College of Nurses of Ontario v. Barnett, 2024 CanLII 142098

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Ramona Dunn, RN Member Carly Hourigan Public Member

BETWEEN:

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

• and -

ERIC BARNETT Registration No. IG01988 NO REPRESENTATION for Eric Barnett

PATRICIA HARPER Independent Legal Counsel

Heard: November 7, 2024, via videoconference

DECISION AND REASONS ON PENALTY

Publication Bans

By Order of the Discipline Panel dated December 20, 2023, 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 Eric Barnett.

By Order of the Discipline Panel dated December 20, 2023, pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing the public disclosure of Exhibits #5 and #7 presented in the Discipline hearing of Eric Barnett, including a ban on the publication or broadcasting of this information.

In its Decision and Reasons on Liability released on July 12, 2024, this panel of the Discipline Committee (the “Panel”) made findings of professional misconduct against Eric Barnett (the “Member”). In particular, the Panel found that the Member committed acts of professional misconduct as alleged in paragraphs #1(a), (b), #2(a), (b), #3(a), #4(a), (b) and (c) in the Notice of Hearing. As to allegations #4(a), (b) and (c), the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

The Panel reconvened on November 7, 2024, via videoconference for the penalty hearing. The Panel’s decision and reasons on penalty are set out below.

Penalty Submissions

College Counsel made the following submissions on the appropriate penalty in this case.

In making an order on penalty, College Counsel submitted that the Panel must consider three interests: those of the public, the profession and the Member himself. The goals of penalty are specific and general deterrence, remediation and rehabilitation, and the maintenance of the College’s ability to regulate its members, and public protection.

The College submitted that specific deterrence is to deter this specific Member from repeating this type of conduct, while general deterrence serves to demonstrate to other members of the nursing profession that this type of conduct will not be tolerated.

The College requested an order which included:

• An oral reprimand;
• A six-month suspension of the Member’s certificate of registration, effective from the date the Member obtains an active certificate of registration in a practicing class;
• A requirement that the Member attend at least two meeting with a Regulatory Expert;
• Employer notification for 18 months; and
• A restriction on independent practice for 18 months.

College Counsel submitted that the aggravating factors in this case were:

• The Member was in a position of power while caring for vulnerable patients on a Mental Health Unit;
• The Member's conduct was repeated, with two separate incidents of abuse of two different patients;
• The Member has failed to participate in the disciplinary process, putting the College to the cost and time of prosecuting this case on a contested basis; and
• The Member has failed to take any accountability for his actions and has demonstrated a complete disregard for the College’s regulatory process.

The College emphasized that the Member failed to engage in the disciplinary process at all. When individuals register with the College as nurses, they take on the responsibility of being a member of a regulated profession that has been entrusted with the ability to regulate itself. When members decline to participate in this process, they demonstrate a disregard for the Panel’s authority and ability for the profession to regulate itself.

The only mitigating factor in this case was that the Member has no prior disciplinary history with the College.

The proposed penalty of a six-month suspension of the Member’s certificate of registration serves as general deterrence and signals to the profession that this type of conduct is taken seriously and will not be tolerated.

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

The goals of remediation and rehabilitation and public protection are met if the Member decides to resume the practice of nursing, through the minimum of two meetings with a Regulatory Expert, which gives the Member an opportunity for reflection.

Overall, the public is protected through the 18 months of employer notification, which will provide public protection because of the increased employer awareness and understanding of the Member’s past, as well as the restriction on independent practice for 18 months after his employment begins. Employers can supervise and be aware of any issues and take steps to intervene if necessary.

All these components are directed to the ultimate protection of the public and are a fair balance of deterrence and remediation.

The College’s proposed penalty balances and reflects the seriousness of the conduct, the goals of penalty and is in the interests of the public and of the profession.

College Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty falls within the range of similar cases before the Discipline Committee:

CNO v. Wreaks (Discipline Committee, 2017): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member failed to meet the standards of practice when she used excessive force while restraining a client and physically and emotionally abused a client. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, two meetings with a Nursing Expert and 12 months of employer notification.

CNO v. Kaley (Discipline Committee, 2020): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member failed to meet the standards of practice when he used improper restraint techniques by pushing his body weight onto a patient and holding him down, forcefully grabbing and pushing him onto the bed. The panel found that the member physically, verbally and emotionally abused the patient. The penalty included an oral reprimand, a six-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert, 18 months of employer notification and 18 months of no independent practice in the community.

CNO v. Ebuzo (Discipline Committee, 2021): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member failed to meet the standards of practice when he was verbally aggressive, made threatening gestures and failed to utilize proper restraint techniques with a patient. The member placed his knee on the patient's back and neck. The panel found that the member physically abused the patient and breached the standards of practice. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, a minimum of two meetings with a Regulatory Expert and 18 months of employer notification.

CNO v. Gaudette (Discipline Committee, 2023): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member failed to meet the standards of practice when he pulled a patient to the ground with his arms around the patient's neck/throat and his other hand on the patient’s head for approximately seven minutes. Other incidents included lunging at a patient, pushing him towards a wall, and placing his hands on the front of the patient’s throat, swinging a patient’s chair around for no clinical purpose without considering the risk of the patient falling to the ground, and pushing the patient as he was leaving the room. The penalty included an oral reprimand, a seven-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert, 12 months of employer notification and 12 months of no independent practice in the community.

Penalty Decision

The Panel makes the following order as to penalty:

1. Eric Barnett (the “Member”) is required 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 6 months. This suspension shall take effect from the date the Member obtains an active certificate of registration in a practicing class and shall continue to run without interruption as long as the Member remains in a practicing class.

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

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

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

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

1. the Panel’s Order,

2. the Notice of Hearing, and

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

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

1. Code of Conduct,

2. Therapeutic Nurse-Client Relationship Standard, and

3. Documentation Standard;

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 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 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, and

3. 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; and

c) The Member shall not practice independently in the community for a period of 18 months from the date the Member returns to the practice of nursing.

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

Reasons for Penalty Decision

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

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

The penalty provides for specific deterrence through the oral reprimand and the six-month suspension of the Member’s certificate of registration, which will deter the Member from engaging in similar conduct should he return to practice.

The penalty provides for general deterrence through the lengthy six-month suspension of the Member’s certificate of registration, which sends a clear message to the membership that this type of conduct is not acceptable and will result in a severe penalty.

The penalty provides for remediation and rehabilitation through a minimum of two meetings with the Regulatory Expert, allowing the Member to reflect on his professional accountability and requirements.

Overall, the public is protected through the 18 months of employer notification and the 18 months of no independent practice in the community, which will allow all future employers to be vigilant if or when the Member returns to practice.

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

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