ONTARIO AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS DISCIPLINE TRIBUNAL
BETWEEN:
College of Audiologists and Speech-Language Pathologists of Ontario
College
- and -
Emilia Bozzo
Registrant
FINDING REASONS
Heard: June 19, July 15 & 17, August 22, September 23 & 30, November 8, 2024, by videoconference
Panel:
Raj Anand (panel chair)
Kiki Abbott-Moore (speech-language pathologist)
Tina D’Agnillo (speech-language pathologist)
Bonny Li (public)
Melanie Paradis (public)
Appearances:
Bernard C. LeBlanc, for the College
Emilia Bozzo, self-represented
0BRESTRICTION ON PUBLICATION
Pursuant to the panel’s order, no person shall publish, broadcast or otherwise disclose the name of any of the clients or former clients, or any information that would disclose the identity of any of the clients or former clients referred to during the hearing or in documents filed at the hearing in this matter.
The Ontario Audiologists and Speech-Language Pathologists Discipline Tribunal is the Discipline Committee established under the Health Professions Procedural Code.
OVERVIEW
1Emilia Bozzo (the registrant) is an experienced speech-language pathologist (SLP) and a longstanding member of the College of Audiologists and Speech-Language Pathologists of Ontario. Beginning in 2012, she provided services to clients as an independent contractor through CBI Home Health, which provides health-care services in locations such as long-term care homes.
2This referral by the College’s Inquiries, Complaints and Reports Committee arose out of concerns originally expressed in late October 2020 on behalf of three clients who resided in long-term care at either St. Joe’s Villa or The Meadows in Hamilton. This was in the first year of the COVID pandemic, when issues of physical distancing and virus transmission, and the effectiveness and means of health care delivery in long-term care settings, were the subject of great uncertainty and rapid change.
3The instigating factor in the three cases was Ms. Bozzo’s alleged insistence on performing swallowing assessments by telephone when a proper assessment could only be carried out in person or by video conferencing.
4On this central issue, the College submits that Ms. Bozzo conducted incomplete assessments, and thereby failed to meet the standard of care of the profession, because of her blanket refusal to consider the alternative methods. The registrant counters that she did what College registrants were expected to do: she exercised her discretion, based on a careful weighing of the risks and benefits of the different options, and acted in the best interests of the clients.
5Expressions of concern to the Local Health Integration Network (LHIN) led to an investigation by CBI, which led to the termination of Ms. Bozzo’s service contract and CBI’s mandatory reporting to the College.
6The College’s investigation resulted in allegations and an expert report on several different types of alleged misconduct by the registrant. The College submitted that apart from conducting incomplete assessments, Ms. Bozzo failed to maintain proper records; did not respond to family members of the clients, the College or CBI in their investigations in a complete and prompt manner; and did not act collaboratively in her communications with co-workers, clients and others.
7The College’s evidence contained very little first-hand information from individuals who were involved in the clients’ care. The College provided a large volume of documentation from CBI’s client records and its investigation, and we heard from two CBI managers who were involved in the investigation. The College also submitted health-care records relating to the three clients that were created by the registrant or other long-term care staff at the two locations.
8Ms. Bozzo, who was self-represented, strongly denied the College’s allegations and defended her reputation and the quality of her work as an SLP. She gave us detailed testimony about the health-care choices she was forced to make during the early months of the pandemic, and she called some evidence from other witnesses pertaining to her reputation as an SLP and some of the client interactions at issue.
9In the reasons that follow, we conclude that on the underlying allegation of conducting telephone assessments, Ms. Bozzo’s choices resulted from good faith, case-by-case analysis on her part, and that she complied with the College’s pandemic practice advice and the standards of practice of the profession based on her knowledge, skill and clinical judgement. We therefore find that this allegation was not proven. We find that the College proved most of the allegations under the other three main allegations.
10A persistent theme in the registrant’s interactions with CBI Health, the College and our Committee,1 leading in fact to her absence on the first day of hearing, was her claim over several years that her electronic communications and documents were being interfered with or sabotaged by others. Ms. Bozzo submitted that this explains much of her failure to respond to requests that is alleged against her.
11We have little to say about that, other than to conclude that her evidence of such IT problems was unclear and unconvincing. The College proved that she frequently failed to respond or to file necessary records, and the registrant did not demonstrate that these breaches were unavoidable or that they occurred due to factors beyond her control.
EVIDENCE AND ANALYSIS
12Over the course of these reasons, we have reproduced the College’s allegations under the four headings used by the College in its notice of hearing. Paragraph 1 of the College’s statement of allegations is an introductory statement, so we have re-numbered its allegations in paragraphs 2 through 12 as corresponding allegations 1 through 11.
13We will consider the College’s four principal allegations in turn.
A. Conducting incomplete assessments
14The College sets out the following allegations:
The member conducted a swallowing assessment on Client 1 on or about September 2, 2020 via telephone. The member subsequently consulted with the sister of Client 1, and liaised with the long-term care home, also via telephone.
The swallowing assessment took place without any indication as to why Client 1 was not assessed in person or via video conferencing. Further, visual assessment was never made when assessing Client 1, and the member did not provide her recommendations in writing.
The member assessed Client 2 by way of telephone calls with caregivers and staff of the facility where Client 2 lived. However, the member never met Client 2 even though the treating dietitian strongly recommended an in-person assessment based on the client’s medical and physical needs and the severity of her swallowing impairment.
The member was asked to assess Client 3 in July 2020. However, the member either failed to assess Client 3 appropriately or at all. The member also failed to prepare a report or make recommendations in respect of Client 3. In addition, the member failed or refused to respond to inquiries made by Client 3’s caregivers and family.
The member therefore failed:
a. to properly assess each of Clients 1, 2 and 3;
b. to use approaches appropriate to the needs of each of Client 1, 2 and 3;
c. to engage in risk determination when considering the impact of phone assessments on Clients 1, 2 and 3, each of whom had significant risk factors for aspiration;
d. with respect to both Clients 1 and 2, to apply clinical reasoning when making decisions about her service provision. The member also made clinical decisions based only on discussions with caregivers and health professionals, not on the basis of her own clinical assessments;
e. with respect to Client 3, to prepare a report or make recommendations, and failed or refused to respond to inquiries made by Client 3’s caregivers and family;
f. with respect to Clients 1, 2 and 3, to document or communicate how she was managing the risk of not performing an in-person or virtual assessment that could result in an untreated or mistreated swallowing impairment;
g. to follow the College’s practice advice that was available to her at the time with respect to virtual care;
h. to document her clinical reasoning and rationale, and deviations from accepted standards, in the patient record along with any informed consent discussions; and/or,
i. to provide strategies, recommendations or education to caregivers or family, or to document same.
15When asked what was the nature of the concern - whether Ms. Bozzo was inflexible about face-to-face visits, or because she exercised her judgment against doing them in these cases – Aline Woolley, Senior Therapy Manager at CBI, did not answer directly. Ms. Woolley said: “She knew the options, but I don’t think she was doing the right thing.”
16The investigation by Lesley Mabo-Wazny, Ms. Bozzo’s supervisor, revealed that the registrant offered to meet with clients on video, but long-term care homes declined. Ms. Mabo-Wazny testified that this was not documented by Ms. Bozzo, but in fact the point appears in the registrant’s notes several times.
17It was challenging, and often burdensome to staff, to arrange videoconferencing appointments at long-term care facilities. They had to gather the necessary staff, personal protective equipment (PPE) and the client in a room at a time when a videoconference appointment could be arranged with the SLP and the necessary physical and verbal steps carried out in front of the camera.
18This was particularly true in the early months of the pandemic, when health-care facilities, indeed the whole of society, were adjusting and improvising day by day to the implications and limitations of physical distancing. Long-term care homes were often unable to make video arrangements, which essentially left in-person or telephone visits as the available options.
Client 1
19The registrant conducted a swallowing assessment with Client 1 by telephone on September 2, 2020. She indicates in her report that she assessed and treated dysphagia related to recent increased difficulty with swallowing issues. Her notes indicate, in part, “verbal recommendations and safe swallowing strategies were provided. Continued monitoring is necessary for potential modified/ or diet and fluids.” She sets out her recommendations and states that follow-up was required.
20Client 1 was tolerating his diet, and his status remained unchanged thereafter. Client 1’s sister-in-law contacted Ms. Bozzo to confirm the dietary plan. The agreed resolution was for the client to remain on his current diet.
21There is no record of the registrant’s reason for conducting the assessment by telephone.
Client 2
22In the case of Client 2, also at St. Joe’s Villa, Ms. Bozzo indicates in her written notes that with the consent of the client’s spouse, the registrant did a preliminary assessment by telephone on September 9, 2020. Ms. Bozzo was then referred by staff to the registered dietician (RD) Kelly Lenarduzzi. According to the registrant’s record that day, the RD told her that a virtual video visit was “not easy and [Ms. Lenarduzzi] would rather have a F2F [face to face] ax [assessment], but agreed to provide writer with information and directive for careplan.”
23After consulting with other staff and making recommendations about Client 2’s pureed diet, the registrant again asked for a virtual video conference. Ms. Lenarduzzi said, according to Ms. Bozzo’s note, that “was too difficult and that F2F was better option.” The note indicates they reached agreement on pureed solids for Client 2,
…as per [Ms. Lenarduzzi’s] recommendation b/c insisting on F2F visits and refusing virtual video visit. SLP’s [the registrant’s] clinical judgment that ax does not warrant F2F where cl’s and staff at SJV [St. Joe’s Villa] are exposed to further risk of COVID-19. RD and staff can trial different pureed densities that SJV will permit….
24The differences of judgment between the dietician and Ms. Bozzo on the need for a face-to-face, as opposed to virtual video appointment appear in Ms. Bozzo’s entries for September 9, 17 and 30.
Client 3
25The client, assisted by her son, a physician, raised concerns that Ms. Bozzo did not respond to them, which resulted in Client 3 being referred to a different service provider. There is no indication in the records we received that Client 3 or her representative were concerned about the registrant having conducted telephone visits. There is also no indication in Ms. Bozzo’s notes of why she chose virtual care by telephone.
Expert Opinion
26The College’s expert witness, Jennifer Horton, issued her report based on the investigation report of Valerie Henderson, conducted for the College, and reference to College and government policies and guidance regarding standards of practice and procedures during the pandemic. Ms. Bozzo did not challenge the admissibility of Ms. Horton’s opinion evidence.
27Ms. Horton did not interview any witnesses. She had no first-hand knowledge of the interactions between the registrant and the three clients, their families and the staff in the long-term care homes where they resided. Ms. Henderson did not interview any of those individuals; her sources of information were the registrant and three CBI managers: Ms. Woolley, Ms. Mabo-Wazny and Ms. Lalonde.
28Ms. Horton lists one other source of information that she reviewed about the particular facts relating to Clients 1, 2 and 3. That was Ms. Bozzo’s response to the investigation report dated September 9, 2022, in which the registrant provides a brief letter while stating that she was unable to open the investigation report that was sent to her by the College for comment.
29The result is that the factual basis for Ms. Horton’s opinion is different from ours, although some aspects of her opinion are reflected in the records provided to us, and some aspects are confirmed by the testimony provided by the registrant and the staff we heard from at CBI Health.
30Most prominently, the investigation report presents Ms. Bozzo’s consideration and reasoning process about assessing clients in a safe and effective manner in the early months of the pandemic. The investigator also presents second-hand information and documentation that touches upon this issue, a small part of which suggests she did not engage in careful reasoning. The investigator does not state a conclusion, but Ms. Horton appears to accept that Ms. Bozzo made a “blanket” refusal to attend in person (as opposed to a professional risk determination) in the case of Clients 1, 2 and 3.
31Because of the divergence in the factual underpinning of Ms. Horton’s opinion, and because (as set out below) we do not agree with Ms. Horton’s substantive opinion on the application of College and Ministry standards and guidelines on virtual visits as they applied to Ms. Bozzo in the early months of the pandemic, we do not place significant weight on Ms. Horton’s opinion on the necessity of in-person attendances, and Ms. Bozzo’s alleged refusal to comply, at the relevant time.
32At the hearing, Ms. Horton testified that Ms. Bozzo stated on many occasions that she would not see any clients in person. In her expert report, Ms. Horton stated, “based on the written documentation, Ms. Bozzo reported to staff that she does not offer in-person visits.” In fact, this was based on one hearsay notation to that effect in relation to one client.
33Rosi Budd, a care coordinator with what is now Ontario Health at Home, collected information in response to the concern expressed about Ms. Bozzo’s alleged refusal to see clients in person, Ms. Budd reported that on October 30, 2020 in relation to Client 1,
…SLP informed the dietician that she does not make face to face visits in LTC. As per notes on this day it was determined by SLP that patient did not require face to face visit. SLP was referred to Resident Care Manager to arrange a video conference...
34In her testimony, Ms. Horton said there were other references in the documentation to a blanket refusal, but she could not locate them. In her report, after quoting the first sentence of the quotation above, Ms. Horton stated: “accepting this as a fact, it suggests that Ms. Bozzo never applied clinical reasoning when making decisions about her service provisions and instead had a no face-to-face policy at that time.” (emphasis added)
35The essence of Ms. Horton’s opinion in her report was as follows:
Ms. Bozzo failed to adhere to the Practice Standards and Guidelines for the Assessment of Adults by Speech-Language Pathologists in the areas of risk determination, and she did not use approaches appropriate to her patient’s medical needs. From the facts as set out in the investigation report, Ms. Bozzo did not engage in risk determination when considering the impact of phone assessments on her patients who had significant risk factors for aspiration. Ms. Bozzo outlined the risks of in person visits but failed to document or communicate how she was managing the risk of not performing an assessment that may result in an untreated or mistreated swallowing impairment. There is no evidence that Ms. Bozzo used discretion or exercised judgement and instead, her documents are evidence that she only offered virtual telephone visits or transfer to another SLP.
Ms. Bozzo did not follow the guidelines around using the most appropriate approach based on her client’s medical status. It was advised by the dietician for Ms. Burchill that video conferencing was not an option nor was it most appropriate due to difficulties with positioning, medical status and due to severity of the oral dysphagia. Based on the patient’s medical and physical needs and given the severity of her swallowing impairment, an in-person assessment was requested Based on the written documentation, Ms. Bozzo reported to staff that she does not offer in person visits and despite the dietician and the power of attorney (husband) expressing a preference for an in person visit, this was not an option or clinical consideration for this patient who was reported to have multiple risk factors for aspiration.
Ms. Bozzo did not follow the mandatory procedures involved in swallowing service delivery, by failing to conduct a clinical assessment of the client and by failing to provide a management plan and recommendations.
The evidence
36The evidence that was put before Ms. Horton in the College’s investigation report, and the oral and written evidence that we received, was much less clear cut than what she wrote in her expert report. This is true of College standards, SLP practice as described by CBI management, and ultimately the extent of Ms. Bozzo’s analysis and exercise of discretion.
37Aline Woolley, who also testified at the hearing, was the Senior Therapy Manager at CBI at the relevant time. She is a physiotherapist, not an SLP.
38Ms. Woolley relied on the “Service Prioritization Tool” that CBI issued in the spring of 2020, which stated that “F2F” was required service for “clients with feeding/swallowing difficulties who have significant, newly identified and/or immediate safety concerns related to being at risk for aspiration, choking, dehydration or severely decreased oral intake due to dysphagia. Rapidly declining health status.” The CBI document ruled out both telephone and video assessments.
39In all other circumstances, CBI authorized “virtual” visits, which included both telephone and video assessment for several conditions or issues, including:
To support family/caregiver with implementation of quality of life measures for safe feeding strategies,
To measure tolerance of diet modifications or to review understanding of recommendations, and
To determine priority status with Nurse or Director of Care in LTCH/RH to help determine if essential service requiring a F2F visit.
40In Ms. Woolley’s interview with Ms. Henderson in November 2021, she told the investigator she could not answer any clinical questions or provide details about the appropriateness of Ms. Bozzo’s actions. She believed that most SLPs were doing swallowing assessments in person, and she expressed concern with Ms. Bozzo’s recording of her exercise of discretion to use the telephone.
41Lesley Mabo-Wazny was a social worker therapist who became Ms. Bozzo’s supervisor in October 2020, around the time concerns were expressed about the registrant. She inquired with the College and other SLPs, who told her it was preferable that swallowing assessments be done in person in order to observe the oral cavity and the act of swallowing. The next best option was a video assessment, but follow-up visits could be done by telephone.
42Ginette Lalonde was the Manager of Clinical Excellence for Therapy for CBI, and the only SLP other than Ms. Bozzo who was interviewed by the investigator. Ms. Lalonde was not called as a witness by the College.
43Ms. Lalonde said it was typical to visit clients in long-term care homes. Video assessments became a successful method, with support from staff or a family member.
44Where the technology was not available or the client refused video, “therapists would have to do what they can over the phone…this would require a lot of probing the client and the family, and while it is not ideal, the therapist can listen to the client swallow and listen for any subsequent coughs or voice changes.” This information could be difficult to obtain over the phone, so “not many therapists will do a telephone assessment.”
45Ms. Lalonde did tell the investigator that family members and staff could relay information to the SLP during a telephone visit, but this again was not the same as observation. She also confirmed that a dietician could assist with such observations. Ms. Lalonde also stressed the importance of clear documentation by the SLP of her clinical judgment in opting for a telephone assessment.
46Ms. Lalonde provided CBI’s view that SLPs were independent contractors, so it was up to their clinical judgment to exercise discretion for each individual client, and said that CBI did not have a written guideline that dictated the choice. She observed about 10% of assessments being conducted by phone, normally because the client refused F2F or the technology for video was not available. Ms. Lalonde also confirmed that follow-up visits by telephone were practical.
47Ms. Henderson concluded the account of her interview with Ms. Lalonde this way:
Ms. Lalonde wishes to add that in principle, there is no issue with telephone swallowing assessments, but it becomes a concern when they are occurring in a high number for a therapist’s case load. She stated telephone assessments can be done when they have to be, but they should not be the norm. Ms. Lalonde explained the challenge with the registrant was they did not know what was happening during those visits and there was a lack of transparency as to what was being done. She stated it is a red flag when a therapist is unable to rationalize how they did an assessment or how they made their recommendations.
48The College’s case rested on Ms. Bozzo’s telephone assessments of the three clients. Ms. Bozzo explained her approach, and the exercise of clinical judgment, in her interview with the College investigator, in her responses to the investigation report and Ms. Horton’s report, and in her testimony before the Committee.
49She said that at the beginning of the pandemic, there was a lot of confusion and a lack of direction from CBI Home Health about whether swallowing assessments could be done over the phone. She said she was told to conduct virtual visits as much as possible. COVID could be transmitted by caregivers through their interactions in the community and in other health care facilities, and if contracted, COVID could lead to more adverse outcomes for residents in long-term care.
50The registrant said she kept herself informed with College and government directions, the essence of which was not to put clients or other people at risk, and therefore to minimize contacts. It is not fair to say that she refused to do anything but telephone visits. This is borne out by the testimony of the dietician whose second-hand information Ms. Horton and the College relied upon, and most importantly, by the largely uncontradicted testimony of the registrant herself.
51Ms. Bozzo stated that her goal was to support clients and staff as much as possible, and to prevent contracting and transmitting COVID infection. Her practice was across Hamilton, in many environments: clients’ homes, long-term care homes, and other residential facilities. She told the investigator it was “silly” travelling between various client homes and nursing homes and spreading the virus. In the cases under review, the registrant stated that she “attempted all solutions and that phone calls were the only option.” She said she always provided recommendations following a swallowing assessment, and she always provided information on why video was not possible, as well as an indication that College direction was to minimize in-person contact. Ms. Bozzo stated that often the facilities did not receive her recommendations by email, and at times she delivered them in hard copy.
52Ms. Bozzo conducted swallowing assessments over the telephone by talking to as many people as possible who were involved in the client’s care, to collect information and understand what the client was experiencing. The registrant would obtain information about the client’s swallowing, make recommendations and then follow up with the client and staff. Her recommendations included positioning options, feeding strategies, and texture modifications, within the constraints of the available meal preparation options at the particular facilities. According to Ms. Bozzo, almost invariably, both staff and clients were satisfied with her recommendations.
53St. Joe’s Villa, she said, was not set up to perform video visits, and many other locations could not arrange videoconferences without advance notice and a great deal of effort. Several staff had to be coordinated, and they needed to be equipped with PPE: a dietician, a therapeutic recreationist to set up the video equipment, and often a personal support worker and a client’s family member.
54Apart from the challenging pandemic context, the particular circumstances of Clients 1, 2 and 3 must be considered.
55All three clients were at high risk of contracting the virus because of their age, their residency in long-term care facilities, their respiratory infections, their multiple diagnoses and their overall vulnerability. They were each supported by registered dieticians, and Client 1 also had another medical team at another facility that included an SLP.
56Ms. Bozzo interviewed a close family member and then obtained medical, dietary, and feeding information from both family and staff. She recommended a virtual video visit for Clients 1 and 2, both of whom were at St. Joe’s Villa, but it was not available.
57Client 1 was reportedly stable and eating well, and the family member was not aware of eating and swallowing issues. Client 1 was also receiving services from the stroke team at Hamilton Health Sciences, and was therefore receiving appropriate care. In Ms. Bozzo’s view, the added benefit of an SLP’s in person visit was outweighed by the increased COVID risk.
58Client 2 was on a safe and conservative diet texture and fluids consistency, and she was tolerating it to the best of her ability. The family was preparing for the palliative process by declining alternate feeding methods.
59Ms. Bozzo’s reasoning was that the dietician wanted her to attend to downgrade Client 2’s diet, but the client was already on a pureed diet, which could not be downgraded any further. Nevertheless, they agreed on a downgrade to a liquidized diet, because options were minimal.
60Ms. Bozzo pointed out that Ms. Lenarduzzi was authorized to conduct swallowing assessments and only needed to consult an SLP if she was unsure about the appropriate course of action. Ms. Bozzo viewed Ms. Lenarduzzi as a dietician who was very diligent and rarely required the registrant’s recommendations.
61Ms. Bozzo did not know what more she could offer by coming in, when the only thing she could provide was comfort measures. The registrant would follow up within a few days to monitor Client 2’s eating status, as her swallowing was already compromised.
62To enable Ms. Bozzo to do a visual assessment by video conferencing, St. Joe’s needed to coordinate a registered nurse, who could perform the controlled act of suctioning the client. Ms. Lenarduzzi acknowledged that Ms. Bozzo requested, and St. Joe’s did not offer, a video assessment, because it was too difficult to coordinate. Ms. Lenarduzzi did not know whether St. Joe’s was in lockdown at that time. The registrant attempted to appeal to the management of St. Joe’s, without success. Taking into account the needs and risks for these particular clients, at that particular time, and the options that were available, Ms. Bozzo exercised her discretion in favour of a telephone assessment.
63The registrant argued that it was Ms. Lenarduzzi, not Ms. Bozzo, who refused to follow Ministry and College direction. That issue is not before us for decision. Even considering the question leads directly into a recognition that these were uncertain times, with limited knowledge and a lack of clear answers on what was feasible in terms of treatment of elderly persons in residential care. That is not to say Ms. Bozzo or other caregivers were excused from delivering a reasoned response through an exercise of their professional discretion.
64When Ms. Lenarduzzi could not arrange a video assessment, and Ms. Bozzo did not think an in-person attendance was justified, Ms. Lenarduzzi asked for a referral to another SLP from a different company.
65Without an in-person attendance, Ms. Bozzo was still able to collaborate with Ms. Lenarduzzi on strategies to assist Client 2. The registrant recognized the limited scope for intervention that was available, having regard to Client 2’s palliative health status, and she took into account the availability of a dietician on site with the client, with whom she consulted.
66It was the College’s witness Ms. Budd, the home community care coordinator at the time, who wrote on October 30, 2020 in the “event details” (essentially the LHIN’s complaint information) regarding Client 2 the passage that Ms. Horton relied on: “SLP informed the dietician that she does not make face to face visits in LTC.”
67Ms. Budd also wrote “Patient would have benefited from a face to face visit or at least a video conference so that swallowing could be accurately assessed.” Ms. Budd testified that she was not aware when she made this record that St. Joe’s had refused to arrange a video visit.
68She confirmed in her testimony that St. Joe’s was in COVID outbreak when the referral was made to CBI in July, and Ms. Bozzo was assigned on August 28, 2020. Ms. Budd recorded that the facility was accessible in September, and was again in outbreak in October. The result was that in consultation with Client 2’s spouse and the dietician, the referral to a second SLP was put on hold.
69After the referral was made on November 30, 2020, the successor SLP proceeded with an assessment. She too consulted with the dietician and accomplished her work by telephone. She did not make an in-person visit, and her notes record her discussions with Ms. Lenarduzzi, her understanding of Ms. Bozzo’s consultation and recommendations, and the successor SLP’s similar recommendations.
70In Client 3’s case, the College provided no direct evidence from The Meadows, where the client resided. The only evidence that Ms. Bozzo did not attend in person is contained in her service provider report dated July 30, 2020, where she recorded:
Swallowing assessment conducted via virtual phone visits and verbal recommendations and safe swallowing strategies were provided. Continued monitoring is necessary for potential modified/ or diet and fluids. RD services required for monitoring of adequate nutrition/GERD.
71The registrant also indicates that she provided staff and the family with supportive communication techniques.
72There is no rationale indicated in the documentation for a phone visit in this case.
Ministry and College guidelines and advice
73Ms. Horton cited two principal documents relating to impact of the pandemic on in-person and virtual care.
74Pandemic Practice Advice 6: Combined In-Person and Virtual Care dated September 3, 2020 was a College information sheet “intended to help audiologists and speech-language pathologists (SLPs) to provide in-person and virtual patient care during the COVID-19 pandemic.” The College stated that registrants could see patients in person, using virtual care, or a combination. In making that choice, registrants were asked to consider:
Using your professional and clinical judgment,
Patient and [substitute decision maker] choice, and
Ensuring patient care is not compromised.
75The College regarded “virtual care” as “telephone, real-time video, video conferencing, email, texting, online chat, apps and therapy platforms accessed through computers and mobile devices,” and directed registrants that for virtual care, they would have to “implement assessment and treatment adaptations.”
76The document incorporated the College’s Standard for Virtual Care in Ontario by CASLPO’s Audiologists and Speech-Language Pathologists, also dated September 3, 2020, which stated: “…[SLPs] continually assess whether virtual care is an appropriate service delivery model based on the patient’s unique needs, environment, technical abilities and equipment.”
77The Standard went on:
Some parts of the patient plan of care may not be possible through virtual practice. Other parts are not possible without supervised support personnel, or someone to assist the patient such as a family member or caregiver in the patient’s physical environment.
Use your knowledge, skill and judgement in all facets of the patient’s care to determine if and what type of virtual care is appropriate for your patient.
78Ms. Bozzo put forward the February 25, 2021 Official Statement from Speech-Language & Audiology Canada (SAC). The College objected because it postdated the clinical interactions in this case, and because it was produced by a trade organization, not a regulatory body.
79The document is not objectionable on either of these grounds; its contents are not unique to February 2021, and simply collect research and state principles that applied in 2020. Conversely, the statement does not detract from or contradict the College’s Standard and its guidance from six months earlier. The SAC points out the risks inherent in SLP assessment and procedures due to close proximity to clients and contact with mucous membranes of the upper airway as well as exposure to body fluids such as saliva and respiratory droplets.
80The statement also stresses the balance that SLPs must seek to attain in performing their professional duties:
Speech-language pathologists (S-LPs) and communication health assistants are essential members of healthcare teams during the COVID-19 pandemic. When addressing diverse communication and swallowing needs across the continuum of care, S-LPs and communication health assistants reduce the risk of exposure to COVID-19 by applying infection prevention and control strategies appropriate to the healthcare setting.
81The documents submitted to us by the College and the registrant have a common theme. There was no absolute rule that dictated whether SLP services were to be carried out in person, by video or on the telephone in all circumstances. The SLP’s essential obligation was to add infection control techniques to the list of professional health-care strategies they had to analyze and implement in order to provide safe, effective and ethical health care within their area of professional expertise.
82The evidence does not bear out the allegation that Ms. Bozzo applied an inflexible rule to the client assessments and recommendations she was asked to perform. The evidence also does not support the conclusion that after exercising professional judgment and balancing all of the relevant considerations, there was only one acceptable answer to the question of whether an in-person visit was necessary and appropriate for the three clients.
83The College’s expert placed undue reliance on hearsay information that Ms. Bozzo refused all in-person client visits. Ms. Horton did not have the benefit of Ms. Bozzo’s first-hand information or the full context in which the registrant was providing service at the relevant time. Despite the unqualified opinion she expressed in her report, Ms. Horton (like virtually every other SLP and CBI manager who testified at the hearing) acknowledged that the professional standard required the exercise of professional judgment.
84We heard from both Ms. Lenarduzzi, who is recorded by Ms. Budd as having received the comment from Ms. Bozzo about refusing in-person contact, and Ms. Budd, who made the record in the event details.
85In fact, Ms. Budd testified she did not know who provided this information about Ms. Bozzo. Moreover, Ms. Lenarduzzi did not say in her testimony that the registrant refused to do face to face visits altogether. The result is that we have unclear, hearsay evidence that that was insufficient to prove that Ms. Bozzo made a blanket refusal to perform face to face visits.
86Ms. Budd had no information about the registrant’s reasoning, and indeed did not know that Ms. Bozzo had requested and Ms. Lenarduzzi had ruled out a video visit.
87From the registrant we have a much more extensive description of the balancing of client, staff and registrant safety against the options that were available to her and the effectiveness of each of them in the individual circumstances of the three clients.
88In our view, Ms. Bozzo’s reasoning process with respect to the method by which she would assess, treat and provide advice to the three clients was neither inflexible nor unreasonable. She exercised her professional and clinical judgment in good faith, under the extraordinary circumstances of the pandemic, and it is neither the College’s nor our role to determine whether we would have reached the same conclusion in each case.
Conclusion on allegation of incomplete assessments (allegations 1 through 5 reproduced earlier)
89These allegations, while listed in the notice of hearing under the heading “Conducting incomplete assessments,” make the principal allegation that Ms. Bozzo failed to comply with the College’s regulatory requirements relating to her choice of virtual assessments by telephone. For the reasons set out above, we find that the College has not proven professional misconduct as set out in that allegation.
90Several of the sub-allegations of allegation 5 make a related but different allegation of a failure to keep proper records, which is the topic of the College’s next heading in the notice of hearing, and will accordingly be considered in the next part of these reasons.
91With respect to the telephone assessment aspect only, and to the extent that allegations 1 through 4 reproduced above are intended to be allegations of professional misconduct, we make no finding of misconduct on these allegations as they relate to Ms. Bozzo’s choice of virtual care, and her reasoning process in that context.
92We make no finding of misconduct on allegations a, b, c, d, f, g, h and i of allegation 5 insofar as they allege that Ms. Bozzo failed to comply with College Standards and Advice in her choice of telephone assessment of the three clients. To the extent that allegations e, f, h and i incorporate issues of record keeping, we consider them below.
B. Failing to maintain proper records
93In the notice of hearing, the College’s allegations under this heading read as follows:
The member failed to make proper records on a timely basis, or at all. Record audits revealed missing or incomplete charts, some lacking consent forms, missing notation sheets, duplicate copies of reports and many other errors.
Among other things, the records also demonstrated a lack of:
a. evidence of informed consent;
b. an initial report on file;
c. notation sheets (progress notes);
d. timeliness of discharge reporting from last visit;
e. evidence of consent to communicate outside of circle of care; and
f. reason for the client’s discharge.
94This allegation turns largely on the documents in the three client files we were provided, the documents that the registrant says she wrote but are missing, and Ms. Bozzo’s explanation for why they are missing.
95On December 2, 2021, Ms. Mabo-Wazny sent Ms. Henderson an audit of five of the registrant’s client records, including the three clients at issue in the notice of hearing. Her scores ranged between 23 and 43 out of a possible score of 50. Issues included absence of documented consents, notation sheets (including assessment and reassessment findings, plans regarding the necessary interventions, ongoing evaluation of client progression, and clear documentation of the client’s status, with further recommendations, at discharge).
96In Client 1’s case, the registrant’s notes on the notation sheets for September 2, 11, 17 and 30, October 15 and 26 and November 2, 2020 were all validated (confirmed accurate) by Ms. Bozzo on November 4, 2020. Ms. Mabo-Wazny testified without contradiction that they should have been validated on completion, or within a day or so thereafter, to ensure they were current and accurate. In fact, she had had an earlier discussion with Ms. Bozzo about the importance of timely documentation, and this was one of the issues discussed when they and Ms. Wooley met on November 4, 2020.
97When Ms. Mabo-Wazny held another meeting with Ms. Bozzo in early February 2021, notation sheets were again incomplete and entries were being validated in blocks.
98Ms. Bozzo did not challenge the claim that proper records were missing from many of her charts. Her response, in essence, was that she was not at fault. Rather, records were missing because of longstanding IT problems, spanning at least 2019 to 2023. In the documentation and testimony we heard, it is clear that she has raised these issues many, many times with CBI management, co-workers, IT specialists, College staff, the investigator and counsel in this proceeding, and with the Hearings Office
99Indeed, after the start date, time and log in information for this hearing had been provided several times to Ms. Bozzo, she was not present when the hearing began on June 19, 2024. After satisfying ourselves that she was properly served and notified, and after attempting to get in touch with her, she indicated that she had received an email from College counsel the night before stating that the hearing was adjourned. We proceeded in her absence. She did not produce that email, and College counsel compiled a brief of the communications between and among them, Ms. Bozzo and the Hearings Office at that time, which makes it clear that no such communication was sent to her.
100In addition to the allegation of improper record-keeping, the registrant has had to confront accusations that she did not respond to clients, the College, its investigator, all of which are now before this Committee. Faced with such allegations, it was incumbent on her to provide specific explanations for her apparent non-compliance with numerous professional obligations.
101Ms. Bozzo did not provide any clear or reliable evidence that IT problems could explain a failure to communicate with clients, CBI Home Health, long term care facilities, her regulator, and its investigator in a wide array of different circumstances over such a lengthy period, when concurrently, many other email communications were being received and acted upon by the same parties.
102The explanation, to the extent the registrant provided one, is unclear, and we will only provide a brief and general summary, given its sensitivity. Ms. Bozzo says she has had some personal issues, outside her professional work, and CBI staff may have become involved in some way that affects her safety and could have led unnamed persons to want to sabotage her work.
103Neither the College, nor this Committee, had sufficient information to accept that IT issues caused Ms. Bozzo’s professional shortcomings.
104We therefore find that the registrant failed to maintain proper records, as alleged in allegations 6 and 7 reproduced above.
105These allegations overlap with the record-keeping allegations 5e, f, h and I, which we referred to earlier, and we find professional misconduct in relation to those allegations as well, as they pertain to record-keeping.
106With respect to allegation 5e, Client 3’s family member complained to CBI that the registrant failed to respond to inquiries made by Client 3’s caregivers and family. We have no direct evidence from those individuals about what was reported by Ms. Mabo-Wazny to the investigator and to this Committee. The chart, however, is clear that there is no record of strategies or recommendations that Ms. Bozzo provided to the family and Client 3’s caregivers.
107With respect to allegation 5f, we have quoted the rationale that Ms. Bozzo provided for conducting a telephone assessment of Client 2. She did not provide any record justifying her determination that telephone visits were appropriate in the case of Clients 1 and 3.
108Allegation 5h appears to address the same point as 5f, and to that extent our conclusion is the same. We did not find any deviation from accepted standards as it relates to the registrant’s “clinical reasoning and rationale,” as it pertains to conducting telephone assessments.
109With respect to allegation 5i, the registrant’s notation sheets for Clients 1 and 2 indicate that she provided the clients with strategies, recommendations or education, but no specifics are documented.
110We therefore accept that the College’s allegations 5e, f, h and I are proven, to the extent indicated above.
111Ms. Bozzo was required to make the records listed in allegations 5e, f, h and I, 6 and 7 under the provisions of CASLPO’s 2018 Documentation Standards and the Record Regulation, Part II of O. Reg. 21/12 made under the Audiology and Speech-Language Pathology Act, 1991, SO 1991, c. 19 that we have reproduced below. The missing documents as particularized by the College comprise a subset of the wide array of records listed in the Record Regulation relating to the registrant’s provision of service that must be kept.
Documentation Standard 1: Members must document all aspects of the provision of services.
Documentation Standard 4: Members must, when working with others, take all reasonable steps to ensure that the patient’s records are up to date, accurate and complete.
Record Regulation:
Duty to keep records up to date, etc.
- (1) Every member shall, in relation to his or her practice, ensure that his or her records are up to date and made, used, maintained, retained and disclosed in accordance with this Regulation. O. Reg. 164/15, s. 3
32 (2) For every patient who is not part of a screening process, a member shall maintain a patient health record that contains the following information:
The patient’s name, address, telephone number and date of birth.
The date and purpose of each professional contact with the patient and whether the contact was made in person, by telephone or electronically.
The name and address of any person who referred the patient to the member, if available.
The patient’s health history, including any educational, developmental or other relevant issues concerning the patient.
The nature and, if known, the result of,
i. each assessment relating to the patient,
ii. each clinical finding relating to the patient,
iii. any recommendation made by the member to the patient,
iv. each treatment performed, and
v. any advice given to the patient, including any pre-treatment or post-treatment advice, and the identity of the person who gave the advice if that person was not the member.
The identity of the person who provided any service to the patient, if that person was not the member.
Every referral of the patient by the member to any other person.
Every written report received by the member relating to an assessment, test, consultation or treatment performed by any other person concerning the patient.
Every professional service that was commenced but not completed, including the reasons for non-completion.
Every cancellation of an appointment by the patient and, if available, the reason for the cancellation.
Every refusal of a treatment or procedure by the patient or by the patient’s authorized representative.
A record of every consent provided by the patient or by the patient’s authorized representative.
C. Failing to respond to inquiries in a timely manner
112The College alleges three sets of failures to respond by the registrant: to client family members, to CBI Home Health, and to the College and its investigator:
The member persistently failed to respond to client family members who attempted to contact her to obtain direction on how to support the client’s swallowing needs.
In addition, despite multiple requests by CBI Home Health for charts to be handed in, the member did not return complete records.
Further, the member failed to cooperate during the College’s investigation. Among things, the member failed to respond to calls and emails from the College and its investigator. Even after the College was able to contact the member, she continued to refuse to cooperate with the investigation.
113Allegation 8 relates to caregivers at The Meadows and Client 3’s family reporting to the LHIN that they attempted to obtain feeding recommendations from the registrant, who did not respond. Ms. Bozzo denies this allegation, and she testified about her practice, based on extensive experience and her sense of responsibility.
114We have no reason to reject the substance of her position on what she would have done in these circumstances, although we have not accepted her broad assertion that communications did not reach her. The College did not call any of the witnesses who could provide more than double hearsay evidence that she failed to respond. We therefore make no finding of professional misconduct on this allegation.
115Allegation 9 appears to relate to the period after November 4, 2020, when CBI Home Health supervisors were attempting to collect the necessary information to respond to the LHIN about the issues raised by the three clients, including telephone visits, record keeping and failure to respond. CBI was also coaching Ms. Bozzo on these points.
116For these reasons CBI asked for various missing records in the three files. By February 2021, Ms. Bozzo provided two of the three client charts, and documents were missing. The registrant cited IT issues on this occasion as well, and Ms. Mabo-Wazny told her to contact IT directly. She did not.
117Ms. Bozzo submitted that her contract was terminated by CBI on April 23, 2021, which left her unable to access the CBI portal to finish notes and reports for clients. The fact remains that the records in the charts that are relevant to this hearing should have been completed several months earlier.
118We find that the College has proven this allegation.
119Allegation 10 is an allegation that a regulated professional failed to cooperate with her regulator when it attempted to fulfil its public interest mandate by investigating concerns raised by members of the public, including clients, the LHIN and CBI Home Health.
120The chronology of attempts by the investigator, Ms. Henderson, to interview and obtain information from the registrant occupy about three single spaced pages in Ms. Henderson’s investigation report. Ms. Bozzo does not contest her account, which will only be summarized here.
121On September 29, 2021, the College’s Case Manager Grace Maharaj sent the registrant a letter at the email address on the College’s records, notifying Ms. Bozzo of the investigation.
122On January 6, 2022, Ms. Henderson contacted Ms. Bozzo at the same email address. In the absence of a reply, the investigator followed up with another email on January 11 and a voice message on January 13. A search was then initiated, which confirmed that this was the only active phone number for Ms. Bozzo.
123On January 27, the registrant answered when Ms. Henderson called her from a blocked phone number. She denied any knowledge of any notification of an investigation or of the investigator’s emails and voicemail. During the call, Ms. Henderson sent her Ms. Maharaj’s previous correspondence, which she acknowledged receiving. Ms. Bozzo cited technology issues.
124An interview was set up for January 31. When Ms. Henderson called, the registrant expressed concern and stated that would not proceed with an interview until she received correspondence directly from CBI Home Health or the College. Ms. Henderson explained the role of CBI Home Heath in making a mandatory report when there is a termination. Ms. Bozzo denied that this applied, because she was an independent contractor.
125Ms. Henderson reminded her of her professional obligation to cooperate with the investigation. The registrant stated she needed to know the issues were “legitimate,” because the process seemed “very sketchy” and not “legal” or “valid.” Ms. Bozzo said she would be contacting the College.
126On February 2, Ms. Maharaj sent Ms. Bozzo a letter, assuring her of the legitimacy of the process and confirming that the registrant would reach out to the investigator.
127On February 7, Ms. Henderson scheduled an interview for February 8. On that day, Ms. Bozzo cut the interview short when Ms. Henderson began asking about the mandatory report, and said she needed to “consult someone” before answering the questions. The investigator reiterated that Ms. Bozzo was required to cooperate, and she did not need to consult anyone other than legal counsel before providing information to the College investigator. Ms. Henderson also provided information about the investigation process, and the obligation of an independent contractor to respond. The call ended at that point.
128Ms. Bozzo spoke again with Ms. Maharaj, who attempted to allay the registrant’s concerns about the validity and authenticity of the investigation. However, Ms. Bozzo sought legal advice from Ms. Maharaj. When it was not forthcoming, the registrant expressed her concern that the College was not providing support.
129Ms. Henderson completed the registrant’s interview on February 9.
130Once the investigation report was completed, Ms. Maharaj made many attempts to deliver it to Ms. Bozzo. Each time, she said she did not receive it, citing tech issues. Ms. Maharaj wrote her again, tried to troubleshoot with her on the phone, and ultimately sent her a USB drive containing the investigation report. As noted, Ms. Bozzo said she could not open it.
131Because of these access issues, the College extended Ms. Bozzo’s time for response in succession to April 28, May 2 and May 19, 2022.
132It appears that after receiving further assistance and support, the registrant said on June 20 she was able to open the report on another computer. The College granted further extensions to July 20, then August 23, August 30 and finally September 6, 2022.
133The jurisprudence is clear that regulated professionals must conduct themselves in good faith to cooperate promptly and completely with their regulator’s inquiries, to enable the regulator to fulfil its statutory duty to protect the public interest through timely and effective investigations. See for example, Law Society of Ontario v. Diamond, 2021 ONCA 255.
134Ms. Bozzo’s response to the College and its investigator was the antithesis of cooperation. She
delayed,
professed not to have received communications sent to her at the proper phone and email coordinates,
questioned the legitimacy of the investigation,
raised irrelevant issues such as the role of CBI Home Health and the need for successive written confirmations of the College’s authority, and
criticized the steps and the position taken by the College on the basis that it was providing her with insufficient support.
135The evidence supports the College’s Allegations 9 and 10.
D. Failing to meet the collaboration standard
136The College alleges:
- On a number of occasions, the member’s conduct towards her co-workers, clients and others was inappropriate. In addition to frequently being unresponsive, the member was not collaborative and either failed to communicate or communicated inappropriately.
137Ms. Horton cited Ms. Bozzo’s duty to develop and maintain positive professional relationships with her colleagues and other professionals. She states that
…from the investigation report, there are multiple health professionals that reported that she was difficult to work with or that she was non-responsive to emails and phone calls. There is no evidence that these disagreements were resolved and rather than taking reasonable steps to resolve the disagreement with the RD, Ms. Bozzo chose to call the Director of Care to state her position. When the family requested an in person assessment, Ms. Bozzo advised the family that she could refer to another SLP who would be able to assess in person, recognizing that it would result in a delay in services. When she received requests from care coordinators and family members, she was not responsive.
138Ms. Horton pointed to two College Collaboration Standards and a College Position Statement, the relevant portions of which are as follows:
Standard 1: Members must communicate effectively and collaboratively with all involved, focusing on a patient centered approach.
A patient-centred approach is fundamental to effective service delivery. This approach involves collaborating with the patient in order to accommodate dietary, language, cultural, ethnic and personal needs. Not only must the member work in collaboration with the patient, they must also work in collaboration with the caregiver, family and friends, as well as healthcare, community and/or education teams.
Standard 4: Members must make reasonable attempts to resolve disagreements between Service Providers involved in the patient care.
Should disagreements arise between professionals involved in the care of a patient, CASLPO members must make reasonable attempts to resolve the disagreement directly with the other professional, and take such actions as are in the best interests of the patient. The CASLPO Position Statement on Resolving Disagreements Between Service Providers must be followed.
CASLPO Position Statement, under the hearing “Requirements”:
In all situations of disagreement with another service provider, a registrant must make reasonable attempts to resolve the disagreement with the other service provider(s) when deemed necessary, in the patient’s best interest, recognizing that more than one approach to appropriate services may exist. The College recognizes that in some situations, it may not be possible or appropriate for the registrant to attempt to resolve the disagreement with the other service provider(s).
139To the extent that the College’s Allegation 11 attaches the label “non-collaboration” to its allegations in Allegations 9 and 10 of “non-cooperation” with or “non-response” to CBI and the College’s staff and investigator, we accept that Allegation 11 has been proven.
140To the extent that Allegation 11 attaches the label “non-collaboration” to Ms. Bozzo’s alleged non-response to Client 3 and her family, we have already determined that allegation is not proven, and therefore we do not find a failure to collaborate in that respect.
141Beyond those duplications, the College and its expert rely on a vague description of workplace or professional disagreements between the registrant and a client, caregiver or family as an absence of collaboration. To demonstrate that such interpersonal behaviour merits a characterization as misconduct, the College would have to adduce more precise first-hand evidence about what was said and done by each individual.
142Only then could the Committee meaningfully assess whether one side of the disagreement acted in a manner that had the potential to harm the best interests of the client. Indeed, the Standards and the Position Statement cited by the College understandably recognize that disagreement cannot necessarily be equated with non-collaboration.
143We did not receive such evidence, and we would not brand Ms. Bozzo’s behaviour in that way.
CONCLUSION
144We are satisfied from the registrant’s evidence and her presentation of the case, as well as the testimony we heard about her reputation as a caregiver, that she is an experienced and committed professional, who believed she was acting in the best clinical interests of her clients during a time of unusual risk and volatility, particularly for residents of long-term care facilities.
145That said, the evidence reveals that Ms. Bozzo was and is offended at her professional conduct being challenged, and that has contributed to her reaction when inquiries were initiated into her conduct. She failed to meet her vital professional obligation to cooperate with CBI Home Health and the College.
146Moreover, we did not accept her attempted justification – IT and phone issues and sabotage – for what we have found to be serious shortcomings in her responses to CBI and the College, and in maintaining proper clinical records to safeguard the interests of her clients.
147At the same time, we do not accept the College’s invitation to apply this credibility finding to all of the serious allegations she has contested, and the result is a divided outcome on the allegations before us.
148Based on our findings and analysis under sections B, C and D of these reasons, we conclude that the registrant engaged in professional misconduct within the meaning of the following paragraphs of section 1 of Ontario Regulation 749/93 under the Audiology and Speech-Language Pathology Act, 1991:
paragraph 2 (failing to maintain a standard of practice of the profession),
paragraph 19 (failing to keep records as required in accordance with Part II of Ontario Regulation 21/12 (General) made under the Act),
paragraph 21 (failing, without reasonable cause, to provide a report or certificate relating to an examination or treatment performed by the member, to the patient or client or his or her authorized representative after a patient or client or his or her authorized representative has requested such a report or certificate, and
paragraph 37 (engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional).
149We will address the appropriate penalty and costs order at a further half-day hearing to be arranged by the Tribunal Office. If either party intends to call witnesses or believes the hearing will require more than a half day, they should discuss this with the other side and advise the Tribunal within one week. We will give case management directions as appropriate.
Raj Anand (panel chair), on behalf of the panel