DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Michael Hogard, RPN Chairperson Susan Roger, RN Member George Rudanycz, RN Member Catherine Egerton Public Member Devinder Walia Public Member BETWEEN: ) COLLEGE OF NURSES OF ONTARIO ) BONNI ELLIS for ) College of Nurses of Ontario ) - and - ) ) ) MIKE GILLETTE ) NO ONE PRESENT for Registration No. JC06746 ) Mike Gillette ) ) ) LUISA RITACCA ) JOHANNA BRADEN ) Independent Legal Counsel ) ) ) Heard: October 20-22, 2015 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on October 20 to 22, 2015 at the College of Nurses of Ontario ( the College ) in Toronto, Ontario. As Mr. Mike Gillette (the Member ) was not present, the hearing recessed for fifteen minutes to allow time for the Member to appear. Upon reconvening the Panel noted that the Member was not in attendance and was not represented. Counsel for the College provided the Panel with evidence that the Member had been sent the Notice of Hearing on June 3, 2015. The Panel was satisfied that the Member had received adequate notice of the time, date, place and nature of the hearing, and therefore proceeded with the hearing in the Member s absence.
The Allegations The allegations against the Member as stated in the Notice of Hearing dated June 2, 2015, are as follows. 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 paragraph 1.1 of Ontario Regulation 799/93 in that, while working as a Registered Practical Nurse at the [Facility], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession when: a. on or about July 23, 2011, you: i. provoked [Client A] to respond in an aggressive manner when, in the context of [Client A] not sitting down for lunch, you swatted [Client A s] hand off the chair, said sit down for lunch, or used words to that effect, and/or elbowed [Client A] in the side; ii. used excessive force and/or an inappropriate technique in relation to your restraint of [Client A]; and/or iii. failed to document your restraint of [Client A] b. on or about August 5, 2011, you: i. grabbed [Client B] by the collar with sufficient force to rip his shirt, without reasonable justification; ii. used excessive force and/or an inappropriate technique in relation to your restraint of [Client B]; and/or iii. failed to document your restraint of [Client B] 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 paragraph 1.7 of Ontario Regulation 799/93 in that, while working as a Registered Practical Nurse at [the Facility] you abused a client verbally, physically or emotionally and, in particular: a. on or about July 23, 2011: i. provoked [Client A] to respond in an aggressive manner when, in the context of [Client A] not sitting down for lunch, you swatted [Client A s] hand off the chair, said sit down for lunch, or used words to that effect, and/or elbowed [Client A] in the side; and/or ii. used excessive force and/or an inappropriate technique in relation to your restraint of [Client A]
b. on or about August 5, 2011 you: i. grabbed [Client B] by the shirt with sufficient force to rip his collar, without reasonable justification; and/or ii. used excessive force and/or an inappropriate technique in relation to your restraint of [Client B] 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 paragraph 1.13 of Ontario Regulation 799/93 in that, while working as a registered practical nurse at [the Facility], you failed to document: a. your restraint of [Client A] on or about July 23, 2011; and/or b. your restraint of [Client B] on or about August 5, 2011. 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, S.O. 1991, c. 32, as amended, and defined in paragraph 1.37 of Ontario Regulation 799/93 in that, 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 and, in particular: a. on or about July 23, 2011, while working as a registered practical nurse at [the Facility] you: i. provoked [Client A] to respond in an aggressive manner when, in the context of [Client A] not sitting down for lunch, you swatted [Client A s] hand off the chair, said sit down for lunch, or used words to that effect, and/or elbowed [Client A] in the side; ii. used excessive force and/or an inappropriate technique in relation to your restraint of [Client A]; and/or iii. failed to document the incident involving your restraint of [Client A], as required by the facility s policy. b. on or about August 5, 2011, while working as a registered practical nurse at [the Facility], you: i. grabbed [Client B] by the shirt with sufficient force to rip his collar, without reasonable justification; ii. used excessive force and/or an inappropriate technique in relation to your restraint of [Client B]; and/or iii. failed to document the incident involving your restraint of [Client B], as required by the facility s policy.
Member s Plea Given that the Member was neither present nor represented, he was deemed to have denied the allegations in the Notice of Hearing. The Hearing proceeded on the basis that the College bore the onus of proving the allegations, in the Notice of Hearing, against the Member. Publication Ban College Counsel requested a ban preventing the publication or broadcasting of the names of the two [clients] identified in the Notice of Hearing, pursuant to the Health Professions Procedural Code, subsection 45(3). Counsel noted that in the course of this hearing, personal health information would be disclosed to the panel including [client] records, and oral evidence about the [clients ] health status would be given by witnesses. The publication ban was granted as requested. Overview The Member has been a Registered Practical Nurse ( RPN ) with the College since August 6, 2003. He was employed at [the Facility] on the [ ] Dual Diagnosis Program ([the Program]). [The Program] is [an] in-patient program, regionally mandated to provide care for [clients] identified as having dual diagnoses. Specifically for those [clients] with a developmental disability (for example, an IQ under 70) in addition to a mental health diagnosis like autism or schizophrenia. It is alleged that the Member physically or emotionally abused two [clients] in July and August 2011. An internal investigation was conducted and as a result the Member served a 20-day unpaid workplace suspension with provisions for a learning plan and education related to crisis intervention. The Member resigned in November 2011 prior to completion of the education plan. The Panel heard from 8 witnesses and considered [ ] exhibits, including administration records, workplace policies, a typical floor plan and photographs of [The Program], and published College standards. The issues that the Panel were asked to consider are as follows: 1. Did the Member verbally, physically or emotionally abuse [clients] on two separate occasions? 2. Did the Member fail to meet the standard of practice of the profession? 3. If so, would the Member s conduct reasonable be regarded by members of the profession as disgraceful, dishonourable and/or unprofessional? Having considered the evidence and the onus and standard of proof, the Panel found that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2, 3, and 4 of the Notice of Hearing. The Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional in that he provoked
one client to respond in an aggressive manner, grabbed another client by the collar with sufficient force to rip his shirt, used excessive force and inappropriate techniques for restraint for these two clients, and, finally, failed to document restraint of the same clients. The Evidence Background The Member The Member was hired at [the Facility] in February 2010 as a part-time RPN to [the Program]. From February 2010 to November 2011, he moved into a temporary full-time and then permanent full-time position. He resigned from the organization in November 2011. Background The Facility The Panel heard evidence from [Witness A], who has been a Registered Nurse since 1986 and the Director of [the Program] for the past 15 years. Her position includes administrative responsibilities for the in-patient and out-patient programs associated with [the Program]. [Witness A] described the Member s workplace: [The Facility] is a [ ] psychiatric facility located in [ ], Ontario with provincial and regional mandates to provide care for [clients] under the Mental Health Act. [The Program] is [an] in-patient program at [the Facility], regionally mandated, to provide care for [clients] identified as having dual diagnoses. Specifically for those [clients] with a developmental disability (for example, IQ under 70 ) in addition to a mental health diagnosis like autism or schizophrenia. [The Program] is a self-contained unit [ ] and provides tertiary-level care for intensive treatment and assessment of their [clients]. [Witness A] testified that [the Program] has two orientation components for staff: a general organizational orientation and a further comprehensive program-based orientation for this [client] population specifically. She identified documents outlining various workplace policies, including a document entitled Self-Defense and Restraint Techniques Defending Against Aggression, PowerPoint slides regarding Least Restraint & Seclusion as an Intervention, and a document entitled Tips for Working with People Who Have Autism. [Witness A] explained that these documents were components used in the corporate orientation [ ]. She identified reference to these policies and information in the unit-based orientation document entitled [ ] Orientation Checklist. [Witness A] confirmed that these documents were in use throughout the relevant time period. It was [Witness A s] testimony that the Member would have received this documentation as part of his corporate orientation when he was newly employed at [the Facility] in February 2010 and during his subsequent 2-week program orientation. [Witness A] explained that the Self Defense and Restraint Techniques portion of orientation included physical practice sessions.
[Witness A] identified some of the facility s written Operational Policies, including one on Least Restraint (approved September 7, 2006) and one on Interprofessional Progress Notes and DAR Charting (November 9, 2009). [Witness A] testified that these were the corporate policies in effect at the times of the alleged incidents. [Witness A] confirmed that methods of restraint are used at the facility, as an intervention one would use, when faced with risk in relation to a [client s] actions. The Least Restraint policy gives guidance on the use of restraint methods. For example, it states that restraint is to be used only to address serious, dangerous or high risk situations and when other methods of intervention have been attempted. This policy directs staff to meet with the client post-intervention to review the incident and explore alternative methods. The client s response must be documented on the shift in which the incident occurred. [Witness A] testified that all instances of hands on (manual restraint) must be documented and an incident form must be completed. [Witness A] explained that a Three Person Restraint would be applied to control a violent [client] when two people are unable to be effective. She said that this maneuver is called a chin lift, whereby a third staff member approaches the [client] from behind and uses the crook of their arm to lift the [client s] chin. She stated that this maneuver is taught at the facility as a last resort for manual restraint. [Witness A] identified exhibits that described [the Program], using a typical floor plan and photographs of the communal dining room/lounge area and adjacent Life Skills room. The Life Skills room has visual and physical access to the adjacent dining room. These exhibits were central to understanding the allegations and used by further witnesses in their testimony. Incident #1 [Client A] [Client A] was a [client] identified by the Collaborative Treatment Plan ([ ] June 2011 to [ ] July 2011) as having had multiple admissions to [the Program]. [Client A] was diagnosed with profound developmental disability, autistic disorder, diabetes, and seizure disorder. His current admission was due to frequent seizure-like episodes. [Client A] was noted to be at risk for choking and falls, and had no risk identified in this time period for suicide, elopement, violence/aggression, destructive behavior or treatment non-compliance. On [Client A] s Collaborative Treatment Plan for the following month ([ ] July 2011 to [ ] August 2011), [Client A] was noted as being at risk for violence/aggression. The notation indicated: Rushing [client] is a trigger for aggression. A strategy identified to mitigate this risk for [Client A] was documented as allow time to process and respond. [Witness A] testified that [Client A] had a communication barrier and rarely spoke. She described [Client A] as skittish and as a loner. [Witness B] is a developmental service worker ( DSW ) at [the Program], having worked there approximately 8 years. She converted to full-time 3 years ago. In 2011, she worked at [the Program] part-time, predominantly on the evening shift and on weekends. She testified that she has a BA in Psychology and returned to the 2-year college course for DSW following university. She described the DSW role as similar to recreational therapy, e.g., taking [clients] on outings plus supportive teaching of life skills. [Witness B] received restraint training as a pre-requisite
for a school job and has received further training at [the Facility]. [Witness B] testified that she knew the Member through work and that they worked together 2-3 times per week. She described their relationship as cordial and that they had a mutual interest in music. [Witness B] testified that [Client A] did not like to be touched and exhibited repetitive behaviours such as tapping the back of a chair three times before being seated. To her knowledge, [Client A] had not been admitted for aggression but for a med review. [Witness B s] testimony about the incident is as follows: She was assigned one-to-one for another [client] and was getting him ready for dinner. They were in the dining room. [Witness B] could not leave that [client] in the dining room. The meal cart arrived and [Client A] was walking to his usual seat in the dining room. [Client A] was standing at a middle or far table. [Witness B] was at the first table with her [client]. [Client A] put his hand on the back of the chair and tapped it. The Member told [Client A] to sit down. [Client A] tapped the back of the chair again. The Member walked over to [Client A], elbowed him in his side and physically forced [Client A] into the chair by the shoulders. [Client A] swung his arm up, in a gesture that [Witness B] described as a reaction. The Member grabbed [Client A s] arm and pushed him to the wall by the throat. [Witness B] testified that the Member slammed him ([Client A]) into the wall/ window of the Life Skills room. [Client A] began to fight kicking and yelling and the Member put [Client A] to the floor face down in front of the servery. A staff up call-out was made to alert other [Program] staff that help was required with a violent [client]. The Member had his hand on the top of [Client A s] head and his knee on [Client A s] back. [Witness B] was restraining [Client A s] legs as he was kicking. Another staff member, [Witness C], was talking to [Client A] Another staff member was holding [Client A s] head. [Witness B] testified that [Client A] was restrained for maybe a minute until a co-worker suggested that they let the [client] up and see what he does. [Witness B] stated [Client A] got up, sat at the table, took a bite of his lunch and vomited. She testified that [Client A] looked scared, that his face was white and his hands and body were shaking. [Witness B] stated that after [Client A] vomited, other staff came to help him clean up and that he returned to the dining room and sat in a lounge chair. It was [Witness B s] testimony that a chin lift is a maneuver used when approaching a [client] from behind and that it is not used on [the Program]. She denied that a chin lift had been used in this incident and stated that the Member had put his hand around the [client s] throat facing the [client]. She testified that hands on is the last resort for managing [clients].
[Witness C] is a fulltime DSW on [the Program] and has worked on this unit for 18 years. [Witness C] confirmed that he had received least restraint training and explained this meant being trained to verbally diffuse situations with aggressive [clients], and that in the instances where hands on was required, that least restraint would be used. [Witness C] worked with the Member approximately twice per week and he described their relationship as professional and within the work confines only. It was [Witness C s] testimony that [Client A] had a history of aggression on past admissions. He said that he had witnessed [Client A] being physically restrained for assaulting staff many years ago. On the day of the incident, [Witness C] stated that he was in the dining room, assigned one-toone with another [client]. His view of the incident was obstructed by a pillar in the dining room. He was alerted to the incident when he heard a commotion. [Witness C] testified that [Client A] was yelling and was off his seat. [Client A] was being very aggressive and [Witness C] observed the Member behind [Client A] and holding him in a chin lift and holding [Client A s] other arm. [Witness C] stated that he took [Client A s] left arm. The Member wanted to take [Client A] to seclusion because [Client A] had attempted an assault on him. [Witness C] testified that he recommended that the two staff put [Client A] on the floor where they could usually calm him and the Member agreed. [Witness C] and the Member lowered the [client] to the floor. [Witness C] remembered seeing [Client A s] face, and testified that [Client A] was face up. [Witness C] described [Client A s] episode as like a rage state and that [Client A] was struggling more than normal. [Witness C] told everyone to back away and see if [Client A] would settle. [Witness C] testified that the [client] was very pale and someone requested that vital signs should be taken on [Client A] [Witness C] did not recall if [Client A] stayed on the floor and did not observe [Client A] vomiting. [Witness C] was not sure if other staff were in the dining room at the time and stated that there were generally 4 to 5 staff in the dining room at mealtimes. [Witness C] agreed that he did not see the precipitating events leading to the commotion. [Witness D] has been an RN in Ontario since 2007 and has worked full-time at [the Facility] from 2008. Her home unit is [the Program] and she works overtime shifts in other departments. She testified that she is usually in charge of a pod of [clients] with two RPNs, caring for 6 [clients]. [Witness D] stated that she worked with the Member 6 shifts in 2 weeks and had a professional relationship with him. [Witness D] testified that she had received training at [the Facility] for managing physical aggression in [clients] and gave examples of talking to the [client], seclusion and trying different approaches with individual [clients] before applying physical restraint. She stated that individual approaches are identified on each [client] s care plan. [Witness D] confirmed that [Client A] had multiple past admissions to [the Program] and that she had witnessed two episodes of aggression in the past. In those instances, it had taken 4 to 6
staff to hold him. The first instance was prior to the admission relevant to this hearing, and occurred when [Client A] wanted to go for a walk off the unit and this request could not be granted. The second instance was the one at issue in this hearing. [Witness D] stated that [Client A] was not hard to deal with; he was exit-seeking and presented a choking risk for meals. [Witness D] reported that on the day of the incident, she was preparing [client] medications in the med room adjacent to the nursing station. She heard staff up being called from the dining room and ran to help. When she arrived, [Client A] was on the floor, lying on his side, was pale and sweaty and had vomited. He lay between two tables with his head towards the end of the servery. She recalled that there were other staff in attendance and that the Member was at [Client A] s head. She stated that [Witness C] was somewhere on [Client A s] body. She testified that [Client A] was pale, with bluish lips and that someone was saying get him up, get him up. [Witness D] went to the med room to prepare a prn medication for [Client A] and returned and took his vital signs. His colour had returned. When she returned to the dining room, [Client A] was sitting in a chair at the last table. She testified that [Client A] was saying he was scared. He took his lunch. [Witness D] did not see the precipitating behaviours to the incident. She documented the incident in [Client A s] chart as reported by staff. [Witness D] testified that [Witness B] discussed the incident with her that day and that she instructed [Witness B] to discuss the incident with the Director, [Witness A]. [Witness E] is a Registered Nurse and has worked throughout [the Facility] since 1995. She is currently a Case Manager for Forensic Services. In 2011, she worked on Forensics as her home unit and floated to [the Program] twice weekly. She worked with the Member several shifts or portions of shifts. She described the Member as a good worker who did his share. [Witness E] admitted to a romantic relationship with the Member lasting two years and ending in 2013. [Witness E] recalled [Client A] as being self-isolating. To her knowledge, this was the only occasion when [Client A] was observed to be aggressive. [Witness E] was not directly involved in the incident as she was attending a one-to-one [client] in the Life Skills room. It was lunch time and [Witness E] testified that something caught my eye. There was a commotion in the dining room: [Client A] was trying to hit out at the Member and the Member grabbed [Client A] and put him against the wall. [Client A] was flailing his arms and the Member grabbed his arm; [Client A] was facing away from the Member and the Member put [Client A] in a chin lift with [Client A s] face up against the window of the Life Skills room. The Member had his arm around [Client A] s neck and lifted his chin. [Witness E] stated that she went to the door and opened it and that other staff were then coming to respond. [Witness C] and the Member each grabbed one of [Client A s] arms and continued to struggle. They moved him away from the window. [Witness E] did not leave her one-to-one [client] and reported that she did not know how [Client A] came to be on the floor. She stated that [Witness C] was talking to [Client A] and trying to calm him. [Witness C] and the Member were on either side of [Client A] [Client A] stopped struggling and was sat up into a chair. [Witness E] reported that the incident took about 30 seconds and that [Client A] settled right away. When questioned, [Witness E] could not recall if other staff had hands on. [Witness E]
did not recall seeing [Client A] vomit. She recalled that the plan was for someone to get [Client A] a prn medication. Incident #2 [Client B] [Client B] was a [client] identified by the Collaborative Treatment Plan as having a pervasive developmental disability, ADHD, epilepsy, mild developmental disability and autism. He has lived on [the Program] since April [ ] 1997. [Client B] has a history of violence and aggression. He has identified risks for choking, falls, violence/aggression, and seizures. [Witness A] identified the Individual Least Restraint Plan for [Client B], a corporate form that confirms the triggers for his agitated behaviours and the levels of intervention to be used relative to the triggers. [Client B] has specific interventions such as utilize verbal calming, increase observation level and administration of prn medications and seclusion. Manual restraint maneuvers are not identified on [Client B s] Individual Least Restraint Plan. [Witness A] identified Medication Administration Records ( MAR ) for [Client B]. The MAR dated July [ ] to August [ ], 2011 identified 10 incidents when Olanzapine 10 mg was administered to [Client B] for agitation. The MAR dated August [ ], to September [ ], 2011 identified a further 9 incidents whereby Olanzapine 10 mg was administered for agitation. On August 5, 2011 (the date of the alleged incident), [Client B] did not receive prn Olanzapine. [Witness F] is a DSW who was working a contract for a part-time position in August 2011 and working up to full-time hours. He testified that he was generally assigned for one-to-one [clients] for therapeutic observation and community integration. He graduated from the DSW Diploma program in 1996 with Honours. [Witness F] said that he was often assigned to the Extra Care Area adjacent to the dining room on the west wing of [the Program]. [Witness F] confirmed that he worked with the Member up to two times per week. [Witness F] described the Member as always negative and having a chip on his shoulder. [Witness F] testified that the Member demands compliance from [clients]. [Witness F] described [Client B] as demonstrating restrictive, repetitive behaviours and was attached to toys. [Witness F] knew that [Client B] had a higher likelihood for aggression, but he had not had to restrain [Client B] himself. [Witness F] testified that he observed the following incident: At approximately 2030 hours on August 5, 2011, [Witness F] was helping another [client] get his pajamas on and ready for bed. [Witness F] was walking in front of the nursing station towards the tub room. [Client B] was walking in a straight line from the nursing station to the pillar in the dining room. The Member was leaning against the servery in the dining room. [Witness F] was opposite the servery, by the fish tank, when he heard the Member tell [Client B] to get out of here (dining room) and the Member stepped out from the servery and grabbed [Client B] by the collar of his t-shirt.
[Witness F] was talking with another [client] at the fish tank and turned around to see the Member carrying [Client B] off the ground with one of his arms around his neck and his back leaning against [Client B s] hip and walking him out of the area. The Member carried [Client B] 7 to 8 feet with [Client B] tipped back so that his feet were off the ground. The incident lasted 5 seconds. [Witness F] said that [Client B] would pace in the dining room after snack time, until he was verbally directed by staff to transition to the next activity. It was his testimony that [Client B] was caught in a loop. [Witness F] reported that prior to the incident [Client B] was calm and was cycling through the next activity after snack. He testified that he did not observe any behaviour that would be considered a risk to the [client] or others. [Witness F] testified that he had never seen another staff use such a manual restraint maneuver and that a chin lift would only be appropriate when other staff were present and a [client s] limbs could be controlled. [Witness F] observed [Client B] to have an imprint around his throat left by the neckline of his shirt. [Witness F] testified that following the incident, [Client B] wondered why his favourite t- shirt was torn from the neckline to the end of the sleeve. It was [Witness F s] testimony that he did not report the incident to the Director, [Witness A], until approximately one week later. [Witness F] described complexities in his work environment and that he had suffered repercussions after reporting an incident of [client] abuse in 2004. [Witness G] is an RPN and has worked at [the Facility] since 1996 in various provincially mandated forensic departments. In 2011, she worked on [the Program] in part-time and full-time contract positions. She testified that she worked with the Member twice a week and that their relationship was excellent. Only after further questioning, [Witness G] reluctantly divulged that she had a romantic relationship with the Member in 2011. She testified that she had not spoken with the Member for over a year as of the date of her evidence. [Witness G] confirmed the typical floor plan of [the Program], however she stated that tables and chairs in the dining room were laid out differently when she worked there compared to how they appeared in the exhibits. She did not recall the day, month or year of the incident involving [Client B]. However, she remembered that the incident occurred closer to the end of her work on [the Program]. [Witness G] gave testimony that she and the Member each had one-to-one [client] assignments and were with their [clients] in the dining room. [Client B] was pacing across the dining room in front of the bay window and suddenly ran past the Member and towards her. The Member grabbed [Client B] by the back of the shirt and turned him a quarter turn and then released him. [Client B] then ran from the dining room towards the north wing. Neither the Member nor
[Client B] said anything. [Witness G] did not recall any other [clients] or staff in the dining room at the time of this incident. [Witness G] testified that [Client B] had been aggressive to her in the past by elbowing her or body checking her. She stated that [Client B] had been physically aggressive towards her at least 100 times. In these circumstances, it would be practice to document these incidents in the [clients] chart, the Kardex and in the [ ] system. The evidence presented at the hearing showed that [Witness G] had documented [Client B s] aggression towards her in 3 instances. [Witness G] testified that she would not document instances of aggression from [Client B] when she was on a one-to-one [client] assignment as she was only supposed to care for a single [client]. She stated that she may not have the time to document every instance of aggression every time; she said that when my shift is done, I am done. [The Program] Investigation It was [Witness A s] testimony that [Witness B] met with [Witness A] on July 27, 2011 to report the incident regarding [Client A] [Witness B] reported that the Member had held [Client A] in a choke hold up against a wall. It was [Witness A s] recollection that [Witness F] met with her on August 12, 2011 to report the incident with respect to [Client B]. [Witness F] reported that the Member had pulled on [Client B s] t-shirt, put him into a chin lift and carried the [client] to another part of the lounge. At this time, [Witness A] instructed the Nurse Manager to begin an investigation. [Witness A] testified that she met with her Vice President and that a formal investigation was confirmed. Witnesses were interviewed from mid-august to September and prior to the internal disciplinary hearing, the Member was placed on suspension with pay. Based on the findings from [the Program] investigation, the Member was placed on a 20-day suspension without pay, was required to complete a learning plan with the Nurse Educator and would be transferred to another unit. [Witness A] testified that the Member completed his entire remedial plan other than attending the 3-day crisis intervention education. The Member resigned from [the Facility] late November and worked his final shift on December 2, 2011. Expert Witness [The expert] was qualified by the panel as an expert in nursing standards applicable in a psychiatric facility, including standards relating to restraint and abuse of psychiatric [clients]. She has been a Registered Nurse in Ontario since 1982 and obtained her BScN in 2011 [ ]. [The expert] has had a progressive career at [ ]. She retired in September 2015 from the Role of Risk Manager with corporate responsibility for retrospective analysis of critical incidents, responding to clinical, legal and insurance concerns involving staff and [clients]. [The expert] testified that her role had been to support the facility and staff implementation of policies, processes and standards. [The expert s] work extended to police engagement for officer safety and negotiation techniques with mental health [clients], with particular attention to least restraint methods. [The expert] had reviewed a hypothetical summary of the facts alleged in the two incidents.
In the context of Incident #1, it was [the expert s] testimony that [Client A s] clinical status and history revealed him to be severely handicapped and that he demonstrated ritualistic behaviours consistent with autism. In this incident, [the expert] believed that the Member would have known [Client A s] patterning behavior and diagnosis and also would have known that to interfere with that pattern would contribute directly to escalation and/or aggression. In provoking [Client A] as he did and acting outside of the [Client A s] care plan, the Member failed to meet the College s published standards for Ethics and Therapeutic Nurse-Client Relationships. [The expert] stated that the Member s behavior contravened the health and wellbeing of [Client A] and the provocation of this event constituted emotional abuse. [The expert] testified that pinning a [client] by the throat did not follow the standards of nursing nor the policies of the facility. She stated that this excessive use of force, by grabbing a vulnerable part of the [client s] body versus using alternative, calming techniques, was clearly contraindicated and physically abusive. [The expert] described the events of Incident #2 as an aggressive and abusive act that violated the standards of nursing practice. She testified that a chin lift maneuver and lifting a [client] off the ground would have been a frightening intervention for [Client B]; this technique was not a safe way to restrain a [client] and posed a potential for harm such as neck trauma to the [client]. [Client B s] pacing behaviour was an example of his ritualistic behaviours and the Member ought to have known that interruption by this excessive approach was emotionally and physically abusive. She stated that this excessive use of force would have been very traumatic to the [client]. With regards to documentation of these incidents, [the expert] opined that the Member failed to meet the standard of practice regarding documentation. She explained that, according to College standards, documentation provides a factual, timely record of the care that is provided to a [client] and would be evidence of therapeutic nurse-client relationship; nurses are accountable to provide evidence of the care provided by way of their documentation. In summary, it was [the expert s] opinion that the Member had conducted himself with clear moral failing by provoking a [client] and applying unnecessary and potentially harmful restraints to two [clients]. His lack of documentation or neglecting to correct documentation of these events was unprofessional for both incidents. For Incident #1, the documentation errors could also be described as dishonourable and/or disgraceful, since the documentation was actively misleading in that it suggested that the client, rather than the Member, provoked the incident. Final Submissions College Counsel submitted that this case had three general elements: first, the allegation that the Member abused [Client A] by provoking him to respond aggressively; second, the allegation that the Member abused [Client A] and [Client B] in that he applied inappropriate techniques and excessive use of force to restrain them both; and third, a breach of the standards of practice by failing to report or document these incidents in the [client s] record. Counsel asked the Panel to consider the testimony of [Witness B] as the only witness to the precipitating events or provocation of [Client A]. While other staff responded to a commotion,
there were no other witnesses to the provocation. It was College Counsel s submission that [Witness B] was thorough in her testimony and confident with her recollection of the events. [Witness C] and [Witness E] were drawn to the commotion and [Witness D] came to the scene when staff up was called. [Witness D s] documentation clearly identified her version of the event was as reported by staff. Regarding Incident #2, College Counsel pointed out that [Witness F] and [Witness G] provided different versions of the occurrence. [Witness F] testified that he had a clear view of the incident. College Counsel asked the Panel to prefer [Witness F s] evidence. She submitted that [Witness G] testified at this hearing that she had had 100 similar incidents with [Client B] being aggressive towards her, however, only three such incidents were found to be documented. Nothing about this incident was documented in [Client B s] record or reported to management. [Witness G] was able to describe the facility s policies for documentation and actions required in the event that a [client] is aggressive towards staff. The expert s evidence was that all of the conduct described was emotionally and physically abusive to both [clients]. College Counsel contended that the lack of documentation for both incidents gave a misleading impression of the occurrences relevant to [client] care. Decision The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing 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, 2, 3 and 4 of the Notice of Hearing. As to paragraph 4, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional by (a) provoking a [client] to respond in an aggressive manner, using excessive force and an inappropriate technique to restrain the [client] and failing to document the occurrence on July 23, 2011; and by (b) grabbing a [client] with sufficient force to rip his t-shirt, using excessive force and an inappropriate technique to restrain the [client] and failing to document the occurrence on August 5, 2011. Reasons for Decision It was the unanimous decision of the Panel that the evidence was clear, convincing and sufficient to prove that it was more likely than not that the misconduct had occurred as alleged with respect to the allegations. The evidence in respect of each allegation was considered separately. Professional Misconduct related to [Client A] [Witness A], Director of [the Program], referred to many exhibits throughout her testimony. Her presentation was factual and she self-identified that she had not personally witnessed either incident. Her testimony of the facility policies, corporate orientation, and [program-specific] orientation was confirmed by several witnesses, including on matters relating to the maneuvers taught and used for [clients] on [the Program]. She described [client] documentation, written
notes and MAR annotations clearly and succinctly. The Panel did not find any inconsistencies in her testimony. [Witness B] was emphatic in her description of the incident involving [Client A] She was certain of her recollection and that she was the only staff to have seen the provoking event. She described [Client A s] need to transition between activities and aspects of his repetitive behaviour related to his autism. She was so upset by the throat hold maneuver that she reported the incident to the RN ([Witness D]) that day and later that week to the Director. She described examples of peer bullying if one reported such matters to management at [the Program]. However, she felt strongly enough about the incident to report it despite these reservations. [Witness B] described her recall of the event as 110% due to the intensity of the force and technique used by the Member. The Panel found [Witness B] to be a credible witness as her testimony seemed honest, reasonable and truthful. She was emotional as she gave her testimony. She had no vested interest in the outcome of the hearing and in fact may have accepted an element of risk in order to provide her testimony. Other staff members were involved in the incident with [Client A] and all testified that they came upon the incident at various stages. [Witness C] testified that his view of the precipitating events with [Client A] was obstructed and that he was drawn to the incident by a commotion. His further testimony was succinct and his recall of details of the incident was strained. [Witness C] did not observe a throat hold on the [client]. He was unable to confirm the time of day of the incident, if other staff were present, the position of the [client] in the dining room, as examples. He referred to previous experience with [Client A] and aggressive episodes in his testimony, however this was not supported by any documentation found in the [client] notes or administration of prn medications. The Panel determined that [Witness C s] testimony was of limited value to the proceedings due to these facts. [Witness E] was present in the adjacent Life Skills room and also had no testimony related to the precipitating events with [Client A]. Similar to [Witness C], she described a commotion and observed the incident through the window of the adjacent room. [Witness E] testified that she saw [Client A s] face up against the window with the Member behind [Client A]. She went to the door to assist however was unable to leave her one-to-one [client] assignment and other staff came to help. [Witness E] was open that she had a romantic relationship with the Member ending in 2013. The Panel found her evidence credible and reliable, however, although she had an opportunity to have a key observation point for the incident, she did not in fact have direct observation of the incident with [Client A] [Witness D] made known that she was only called to the incident upon hearing the request for help. She testified that her role in [Client A s] incident was limited to an early assessment of the need for a prn medication for [Client A] and the need for a set of vital signs to be taken. She was unable to recall details of [Client A s] position or time of his vomiting, however this appeared to be a matter of memory rather than evasiveness or fabrication of the events. She documented the incident as reported by staff and was factual and forthcoming about [Client A s] status postincident. The Panel did not find any inconsistencies in her testimony. She had no vested interest in the outcome of the hearing.
Documentation of the incident was misleading. It made no mention of the Member s provocation. The Member had the opportunity to correct the documentation and did not take any action to do so. It is the Member s accountability to document and thereby provide accurate evidence of the care provided. Professional Misconduct related to [Client B] With respect to [Client B], [Witness F] reported the incident to the Panel factually and with good recollection of the incident. He testified that he was about 6 feet from the Member and [Client B]. [Witness F] made known that he had turned away from the Member and [client] for 5 seconds however was able to explicitly describe the hold the Member had on the [client] while he carried him 7 to 8 feet. [Witness F] specifically recalled [Client B s] injuries post incident, for example, the mark on [Client B s] neck from his t-shirt and questions [Client B] asked about his ripped t-shirt. [Witness F] reported this incident to the Director despite having concerns about workplace bullying associated with his previous experience in reporting a case of [client] abuse at the facility. The Panel found [Witness F s] testimony to be honest, reasonable and truthful. [Witness G] contradicted [Witness F s] story. She claimed that [Client B] had charged her and that the Member took immediate action to keep her safe. [Witness G] was pressed to say that she was in a romantic relationship with the Member at the time that lasted approximately two years. She was not forthcoming with time of day, date or year of the occurrence. She provided contradictory evidence that [Client B] had shown acts of aggression towards her approximately 100 times in the past, however, it was found that only 3 such instances had ever been documented. Based on this contradiction, [Witness G] did not appear to be mindful of the best interests of [the Program s] [clients]. Her testimony was largely disregarded by the Panel. There was no documentation of this incident in [Client B s] chart at all despite the evidence from two witnesses that suggests that the Member had knowledge of the wrongfulness of his conduct. Disgraceful, Dishonourable and Unprofessional The Panel finds that the Member s conduct is disgraceful, dishonourable and unprofessional. It is clearly unprofessional, as this sort of conduct falls below the public expectations of professional conduct for nurses. These [clients] were particularly vulnerable to the power of the nurse-client relationship and by provoking aggression and acting with excessive force, the Member has demonstrated a high degree of moral failing and brings dishonour in his duty to these [clients]. Emotional and physical abuse of [clients] is disgraceful as the Member s conduct brings shame to himself and, by extension, to the profession. I, Michael Hogard, RPN, 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: Susan Roger, RN George Rudanycz, RN Catherine Egerton, Public Member Devinder Walia, Public Member