College of Nurses of Ontario v. Joy McKenzie, 2024 CanLII 145648

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Lalitha Poonasamy, Public Member Chairperson Tyler Hands, RN Lynn Hall, RN Ahamad Mohammed, RPN

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ALYSHA SHORE and CATHERINE DUNNE for College of Nurses of Ontario

• and -

JOY MCKENZIE Registration No. 07298649 TYLER BOGGS for Joy McKenzie CHRISTOPHER WIRTH, Independent Legal Counsel

Heard: October 1 and 2, 2024, via videoconference

AMENDED DECISION AND REASONS

Publication Ban

By Order of the Discipline Panel dated October 1, 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 names of the patients, or any information that could disclose the identities of the patients, referred to orally or in any documents presented at the Discipline hearing of Joy McKenzie.

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) commencing on October 1, 2024.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(b)(ii) and 3(b)(ii) of the Notice of Hearing dated August 27, 2024. The Panel granted this request. The remaining allegations against Joy McKenzie (the “Member”) 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 at Unity Health Toronto – St. Joseph’s Health Centre in Toronto, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:

a. on or about November 12-13, 2018 and January 3, 2019, you were observed sleeping while on shift;

b. on or around November 13, 2018, you failed to:

i. provide nursing care in a timely manner when Patient [A], who was identified as in need of close observation by her primary nurse during Transfer of Accountability for break, was found naked and urinating on the floor; and/or

ii. [Withdrawn];

c. on, about or between November 12-13, 2018, you failed to ensure that your documentation of patient care was accurate, timely and complete as follows:

i. with respect to Patient [B], you documented an irregular heart rate at 2158 hours but failed to document the intervention undertaken until 0816 hours and failed to indicate that it was a late entry;

ii. with respect to Patient [C], you failed to assess the patient and/or document such an assessment for the first approximately four hours of your shift;

iii. with respect to Patient [E], you failed to assess the patient and/or document such an assessment for the patient until 10 hours into your 12-hour shift;

iv. with respect to Patient [F], you failed to document the Transfer of Accountability until four hours after your shift started and/or your documented assessments of the patient with respect to neurological, skin, and gastrointestinal body systems were incomplete, inconsistent and/or inaccurate; and/or

v. with respect to Patient [D], you failed to assess the patient and/or document such an assessment until approximately seven hours after your shift started; and/or

d. on or around January 2, 2019, you failed to provide appropriate patient care to Patient [G] and put the patient’s safety at risk when you failed to follow the relevant code blue policy;

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(13) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at Unity Health Toronto – St. Joseph’s Health Centre in Toronto, Ontario, you failed to keep records as required when on, about or between November 12-13, 2018, you failed to ensure that your documentation of patient care was accurate, timely and complete as follows:

a. with respect to Patient [B], you documented an irregular heart rate at 2158 hours but failed to document the intervention undertaken until 0816 hours and failed to indicate that it was a late entry;

b. with respect to Patient [C], you failed to assess the patient and/or document such an assessment for the first approximately four hours of your shift;

c. with respect to Patient [E], you failed to assess the patient and/or document such an assessment for the patient until 10 hours into your 12-hour shift;

d. with respect to Patient [F], you failed to document the Transfer of Accountability until four hours after your shift started and/or your documented assessments of the patient with respect to neurological, skin, and gastrointestinal body systems were incomplete, inconsistent and/or inaccurate; and/or

e. with respect to Patient [D], you failed to assess the patient and/or document such an assessment until approximately seven hours after your shift started;

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 you were employed as a Registered Nurse at Unity Health Toronto – St. Joseph’s Health Centre in Toronto, Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows:

a. on or about November 12-13, 2018 and January 3, 2019, you were observed sleeping while on shift;

b. on or around November 13, 2018, you failed to:

i. provide nursing care in a timely manner when Patient [A], who was identified as in need of close observation by her primary nurse during Transfer of Accountability for break, was found naked and urinating on the floor; and/or

ii. [Withdrawn];

c. on, about or between November 12-13, 2018, you failed to ensure that your documentation of patient care was accurate, timely and complete as follows:

i. with respect to Patient [B], you documented an irregular heart rate at 2158 hours but failed to document about the intervention undertaken until 0816 hours and failed to indicate that it was a late entry;

ii. with respect to Patient [C], you failed to assess the patient and/or document such an assessment for the first approximately four hours of your shift;

iii. with respect to Patient [E], you failed to assess the patient and/or document such an assessment for the patient until 10 hours into your 12-hour shift;

iv. with respect to Patient [F], you failed to document the Transfer of Accountability until four hours after your shift started and/or your documented assessments of the patient with respect to neurological, skin, and gastrointestinal body systems were incomplete, inconsistent and/or inaccurate; and/or

v. with respect to Patient [D], you failed to assess the patient and/or document such an assessment until approximately seven hours after your shift started; and/or

d. on or around January 2, 2019, you failed to provide appropriate patient care to Patient [G] and put the patient’s safety at risk when you failed to follow the relevant code blue policy.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a), (b)(i), (c)(i), (ii), (iii), (iv), (v), (d), 2(a), (b), (c), (d), (e) and 3(a), (b)(i), (c)(i), (ii), (iii), (iv), (v) and (d) in the Notice of Hearing. 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 as amended reads, unedited and without exhibits mentioned therein, as follows:

THE MEMBER

1. Joy McKenzie (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse on January 9, 2007. She has no prior history with the CNO but for the incidents described herein.

2. The Member worked at Unity Health Toronto – St. Joseph’s Health Centre (the “Facility”) from May 10, 2012 to February 8, 2019, at which time she was terminated in connection with the incidents described below.

THE FACILITY

3. The Member worked at the Facility as a full-time staff nurse on the Medicine/Oncology unit (the “Unit”).

4. The Unit has 37 beds and provides care to acute, palliative and oncology patients, including elderly patients with dementia and wandering behaviours. The nurse-to-patient ratio on the Unit was 1:5/6 during day shifts and 1:6/7 during night shifts.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Sleeping on Shift

5. The Member was observed by colleagues to be sleeping on shift on at least two occasions on or about November 12-13, 2018, and on January 3, 2019.

6. On November 12-13, 2018, the Member worked the night shift on the Unit. Her shift buddy was a Registered Practical Nurse (“RPN”) (“RPN A”). RPN A observed the Member sitting in a chair at the nursing station with her eyes closed, head tilted back and snoring, for approximately 10 minutes sometime before RPN A’s 0100 break.

7. When RPN A went on her break, she got a coffee and then sat in an area on the Unit where she was out of sight of patients, but could see the Member at the nursing station. RPN A observed that the Member continued to be asleep while RPN A was on her break. RPN A also observed that the Member did not get up from the nursing station for approximately two hours.

8. On January 3, 2019, the Member worked the day shift. The Patient Care Manager observed the Member sleeping at her workstation, with her head resting on her hand, her eyes closed and not moving. The Patient Care Manager stood in front of the Member for a couple of minutes observing her sleeping. The Member did not react or acknowledge the Patient Care Manager’s presence. When an Environmental Services cart passed by the Member’s workstation, she twitched awake.

9. Were the Member to testify regarding this incident, she would testify that at least part of this interaction took place during an assigned break. The Member would also testify that though such breaks would typically be taken in a breakroom, the Facility’s closest breakroom had a mice infestation during the material time. The Member is very afraid of mice and avoided the breakroom at all costs. The Member would further testify that she also avoided the breakroom due to incidents of workplace bullying and harassment from her colleagues and certain members of management and this often meant that assigned breaks would be taken by the Member at her workstation during this time.

Patient A

10. As noted above, the Member worked the night shift from November 12-13, 2018, with RPN A. RPN A went on her break at 0100 hours. Prior to doing so, she provided the Member with a report and made particular note that, [ ] (“Patient A”), one of her patients was very confused and a wanderer. She asked the Member to keep an eye on Patient A.

11. For at least part of her break, RPN A remained on the Unit in a location that enabled her to see the nursing station. She observed the Member sleeping on and off during this period. The Member did not get up from the nursing station during this period of observation.

12. At 0250 RPN A ended her break early and checked on Patient A. The Member’s scheduled break was from 0300 to 0500. Upon entering Patient A’s room, RPN A found Patient A in her room, naked, standing up and urinating on the floor.

Patients B, C, D, E and F

13. Following the November 12-13, 2018 shift, the Patient Care Manager conducted an audit of the Member’s documentation from the shift and identified concerns with respect to a number of patients as follows. No adverse health outcomes were identified with respect to any of these concerns or patients arising from or in relation to the Member’s documentation.

14. On November 12, 2018 the Member documented an irregular heart rate for [ ] (“Patient B”) at 2158 hours; however, the Member did not document her intervention with respect to the irregular heart rate until November 13, 2018 at 0816. The Member did not complete a late entry note. However, there is no dispute that the Member responded appropriately to Patient B’s irregular heart rate, as described in the documentation she completed on November 13, 2018 at 0816:

On assessment pt. was very tachycardia and HR very irregular. Patient HR was at 147-160bpm.

Reaction: Doctor Volpini notified, doctor order digoxin 0.5mg tab po, doctor also call REACT team, and notified the ER doctor. Both ER doctor and React was on floor to see patient. Digoxin was administered, patient received bolus 500cc. ECG and chest x-ray was done. React continue to monitor patient.

Reaction: patient still tachycardia, medically stable, REACT still following patient.

15. The Member’s shift commenced at 1930 hours on November 12, 2018; however, the Member did not document her first assessment of:

• (“Patient C”) until approximately four hours later at 0024 hours on November 13, 2018, relating to an assessment conducted at 20:18;

• (“Patient D”) until approximately 7 hours later at 0251 hours on November 13, 2018, relating to an assessment conducted at 19:55; and

• (“Patient E”) until approximately 10 hours later at 0538 hours on November 13, 2018. Were the Member to testify, she would say that she recalls completing the assessment documented at 0538 shortly after transfer of accountability at 1930 hours on November 12, 2018.

16. The Member failed to document the transfer of accountability for [ ] (“Patient F”) until 0032 hours on November 13, 2018, even though her shift started at 1930 on November 12, 2018. The Member completed some documentation regarding her assessment at that time and then the remainder of the assessment at 0219 hours.

17. Certain of the Member’s documentation with respect to Patient F’s neurological, skin and gastrointestinal body systems was incomplete, inconsistent and inaccurate as outlined below. Were the Member to testify, she would say that certain of these inconsistencies were the result of inadvertent mistakes made in the Facility’s online charting system:

• The Member’s assessment stated that all body systems were within defined limits, except for skin which was inconsistent with documentation elsewhere;

• In the post falls management section, the Member documented “oriented to person, disoriented to place, disoriented to time”. However, in the neurological body system, the Member documented that Patient F was within defined limits including “oriented to person, place, time”;

• Under the Gastrointestinal section, the Member noted that Patient F’s last bowel movement was three days prior, but still classified this body system as within defined limits; and

• With respect to skin, the Member noted a “significant findings” of a rash in a “generalized location” but provided no further description, explanation or intervention.

18. Were the Member to testify regarding Patients A, B, C, D, E, and F, she would say that her charting was interrupted by ongoing workload concerns and patient demands, and that she was struggling immensely on this particular shift due to her patient assignment, their acuity levels, and her personal experiences in her workplace. The Member would further testify that certain of her patients were also placed in the hallway by the Facility due to insufficient space, and certain resources were not readily available or accessible to the Member as a result, thus further complicating her workload.

Patient G

19. The Facility’s Code Blue Policy states:

• a Code Blue event is any cardiac arrest, respiratory arrest or medical emergency. A medical emergency is the sudden onset of acute symptoms requiring immediate medical care;

• if a patient’s code status is unclear or unknown, CPR must be initiated and a Code Blue called; and

• the first responder is to support the victim and call a Code Blue if the patient is unresponsive.

20. On January 2, 2019, at approximately 1500 hours, the Clinical Educator arrived on the Unit, and she heard two call bells going off, one of which was for the Member’s patient.

21. The Clinical Educator advised the Member that she would assist the Member’s patient in another room and asked the Member to respond to the other call bell. The Member walked towards the room where [ ] (“Patient G”) was located, as instructed.

22. Upon entering the room, the Member found Patient G on or around the commode.

23. If the Member were to testify, she would say that initially, Patient G was breathing and responsive. The Member would also testify that she began to take steps to assist Patient G back to her bed, however before she could remove her from the commode Patient G decompensated and showed signs of distress. The Member would testify that she made an assumption at this time that Patient G’s breathing may have been compromised, and decided to leave the room to obtain nasal prongs and provide oxygen as there were none readily available in the Patient’s room.

24. If the Member were to testify, she would state that she looked throughout the room for the resuscitation box, but could not find it. She therefore left the room to get nasal prongs.

25. The Clinical Educator saw the Member leave the room. The Clinical Educator then went to the room and saw Patient G slumped on the commode, barely breathing and gasping. Patient G’s daughter was present, crying and asking “what is happening” or words to that effect.

26. According to the Clinical Educator, Patient G was unresponsive at this time to a sternal rub and she was unable to get a carotid pulse.

27. Patient G was transferred back to bed. The Member reentered the room with nasal prongs and began applying the nasal prongs to Patient G, but the Clinical Educator informed the Member they needed a non-rebreather mask and to look for the resuscitation box in the room. Someone then passed the Clinical Educator a non-breather and she applied it on Patient G.

28. The Member acknowledges that she did not initiate a Code Blue or follow Code Blue responder guidelines in these circumstances. If the Member were to testify, she would say that her initial thinking was that since Patient G was breathing and responsive, it was safe to spend the time locating nasal prongs in an adjoining room.

CNO STANDARDS

Professional Standards

29. 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 pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.

30. 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 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:

• 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.

31. CNO’s Professional Standards further provides, in relation to the knowledge standard, that nurses demonstrate their knowledge by providing a theoretical and/or evidence-based rationale for all decisions and understanding the knowledge required to meet the needs of complex patients.

32. 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. Nurses 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.

33. CNO’s Professional Standards also provides, in relation to the relationship standard and the therapeutic nurse-patient relationship, that nurses establish and maintain respectful, collaborative, therapeutic and professional relationships. Nurses demonstrate this standard by demonstrating respect and empathy for, and interest in patients.

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

Documentation Standard

35. 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.

36. 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; and

• documenting both objective and subjective data.

37. 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;

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

• indicating when an entry is late as defined by organizational policies.

38. 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.

39. Attached as Exhibit “B” is a copy of the Documentation Standard that was in force at the time of the incidents.

40. The Member admits and acknowledges that she contravened CNO’s Professional Standards that was in force at the time of the incidents, when she slept on shift on November 12-13, 2018 and January 3, 2019.

41. With respect to Patient A, the Member admits and acknowledges that she breached CNO Professional Standards that was in force at the time of the incidents when she failed to provide nursing care to Patient A in a timely manner.

42. The Member admits and acknowledges that she contravened CNO’s Professional Standards and Documentation Standard that was in force at the time of the incidents when on November 12-13, 2018:

• with respect to Patient B, she documented an irregular heart rate at 2158 hours but failed to document the intervention undertaken until 0816 hours and failed to indicate that it was a late entry;

• with respect to Patient C, she failed to document such an assessment for the first approximately four hours of her shift;

• with respect to Patient D, she failed to document such an assessment until approximately seven hours after her shift started;

• with respect to Patient E, she failed to document such an assessment for the patient until 10 hours into her 12-hour shift; and

• with respect to Patient F, she failed to document the Transfer of Accountability until four hours after her shift started and her documented assessments of Patient F with respect to neurological, skin, and gastrointestinal body systems were incomplete, inconsistent and inaccurate.

43. With respect to Patient G, the Member admits and acknowledges that she contravened CNO’s Professional Standards that was in force at the time of the incidents when she did not follow the Facility’s Code Blue Policy.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

44. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 1(a), (b)(i), (c)(i)-(v), and (d) 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 43 above.

45. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(a)-(e) of the Notice of Hearing in that she failed to keep records as required with respect to her documentation for Patients B, C, D, E, and F, as described in paragraphs 13 to 18, 29 to 39 and 42 above.

46. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 3(a), (b)(i), (c)(i)-(v), and (d) of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 5 to 43 above.

OTHER

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

• Paragraph 1(b)(ii) of the Notice of Hearing; and

• Paragraph 3(b)(ii) of the Notice of Hearing.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b)(i), (c)(i), (ii), (iii), (iv), (v), (d), 2(a), (b), (c), (d), (e) and 3(a), (b)(i), (c)(i), (ii), (iii), (iv), (v) and (d) of the Notice of Hearing. As to allegations #3(a), (b)(i), (c)(i), (ii), (iii), (iv), (v) and (d), 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) in the Notice of Hearing is supported by paragraphs 5 - 8 and 44 in the Agreed Statement of Facts. The Member admitted that she contravened the College’s Professional Standards by sleeping while on shift. The Member was observed by colleagues to be sleeping on shift on at least two occasions on or about November 12-13, 2018 and on January 3, 2019. The Member was observed sitting in a chair at the nursing station with her eyes closed, with her head tilted back and snoring. On January 3, 2019, the Patient Care Manager observed the Member sleeping at the nursing station. The College’s Professional Standards provide that nurses are accountable to the public and are responsible for their actions, as well as for conducting themselves in ways that promote respect for the profession. Sleeping on shift, not on a designated break, does not provide, facilitate, advocate or promote the best possible care for patients.

Allegation #1(b)(i) in the Notice of Hearing is supported by paragraphs 10 - 12 and 44 in the Agreed Statement of Facts. The Member admitted that she contravened the College’s Professional Standards when she failed to provide nursing care to Patient [A] in a timely manner. When a Registered Practical Nurse (“RPN A”) who was on the night shift with the Member went on her break, RPN A provided a report to the Member, noting that Patient [A] was very confused and a wanderer. RPN A observed the Member sleeping off and on during this period. When RPN A returned from her break, she found Patient [A] in her room, naked, standing up and urinating on the floor. By sleeping during working hours and failing to observe a vulnerable patient, the Member failed to ensure patient safety and may have compromised Patient [A]’s well-being.

Allegation #1(c)(i) in the Notice of Hearing is supported by paragraphs 13, 14, 18 and 44 in the Agreed Statement of Facts. The Member admitted that she breached the College’s Professional Standards and the Documentation Standard when she failed to indicate that she had made a late entry regarding her intervention with Patient [B]. The Member documented an irregular heart rate for Patient [B] at 2158 hours on November 12, 2018, however, she did not document her intervention until 0816 hours on November 13, 2018. The Member failed to complete a late entry note on her documentation that she had completed the intervention undertaken, such as calling the physician, the physician ordering medication and that the REACT team had been called. Nurses meet the Documentation Standard by indicating when an entry is late as defined by organizational policies.

Allegations #1(c)(ii), (iii) and (v) in the Notice of Hearing are supported by paragraphs 13, 15, 18 and 44 in the Agreed Statement of Facts. The Member admitted that she contravened the College’s Professional Standards and the Documentation Standard when she delayed documenting her assessments of the following patients: Patient [C] until approximately four hours after the assessment was completed; Patient [D] until approximately seven hours after her shift started; and Patient [E] until approximately 10 hours into her 12-hour shift. The Documentation Standard requires nurses to ensure that documentation of patient care is accurate, timely and complete. This standard is met when the nurse completes their documentation during, or as soon as possible after, the care or event.

Allegation #1(c)(iv) in the Notice of Hearing is supported by paragraphs 13, 16, 17, 18 and 44 in the Agreed Statement of Facts. The Member admitted that she contravened the College’s Professional Standards and the Documentation Standard when she failed to document the Transfer of Accountability for Patient [F] until four hours after her shift started and/or document assessments of Patient [F] with respect to neurological, skin, and gastrointestinal body systems that were incomplete, inconsistent and/or inaccurate. The College’s Documentation Standard provides that nurses are to ensure that their documentation presents an accurate, clear and comprehensive picture of the patient’s needs including assessment, the nurse’s interventions and the patient’s outcomes.

Allegation #1(d) in the Notice of Hearing is supported by paragraphs 19-28 and 44 in the Agreed Statement of Facts. The Member admitted that she contravened the College’s Professional Standards when she failed to follow the Facility’s Code Blue Policy. Patient [G] was not assigned to the Member. The Member attended to a call bell and found Patient [G] on or around the commode, breathing and responsive. The Member began to take steps to assist Patient [G] back to bed when she decompensated and showed signs of distress. The Member left the room to obtain nasal prongs as there were no nasal prongs in the room. The Clinical Educator entered the room and found Patient [G] slumped on the commode, barely breathing and unresponsive. The Code Blue Policy states that a Code Blue event is any cardiac arrest, respiratory arrest or medical emergency that requires immediate medical care and further states the first responder is to support the victim and call a Code Blue if the patient is unresponsive. The Member’s failure to follow the Facility’s Code Blue Policy to ensure proper patient assessment and care amounts to a breach of the College’s Professional Standards.

Allegations #2(a), (b), (c), (d) and (e) in the Notice of Hearing are supported by paragraphs 13-18, 29-39, 42 and 45 in the Agreed Statement of Facts. The Member admitted that she failed to keep records as required when she failed to ensure that her documentation of patient care was accurate, timely and complete. The Member failed to identify a late entry in the patient record. With respect to Patient [B], the Member documented an irregular heart rate at 2158 hours but failed to document the intervention undertaken until 0816 hours and failed to indicate that it was a late entry. With respect to Patient [C], the Member failed to document her assessment of Patient [C] for approximately four hours after the start of her shift. With respect to Patient [E], the Member failed to document her assessment of Patient [E] until 10 hours into her 12-hour shift. With respect to Patient [F], the Member failed to document the Transfer of Accountability until four hours after the start of her shift and the documentation with respect to Patient [F]’s neurological, skin and gastrointestinal body systems were incomplete, inconsistent and inaccurate. With respect to Patient [D], the Member failed to document her assessment of Patient [D] until approximately seven hours after her shift started. The College’s Documentation Standard provides that nurses are to ensure that their documentation presents an accurate, clear and comprehensive picture of the patient’s needs, the nurse’s interventions and the patient’s outcomes and that nurses are accountable for ensuring their documentation of patient care is accurate, timely and complete.

Allegations #3(a), (b)(i), (c)(i), (ii), (iii), (iv), (v) and (d) are supported by paragraphs 5-8, 10-28 and 46 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in sleeping while on shift, in failing to take appropriate nursing interventions and/or conduct and document appropriate assessments in an accurate, clear, comprehensive and timely manner was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in contravening the Professional Standards and the Documentation Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing when the Member failed to initiate a Code Blue when Patient [G]’s condition deteriorated and when her documentation of assessments for multiple patients failed to be timely to ensure communication. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional.

Penalty

College Counsel and the Member’s Counsel advised the Panel that the parties had not reached an agreement on the appropriate penalty and would be proceeding on a contested basis. The Panel heard evidence from the Member in this regard, in particular about her experiences of racism in the workplace. One of the issues before the Panel was the weight that should be placed on the Member’s experiences of systemic racism as a mitigating factor in formulating a penalty order.

Systemic racism in the workplace refers to the embedded policies, practices, or cultural attitudes that perpetuate unequal treatment based on race. When a person raises a complaint about systemic racism in the context of disciplinary action, it highlights potential disparities in how people of different racial backgrounds are evaluated and held accountable.

The concern may stem from patterns of inconsistent enforcement of rules, unequal opportunities for advocacy, or biases in decision-making processes. Such complaints call for a thorough review of organizational practices to ensure fairness, transparency, and equity in disciplinary procedures. Addressing these issues is critical for fostering an inclusive workplace environment.

Opening Submissions on Penalty

College Counsel’s Opening Submissions

College Counsel submitted that the overarching purpose of a penalty order is to not penalize the Member but to ensure public protection, and to maintain the public’s confidence and trust in the profession.

College Counsel explained that this case raises a novel issue. There are no cases that have been before the College’s Disciplinary Committee that focused on racism as a mitigating factor; however, other regulatory colleges have dealt with cases which address racism as a mitigating factor.

College Counsel submitted that the Member needs to demonstrate that her experience of systemic racism or discrimination is connected to the professional misconduct.

The College did not dispute that the Member has no prior disciplinary history, that the Member entered into an Agreed Statement of Facts and the Member admitted to the allegations, which are mitigating factors. Rather, College Counsel submitted that the issue before the Panel at this stage is whether the Member has established that the racism she experienced is linked to the professional misconduct such that it serves as a mitigating factor with regard to penalty.

The Member’s Counsel’s Opening Submissions

The Member’s Counsel made submissions on the Member’s position on penalty.

The Member’s Counsel submitted that the Panel should not rely solely on the Agreed Statement of Facts to make a penalty order, as the Agreed Statement of Facts does not speak to the issues that lead to the allegations of professional misconduct. Rather, the Panel should consider the Member’s testimony about her unique circumstances. Member’s Counsel submitted that this is a novel issue.

The Member’s Counsel submitted that the primary mitigating factor is related to the extreme abrasive behavior that the Member experienced at the hands of colleagues and management, where she was dismissed and set up to fail. The Member’s Counsel submitted that it is an accepted reality that black nurses have it worse than non-racialized nurses. The Member’s Counsel submitted that in a team-based environment, there is an obvious link between bullying and job performance. When colleagues state, “I don’t like black people” and won’t help you, this conduct affects one’s ability to do the job.

The Member’s Counsel submitted that the Member’s conduct was not as serious compared to other matters before this Committee and asked the Panel to consider that this is the first member to stand before the Committee and say that while I made some mistakes, here are the circumstances that I went through which provide relevant context.

Evidence on Penalty

The College did not call any further evidence on penalty.

The Member testified and submitted 11 documents as exhibits. Her evidence and the exhibits are summarized below.

The Member testified in detail about her experience in the workplace. The Member admitted to the allegations and testified that she made mistakes and explained that the workplace experience (including racism and harassment) affected her practice. The Member testified that there was a link between her conduct and her experiences in this workplace.

The Member testified that she experienced significant workload issues, which she reported. The Member filed workload concern reports on May 20, 2018 (Exhibit #7) and July 30, 2018 (Exhibit #8) because she felt that her workload was unsafe. Despite submitting these forms, the Member testified that she did not receive any response from her manager.

The Member also submitted a harassment report (Exhibit #9) dated August 6, 2018. The manager did not address the behavior of a patient and did not provide support to the nurses in this case.

The Member testified that when her manager spoke to her regarding concerns with her documentation, the Member asked for help. The Member requested additional training. The Member’s manager was supposed to set up a training and sent her to the IT department. When the Member arrived at the scheduled meeting, the IT department advised that it was not aware of a planned training session.

On September 18, 2018, the Member sent an email to her manager (Exhibit #10), asking about additional concerns her manager had concerning the complaints about her. The Member communicated that she was tired of the concerns and wanted to get to the bottom of these complaints. The Member’s email stated that she felt she was being targeted, and asked her manager “is this racism?” The Member requested an investigation by the hospital, as the Member felt that this was a serious matter, and the Member believed no investigation had been initiated.

The Member also explained that she sent an email to Human Resources regarding her experiences of harassment (Exhibit #12) requesting an investigation into the incidents. The Member felt she was not getting support or follow up from management or Human Resources regarding the workplace issues she had identified. The Member stated that she was stressed, depressed, could not trust anyone, and questioned whether this response was rooted in racism. When racism was discussed with Human Resources, the Member felt they did not listen to her.

The Member testified that she did not trust her colleagues or her manager. She testified that she felt that someone was trying to get her fired. The Member felt that if she spoke up, she was told she was aggressive, too loud and was therefore unable to express herself. The Member felt she could not talk to her manager even though she should be able to.

The Member described an incident where a colleague reported that she had red eyes, and the colleague suspected that the Member was doing drugs or marijuana. The Member testified that although there was no truth to this accusation, her manager did not ask her whether she was okay or conduct any investigation into the accusation that was made.

Despite these reports and complaints, the Member testified that she still received no support from her manager or from Human Resources. She was afraid to talk to her colleagues and testified that the work environment was toxic.

The Member explained that staff members on her unit requested that Human Resources come to the unit to assist with various issues, including workload and harassment concerns, but that no one from Human Resources attended and no further follow up was done.

The Member testified that she would not take her breaks with a certain colleague that made a comment that she “hate[s] Black people”. The Member would take her breaks at the nursing station instead.

The College’s Code of Conduct was put before the Panel (Exhibit #14) which acknowledges professional practice and discrimination. The Code of Conduct provides that nurses are accountable to one another and are to maintain respectful relationships with the health care team. Nurses self-reflect on how their biases, values, belief structures may impact relationships with health care team members. Nurses recognize factors and personal attributes that may impact a health care team member, and nurses do not verbally or emotionally abuse health care team members.

The Member’s Counsel submitted the Black Nurses Task Force Report prepared for the Registered Nurses’ Association of Ontario (“RNAO”). The Report describes the lack of support that black nurses received from their supervisors and peers, and the unwillingness of supervisors, managers and teachers to take an active role in addressing racism.

The Member also testified about the Code Blue incident. The Member did not feel that she could ask the educator for assistance, as the educator “doesn’t even look at me, I could not ask for help.” This educator was involved in the Code Blue incident where the educator directed the Member to another patient, her patient that was experiencing the medical issues. The Member questioned “Was it a set up?” and felt that she could not trust them. The Member also testified that the Code Blue was called off. The Patient’s daughter was upset that the Code Blue was called as the Patient had a Do Not Resuscitate directive.

The Member concluded that “I don’t go to work not to call a Code Blue, not to document properly or show disrespect to my patients.” The Member emphasized that “it is a privilege to look after patients and work with patients… As nurses, we need support, but as a Black nurse I was subject to racism. The incidents still haunt me, I am doing my best, I document everything, I have learned from it, I am a better nurse.”

Final Submissions

College Submissions on Penalty

College Counsel made submissions which included the following:

The goals of penalty are not to punish the Member, but to ensure protection of the public, maintain the public’s confidence in the profession’s ability to self-regulate, consider members’ personal circumstances and achieve general and specific deterrence and remediation.

The aggravating factors in this case were:

• The Member’s conduct involved patients who were vulnerable;

• The Member’s conduct was serious in that it related to the safety and care of patients; and

• There were multiple incidents that occurred over multiple shifts.

The mitigating factors in this case were:

• The Member has no prior disciplinary history with the College and has been registered with the College for close to 20 years;

• The Member admitted that she engaged in professional misconduct and entered into an Agreed Statement of Facts with the College; and

• The College concedes that the experience of racism can be a mitigating factor in particular cases, and reviewed cases with the Panel to demonstrate there has been connections with some cases but not all. College Counsel submitted that a suspension was warranted regardless of whether there was racism.

The following health sector case was provided to the Panel:

College of Physicians and Surgeons of Ontario v. Fagbemigun (Discipline Tribunal, 2022 ONPSDT 22): The allegations in this case related to inappropriate billing practices. In determining the penalty, a mitigating factor that was submitted was the member’s relevant experiences as an Indigenous or racialized person or member of another marginalized group. This mitigating factor was not considered relevant to the penalty.

College Counsel submitted the following four decisions of the Law Society Tribunal related to how racism and discrimination may be considered in penalty orders:

Law Society of Upper Canada v. McSween (2012 ONLSAP 3). The member was a black lawyer that was appealing a finding of professional misconduct and revocation of licence for participating in a fraudulent real estate situation. There was extensive discussion in the dissenting reasons of systemic racism. The majority of the panel emphasized that there must be a nexus between racism and discrimination and found it difficult to conclude that there was a sufficient nexus between the racism and the discrimination that the member experienced and his knowing assistance in mortgage fraud.

Law Society of Upper Canada v. Robinson (2013 ONLSAP 18). The member appealed a 2-year suspension for conduct unbecoming to the profession. The member was charged criminally with assault and pleaded guilty. On appeal, the member argued that the hearing panel failed to account for the role of systemic racism in the member’s conduct as a mitigating circumstance. The member argued that he had been subject to differential treatment based on his Aboriginal heritage and/or his defence work on behalf of Aboriginal clients. The member felt unable to seek out the assistance of police to address his harassment at the hands of the complainant. This “played a role” and offers some mitigation for what he did. The member received a reduced suspension.

Law Society of Upper Canada v. Mundulai (2013 ONLSAP 8). The member’s license to practice law was revoked after a hearing. The member appealed, and argued among other things that the hearing panel “was required to take judicial notice of systemic racism and discrimination within society and the legal profession and consider whether this contributed to his misconduct”. On the evidence and argument put forward, the panel disagreed that racism was a mitigating factor. There was no evidence to connect the Appellant’s race to his misconduct. This decision was upheld on appeal by the Divisional Court.

Law Society of Ontario v. Guiste (2024 ONLSTH 78). The member was a black lawyer that was found to have engaged in professional misconduct by acting uncivilly at a trial, failing to serve his client to the standard of a competent lawyer and acting without integrity. In considering penalty, the panel identified extenuating circumstances meriting mitigation of the penalty. The panel found that there was some connection between the allegation of incivility and the member’s race, that he felt targeted, was more on guard and reactive, and this influenced his temperament. The member’s lived experience was not found to be relevant in the finding of his incompetence nor to his lack of integrity.

College Counsel submitted that it is not enough to be part of a marginalized group, but that there must be a connection between the racism experienced and the misconduct. That is the test that the Panel must apply in assessing the Member’s testimony and how her experiences of racism ought to factor into the penalty ordered.

College Counsel submitted that the Member entered into an Agreed Statement of Facts with the College, which should be used to consider whether there was a connection between racism and the conduct. The Member admitted that she fell asleep while on shift, failed to provide care to Patient [A], failed to provide timely documentation and failed to initiate a Code Blue with respect to Patient [G].

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

1. Requiring Joy McKenzie (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, and

4. 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 Practice Reflection Worksheets, 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 Practice Reflection Worksheets;

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

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

b) 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, and

4. 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.

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. Jacob (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member failed to provide adequate and or timely care. The patient was found with vital signs absent, and the member did not call a code blue. The member failed to accurately or completely document the assessment of the patient. The penalty included an oral reprimand, a two-month suspension of the member’s certificate of registration, a minimum of two meetings with a Regulatory Expert, 18 months of employer notification and completion of a nursing course, approved by the Director within 12 months from the date of the Order becoming final.

CNO v. Valdez (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member failed to check on a patient and falsified the health record. The patient was unresponsive, the member failed to complete checks on this patient that did not have as high acuity as other patients on the floor. The penalty included an oral reprimand, a three-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert, 18 months of employer notification and random spot audits of the member’s documentation for a period of 18 months.

College Counsel submitted that a suspension should form part of the penalty. An order which does not include a suspension does not fulfil the penalty goals of general deterrence or specific deterrence.

College Counsel submitted that the panel in the Guiste decision found that a three-month suspension was sufficient to meet the goals of penalty. The case grappled with the suspension but still held that a three-month suspension was required.

College Counsel submitted that in the Robinson decision, although the suspension was decreased from two years to one year, the panel found that a suspension was still required to meet the goals of penalty.

Member’s Submissions on Penalty

The Member’s Counsel submitted that this is a unique case, and there has not been a single decision that considers the reality of systemic racism or discrimination at the College.

The Member is a 65-year-old black nurse with 20 years of service. The Member gave uncontested evidence of her experiences and the impact of racism on her professional practice. The Member’s Counsel questioned what an appropriate penalty should be for a member when her colleagues violate the Code of Conduct. The Member’s Counsel submitted that there is an obvious link between the Member’s conduct and racism, and that racism is a strong mitigating factor.

The Member’s Counsel submitted that there is a link between professional practice and racism as identified in the RNAO report prepared by the Black Nurses Task Force. This report identifies the social science that outlines the experiences of black nurses which aligns with the Member’s testimony: that if you speak up, you are too loud, if you have an eye infection, you are drunk or high. These align clearly with racism.

The Member’s Counsel submitted that no suspension was necessary and that only a reprimand should be ordered. The Member’s Counsel submitted that the Member was a pillar of the nursing profession, that she did her best, and there is a link between the Member’s conduct and her experience of racism. The Member experienced peers stating that “I don’t like black people”, and when the Member asked for help, she was brushed aside. The Member’s Counsel submitted that racism should be considered as a mitigating factor, and that protecting the public can be accomplished without ordering a suspension. The Member’s Counsel submitted that the delay in the case is also a strong mitigating factor, the Member has learned her lesson and now mentors peers on documentation.

The Member’s Counsel submitted the following cases:

Law Society of Ontario v. McCullough (Tribunal Hearing Division, 2022): In this case, the exceptional circumstances of the member are truly extraordinary and compelling and are directly connected to her life experience as an Indigenous woman. Further, there does not need to be proof of a causal connection between being an Indigenous person and the misconduct “as long as the background and systemic factors may have played a role in bringing the offender before the hearing panel”. The Appeal Panel concluded that consideration of unique systemic and background factors, as they relate to the seriousness of the misconduct, and the licensee’s culpability, is necessary to enhance respect for, and confidence in the legal profession and self-regulation of its members. This is consistent to applying racism as a mitigating factor.

Law Society of Upper Canada v. Batstone (Tribunal Hearing Division, 2017): The mitigating circumstances included racism, and how this experience affects Indigenous peoples. There must be a balancing of the significant mitigating factors, and the panel found that a financial fine was appropriate without a suspension. This is a precedent which shows that a suspension is not necessary to protect the public interest.

Law Society of Upper Canada v. An (Tribunal Hearing Division, 2017): The member requested a reduced penalty of only a reprimand with no suspension and argued that she had experienced discrimination on the basis of her cultural background. The member was one of a few East Asian Canadian women in criminal law practice and she testified to the challenges she faced as a racialized woman lawyer. Her performance as a lawyer was compromised by the stress she was experiencing, and she felt unable to ask for help or support. The panel concluded that a reprimand was the appropriate penalty.

The Member’s Counsel submitted the following additional mitigating factors:

• The Member admitted to her conduct;

• The Member has no prior history with the College;

• The Member was remorseful;

• The Member experienced approximately a 6-year delay in the process; and

• The Member has learned a valuable lesson, as she now mentors other nurses about the importance of documentation.

The Member’s Counsel submitted the following cases related to abuse of process and submitted that while he was not saying there was an abuse of process in this case, the Panel can still take the delay into account:

Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44: A remedy other than a stay may be appropriate in other cases where ongoing delay is abusive. A delay of 6 years as in this case is contrary to the public’s interest.

Wachtler v. College of Physicians and Surgeons of the Province of Alberta (Alberta Court of Appeal, 2009): This case demonstrates how a delay can be a factor in determining what disciplinary sanctions should be imposed. In this case, the Court of Appeal reduced the sentence and set aside the costs award, but was unable to demonstrate that the prejudice was such that it would justify a stay. The Member’s Counsel stated a delay must serve as a mitigating factor.

Law Society of Upper Canada v. Marler (Tribunal Hearing Division, 2014): In this case, there was a seven-year gap between the incident and the hearing date. The member worried about the fall-out from the events and the Law Society acknowledged that the delay should not have occurred, resulting in a reduced penalty.

The Member’s Counsel submitted that the parties entered into an Agreed Statement of Facts, the Member admitted misconduct and that the misconduct was at the low end of the spectrum. There was no harm to the patients when the Member was found to be sleeping on shift, the Member admitted to the documentation errors, and has learned from her mistakes, and the Code Blue incident. The Member struggled with the reasoning behind the Clinical Educator directing her to attend to Patient [G]’s call bell and not the other patient’s call bell, and when Patient [G] decompensated and showed signs of distress, the Member made a judgement call. It was not a disregard of the policy.

The Member’s Counsel submitted the following cases to the Panel to demonstrate that the penalty proposed by the Member fell within the range of similar cases from this Discipline Committee:

CNO v. Allingham (Discipline Committee, 2000): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member failed to assess and observe patients, took extended breaks and failed to document events. The penalty included an oral reprimand, a course in psychiatric nursing assessment, viewing the One is One Too Many abuse prevention video, a meeting with a Nursing Practice Advisor to discuss the video and two written performance reports prepared by the Member’s employer at 6-month intervals. There was no suspension included.

CNO v. Rossi (Discipline Committee, 2001): In this case, the member did not attend the hearing. The member failed to maintain appropriate nurse/client boundaries and the care of patients was inconsistent with the policy. The penalty included an oral reprimand, review of the standards and a meeting with a College Practice Consultant. There was no suspension.

CNO v. Member (Discipline Committee, 2004): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member gave a wrong dose of medication twice to one patient. The penalty included an oral reprimand and a meeting with a College Practice Consultant. There was no suspension.

CNO v. Zielinski (Discipline Committee, 2004): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member failed to meet the standards of practice of the profession when she failed to correctly prime and evacuate air from a CADD pump line, failed to document care provided to patients, arrived late or failed to attend scheduled visits with patients without informing them, failed to ensure that a patient had adequate supplies and failed to respond to pages and voice mail messages from the agency of employment. The penalty included an oral reprimand, a meeting with a College Practice Consultant and 18 months of employer notification. There was no suspension.

CNO v. Power (Discipline Committee, 2004): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member administered a medication when there was no prescription, authorization or order, obtained blood samples when there was no authorization or order and ordered diagnostic tests on blood and/or urine for patients with no authorization or order. The penalty included an oral reprimand, a meeting with a College Practice Consultant and 12 months of employer notification. There was no suspension.

CNO v. Pedzinski (Discipline Committee, 2020): This case proceeded by way of Agreed Statement of Facts and a Joint Submission on Order. The member provided inadequate care to a patient and or inadequately documented care, failed to transfer accountability of patients before leaving shift, failed to conduct the narcotic count with incoming shift, failed to physically hand over keys. The penalty included an oral reprimand, a one-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 12 months of employer notification. In this case there was a one-month suspension with severe incidents when in the case before this Panel College Counsel is asking for a 3-month suspension for less severe incidents.

CNO v. Jacob (Discipline Committee, 2022): This case proceeded by way of Agreed Statement of Facts and a Joint Submission on Order. The member failed to take appropriate and/or to conduct appropriate assessments when a patient exhibited signs of deterioration, failed to accurately document assessments, and failed to perform resuscitation and/or initiate a Code Blue. 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, 18 months of employer notification and successfully complete a nursing course. The incidents in this case are more severe and the suspension is less than the proposed 3-month suspension in the case before this Panel.

Penalty Decision

The Panel makes an order as follows:

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

2. The Executive Director is directed to suspend the Member’s certificate of registration for one month. This one-month 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 Hearting,

3. The Agreed Statement of Facts, and

4. 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 Practice Reflection Worksheets, 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 Practice Reflection Worksheets;

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 receive the required documents from the Member,

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

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

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

b) 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, and

4. 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 acknowledges the Member’s experience of the existence of systemic racism in the Member’s workplace, as referenced in the Member’s testimony. However, without diminishing or dismissing the Member’s personal experiences, the Panel emphasizes that the Member remains responsible for providing safe patient care, ensuring proper documentation, and upholding all of the professional standards set by the College. These responsibilities are fundamental to the nursing profession, and the Member’s obligation to meet these standards is not diminished by the challenges faced in the work environment.

The Panel accepted that, as established by the Ontario Court of Appeal in R. v. Morris, 2021 ONCA 680, there does not need to be connection between anti-black racism and the Member’s conduct and that there only need be some connection between “overt and systemic racism … and the circumstances or events that are said to explain or mitigate” the conduct. However, based on the evidence provided, the Panel was not satisfied that there was some connection between anti-black racism or the racism the Member experienced and her conduct. As a result, the Panel, based on the evidence, determined that racism was not to be considered as a mitigating factor. The Panel accepts there is anti-black racism in Ontario, and where there would have been provided sufficient evidence to establish some connection between it and the circumstances or events explaining the Member’s conduct, this Panel would have taken this into account.

The aggravating factors in this case were:

• The incidents included a vulnerable population;

• There were multiple incidents;

• The Member failed to meet standards; and

• The Member’s failure to provide basic care expected of a nurse such as assessing and documentation led to the potential for a serious risk of harm.

The mitigating factors in this case were:

• The Member has no previous disciplinary history with the CNO;

• The Member accepted full responsibility for her conduct by admitting to all the allegations and entering into an Agreed Statement of Facts

• The Member was remorseful;

• The Member has learned her lesson and is now mentoring her peers.

The Panel considered the following cases as demonstrating that the penalty fell within the range of similar cases from this Disciplinary Committee:

CNO v. Valdez (Discipline Committee, 2022): Similarities to the case before this Panel included that the member falsified the patient record and there was patient harm. The penalty included an oral reprimand, a three-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert, 18 months of employer notification and random spot audits of the member’s documentation for a period of 18 months. The penalty ordered in the case before this Panel differs from the Valdez penalty in that the Member did not intentionally falsify the health record, her interventions were completed, there was no late entry noted and there was no patient harm.

CNO v. Jacob (Discipline Committee, 2022): Similarities to the case before this Panel included that the member failed to appropriately monitor, failed to take appropriate action when the patient’s condition changed, failed to complete documentation of assessments and failed to initiate a Code Blue. The penalty included an oral reprimand, a two-month suspension of the member’s certificate of registration, a minimum of two meetings with a Regulatory Expert, 18 months of employer notification and successfully complete a nursing course. The penalty in the case before this Panel differs from the Jacob penalty in that the member in the Jacob case, failed to recognize critical findings of the patient which resulted in a negative outcome for the patient.

CNO v. Pedzinski (Discipline Committee, 2020): Similarities to the case before this Panel included that the member failed to assess a patient and failed to document the assessment. There was no documentation of a progress note that identified the note as a late entry. The penalty included an oral reprimand, a one-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 12 months of employer notification.

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 the penalty that addresses specific deterrence, general deterrence and where appropriate rehabilitation and remediation.

The Panel concluded that the penalty is reasonable and in the public interest. The Panel concludes that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specific deterrence is achieved through the oral reprimand and a one-month suspension of the Member’s certificate of registration, which sends a strong message that the Member’s behavior shall not be tolerated and ensures the public trust will be maintained. General deterrence is achieved by the one-month suspension of the Member’s certificate of registration, which will send a strong message to the professional membership that failing to meet the standards of practice and committing professional misconduct will not be tolerated. Rehabilitation and remediation will be achieved through a minimum of two meetings with a Regulatory Expert. The public will be protected through the 12 months of employer notification.

The Panel determined that a one-month suspension was within the range from previous cases. The previous cases presented showed intentional acts of falsifying records. In this case there was no evidence of intent and no patient harm. The interventions were completed but there were late entries that were not identified as such. There was also a failure to document and failure to assess that was more severe where the patient was in a deteriorating condition. While the Member’s counsel presented cases where no suspension had been ordered, these were older cases (in most instances, over 20 years old), and the case law has evolved such that the Panel concluded it was inappropriate to follow the older cases.

While the Member submitted that the delay in prosecuting this case should be considered as a factor to reduce the penalty, the Panel notes that there was no finding (nor was the Panel asked to find) that there was delay rising to the level of an abuse of process. Accordingly, without such a finding, delay would not be considered a factor reducing the penalty that should be ordered.

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

I, Lalitha Poonasamy, Public Member, sign this amended decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.