College of Nurses of Ontario v. J. Jacky Chow, 2024 CanLII 125213

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Morgan Krauter, NP Chairperson Lynn Hall, RN Member Sandra Larmour Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) GLYNNIS HAWE for ) College of Nurses of Ontario

• and - )

J. JACKY CHOW ) GRANT FERGUSON for Registration No. JG681608 ) J. Jacky Chow ) CHRISTOPHER WIRTH ) Independent Legal Counsel ) Heard: April 22, 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 22, 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 name(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented at the Discipline hearing of J. Jacky Chow.

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

The Allegations

The allegations against J. Jacky Chow (the “Member”) as stated in the Notice of Hearing dated January 16, 2024 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 you contravened a standard of practice of the profession, or failed to meet the standard of practice of the profession, and in particular:

a. on or about August 27, 2020, while practicing as a Registered Practical Nurse at the Queensway-Carleton Hospital, in Nepean, Ontario, you:

i. yelled at and/or spoke to Patient [A] in an inappropriate tone of voice; and or

ii. physically forced Patient [A] into their room, including by pushing their body with your chest;

b. on or about August 31, 2020, while practicing as a Registered Practical Nurse at the Queensway-Carleton Hospital in Nepean, Ontario, you:

i. made inappropriate comments to Patient [A], including but not limited to words to the effect of “If you hit me, I’ll hit you back” and/or “I’ll drop you right now”;

ii. grabbed Patient [A] by the wrists and/or arms;

iii. pushed Patient [A]; and/or

iv. restrained Patient [A] on the floor;

c. on or about October 6, 2021, while practicing as a Registered Practical Nurse at Perth Community Care Centre, in Perth, Ontario, you:

i. grabbed Patient [B] by the wrists; and/or

ii. pulled and/or pushed Patient [B] into their room using inappropriate force;

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that you abused a patient verbally, physically, and/or emotionally, and in particular:

a. on or about August 27, 2020, while practicing as a Registered Practical Nurse at the Queensway-Carleton Hospital, in Nepean, Ontario, you:

i. yelled at and/or spoke to Patient [A] in an inappropriate tone of voice; and/or

ii. physically forced Patient [A] into their room, including by pushing their body with your chest;

b. on or about August 31, 2020, while practicing as a Registered Practical Nurse at the Queensway-Carleton Hospital in Nepean, Ontario, you:

i. made inappropriate comments to Patient [A], including but not limited to words to the effect of “If you hit me, I’ll hit you back” and/or “I’ll drop you right now”;

ii. grabbed Patient [A] by the wrists and/or arms;

iii. pushed Patient [A]; and/or

iv. restrained Patient [A] on the floor;

c. on or about October 6, 2021, while practicing as a Registered Practical Nurse at Perth Community Care Centre, in Perth, Ontario, you:

i. grabbed Patient [B] by the wrists; and/or

ii. pulled and/or pushed Patient [B] into their room using inappropriate force;

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 you engaged in conduct relevant to the practice of nursing that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, and in particular:

a. on or about August 27, 2020, while practicing as a Registered Practical Nurse at the Queensway-Carleton Hospital, in Nepean, Ontario, you:

i. yelled at and/or spoke to Patient [A] in an inappropriate tone of voice; and/or

ii. physically forced Patient [A] into their room, including by pushing their body with your chest;

b. on or about August 31, 2020, while practicing as a Registered Practical Nurse at the Queensway-Carleton Hospital in Nepean, Ontario, you:

i. made inappropriate comments to Patient [A], including but not limited to words to the effect of “If you hit me, I’ll hit you back” and/or “I’ll drop you right now”;

ii. grabbed Patient [A] by the wrists and/or arms;

iii. pushed Patient [A]; and/or

iv. restrained Patient [A] on the floor;

c. on or about October 6, 2021, while practicing as a Registered Practical Nurse at Perth Community Care Centre, in Perth, Ontario, you:

i. grabbed Patient [B] by the wrists; and/or

ii. pulled and/or pushed Patient [B] into their room using inappropriate force.

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(a)(i), (ii), (b)(i), (ii), (iii), (iv), (c)(i), (ii), #2(a)(i), (ii), (b)(i), (ii), (iii), (iv), (c)(i), (ii), #3(a)(i), (ii), (b)(i), (ii), (iii), (iv) and (c)(i) and (ii) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s 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 exhibits referenced therein, as follows:

THE MEMBER

1. J Jacky Chow (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on May 14, 2007.

THE HOSPITAL

2. The Member was employed at Queensway-Carleton Hospital in Nepean, Ontario (the “Hospital”) from 2007 to 2020. The Member provided care to elderly patients in the Hospital’s Acute Care Elderly Unit (the “ACE Unit”). The Hospital terminated the Member’s employment as a result of the Member’s interactions with Patient [A] on August 27 and August 31, 2020.

THE FACILITY

3. In 2021, the Member worked as an agency nurse at Perth Community Care Centre, in Perth, Ontario (“PCCC” or the “Facility”). At the time, the Member was employed by the Mimak Health Care nursing agency and was placed at the Facility by Mimak Health Care. The Facility ended the Member’s placement as a result of the Member’s interactions with Patient [B] on October 6, 2021.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Patient [A] - August 27, 2020

4. Patient [A] was a 55-year-old male patient of the Hospital, receiving care in the ACE Unit. Patient [A] was diagnosed with frontal lobe dementia with associated dangerous/aggressive behaviours. Patient [A] was in isolation at the time, meaning his plan of care required that he not leave his room.

5. The Hospital trained nurses to care for the elderly, including safety training to respond to crisis and/or violent situations, and de-escalating situations in which patients may be verbally and/or physically aggressive, amongst other training.

6. The Hospital required nurses to use the Gentle Persuasive Approach (“GPA”) in caring for patients who demonstrate agitated or responsive behaviours. If only one staff member is available, GPA involves backing away from the agitated patient. If another trained staff member is available to assist and the patient is extremely agitated, GPA may involve each staff member calmy grabbing one of the patient’s arms and redirecting the patient by walking alongside them.

7. The Member received training from the Hospital on the use of the GPA in 2016 and again in May 2019.

8. At approximately 1300 hours on August 27, 2020, Patient [A] became agitated and attempted to exit his room.

9. Rather than backing away from Patient [A], the Member confronted Patient [A] and “bumped” Patient [A] with his chest. If the Member were to testify, he would say that he did so in an attempt to keep Patient [A] in his room, and that he did not intentionally initiate physical impact with Patient [A].

10. The Member also yelled at Patient [A], telling him that there was “not an excuse” for Patient [A]’s behaviour, or words to that effect.

11. The Member’s colleagues witnessed the Member’s interactions with Patient [A] and instructed the Member to stop pushing and yelling at Patient [A]. The Member’s colleagues encouraged the Member to apply GPA techniques instead.

12. The Member did not stop and instead yelled at his colleague “my patient, back off”, or words to that effect.

Patient [A] - August 31, 2020

13. In or around 0600 and 0700 hours on August 31, 2020, Patient [A] was pacing the halls of the ACE Unit, demanding he be provided a razor. When another nurse denied Patient [A] his request, Patient [A] escalated his behaviour; he began to yell and swear while walking around the Unit.

14. The Member responded. As the Member approached Patient [A], the Member said to Patient [A]: “I’ll drop you right now” and “if you hit me, I’ll hit you back”, or words to that effect. Patient [A] then pushed the Member.

15. With the assistance of the Unit security guard, the Member restrained Patient [A]. The Member held Patient [A]‘s left arm behind his back. The security guard held Patient [A]’s right arm. The Member and security guard pulled Patient [A] backwards, down to the ground.

16. The Member, with the security guard’s assistance, rolled Patient [A] onto his side, facing the wall of the Unit’s hallway. The Member pinned Patient [A] between the floor and the wall by placing his knee against Patient [A]’s back and applying his body weight to Patient [A].

17. Patient [A] made several attempts to escape from the Member’s hold. At one point, Patient [A] partially lifted himself off the floor. The Member responded by pushing Patient [A] back to the ground.

18. After approximately 45 seconds, the Member removed his knee from Patient [A]’s back and assisted him to standing. The entire incident was captured on the Hospital’s video surveillance system.

19. If the Member were to testify, he would state that his attempts to restrain Patient [A] were done in collaboration with security and were intended to hold Patient [A] in a safe position until the Code White team arrived. Nevertheless, the Member admits that that by not using the GPA he failed to de-escalate the situation and instead antagonized Patient [A] further.

Patient [B] - October 6, 2021

20. Patient [B] was an 84-year-old female patient of the Facility. Patient [B] had multiple diagnoses, including mental and behavioural disorders due to use of alcohol, including withdrawal state with delirium, anxiety disorder, and arthritis.

21. On October 6, 2021, Patient [B] was standing near the nursing station, yelling for her medication. The Member responded. The Member instructed Patient [B] to stop yelling and return to her room. Patient [B] refused.

22. The Member then grabbed Patient [B]’s wrists and pushed her backwards, away from the nursing station, into the hallway. Keeping his grip around Patient [B]’s wrists, the Member moved behind Patient [B], crossed her arms in front of her chest, and proceeded to push her down the hallway towards her room, while walking behind her. As the Member did so, Patient [B] shouted words to the effect of “let go of me,” “look at what he’s doing,” and “help me.”

23. Once the Member and Patient [B] arrived outside her room, the Member pushed Patient [B] towards the doorway. Patient [B] fell to the ground and began screaming. The Member then used his foot to push Patient [B] through the doorway into her room and closed the door to Patient [B]’s room without providing Patient [B] any further assistance.

24. Later that same day, the Member’s colleagues observed that Patient [B] had bruises on her wrists, arms, and legs. Patient [B] also had a skin tear on her arm. The Member’s colleagues took photographs of these injuries.

25. If the Member were to testify, he would state that he held Patient [B] by her wrists but would state that he attempted to do so in a manner that would not injure her. Nevertheless, the Member admits that Patient [B] was bruised as a result of this hold, and the Member would express his regret that he did not utilize the GPA to de-escalate the situation.

CNO STANDARDS

Code of Conduct

26. 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.

27. Regarding the principle requiring nurses to respect the dignity of patients and treat them as individuals, CNO’s Code of Conduct provides that:

• Nurses treat patients with care and compassion; and

• Nurses listen and collaborate with patients and any person the patients want involved in their care.

28. Regarding the principle that nurses work together to promote patient well-being, CNO’s Code of Conduct provides that:

• Nurses provide clear and timely information to patients. Nurses talk to patients in ways patients understand, inviting their feedback;

• Nurses acknowledge patients’ right to express concerns. Nurses respond by working with patients to resolve concerns; and

• Nurses advocate for patients and help them access appropriate health care.

29. Regarding the principle requiring nurses to maintain patients’ trust by providing safe and competent care, CNO’s Code of Conduct provides 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.

30. With respect to the principle requiring nurses to work respectfully with colleagues to best meet patients’ needs, CNO’s Code of Conduct provides that nurses take action to stop unsafe, incompetent, unethical, or unlawful practice, including any type of abuse.

31. With respect to the principle requiring nurses to act with integrity to maintain patients’ trust, CNO’s Code of Conduct provides that nurses take prompt action to prevent and protect patients from harm.

32. With respect to the principle requiring nurses to maintain public confidence in the nursing profession, CNO’s Code of Conduct provides that:

• Nurses are accountable for their own actions and decisions; and

• Nurses clearly communicate to patients the details of care or a service they intend to provide.

33. Attached as Exhibit “A” is a copy of CNO’s Code of Conduct that was in force at the time of the incidents involving Patient [A] and Patient [B].

Professional Standards

34. CNO’s Professional Standards, Revised 2002 (“Professional Standards”) provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership, and relationships.

35. CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring that their practice and conduct meets the legislative requirements and the standard of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.

36. CNO’s Professional Standards further provides, in relation to the leadership standard, that nurses demonstrate their leadership by providing, facilitating, and promoting the best possible care/service to the public. In addition, a nurse demonstrates 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.

37. CNO’s Professional Standards also provides, in relation to the relationship standard and the therapeutic nurse-patient relationship, that a nurse demonstrates this standard by demonstrating respect and empathy for and interest in patients, recognizing the potential for patient abuse, and preventing that abuse when possible.

38. CNO’s Professional Standards also provides, in relation to the relationship standard and the professional relationship, that a nurse demonstrates leadership by role-modelling positive collegial relationships and using a wide range of communication and interpersonal skills to effectively establish and maintain collegial relationships.

39. Attached as Exhibit “B” is a copy of CNO’s Professional Standards that was in force at the time of the incidents involving Patient [A] and Patient [B].

Therapeutic Nurse-Client Relationship

40. CNO’s Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”) contains four standard statements which describe nurses’ accountabilities with respect to therapeutic communication, client-centred care, maintaining boundaries and protecting the patient from abuse. The TNCR Standard provides that the nurse-client relationship is built on trust, respect, empathy, and professional intimacy, and that it requires the appropriate use of power inherent in the care provider’s role.

41. 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.

42. CNO’s TNCR Standard provides that verbal and emotional abuse includes, but is not limited to, intimidation, including threatening gestures/actions and an inappropriate tone of voice such as expressing impatience. CNO’s TNCR Standard further provides that physical abuse includes, but is not limited to, hitting, pushing, using force and handling a patient in a rough manner.

43. CNO’s TNCR Standard requires nurses to protect the patient from harm by ensuring that abuse is prevented, stopped, and/or reported. A nurse demonstrates having met the standard by actions such as 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.

44. Attached as Exhibit “C” is a copy of CNO’s TNCR Standard that was in force at the time of the incidents involving Patient [A] and Patient [B].

45. The Member admits and acknowledges that he breached CNO’s Code of Conduct, Professional Standards, and TNCR Standard in that,

• on or around August 27, 2020, he verbally, emotionally, and physically abused Patient [A] when he yelled at Patient [A] and physically forced Patient [A] into his room by pushing Patient [A] using his chest;

• on or around August 31, 2020, he verbally, emotionally, and physically abused Patient [A] when he made threatening comments to Patient [A], including words to the effect of “If you hit me, I’ll hit you back” and “I’ll drop you right now”; grabbed Patient [A] by the wrists and arms; pushed Patient [A]; and pinned Patient [A] to the floor; and

• on or around October 6, 2021, he verbally, emotionally, and physically abused Patient [B] when he grabbed Patient [B] by the wrists and pushed and/or pulled Patient [B] into her room using inappropriate force.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

46. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1 (a), (b), and (c) of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as described in paragraphs 4 to 45 above.

47. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2 (a), (b), and (c) of the Notice of Hearing in that he verbally, physically, and emotionally abused Patients [A] and [B] as described in paragraphs 4 to 45 above.

48. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3 (a), (b), and (c) of the Notice of Hearing, and in particular that his conduct was dishonourable and unprofessional, as described in paragraphs 4 to 45 above.

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), (b)(i), (ii), (iii), (iv), #2(a)(i), (ii), (b)(i), (ii), (iii), (iv), (c)(i), (ii), #3(a)(i), (ii), (b)(i), (ii), (iii), (iv) and (c)(i) and (ii) of the Notice of Hearing. With respect to allegations #2(a)(i), (ii), (b)(i), (ii), (iii), (iv) and (c)(i) and (ii), the Panel finds that the Member verbally, physically and emotionally abused Patients [A] and [B]. As to allegations #3(a)(i), (ii), (b)(i), (ii), (iii), (iv) and (c)(i) and (ii), 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 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.

Allegation #1(a)(i) in the Notice of Hearing is supported by paragraphs 4-46 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he yelled at Patient [A], telling him that there was “not an excuse” for his behavior, or words to that effect.

Allegation #1(a)(ii) in the Notice of Hearing is supported by paragraphs 4-46 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he confronted Patient [A] and “bumped” him with his chest.

Allegation #1(b)(i) in the Notice of Hearing is supported by paragraphs 4-46 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he approached Patient [A], who was pacing, yelling and swearing, and told him “I'll drop you right now” and “if you hit me, I’ll hit you back”.

Allegation #1(b)(ii) in the Notice of Hearing is supported by paragraphs 4-46 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he held Patient [A]’s left arm behind his back.

Allegation #1(b)(iii) in the Notice of Hearing is supported by paragraphs 4-46 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he pulled Patient [A] backwards down to the ground and pushed him back to the ground after he made several attempts to escape from the Member’s hold.

Allegation #1(b)(iv) in the Notice of Hearing is supported by paragraphs 4-46 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he held Patient [A]’s left arm behind his back, rolled him onto his side, facing the wall and pinned him between the floor and the wall by placing his knee against Patient [A]’s back and applying his body weight to Patient [A]. The Member removed his knee from Patient [A]’s back after approximately 45 seconds.

Allegation #1(c)(i) in the Notice of Hearing is supported by paragraphs 4-46 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he grabbed Patient [B]’s wrists and crossed her arms in front of her chest.

Allegation #1(c)(ii) in the Notice of Hearing is supported by paragraphs 4-46 in the Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he pushed Patient [B] down the hallway towards her room. Patient [B] fell to the ground when the Member pushed her towards the doorway and then used his foot to push her through the doorway into her room.

The Member’s conduct breached the Code of Conduct Standard when he was not advocating or promoting the well being of his patient. The Member did not respect the dignity of his patient and did not provide compassionate care in the way he treated his patient. The Member did not collaborate with his team members when he used language such as “back off”.

The Member breached the Professional Standards as his practice was not consistent with this standard. He did not role model professional standards in the way he treated his patient and it was not demonstrated in his interpersonal skills.

The Member breached the Therapeutic Nurse Client Relationship Standard when there was evidence of his misuse of power. The Member violated respect of his patient [A], and his actions caused physical and emotional harm. The Member used intimidation, inappropriate voice, hit his patient, and used force during interactions with his patient.

Allegation #2(a)(i) in the Notice of Hearing is supported by paragraphs 4-45 and 47 in the Agreed Statement of Facts. The Member admitted that he verbally and emotionally abused Patient [A] when he yelled at him, telling him that there was “not an excuse” for his behavior, or words to that effect.

Allegation #2(a)(ii) in the Notice of Hearing is supported by paragraphs 4-45 and 47 in the Agreed Statement of Facts. The Member admitted that he physically and emotionally abused Patient [A] when he confronted him and “bumped” him with his chest.

Allegation #2(b)(i) in the Notice of Hearing is supported by paragraphs 4-45 and 47 in the Agreed Statement of Facts. The Member admitted that he verbally and emotionally abused Patient [A] when he approached Patient [A], who was pacing, yelling and swearing, and told him “I'll drop you right now” and “if you hit me, I’ll hit you back”.

Allegation #2(b)(ii) in the Notice of Hearing is supported by paragraphs 4-45 and 47 in the Agreed Statement of Facts. The Member admitted that he physically and emotionally abused Patient [A] when he held his left arm behind his back.

Allegation #2(b)(iii) in the Notice of Hearing is supported by paragraphs 4-45 and 47 in the Agreed Statement of Facts. The Member admitted that he physically and emotionally abused Patient [A] when he pulled him backwards down to the ground and pushed him back to the ground after he made several attempts to escape from the Member’s hold.

Allegation #2(b)(iv) in the Notice of Hearing is supported by paragraphs 4-45 and 47 in the Agreed Statement of Facts. The Member admitted that he physically and emotionally abused Patient [A] when he held Patient [A]’s left arm behind his back, rolled him onto his side, facing the wall and pinned him between the floor and the wall by placing his knee against Patient [A]’s back and applying his body weight to Patient [A]. The Member removed his knee from Patient [A]’s back after approximately 45 seconds.

Allegation #2(c)(i) in the Notice of Hearing is supported by paragraphs 4-45 and 47 in the Agreed Statement of Facts. The Member admitted that he physically and emotionally abused Patient [B] when he grabbed Patient [B]’s wrists and crossed her arms in front of her chest.

Allegation #2(c)(ii) in the Notice of Hearing is supported by paragraphs 4-45 and 47 in the Agreed Statement of Facts. The Member admitted that he physically and emotionally abused Patient [B] when he pushed Patient [B] down the hallway to her room. Patient [B] fell to the ground when the Member pushed her towards the doorway and then used his foot to push her through the doorway into her room.

Allegations #3(a)(i), (ii), (b)(i), (ii), (iii), (iv) and (c)(i) and (ii) in the Notice of Hearing are supported by paragraphs 4-45 and 48 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in contravening the Code of Conduct, the Professional Standards and the Therapeutic Nurse-Client Relationship Standard (“TNCR Standard”). The Member knew or ought to have known that his conduct was unacceptable and in disregard of his professional obligations when he used inappropriate language and physically “bumped” Patient [A] with his chest, grabbed and pushed Patient [A] and Patient [B] and restrained Patient [A] on the floor. The Member’s interaction with his colleagues was unprofessional as, when he was asked to stop pushing and yelling at Patient [A] and use GPA techniques instead, the Member yelled at his colleague “my patient, back off”.

The Panel also finds that the Member’s conduct was dishonourable and that it demonstrated an element of moral failing. The Member knew or ought to have known that his actions toward Patient [A] and Patient [B] were not acceptable and fell well below the standards expected of a nurse. The Member’s conduct failed to meet and maintain a therapeutic nurse-client relationship and was verbally, physically and emotionally abusive.

Penalty

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

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

2. Directing the Executive Director to suspend the Member’s certificate of registration for 3 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.

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 that this Order becomes final. 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 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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. Therapeutic Nurse-Client Relationship;

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:

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;

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:

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;

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:

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;

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:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. 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 were made by College Counsel.

The aggravating factors in this case were:

• The Member’s misconduct was serious as it involved multiple incidents with very vulnerable patients;

• The Member used inappropriate language, grabbed patients' arms and wrists and restrained a patient; and

• This type of conduct and treatment caused a risk of harm to patients and the Member’s conduct was found to be physical, verbal and emotional abuse.

The mitigating factors in this case were:

• The Member has no prior discipline history with the College;

• The Member has saved the College time and resources by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College;

• The Member is a long standing member of the College;

• The Member is accountable and remorseful for his conduct, had no intention of harm and has reflected on his behavior.

College Counsel submitted to the Panel that the proposed penalty provides for both specific and general deterrence, as well as remediation and rehabilitation. The oral reprimand and the 3-month suspension of the Member’s certificate of registration provides for specific deterrence ensuring the Member does not reoffend in the same way.

The 3-month suspension of the Member’s certificate of registration provides for general deterrence, which sends a signal to other members of the profession about what kind of penalty they can expect for this kind of conduct.

Remediation and rehabilitation are met through the terms, conditions and limitations which add self and guided reflection with a minimum of 2 meetings with a Regulatory Expert that will focus the Member’s attention on the standards and reporting back to the College on how that went, along with 12 months of employer notification, which aims at public confidence and protecting the public. The employer will be attuned to the issues arising from this case for some time.

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. Agustin (Discipline Committee, January 2019 ): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member spoke to the patient in a raised and angry voice and used inappropriate language. The member struck the patient in the face with a slipper. The penalty included an oral reprimand, a 4-month suspension of the member’s certificate of registration, 2 meetings with a Nursing Expert and 18 months of employer notification, which is similar to the penalty proposed in the case before this Panel with the only difference being the 4-month suspension of the member’s certificate of registration, related to the patient being struck in the face with a slipper.

CNO v. Farah (Discipline Committee, July 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member restrained a patient with a bed sheet. The penalty included an oral reprimand, a 2-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert and 12 months of employer notification, which is similar to the penalty proposed in the case before this Panel with the only difference being the 2-month suspension of the member’s certificate of registration. College Counsel submitted that there is a difference in penalties because there were no findings of abuse in this case and there is a different level of severity in this misconduct.

CNO v. Paraon (Discipline Committee, October 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member restrained the patient without a clinical order by tying both of the patient’s elbows to the wheelchair armrests and failed to appropriately monitor the patient while restrained. 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, which is similar to the penalty proposed in the case before this Panel.

Submissions were made by the Member’s Counsel.

The Member’s Counsel reviewed the principles concerning Joint Submissions on Order and submitted that it was negotiated in good faith and agreed with College Counsel that this is a fair penalty consistent with case law. The Member entered into and signed an Agreed Statement of Facts. The Member is a long standing member. The Member admits that he contravened the standards of practice of the profession and he accepts responsibility that he breached the Code of Conduct, Professional Standards and the Therapeutic Nurse Client Relationship standard. The Member admits that he misused his power in his role. The Member admits professional misconduct in particular that his conduct was dishonourable and unprofessional.

Penalty Decision

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

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

2. The Executive Director is directed to suspend the Member’s certificate of registration for 3 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.

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 that this Order becomes final. 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 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:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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. Therapeutic Nurse-Client Relationship;

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:

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;

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:

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;

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:

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;

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:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. 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.

The penalty provides for specific deterrence through the 3-month suspension of the Member’s certificate of registration. As well, the oral reprimand will assist the Member in gaining a greater understanding of how his actions are perceived by both the profession and the public.

The penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration. This sends a clear message to the profession that the failure to meet one’s professional obligations can result in serious disciplinary sanctions. Furthermore, the terms, conditions and limitations on the Member’s certificate of registration indicate to the membership, and the public that this type of behaviour is taken seriously by the College and the Discipline Committee. It also sends a strong message that this profession is capable of governing itself.

The penalty provides for remediation and rehabilitation through a minimum of 2 meetings with a Regulatory Expert and the review of the College’s publications. These requirements will help deepen the Member’s understanding of his misconduct and will help ensure that this conduct is not repeated.

Overall, the public is protected through the 12 months of employer notification, which will provide additional oversight on the Member’s practice.

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, Morgan Krauter, NP, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.