College of Nurses of Ontario v. Fermate Joseph, 2024 ONCNO 139306

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tanya Dion, RN Chairperson Lynda Carpenter Public Member Jeffrey Ko, RN Member Mary MacNeil, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) HAILEY BRUCKNER for ) College of Nurses of Ontario

• and - ) FERMATE JOSEPH ) KIM PATENAUDE for Registration No. 0461533 ) Fermate Joseph ) PATRICIA HARPER ) Independent Legal Counsel ) Heard: August 20, 2024 via videoconference

DECISION AND REASONS

Publication Ban

By Order of the Discipline Panel dated August 20, 2024, pursuant to subsection s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, no one shall publish or broadcast 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 Fermate Joseph.

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on August 20, 2024, by videoconference. As the Member’s preferred language is French, a French interpreter attended the hearing to assist the Member.

The Allegations

The allegations against Fermate Joseph (the “Member”) as stated in the Notice of Hearing dated June 18, 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, while employed as a Registered Nurse (“RN”) at Extendicare Medex in Ottawa, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:

a. You failed to provide adequate care to Patient [A] on or about the following dates:

i. September 1, 2018;

ii. September 2, 2018;

iii. September 3, 2018;

iv. September 4, 2018; and/or

v. September 5, 2018;

b. You failed to document care provided to Patient [A] on or about the following dates:

i. September 1, 2018;

ii. September 2, 2018;

iii. September 3, 2018;

iv. September 4, 2018; and/or

v. September 5, 2018;

c. You failed to document care provided to Patient [B] on or about September 3, 2018;

d. You failed to document Patient [C]’s behaviour as required in August 2018; and/or

e. You failed to escalate Patient [D]’s fall (or possible fall) to a physician as required on or around August 17, 2018; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(13) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse (“RN”) at Extendicare Medex in Ottawa, Ontario (the “Facility”), you failed to keep records as required, as follows:

a. You failed to document care provided to Patient [A] on or about the following dates:

i. September 1, 2018;

ii. September 2, 2018;

iii. September 3, 2018;

iv. September 4, 2018; and/or

v. September 5, 2018;

b. You failed to document care provided to Patient [B] on or about September 3, 2018; and/or

c. You failed to document Patient [C]’s behaviour as required in August 2018; and/or

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

a. You failed to provide adequate care to Patient [A] on or about the following dates:

i. September 1, 2018;

ii. September 2, 2018;

iii. September 3, 2018;

iv. September 4, 2018; and/or

v. September 5, 2018;

b. You failed to document care provided to Patient [A] on or about the following dates:

i. September 1, 2018;

ii. September 2, 2018;

iii. September 3, 2018;

iv. September 4, 2018; and/or

v. September 5, 2018;

c. You failed to document care provided to Patient [B] on or about September 3, 2018;

d. You failed to document Patient [C]’s behaviour as required in August 2018; and/or

e. You failed to escalate Patient [D]’s fall (or possible fall) to a physician as required on or around August 17, 2018.

Member’s Plea

The Member admitted all the allegations set out in paragraphs 1(a)(i), 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(a)(v), 1(b)(i), 1(b)(ii), 1(b)(iii), 1(b)(iv), 1(b)(v), 1(c), 1(d), 1(e), 2(a)(i), 2(a)(ii), 2(a)(iii), 2(a)(iv), 2(a)(v), 2(b), 2(c), 3(a)(i), 3(a)(ii), 3(a)(iii), 3(a)(iv), 3(a)(v), 3(b)(i), 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v), 3(c), 3(d) and 3(e) 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 mentioned therein, as follows:

THE MEMBER

1. Fermate Joseph (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on May 6, 2004.

2. The Member was employed as a part-time RN at Extendicare Medex, a Long-Term Care Facility, in Ottawa, Ontario (the “Facility”) from May 27, 2011 until the Facility terminated her employment on September 20, 2018. The Member worked night shifts from 22:30 to 06:30 hours.

PRIOR HISTORY

3. In 2011, the Inquiry, Complaints and Report Committee (“ICRC”) issued the Member a written caution following receipt of a complaint regarding concerns about the Member’s practice, and in particular the care she provided and documentation she made after a patient’s fall.

4. In 2012, following receipt of a report regarding concerns about the Member’s practice, including but not limited to, the care the Member provided to a patient after a fall and her assessment and care of another patient, the ICRC issued the Member a letter of caution and required the Member to complete remedial activities with respect to the following CNO publications: Professional Standards, Therapeutic Nurse-Client Relationship and Conflict Management and Prevention.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Member failed to provide adequate care and/or document care provided to Patient A

5. The Member failed to provide adequate care and failed to document care provided to [ ] (“Patient A”) from September 1 to 5, 2018.

6. Patient A was 79 years old at the time of the incidents. Patient A was diagnosed with comorbidities including, but not limited to, heart failure, chronic kidney disease, dementia and diabetes.

7. Between September 1 to 5, 2018, Patient A was on antibiotics, subject to symptom surveillance, and was line listed because she had congestion and a suspected bacterial lung infection and/or pneumonia.

8. Symptom surveillance is a measure implemented to ensure that patients will be continually monitored for signs of an infection, and line listing a patient is meant to ensure that infections do not spread throughout the Facility. A critical component of this monitoring is assessing the patient regularly and documenting all assessments.

9. Once a patient was line listed for symptom surveillance, the Facility’s policy in September 2018 was that the patient had to be assessed by an RN on every shift - day, evening, and night. These assessments included taking vital signs regularly, performing lung auscultations, assessing the patient’s symptoms, and communicating with Personal Support Workers (“PSW”) to determine whether there had been any change in the patient's status.

10. Where a patient was on symptom surveillance, the Facility required that nurses complete and document assessments for that patient every shift until the patient returned to stable status.

11. The RN on each shift responsible for a patient under symptom surveillance was required to add the patient’s name to the Symptom Surveillance Form for the floor and document whether the patient had any of the symptoms indicated on the form or any other symptoms. Completion of this form every shift was mandatory, regardless of whether there had been a change in the patient’s condition. In addition, the Facility required nurses to make progress notes documenting information entered into the Symptom Surveillance Form for a patient in their chart.

12. The Member was assigned to care for Patient A during the night shift from September 1 to 5, 2018. The Member failed both to regularly assess Patient A and to provide required care to the Patient during these shifts. She also failed to document her assessments and care (if any) in an accurate, timely, and complete manner.

13. The Member did not list Patient A on the Symptom Surveillance Form or document whether she had symptoms on September 1, 2, 3, or 5, 2018. The Member listed Patient A’s name on the Symptom Surveillance Form on September 4, 2018, but did not otherwise fill out any information on the form.

14. The Member did not adequately assess Patient A from September 1 to 5, 2018, nor did she document any assessments she did conduct. The Member also did not complete any progress notes for Patient A from September 1 to 5, 2018 that indicate that she assessed Patient A, took vital signs, performed lung auscultations, or communicated with the PSWs to determine if there had been any changes in Patient A’s status.

15. There is also no indication in the 24-Hour Unit Reports from the Facility for September 1 to 5, 2018 that Patient A was assessed on the night shift, other than a notation on the September 4, 2018 24-Hour Unit Report that states Patient A was “in isolation no cough noted” and a notation on the September 5, 2018 24-Hour Unit Report that states Patient A had gone to the hospital.

16. The Member did not document or provide required care to Patient A from September 1 to 5, 2018. There is no documentation that the Member provided required care to Patient A from September 1 to 3, 2018. With respect to September 4 and 5, 2018, there are only two limited notes concerning care provided to Patient A including:

• a brief note from September 4, 2018 on the 24-Hour Unit Report that Patient A was in isolation and no cough was noted; and

• a progress note from September 5, 2018 documenting an incident that resulted in Patient A being taken to the hospital.

17. The Member did not fully assess Patient A, take Patient A’s vital signs, performed lung auscultations, or communicate with the PSWs regarding any change in Patient A’s status from September 1 to 5, 2018. She also did not document performing any of these tasks in Patient A’s medical records.

18. Further, the Member did not respond appropriately when Patient A was in distress on September 5, 2018. On September 5, 2018, at approximately 02:45 hours, Patient A was yelling out. The Member did not conduct a full medical assessment of Patient A at this time.

19. Less than an hour later, at approximately 03:35 hours, Patient A called out again. On entering Patient A’s room, the Member found that Patient A was exhibiting signs of acute delirium and congestion. The Member attempted to give Patient A Dilaudid and orange juice, but Patient A was unable to swallow the medication or drink the orange juice. The Member measured Patient A’s vital signs and blood sugar and discovered that Patient A had critically low blood sugar (2.0). At that time, the Member called 911.

20. Patient A was taken to the Ottawa Civic Hospital on September 5, 2018, and passed away from sepsis a few hours after admission.

The Member failed to document care provided to Patient B

21. The Member failed to document care provided to [ ] (“Patient B”) on or about September 3, 2018.

22. Patient B was 92 years old at the time of the incident. Patient B was diagnosed with comorbidities including, but not limited to, acute renal failure, diabetes, and anxiety. Patient B had also recently undergone cholecystectomy and was experiencing chronic diarrhea.

23. On September 3, 2018, the Member found Patient B incontinent of a large amount of diarrhea, which was on Patient B’s bed sheets and floor.

24. The Member did not adequately document Patient B’s condition or her response. The Member failed to document an assessment of Patient B. In fact, there are no progress notes in the medical record for Patient B written by the Member on September 3, 2018 at all.

25. The only notes regarding this incident are in the 24-Hour Report, in which the Member wrote only: “inc of stool in her bed and the floor” and in the Elimination/Continence/Toileting Form, where it was noted that Patient B was both continent and incontinent at 02:00 and 05:57 hours.

26. If the Member were to testify, she would state that she directed a PSW to clean Patient B and Patient B’s bed; however, the PSW did not respond within the first 30 minutes of this direction and yelled at the Member when she followed-up about this direction. The Member acknowledges and admits that she did not document any interaction with a PSW concerning Patient B’s incontinence on September 3, 2018, although she was required to do so.

The Member failed to document Patient C’s behaviour as required

27. The Member failed to document the behaviour of [ ] (“Patient C”) as required in August 2018.

28. Patient C was 80 years old at the time of the incident. Patient C was diagnosed with Alzheimer’s disease and was being treated by physicians at the Royal Ottawa Hospital with a view to developing strategies to assist in reducing extreme aggressive behaviours. Patient C had been put on a behaviour monitoring plan to that end.

29. Where patients are on behaviour monitoring plans, the Facility required nurses to document their behaviour on every shift as of August 2018. The Facility’s Mental Health Assessment and Support Policy further provided that progress notes should be used to document a patient’s condition, status, assessment, and response to treatment. These progress notes were required even if there were no notable incidents or developments as it is important to document the absence of incidents for the purposes of behaviour monitoring and care plans.

30. In August 2018, the Member worked at least 14 night shifts. She was responsible for the care of Patient C during those shifts.

31. The Member did not document Patient C’s behaviour as required on these shifts. Between August 1, 2018 and September 1, 2018, the Member only wrote six progress notes in Patient C’s medical record. On each of those occasions, the Member documented that Patient C slept all night or had a good night and that no behaviour was noted.

32. The Member failed to document Patient C’s behaviour on any of the other occasions where Patient C was under her care in August 2018.

The Member failed to escalate Patient D’s fall as required

33. The Member failed to escalate a fall (or possible fall) experienced by [ ] (“Patient D”) to a physician as required on or around August 17, 2018.

34. Patient D was 71 years old at the time of the incident. Patient D was diagnosed with comorbidities including, but not limited to, dementia, diabetes and schizophrenia.

35. On August 17, 2018, the Member found Patient D on the floor on her hands and knees trying to clean up urine at approximately 01:45 hours. The Member documented in a subsequent progress note that Patient D was “confused not acting as usual” at this time.

36. If the Member were to testify, she would say that Patient D told her she had not fallen, repeating “no fall”.

37. The Facility’s Falls Prevention and Management Program categorizes instances where a patient is found on the floor, and it is unclear what happened, as falls. The Member agrees and acknowledges that she found Patient D on the floor, and it was unclear what had happened. Under this program, on finding Patient D on the floor, the Member was required to notify the physician/Nurse Practitioner (“NP”) that Patient D had a fall.

38. The Member failed to inform Patient D’s physician or NP about Patient D’s fall as required. She did not follow the Facility’s Falls Prevention and Management Program in response to Patient D’s fall.

CNO STANDARDS

Professional Standards

39. 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.

40. CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the 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:

• providing, facilitating, advocating and promoting the best possible care for [patients];

• advocating on behalf of [patients];

• seeking assistance appropriately and in a timely manner;

• ensuring practice is consistent with CNO’s standards of practice and guidelines as well as legislation;

• taking action in situations in which [patient] safety and well-being are compromised; and

• taking responsibility for errors when they occur and taking appropriate action to maintain [patient] safety.

41. CNO’s Professional Standards provides, in relation to the knowledge standard, that each nurse possesses, through basic education and continuing learning, knowledge relevant to their professional practice. Nurses demonstrate this standard by understanding the knowledge required to meet the needs of complex patients.

42. CNO’s Professional Standards further provides, in relation to the knowledge application standard, that each nurse continually improves the application of professional knowledge. Nurses demonstrate this standard by:

• identifying/recognizing abnormal or unexpected [patient] responses and taking action appropriately;

• recognizing limits of practice and consulting appropriately; and

• identifying and addressing practice-related issues.

43. In addition, CNO’s Professional Standards provides, in relation to the leadership standard, that leadership requires self-knowledge (understanding one’s beliefs and values and being aware of how one’s behaviour affects others), respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. Nurses demonstrate their leadership by providing, facilitating and promoting the best possible care/service to the public. Nurses also demonstrate this 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].

44. Attached as Exhibit “A” are copies of CNO’s Professional Standards that were in force at the time of the incidents and have since been retired.

Documentation

45. CNO’s Documentation Standard explains the regulatory and legislative requirements for nursing documentation. It includes three standard statements and indicators pertaining to communication, accountability and security which describe a nurse’s accountabilities when documenting.

46. CNO’s Documentation standard provides, in relation to communication, that nurses ensure that documentation presents an accurate, clear and comprehensive picture of the patient’s needs, the nurse’s interventions and the patient’s outcomes. Nurses meet the standard by:

• ensuring documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessment, planning, intervention (independent and collaborative) and evaluation;

• documenting both objective and subjective data.

• ensuring that the plan of care is clear, current, relevant and individualized to meet the [patient’s] needs and wishes; and

• documenting significant communication with family members/significant others, substitute decision-makers and other care providers.

47. CNO’s Documentation standard further provides, in relation to accountability, that nurses are accountable for ensuring their documentation of patient care is accurate, timely and complete. Nurses meet the standards by:

• documenting in a timely manner and completing documentation during, or as soon as possible after, the care or event; and

• documenting the date and time that care was provided and when it was recorded;

• documenting in chronological order;

• ensuring that documentation is completed by the individual who performed the action or observed the event, except when there is a designated recorder, who must sign and indicate the circumstances; and

• clearly identifying the individual performing the assessment and/or intervention when documenting.

48. CNO’s Documentation standard also provides, in relation to security, that nurses safeguard patient health information by maintaining confidentiality and acting in accordance with information retention and destruction policies and procedures that are consistent with the standard(s) and legislation. Nurses meet the standard by ensuring that relevant patient care information is captured in a permanent record.

49. Attached as Exhibit “B” is a copy of CNO’s Documentation Standard which was in force at the time of the incidents.

50. The Member admits and acknowledges that she contravened CNO’s Professional Standards and Documentation Standard when she failed to:

• provide adequate care to Patient A on or about September 1, 2, 3, 4, and 5, 2018;

• document care provided to Patient A on or about September 1, 2, 3, 4, and 5, 2018;

• document care provided to Patient B on or about September 3, 2018;

• document Patient C’s behaviour as required in August 2018; and

• escalate Patient D’s fall (or possible fall) to a physician as required on or around August 17, 2018.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

51. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a)(i), 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(a)(v), 1(b)(i), 1(b)(ii), 1(b)(iii), 1(b)(iv), 1(b)(v), 1(c), 1(d) and 1(e) 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 5 to 50 above.

52. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a)(i), 2(a)(ii), 2(a)(iii), 2(a)(iv), 2(a)(v), 2(b) and 2(c) of the Notice of Hearing in that she failed to keep records as required, as described in paragraphs 5 to 32 and 45 to 50 above.

53. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a)(i), 3(a)(ii), 3(a)(iii), 3(a)(iv), 3(a)(v), 3(b)(i), 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v), 3(c), 3(d) and 3(e) of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 5 to 50 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), 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(a)(v), 1(b)(i), 1(b)(ii), 1(b)(iii), 1(b)(iv), 1(b)(v), 1(c), 1(d), 1(e), 2(a)(i), 2(a)(ii), 2(a)(iii), 2(a)(iv), 2(a)(v), 2(b), 2(c), 3(a)(i), 3(a)(ii), 3(a)(iii), 3(a)(iv), 3(a)(v), 3(b)(i), 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v), 3(c), 3(d) and 3(e) of the Notice of Hearing. As to allegation 3(a)(i), 3(a)(ii), 3(a)(iii), 3(a)(iv), 3(a)(v), 3(b)(i), 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v), 3(c), 3(d) and 3(e) 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.

Allegations #1(a)(i), 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(a)(v), 1(b)(i), 1(b)(ii), 1(b)(iii), 1(b)(iv), 1(b)(v), 1(c), 1(d) and 1(e) in the Notice of Hearing are supported by paragraphs 5 - 51 in the Agreed Statement of Facts. The allegations relate to four different patients the Member cared for at Extendicare Medex (“the Facility”) during August and September 2018.

Patient [A] was a 79-year-old woman diagnosed with multiple comorbidities and receiving antibiotics for congestion and a suspected lung infection. The Facility had clear guidelines for symptom surveillance and documentation when patients presented with an infection. The guidelines required that the Member assess and document on the Facility Symptom Surveillance Form and the progress notes on each shift to determine any changes in Patient [A]’s status. The Member failed to assess and document Patient [A]’s care as required on September 1, 2, 3, 4 and 5, 2018. On September 5, 2018, when Patient [A] called out in distress, the Member also failed to do a full medical assessment of Patient [A]. By failing to appropriately assess Patient [A] during her shifts on September 1 - 5, 2018, the Member failed to apply the knowledge she should have had for the care of patients with complex comorbidities and exhibiting acute symptoms of infection and/or distress. Failing to apply her nursing knowledge and provide the best care possible was a breach of the Professional Standards. Failing to document care for Patient [A] on September 1, 2, and 3, 2018 was also a breach of the Documentation Standard.

Patient [D] was a vulnerable and elderly patient with serious comorbidities including dementia. On August 17, 2018, Patient [D] experienced a fall or possible fall. When a patient is found on the floor and it is unclear what happened, the Facility treats the situation as a fall and requires a physician or Nurse Practitioner to be notified. When the Member found [Patient D] on the floor, she failed to follow the Facility guidelines and seek assistance as required, breaching the Professional Standards which required the Member to act where a patient’s safety and well-being are compromised.

Patient [B] was 92 years old and incontinent of diarrhea on September 3, 2018. The Member interacted with a Facility PSW about the care that Patient [B] needed but there was a delay in care and the PSW yelled at the Member when the Member followed up 30 minutes later. However, the Member failed to document the interaction, breaching the Documentation Standard which requires nurses to document significant communication with care providers.

In August 2018, Patient [C], an 80-year-old patient who had been diagnosed with Alzheimer’s disease, was placed on a behaviour monitoring plan to help reduce extreme aggressive behaviours. When placed on a behaviour monitoring plan, the Facility required nurses to document the patient’s behavior every shift. The Member was responsible for Patient [C]’s care for the 14 night shifts she worked that month but wrote only six progress notes. The lack of assessment and documentation was a breach of the Facility requirement to document [Patient C]’s behavior every shift. The Member also breached the Documentation Standard requiring nurses to ensure the patient’s record accurately reflects patient assessments.

The Panel found the Member breached the Professional Standards and Documentation Standard multiple times in caring for these four patients as alleged in allegation #1.

Allegations #2(a)(i), 2(a)(ii), 2(a)(iii), 2(a)(iv), 2(a)(v), 2(b), and 2(c) in the Notice of Hearing are supported by paragraphs 5 – 32, 45 - 50 and 52 in the Agreed Statement of Facts. As set out above, the Member failed on multiple occasions in August and September 2018 to document care and keep appropriate records for Patient [A], Patient [B] and Patient [C].

Allegations #3(a)(i), 3(a)(ii), 3(a)(iii), 3(a)(iv), 3(a)(v), 3(b)(i), 3(b)(ii), 3(b)(iii), 3(b)(iv), 3(b)(v), 3(c), 3(d) and 3(e) are supported by paragraphs 5 – 38 and 53 of the Agreed Statement of Facts. The Panel finds that the Member’s conduct was relevant to the practice of nursing as she provided nursing care to the four patients at the Facility in August and September 2018. In failing to adequately assess and document her care, the Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional. The Panel noted the Member had previously received a caution from the ICRC about her nursing care and found her repeated failure in August and September 2018 to meet her professional standards was unacceptable.

Penalty

College Counsel and the Member’s Counsel advised that a Joint Submission on Order had been agreed upon and requested that the Panel make the following order which reads, as edited:

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. Documentation;

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

vii. If the Member does not comply with any 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 18 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. Only practice nursing for an employer who agrees to, and does, forward a report to CNO within 14 days of the commencement or resumption of the Member’s employment in any nursing position, confirming:

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

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, and

3. that they agree to perform 4 random spot audits of the Member’s practice at the following intervals and provide a report to CNO regarding the Member’s practice after each audit:

a. the first audit shall take place within 3 months from the date the Member begins or resumes employment with the employer,

b. the second audit shall take place within 6 months from the date the Member begins or resumes employment with the employer,

c. the third audit shall take place within 9 months from the date the Member begins or resumes employment with the employer, and

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

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

1. reviewing a random selection of at least 5 of the Member’s charts to ensure they meet both CNO and employer standards.

2. 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.

College Submissions on Penalty

College Counsel made submissions which included the following.

College Counsel submitted that the goal of penalty is to protect the public and enhance the public’s confidence in the College’s ability to regulate nurses. The proposed penalty order achieves specific and general deterrence through the oral reprimand and the 3-month suspension on the Member’s certificate of registration. The oral reprimand will assist the Member in gaining a greater understanding of how her actions are perceived by both the profession and the public and will thereby protect the public. College Counsel submitted that the suspension sends a strong signal to the Member and other members of the profession that this kind of behavior is unacceptable thus ensuring the conduct is not repeated. The public is protected as a result. The elements of remediation and rehabilitation are provided through the meetings with a regulatory expert and a review of the College’s standards. College Counsel submitted the penalty is designed to help the Member learn from her mistakes, gain insight into her conduct and help ensure she is prepared to return to a practice that meets the College’s standards. The public is also protected through the period of employer notification. As a result, all the objectives of the goals of penalty have been met. College Counsel submitted that the proposed penalty also appropriately reflects the aggravating and mitigating factors of the case.

The aggravating factors in the case were:

• The Member ought to have known her conduct was wrong, as she had previously received a caution from the ICRC for similar conduct;

• The Member’s conduct was serious and could have resulted in harm to patients;

• The Member’s conduct brought discredit to the nursing profession; and

• The Member’s conduct demonstrated a disregard for her professional obligations.

The mitigating factors in the case were:

• The Member took responsibility for her actions by admitting her misconduct and entering into an Agreed Statement of Facts and a Joint submission on Order with the College; and

• The Member has no prior discipline findings with CNO.

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

CNO v. Ohiegbomwan (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and Joint Submission on Order. The member failed to appropriately monitor two patients in two different practice settings. With Patient A, the member did not assess a mental health patient for over seven hours which contravened the facility’s policy requiring hourly rounding and assessment of patients on the inpatient mental health unit. With Patient B, the member failed to assess urine output, monitor the patient’s condition and the required documentation. The member also falsified documentation regarding an assessment she did not do. The panel found that the member committed professional misconduct and ordered an oral reprimand, a 3-month suspension of the member’s certificate of registration, 2 meetings with a nursing expert, completion of a nursing course in health assessment, an 18-month employer notification period and 3 random spot audits of the members documentation over a 12-month period. Unlike the member in the Ohiegbomwan case, there is no evidence before this Panel that the Member was dishonest nor that she documented an assessment that she did not do.

CNO v. Valdez (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and Joint Submission on Order. The member failed to document her assessment, planning, intervention, evaluation or treatment plan in respect of her finding that a patient had expiratory wheezes. The member also documented on two occasions that the patient was coherent and on one occasion that the patient was breathing when she had not in fact observed the patient coherent or breathing. The member also altered her documentation with respect to observations of a saline lock and relied on a colleague with respect to the status of the saline lock rather than completing an assessment herself. The member also failed to properly administer medications to the patient, failed to complete a vital signs sign check every four hours as required by a physician’s order and failed to complete visual observations of the patient at required intervals. The panel found the member committed professional misconduct and ordered a similar penalty as what has been proposed to this Panel: an oral reprimand, a 3-month suspension of her certificate of registration, 2 meetings with a regulatory expert to discuss relevant CNO standards, spot audits of the member’s practice and an 18-month employer notification period.

CNO v. Robinson (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts and Joint Submission on Order. The member failed to document the disposal of medication for two patients on more than one occasion. The member also inadequately documented or failed to document care she provided to a patient and documented administering hydromorphone without a witnessing signature and documented administering medications that were inconsistent with when she withdrew and administered them. The member also placed a colleague in a choke hold. In the Robinson case, the panel found the member engaged in professional misconduct and ordered a penalty similar to the penalty proposed in the case before this Panel: an oral reprimand, a 4-month suspension, 2 meetings with a regulatory expert to discuss standards, 18-month employer notification period and random spot audits of the members practice for 12 months). College Counsel submitted that the shorter suspension of the Member’s certificate of registration proposed in the case before this Panel is appropriate. Unlike the member in the Robinson case, the Member in the case before this Panel did not engage in violent behaviour toward colleagues, although she had similar failures with respect to assessment and documentation.

Member’s Submissions on Penalty

The Member’s Counsel submitted that the Member was deeply remorseful regarding her conduct and agreed with the proposed penalty.

Penalty Decision

The Panel accepted the Joint Submission on Order and made the order requested.

Reasons for Penalty Decision

There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Panel concluded that the proposed penalty is not contrary to the public interest and does not bring the administration of justice into disrepute.

The Panel concluded that the proposed penalty is reasonable and in the public interest. It promotes public confidence in the ability of the College to regulate nurses.

The Panel finds that the proposed penalty satisfies the penalty goals of specific and general deterrence, rehabilitation and remediation, and public protection.

The proposed penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration, which conveys to members of the profession that conduct of this nature will have serious consequences.

The proposed penalty provides for specific deterrence through the oral reprimand and the 3-month suspension of the Member’s certificate of registration.

The proposed penalty provides for remediation and rehabilitation through a minimum of 2 meetings with a Regulatory Expert allowing the Member to gain insight and learn from her mistakes. The 18 months of employer notification and 4 random spot audits of the Member's practice once she resumes employment will ensure the public is protected.

Overall, the public is protected because the Member will be provided the opportunity to learn from the terms ordered, members of the profession will be deterred from similar conduct and there will be employer oversight, including random audits on the Member’s return to practice.

The Panel acknowledges that the Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility, which is a mitigating factor.

The penalty is in line with the range of what has been ordered in previous similar cases.

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