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Paul Berard 7249675
Discipline Committee Of The College Of Nurses Of Ontario
Note: This is the full text of the decision of the Discipline Committee in this matter. Any information identifying clients, witnesses or facilities has been removed [ ]. The member’s name is omitted if allegations have been dismissed or if the results are not placed on the public portion of the Register.
PUBLISHED JUNE 2002
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee on August 21st and 22nd, 2001, at the College of Nurses of Ontario at Toronto. The Hearing was called to order at 0925 hours with the Member’s counsel, Mr. Michael Block, in attendance, for the defence. The Notice of Hearing, dated May 10th, 2001, was tendered as Exhibit # 1.
The allegations against the Member, Mr. Paul Berard, as stated in the Notice of Hearing, dated May 10th, 2001 are as follows:
Counsel for the College advised the panel that Counsel for the Member wished to make a motion to the panel for an adjournment. Mr. Block, Counsel for the Defence, then requested that the panel grant an adjournment of the Hearing at this time, for the following reasons:
Counsel for the College was opposed to an adjournment because the Member had received adequate Notice of the Hearing, which was dated May 10th, 2001, and therefore should have been prepared to proceed. Counsel for the College expressed concern about the disruption that this may cause to the three witnesses, who were currently waiting to testify.
The panel deliberated and unanimously decided to grant an adjournment until 0900 hours of August 22nd, 2001, in the interest of fairness to both parties while recognizing that this may inconvenience some witnesses.
Counsel for the College objected at this time and expressed concern about the availability of his primary witness, for August 22, 2001, and that if the panel allowed this adjournment it may be possible that he would be requesting a further adjournment.
The panel was informed by Counsel for the Defence that the Member, Mr. Berard, was currently on hold on the telephone, that he had been able to contact him and was speaking with him to receive further instructions.
The panel having received this new information allowed for a period of time for Counsel for the Defence to consult with his client. The panel also advised Counsel for the College to ascertain the availability of his witnesses.
The panel reconvened at 1320 hours upon which Counsel for the Member advised the panel that he had just received a letter, by fax, from the Member, which he then tendered as Exhibit # 2. This letter was dated August 21st, 2001and it was addressed to the Discipline Committee hearing members. In this letter the Member indicated that he had “dismissed and/or relieved Mr. Michael Block of his duties for or as legal council on my behalf - simply because I do not wish to participate in the proceeding!”
At the request of Mr. Block, the panel dismissed him from the Hearing at this time.
The panel then determined that it was appropriate for Counsel for the College to proceed and requested that the first witness be called.
As the Member, Mr. Paul Berard, was not present, no formal plea was entered and the panel proceeded on the basis that the Member denies the allegations.
The Member, Mr. Paul Berard, was a Registered Nurse, who was employed at the [residence] in [ ], Ontario, from February 1st, 2000 until June 14th, 2000. [The residence] provides 24-hour health care to 40-50 primarily elderly residents with cognitive and physical impairments. The Member was employed part-time as a RN working the evening shift (1500-2300 hours). The evening shift staff compliment consisted of one Registered staff member who was responsible for all medication administration, treatments, supervision of Health Care Aides, documentation including quarterly summaries, care plan reviews, progress notes and incident reports. The staff compliment also consisted of two Health Care Aides (HCA) and/or Nurses Aides for the full 8-hour shift with an additional HCA/Nurses Aide for the four hours of the evening shift.
The allegations against the Member arise from incidents that occurred during the evening shift of May 13th, 2000. During this shift, [Witness #1] and [Witness #2] worked in the capacity of a HCA/Nurses’ Aide for the entire shift.
It is alleged that during the evening shift of May 13th, 2000, the following incidents involving the Member occurred:
[Witness #3], Director of Care, terminated the Member’s employment at [residence] on June 14th, 2000.
On October 1st, 2000, the Member voluntarily cancelled his registration with the College of Nurses of Ontario. A copy of this letter was tendered as Exhibit #3.
Three witnesses were called by Counsel for the College to give evidence during this Hearing.
Witness #1- Ms [name removed]
[Witness #1] was employed as a HCA at [the residence] since 1995. She received her training at [a hospital] in the Health Care Aide program in 1994. In May of 2000, she was employed full-time working exclusively on the evening shift. She was a direct witness in all three alleged incidents, involving the Member, Mr. Paul Berard. [Witness #1’s] evidence was as follows:
Incident #1 – Medication cart
[Witness #1] testified that at approximately 1730 hours on May 13th, 2000, she discovered the medication cart unlocked and unattended with some drawers open, including the narcotic drawer, in the resident lounge. Her evidence was that the resident [Client “A”] was in close proximity to the medication cart and that the Member was not in the vicinity. [Witness #1] was concerned about this situation because the resident [Client “A”], was a cognitively impaired individual, who had a tendency to hoard items. Her evidence also indicated that [Client “A”] was a diabetic, confined to a wheelchair, which she was able to propel with her feet. At this time, [Witness #1], due to her concern for the safety of the resident [Client “A”] and her close proximity to the medication cart removed [Client “A”], from the lounge, searched her pockets, purse and wheelchair for any medications. Finding no medication, she requested assistance from [Witness #2], HCA. [Witness #1] stayed with the medication cart while [Witness #2] went to locate the Member, Mr Paul Berard.
Incident #2- Resident [Client “A”]
This alleged incident, according to [Witness #1], occurred at approximately 1830 hours on May 13th, 2000. [Witness #1], returning from her supper break, proceeded to the nursing station area where she found the resident, [Client “A”], yelling and screaming. [Witness #1] testified that [Client “A”], is a resident, who is cognitively impaired, has a history of disruptive behaviour and is “mostly unaware of what she is doing”. [Witness #1] testified she was attempting to calm [Client “A”] down when the Member, who was standing in the nursing station nearby, approached [Client “A”], and said, “I’ve had enough of this. You need to shut up”. [Witness #1] testified that the Member then wheeled [Client “A”], into the resident lounge and then “[Client “A”], went really, really quiet.” [Witness #1] testified that the Member’s demeanour during this incident was “angry and mean”. The witness gave evidence that she later spoke with her co-worker, [Witness #2], about this incident, because she was angry but felt “intimidated” by the Member, who was also her supervisor for the evening shift.
Incident #3 – Resident [Client “B”]
This alleged incident, according to [Witness #1], occurred at approximately 2230-2240 hours, on May 13th, 2000. This incident involved an elderly resident, [Client “B”], who suffered from COPD (Chronic Obstructive Pulmonary Disease). [Client “B”] always carried an inhaler with her, but when it did not relieve her shortness of breath she would require a nebulizer machine and medication to assist her breathing. The nebulizer machine set up was the responsibility of the registered staff and kept at [Client “B's”] bedside. [Witness #1] described [Client “B”], as an individual who because of her breathing problems would have episodes of difficulty breathing where she would become wheezy, gasping for air and panicky. According to [Witness #1] [Client “B”] presented at the nursing station and requested her assistance because she was in a breathing crisis and required the nebulizer treatment. [Witness #1] redirected [Client “B”], to the Member, as this was part of the responsibility of the registered staff. [Client “B”] then approached the Member in the nursing station to request his assistance and was met with the response; “I don’t have enough time for this.” The dispensary door slammed behind him in [Client “B’s”] face. [Witness #1] testified that the Member made no attempt to assist [Client “B”], with her breathing difficulty even though it was obvious she was in crisis. [Witness #1] testified that she and [Witness #2] assisted [Client “B”], with her nebulizer machine, as [Witness #2] had some familiarity with the machine. They calmed [Client “B”], down and reported these actions to the oncoming registered staff to ensure that the nebulizer machine was set up properly.
[Witness #1] was contacted on June 8th, 2000, by [Witness #3], Director of Care, and subsequently prepared a written statement regarding these incidents as requested.
Witness #2 – Ms [name removed]
[Witness #2] was employed as a nurse’s aide at [the residence] since April of 1991. She received her training on the job at [the residence]. She was employed full-time on the evening shift starting May 2000. [Witness #2] was working the evening shift on May 13th, 2000 with the Member, Mr Paul Berard, whom she described as “big, strong and powerful”. [Witness #2] testified that she had “a very good professional relationship” with the Member and that, she had informed the Director of Care that he was “doing quite a good job”. [Witness #2] indicated that she sometimes helped him out by taking temperatures, pulses and respiration’s of the residents, as well as giving suppositories, when he required assistance. [Witness #2’s] evidence is as follows:
[Witness #2] testified that she was summoned to the resident lounge by her co-worker [Witness #1]. When [Witness #2] arrived she discovered that the medication cart was in the resident lounge unlocked and unattended. She instructed [Witness #1] to remove the resident, [Client “A”], from the lounge and stay with the medication cart. [Witness #2] then went to locate the Member, Mr Berard. She found him upstairs in the second floor staff lounge. [Witness #2] informed the Member about the medication cart and he responded by saying, “ I got busy and forgot”. [Witness #2] testified that she accompanied the Member to the first floor resident’s lounge where upon he checked the medication cart to ensure nothing was missing and then put the cart in the dispensary room.
[Witness #2] testified that [Witness #1] asked for her assistance with resident [Client “B”]. She described [Client “B”], as someone who had breathing problems and constantly carried an “asthma puffer” with her and that some days when her “breathing was bad” she required a machine with a mask and nebulizer. During her testimony regarding the nebulizer machine [Witness #2] stated, “I suspect, well I know that it opens up the airways and makes her breathing more bearable” and that as far as she knew, “it contained a clear liquid”. [Witness #2] testified that [Client “B”] would become “very distressed, panic, her eyes would bulge out of her head, was wheezy and gasping” when she was in a breathing crisis. Due to [Client “B’s”] condition, [Witness #2] decided with [Witness #1] to provide assistance by taking [Client “B”], to her room and applying the nebulizer mask, even though she knew this was beyond her professional capability. [Witness #2] testified that she had some familiarity with the nebulizer machine as she had had a family member with breathing problems approximately 12 years ago requiring one of these machines. [Witness #2] testified that [Client “B”] required comforting for ten minutes as a result of the Member’s behaviour towards her. She testified that she reported the incident and [Client “B’s”] breathing crisis to the oncoming registered staff to ensure that the nebulizer machine was set up properly.
[Witness #2] testified that due to a subsequent investigation, she provided a written account of these incidents to [Witness #3], Director of Care, as requested.
Witness #3- Ms [name removed]
[Witness #3] was a graduate from the Nursing Program of [a College] in Ontario. She has been a Registered Nurse since 1992. [Witness #3] was employed as the Director of Care at [the residence], from June 1998 to January 2001. At [the residence], she supervised the health care staff which included orientation, review of job duties, documentation, inservices, staff evaluations, infection control, patient care audits, contacts with families and placement co-ordination at the facility. She described [the residence] as a facility for elderly residents with cognitive and/or physical impairments. She testified that the staff compliment on the evening shift consisted of one Registered Nurse or Registered Practical Nurse and two HCA/nurses’ aide as well as a HCA/nurses’ aide for half of the shift.
[Witness #3] testified that the Member, Mr Paul Berard was employed as a part-time Registered Nurse assigned exclusively to the evening shift, from February 1, 2000 to June 14th, 2000. The Member’s responsibilities included administering medication, treatments, supervising the HCAs, documentation, quarterly summaries, care plan reviews, incident reports, and progress notes for residents. [Witness #3] testified that prior to the May 13th, 2000 incidents, the Member, Mr Paul Berard, was having difficulty completing his assignment, particularly in relation to documentation. In regards to this, she met with the Member and left specific instructions regarding this issue.
[Witness #3] testified that she was familiar with the resident [Client “A's”] health condition of cognitive impairment and physical disability. She also testified about resident [Client “B”] and her knowledge of her COPD condition, and that a nebulizer treatment machine was set up in her room for her respiratory crisis. [Witness #3] testified as to her knowledge of the medication cart, locking mechanisms, and policy and procedure of the facility with respect to its security and lock up storage provision.
On June the 8th, 2000 [Witness #3] testified that she first learned of the incident through a report on past events from [name removed] a registered nurse on the day shift. [Witness #3] testified that the delay in reporting these incidents was due to staff going/being on holidays. [Witness #3] inquired into the incidents of May 13th, over the telephone with [Witness #1] and [Witness #2] and requested they provide written statements to her regarding these incidents by June 8th, 2000.
She testified that she met with the Member in her office on June 9th, to discuss the occurrences of May 13th. [Witness #3] described the Member’s demeanour as “fidgety, rolling his hat in his hands, looking at the ceiling” and her impression was that “I was wasting his time.” [Witness #3’s] evidence was that the Member responded to her inquiries of the incidents of May 13th by saying, “he couldn’t remember two days ago, let alone 2 weeks ago.” The Member admitted to [Witness #3] that it was a hectic night and that he had left the Medication cart in the resident’s lounge but that it was not open. [Witness #3] testified that when the Member was questioned about the incident with [Client “A”] he was very defensive and denied being rude and using harsh language. [Witness #3] testified that the Member was upset at having been reported and that, his word was not taken above all others.
With respect to resident [Client “B”], [Witness #3] testified the Member provided no response regarding her treatment but indicated it wasn’t intentional for the door to close in [Client “B’s”] face but admitted that he had not apologised to the resident.
[Witness #3] testified that the Member, Mr Berard has at no time has indicated any remorse nor accepted any responsibility or recognized the inappropriateness of his behaviour in relation to these 3 incidences and their impact on the residents. Due to the facts of these incidents and his response to such his employment was terminated on June 14th, 2000 from [the residence]. Upon receipt of his termination letter the Member exhibited rude and disrespectful behaviour to [Witness #3]. [Witness #3] testified that the Member spoke in a loud, angry manner. She testified his comments included the following statements:
“You never intended helping me from the start”
[Witness #3] testified that when she inquired of the Member if he was threatening her he responded with “no that’s a promise”.
During summation Counsel for the College, advised the panel members to refer to the Colleges’ Compendium of Standards in relation to the allegations of professional misconduct. More specifically, Mr. Coleman directed the panel to the Therapeutic Nurse Client Relationship document in regards to the abuse allegations and suggested the panel also review medication guidelines in reference to the safety and security of medications.
In regards to the medication cart incident Counsel for the College submitted that it posed a grave danger to patients. The Members’ conduct in leaving the medication cart unlocked and unattended provided an opportunity for cognitively impaired patients, to access and consume medications not intended for them which would then not be available for those patients, that required them.
When considering the incident involving the resident [Client “A”], Counsel for the College submitted that the Member’s behaviour was threatening to the patient as evidenced by her response in that, she became quiet. This conduct by the Member, according to Counsel for the College demonstrated abusive behaviour, in that, the Member clearly intimidated the resident, [Client “A”].
Counsel for the College indicated that the Member’s statement to [Client “B”] “l don’t have time for this, as well allowing the door to slam in the residents face was both verbally and emotionally abusive and that the Member was essentially telling the patient “to get lost”. Counsel for the College indicated that the Member physically abused [Client “B”] in that, he failed to assess or provide treatment during an obvious breathing crisis.
In his submission, counsel for the College stated that “the incident’s exhibited serious misconduct and were potentially dangerous to the residents and that the Member showed abusive behaviour, with little tolerance or patience for resident’s with health problems”.
Counsel for the College submitted that there were no mitigating factors presented in the Member’s defence, due to his decision to not participate in the hearing. Counsel for the College suggested the evidence provided, established that the Member expressed no remorse for his conduct and failed to recognize that his conduct was inappropriate. Counsel for the College expressed concern that these allegations involved patients who were particularly vulnerable members of society in that, they were elderly and had physical as well as possible cognitive impairments.
The panel accepts that the onus of proof rests with the College as set out in Re Bernstein and College of Physicians and Surgeons of Ontario (1977) 15 O.R. (2d) 477. The standard of proof applied by the panel, in accordance with the Bernstein decision, was a balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel. The panel also recognized that the more serious the allegation to be proved, the more cogent must be the evidence.
The Panel deliberated and made findings on the allegations as follows:
The panel unanimously finds the Member committed an act of Professional Misconduct in that, he failed to meet and contravened a standard of practice in that, he failed to ensure the security of the medication cart, and that, he verbally and emotionally abused residents, [Clients “A” and “B”], and failed to provide an assessment of the resident [Client “B”] when she complained of shortness of breath.
The panel unanimously finds the Member committed an act of Professional Misconduct in that, he verbally and emotionally abused resident, [Clients “A” and “B”].
The panel unanimously finds the Member committed an act of Professional Misconduct in that, his conduct of leaving the Medication Cart unattended and unlocked, in a residential area would reasonably be considered by members of the profession to be unprofessional.
The panel unanimously finds the Member committed an act of Professional Misconduct in that, his verbal and emotional abuse of [Client “A”], would reasonably be regarded by members of the profession as unprofessional. A majority of the panel finds that this would also reasonably be regarded by members of the profession as disgraceful conduct.
The panel unanimously finds the Member committed an act of professional misconduct in that, his verbal and emotional abuse of resident [Client “B”], would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional conduct.
Reasons for Decision
The panel found that each witness testified in a credible and believable manner with balanced assessments of the alleged incidents. Their testimony reflected both direct and indirect knowledge regarding the incidents and was generally consistent with each other. They all expressed a very clear concern about the Member’s conduct and the impact it had on the residents involved. The panel found that the witnesses had no self-interest to pursue in the outcome of this case.
Regarding the Medication Cart Incident the panel determined that the Member failed to uphold his professional responsibility by leaving the medication cart unattended, but more importantly unlocked, therefore committing an act of professional misconduct. The panel in regards to this finding utilized the Medication Administration Standards document located in the Compendium and specifically found the following:
Under the section of Setting up And Maintaining A Medication System the panel noted under Behavioural Directives, on page 22, applicable standards that indicated that nurses would:
“store medications in a secure, locked area(s)”; and “secure and control the supply of narcotics and controlled drugs in a separate, locked area”
The panel reviewed the document the Standard for the Therapeutic Nurse-Client Relationship and found on page 14, the section, Behaviours That Are Unacceptable In The Nurse-Client Relationship, specifically relating to Abuse of Clients and found that examples of verbal and emotional abuse included the following:
“intimidation, including threatening gestures/actions”; and “inappropriate tone of voice such as expressing impatience”
The panel also held that the following paragraphs, also on page 14, of the Standard for the Therapeutic Nurse-Client Relationship are those that are well understood by the members of the profession:
“The abuse of clients is always unacceptable. It breaches the trust and respect in the relationship and crosses the boundaries of acceptable care. Verbal, physical, emotional and sexual abuse are prohibited by regulations under the Nurses Act, 1991”; and
The panel found that the Members’ behaviour towards the patient [Client “A”] was both verbally and emotionally abusive in that, the Member expressed impatience and conducted himself in a manner that was clearly threatening to the resident as evidenced by her response of becoming quiet. The panel concluded that members of the profession would view this as unprofessional and disgraceful behaviour.
The panel, in considering the Member’s conduct in relation to the incident involving the patient [Client “B”], determined that it involved both verbal and emotional abuse by allowing the door to slam in [Client “B’s”] face and indicating to her that he didn’t have time for her. The panel held that the consequences of the Member’s behaviour of denying [Client “B”] an assessment and cure including medication could have had a serious impact on the health of [Client “B”] and that it was disgraceful, dishonourable and unprofessional conduct.
The panel wishes to acknowledge that while the title “nurses’ aide” is not legal, all of the witnesses, as well as the Counsel for the College used this term when referring to employees within the facility of which these allegations against the Member arose. The panel therefore utilized this terminology in the writing of this decision to reflect the evidence given even though they were aware that under the Nursing Act, the title nurse, is a protected one. The protection of the title nurse ensures that no one other than a Member of the College of Nurses of Ontario can identify themselves as a nurse or use the word nurse in conjunction with a job designation or otherwise, so as not to confuse the public regarding care providers education and qualifications.
Counsel for the College presented the following submission on penalty as Exhibit #4:
THE COLLEGE submits that the appropriate penalty in this matter is for the panel of the Discipline Committee to make the following order:
Counsel for the College submitted that this penalty was appropriate for the findings of Professional Misconduct in relation to this Member and that it met the requirements of both a specific and general deterrence, as well as being rehabilitative in nature, and further that it would send a message to the public and the profession that abusive conduct will not be tolerated.
The panel deliberated and unanimously accepted the College’s submission on penalty in its entirety as submitted as Exhibit #4.
Reasons for Penalty Decision
The panel found that the penalty proposed by the College met the requirements in that it provided a specific deterrence to the Member, by imposing the 4 month suspension and accepted that in order for it to have any real value, that this should take effect from the date the Member renews his certificate of registration. The panel recognized that the penalty addressed general deterrence to the membership and the public that abusive behaviour will not be tolerated.
The panel finds the condition of requiring the Member to review, complete and discuss with a Practice Consultant the One is One Too Many self-guided abuse prevention workbook to be rehabilitative in nature. The panel holds that stress and anger management counselling would be beneficial to the Member. By having the Member complete these requirements within the twelve-month period, prior to returning to the practice of nursing, ensures that the Member will have recent memory of his learning’s thus upholding the public interest.
The panel holds that the requirement of an oral reprimand will serve the purpose of sending a strong message to the member that his conduct is viewed by members of the profession and the public as unacceptable.
I, Sheila Richardson, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below:
_________________________________________, Chairperson _____________________Date
Cheryl Beemer, RN