DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO. PANEL: Joanne Furletti, RN Chairperson Cheryl McMaster, RPN Member Shiela Pendock, RN Member

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1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Joanne Furletti, RN Chairperson Cheryl McMaster, RPN Member Shiela Pendock, RN Member Linda Bracken Public Member Lyn Harrington Public Member BETWEEN: COLLEGE OF NURSES OF ONTARIO ) ANIL KAPOOR for ) College of Nurses of Ontario - and - ) ) [MEMBER] Registration No.[ ] ) ROBERT STEPHENSON for ) [the Member] ) ) ) JOHANNA BRADEN ) Independent Legal Counsel ) ) Heard: February 11, 12 & 13, 2008, ) May 20, 2008 ) November 4, 5, 6 & 7, 2008 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on February 11-13, 2008 and May 20, 2008 at the College of Nurses of Ontario (the College ) and on November 4-7, 2008 at the JPR Meeting Rooms, 390 Bay Street at Toronto. The Allegations The allegations against [(the Member )] as stated in the Notice of Hearing dated September 28, 2007, 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 Ontario Regulation 799/93 while employed at [ ] (the Facility) you failed to maintain the standards of the profession, in that: a) On or about October 10, 2004 you refused to permit [a client] in your care to gain entry to the Facility despite [the client] s request to do so;

2 b) On or about October 11, 2004 while [the client] was in her wheelchair, you pushed and then released her wheelchair down a hallway at the Facility. 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 Regulations 799/93 while employed at [ ] (the Facility) in that you committed an act of physical and emotional abuse in that you: a) On or about October 10, 2004 physically and emotionally abused [a client] in your care, when you refused to permit her to gain entry to the facility despite her request to do so; b) On or about October 11, 2004 physically and emotionally abused [a client] in your care, when you pushed and then released her wheelchair down a hallway in the facility while she was in the wheelchair. 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, S.O. 1991, c.32, as amended, and defined in subsection 1(37) of the Ontario Regulations 799/93 while employed at [ ] (the Facility) Ontario in that you engaged in conduct or performed an act or acts relevant to the practi[c]e of nursing that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, in that: a) On or about October 10, 2004 you refused to permit [a client] in your care, to gain entry to the Facility despite [the client] s request to do so; b) On or about October 11, 2004 while [the client] was in her wheelchair, you pushed and then released her wheelchair down a hallway at the Facility. Member s Plea The Member denied the allegations set out in the Notice of Hearing. Overview The Member is a Registered Nurse and at the time of the alleged incident was employed full time at [ ] ( the Facility ) in [ ], Ontario. The factual allegations are that on October 10, 2004, the Member refused [a client] in her care entry to the Facility; and that on October 11, 2004 the Member pushed and then released [the client] s wheelchair down a hallway in the Facility while she was in the wheelchair. The College alleges this conduct is a breach of professional standards of the profession, constitutes physical or emotional abuse, and would be regarded by members of the profession as disgraceful, dishonourable or unprofessional. After reviewing the evidence, the panel finds that there are not clear, convincing and cogent facts to find the Member guilty of professional misconduct. All allegations are dismissed.

3 The Issues The Member admitted to placing [the client] in the courtyard on October 10, 2004 and to pushing the client in her wheelchair down a hallway at the facility on October 11. She denied that she refused [the client] re-entry. She denied that she let the wheelchair go while she was pushing it. The panel identified the following issues to be determined in its consideration of the allegations: Was placing a client in the courtyard a breach of professional standards? Was placing a client in the courtyard abuse? Did the Member refuse to let [the client] re-enter the Facility? When the Member pushed [the client] down the hallway, did she let go of the wheelchair? The Evidence The panel heard testimony from seven witnesses and admitted 22 exhibits into evidence. Witnesses for the College Witness #1 [ ] [Witness #1] worked at the Facility in the housekeeping department on October 10, 2004, which is when the Member is alleged to have abused [the client]. The witness reported to [the maintenance department] that she had seen the Member take the client out to the courtyard and that the Member was firm and abrupt with the client. The witness stated that [the client] told the Member that she was cold and that she wanted to go back inside but the Member would not allow [the client] to go inside. The witness stated that she along with [two other staff members] brought [the client] back into the facility after their break. This is inconsistent with other witnesses evidence. Cross-examination revealed that this witness s evidence was inconsistent in other ways as well. In an interview with [the Director of Care s supervisor] shortly after the incident, the witness stated that [the client] was placed outside because of disruptive behaviour. However, when interviewed by [a College Investigator] on March 21, 2005, the witness indicated that she had no knowledge as to whether or not [the client] was exhibiting disruptive behaviour. Another issue raised in cross-examination was the weather on the day in question. The witness reported to [the Investigator] that it was chilly and damp. In fact, [ ] the weather on that day between 1530 hours and 1600 hours was 20.8 degrees Celsius and 21.6 degrees Celsius. The panel found that the witness s evidence was inconsistent throughout and was not sufficiently cogent to support the College s position that the Member refused [the client] entry into the facility despite [the client] s request to re-enter. The panel found this witness s testimony less than credible. Witness # 2 [ ]

4 [Witness #2] worked at the Facility in the laundry department on October 10, She was on a break in the courtyard on the date in question and could not specify the exact time of her break. She testified that [two staff members] and [the client] were present in the courtyard. She testified that [the client] could be trying at times and frequently would seek out attention. She said that [the client] was upset that day, and so [Witness #2] invited [the client] to join [her and the two other staff members] for their break at the table. She stated that she was the one who brought [the client] back into the facility. During cross-examination, the witness agreed she had told College Counsel on January 10, 2008 that it was cold and damp on the day in question. This was contradicted by the weather report []. The evidence provided by [Witness #2] did not assist the panel in furthering their understanding of what happened in the courtyard. She had not seen the alleged efforts of [the client] to re-enter the Facility. Much of her testimony relied on what [Witness #1] had told her about this. The panel found that [Witness #2] s evidence did not support the allegations regarding the October 10, 2004 incident. Witness # 3 [ ] The witness worked at the Facility as the Director of Care on October 10, She had been in this position since March of She was the manager of both registered and non-registered staff, reporting to [her supervisor]. She had spoken to the Member about the courtyard allegation. She recalled that the Member had said that [the client] was appropriately dressed that day. The witness could not remember what the Member had said about letting [the client] back into the building. The witness acknowledged that the Member s attempts to calm [the client] in accordance with [the client] s care plan had been unsuccessful. The panel found this witness s evidence to be less then reliable as she had poor recollection and her investigation was limited to an informal conversation with the Member in a public area (at the medication cart in the hallway) between 1630 and 1700 hours. She had no direct knowledge of the incidents alleged. Witness # 4 [ ] [Witness #4] worked at the Facility in the maintenance department on October 10, She was on a break in the courtyard that day, and could not specify the exact time of the break. She testified that she took her break with [Witness #1] and [Witness #2]. She saw [the client], who was very upset, crying and shaking. The witness testified that the shaking was different then before that it was an upset shake. [Witness #4] did not observe any interaction between the Member and [the client]. She only reported what [Witness #1] had told her about what had taken place between the Member and [the client]. During examination in chief, the witness was asked if she had any difficulties with the Member personally. The witness said there were none that she could recall.

5 As to the second incident set out in the Notice of Hearing, which allegedly occurred on October 11, 2004, the witness stated that she had seen the Member pushing [the client] down D-wing and letting the wheelchair go. There are no other witnesses to collaborate this allegation. The witness appeared to have difficulty remembering and gave different versions as to what happened on October 11, The panel found the witness s demeanour to be defensive and argumentative, especially during cross-examination. The witness s memory was inconsistent and she was evasive at times, not answering questions directly with regard to both incidents. The panel found the witness s testimony less then credible. Witness # 5 [ ] College Counsel called [Witness #5] to give expert testimony in the field of gerontology. A copy of [the expert] s CV was submitted detailing extensive expertise in this area [ ]. He has previously been an expert witness for the College. He has been involved as an expert in approximately 25 cases of abuse over the last six and a half years, ranging from rough handling, verbal abuse and theft. The panel reviewed [the expert] s credentials and qualified him as an expert witness in the standard of care and practice in long-term nursing facilities. College Counsel provided a hypothetical situation to [the expert]. In [the expert] s opinion, the following practices would not meet the standard of care: Refusing to let a resident back into the building, Not responding to a resident complaining of being cold, Pushing a resident up close to a fence, and Failing to react appropriately to a resident when the resident says she s upset. During cross-examination, the witness admitted his opinion was fact-specific and gave answers to questions posed by the Member s counsel as follows. If the resident didn t provide any cues that she wanted to go inside would you change your opinion Yes If evidence showed that the Member was unaware of the resident being cold, then she did not violate the standards Yes If evidence showed that [the client] had not been placed face-first against the fence, then the Member would not be in violation of the standards Yes [The expert] s expert opinion depended on him assuming certain facts as true. Those underlying facts were not proven by the College. Accordingly, the panel did not give weight to [the expert] s opinion evidence. Witnesses for Defence Witness # 6 [ ]

6 This witness testified that she has been a Registered Practical Nurse for nineteen years and that she worked at the Facility in October She testified that she worked with the Member on the 3 to 11 shift. She stated that she brought [the client] in from the courtyard even though she was not assigned to her on that shift. There were only two registered staff on the evening shift and they worked together as a team. The panel found this witness to be straightforward, credible, simple and consistent in her evidence four years after the fact. She seemed honest and had no vested interest in the outcome of this hearing. Witness # 7 [the Member] The Member testified that she had received her nursing diploma from the Nursing College [ ] in 1968, and was subsequently registered as a nurse in [Europe]. The Member immigrated to Canada in In 1983 the Member graduated from the New Start Nursing Program [ ] and in 1984 became registered at the College. The Member started working as a nurse in 1984 [ ] at [a] Nursing Home as a charge nurse. The Member began working at the Facility on June 21, As to the allegations, the Member testified that she asked [the client] if she wanted to go outside and she said she did. The Member placed [the client] in the courtyard. She could see her through the glass door. The Member testified that she did not see who brought [the client] back into the facility. As for the alleged wheelchair incident, the Member testified that she never pushed and then let go the client s wheelchair at any time. The Member was quite emotional during her examination in chief when asked about the termination meeting at the Facility on October 18, In the meeting she stated that you know me for 14 years, my career, I kept her safe and I really loved and cared for the residents. The Member was soft-spoken at intervals during her testimony but had a good recollection of events and was unwavering and consistent. The panel found the witness s testimony to be credible. College Counsel s Submissions College Counsel submitted that the Member had failed to maintain the standards of the profession; had committed acts of physical and emotional abuse and had committed acts of professional misconduct. College Counsel submitted that despite the length of evidence, the issues are not around whether the alleged behaviour is unprofessional, disgraceful and dishonourable. Rather, the main issue hinges on the credibility of [Witnesses #1 and 4] for the College, and the Member and [Witness #6] for the defence. Counsel for the College advised the panel that the College bears the responsibility to put forth sufficient evidence to meet the applicable standard of proof to allow the Discipline panel to make a finding that the Member has committed an act of professional misconduct. The defence does not bear any legal onus in these proceedings.

7 College Counsel stated that the College must prove the allegations in the Notice of Hearing in accordance with the standard of proof set out in Bernstein v The College of Physician and Surgeons of Ontario (1977), 15 O.R. (2d) 447. That is, the standard of proof is the balance of probabilities, with the qualification that the proof must be clear and convincing, based upon cogent evidence accepted by the panel. College Counsel referred to Copley v College of Nurses, which defined the balance of probabilities as more likely than not and held that clear and convincing should be interpreted as must be clear and satisfied. College Counsel also referred to a panel of this Committee s decision in Duvall v College of Nurses, in which the panel determined that not all inconsistencies are important some are due to the passage of time. College Counsel urged this panel to take into account this explanation of inconsistencies when making a decision on witness credibility. Defence Counsel s Submissions Counsel for the Member argued that this was a straightforward case in that the allegations have not been proven. Counsel admitted that [the client] was placed outside in the courtyard. However the allegation that the Member did not allow [the client] entry into the Facility is only supported by the testimony of [Witness #1]. The evidence of [Witness #6] and the Member is to the contrary. Counsel submitted that in making its decision, the Panel had to consider which version of events was credible. Defence counsel asked the panel to consider the inconsistencies in the evidence of [Witnesses #1, 2 and 4]. In his submission, this evidence did not meet the clear, cogent and convincing standard that must be applied. Defence counsel also questioned College counsel s allegation that the Member and [Witness #6] conspired to create their own version of events. Counsel asserted that there was no evidence of this and that the failure to chart the incident with [the client] was not in itself adequate proof of a conspiracy. 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. (2 nd ) 477. The standard of proof applied by the panel, in accordance with the Bernstein decision, was a balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel. The panel deliberated and after due consideration of the evidence and applying the onus and standard of proof, the panel found that the College did not prove to the panel s satisfaction that the Member refused re-entry to [the client], ignored [the client] s complaints of being cold, or placed [the client] in an unsafe, unsupervised environment. The panel also found that the College failed to prove that the Member let go of [the client] s wheelchair as she pushed her down the hallway of D-wing. Accordingly, the panel found that the Member:

8 1. did not fail to maintain the standards of the profession; 2. did not abuse the client and; 3. did not engage in conduct that member of the profession would reasonably consider to be disgraceful, dishonourable or unprofessional. The panel concluded that the Member did not refuse to permit [the client] to gain entry to the Facility and that she did not push and then release her wheelchair down a hallway at the Facility. Reasons for Decision With respect to both allegations, the panel heard evidence of two different scenarios. The panel was required to assess the credibility of the witnesses. In doing so, the panel took the following factors into account: Appearance and demeanour of the witness The witness opportunity to observe The witness capacity to remember The probability or reasonability of the evidence Internal inconsistency of the evidence External consistency of the evidence; and Interest in outcome As to the courtyard allegation, the competing scenarios were: [the client] was placed outside with no supervision down by a fence and she repeatedly asked to come in because she was cold; or [the client] was placed outside but could be observed by the Member, was close to the door and was appropriately supervised. The panel concluded that [the client] was appropriately supervised and that the Member s actions were an appropriate strategy given the difficult nature of [the client] s behaviour. The panel did not find it credible that three staff members, in a relatively small work setting, would bring a [client] back inside without saying anything to the nurse in charge. The purported lack of awareness, particularly of [Witness #4], as to the challenges [the client] created for staff didn t seem plausible to the panel. Even though [Witness #4] was in maintenance, she had been at this workplace for 14 years and working around the building she would have daily opportunities for observation of a [client] s behaviour especially when this behaviour was so evident in the halls. In addition, the weather report that day indicates that it is unlikely that [the client] was cold. If she was cold, then why wouldn t the group outside report this to staff? Instead, one of them invited [the client] to join the group at the table. The panel concluded that the evidence provided by the College did not meet the criteria to prove the allegations set out in the Notice of Hearing.

9 In determining whether or not the Member had failed to maintain the standards of practice of the profession, the Panel gave weight to the notes in [the client] s care plan [ ], which stated that when [the client] was agitated, the staff should leave her and return in 10 minutes (10min/prn). Geriatric outreach had made these suggested interventions. Furthermore, a number of witnesses testified that [the client] was routinely agitated and that it was common practice to remove her from a situation and leave her alone to calm down. It was the opinion of the Panel members that a [client] could safely be placed in the courtyard for a short period of time. There was nothing that made the courtyard a more dangerous place for [the client] than any other place within the Facility. A major concern was whether the Member had left [the client] unsupervised while she was in the courtyard. While there were differences of opinion amongst the witnesses, the fact that both registered staff, [Witness #6] and the Member, testified individually that they had monitored [the client] while she was in the courtyard. This led the panel to the opinion that [the client] was supervised. With regard to the wheelchair incident on October 11, 2004, there was only one College witness, [Witness #4], who gave evidence to this allegation. She had difficulty remembering the incident and gave different versions as to what happened. This led the panel to the opinion that the alleged incident did not occur. The inconsistencies in her testimony were so apparent that one could not simply attribute them to the passage of time. The panel did not find [Witness #4] s evidence on this to be clear and cogent. It did not seem reasonable to the panel that the Member would be out in the hall during the evening meal. The incident was not mentioned in [Witness #4] s first complaint, which led the panel to question her credibility. [Witness #4] s insistence that she had observed abuse and she just wanted to do the right thing did not strike the panel as being truthful. With regard to the allegation that the Member s behaviour was disgraceful, the panel did not see any moral failing in the Member s conduct. On the contrary, the Member s demeanour was that of a concerned nurse, willing to go the extra mile on behalf of her clients. For example, [she had] a certificate of recognition and appreciation from the Facility, [ ] a certificate of recognition from the residents council of the Facility and [ ] a bundle of thank you letters from various families of clients at the Facility. The Panel did not find the Member s conduct to be dishonourable. Dishonourable conduct is best described as behaviour which involves dishonesty or deceit. The Member s testimony appeared truthful, although there were some differences between her recollections of the events and that of other witnesses. As to the allegation that the Member s conduct would be regarded by members of the profession as unprofessional, the Panel considered that unprofessional behaviour includes a serious or persistent disregard for one s professional obligations. The Panel could not find that the Member s conduct was unprofessional.

10 I, Joanne Furletti, 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 Panel Members: Cheryl McMaster, RPN Shiela Pendock, RN Linda Bracken, Public Member Lyn Harrington, Public Member