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Clitheroe, Susan

Susan Clitheroe IE01115

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

FULL-TEXT DECISION

PANEL:

Lori McInerney, RN Chairperson
April Cheese, RPN Member
Rosalie Woods, RPN Member
Gino Cucchi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO   MARIE HENEIN
for College of Nurses of Ontario
- and -    
SUSAN CLITHEROE
Reg. No. IE01115
  KATE HUGHES for
Susan Clitheroe

Heard: February 19, 20, 21, 22, 2008
May 26, 27, 28, 29, 2008
September 11, 2008

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on February 19, 20, 21, 22; May 26, 27, 28, 29 and Sept 11, 2008 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

IT IS ALLEGED THAT:

  1. You have committed an act or acts 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 July 19, 2004, while working as a Registered Practical Nurse at the [Centre] in [ ], Ontario, 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 [Client A] in that you:
    1. directed the client to take contaminated medication that had fallen onto the floor and into urine; and/or
    2. failed to report or document this incident.
  2. You have committed an act or acts 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 July 19, 2004, while working as a Registered Practical Nurse at the [Centre] in [ ], Ontario, you abused the client [ ] verbally and/or physically and/or emotionally in that you directed the client to take contaminated medication that had fallen onto the floor and into urine.
  3. You have committed an act or acts 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(25) of the Ontario Regulation 799/93, in that on or about July 19, 2004, while working as a Registered Practical Nurse at the [Centre] in [ ], Ontario, you failed to report an incident of unsafe practice or unethical conduct of a health care provider to the employer or other authority responsible for the health care provider and/or the College in that you observed a Member, [ ], throw water in the face of a client [ ].
  4. You have committed an act or acts 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 July 19, 2004, while working as a Registered Practical Nurse at the [Centre] in [ ], Ontario, 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 in respect of the client, [ ], in that you:
    1. directed the client to take contaminated medication that had fallen on the floor and into urine; and/or
    2. failed to report or document this incident; and/or
    3. were heard commenting to another staff member about the incident with [ ] that “he would have probably liked it better if you threw piss in his face because he lies in his own piss all day” or words to that effect.

Member’s Plea

The Member denied the allegations set out in the Notice of Hearing.

Overview

The Member is a Registered Practical Nurse (“RPN”) who was employed at the [Centre] in [ ], Ontario. She worked on the [ ] Unit [ ]. This was a 25-bed unit with a mix of vulnerable male and female clients ages 16 to 70 with diagnoses including mental illness and developmental delay. Many had a history of aggressive behaviours.

The client [ ] had a diagnosis of an anxiety disorder and developmental delay and was known to be aggressive, especially with female staff. He was estimated to be the mental age of four to six years. [Client A] had a history of a hard life including being victimized as a child and abused. He was admitted to the [Unit] in March 2004 to assist [in] dealing with his aggressive behaviour.

On July 19, 2004 the Member entered the room of [Client A] to assist [RN A] who needed to administer medications to [Client A]. [A] Developmental Service Worker (“DSW”), was across the hall with a client. He heard them enter the room and announce to [Client A] that it was time to take his medications. Knowing [Client A] had a history of aggressive behaviour, particularly with female staff, [the DSW] entered the room to assist. While in the room he saw [RN A] throw a cup of water in the client’s face and drop the cup of pills. The pills fell onto the floor and the client’s mattress, which then became soaked with urine. [The DSW] also saw urine spill onto the floor from the mattress. [The DSW] heard [RN A] direct the client to pick up the soiled medication and to take it. The Member pointed to the floor and directed [Client A] to pick up one more pill and to take it as well. The Member and [RN A] did not become aware that [the DSW] was in the room until they turned to leave. A short time later, while sitting beside the Member at the nurse’s station, he heard the Member tell [RN A] that he ([Client A]) “would probably have liked it better if you had thrown piss in his face because he lies in his own piss all day” or words to that effect.

This incident was not reported until six weeks later. In what began as a casual conversation between [the DSW] and [ ], the Program Co-ordinator, [the DSW] disclosed the incident to her. An investigation was immediately initiated. The Member admitted to her employer that she saw water thrown into [Client A]’s face and that she had not reported it. She initially denied any knowledge of spilled medication but later admitted that she heard [RN A] direct [Client A] to take medications that had fallen to the floor and into liquid which could have been urine. She denied pointing to the floor and directing [Client A] to take one more pill that had fallen to the floor into urine. She admitted to telling [RN A] that [Client A] liked to lie in his piss all day but denied saying that he would have liked to have piss thrown in his face.

The Member’s employment was terminated as a result of the investigation.

The panel heard evidence from six witnesses including the Member and received nineteen exhibits. The panel identified several issues to be determined in consideration of the allegations. Specifically, did the Member:

  • fail to meet the standards of practice of the profession, abuse [Client A] verbally, physically and emotionally and/or engage in conduct relevant to the practice of nursing that would be reasonably regarded by members of the profession as disgraceful and unprofessional by directing [Client A] to take contaminated medication that had fallen onto the floor and into urine and failing to report this incident;
  • commit professional misconduct by failing to report an incident of unsafe practice or unethical conduct of another health care provider to the employer or other authority when she observed a Member throw water in the face of a client [ ]; and/or
  • commit professional misconduct by engaging in conduct relevant to the practice of nursing that would be reasonably regarded by members of the profession as disgraceful, dishonourable and unprofessional by commenting to another staff Member that he ([Client A]) “would have probably liked it better if you threw piss in his face because he lies in his own piss all day”, or words to that effect.

The panel found that the Member had committed the acts alleged and that the acts constituted professional misconduct as alleged with respect to all four allegations in the Notice of Hearing. The Member failed to meet the standards of practice, verbally, emotionally and physically abused [Client A] and engaged in conduct that would be reasonably regarded by members of the profession to be disgraceful and unprofessional.

The Evidence

The primary witnesses to the events at issue were [the DSW] and the Member.

[The DSW] testified that he graduated in 1994 as DSW from a two-year Diploma program [ ]. In 2004, he obtained certificate training in Dual Diagnosis Care [ ]. In June 2004 he began his employment with the [Unit] and resigned January 2005. Since leaving, he has worked in a number of centres. In August, 2007 he began his present position as Regional Care Resident Manager [ ].

[The DSW] recalled that on his first day at the [Unit] he was told by one staff member that he would be fine if he was not a rat and that later another staff member said that they all look out for each other. He also recalled a conversation with a staff member [ ] who had a discussion with some RNs and RPNs who were concerned that DSWs were taking over.

[The DSW] described the client [ ] as a unique individual with autism and an anxiety disorder who spent a lot of time in his room as he experienced a high level of anxiety in the general population. He often wore mittens as he frequently would grab faces, arms, hands and clothing. He required 2:1 staffing. He would ask staff to lock his door to provide a sense of safety and security. [Client A] would usually only wear underwear, as he would tear his clothing and was frequently incontinent in his room, requiring a mop to clean up. His room was bare except for the mattress on the floor, a set of lockers that were kept locked and a box that was locked containing a radio. He would often kneel or stand to receive his medications. [The DSW] did not recall [Client A] ever receiving any visitors. He was very talkative, and loved to talk about movies. [The DSW] was responsible for providing direct 1:1 care to [Client A] when assigned to do so and would follow through on [Client A]’s individual program expectations. He testified he had read [Client A]’s treatment plan.

[The DSW] testified that on July 19, 2004 at approximately 1700 hours, he was providing care to [Client B] in a room across the hall, approximately 10 to 12 feet from [Client A]’s room. While in [Client B]’s room he heard [Client A]’s door open as it was noisy (creaky). [Client B] had settled, so [the DSW] exited into the hall. He saw the Member and [RN A] enter [Client A]’s room. He testified he saw the Member set the kick stop to keep the door open. He moved across the hallway and into [Client A]’s room standing behind and to the left of the Member.

In the course of giving his evidence, [the DSW] described and drew a sketch [ ] of [Client A]’s room. [Client A]’s room was 18 to 20 feet long and 12 feet wide with [Client A]’s mattress in the centre of the room, on the floor, [lying] in a diagonal position. [The DSW] testified he could clearly see [Client A], [RN A] and the Member. His testimony varied as to how far the Member was into the room, varying from 1 – 5 feet. He entered the room as he knew [Client A] would get anxious when care was provided by female staff.

[The DSW] testified he saw [Client A] looking at [RN A] who was standing in front of him. He heard both the Member and [RN A] tell [Client A] to take his medications. [The DSW] saw [Client A] kneeling on his mattress with one hand behind his back and the other hand reaching up. [RN A] was holding the medications in one hand and a cup of water in her other hand. [RN A] stretched out her arm to give [Client A] his medications. [Client A] was looking up, reaching for the cup. He heard [Client A] say, “I’m not going to grab you”, which [the DSW] interpreted in the literal sense instead of as a trigger that actually meant [Client A] wanted or was going to grab. [The DSW] testified that did not see [Client A] grab at either [RN A] or the Member. He saw [RN A] throw the cup of water into [Client A]’s face and then say, “Wow” and take a step back. [Client A] reacted by saying, “You can’t do that”. He could see that [Client A] had been incontinent of urine as his underwear was wet. The mattress was wet and there was pooling of approximately 4 – 5 cups of yellowish fluid on the white or off-white floor. When [Client A] leaned forward to receive his medications the mattress became depressed and urine spilled onto the floor with the puddle becoming larger.. He saw that the medication cup had dropped, spilling two pills on the mattress and floor. He recalled seeing one white pill and one yellow/orange coloured pill. Upon further questioning he testified there may have been three pills.

[The DSW] testified that he heard [RN A] and the Member tell [Client A] to take the medications that had fallen on the floor. He saw the Member point to a pill on floor and tell [Client A] to take that one as well. He saw that the pill was dissolving which made it difficult to take and as a result, [Client A]’s lips and fingers were stained yellow. [Client A] took the medications as directed and then [the DSW], the Member and [RN A] left the room. As they left the room, [RN A] asked [the DSW] how long he had been there and if he had been there a minute ago.

[The DSW] believed [Client A] was surprised and had a high level of anxiety about the incident. In [the DSW]’s assessment, [Client A] seemed more upset about the water to his face than taking the soiled pills. As a DSW with medication administration training, he knew this [was] not appropriate medication administration practice. He felt overwhelmed and could not believe what had happened. [The DSW] admitted that in hindsight he had the opportunity to intervene but chose not to, yet wished he had. It was an error in judgment on his part. He described feeling intimidated, as he was a new staff member in the presence of two more senior staff when the incident occurred.

After [the DSW] finished charting he, [RN A] and the Member were in the nursing station together. The Member was sitting beside him. He testified he heard the Member saying to [RN A] that he ([Client A]) would have enjoyed having piss in his face because he lies in it all day. He testified that there were other staff nearby but not in the immediate area in which the comment was made.

[The DSW] testified he did not say anything to anyone about what he had seen and heard, not even his [spouse]. He did not disclose this incident until September because of the rat comments, the unit dynamics, and because he did not know who to trust. He did not know if he could trust [ ] the unit manager. This mistrust was based on [the manager] having sent a memo to staff advising them that they should not be congregating at the nursing office, yet [the DSW] later [saw] [the manager] doing just what he had asked everyone not to do.

It was not until the Co-ordinator of the [Unit], [ ], approached him in the music room that he disclosed the incident. According to [the DSW], this happened on Sept 1st or 2nd, 2004. [The coordinator] congratulated [the DSW] for being hired to a new position. She asked if he enjoyed working at the [Unit]. He told her it was difficult to get used to and that he was upset, particularly about some of the staff. [The coordinator] asked what he meant. He then disclosed the incident to [the coordinator], however he could not remember the exact date the incident occurred. At the request of [the coordinator], he wrote a report of the incident. [The DSW] agreed that he did not document in his report the colour of the pills or that the pills were dissolving on [Client A]’s lips and fingers. The page and a half report did not reflect every detail of what he recalled happened.

[The DSW] later felt alienated and found his colleagues at the [Uit] were guarded and whispering when he was nearby. He recalled being told there was a memo in [his] mail box. When he checked for the memo he found a piece of cheese in his mailbox. He testified he understood the message: he was a rat.

The Member’s version of events was different from [the DSW]’s. She testified that she graduated in 1994 [ ]. She has been an RPN since 1994 with an unblemished record with the College. She worked with three different employers prior to starting at the [Unit]. In June of 2002, the Member was hired to a part-time position and then did a combination of part-time and full-time contracts until October of 2004 when she was terminated as result of an investigation into the incident leading to the allegations.

When hired at the [Unit] the Member received training in dealing with aggressive individuals, including avoidance measures. She described the [Unit] as challenging and interesting, dealing with clients with aggressive behaviours and histories of abuse. In the spring of 2004 she took a medication administration course and at the time of the incident she was administering medications.

The Member described [Client A] as developmentally delayed, “a character”, animated and pleasant, and said that she liked him very much. He had a history of a hard life including being abused as a child. She said that [Client A] was a “good guy … when he was good”. [Client A] had a history of being aggressive toward women and more co-operative with men. She testified she was aware of [Client A]’s triggers and predictors of behaviours. She interacted with [Client A] each day and knew that if [Client A] said, “I’m not going to hurt you,” he was actually predicting that he was actively coming to hurt you. She testified that this was a predictor of his behaviour that she heard him say at least 20 – 50 times. She also knew that female and new staff were a trigger for [Client A] to engage in aggressive behaviour. The Member testified she was familiar with the plan of care for [Client A], which included re-enforcers and strategies to deal with his aggressive behaviour. This included removing yourself from the situation when possible. [Client A] was frequently incontinent of large amounts of urine. When she was responsible for [Client A]’s care, she would clean him up. She testified she was known not to be hesitant to do the dirty work.

[RN A] was the assigned medication nurse for the shift. [RN A] asked her to assist giving [Client A] his medications. Her role was to provide safety support, including opening the door and telling [Client A] it was time to take his medications. She clearly understood [Client A] posed a safety risk when she entered his room with [RN A]. The Member testified that [the DSW] was busy with another client. She testified that in hindsight they should have waited for a male staff member to be available to help. It was a bad decision, thinking they would be okay.

The Member testified that [Client A] was standing when she and [RN A] entered [Client A]’s room. She was aware that she and [RN A] would be at a greater safety risk if [Client A] was standing. Her testimony varied as to where she and [RN A] were in the room and what happened regarding the medications. Variations included:

  • when they entered [Client A]’s room he was reaching forward saying I’m not going to grab you;
  • upon entering [Client A]’s room he immediately lunged forward at them;
  • she and [RN A] stood right at the door;
  • she stood by the door of [Client A]’s room holding it open as there was no door kick stop. The door needed to be open to get both staff out safely;
  • she and [RN A] moved into the middle of [Client A]’s room, leaving the door to shut;
  • [RN A] moved further into the room, closer to the mattress to give the medications while she stood right behind her. It was then that [Client A] lunged at them. As a result of the lunge by [Client A], they both backed up and opened the door;
  • [RN A] was directly in front of her so she was not able to see what they were doing;
  • she did not recall who said what to [Client A], or if both told [Client A] to take his medications;
  • she did not give directions to [Client A] to take the medications;
  • she did not recall any spilled medications;
  • she did not hear or see anything regarding the medications;
  • she heard [RN A] direct [Client A] to pick up the pills. When questioned about this inconsistency in her testimony, she said that she did not recall testifying that she heard [RN A] direct [Client A] to pick up the pills; and
  • she denied telling [Client A] to take the soiled meds.

At one point, when demonstrating to College counsel where she and [RN A] were in the room, the Member became agitated, frustrated and angry, saying, “Oh Christ I can’t tell you how far away.”

The Member stated that [Client A] was not kneeling on his mattress with one hand behind his back and the other reaching for the pills. She testified that when [RN A] threw the cup of water in [Client A]’s face, he moved to a kneeling position, stopping the attack. No other methods of dealing with aggression were required after the water was thrown. She described feeling shocked and stunned and frightened at the time of the incident and felt intimidated as she had never seen this before. She testified she just stared blankly looking at [RN A]’s back. She later testified she recalled hearing about a staff member who had thrown water at a client [ ] who, like [Client A], had aggression issues. The Member admitted this was not a method of dealing with aggression specific to [Client A] and his treatment plan. The Member testified there was no liquid on [Client A]’s mattress but if there was, it would have been the water that was thrown.

The Member admitted not reporting the incident to the Manager but stated that in hindsight she should have confronted [RN A], reported the incident to the team and completed an incident report. She testified she believed that [RN A] would have charted the incident and completed an incident report. She recalled a discussion that considered the use of “misting” water to another client. The purpose of misting was to assist the [client] to deal with aggression. She therefore thought that throwing water in [Client A]’s face was “in a grey area” regarding the need to report. In her testimony, the Member admitted she failed to report or document that [RN A] threw water in [Client A]’s face.

The Member testified that she first saw [the DSW] when walking down the hall after the incident. She did not see him in [Client A]’s room. She did notice after the incident that [the DSW] was not interacting with her in the same way. His behaviour had changed and he was shying away. She later testified she knew him be withdrawn both before and after the incident. She had worked one or two shifts with [the DSW] prior to the incident as he was new to the unit.

While at the nursing station, [RN A] was asking her some questions. She could not recall what the questions were, but in response she told [RN A] that [Client A] lies in his urine all day. Her explanation for the comment was that she was just sharing some of [Client A]’s quirks. She denied saying that [Client A] would like “piss in his face”. She could not remember if [the DSW] was at the nursing station at the time.

The Member testified that she met with [the coordinator], [the manager] and her union representative on Sept 3, 2004. She first denied receiving a letter listing the allegations [ ] at the start of the meeting but later testified that she had received the letter to review and did so with her union representative in private. She recalled that when questioned by [the coordinator] and [the manager], she told them that she saw [RN A] throw water in [Client A]’s face six weeks before. The Member testified that she told both [the coordinator] and [the manager] that [Client A] had spit at her and [RN A], but during her testimony she could no longer remember him spitting. She also admitted at the meeting that there was fluid on the floor which could have been water, urine or Gatorade. She did not know which. She admitted at the hearing that she did not say in the meeting that [Client A] was lunging at her and [RN A].

She testified she felt sad and depressed when she was terminated as a result of these incidents. She loved her job at the [Unit] and in fact said it was the best job she had held in her career. She had not had any previous problems at the [Unit]. As a result of her termination, she suffered a financial loss. She believed the incident was swept under the carpet to assist getting rid of [RN A]. She had been evaluated in August of 2004, with no negative feedback. She has not had any issues in her present job regarding her conduct.

In addition to the evidence of these two witnesses about the incident in question, the panel heard evidence about the investigation at the [Unit], and about the [Unit] generally. [The manager] received his diploma in nursing [ ] in 1994. After graduation he accepted a position at [the Centre] as a staff nurse [ ]. In 1999 he became a Charge Nurse, did some Team Leading and then became a shift supervisor. In 2002 he became the Nurse Manager for the [Unit] and remains in this position at the present.

[The manager] described the [Unit] as a 25-bed unit with clients whose IQ is less than seventy. There is a mix of male and female clients ranging from the ages of sixteen to seventy. Approximately eighty-five percent of the clients come from group homes with a history of mental illness and developmental delay. There is a high incidence of violence on the unit to others and self, including scratching, biting, kicking, punching and slapping. The staff mix on the unit at the time of the allegations included RNs, RPNs and DSWs as well as many other health care providers.

[The manager] recalled [Client A] as a client on the unit at the time of the allegations. [Client A] had been admitted from a group home with, in [the manager]’s opinion, an estimated mental age of four to six years old. He had lived in group homes since the age of seven. [Client A] had no knowledge of his parents. He had lived in foster care and had a history of being left to roam without supervision. [Client A] had limited control of his behaviour. He needed help controlling aggressive behaviours such as grabbing. [The manager] also described [Client A] as an entertaining individual. He was a movie buff and liked to watch TV. [Client A] was frequently incontinent of urine. He did not have a bathroom in his room and would need to be taken to the bathroom.

[The manager] testified that all staff received crisis intervention training. He identified a Time Sheet [ ] which demonstrated that on July 19, 2004 the Member was scheduled to work 0945 -2215. Both [RN A] and [the DSW] were scheduled to work 0645 – 1915. [The manager] identified the staff Assignment Sheet [ ] for July 19, 2004 which indicated that [RN A] was assigned to be the medication nurse from 0700 – 1900 followed by the Member from 1900 – 2200. This record also indicated that [the DSW] was scheduled to work that day. [The manager] then identified the 1:1 Assignment sheet, which indicated that at 1500 hours [the DSW] was assigned to [Client B] whose room was across the hall from [Client A]. These documents were used to establish the date of the incidents as [the DSW] could not recall the exact date when he made his report to [the coordinator].

[The manager] testified that in [Client A]’s multidisciplinary treatment plan [ ] it was noted that [Client A] had injured staff four times in one month. There were many incidents of aggression, particularly to females. As it was normal for [Client A] to be aggressive, he required 2:1 staffing, preferably with males. Two staff were required when giving [Client A] medications. Verbal cues regarding feelings of anxiety included saying, “I’m scared” or, “I’m not going to grab you” or, “Can I hold you”. He testified that he would expect that if [Client A] indicated a trigger, staff should exit immediately to ensure their safety.

[Client A]’s Medication Administration Record was identified in his chart [ ]. [The manager] testified that at 1700 hours [RN A] initialled on the medication record that [Client A] had [been] given three 25mg Methotrimeprazine tablets (75mg), an antipsychotic which [the manager] knew to be circular and yellow in colour. [Client A] also received one 200mg Carbamazepine tablet, an anticonvulsant which was a white in colour. [The manager] testified that medications could be given one hour before or after the assigned time. [The manager] reviewed the charting for July 19th for [Client A], noting that between 1200 and 1900 hours there were no notations of acting out or aggressive behaviour. He stated the Member did not report the incident to him. He became aware of the incident when [the coordinator] informed him of her conversation with [the DSW]. [The coordinator] asked [the manager] to immediately initiate an investigation.

On Sept 3, 2004 a meeting was held with the Member, [the coordinator] and [ ] a union representative. The allegations were reviewed with the Member and the Member was asked to provide her side of the story.

At this meeting the Member recalled [RN A] throwing water in [Client A]’s face and that [Client A] had spit at them. The Member told them she could not recall medications falling to the floor. The Member admitted that she had not documented or reported the incident. In a follow-up meeting on September 14, 2004 the Member said that there could have been water, urine or Gatorade on the floor. She did not know which. The Member told them that [RN A] told [Client A] to pick up the medications. She denied directing [Client A] to pick up one more pill and take it. The Member did not tell them at either meeting that [Client A] grabbed at them or attacked them, however the Member did say that [Client A] had spit at them and was coming at them.

[The manager] testified that the incidents should have been documented and reported and that soiled medications should have been discarded. He recalled a discussion in a team meeting about the use of aversion water therapy “misting” for another client. He was also aware that some staff would tell new staff members not to be a rat.

[The coordinator] testified that she graduated from the Nursing Program [ ] in 1986. She recently completed her Masters in Health Administration [ ]. She began her career as surgical staff nurse []. In 1988 she joined [ ] Hospital. In 1992 she accepted a position at the [Centre,] where she worked as a Nurse Manager and the later as the Acting Program Director of the [Unit] . In 2001 she accepted the position of Program Coordinator for the [Unit]. Her responsibilities include overall operations, administrative, financial and clinical leadership. Nursing staff reported directly to [the manager,] who reports to her. Prior to these incidents she had initiated a change in staffing that included full-time DSWs being integrated into the health care team. In order to make this change, RPN positions were converted to DSW positions. There was a fear among the staff that RPNs would be put out of their jobs. This environment still existed when the incidents occurred.

[The coordinator] recalled [Client A] as a client on the [Unit]. She testified that he was a challenging client with a horrendous history of being victimized as a child. He was unadoptable. He suffered from high anxiety yet was likeable and had a great sense of humour. Hospitalization goals included assisting [Client A] with aggression and a review of his medications.

[The coordinator] testified that early in September 2004, [the DSW] approached her asking to speak with her. They went to her office where [the DSW] disclosed the incident with [Client A] involving the Member and [RN A]. She later testified that she may have been involved in chit-chat with [the DSW] prior to him reporting the incidents to her. She could not be certain how or where the contact was initiated. She was told by [the DSW] that he witnessed water thrown into [Client A]’s face and that he was directed to take medications that had fallen on the floor and mattress which were soaked in urine. She asked [the DSW] to write a report which she received and reviewed the next day. She instructed [the manager] to immediately initiate an investigation.

[The coordinator], [the manager], the Member and a union representative met on September 3, 2004. The Member received a letter [ ] listing the allegations and was asked to tell about the incident. The Member said that she and [RN A] entered [Client A]’s room. He spit at them. She admitted seeing [RN A] throw water in [Client A]’s face and that she did not report the incident.

The Member did not recall medications in a cup or being spilled on the floor. She denied telling [Client A] to pick up one more pill from the floor and to take it. The Member denied saying [Client A] would like piss in his face. She admitted she may have said he likes to lie in it.

After the September 3rd meeting, next steps included interviewing other staff who where working the same shift. No one reported hearing the Member say that [Client A] would have liked piss in his face. She did not interview [RN A] as she was immediately fired. There had been other complaints involving [RN A]. She was aware through media coverage that [ ] there were criminal charges against [RN A] relating to her previous place of employment. [The coordinator] could not recall if she was aware of this information at the time of the investigation into the complaint against the Member.

[The coordinator] conducted a second meeting on September 14, 2004 with the Member, [the manager], and a union representative [ ]. The purpose of the second meeting was to offer the Member an opportunity to provide clarification or add new information. The Member clarified that it could have been urine, water or Gatorade on the floor. The Member acknowledged that it did not matter what the liquid was. The Member acknowledged that [Client A] was in a messed state but was confused as to what time of day they were referring to. She thought the messed state was in the morning. When asked why [Client A] was left in a messed state, the Member told [the coordinator] that you can attend to him and ten minutes later he would be in another messed state. The Member denied directing [Client A] to pick up soiled medications but recalled [RN A] directing [Client A] to pick up soiled meds. The Member seemed surprised to be told that [RN A] had not reported the incident. When the Member reviewed [Client A]’s nursing notes she said: “Oh gees, [RN A] didn’t write any notes”. She stated that the water to [Client A]’s face was to set him back to behave and to get out of the room.

[The coordinator] recalled a discussion [ ] at a team meeting about using water “misting” to a client’s face as aversion therapy. It was a suggestion that was not accepted as a treatment. She also vaguely recalled another incident where water was thrown in the face of a client [ ] who was also a very aggressive client. She testified that the nurse in that case was not terminated. She admitted she later shared tea with this nurse as she was very upset. She could not recall if she had received an incident form when water was thrown at [that client]’s face.

[The coordinator] testified that she would expect the abuser, as a professional, to report abuse. However this is not the norm. She certainly expected that any witness to abuse would immediately file a report. [The coordinator] testified that the “culture” of the unit was different then. Little was said. Staff would turn a blind eye and not report incidents of abuse. She recalled hearing that after the incident [the DSW] reported that he found a piece of cheese in his mailbox.

[The coordinator] testified she had once prior to this incident heard the Member use a client’s name in a disrespectful way and speak to the client in an inappropriate tone of voice. She immediately spoke with the Member about her concerns.

[RN B] testified that he was attending the hearing under subpoena. Since becoming an RN and registering with the College in 2001 he has been employed at the [Unit]. He has since obtained [ ] certification in Psychiatric Mental Health Nursing. He has worked as Charge Nurse and then Team Leader on the [Unit] reporting to [the manager]. His responsibilities include preparing staff assignments, take care of staffing needs and setting up meetings as required. He also provides direct client care.

He testified that [Client A] was known to be frequently incontinent of urine. He testified that if you saw liquid on the floor it would probably be urine. It was not unusual for liquid to be on [Client A]’s mattress which would spill over onto the floor. There was no sink or bathroom in [Client A]’s room.

[RN B] agreed in his testimony that [Client A] was vulnerable related to his decreased IQ. As an RN, you are required to be sensitive to these issues.

He testified he was familiar with [Client A]’s trigger of, “I’m not going to grab you”. When this was said by [Client A], he actually was saying that he wanted to, or was going to, grab you. [Client A] was particularly difficult with female staff. He would move closer to female staff with gestures to grab. There was a real risk that [Client A] would assault you. In fact, staff had been assaulted by [Client A]. Due to a lack of resources, it was difficult to maintain [Client A]’s treatment plan.

At the time of the allegations the [Unit] had staffing issues. In that [Client A] was a difficult client to provide care to, [RN B] would assign himself to provide AM care to [Client A].

[RN B] testified that on July 19, 2004 he was assigned to [Client A] from 0700 – 1100 hours. He provided [Client A] his AM care. [RN B] first learned of the incidents at issue in this hearing months later, and never received a report of this incident. He agreed that there was a culture of under-reporting on the unit at that time.

[RN B] testified he occasionally worked with the Member. He described the Member as a hard worker who was not afraid to do the dirty work. While other staff disappeared when a dirty job needed to be done, the Member would help. He testified he had never witnessed the Member doing or saying anything inappropriate to [Client A].

He recalled [the DSW] working on the unit as a DSW in July 2004. He was not there long before moving to another position. [RN B] testified he did not know much about [the DSW], but described him as quiet. In his opinion, [the DSW] did not develop peer relationships with his colleagues.

[RN B] testified that at the time of the allegations there was some friction between the DSWs and RPNs. This resulted from [the coordinator] hiring two DSW positions after converting RPN positions to accommodate this change. He stated he had heard on the radio that [RN A] had been criminally charged for failure to provide basic care and that he was aware of this at the time of the allegations.

[RN B] testified that if you were in the nursing station you would hear other colleagues speaking who where also at the station.

The panel admitted expert opinion evidence on the issue of the standards of practice. The College tendered [ ] as an expert in mental health and psychiatric nursing, qualified to testify to appropriate medication administration procedures, and to the standards of practice, specifically relating to reporting obligations, the therapeutic nurse-client relationship, and abuse in the context of dealing with clients with psychiatric problems or mentally compromised including aggression.

[The expert]’s credentials were as follows.

  • He studied nursing from 1988 – 1992 [ ] receiving his Bachelor of Science in Nursing. He briefly worked [ ] as an OR nurse before entering Canada in 1993.
  • From 1993 – 1995 he worked as an unregulated health care provider while working towards becoming registered with the College. He became registered with the College in 1995 as an RN, and is currently enrolled [ ] in the BScN program. He has completed five of seventeen courses.
  • He held a full-time position [ ] in Toronto from 1995 – 2000 on the Neuropsychiatry unit. He provided care to clients including medication administration with acquired brain injury resulting in mental illness. His role there included working as front line staff as well as assuming the role of Charge Nurse six weeks at a time. Clients on this unit were often aggressive as a result of frontal lobe injuries.
  • He accepted a position on the Minimum Secure Rehabilitation Unit, [ ] in Toronto in 2000, leaving this unit in 2007. Clients on this unit were there for mental illness and involuntary admission relating to the criminal judicial system. Clients suffered from a variety of illnesses including seizures, dual diagnosis and phase axis disorders I and II. [The expert] dealt with clients who had anxiety, aggression and violence issues. He provided 1:1 client care, administered medications and supervised unregulated health care providers. He also worked in the role of Team Leader on a rotational basis. He was required to provide care under the standards of practice set out by the College including the practice standard for the Therapeutic Nurse-Client Relationship;
  • He worked part-time [ ] on General Psychiatry from February 2002 until July 2002 . Clients were generally competent with mental illness and voluntary admission. Duties included medication administration, assessment and support.
  • He accepted a position in July 2002 as a casual/part-time employee [ ] as a Crisis Worker, Emergency Services and continues in that position at the present. He provides crisis assessment and community support. These clients can be aggressive and violent.
  • He transferred to the Transitional Rehabilitation Unit Law and Mental Health Program [ ] where he assists clients to re-integrate into the community while following conditions placed on them by [the] Ontario Review Board. He participates in creating and supporting client care plans, participates in team rounds and makes recommendations for clients. For the past seven months he has assumed the role of Team Leader on a rotational basis with one other person.
  • [The expert] obtained his certificate in Psychiatric Mental Health Nursing from the Canadian Nursing Association three years ago.
  • In 2006 he attended a Crisis Prevention Intervention Course, obtained his BCLS certification as required by his employer and attended a Prevention and Management of Aggressive Behaviour course.
  • He was one of two designated mentors for new employees to the Law and Mental Health Program in 2007 and has twice facilitated, with a pharmacist, client medication sessions where information is provided to clients about their medications. He is also an assigned trainer for the Psychiatric Analysis Nursing Diagnosis Assessment (PANDA) workload measurement tool. He could not recall the number of times he has acted as a trainer.
  • [The expert] attended a Psychopharmacology nursing workshop in 2005 at the University Health Network.
  • He has also attended seminars including Occupational Health and Safety, Forensic Nursing, Cultural Diversity, Boundaries in Nurse-Client Relationship and Discrimination, Conflict Resolution and Harassment in the Workplace.

He has not done any research, taught or published anything regarding ethics, mental health, the College’s standards, the therapeutic nurse-client relationship or the administration of medications.

He has never participated in any committee work with the College or been involved in teaching the standards of practice.

His stated objective on his curriculum vitae is to participate in College of Nurses investigations and hearings process as an expert witness.

In summary, [the expert] has had 13 years experience working in psychiatric nursing. He has worked with clients with aggression, dual diagnosis and developmental delay. He has experience in the administration of medications and has dealt with an abuse complaint he received as the Nurse in Charge regarding a nurse touching a client inappropriately. He reported the complaint to the Manager of the Unit but was not involved in the investigation of the matter. He frequently applies the College’s standards of practice, in particular the Therapeutic Nurse-Client Relationship standard and the Medication standard.

The Member’s counsel objected to qualifying [the expert] as an expert witness. After hearing submissions from counsel and receiving advice from Independent Legal Counsel, the panel applied the test in R. v. Mohan and determined that it would qualify [the expert] as an expert witness in mental health and psychiatric nursing. The panel was satisfied this witness had special knowledge and experience beyond the panel’s own knowledge and experience and that his evidence would be both relevant to the case and of assistance to the panel. In addition, no exclusionary rule barred admission of his evidence. The issue of the appropriate weight to give to his evidence would be determined in deliberations.

[The expert] testified that when he received a hypothetical scenario [ ] from the College with a request to provide an opinion he also received copies of the Colleges standards of practice for The Therapeutic Nurse-Client Relationship, Professional Standards Revised 2002, Medications and Ethics. He later testified that he was not instructed which standards to refer to. He stated he was familiar with these standards prior to receiving copies with the hypothetical scenario.

College Counsel took [the expert] to the hypothetical scenario which reflected the facts of the case as submitted by the College and testified to by the College’s witnesses. The witness testified that he considered the Therapeutic Nurse-Client Relationship Standard of Practice [ ], the Medications Standard of Practice [ ], the Professional Standards Revised 2002 [ ] and the Ethics Standard of Practice [ ] of the College of Nurses when he formed his opinion.

The witness testified that based on paragraphs 12 and 13 of the hypothetical scenario, the nurse would have failed to meet the standards of practice by directing the client to ingest soiled pills. The therapeutic nurse-client relationship would have been violated by abuse of power on the part of the nurse. The nurse has knowledge, skills and influence over the client and his care. In this case, the client was vulnerable, being developmentally delayed. This nurse failed to maintain the client’s trust by instructing him to take soiled medications. The client’s trust was breached in that the nurse failed to show respect, empathy and caring for the client. The nurse also failed to meet the Medication Standard of the College of Nurses. Medications should be given in a safe and ethical manner. Medications were provided to this client that had partially dissolved in fluid on the floor. It would not matter if the fluid was water or urine. It is inappropriate to direct a client to take medications that have been soiled. Medications that have been dropped onto the floor without fluid contamination are also considered soiled. The right dose would not have been administered as the medication was partially dissolved. Considering the Accountability Standard, the nurse failed to consider the best interests of the client. The witness testified that directing the client to take soiled medications would be conduct considered by members of the profession to be unprofessional. Abuse of the nurse’s power would be conduct considered by members of the profession to be disgraceful and unprofessional.

[The expert] testified that based on paragraphs 11, 12 and 15 of the hypothetical situation, the Member would have failed to meet the Accountability and Ethics standards of practice by failing to report witnessing another member throw water into a client’s face and by failing to report directing the client to take soiled medications. The nurse witnessing this incident should have spoken to her colleague and stepped in to protect the client. Nurses have an obligation to report unsafe and unethical practice. Members of the profession[] have a responsibility to provide, facilitate, advocate and promote the best possible care, even when the nurse is dealing with a difficult client who is aggressive. The nurse must follow the standards. It is important to understand the reasons behind the behaviour and approach the aggressive client in different ways. [The expert] testified that failing to report water thrown in the client’s face would be conduct regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

The witness testified that based on paragraph 14 of the hypothetical scenario, the nurse would have failed to meet the standards of practice by saying the client “would have liked it better if piss had been thrown in his face because he lies in his piss all day”, or words to that effect. Nurses have an obligation to show respect and dignity for clients both in and out of their presence. Comments of this nature constitute[] both emotional and verbal abuse of a client. Physical abuse occurs when a nurse acts in a threatening or intimidating manner toward a client. Comments as described in this paragraph of the hypothetical would be conduct regarded by members of the profession as unprofessional.

The witness agreed that his opinion could be different if the facts found by the panel were different than those in the hypothetical scenario. He would not find the Member’s comments unprofessional if the Member had only said that the client lies in his piss all day.

[The expert] testified that if the facts were found by the panel to be that [ ] the nurse saw her colleague throw water into a client’s face but did not see medications in a cup spilled on the floor, his opinion would change. The Member would not be responsible for breach of the standards of practice if she had no knowledge of the client being directed to take soiled medications. She would still be found to have engaged in conduct that was disgraceful, dishonourable and unprofessional for not reporting the water being thrown in the client’s face. Even if the Manager of the unit testified there was a culture of failure to report or of under-reporting, the nurse still breached the Accountability Standard. If the nurse witnessed abuse, an incident report should have been completed and submitted to the unit manager.

Final Submissions

The College

Counsel for the College reviewed with the panel the standard of proof, as stated in Re Bernstein and College of Physicians and Surgeons of Ontario (1977) 15 O.R. (2d) 447 (“Bernstein”). She submitted that the evidence in this case meets the test of being clear, cogent and convincing. Credibility of witnesses is an important fact for the panel to consider.

This is not simply a case of the Member’s testimony versus [the DSW]’s testimony. Other components including the admissions the Member made to [the manager] and [the coordinator] during the meetings held in September and documents in evidence are supportive of the allegations being made by the College.

[The DSW]’s delay in reporting was not suspicious given the atmosphere of the unit at the time. He had no motive to fabricate the allegations. He was consistent in his testimony including during cross-examination.

The testimony of [the manager] was supported by [the coordinator] relating to the culture of silence, the challenging relationship between the RPNs and DSWs and most of what the Member had told them in the meetings about the incident.

College counsel submitted that [RN B]’s testimony was of limited value in that he was not on the unit when the incident occurred. He thought highly of the Member based on limited observations of the Member’s interactions with clients. His testimony supported [the DSW]’s in that he testified one would expect to find urine on the mattress which would flow over onto the floor.

College counsel argued that the Member’s explanations don’t make sense. If the Member felt threatened, she would be sure to see and know what was going on. The Member admitted to much of what she said at the meetings but could not recall why she said it, therefore is stuck in her own admissions. The major differences in the Member’s and [the DSW]’s testimony [are] that the Member denies directing the client to take soiled medications and denies that she said that [Client A] would like to have piss in his face. The Member admitted to much of what [the DSW] described. The Member admits to seeing water thrown into [Client A]’s face by [RN A], but is not prepared to admit to her own conduct.

In the meeting of September 14th the Member, knowing she was fighting for her job, corrected her statement to include there could have been urine on the floor and that the RN had told [Client A] to pick up the medications. In her testimony the Member was inconsistent as to what she saw and heard. She testified that she heard [RN A] tell [Client A] to pick up the medications, then gave a different answer without explanation.

College counsel submitted that nurses must remain professional even under difficult circumstances. This includes dealing with difficult clients and in particular with vulnerable clients. There is an extraordinary public trust in the nurse to provide care with dignity. She argued that the evidence was sufficiently clear, cogent and convincing, and asked the panel to make findings relating to all the allegations in the Notice of Hearing.

The Member

Counsel for the Member agreed that the standard of proof in this case was as set out in Bernstein, and reminded the panel that the College bears the onus to prove the case on clear, cogent and convincing evidence, being more than a mere balance of probabilities. The onus is not on the Member, and the focus should not be, for example, on why the Member is not currently able to remember what was said in a meeting four years ago.

Counsel submitted that this is a case of credibility. There are two different stories with some overlap. Counsel reviewed the evidence of the witnesses and submitted that the only witness the College had to rely on with respect to the incident was [the DSW]. [The DSW] reported the incident six weeks later and may believe that he is telling the truth regarding what he saw, however, he was misinterpreting the situation. He was not able to recall the date of the incident. The testimony of [the coordinator] and [the DSW] was inconsistent as to where the report was made. With the passage of time, [the DSW] has filled in the facts and blown up the situation. All staff of the [Unit] would have a mental image of [Client A] lying in pools of urine. [The DSW] could be confused as to when he actually saw [Client A] in a pool of urine. [The DSW] was a new staff member who entered the room assuming the worst and did not know [Client A]’s triggers, therefore the whole incident was coloured. When [the DSW] made the initial report to [the coordinator,] he did not describe the colour of the pills. He has embellished his testimony, filling in the blanks by describing [Client A] fumbling with the pills, which was not in the original report. It does not make sense that he would stand and watch such conduct and not intervene if it actually occurred. It does not hang true that [the DSW] claimed to be able to remember verbatim comments from the Member six weeks after the fact. No one else heard the comment the Member was alleged to have made at the nursing station. [Nurse C] was not called as a witness by the College to establish if [Client A] was urine-soaked. She was the next nurse responsible for [Client A]’s care after the incident.

As to [the expert]’s evidence, the Member’s counsel pointed out that the evidence of an expert opinion is useless if the facts in the hypothetical scenario on which the opinion is based are not made out. The hypothetical scenario in this case was based on flawed and distorted information, therefore the opinion evidence of the expert witness could not be relied upon.

The Member has admitted that she failed to chart and report the incident of water being thrown into [Client A]’s face. The Member believed reporting water thrown into [Client A]’s face [w]as “a grey area” considering the discussions of “misting” and knowing that [ ] another client once had water thrown in her face and that [the coordinator] had tea with the nurse after the incident. The Member agreed she should have reported the incident, discussed it with the team and confronted [RN A].

One incident of failing to report does not equal professional misconduct particularly in that there were systems issues at the [Unit] regarding reporting. The culture of underreporting was described by both [the coordinator] and [RN B]. Counsel referred the panel to Eng v. The College of Nurses where a panel of this Committee found that a single incident of sub-standard documentation does not constitute sufficient evidence to make findings of professional misconduct. The College appealed that finding and the appeal was dismissed.

The Member had a history of 2½ years of employment with repeated renewals of her contracts. The testimony of [the manager], [RN B] and [the coordinator] demonstrated that the Member was known to be a hard worker, not afraid to do the dirty work. The Member could have denied everything that happened. If the Member was callous and malicious, why was this not seen before? Why would she suddenly turn into a monster? The Member is caught in collateral damage relating to the hospital’s efforts to get rid of [RN A]. She was in the wrong place at the wrong time. The Member took responsibility, yet ended up fired.

Finally, the Member’s counsel submitted that the evidence is not clear, cogent and convincing and therefore no findings should be made and the allegations should be dismissed.

College Counsel’s Reply

In her reply submissions, College counsel argued that the case of Eng v. The College of Nurses is not comparable. In the Eng case, the nurse failed to chart vital signs. In the case before this panel, the allegations are much more serious. Failing to report a shocking incident of abuse clearly constitutes professional misconduct.

[Nurse C] was not called as a witness as the College believed she would not be of assistance. Conversely, the defence did not call her to testify that [Client A] was dry.

There was no evidence provided to this panel that the Member has been caught in collateral damage in the effort to terminate [RN A].

The College is not trying to prove or make out that the Member is a terrible person or a monster, rather the College is proving the Member engaged in unacceptable conduct.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof which the panel is familiar with, set out in Re Bernstein and College of Physicians and Surgeons of Ontario (1977) 15 O.R. (2d) 447. 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.

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(i), (ii), 2, 3 and 4 (i), (ii), and (iii) of the Notice of Hearing. In particular, the panel found that the Member:

  • failed to meet the standards of practice of the profession, abused [Client A] verbally, physically and emotionally and engaged in conduct relevant to the practice of nursing that would be reasonably regarded by members of the profession as disgraceful and unprofessional by directing [Client A] to take contaminated medication that had fallen onto the floor and into urine and failing to report this incident;
  • committed professional misconduct by failing to report an incident of unsafe practice or unethical conduct of another health care provider to the employer or other authority when she observed a member throw water in the face of [Client A]; and
  • committed professional misconduct by engaging in conduct relevant to the practice of nursing that would be reasonably regarded by members of the profession as unprofessional by commenting to another staff member that he ([Client A]) “would have probably liked it better if you threw piss in his face because he lies in his own piss all day” or words to that effect.

Reasons for Decision

The panel assessed the credibility of the witnesses in accordance with the criteria described in Pitts v. Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), 51 O.R. (2d) 302 (Div. Ct).

The Member failed to meet the standards of practice of the profession, abused [Client A] verbally, physically and emotionally and engaged in conduct relevant to the practice of nursing that would be reasonably regarded by members of the profession as disgraceful and unprofessional by directing [Client A] to take contaminated medication that had fallen onto the floor and into urine and failing to report this incident. Allegations - 1 (i), (ii), 2, 4 (i), and (ii)

The panel first reviewed the evidence and the credibility of witnesses to determine if in fact medications had spilled to the floor and, if so, into urine. Having found that in fact pills had spilled to the floor and into urine, the panel determined whether or not the Member directed [Client A] to pick up one more pill and take it. Having found that the Member did in fact direct [Client A] to take soiled medications, the panel then made determinations as to whether there was a failure to meet the standards of practice and disgraceful, dishonourable and/or unprofessional behaviour.

[The manager] identified documentation that proved that [the DSW], [RN A] and the Member were all scheduled to work on July 19, 2004. The Assignment Sheet indicated that [the DSW] had been scheduled to provide 1:1 care from 1500 – 1600 to [Client B,] whose room was across the hall from [Client A]. The Medication Administration Record demonstrated that [RN A] initialled the administration of two medications for the 1700 hour medication round. [Client A] would have received three pills yellow in colour and one white pill. [The manager]’s testimony supported the testimony of [the DSW]. [The manager] was clear that he first became aware of this incident when [the coordinator] approached him with the report from [the DSW] and asked him to investigate. The Member did not report the incident to [the manager]. [The manager] seemed honest with no interest in the outcome of the hearing. He did not hesitate to indicate when his memory was not clear. The panel found [the manager] to be a credible witness.

[The DSW] was unwavering in his testimony that he heard the Member tell [Client A] to pick up one more pill and take it while pointing to the medication on the floor. [The DSW] was in a position to see and hear the interaction between the Member and [Client A] considering [Client A]’s room was only 18 to 20 feet long and 12 feet wide with [Client A]’s mattress in the centre of the room, on the floor, lying in a diagonal position. [The DSW] clearly described [Client A]’s underwear to be wet with urine. He saw pooling of urine on his mattress which he described spilling onto the floor when [Client A] leaned forward in the kneeling position on his mattress to receive his medication. [Client A] had no access to water in his room. The amount of water left in the medication cup that was thrown into [Client A]’s face could not account for the amount of fluid seen on the mattress and floor, especially after having to run down his face and chest. [The DSW] had a reason to remember the details of the incident as it made a significant impact on him. The Member’s testimony that [the DSW]’s behaviour changed after the incident, not interacting with her, and that he was shying away supports the impact this incident had on him. [RN B]’s testimony also supported the impact on [the DSW], as he noted that [the DSW] did not develop peer relationships with his colleagues.

[The DSW] recalled seeing that the pill [Client A] picked up off the floor was dissolving, making it difficult to take. As a result, he saw yellow staining on [Client A]’s fingers and lips. The panel noted a few minor inconsistencies in [the DSW]’s testimony, none of which changed the context or significance of his evidence. He remained composed and calm throughout his testimony. The delay in reporting this incident was understandable, given the testimony of [the coordinator] and [RN B] regarding the culture of the unit, under-reporting of abuse, the change to bring DSWs into the unit as heath care providers and the warning [the DSW] received about not being a rat. The panel found [the DSW] to be a credible witness and that his evidence was clear, strong and convincing.

The amount of urine [the DSW] described [Client A] to be incontinent of was consistent with the evidence of [RN B]. [RN B] testified [Client A] was known to be frequently incontinent of urine and that if you saw liquid on the floor it would probably be urine. It was not unusual for liquid to be on [Client A]’s mattress which would spill over onto the floor. The panel noted that [RN B] was attending the hearing under subpoena. He seemed honest and provided direct answers to questions posed by both parties. He did not appear to have an interest in the outcome of the hearing. The panel found [RN B] to be credible.

Both [the manager] and [the coordinator] testified that at the meeting held with the Member on September 3rd the Member said she could not recall medications falling to the floor. During the meeting of Sept 14th, the Member said that [RN A] had instructed [Client A] to pick up medications from the floor. The Member continued to deny that she had told [Client A] to pick up one more medication from the floor. The Member also said that there could have been water, urine or Gatorade on the floor, thereby acknowledging that both medications and fluid were on the floor. [The coordinator] was clear that she first became aware of the incident when [the DSW] reported it to her. [The coordinator] testified to the culture present on the unit, and of under reporting. [The coordinator]’s testimony was consistent with that of [the manager]. The panel found her to be knowledgeable and truthful and a credible witness.

The Member’s explanations were inconsistent during her meetings with [the manager] and [the coordinator] as well as during her testimony at this hearing. She initially testified she had no knowledge of medications spilling to the floor yet later clearly stated twice that she heard [RN A] direct [Client A] to pick up the pills. When she was caught in this discrepancy she stated she could not recall having just testified that in fact [RN A] had directed [Client A] to pick up the medications off the floor.

The Member provided the panel with a number of versions as to where she was in the room when the incident occurred. Understanding the size of the room, the position of [Client A]’s mattress and the Member’s acknowledgment of a concern for both she and [RN A]’s safety, the panel found it unbelievable that once the cup of water was thrown in [Client A]’s face, she lost focus and just stared at [RN A]’s back. It is only sensible that anyone concerned with their safety would have made sure they could see and hear what was happening and leave the room if threatened.

The Member’s admission that she failed to report the incident falls far from taking responsibility for her conduct. The panel considered the good character evidence led by the Member, including the fact that she was known to do the “dirty work” and that she had her contracts renewed over a period of 2 ½ years. However, in the panel’s view, these facts are not particularly probative as to whether the Member engaged in the conduct alleged. The Member clearly had an interest in the outcome of this hearing. When testifying, the Member was initially very well controlled but when caught in a significant discrepancy in her testimony she became aggressive and disrespectful in her answer to College counsel. The panel found the Member was not a credible witness and that her version of events was not reliable or convincing.

The testimony of [the expert] supported a finding of failure to meet the standards of practice, abuse and disgraceful and unprofessional conduct. The panel accepted that the College had met its burden of proving the facts in the hypothetical scenario on which [the expert]’s opinion was based. The panel accepted [the expert]’s opinion. Even though the Member was not directly responsible for the administration of the medications, by instructing [Client A] to take soiled meds, she failed to meet the standards of practice. The Member clearly abused her position of power and the trust placed in her, especially with a client so vulnerable. She failed to show respect, empathy and caring for [Client A]. Medications once soiled are to be disposed of and redrawn. The panel found [the expert] to be very knowledgeable and professional. He had a wealth of experience, including recent relevant experience on which to base his opinions. He provided his testimony in a calm and complete manner. His testimony was internally consistent. The panel found [the expert] to be a credible witness and accepted his opinion.

The Member abused the client by her misuse of power. [Client A], being especially vulnerable, experienced both emotional and verbal abuse by being directed by the Member to take soiled medications. The Member acted in a threatening and intimidating manner. Moreover, a vulnerable [client] such as [Client A] who ingests soiled medications on the threatening instructions of a Member is physically abused as well.

The Member’s conduct in directing [Client A] to take soiled medications and failing to report the incident is disgraceful in that it shames the Member and by extension, the profession. This conduct casts serious doubt on the Member’s moral fitness and inherent ability to discharge the obligations the public expects professionals to meet. Failing to live up to the standards expected of this Member is unprofessional conduct.

The Member committed professional misconduct by failing to report an incident of unsafe practice or unethical conduct of another health care provider to the employer or other authority when she observed a Member throw water in the face of [Client A] - Allegation #3

The panel first reviewed the evidence and the credibility of witnesses to determine if in fact water had been thrown into [Client A]’s face. Having found that this did occur, the panel next determined whether the Member reported that it occurred. Finding that the Member did not report the incident, the panel then considered if her failure to report was professional misconduct. The panel concluded that it did.

[The DSW] testified seeing water thrown in [Client A]’s face. [The manager] and [the coordinator] testified that when questioned, the Member admitted seeing [RN A] throw water into [Client A]’s face and that she did not report it. [The manager] and [the coordinator] testified that the use of water to deal with [Client A]’s aggression was never part of [Client A]’s treatment plan. There were no notations between 1200 and 2300 hours of aggressive behaviour documented in [Client A]’s chart.

The Member testified that she saw [RN A] throw water into [Client A]’s face and that she failed to report the incident. The Member testified she felt [RN A]’s conduct was “in a grey area” regarding reporting because there had at one time been a discussion in a team meeting about using water “misting” to deal with aggressive behaviour of another client and that in fact water had once before been thrown in a client’s face. The Member believed that [RN A] submitted a report. She testified that in hindsight she should have reported the incident.

[The expert] testified that nurses have an obligation to report unsafe and unethical practice. Nurses have a responsibility to provide, facilitate, advocate and promote the best possible care.

The evidence was clear that the Member failed to report a very serious incident involving water being thrown into [Client A]’s face. The use of water to deal with [Client A]’s aggressive behaviour was never part of his treatment plan. Even if the Member believed [RN A]’s action to be “in a grey area”, as she testified, she should have sought advice which would have in this panel’s opinion resulted in a report. The circumstances of this case are much more serious than that of Eng v. The College of Nurses (1993). The Member failed in her obligation to provide, facilitate, advocate and promote the best possible care for [Client A]. The panel found that the Member’s failure to report this very serious incident was most likely a result of wanting to avoid having to answer for her own misconduct. Nurses have an ethical obligation to report unsafe and unethical practice. Failing to report was clearly professional misconduct.

The Member committed professional misconduct by engaging in conduct relevant to the practice of nursing that would be reasonably regarded by members of the profession as unprofessional by commenting to another staff member that he ([Client A]) would have probably liked it better if you threw piss in his face because he lies in his own piss all day or words to that effect. Allegation - #4 (iii)

The panel first reviewed the evidence and the credibility of witnesses to determine if in fact the Member had made this comment. Having found that the Member made the comment as alleged, the panel next determined if making a comment of this nature is disgraceful, dishonourable and/or unprofessional.

[The DSW] testified that he heard the Member tell [RN A] that [Client A] would have liked piss in his face because he lies in his own piss all day. He had the opportunity to hear this as he was sitting beside the Member when she made the comment.

The Member denied, during the investigation and in her testimony at the hearing, saying to [RN A] that he ([Client A]) would have liked piss in his face. She did admit that she said, “He lies in his piss all day.” She testified she made this statement in answer to a question posed by [RN A] and was just explaining some of [Client A]’s quirks. However, she could not recall what the question was that prompted the comment.

Given the culture of the unit specific to under-reporting as described by both [the coordinator] and [RN B], the panel is not surprised that no one else reported hearing the comment.

[The expert] testified that nurses have a responsibility to show respect and dignity for clients both in and out of their presence. Making a comment of this nature would be conduct considered by members of the profession to be unprofessional.

The comment the Member allegedly made fits with the events of the day, which included directing the client to take soiled meds, water thrown in the client’s face and the client’s history of often being found lying in his urine. The panel found that the statement was made as alleged. This was a he said/she said scenario. The Member’s explanation lacked the ring of truth, and the Member’s credibility as a whole was suspect. The evidence of [the DSW] was believable and was sufficiently strong and convincing to discharge the burden of proof on the College.

The panel agrees with [the expert] that nurses have a responsibility to show respect and dignity for clients both in and out of their presence. Making a comment of this kind clearly fails to show respect and dignity. The panel found the comment to be unprofessional in that it is clearly unworthy of a professional.

Penalty Submissions

Counsel for the College provided the panel with the College’s Submission on Penalty [ ].

The College of Nurses of Ontario (the “College”) respectfully submits that the panel of the Discipline Committee (“the Panel) should make an order as follows:

  1. Requiring the Member to appear before the Panel to be reprimanded, at a date to be arranged, but in any event within three (3) months of the date of this Order becoming final.
  2. Directing the Executive Director to suspend the Member’s certificate of registration for a period of four (4) months. The suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption. The suspension shall run continuously so long as the Member maintains a current registration. In the event that the Member fails to maintain a current registration, any portion of the suspension which has not yet been served, shall be served commencing on the day that the registration is renewed.
  3. Requiring the Member to return her current Annual Payment Card to the College within fourteen (14) days of the date that this Order becomes final so that a new Annual Payment Card, indicating that the Member’s certificate of registration is subject to terms, conditions and/or limitations, can be issued. The Member’s Annual Payment Card shall be delivered to the College by a verifiable method of delivery, the proof of which the Member shall retain.
  4. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
    1. Requiring the Member to meet with a Practice Consultant at the College, at the Practice Consultant’s convenience, prior to returning to practice and, in any event, within three (3) months of the date this Order becomes final. The Member will meet with the Practice Consultant to discuss the materials referred [to] below (i to iv) as they relate to the conduct for which the Member was found to have committed professional misconduct and to discuss how to prevent such conduct from occurring in the future. Prior to attendance at the meeting the Member shall:
      1. Review College Standards and Guidelines: Professional Standards (Revised 2002), Ethics, Therapeutic Nurse-Client Relationship, Documentation, Medication, and
      2. Complete the College’s online learning modules relating to Professional Standards and Therapeutic Nurse-Client Relationship, complete the online participation form relevant to each module, and print and bring the completed online participation form to her meeting with the Practice Consultant, and
      3. Complete the College’s self-directed learning package, One is One Too Many, at her own expense, and
      4. Complete the College’s Self-Assessment Tool, including the development of a learning plan [ ] to address the conduct for which the Member was found to have committed professional misconduct.
    2. Requiring the Member to attend a follow-up meeting with a Practice Consultant six (6) months after the initial meeting, to review and discuss how she has implemented her strategies;
  5. Requiring the Member, for a period of twelve (12) months following the date upon which the Member returns to the practice of nursing to:
    1. Notify the Director of the name, address, and telephone number of all employer(s) within fourteen (14) 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 the Member shall retain;
    2. Provide her employer(s) with a copy of the panel’s Penalty Order and/or, if available, the Panel’s written Decision and Reasons, together with any attachments. If the Decision and Reasons are not available on the day that the Member returns to Practice, the Member shall provide her employer with a copy of the Decision and Reasons within fourteen (14) days of it becoming available;
    3. Only practise for an employer(s) who agrees to, and does, write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment, providing the Director with the following:
      1. Confirmation that the employer(s) has received a copy of the documents referred to in paragraph (5) (ii), above.
      2. Only practise for an employer(s) who agrees to advise the Director in writing, upon receipt of any reasonable information that the Member has breached the standards of practice of the profession.

The College advised that the Member has signed this document and has agreed that the penalty is appropriate relating to the findings made by the panel.

The College submitted that the oral reprimand and the suspension provide specific deterrence to the Member. The suspension provides general deterrence to the membership, sending a strong message that this conduct will not be tolerated. Protection of the public is provided for with the remediation and monitoring components of the penalty. The penalty proposed is within the appropriate range for conduct of a similar nature.

Mitigating factors included that the Member had no discipline history with the College, had good work performance reviews, was not the leader of the conduct, and inflicted no long-term harm to the client.

Aggravating factors included the conduct itself (abuse), which is extremely serious and warrants a severe penalty; the conduct was outside the standards of practice; and the Member did not report the incident or advocate for the client.

The penalty is stiff but warranted, and achieves the goals of penalty.

The Member’s counsel affirmed her agreement with the College’s submissions regarding the appropriateness of this proposed penalty, given the goals of penalty orders. She also submitted that the mitigating factors included that the Member was a member in good standing for 14 years; she had a good performance appraisal with the employer where this incident occurred; she had a good reputation with her colleagues and management at the facility in which the incidents took place. The Member was known to be a hard worker, not afraid of the dirty work. The Member would experience a significant financial hardship arising from the four-month suspension. Although the conduct was severe, the Member was not the main player. Finally, counsel submitted that the Member is remorseful, as evidenced by her willingness to accept the College’s proposed penalty.

Member’s counsel requested that the proposed penalty be amended so as to allow the Member’s suspension to begin on October 11, 2008. Counsel submitted there was confusion in the penalty as worded regarding when the suspension would start, given that the Member intended to waive her right to appeal and attend for her oral reprimand at the conclusion of the penalty hearing. The delay in the start of the suspension would allow the Member to give her employer notice. The employer would need time to make arrangements to replace the Member, as there are staffing shortages at the facility. This brief delay would also allow the Member to get her financial affairs in order to cope with the financial loss that will be incurred during the suspension.

Counsel for the College acknowledged confusion existed and submitted there was agreement with the suspension beginning on October 11, 2008. However, the College does not want this agreement to be interpreted as a precedent to delay the start of suspensions in future cases.

College Counsel submitted that paragraph 3 of the Joint Submission should also be amended to reflect the start date of the suspension, and provide that the Member return her current Annual Payment Card to the College within fourteen (14) days of the date of October 11, 2008. The Member’s counsel agreed with this amendment to the proposed penalty.

Penalty Decision

The panel makes the following order as to penalty:

  1. The Member to appear before the Panel to be reprimanded, at a date to be arranged, but in any event within three (3) months of the date of this Order becoming final.
  2. The Executive Director to suspend the Member’s certificate of registration for a period of four (4) months. The suspension shall take effect from October 11, 2008 and shall continue to run without interruption. The suspension shall run continuously so long as the Member maintains a current registration. In the event that the Member fails to maintain a current registration, any portion of the suspension which has not yet been served, shall be served commencing on the day that the registration is renewed.
  3. The Member to return her current Annual Payment Card to the College within fourteen (14) days of the date of October 11, 2008 so that a new Annual Payment Card, indicating that the Member’s certificate of registration is subject to terms, conditions and/or limitations, can be issued. The Member’s Annual Payment Card shall be delivered to the College by a verifiable method of delivery, the proof of which the Member shall retain.
  4. The Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
    1. Requiring the Member to meet with a Practice Consultant at the College, at the Practice Consultant’s convenience, prior to returning to practice and, in any event, within three (3) months of the date this Order becomes final. The Member will meet with the Practice Consultant to discuss the materials referred to below (i to iv) as they relate to the conduct for which the Member was found to have committed professional misconduct and to discuss how to prevent such conduct from occurring in the future. Prior to attendance at the meeting the Member shall:
      1. Review College Standards and Guidelines: Professional Standards (Revised 2002), Ethics, Therapeutic Nurse-Client Relationship, Documentation, Medication, and
      2. Complete the College’s online learning modules relating to Professional Standards and Therapeutic Nurse-Client Relationship, complete the online participation form relevant to each module, and print and bring the completed online participation form to her meeting with the Practice Consultant, and
      3. Complete the College’s self-directed learning package, One is One Too Many, at her own expense, and
      4. Complete the College’s Self-Assessment Tool, including the development of a learning plan to address the conduct for which the Member was found to have committed professional misconduct.
    2. Requiring the Member to attend a follow-up meeting with a Practice Consultant six (6) months after the initial meeting, to review and discuss how she has implemented her strategies;
  5. The Member, for a period of twelve (12) months following the date upon which the Member returns to the practice of nursing to:
    1. Notify the Director of the name, address, and telephone number of all employer(s) within fourteen (14) 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 the Member shall retain;
    2. Provide her employer(s) with a copy of the panel’s Penalty Order and/or, if available, the Panel’s written Decision and Reasons, together with any attachments. If the Decision and Reasons are not available on the day that the Member returns to practice, the Member shall provide her employer with a copy of the Decision and Reasons within fourteen (14) days of it becoming available;
    3. Only practise for an employer(s) who agrees to, and does, write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment providing the Director with the following:
      1. Confirmation that the employer(s) has received a copy of the documents referred to in paragraph (5) (ii), above.
      2. Only practise for an employer(s) who agrees to advise the Director in writing, upon receipt of any reasonable information that the Member has breached the standards of practice of the profession.

Reasons for Penalty Decision

The panel considered the proposed joint submission and decided to accept it. The conduct of the Member was very serious. The Member demonstrated an abuse of trust, authority and power, She failed to act in the best interests of the client and thereby compromised a very vulnerable client. The Member betrayed the trust of the nurse-client relationship which is seen as one of the cornerstones of the profession. Nurses have a duty to report, intervene and advocate for clients.

The panel finds that the penalty proposed meets the goals of penalty. Specific and general deterrence are achieved by the reprimand and suspension portions of the penalty. A strong message will be sent to the membership that conduct of this nature will not be tolerated. The public will be protected through the suspension, remediation and monitoring components of the penalty. The penalty is within the appropriate range.

I, Lori McInerney, 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
     

Names of panel members:

April Cheese, RPN Member
Rosalie Woods, RPN Member
Gino Cucchi Public Member

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