College of Nurses of Ontario v. Nancy Halupa, 2024 ONCNO 122853 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Michael Hogard, RPN Chairperson Samuel Jennings, RPN Member Mary MacNeil, RN Member Lalitha Poonasamy Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

and - )

NANCY HALUPA ) PHILIP ABBINK for Registration No. 9822651 ) Nancy Halupa ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: April 3, 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”) on April 3, 2024, 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 patient’s name, or any information that could disclose the identity of the patient referred to orally or in any documents presented at the Discipline hearing of Nancy Halupa.

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

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs #1(c), #2(c) and #3(c) in the Notice of Hearing dated February 7, 2024. The Panel granted this request. The remaining allegations against Nancy Halupa (the “Member”) are as follows:

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at Unity Health Toronto – St. Joseph’s Health Centre in Toronto, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that on or about January 23, 2022:

(a) You kicked [the Patient], and/or kicked in the direction of [the Patient], on one or more occasions;

(b) You threw a knapsack in the direction of [the Patient]’s head and/or upper torso using unnecessary force; and/or

You have committed an act of professional misconduct as provided by sub-section 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and sub-section 1(7) of Ontario Regulation 799/93 in that, while employed as a Registered Nurse at Unity Health Toronto – St. Joseph’s Health Centre in Toronto, Ontario, you abused a patient verbally, physically, and/or emotionally, and in particular, on or about January 23, 2022:

(a) You kicked [the Patient], and/or kicked in the direction of [the Patient], on one or more occasions;

(b) You threw a knapsack in the direction of [the Patient]’s head and/or upper torso using unnecessary force; and/or

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at Unity Health Toronto – St. Joseph’s Health Centre in Toronto, Ontario, you engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, and in particular, on or about January 23, 2022:

(a) You kicked [the Patient], and/or kicked in the direction of [the Patient], on one or more occasions;

(b) You threw a knapsack in the direction of [the Patient]’s head and/or upper torso using unnecessary force; and/or

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(a), (b), #2(a), (b) and #3(a), and (b) in the Notice of Hearing. The Panel received a written plea inquiry, which the Member signed. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admissions were voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, and without the lettered exhibits mentioned therein as follows:

THE MEMBER

Nancy Halupa (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on August 6, 1998. The Member has been registered with CNO for approximately twenty-five years, and she has no prior discipline history with CNO.
The Member was employed at St. Joseph’s Health Centre in Toronto, Ontario (the “Facility”), from January 25, 1999, until March 9, 2022, when the Facility terminated her employment as a result of the incidents described below.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

On January 23, 2022, the Member was working in the Emergency Department (“ED”) at the Facility.
(the “Patient”) presented at the Facility’s ED by ambulance at 4:56 a.m. on January 23, 2022, with a primary complaint of chest pain. The Patient was later diagnosed as intoxicated by the ED physician.
The incidents between the Member and the Patient, which gave rise to the allegations of professional misconduct, were captured on video footage (without audio) from the Facility.
At approximately 6:40 a.m., the Patient was in the care of Emergency Medical Services (“EMS”) and being transferred from a stretcher to a wheelchair by two paramedics. During this interaction, the Patient used vulgar language and threatened the EMS paramedics. One paramedic left the area to call a Code White. The paramedic then returned to the area with another paramedic and the Member.
The Member approached the back of the Patient’s wheelchair where the Patient was seated. If the Member were to testify, she would state that the Patient was using vulgar language at this point.
The Patient subsequently stood up from the wheelchair, hit an EMS paramedic with his hand, and then swung his knapsack toward the Member. The Member raised her arms in front of herself.
The Patient continued towards the Member, and the Patient and the Member appeared to be speaking to each other. The Patient then swung his knapsack for a second time and hit the Member in the upper body/neck/head area with his knapsack. If the Member were to testify, she would state that, at some point during this period, the Patient said to the Member he was “coming after” her.
The Patient then moved out of the clear view of the Facility’s camera and the Member approached the Patient. The Patient subsequently moved towards the Member and another RN in the area.
The Patient was then tackled by an EMS paramedic from behind. The paramedic pulled the Patient down to the ground so that the Patient was lying on the paramedic and the paramedic’s arms were around the Patient. The Patient was moving his legs and swearing.
The Member then kicked the Patient three times, while the other RN approached the Patient and held down the Patient’s legs.
An additional RN and an ED Team Lead approached the area. The ED Team Lead told the Member to “stop” or said the Member’s name between the Member’s second and third kicks of the Patient. An additional RN then arrived in the area.
The Member subsequently grabbed the Patient’s knapsack from him and kicked the Patient a fourth time while the Patient was being held down. During the Member’s fourth kick of the Patient, another ED Team Lead entered the area.
Three security officers then arrived in the area and immobilized the Patient.
The Member observed the scene with the security officers holding down the Patient for approximately a minute.
The Member then forcefully threw the Patient’s knapsack in the direction of the Patient’s head and/or upper torso, while the Patient was on the ground being physically restrained by the security officers. It is unclear if the knapsack hit or made contact with the Patient when the Member threw it. The Member subsequently walked away from the area.
After the Member threw the Patient’s knapsack at this head and/or upper torso, the Patient used threatening language towards the Member.
The Facility subsequently called the police.
After the incidents, the Member submitted a Safety First Report that she had been assaulted by the Patient. She did not report that she had kicked the Patient or thrown his knapsack.
The Facility conducted an investigation into the incidents.
The Facility concluded the Member’s actions constituted a physical assault of the Patient and terminated the Member’s employment.
If the Member were to testify, she would state that when the Patient was on the ground, restrained, and moving his legs, the Member believed the Patient was trying to kick her and she kicked the Patient to get him to stop kicking her. However, the Member acknowledges that kicking a patient is not an acceptable response to physical aggression from a patient and she now realizes that her physical safety was not in jeopardy when she kicked the Patient.

Member’s Health

If the Member were to testify, she would state that she was suffering from a health condition during the relevant time period that affected her behaviour and judgment.

CNO STANDARDS

Code of Conduct

CNO’s Code of Conduct is a standard of practice describing the accountabilities all Ontario nurses have to the public. The Code of Conduct consists of six principles including:

Nurses respect the dignity of patients and treat them as individuals;
Nurses work together to promote patient well-being;
Nurses maintain patients’ trust by providing safe and competent care;
Nurses work respectfully with colleagues to best meet patients’ needs;
Nurses act with integrity to maintain patients’ trust; and
Nurses maintain public confidence in the nursing profession.

CNO’s Code of Conduct provides, in relation to the principle requiring nurses to respect the dignity of patients and treat them as individuals, that nurses treat patients with care and compassion.
CNO’s Code of Conduct further provides, in relation to the principle requiring nurses to maintain patients’ trust by providing safe and competent care, that nurses seek advice and collaborate with the health care team to uphold safe patient care and nurses are accountable to, and practice under relevant laws and CNO’s standards of practice.
In addition, CNO’s Code of Conduct provides, in relation to the principle requiring nurses to maintain public confidence in the nursing profession, that:

Nurses are accountable for their own actions and decisions; and
Nurses are responsible for maintaining their health. They seek help if their health affects their ability to practice safely.

Attached as Exhibit “A” is a copy of CNO’s Code of Conduct which was in force at the time of the incidents.

Professional Standards

CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements and indicators that illustrate how the standard may be demonstrated pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.
CNO’s Professional Standards provides, in relation to the accountability standard statement, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standards of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.
CNO’s Professional Standards further provides, in relation to the ethics standard statement, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members.
CNO’s Professional Standards also provides, in relation to the leadership standard statement, that nurses demonstrate their leadership by providing, facilitating and promoting the best possible care/service to the public. In addition, nurses demonstrate the standard by:

role-modelling professional values, beliefs and attributes; and
collaborating with [patients] and the health care team to provide professional practice that respects the rights of [patients].

Furthermore, CNO’s Professional Standards provides, in relation to the relationship standard statement and the therapeutic nurse-patient relationship, that nurses demonstrate empathy and caring in all relationships with patients, families and significant others and it is the responsibility of the nurse to establish and maintain the therapeutic relationship. Nurses demonstrates this standard by:

demonstrating respect and empathy for, and interest in [patients]; and
recognizing the potential for [patient] abuse.

Attached as Exhibit “B” is a copy of CNO’s Professional Standards which was in force at the time of the incidents and has since been retired.

Therapeutic Nurse-Client Relationship

CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) contains four standard statements, with accompanying indicators, which describe nurses’ accountabilities with respect to therapeutic communication, patient-centred care, maintaining boundaries and protecting the patient from abuse. The TNCR Standard provides that the nurse-patient relationship is built on trust, respect, empathy, professional intimacy and requires the appropriate use of power inherent in the care provider’s role.
CNO’s TNCR Standard provides, in relation to the therapeutic communication standard statement, that nurses use a wide range of effective communication strategies and interpersonal skills to appropriately establish, maintain, re-establish and terminate the nurse-patient relationship. Nurses meet the standard by:

being aware of her/his verbal and non-verbal communication style and how [patients] might perceive it;
modifying communication style, as necessary, to meet the needs of the [patient];
recognizing that all behaviour has meaning and seeking to understand the cause of a [patient’s] unusual comment, attitude or behaviour; and
reflecting on interactions with a [patient] and the health care team and investing time and effort to continually improve communication skills.

CNO’s TNCR Standard provides, in relation to the patient-centred care standard statement, that nurses work with the patient to ensure that all professional behaviours and actions meet the therapeutic needs of the patient. Nurses meet the standard by:

recognizing that the [patient’s] well-being is affected by the nurse’s ability to effectively establish and maintain a therapeutic relationship; and
reflecting on how stress can affect the nurse-[patient] relationship, and appropriately managing the cause of the stress so the therapeutic relationship isn’t affected.

CNO’s TNCR Standard defines abuse as:

[T]he misuse of the power imbalance intrinsic in the nurse-[patient] relationship. It can also mean the nurse betraying the [patient]’s trust or violating the respect or professional intimacy inherent in the relationship, when the nurse knew, or ought to have known the action could cause, or could be reasonably expected to cause physical, emotional or spiritual harm to the [patient]. Abuse may be verbal, emotional, physical, sexual, financial or take the form of neglect. The intent of the nurse does not justify a misuse of power within the nurse-[patient] relationship.

CNO’s TNCR Standard also provides, in relation to the protecting the patient from abuse standard statement, that nurses protect patients from harm by ensuring that abuse is prevented or stopped and reported. Nurses demonstrate having met the standard by:

not engaging in behaviours toward a patient that may be perceived by the patient and/or others to be violent, threatening, or intending to inflict physical harm; and
not exhibiting physical, verbal and non-verbal behaviours toward a [patient] that demonstrate disrespect for the [patient] and/or are perceived by the [patient] and/or others as abusive.

In addition, CNO’s TNCR Standard provides that physical abuse includes, but is not limited to, hitting, pushing, using force and handling a patient in a rough manner. CNO’s TNCR Standard further provides that verbal and emotional abuse includes, but is not limited to, intimidation, including threatening gestures/actions.
Attached as Exhibit “C” is a copy of CNO’s TNCR Standard which was in force at the time of the incidents.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a) and 1(b) of the Notice of Hearing in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 3 to 42 above.
The Member admits and acknowledges that she contravened CNO’s Code of Conduct, Professional Standards and TNCR Standard when she:

kicked the Patient and/or kicked in the direction of the Patient on one or more occasions, including while he was restrained by a paramedic and a RN; and
threw a knapsack in the direction of the Patient’s head and/or upper torso using unnecessary force, including while he was restrained by security officers.

The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a) and 2(b) of the Notice of Hearing in that she abused the Patient physically and emotionally, as described in paragraphs 3 to 23 and 39 to 42 above.
The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a) and 3(b) of the Notice of Hearing, and in particular her conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 3 to 42 above.

OTHER

With the leave of the Panel of the Discipline Committee, CNO withdraws the remaining allegations in the Notice of Hearing, which are as follows:

Paragraph 1(c) of the Notice of Hearing;
Paragraph 2(c) of the Notice of Hearing; and
Paragraph 3(c) of the Notice of Hearing.

Submissions on liability were made by College Counsel.

College Counsel submitted that the Agreed Statement of Facts contains sufficient evidence to support the professional misconduct as alleged in the Notice of Hearing. The Member admitted that she kicked [the Patient] and threw a knapsack in the direction of his head and/or upper torso. College Counsel submitted that conduct of this nature is a breach of the standards, meets the criteria for patient abuse and would also be considered by members of the profession to be disgraceful, dishonourable and unprofessional conduct. College Counsel submitted that the Member has admitted to the alleged conduct through agreement and negotiation of the evidence as set out in the Agreed Statement of Facts. College Counsel submitted that it is the evidence contained within the Agreed Statement of Facts upon which the Panel should assess whether the College has met its burden to prove the allegations.

College Counsel submitted that regarding allegations #1(a), #2(a) and #3(a), the Member admitted in the Agreed Statement of Facts, paragraph #12, that she kicked [the Patient] three times as alleged while another Registered Nurse held down [the Patient]’s legs. In the Agreed Statement of Facts, paragraph #14, the Member admitted that she kicked [the Patient] a fourth time while [the Patient] was being held down.

College Counsel submitted that with regard to allegations #1(b), #2(b) and #3(b), the Member admitted in the Agreed Statement of Facts, paragraph #17, that she threw a knapsack in the direction of [the Patient]’s head and/or upper torso, while [the Patient] was restrained by security officers. College Counsel submitted that the Member also made admissions in the Agreed Statement of Facts at paragraphs #43-46.

The Agreed Statement of Facts also sets out the applicable standards of practice, namely the Code of Conduct, the Professional Standards and the Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) that the Member is alleged to have breached. The Agreed Statement of Facts also contains excerpts from the standards, which in summary, state that nurses must: 1) treat patients with dignity and respect; 2) use appropriate verbal and non-verbal communication styles; and 3) refrain from causing physical or emotional harm to patients. College Counsel submitted that those are the 3 critical standards of the profession that apply in this case. Kicking a patient and throwing a knapsack are contrary to those foundational standards.

Additionally, with respect to allegations #2(a) and (b), kicking and throwing a knapsack would be considered physical and emotional abuse. College Counsel submitted that the Member agreed with this characterization in the Agreed Statement of Facts at paragraph #45.

College Counsel submitted that regarding allegations #3(a) and (b), the Member breached her professional standards and therefore acted unprofessionally. The Member’s conduct was also disgraceful and dishonourable when she kicked [the Patient], who was not only intoxicated but also clearly in the middle of an issue which had brought him to the Emergency Department. The Member also kicked [the Patient] while he was restrained. Throwing a knapsack was also reckless and showed a disregard for [the Patient]’s safety. College Counsel submitted that the Member’s conduct meets the criteria for unprofessional, dishonourable and disgraceful conduct. The College acknowledges that the Member would say she had a medical condition affecting her behavior at the time. However, College Counsel submitted that all members must be held accountable for their actions and not hurt patients even when the patient is using vulgar language or lashing out physically. The College submitted that the burden of proof on the balance of probabilities has been met and that the Member should be found guilty of the allegations given the facts stated in the Agreed Statement of Facts and the Member’s plea.

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

The Member’s Counsel submitted that the Panel has been provided with the Member’s plea and the Agreed Statement of Facts that sets out the facts and standards that support the findings of professional misconduct. The context for the incidents has some significance in that the Member was attacked first but responded inappropriately. The Member was also experiencing a health condition that, while not absolving her from her actions, contributed to the incidents and were significant in terms of what transpired during the event.

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), #2(a), (b) and #3(a) and (b) of the Notice of Hearing. With respect to allegations #2(a) and (b), the Panel finds that the Member physically and emotionally abused the patient. 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 disgraceful, dishonourable and unprofessional.

Reasons for Decision

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

Allegations #1(a) and (b) in the Notice of Hearing are supported by paragraphs 3 to 43 in the Agreed Statement of Facts. The College’s Code of Conduct requires nurses to respect the dignity of all patients, act with integrity to maintain patient trust and treat patients with care and compassion. The Member ignored this requirement when she ignored the vulnerable health status of [the Patient] and responded to his aggression not with compassion, patience and tolerance but impatience, anger and abuse. The Professional Standards require nurses to conduct themselves in ways that promote respect for the profession, act professionally, role model professional values, and demonstrate empathy for patients. The Member failed to do this when she kicked [the Patient] and threw a knapsack in the direction of his head and/or torso. The TNCR Standard requires nurses to understand and appropriately use the power inherent in the nurse-patient relationship. Inherent in this understanding is self-reflection to manage stress so the therapeutic relationship is not affected. The Member found herself in a very stressful situation and was experiencing a health condition. She failed to manage the situation and herself and failed to protect the therapeutic nurse-patient relationship. She did not remove herself from the situation. She did not call for additional help. She ignored colleagues when they told her to stop kicking [the Patient]. She also abused the power she had over a restrained and vulnerable patient when she kicked him and threw a knapsack toward him. By these actions, the Member failed to meet her professional standards.

Allegations #2(a) and (b) in the Notice of Hearing are supported by paragraphs 3 to 23, 39 to 42 and 45 in the Agreed Statement of Facts. The Member kicked a patient and threw a knapsack at him. Her conduct constituted physical abuse. Her actions were also intimidating, threatening and thereby also constituted emotional abuse.

Allegations #3(a) and (b) in the Notice of Hearing are supported by paragraphs 3 to 42 and 46 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct of kicking [the Patient] and throwing a knapsack in the direction of his head and/or torso using unnecessary force was relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in breaching the College’s Code of Conduct, the Professional Standards and the TNCR Standard. [The Patient] was in the Emergency Department for chest pain and was also intoxicated. The Member had a professional obligation to treat him with respect, patience and dignity despite the challenges he presented.

The Panel also finds that the Member’s conduct was dishonourable. The Agreed Statement of Facts stated that [the Patient] swung his knapsack at the Member, hit the Member with the knapsack and, according to the Member, said he was “coming after” her. This was a very challenging situation. However, rather than step away or call for additional help, the Member retaliated, kicking [the Patient] while he was on the ground and restrained. Even when help arrived, the Member ignored calls to stop and delivered a final kick to [the Patient]. This was not an act of self-defence as [the Patient] was restrained and no longer a risk to the Member. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s abusive, retaliatory conduct toward [the Patient] casts serious doubt on the Member’s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet and brings shame to herself and, by extension, the profession.

Penalty

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

Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to suspend the Member’s certificate of registration for 4 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date that this Order becomes final. 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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):

Code of Conduct,
Therapeutic Nurse-Client Relationship, and
Conflict Prevention and Management;

iv. Before the first meeting, the Member reviews and completes the CNO’s self-directed learning package, One is One Too Many, at the Member’s own expense, including the self-directed Nurses’ Workbook;

v. 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 and Nurses’ Workbook;

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

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

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

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;

viii. If the Member does not comply with any one or more 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) For a period of 12 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 prior to commencing or prior to 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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.

Penalty Submissions

Submissions on penalty were made by College Counsel.

College Counsel reviewed the principles applicable to Joint Submissions on Penalty with the Panel.

The aggravating factors in this case were:

The Member physically abused [the Patient];

[The Patient] was vulnerable, seeking care in the Emergency Department with a complaint of chest pain; and
[The Patient] was intoxicated, a situation requiring the Member to act and treat [the Patient] with dignity, respect and non-abusive care.

The mitigating factors in this case were:

The Member has taken accountability through her admissions and by participating in the process, thereby avoiding the costs and resources required for a contested hearing;

The Member has no prior discipline history with the College; and
The Member was experiencing a health condition at the time of the incidents.

College Counsel submitted that the penalty proposed meets the goal of general deterrence through the 4-month suspension of the Member’s certificate of registration, which will send a strong message to the profession that conduct of this nature will not be tolerated.

The goal of specific deterrence will be met through the oral reprimand and the 4-month suspension of the Member’s certificate of registration.

The 2 meetings with a Regulatory Expert will support rehabilitation and remediation by helping the Member gain insight into her conduct.

Overall, the public confidence in the profession will be supported and the public is protected by the proposed penalty.

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. Johnston (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member was alleged to have used improper technique and inappropriate force while applying a shoulder restraint on a patient with a mental health diagnosis. The member also dismissed concerns from the security guards that the restraint was applied inappropriately. During the incident the patient spat in the member’s face and attempted to bite her. The member had a past work history of being abused and injured by patients and as a result of this incident was later diagnosed with Post Traumatic Stress Disorder. The Member also changed her focus to work in nursing contexts outside of mental health nursing. The member acknowledged she used more force than necessary when applying the shoulder restraint and that she should have removed herself from the situation. The panel found the member guilty of physical abuse and unprofessional conduct. The penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.

CNO v. Hayden (Discipline Committee, 2018): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. While being restrained for aggressive behaviour, the patient spat in the member’s face. The member responded by punching the patient 3 times with a closed fist. The panel found the member guilty of physical and emotional abuse and disgraceful, dishonourable and unprofessional conduct. The penalty included an oral reprimand, a 4-month suspension of the member’s certificate of registration, 2 meetings with a Nursing Expert and 12 months of employer notification.

CNO v. Kennedy (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member spoke to a 93-year-old patient in an aggressive, raised tone of voice; she roughly grabbed the patient by the arm causing skin tears, struck the patient on the upper leg and/or knee with a closed fist and made a comment to a security guard that she wanted to “throat punch” the patient. The member admitted to professional misconduct as alleged. The panel made findings in respect of the allegations that included verbal, physical, and emotional abuse as well as disgraceful, dishonourable and unprofessional misconduct. The penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.

CNO v. Kaley (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member was alleged in 2 interactions with the same patient to have grabbed, pushed and restrained the patient with unnecessary force as well as pinned the patient down on his bed. The member admitted to the allegations. The panel made findings in respect of the allegations that included verbal, physical, and emotional abuse as well as disgraceful, dishonourable and unprofessional misconduct. The penalty included an oral reprimand, a 6-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert, 18 months of employer notification and 18 months of no independent practice in the community.

College Counsel submitted that the case law shows similar penalty for similar serious misconduct with a range of suspensions from 3-6 months. College Counsel submitted that serious sanctions are warranted, and that the penalty proposed, particularly the length of the suspension, is within the range other panels have imposed. The penalty is also reasonable, appropriate and tailored to meet the goals of penalty.

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

The Member’s Counsel submitted that the penalty is appropriate and reasonable. The Member’s Counsel submitted that the Member did not go out of her way to harm the patient but rather was responding, albeit inappropriately, to being attacked. The Member has demonstrated accountability and insight into her conduct thereby reassuring the Panel that her conduct is less likely to reoccur.

The Member’s Counsel reviewed the case law presented by College Counsel. In the Kaley case, the nurse was involved in multiple incidents of patient abuse, so the suspension ordered was longer (6 months). In the Hayden case, which is the most similar to the case before this Panel, the patient was aggressive, and the member was receiving treatment for stress; the panel ordered a 4-month suspension of the member’s certificate of registration. In both the Johnston and Kennedy cases the panels ordered a 3-month suspension of the member’s certificate of registration. The Member’s Counsel submitted the cases presented by College Counsel establish that the proposed penalty is within an appropriate range.

Penalty Decision

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

The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to suspend the Member’s certificate of registration for 4 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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):

Code of Conduct,
Therapeutic Nurse-Client Relationship, and
Conflict Prevention and Management;

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

the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;

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

the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;

b) For a period of 12 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 prior to commencing or prior to 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:

the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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 also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

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

The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specifically, the oral reprimand and the 4-month suspension of the Member’s certificate of registration provides for specific deterrence. The 4-month suspension of the Member’s certificate of registration provides for general deterrence. The 2 meetings with a Regulatory Expert will allow for rehabilitation and remediation and the 12 months of employer notification will ensure the public is protected.

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, Michael Hogard, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.