CITATION: Williams v. Health Professions Appeal and Review Board, 2022 ONSC 2217

DIVISIONAL COURT FILE NO.: 748/21

DATE: 20220411

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Matheson JJ.

BETWEEN:

Randi Williams, RN

Applicant

– and –

Health Professions Appeal and Review Board and the Ontario College of Nurses

Respondents

COUNSEL:

Lorne Honickman and Laura Brown, for the Applicant

David P. Jacobs, for the Respondent, Health Professions Appeal and Review Board

Jean-Claude Killey and S. Jessica Roher, for the Respondent, Ontario College of Nurses

HEARD at Toronto by videoconference: April 4, 2022

Introduction

[1] On September 19, 2019, the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Nurses (“College”) ordered the Applicant, who is a Nurse Manager, to complete a specified continuing education or remediation program on professional standards and obtaining consent. The Applicant appealed the ICRC’s Decision to the Health Professions and Appeal Board (“HPARB”). On August 4, 2021, the HPARB found that the ICRC’s Decision was reasonable and dismissed the Applicant’s appeal. The Applicant now seeks to judicially review the HPARB’s decision.

[2] The ICRC Decision arose out of a complaint against the Applicant and another nurse employed at the same long-term care facility who had a resident execute a “Do Not Resuscitate” Consent Form (“DNR”) in circumstances where it is alleged that there were reasons to question his capacity to consent. The ICRC concluded that there were a number of reasons to question the resident’s capacity to consent at the time he signed the DNR and that there was no indication that the Applicant (who had a few days before found that the resident lacked capacity) or the nurse who obtained the consent took the appropriate steps to assess whether the resident had the capacity to consent. The ICRC found that, as Nurse Manager, the Applicant should have ensured that an appropriate assessment was done before the DNR was signed.

[3] The Applicant submits that both the ICRC and the HPARB’s decisions were unreasonable because they failed to consider the main issue in the case – namely, whether the resident had the capacity to consent to the DNR. While not pursued in oral argument, the Applicant also alleged that the ICRC unreasonably failed to take account of certain evidence that undermined its findings.

[4] For the reasons that follow, I would dismiss the application. There is no reason to question the reasonableness of the decisions under review. The complainant raised concerns about the resident’s capacity to execute the DNR and both tribunals found that those concerns were well-founded. In coming to this conclusion, it was not necessary to decide whether the resident had the necessary capacity when he executed the DNR. In fact, the necessary implication of the decisions under review is that it is not possible, based on the record, to make that decision because the records do not reveal that the resident’s capacity was properly assessed before he signed the DNR. The conclusions in the decisions were supported by the evidence before the tribunals. The evidence put forward by the Applicant does not contradict the result of the decisions, which was remedial and not punitive. The reasoning in both decisions is transparent, justifiable, and intelligible. Essentially, the Applicant is asking this court to review the record, with a view to having us come to a different conclusion based on that record. That is not our task on a reasonableness review.

Factual Background

Events Leading Up to the Complaint

[5] The resident was admitted to a long-term care facility on August 10, 2017, where the Applicant was the Nurse Manager. Prior to his admission, the resident was diagnosed with schizophrenia, intellectual disabilities, developmental delay, dementia, epilepsy, scoliosis, a history of hallucinations, and scored a 12 out of 30 on the Montreal Cognitive Screening test.

[6] When the resident arrived at the facility the Applicant determined that the resident did not have the capacity to sign his admission paperwork, including the DNR. The Applicant asked the complainant, who was the resident’s sister and Substitute Decision Maker (“SDM”), to come in the next day to complete the admission paperwork.

[7] The next day, on August 11, 2017, the Applicant asked the complainant to authorize the DNR on behalf of the resident. The complainant stated that she wanted time to discuss the matter with her brother. In a note dated that day, the Applicant wrote:

Reviewed that yesterday in conversation resident could not identify date, time, season, year, etc. Determined at that time that he did not have capacity to complete paperwork competently. SDM hopes this improves as that is not resident’s baseline.

[8] On Sunday, August 13, 2017, a nurse at the facility, G.C., noted that she had been unable to complete the resident’s admission consents over the weekend because he was overwhelmed and lethargic. She documented that she had asked the resident what his wishes were should his heart stop, and he said he needed time to think about it.

[9] On the morning of August 15, 2017, G.C. approached the resident again regarding the DNR. Her note of the interaction states:

This RN re-approached this Resident after breakfast this morning to question him again. This Resident stated that “I want God to decide when it is my time to go.” This RN reiterated “So, if your heart should stop, you do not want CPR or staff to do compression on your chest.”, in which this Resident firmly said, “No.”. RN (A.D.) overheard the conversation between this RN and this Resident. This RN has updated this Resident’s order section to include “Allow Natural Death” completed the DNR Confirmation Form.

[10] On the same day that he signed the DNR another RN documented that the resident had been standing in a doorway staring at other residents and their families and became angry when being directed to go somewhere else. A large, solid bowel movement was in the basket of his walker at that time.

[11] The resident was later diagnosed with metastatic cancer, his health deteriorated rapidly in October 2017, and he passed away on November 1, 2017.

The Complaint

[12] The complainant complained to the College that the Applicant:

(a) Allowed nurses to have the resident sign the DNR when he lacked the capacity to understand what he was signing;

(b) Violated the resident’s right to life by having him sign the DNR when he lacked capacity;

(c) Failed to obtain consent from the resident’s family or SDM to sign the DNR; and,

(d) Failed to notify the resident’s family that he had signed the DNR.

[13] The ICRC investigated the complaint and obtained all the relevant records. It also received a response from the Applicant in which she asserted that, at the time the resident signed the DNR, he had the necessary capacity and that she was not required to obtain consent from his family or SDM.

The ICRC Decision

[14] After reviewing the above facts, the ICRC found as follows:

The panel notes that there are a number of reasons to question the Patient’s capacity to consent, yet there is no indication that the Member, G.C. or other nursing staff considered this possibility or took steps to formally assess the Patient’s capacity prior to obtaining his signature. The panel highlights the Patient had not been considered capable of consenting by the Member only a few days before, on August 11, 2017. In light of this, the panel notes that if G.C. believed that the Patient’s status had changed and he had capacity on August 15, 2017, she should have explicitly assessed and documented her assessment of the Patient’s capacity.

The panel notes that as G.C.’s Manager, the Member had a responsibility to oversee G.C.’s nursing practice, particularly regarding key documentation and decisions like DNRC consents. The panel highlights that the Member had been directly involved in the Patient’s admission and in engaging with the Complainant, who she had identified as the Patient’s SDM. Given that G.C. had deemed the Patient capable of signing the DNRC Form in direct conflict with the Member’s opinion that he had not been capable of doing so on admission, the panel notes the Manager’s responsibility to supervise G.C.’s actions. The panel notes that as Nurse Manager, the Member should have ensured that a care team meeting was organized following assessment of the Patient to discuss the results of the assessment and provide decision-making oversight.

The panel notes that there is insufficient information to show that the Member ensured that the Patient’s capacity had been comprehensively assessed prior to obtaining his consent on the DNRC Form. In light of this, in the panel’s view there is information to support these complaints.

[15] The ICRC dismissed the complaint relating to the Applicant’s failure to notify the resident’s family that he had signed the DNR.

[16] The ICRC ordered that the Applicant participate in a remediation program. This program included reviewing the College’s Practice Standards for Professional Standards and Consent and attending a meeting with an approved regulatory expert to discuss the incident and the insights she had gained from the practice reflection.

The HPARB Decision

[17] The HPARB found that the ICRC’s Decision was reasonable. As put by it:

The Committee’s decision makes frequent and specific references to information in the Record. For example, the Committee relied upon numerous notes in the patient’s records regarding his condition and interactions with nursing staff. The Board finds that the contemporaneous documentation in the medical record supports the Committee’s decision. The Board finds it was reasonable for the Committee to conclude the Applicant should have ensured that a care team meeting was organized following assessment of the patient to discuss the results of the assessment and provide decision-making oversight and that there was insufficient information to show that the Applicant ensured that the patient’s capacity had been comprehensively assessed prior to obtaining his consent to the DNRC Form.

Standard of Review

[18] The parties agree that the standard of review that this court should apply to the HPARB’s decision is reasonableness. We must also consider the IPRC’s decision because the HPARB’s decision rests on a finding that the former was reasonable.

Analysis

[19] The Applicant submitted that the decisions under review were wrong in law and, therefore, unreasonable. In making this submission the Applicant relied on s. 4 of the Health Care Consent Act, S.O. 1996, c. 2, Sch. A (the “HCCA”), which defines capacity as being “able to understand the information that is relevant to making the decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. It further sets out that a person is presumed to be capable.

[20] According to the Applicant, the HCCA does not require a formal capacity assessment when obtaining a patient’s consent to a specific treatment procedure. Further, in obtaining the consent, capacity is to be assessed only with reference to that specific procedure. Finally, capacity is fluid; it fluctuates over time. A person may seem incapable one day and capable the next.

[21] The Applicant argues that in this case the central question was whether the resident had the capacity to sign the DNR on August 15, 2017. If he did, there was no merit to the complaint. The Applicant also submits that viewing the record as a whole it is clear that the resident did have the capacity on August 15, 2017, to sign the DNR. His responses to the questions asked by G.C., that are detailed in the records, showed that he knew what a DNR meant and that he was clear that he did not want any intervention if his heart stopped. The HPARB and the ICRC failed to make a finding regarding the resident’s capacity on August 15, 2017. Therefore, their decisions are unreasonable.

[22] The problem with this submission is that it ignores the ICRC’s central finding, which was that the resident’s capacity to consent to the DNR was never properly assessed on August 15, 2017. As found by the ICRC, the records do not disclose that G.C., or the Applicant, or any of the nursing staff did anything to appropriately assess whether the resident’s capacity had changed since he was admitted on August 10, 2017 when the Applicant found that he was incapable of signing a DNR. This assessment did not change on August 11, 2017. On August 13, 2017, the records also show that it was not considered appropriate to ask the resident to consent to a DNR. As viewed by the ICRC, G.C.’s notes confirmed that she had received the resident’s consent; however, they did not confirm that she or any of the nursing staff had conducted any assessment of the resident’s capacity to give that consent.

[23] The Applicant submitted that G.C.’s questioning of the resident was all that was needed to assess the resident’s capacity. The ICRC disagreed. It found that the questioning only established that the resident was consenting. This was a factual finding that, absent exceptional circumstances, should not be interfered with on judicial review. I also note that on August 15, 2017, G.C.’s notes indicate that in response to her questioning the resident replied: “I want God to decide when it is my time to go.” In the note made of her interactions with the resident on August 10, 2017 (when the Applicant found that the resident did not have the requisite capacity), the Applicant wrote: “Resident spoke about God a lot throughout conversation, would deflect answering a question by stating ‘that is up to God, the higher power’”.

[24] This raises the question whether the resident’s answer to G.C. was an attempt to deflect or whether it showed that he had the necessary capacity to consent. Because no appropriate attempt was made to reassess the resident that question cannot be answered.

[25] As the College conceded, there may well be situations where what G.C. did before she had the resident sign the DNR was enough. However, the ICRC found that it was not in the specific circumstances of the matter before it. This was because there were real concerns about the resident’s capacity to consent. These emanated from his underlying condition, his condition when he was admitted, his condition three days later, and his condition the day he executed the consent, when he was observed to be engaging in behaviour that was both disruptive and strange. The evidentiary record before it amply supported the ICRC’s finding that there were concerns about the resident’s capacity to consent on August 15, 2017, and that his capacity should have been properly assessed.

[26] In terms of the Applicant’s responsibility, as the ICRC pointed out, she was not only the Nursing Manager, but had been the one who had found that the Applicant was incapable just a few days before the DNR was signed. Thus, it was reasonable for the ICRC to find that she should have ensured that a proper assessment of the resident’s capacity was done before the DNR was executed.

[27] In her factum, the Applicant also argued that the ICRC’s decision was unreasonable because it did not refer to or address certain information or documents in the record, including the conclusions of the MOHTCL Report, the CPSO Response, and the PT form signed by the treating physician. The HPARB held that the ICRC meaningfully grappled with the key issues before it and that it was not necessary for the ICRC to have addressed this information.

[28] Administrative decision makers are not required to address every issue or argument as long as their reasons meaningfully account for the central issues and concerns raised by the parties. See: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 127-128.

[29] The MOHTLC Report concluded that no finding could be made on whether the resident was incapable of making his own decision at the time he signed the DNR. This finding is not inconsistent with the ICRC’s conclusion, nor does it undermine it in any way. As the HPARB reasonably found, the ICRC was not focused on determining whether the resident had the capacity to consent, but on whether his capacity had been appropriately assessed and documented. Further, the MOHTLC Report inaccurately stated that when the resident was admitted to the home on August 10, 2017, “they were deemed capable of making their own decision.” This assessment was contrary to the Applicant’s own documented assessment of the resident on that date.

[30] The Applicant also submitted that the PT Form and CPSO Response indicated that the treating physician believed that the resident had the capacity to consent to the DNR. What the treating physician actually said was “[a] very capable nurse who, within her scope of practice, determines competency and plan of treatment assessed [the Resident].” Thus, the physician did not make his own assessment of the resident’s capacity, he relied on the fact that a nurse (whom he regarded as capable) had made the appropriate assessment before the DNR was signed. Thus, as the HPARB reasonably found, the information contained in the PT Form and CPSO Response in no way undermined the IPRC’s finding that, in fact, no appropriate assessment had been done by G.C.. In terms of the physician’s belief that G.C. was capable and was acting within the scope of her practice, the ICRC’s decision did not address either of these facts, nor did it need to.

Conclusion

[31] For these reasons the application is dismissed. As agreed by the parties the Applicant shall pay the College its costs of the application, fixed in the amount of $15,000.00, all inclusive.

Sachs, J.

I agree _______________________________

Backhouse, J.

I agree _______________________________

Matheson, J.

Released: April 11, 2022

CITATION: Williams v. Health Professions Appeal and Review Board, 2022 ONSC 2217

DIVISIONAL COURT FILE NO.: 748/21

DATE: 20220411

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Matheson JJ.

BETWEEN:

Randi Williams, RN

Applicant

– and –

Health Professions Appeal and Review Board and the Ontario College of Nurses

Respondents

REASONS FOR JUDGMENT

Sachs, J.

Released: April 11, 2022