BETWEEN: Complainant COMPLAINANT. AND: College of Registered Nurses of British Columbia COLLEGE. AND: Nurse REGISTRANT

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. College of Registered Nurses of British Columbia DECISION NO HPA-026(a) August 1, 2018 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: Complainant COMPLAINANT AND: College of Registered Nurses of British Columbia COLLEGE AND: Nurse REGISTRANT BEFORE: John M. Orr, Q.C., Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on July 17, 2018 APPEARING: For the Complainant: Self-represented For the College: For Registrant: Jessica Abells, Counsel Peter Eastwood, Counsel DECISION ON APPLICATION FOR REVIEW OF AN INQUIRY COMMITTEE DISPOSITION I INTRODUCTION [1] This Application for review was made to the Review Board in response to the Inquiry Committee disposition communicated to the Complainant in the letter dated January 10, 2018, from legal counsel for the College confirming that the Inquiry Committee had adopted the Registrar s Report and Determination that the Registrant s conduct was satisfactory and the complaint should be dismissed. [2] The Complainant s elderly father was admitted to hospital suffering a serious lung condition. During the admission process, and after discussions with the family, a No CPR order was placed on the patient s medical file. Later that day, when the Complainant was present, the patient went into serious distress and the Complainant called for medical assistance. The Registrant attended and offered some palliative aid but would not commence CPR despite urgent requests by the Complainant. The Registrant called for the responsible physician who overruled the No CPR order and

2 commenced Code Blue procedures. The patient recovered to some degree but died a few days later from a related anoxic brain injury. [3] The Complainant made a complaint to the College that the Registrant would not lift a finger to help her father despite the fact that he had been well enough to go to the bathroom on his own only minutes before the incident. The Complainant alleged that the Registrant refused to help the patient or seek clarification from her supervisor. The Complainant alleged that the Registrant and the attending physician 1 failed to execute due care for the patient and demonstrated a callous and cavalier attitude towards their patient. [4] Following an investigation, the Registrar of the College (the Registrar ) issued the Disposition under s.32 (3) (c) of the Act which Disposition is deemed under s.32 (5) to be made by the Inquiry Committee. The Disposition concluded with the finding that:... the Registrant s conduct in relation to the subject matter of the complaint does not warrant regulatory intervention, and therefore the Registrant s conduct is considered to be satisfactory within the meaning of the Act. Accordingly, the complaint is dismissed pursuant to section 32(3) (c) of the Act. [5] The Complainant made articulate and reasonable submissions to the College and Review Board during this process. Clearly the Complainant feels deeply that the Registrant failed to listen to her concerns and to act immediately to render the required crucial intervention for her father. It is apparent that she strongly believes that the Registrant s primary duty of care for the patient should have over-ridden the No CPR order in the file. [6] Having considered all the evidence before me, I conclude that the investigation was adequate and the disposition reasonable, and my order is that the Disposition be confirmed. In this matter, the records are very legible, clear and complete, the College conducted a proper investigation and I find the Disposition aligns with the evidence. [7] I extend my sincere sympathy to the Complainant for her loss. II REVIEW BOARD [8] The Review Board exists in part to provide, upon an application for review by a complainant, an impartial and objective review of a complaint disposition of an Inquiry Committee. These are reviews of college investigations and dispositions and not fresh investigations or fresh dispositions of the complaints. My mandate is to determine whether the Inquiry Committee conducted an adequate investigation and whether its disposition of the matter was reasonable. [9] The Review Board utilizes a two-stage hearing process as set out in Rule 44 of the Review Board Rules of Practice and Procedure for Reviews under the Act. To proceed to a Stage 2 hearing I would need to find at Stage 1 the need for further submissions from the College and Registrant prior to being able to properly adjudicate 1 A separate complaint was submitted to the College of Physicians and Surgeons of British Columbia about the attending physician and will not be addressed in this decision.

3 this matter. I have determined that I can fairly, properly and finally adjudicate this matter on the merits without the need for further submissions. III BACKGROUND [10] The Complainant s father was 84 years old and had suffered for many years with a chronic respiratory problem. On September 21, 2015 he was admitted to a Lower Mainland Hospital with bronchiectasis at about 10:30 am. He had coughed-up a large amount of blood. The Complainant described his condition as chronic but not terminal and reported that with careful self-management he was able to maintain a stable condition. [11] The Complainant s father was stabilized in the emergency department. The Complainant says that he ate a meal and was able to verbally communicate his needs. He had limited English but was assisted by the Complainant. [12] During the course of the patient s stay in the emergency department a form titled Medical Orders for Scope of Treatment (MOST) was completed at approximately 13:00 hrs. by the attending physician. The MOST indicated that the patient was able to communicate his own medical decisions and that the Complainant was a substitute decision maker ( SDM ). The MOST stated: Do not Attempt Cardiopulmonary Resuscitation (DNACPR): No cardiac resuscitation. This sort of order is sometimes referred to as a DNR order. [13] At approximately 5:00 pm, the Complainant s father was transferred to a ward in which the Registrant was the attending nurse. The Nurse-to-Nurse Handover Report completed and faxed at 14:55 hrs. was clearly marked NO CPR. [14] Shortly after admission to the ward the Complainant s father was able to go on his own to the washroom for a bowel movement. Soon after his return to the ward he started bleeding heavily from his lungs and was in considerable distress. [15] The Complainant pressed the call bell without response and then went into the hallway to get help. The Registrant was sitting at her desk but responded when she saw the Complainant in the hallway. [16] The Complainant s father was coughing-up a significant amount of blood and then became unresponsive. The Registrant assisted the patient with suction and oxygen. When he became unresponsive the Complainant was strongly advocating for CPR but the Registrant felt constrained by the No CPR order on the file. The Registrant entered into a discussion with the Complainant about the effect of the Order. It appeared that the Complainant did not understand the effect of the DNR order. In addition, the Registrant subsequently acknowledged her own limitation on the full meaning of the DNR order under the circumstances where a patient had very recently been conscious and mobile. [17] The responsible physician was called and attended and determined to over-ride the No CPR order and commenced life-saving procedures. While the patient initially

4 recovered he suffered anoxic brain damage and died some days later after transfer to a second Lower Mainland Hospital. IV COMPLAINANT S STATEMENT OF POINTS AND DISCUSSION [18] The Complainant submits that the key issue is consent. She says that the responsible physician did not obtain consent from her father or his family for the DNR order and that any consent was not informed consent as the family did not understand the limit it would place on emergency response in an acute situation. She says that the first time she heard the term DNR was from the Registrant at her father s bedside. [19] The Complainant acknowledges that she understands that the complaint about the physician is dealt with in a separate proceeding and that the Registrant was not involved in the creation of the DNR order. [20] The Complainant submits that CRNBC Practice Standard Principles #11 states that a registered nurse is required to respect the right of clients and substitute decisionmakers to refuse or withdraw consent at any time and for any reason, provided they are capable of doing so. [21] The Complainant submits that the minutes lost during her father s respiratory arrest when the Registrant refused CPR before the responsible physician arrived were crucial. She says that the Registrant told her He is gone when she had not taken any vitals and while her father still had blood pressure and a pulse (evident in the nursing notes). The Complainant submits that the crucial delay contributed to her father s anoxic brain damage. [22] The Claimant submits that a MOST or DNR order does not relieve nurses from their professional and legal duty of care and that the Registrant failed in that duty in two respects. Firstly in allowing her father to go to the washroom alone which triggered his acute lung bleeding and secondly in failing to reconsider the DNR order under the circumstances in this case. [23] Prior to setting out my decision on the adequacy and reasonableness of the Disposition, I provide for convenience, the key sections of the Act relevant to this matter. V STATUTORY PROVISIONS GOVERNING THE REVIEW BOARD [24] The Disposition in this matter was made by the Registrar in accordance with the provisions of s.32(3)(c) of the Act and was reviewed and accepted by the Inquiry Committee in accordance with s.32(5) of the Act. Hence it is considered to be a disposition of the Inquiry Committee. [25] It is important to note that s.32 (3)(c) of the Act allows the Registrar to conduct the investigation on behalf of the Investigation Committee where the matter is not a serious matter. The Complainant understandably found the application of this language distressing given the death of her father. It is difficult for anyone to understand how this could not be a very serious event.

5 [26] However, the use of the term serious in the context of this provision of the Act does not refer to the seriousness of the incident but rather to the seriousness of the possible outcomes for the Registrant. In other words, would the consequences of a disciplinary finding be more than a reprimand or fine. The Registrar reasonably assessed that upon proof of the complaint the penalty, if any, would not be more serious than a reprimand or fine. [27] The use of seriousness in the context of providing for the Registrar s jurisdiction is the, perhaps unfortunate, wording used in the legislative drafting of the Act and is not intended to describe the degree of loss and suffering that led to the complaint. [28] Section 50.6(5) of the Act defines what the Review Board must consider: On receipt of an application under subsection (1), the review board must conduct a review of the disposition and must consider one or both of the following: (a) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition. [29] Section 50.6(6) of the Act stipulates that a review under this section is a review on the record. The record, in this context, refers to the record of investigation provided by the College (the Record ) and the submissions of the Complainant. [30] Section 50.6(8) of the Act stipulates that upon completion of its review under this section, the review board may make an order: (a) confirming the disposition of the inquiry committee, (b) directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or (c) sending the matter back to the inquiry committee for reconsideration with directions. [31] I may not have commented on every issue raised by the Complainant but I have considered the Disposition and the Complainant s submissions in the context of the record as a whole. VI ADEQUACY OF THE INVESTIGATION [32] As set out in the Act, I must, on review, determine the adequacy of the investigation. The investigation that was undertaken by the inquiry committee need not have been a perfect investigation but it must have been adequate. What is considered adequate will differ from case to case depending primarily on the seriousness of the issues raised in the complaint and the findings of the investigation. [33] What constitutes an adequate investigation in the context of the Review Board was well defined in Review Board Decision No HPA-0001(a) to 0004(a) paras. [97] and [98] which reasoning I have adopted herein: [97] A complainant is not entitled to a perfect investigation, but he or she is entitled to adequate investigation. Whether an investigation is adequate will depend on the facts.

6 An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain the key information that would have affected the Inquiry Committee s assessment of the complaint. [98] The degree of diligence expected of the College-what degree of investigation was adequate in the circumstances-may well vary from complaint to complaint. Factors such as the nature of the complaint, the seriousness of the harm alleged, the complexity of the investigation, the availability of evidence and the resources available to the college will all be relevant factors in determining whether an investigation was adequate in the circumstances. [34] The test of adequacy will be met if I am satisfied that the Inquiry Committee took reasonable steps to obtain information relevant to their assessment of the Complaint. This test can be met without exhausting all possible avenues of pursuit in the quest for investigative information. [35] In this matter, I find in summary that, the Registrar: (a) Provided a letter to the Complainant explaining the inquiry process; (b) Provided a letter to the Registrant explaining the process, providing the Registrant with a copy of the Complaint and requesting a response to the Complaint; (c) Obtained and considered all the relevant medical charts from both hospitals; (d) Received and reviewed the response from the Registrant; (e) Obtained the Patient Care Quality Office response to the events surrounding the care of the Complainant s father; (f) Provided the Complainant with a summary of the information obtained in the course of the investigation and invited the Complainant to provide any additional information; (g) Prepared the Disposition with a detailed record of the Complainant s medical history, the Complaint and a summary of the information obtained during the investigation; (h) On December 28, 2017, presented the Disposition and a report to the CRNBC Inquiry Committee (The Committee consisted of a public representative and two registered nurses); and (i) Received the Inquiry Committee s confirmation of the analysis and disposition. [36] I have considered the Complainant s submissions and I note in particular that the Complainant does not submit the investigation was inadequate except to point out that the Registrar s Report contained an error of fact by incorrectly stating that her father was diabetic. However, I note that this error was stated in the investigation report of the Professional Conduct Review Consultant of the CRNBC. The error was not repeated in the Registrar s Report or Disposition. [37] There is no information before me that would lead me to conclude that further investigation by the Inquiry Committee was warranted. I find that the Inquiry Committee

7 conducted an investigation that was appropriate for the facts in this case and I have determined that the investigation was adequate. VII REASONABLENESS OF THE DISPOSITION [38] The Review Board is provided by legislation with the jurisdiction to define and apply reasonableness within the context of the reforms of the Act which created the Review Board, whose purpose it is to ensure an appropriate degree of accountability on the part of the Inquiry Committee. The Review Board is not to ignore what the Inquiry Committee has done. Rather, the Review Board is to determine the degree of deference to be extended to the Inquiry Committee that is appropriate in particular circumstances and, as it is not a court, the test of reasonableness will necessarily reflect the Review Board s specialized role and expertise. [39] In my view, a functional definition of reasonable that accords with the current state of the law is whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. A reasonable disposition should be transparent in that it is clear as to how the Inquiry Committee arrived at its conclusion, intelligible in that it is clearly expressed and easy to understand, and justified in that the reader should be able to understand the factual and legal foundation for the Inquiry Committee s conclusion. This is the standard against which I have assessed whether the Inquiry Committee s disposition was reasonable. [40] In the Disposition, the Inquiry Committee presented a history of the case that aligns with the evidence in the Record and as provided by the Complainant and the Registrant. The full and detailed account of the Complainant s concerns leads to a clear, understandable and transparent basis for the conclusion. It is expressed in easy to understand language. [41] There is no real dispute that the MOST/DNR order was in place and clearly recorded on the chart. The Complainant takes very serious issue with how that Order came about and whether there was fully informed consent to deny CPR to her father at a stage in his care when he had been fully mobile, conscious and communicative only minutes prior to his choking on his coughed-up blood. [42] Issues around informed consent to DNR orders are difficult and very significant but these issues are between the patient, his family and the responsible physician. The Registrant was not present and had no role in the making of the MOST/DNR. That Order could only be changed by an attending or consulting physician. [43] The very real issue as to whether the Registrant nurse could or should have ignored the DNR order and provided resuscitation was considered and addressed by the Patient Care Quality Office, the Professional Conduct Review, the Registrar and the Inquiry Committee. [44] The applicable standards of the CRNBC relating to the scope of practice of registered nurses are established under the Nurses (Registered) and Nurse Practitioners Regulation. They include standards for Acting with an Order. These provisions were considered by the Registrar.

8 [45] One of the standards noted in particular by the Complainant is as follows: 4. Take appropriate action if the order does not seem to be evidence based or if it does not appear to consider individual client characteristics or wishes. [46] The complainant believes that in this case, at the time the Registrant refused CPR, the DNR order was not evidence based for the situation, given her father s recent ability to be self-ambulatory, aware and cognitively capable of giving consent. The chart confirms that he was actively self-suctioning the coughed-up blood which was evidence of his wishes. [47] However, the Standard notes that: Appropriate actions could include getting more information from the client, consulting with a colleague or manager, or questioning the health professional who gave the order. It does not indicate that a Nurse could, of her own initiative, ignore the DNR order. [48] The Registrar found that the Registrant understood that the Complainant s request for medical intervention was not in keeping with the DNR order and responded immediately by contacting the responsible physician and requesting his immediate attendance. Upon his attendance the Order was reviewed and amended accordingly. [49] The Complainant further submits that CRNBC Practice Standard Principles #11 states that a registered nurse is required to respect the right of clients and substitute decision-makers to refuse or withdraw consent at any time and for any reason, provided they are capable of doing so. [50] The Complainant was recorded in the chart as a substitute decision-maker and she was very clearly withdrawing consent to the DNR order but, while respecting the right to withdraw consent it was found to be not within the authority of the nurse to override the order without involving the responsible physician [51] The Registrar and the Inquiry Committee concluded that the course of action taken by the Registrant was reasonable given that it was not within her scope of practice to amend or ignore that Order as written. [52] I acknowledge the distress and heartbreak suffered by the Complainant to have been present and witnessed the medical crisis suffered by her father and the helplessness in trying to require an intervention the nurse could not provide given the boundaries of her profession. [53] The Registrar and the Inquiry Committee possess the expertise to consider whether the overall care provided (or not provided) to the Complainant s father was within the standards of appropriate nursing practice. I find that the Inquiry Committee understood the issues, addressed those issues and made a decision that is transparent, intelligible and justified. In this case the Inquiry Committee found that the care provided by the Registrant was satisfactory within the boundaries of her profession and I find no reason in the Record to question this conclusion. I find that the Disposition is rationally supported by the evidence and that it is reasonable in the circumstances.

9 VIII CONCLUSION [54] In the course of this review I have considered all of the information before me whether I specifically referenced it herein or not. [55] For the reasons presented above, I find that the investigation of this complaint was adequate and the disposition was reasonable. Having made these determinations, I confirm the Disposition of the Inquiry Committee. John M. Orr John M. Orr, Q.C., Panel Chair Health Professions Review Board