gave reliable evidence that satisfied the College’s burden of proof.

The expert witness, Ms. Callender was qualified by the Panel as an expert in nursing practice within the Emergency Department. Her expert opinion was objective, reasonable and impartial, and was substantiated by the factual evidence accepted by the Panel. The Panel found her to be credible and accepted and relied on her opinion evidence.

The first witness, Ms. Lancaster appeared honest and forthright and her testimony appeared reliable. There was one part in her testimony where the number of weeks she worked with the Member was contradicted by the second witness, Ms. Coates. Ms. Lancaster said she worked with the Member 3 out of 4 weeks in a month. However, all of the other facts she testified about regarding the Member not wearing PPE was found to be reliable and the Panel was satisfied that this one discrepancy was not significant.

Ms. Coates appeared honest, accurate and had a good memory. Ms. Coates testified that the Member was in a job share. Small lapses in her memory are understandable given the incident occurred 3 years ago.

With respect to allegations #1(a)(i), (ii), (iii) and (b), the Panel accepted the testimony of the expert witness, Ms. Callender that the Member breached the standards of the profession namely, the Code of Conduct, the Documentation Standard, the Professional Standards and the TNCR Standard. The Panel finds that the Member breached the College’s Code of Conduct, the Documentation Standard, the Professional Standards and the TNCR Standard when he failed to provide adequate care and/or document the care he provided to [the Patient] by failing to conduct an assessment of [the Patient], failing to administer medications and/or document administering medications, as ordered, failing to take [the Patient]’s vitals and/or document [the Patient]’s vitals, as ordered and failing to wear PPE, as required.

With respect to allegations #2(a)(i), (ii) and (iii), the Panel finds that the Member failed to keep records as required when he failed to document the care he provided to [the Patient] by failing to document administering medications to [the Patient] and failing to document [the Patient]’s vitals.

With respect to allegations #3(a)(i), (ii), (iii) and (b), the Panel finds that the Member’s conduct in failing to provide adequate care and/or document the care he provided to [the Patient] and failing to wear PPE, as required was clearly relevant to the practice of nursing. It was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in breaching the College’s Code of Conduct, Documentation Standard, Professional Standards and TNCR Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing. The Member knew that he was not meeting the standards and received numerous reminders, education and discipline from the Facility and did not correct his behaviour. He put his comfort and needs ahead of his professional obligations. The Member also knew or ought to have known that his conduct was unacceptable and fell below the standards of a professional.

Penalty

Penalty Submissions

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

1. Requiring CORBETT HOARE (the “Member”) to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. (a) Directing the Executive Director to suspend the Member’s certificate of registration for 10 months. This suspension shall take effect from the date the Member obtains an active certificate of registration in a practicing class and shall continue to run without interruption as long as the Member remains in a practicing class.

(b) If the Member does not comply in full with terms 3(a) and 3(b) of this Order by the end of the 10-month suspension of his certificate of registration, then the Panel directs the Executive Director to suspend the Member’s certificate of registration until such time as he completes terms 3(a) and 3(b) in full.

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

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

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

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

1. Code of Conduct, and

2. Documentation;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

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

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

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

3. strategies for preventing the misconduct from recurring,

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

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

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

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

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

vii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration.

b) Within 12 months from the date that the Member obtains an active certificate of registration in a practicing class, and prior to the Member returning to the practise of nursing, the Member shall successfully complete at his own expense nursing courses (with clinical or laboratory or other practical components, if available) that have received prior approval from the Director regarding: (1) Medication Administration and (2) Health Assessment. The Member must pass the courses. If the courses are graded, the Member must receive a minimum passing grade of 65%. The Member must provide the Director with proof of enrolment, successful completion of the courses and the specific grades received (if applicable).

c) For a period of 24 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:

i. Inform any employer of the decision at least 14 days prior to commencing or resuming employment in any nursing position;

ii. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

iii. Provide the Member’s employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. a copy of the Panel’s Decision and Reasons, once available;

iv. Only practice nursing for an employer who agrees to, and does, forward a report to the Director within 14 days of the commencement or resumption of the Member’s employment in any nursing position, confirming:

1. the employer received a copy of the required documents,

2. the employer agrees to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession, and

3. the employer agrees to perform three random spot audits of the Member’s documentation practice at the following intervals and provide a report to the Director regarding the Member’s practice after each audit:

a. the first audit shall take place within four months from the date the Member begins or resumes employment with the employer,

b. the second audit shall take place within eight months from the date the Member begins or resumes employment with the employer, and

c. the third audit shall take place within 12 months from the date the Member begins or resumes employment with the employer;

v. The audits shall, on each occasion, involve the following:

1. reviewing a random selection of at least 10 of the Member’s charts to ensure they meet both CNO and employer standards, and

2. discussing (by telephone or in person), with at least 3 of the Member’s patients, the care provided to them by the Member in order for the employer to cross reference the patients’ comments against the records to ensure that the Member’s practice aligns with the Documentation Standard and accurately reflects the care provided to patients.

d) For a period of at least 8 months and no longer than 12 months from the date the Member is engaged continuously in the practice of nursing, the Member must meet with a Registered Nurse who is employed at the same employer as the Member and who is pre-approved by the Director (“Mentor”) to discuss his efforts to ensure that his care, medication administration and documentation are meeting the standards of practice of the profession. The Member must meet with the Mentor at such frequency as determined by the Mentor, but at least monthly. In order for the Mentor to be pre-approved by the Director, the Member must:

i. Provide the proposed mentor with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

ii. Provide the Director with a copy of the proposed mentor’s résumé and a report confirming the following:

1. that the proposed mentor has received a copy of the documents identified in 3(d)(i), and

2. that the proposed mentor agrees to notify the Director and the Member’s employer immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

e) After the 8-month period identified in 3(d) above, the Mentor will determine whether additional meetings with the Member are required and will arrange those meetings as necessary during the 12-month period.

f) The Mentor will advise the Director in writing when the meetings have ended.

g) The Member shall not practice independently in the community for a period of 24 months from the date the Member returns to the practice of nursing.

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

Submissions were made by College Counsel.

College Counsel submitted that the Member was involved in a previous discipline hearing CNO v. Hoare (Discipline Committee, 2018). The College considers the fact that that there is a previous finding of professional misconduct to be an aggravating factor. The previous findings of professional misconduct have similarities to the case before this Panel as the Member was found to have contravened the standards of practice, failed to keep records as required and was found to have engaged in conduct that would reasonably be considered by members of the profession to be unprofessional. The 2018 hearing proceeded by way of an Agreed Statement of Facts and Joint Submission on Order. The panel found that the Member demonstrated a lack of acknowledgment of the seriousness of the patient’s condition, disregard for the information contained in the ECG record and found that the Member showed a persistent disregard for his professional obligation when he failed to complete a medical directive for the patient and failed to inform his colleagues to do the paperwork for his patient for blood work and ECG which were indicated. The penalty included an oral reprimand, a three-month suspension of the Member’s certificate of registration, two meetings with a Nursing Expert and 18 months of employer notification. The mitigating factors were that he took responsibility for his actions, which avoided a hearing where witnesses would need to be called, he had a long practice with no prior discipline history and he negotiated with the College and accepted the Agreed Statement of Facts. However, none of those mitigating factors exist today which is not an aggravating factor but is also not mitigating.

College Counsel submitted that the proposed order requires that the Member appear before the Panel for an oral reprimand within 3 months of the date that the Order becomes final and that the Member’s certificate of registration be suspended for 10 months. This suspension shall take effect from the date the Member obtains an active certificate of registration in a practicing class and shall continue to run without interruption as long as the Member remains in a practicing class. Currently the Member’s certificate of registration is expired. The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense, review the Code of Conduct and documentation and the Member must complete two nursing courses, one on medication administration and the other on medical assessments which have to be approved by the Director and receive a passing grade of 65% in each of the courses. His suspension will not be lifted until he takes and passes the two courses. Beyond these 2 terms, conditions and limitations, the draft order provides for 24 months of employer notification that begins when the Member returns to practice, meeting with a nursing mentor for 8 months when he returns, and the Member is not to practice independently for 2 years when he returns to nursing. College Counsel submitted that the penalty is onerous and severe, but appropriate given the factors. It is responsive to the aggravating factors and it meets the overall goals of penalty, is consistent with prior decisions of the Discipline Committee and falls within a range of similar penalties for similar types of professional misconduct, recognizing that no two cases are identical.

College Counsel submitted that there are no mitigating factors as the Member was not in attendance at the hearing and not engaged with the College’s disciplinary process, the Panel has no evidence as to whether the Member is remorseful or willing to remediate.

The aggravating factors in this case were:

• The Member has a prior discipline history with the College for similar conduct, including improper record keeping and not initiating medical directives which is a serious disregard for the Member’s obligations;

• Despite receiving several warnings regarding his PPE use, the Member did not wear PPE properly;

• The Member’s conduct was a repeated choice to refuse to maintain the standards of practice and it represents a disrespect for the rules that are in place to protect the public and colleagues;

• In March 2021 at the height of the COVID pandemic, the Member put his patients and colleagues at risk when he refused to wear PPE; and

• The prior Discipline Committee finding did not deter the Member from repeating similar conduct.

College Counsel submitted that the Member did not assess and/or document his assessments of [the Patient] and as this is similar to the conduct in a prior discipline hearing involving this Member, this shows the goal of providing deterrence needs to be stronger this time. The Member’s conduct with regard to [the Patient]’s records was not a unique case, but there were ongoing concerns regarding the Member’s general practice. It was [the Patient]’s chart that was the tipping point, but there were ongoing issues regarding assessments and documentation. This requires, for the sake of public protection, a much stronger deterrence than what was ordered in the prior discipline hearing and a stronger deterrence in the terms, conditions and limitations that were previously ordered.

The proposed order meets the overall goals of penalty which are to protect the public and enhance the public’s confidence in the College’s ability to regulate nurses. The proposed penalty addresses specific deterrence, general deterrence and rehabilitation and remediation of the Member if he decides to practice nursing in the future.

The proposed penalty provides for specific deterrence through the oral reprimand and the 10-month suspension of the Member’s certificate of registration. The oral reprimand will assist the Member in gaining a better understanding of how his actions are perceived by the public and other nurses. The 10-month suspension of the Member’s certificate of registration sends a strong signal to the Member that this type of conduct, in particular repeated misconduct will be found by the Discipline Committee to be unacceptable.

The proposed penalty provides for general deterrence through the 10-month suspension of the Member’s certificate of registration, which will send a clear message to the profession that professional misconduct will not be tolerated.

The proposed penalty provides for rehabilitation and remediation through a minimum of 2 meetings with a Regulatory Expert, review of the College’s Code of Conduct and Documentation Standard and completion of nursing courses on medication administration and health assessment, which will ensure that the Member has the knowledge, skills and judgment to return to ethical practice if he decides to return to practice as the Member’s certificate of registration is currently expired.

Overall, the public is protected through the 24 months of employer notification, three random spot audits of the Member’s documentation, 8 months of mentorship with a Registered Nurse who is employed at the same employer as the Member and 24 months of no independent practice in the community.

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

CNO v. Dyer (Discipline Committee, 2020): In this case, the hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member was working as an RN in a hospital and was caring for a pregnant patient. The member started a previously discontinued oxytocin without an order, changed the drip rate, on a few occasions without a physician order and failed to document or notify the physician. The member also failed to identify an abnormal fetal heart rate. The panel found that the member committed professional misconduct by failing to maintain the standards of practice and found her conduct to be dishonourable and unprofessional. The panel did not find the member’s conduct to be disgraceful. Some of the aggravating factors were the seriousness of the conduct, the deficits in the member’s clinical judgment and the patient was high risk and a vulnerable patient. Some of the mitigating factors were that the member had no prior discipline history with the College, no prior employment issues, over 27 years of an unblemished career and the misconduct was not intentional. The member attended the hearing and accepted responsibility. The penalty included an oral reprimand, a 7-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert, review of the College’s Professional Standards, Documentation Standard, Decisions about Procedures and Authority and Code of Conduct, completion of a nursing course and 24 months of employer notification.

CNO v. Pangowish (Discipline Committee, 2020): In this case, the member failed to adequately document admissions, assessments and nursing notes for her patients for approximately 3 months. The member failed to assist her colleague who was an unregulated worker with her patient who was in distress. The member failed to assess another patient after admission who was found unresponsive, failed to complete hourly checks on patients, failed to respond to a radio call and code situation where the patient was overdosing on drugs. The panel found that the member committed professional misconduct by failing to meet the standards of the profession, failed to keep records as required and engaged in conduct that would be found to be disgraceful, dishonourable and unprofessional. There were no mitigating factors. The aggravating factors were that the member’s conduct led to the death of a patient, the overall seriousness of the conduct and breaching multiple standards. The panel found that the member brought serious disgrace to the profession, and she was given a caution regarding similar conduct. The penalty included an oral reprimand, a seven-month suspension of the member’s certificate of registration, a minimum of two meetings with a Nursing Expert, review of the College’s Code of Conduct, Professional Standards, Documentation Standard and TNCR Standard, 24 months of employer notification and six random spot audits of the member’s documentation.

CNO v. Powell (Discipline Committee, 2011): In this case, there were four incidents that occurred on a complex care unit. The member failed to report low oxygen on a patient or document it. The member failed to draw blood culture and failed to administer antibiotics on a second patient. The member failed to document vital signs on a third patient. The member had a mentor, who was an educator for 14 shifts. The mentor found concerns regarding the member’s ability to safely practice nursing. The documented issues were medication administration, documentation, communication, privacy and confidentiality, infection control and clinical teaching. The panel found the member to be incompetent and lacked knowledge, skills and judgment and a serious disregard for the welfare of patients. The panel found that he failed to meet practice standards and that his conduct was disgraceful, dishonourable and unprofessional. There were no mitigating factors. The aggravating factors were the seriousness and persistent disregard for patient safety. The prior remediation with the mentor was not successful. The penalty included an oral reprimand and revocation of the member’s certificate of registration.

All three cases contain similar factors to the case before this Panel. The 10-month suspension of the Member’s certificate of registration in the case before this Panel is warranted, when compared to the 7-month suspension in the Dyer and Pangowish cases because neither of those members had a prior discipline history with the College. In the Powell case, the penalty included revocation of his certificate of registration. In the case before this Panel, the College was not seeking revocation. The College believes that public protection can be achieved without the revocation of the Member’s certificate of registration.

Penalty Decision

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

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

2. a) The Executive Director is directed to suspend the Member’s certificate of registration for 10 months. This suspension shall take effect from the date the Member obtains an active certificate of registration in a practicing class and shall continue to run without interruption as long as the Member remains in a practicing class.

b) If the Member does not comply in full with terms 3(a) and 3(b) listed below of this Order by the end of the 10-month suspension of his certificate of registration, then the Panel directs the Executive Director to suspend the Member’s certificate of registration until such time as he completes terms 3(a) and 3(b) in full.

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

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

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

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

1. Code of Conduct, and

2. Documentation;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

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

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

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

3. strategies for preventing the misconduct from recurring,

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

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

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

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

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

vii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration.

b) Within 12 months from the date that the Member obtains an active certificate of registration in a practicing class, and prior to the Member returning to the practise of nursing, the Member shall successfully complete at his own expense nursing courses (with clinical or laboratory or other practical components, if available) that have received prior approval from the Director regarding: (1) Medication Administration and (2) Health Assessment. The Member must pass the courses. If the courses are graded, the Member must receive a minimum passing grade of 65%. The Member must provide the Director with proof of enrolment, successful completion of the courses and the specific grades received (if applicable).

c) For a period of 24 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:

i. Inform any employer of the decision at least 14 days prior to commencing or resuming employment in any nursing position;

ii. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

iii. Provide the Member’s employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. a copy of the Panel’s Decision and Reasons, once available;

iv. Only practice nursing for an employer who agrees to, and does, forward a report to the Director within 14 days of the commencement or resumption of the Member’s employment in any nursing position, confirming:

1. the employer received a copy of the required documents,

2. the employer agrees to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession, and

3. the employer agrees to perform three random spot audits of the Member’s documentation practice at the following intervals and provide a report to the Director regarding the Member’s practice after each audit:

a. the first audit shall take place within four months from the date the Member begins or resumes employment with the employer,

b. the second audit shall take place within eight months from the date the Member begins or resumes employment with the employer, and

c. the third audit shall take place within 12 months from the date the Member begins or resumes employment with the employer;

v. The audits shall, on each occasion, involve the following:

1. reviewing a random selection of at least 10 of the Member’s charts to ensure they meet both CNO and employer standards, and

2. discussing (by telephone or in person), with at least 3 of the Member’s patients, the care provided to them by the Member in order for the employers to cross reference the patients’ comments against the records to ensure that the Member’s practice aligns with the Documentation Standard and accurately reflects the care provided to patients.

d) For a period of at least 8 months and no longer than 12 months from the date the Member is engaged continuously in the practice of nursing, the Member must meet with a Registered Nurse who is employed at the same employer as the Member and who is pre-approved by the Director (“Mentor”) to discuss his efforts to ensure that his care, medication administration and documentation are meeting the standards of practice of the profession. The Member must meet with the Mentor at such frequency as determined by the Mentor, but at least monthly. In order for the Mentor to be pre-approved by the Director, the Member must:

i. Provide the proposed mentor with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and,

3. a copy of the Panel’s Decision and Reasons, once available;

ii. Provide the Director with a copy of the proposed mentor’s resume and a report confirming the following:

1. that the proposed mentor has received a copy of the documents identified in 3(d)(i), and

2. that the proposed mentor agrees to notify the Director and the Member’s employer immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

e) After the 8-month period identified in 3(d) above, the Mentor will determine whether additional meetings with the Member are required and will arrange those meetings as necessary during the 12-month period.

f) The Mentor will advise the Director in writing when the meetings have ended.

g) The Member shall not practice independently in the community for a period of 24 months from the date the Member returns to the practice of nursing.

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

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation.

The Panel considered the previous finding of professional misconduct against the Member in 2018 to be an aggravating factor. The previous findings of professional misconduct are similar to the case before this Panel. Also, as the Member has not participated in this hearing it is unknown if the Member is remorseful or willing to remediate.

The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specific deterrence is achieved through the oral reprimand and the 10-month suspension of the Member’s certificate of registration, which will send a clear message to the Member that professional misconduct will not be tolerated. General deterrence is addressed through the 10-month suspension of the Member’s certificate of registration, which will send a clear message to the profession that professional misconduct will not be tolerated.

Rehabilitation and remediation will be achieved through a minimum of 2 meetings with a Regulatory Expert and completion of a nursing course on medication administration and health assessment before he can return to practice. These terms are to ensure that the Member has the knowledge, skills and judgment to return to ethical practice if he decides to return to practice. The terms surrounding remediation are onerous on purpose. If the Member decides to return to practice, the public will have additional layers of protection through the 24 months of employer notification, 3 random spot audits of the Member’s documentation, 8 months of mentorship and 24 months of no independent practice in the community. Through all of these terms and limitations, the College’s proposed order meets the goals of penalty.

The penalty is also in line with what has been ordered in previous cases in similar circumstances as demonstrated by the cases submitted and referred to by College Counsel.

I, Susan Roger, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.