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Mike Gillette JC06746
Allegations and Plea
The College alleged that the Member contravened or failed to meet a standard of practice of the profession and abused two clients verbally, physically or emotionally on two separate occasions. Specifically, the College alleged that the Member provoked Client A to respond in an aggressive manner; swatted the client’s hands off a chair; requested the client to sit down for lunch; and/or elbowed the client. The College alleged that the Member grabbed Client B by the collar with sufficient force to rip the client’s shirt.
For both clients, the College alleged that the Member used excessive force and/or an inappropriate technique in relation to restraining the clients and failed to document the restraints.
Lastly, the College alleged that this conduct would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional.
The Member was neither present nor represented by counsel at the hearing and was deemed to have denied the allegations. The hearing proceeded on the basis that the College bore the onus of proving the allegations against the Member.
Evidence / Submissions
The Panel heard from seven staff witnesses, one expert witness and considered 27 exhibits.
The Member worked at a psychiatric facility in an in-patient program that was mandated to provide care for clients identified as having dual diagnoses, specifically clients with a developmental disability in addition to a mental health diagnosis like autism or schizophrenia.
Client A had multiple admissions in 2011. Client A was diagnosed with profound developmental disability, autistic disorder, diabetes and seizure disorder. From June to July 2011, Client A was noted to be at risk for choking and falls, but was not at risk for violence/aggression. From July to August 2011, Client A was noted as being at risk for violence/aggression. Rushing the client was a trigger for aggression. A documented strategy to mitigate the risk was to allow time to process and respond.
Witness testimony indicated that Client A did not like to be touched and exhibited repetitive behaviours such as tapping the back of a chair three times before being seated. Client A put a hand on the back of the dining room chair and tapped it. The Member told Client A to sit down and Client A tapped the back of the chair again. The Member elbowed Client A in the side and physically forced Client A into the chair by the shoulders. Client A swung an arm up in reaction and the Member grabbed Client A’s arm and pushed Client A to the wall by the throat. Client A began to fight back by kicking and yelling, so the Member put Client A to the floor face down. A call was made to alert other staff that help was required. The Member had his hand on the top of Client A’s head and his knee was on Client A’s back. Other staff members restrained Client A’s legs, talked to him and held his head.
Client B lived at the facility since 1997. Client B had a pervasive developmental disability, ADHD, epilepsy, mild developmental disability and autism. Client B had a history of violence and aggression and had identified risks for choking, falls, violence/aggression, and seizures.
Client B would pace in the dining room after snack time, until he was verbally directed by staff to transition to the next activity. There were several occasions in the past when Olanzapine was administered, on an as needed basis, to Client B for agitation. On the date of the incident, Client B did not receive Olanzapine.
Witness testimony indicated that Client B was walking from the nursing station to the pillar in the dining room. The Member grabbed Client B by the shirt collar; then had one of his arms around Client B’s neck, carrying Client B, whose feet were off the ground, approximately seven to eight feet. Client B was observed to have an imprint around the throat left by the shirt neckline. The shirt was torn from the neckline to the end of the sleeve.
With respect to this incident involving Client B, College Counsel submitted that two witnesses provided different versions. One witness testified that he had a clear view of the incident, which College Counsel asked the Panel to prefer.
The College’s expert testified that all of the conduct described was emotionally and physically abusive to both clients.
The College’s expert also testified that the Member’s lack of documentation or his failure to correct the documentation of these events failed to meet the standard of practice and was unprofessional for both incidents. For Client A, the documentation errors could also be described as dishonourable and/or disgraceful, since the documentation was actively misleading in that it suggested that the client, rather than the Member, provoked the incident.
The Panel found that the evidence supported findings of professional misconduct as alleged. The Member’s conduct was disgraceful, dishonourable and unprofessional. The Member demonstrated a high degree of moral failing and brought dishonour in his duty to clients. Emotional and physical abuse of clients was disgraceful as the Member’s conduct brought shame to the profession.
It was the unanimous decision of the Panel that the evidence was clear, convincing and sufficient to prove that it was more likely than not that the misconduct had occurred as alleged with respect to the allegations.
With respect to the incidents involving Client A, the Panel noted that a witness provided a factual presentation, including testimony of the facility policies, orientation, maneuvers taught and used for client, and client documentation. The Panel did not find any inconsistencies in this testimony. Another witness provided a recollection of the incident, including the throat hold maneuver, technique and intensity of force, which the Panel found to be credible. The Panel determined that the other witness testimony was of limited value, including witnesses that came upon the incident at various stages and/or did not directly observe the incident. Documentation of the incident was misleading. It made no mention of the Member’s provocation. The Member had the opportunity to correct the documentation and did not take any action to do so.
With respect to the incidents involving Client B, the Panel noted that a witness provided good recollection of the incident, including the hold and the client’s post injuries. The Panel found testimony to be honest, reasonable and truthful. The Panel determined that the other witness testimony was contradictory and not forthcoming. This testimony was largely disregarded by the Panel. There was no documentation of this incident in the chart.
Submissions on Order
The College sought revocation of the Member’s certificate of registration as it would ensure protection of the public and send a message to the general membership that physical and emotional assault of clients is inexcusable and will be dealt with severely.
College Counsel also submitted that there was evidence of the Member’s ungovernability. Although the Member should not be unduly penalized for his non-attendance as it was his right to be present or absent from the hearing, his remorse could not be assessed, and his absence showed a disregard for his accountability to the College and disrespect for the discipline proceedings. As the Member did not appreciate the impact of his conduct on the well-being of the two clients, College Counsel also submitted that there was a risk that this conduct would be repeated in the future.
With regard to specific deterrence, the Member’s capacity for remediation could not be assessed. The Panel was not presented with any mitigating factors to consider from the Member’s perspective.
College Counsel submitted that the Member provoked these vulnerable clients and then responded to their provoked behaviours with the use of excessive force.
The Panel determined that remediation and specific deterrence was not appropriate in this matter, and that the public interest was best served by revoking the Member’s certificate of registration because this physical and emotional abuse of vulnerable clients is intolerable and under no circumstances is acceptable to the profession.
The Panel agreed that the Member’s conduct showed elements of ungovernability and the Member’s lack of governability was completely contrary to the values of the nursing profession, which holds its integrity and public confidence as cornerstones of the profession.