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Birchall, Brian

Brian Birchall 8800179

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

FULL-TEXT DECISION

Note: This is the full text of the decision of the Discipline panel in this matter. Any information identifying clients, witnesses or facilities has been removed [ ]. The member's name is omitted if the allegations have been dismissed or if the results are not placed on the public portion of the Register.

PANEL:

MICHAEL TERNOVAN, Public Member, Chairperson
GEORGE FEIBER, RN Member
LORI MCINERNEY, RN Member
DEANNE BARBER, RPN Member
BETTY HILL Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO   MARIE HENEIN for
College of Nurses of Ontario
- and -    
BRIAN BIRCHALL
Reg. No. 88-0017-9
  DAVID MATHESON for
Brian Birchall

Heard: December 1-3, 2003;
January 5, 2004

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on December 1, 2003 at the College of Nurses of Ontario (the "College") at Toronto.

The Allegations

The allegations against Brian Birchall as stated in the Notice of Hearing dated February 12, 2003 (Exhibit # 1) are as follows:

  1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of the Ontario Regulation 799/93, in that on or about September 8, 2001, while working as a Registered Nurse at [the Hospital], you contravened a standard or practice of the profession or failed to meet the standard of practice of the profession with respect to your care, treatment and communication with the client, [ ] in that you:
    1. verbally insulted and demeaned the client and/or
    2. physically assaulted the client and/or
    3. deliberately entered a misleading entry in the patient chart of [the client] regarding the events of September 8, 2001.
  2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(7) of the Ontario Regulation 799/93, in that on or about September 8, 2001, while working as a Registered Nurse at [the Hospital], you abused the client, [ ] verbally, physically and/or emotionally on or about September 8, 2001 in that you:
    1. verbally insulted and demeaned the client; and/or
    2. physically assaulted the client.
  3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(37) of the Ontario Regulation 799/93, in that on or about September 8, 2001, while working as a Registered Nurse at [the Hospital], you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional as follows:
    1. verbally insulted and demeaned the client, [ ]; and/or
    2. physically assaulted the client, [ ]; and/or
    3. deliberately entered a misleading entry in the patient chart of [the client] regarding the events of September 8, 2001.

Counsel for the College advised that the College was not calling any evidence with respect to the allegations set out in paragraphs 1 and 3c and d of the Notice of Hearing.

Member's Plea

Brian Birchall admitted the allegations set out in paragraphs numbered 2 and 3e in the Notice of Hearing. The panel conducted a plea inquiry and was satisfied that the Member's admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts (Exhibit # 2) which provided as follows:

BACKGROUND

  1. Brian Birchall, (the Member) graduated [ ] in 1987 with a diploma in Nursing and has been registered as a Registered Nurse since 1988.
  2. He began to practice nursing full-time at [the Hospital] in 1988. He was employed on unit [ ] from 1997 to September 2001.
  3. [The unit] is a 24-bed in-patient unit for adults with severe and persistent mental illness. On the day shift, the unit is staffed by at least two Resource Nurses and from four to six Registered nurses/Registered Practical Nurses.
  4. At the time of the events described below, the client, [ ], was an involuntary patient on [the unit] at the Hospital. [The client] was a severely mentally ill [ ] [person], with a history of [ ] prior admissions to a psychiatric facility [ ]. [ ].
  5. [The client] suffered from [various mental problems] and [demonstrated difficult behaviour towards staff.]
  6. At the time of the events that are described below, the Member had been assigned as the Primary nurse for [the client] for [a lengthy period].

HOSPITAL POLICY

  1. The Hospital has a policy on the use of physical, mechanical and chemical restraints. It emphasizes that restraints represent a serious infringement of clients' rights and freedoms, and are only to be used where there is a risk of injury to clients or others where all less intrusive measures have been determined to be ineffective. The policy emphasizes the need to safeguard clients' dignity and self-respect and promotes the use of methods to reduce the need for the use of restraint, including establishing rapport, communication, and therapeutic alliance with clients.
  2. Attendance at regular training sessions concerning the restraint policy is mandatory for all nursing staff at the Hospital. The Member last attended a training session in November, 1999.

CRISIS PREVENTION AND INTERVENTION TRAINING

  1. The Hospital requires all nursing staff to participate in a crisis prevention and intervention training (PICS - Prevention and Intervention of Crisis Situations) every other year.
  2. The introduction to the workbook used in the PICS program indicates that the training is designed to "identify the various behaviours that will eventually lead to aggressive behaviour, and those methods of intervention which might prevent these behaviours from occurring." PICS training teaches that the first step in dealing with agitated clients is to attempt to de-escalate clients' behaviour and help them to regain self-control by using effective listening, establishing rapport, setting ground rules, being calm and allowing choices for alternatives. If this intervention is ineffective, the PICS training calls for "remove[ing] self and others" from the patients' area, and, as a last resort, physical intervention, including restraint and seclusion, to prevent the clients from hurting themselves or others. PICS indicates that physical intervention techniques should not inflict pain or humiliation, and create a risk of positional asphyxia that is worsened by applying pressure to the chest area while restraining. PICS training stresses the obligation to document in a complete, accurate and timely way.
  3. During PICS training sessions, health care staff are taught to monitor their own emotional well-being when interacting with clients, and to ask for support or relief from team members if they are becoming upset or angry.
  4. The Member's most recent attendance at the PICS training was in March, 2000.

CLIENT'S CARE PLAN

  1. [The client's] Plan of Care indicates that [the client] is a high risk for violence/sexual inappropriateness, and includes the following directives:

    Provide places for reduced stimulation

    Provide privacy when [the client] indicates through word or deed that [the client] needs to be alone. Avoid trigger phrases such as "seclusion". Use words perceived as less provocative, such as "time out".

    Address [the client] in a calm, quiet, respectful tone of voice. Care providers are invited to seek peer support/health breaks whenever experiencing feelings of fatigue, fear, or anger in the daily care of this challenging client.

    Provide episodic relief to the Primary/Associate/Assigned daily nurse working with this demanding client.

EVENTS OF SEPTEMBER 8, 2001

  1. At approximately 9:45 a.m. on September 8, 2001, [the client] was swearing, yelling, banging on the window of the nursing station, and being sexually inappropriate. According to Mr. Birchall, [the client] was physically shadowing (following very closely) and verbally threatening and abusing two other clients. [The client] would not accept redirection and was given a "time out" in his room, where [the client] continued to yell, splash [ ] with toilet water, and flick lights on and off.
  2. The Member entered the client's room. Once in the room, with the door closed and with his face close to [the client's], the Member gestured with a pointed index finger and made demeaning comments to [the client]. The Member also told the client that [the client] would be put into seclusion if [the client] did not stop acting out. While being addressed by the Member, [the client] was quiet and appeared to listen.
  3. [The client] remained alone in [the] room for a few minutes, but came out twice, threatening to have staff fired and to call the police. When [the client] came out a third time, the Member approached and told [the client] that [the client] was going into seclusion. [The client] then ran down the hall of the unit, yelling, into another client's room. Due to the Member's observations of the client, the Member concluded that seclusion was appropriate. The Member retrieved [the client] and, holding [the client] by the arm, led [the client] toward the seclusion room. The Member and [the client] were followed to the seclusion room by [an RN], [RPN A] and [RPN B]. As was [the] usual pattern, [the client] did not physically resist being escorted to the seclusion room.
  4. At one point at the door of the seclusion room, the Member was witnessed by [the RN] and [RPN B] to place two hands on the client's back and push [the client], causing [the client] to fall to the mattress. [The client] said "Ow!" and rolled over [ ].
  5. [RPN B] entered the room to remove the client's shoes according to seclusion protocol. [The client] did not resist, and held up [ ] feet up to allow [ ] shoes to be removed, and held up [an] arm to allow the Member to remove [a] watch. While [the client's] shoes were being removed, the Member was observed by witnesses to have his foot on the client's upper chest area.
  6. The Member contacted a physician to obtain an order for seclusion as is required by Hospital policy, and [the client] remained in seclusion from 10:00 a.m. to 2 p.m.
  7. Three nurses who were working that day variously described seeing a red or bruised area on the patient in the area where Mr. Birchall placed his foot. None of these witnesses charted the details of this incident and no one charted that [the client] had any mark [ ].
  8. The following are the entries Mr. Birchall made in the Progress Notes for [the client] concerning the incidents described above:
    0800 Becoming increasingly loud and verbally abusive to
    peers and staff. Having difficulty following staff direction. Agitated, restless, prn may benefit. Ativan 2 mg, Loxapine 100 mg po given as a prn 0915 Remains loud, verbally abusive to peers, continues to escalate 1000 Given time out in room. Refusing to settle and/or take time out and stay in room for ½ hour. Verbally threatening staff, secluded at this time
  9. Mr. Birchall did not advise his superiors of the incidents. The Manager of the unit learned about the incidents during an investigation that ensued after she received an anonymous note approximately ten days later from one of the nurses who was present at the time. The note asked that Mr. Birchall be transferred off the unit, gave no reasons for the request, and did not reference the incident.

EXPERT EVIDENCE

  1. [Expert A], RN is the Clinical Manager of In-Patient Mental Health at [a hospital], and is qualified to give evidence in cases involving the prevention and management of aggressive behaviour in psychiatric patients generally, and in this case in particular. If Expert A were to testify, she would say that making demeaning comments to a client, pointing a finger in a client's face, pushing a client in the seclusion room, and placing a foot on a client's chest area would be inconsistent with the standards of the profession, would be unnecessary and would violate the client's worth and dignity.

ADMISSIONS

  1. On the basis of the facts set out above, the Member admits that he has committed an act of professional misconduct as provided by the Health Professions Procedural Code in that he abused the client [ ] verbally, physically and/or emotionally on or about September 8, 2001 in that he verbally insulted and demeaned [the client], and physically assaulted [the client].
  2. On the basis of the facts set out above, the Member admits that he has committed an act of professional misconduct as provided by the Health Professions Procedural Code in that he engaged in conduct that would reasonably be regarded by members of the profession as unprofessional, in that he deliberately entered a misleading entry in the patient chart of [the client] regarding the events of September 8, 2001.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs 2 and 3e of the Notice of Hearing. While working as a Registered Nurse at [the Hospital], the Member abused the client, [ ] verbally, physically and/or emotionally. The Member deliberately made a misleading entry on [the client's] chart regarding the events and admits that this was an act of professional misconduct that would be reasonably regarded by members of the profession as unprofessional.

Penalty

College counsel advised the panel that a Joint Submission as to Penalty (Exhibit #3) had been agreed upon. The Joint Submission as to Penalty provides as follows:

JOINT SUBMISSION ON PENALTY

Brian Birchall, RN #88-0017-9 ("the Member") and the College of Nurses of Ontario ("the College") respectfully submit that, in view of the circumstances set out in the Agreed Statement of Fact, and the Member's admissions of professional misconduct, the panel of the Discipline Committee should make an order as follows:

  1. Requiring the Member to appear before the panel to be reprimanded.
  2. Directing the Executive Director to suspend the Member's certificate of registration for four months (i.e., 120 days).
  3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration:
    1. Before returning to practice, the Member must complete the College's abuse prevention package, One is One Too Many, by viewing the video and completing the workbook.
    2. Before returning to practice, the Member must meet with a College Practice Consultant, at a time to be arranged with the Practice Consultant, to review the One is One Too Many workbook within the context in which he committed professional misconduct, especially the abuse of [the client], to identify ways to prevent recurrence of the misconduct he committed.
    3. Upon the Member's return to practice, and for a full 52 weeks of nursing practice for an employer thereafter (i.e., not necessarily a calendar year), the Member shall:
      1. notify the Director of the Investigations & Hearings Department at the College of Nurses of Ontario ("the Director") of the name, address, and telephone number of all of his employer(s) within fourteen days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which delivery the Member shall retain;
      2. provide his employer(s) with a copy of the Panel's Penalty Order with the Notice of Hearing, Agreed Statement of Fact, and Joint Submission on Penalty, or, if available, the Panel's written Decision and Reasons;
      3. only practice for an employer who agrees to, and does, write to the Director, within fourteen days of the commencement or resumption of the Member's employment, providing the Director with the following:
        1. confirmation of the date the Member commenced or resumed employment; and
        2. confirmation that the employer has received a copy of the panel's penalty order with attachments, or, if available, the panel's decision and reasons;
        3. confirmation that the employer agrees to have a Registered Nurse who is a member of the College and employed at the same facility as the Member to monitor the Member's practice from time to time to ensure that his interaction with clients is at all times professional, appropriate, and adheres to the standards of practice of the profession;
        4. confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has engaged in unprofessional or inappropriate conduct, or has not adhered to the standards of the profession, in his interaction with his clients.

College counsel submitted that a violation of the nurse patient relationship and verbal and physical abuse occurred that should not be tolerated by the College and warrants a serious penalty.

The Joint Submission on Penalty is based on similar cases, giving consideration to the admission of guilt of allegations 2 and 3e. The College is satisfied that future patients in the members care will not be in danger. This view was supported by a medical opinion.
An aggravating factor, as outlined in the agreed statement of facts, was that the charting of the occurrence did not reflect the actual events of September 8, 2001.

College counsel noted that the suspension of the Member's certificate of registration for a period of four months was intended to be a clear message to the membership and sends a strong message to the public that this conduct will not be tolerated. Further, the penalty includes a rehabilitative portion and a period of monitoring to assist the Member and to protect the public.

The penalty meets the criteria of specific and general deterrence, striking an appropriate balance while protecting the public interest.

Counsel for the Member stated that the Member takes full responsibility for his actions as indicated in the agreed statement of facts. This is evidenced by the fact that the Member has already viewed the "One is One Too Many" video and has completed the workbook. Further, the Member has already informed his new employer of the hearing in progress and the possible impending suspension.
Counsel for the Member indicated that a four month suspension will have a significant financial impact on the Member.

Penalty Decision

The panel accepts the Joint Submission as to Penalty and accordingly orders:

  • the Member to appear before the panel to be reprimanded.
  • the Executive Director to suspend the Member's certificate of registration for four months (i.e., 120 days).
  • the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration:

Before returning to practice:

  • the Member must complete the College's abuse prevention package, One is One Too Many, by viewing the video and completing the workbook.
  • the Member must meet with a College Practice Consultant, at a time to be arranged with the Practice Consultant, to review the One is One Too Many workbook within the context in which he committed professional misconduct, especially the abuse of [the client], to identify ways to prevent recurrence of the misconduct he committed.

Upon the Member's return to practice, and for a full 52 weeks of nursing practice for an employer thereafter (i.e., not necessarily a calendar year), the Member shall:

  • notify the Director of the Investigations & Hearings Department at the College of Nurses of Ontario ("the Director") of the name, address, and telephone number of all of his employer(s) within fourteen days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which delivery the Member shall retain;
  • provide his employer(s) with a copy of the Panel's Penalty Order with the Notice of Hearing, Agreed Statement of Fact, and Joint Submission on Penalty, or, if available, the Panel's written Decision and Reasons;
  • only practice for an employer who agrees to, and does, write to the Director, within fourteen days of the commencement or resumption of the Member's employment, providing the Director with the following:
  • confirmation of the date the Member commenced or resumed employment; and
  • confirmation that the employer has received a copy of the panel's penalty order with attachments, or, if available, the panel's decision and reasons;
  • confirmation that the employer agrees to have a Registered Nurse who is a member of the College and employed at the same facility as the Member to monitor the Member's practice from time to time to ensure that his interaction with clients is at all times professional, appropriate, and adheres to the standards of practice of the profession;
  • confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has engaged in unprofessional or inappropriate conduct, or has not adhered to the standards of the profession, in his interaction with his clients.

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College by agreeing to the facts and the penalty. The Member has demonstrated remorse by accepting responsibility for his actions. The panel acknowledges that the Member has already taken the first step to rehabilitation by taking the initiative to view the "One is One Too Many" video and having completed the workbook.

The panel concluded that the penalty provides specific deterrence for the Member and general deterrence to the membership, as well as protecting the public.

 

 

 

 

 

 

 

 

 

 

Date:

Signed:___________________________

Chairperson, Discipline Panel
Lori McInerney, RN, Member, Discipline Panel
Deanne Barber, RPN, Member, Discipline Panel
George Fieber, RN, Member, Discipline Panel
Betty Hill, Public Member

 

Page mise à jour le septembre 28, 2010