DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO. PANEL: Nancy Sears, RN Chairperson Susannah Handley, RN Member April Plumton, RPN Member

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1 DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO PANEL: Nancy Sears, RN Chairperson Susannah Handley, RN Member April Plumton, RPN Member Renate Davidson Public Member Margaret Tuomi Public Member BETWEEN: COLLEGE OF NURSES OF ONTARIO ) SHANE SMITH for ) College of Nurses of Ontario - and - ) ) BROOKE RASINAHO ) CAROL STREET for Registration No ) Brooke Rasinaho ) ) ) JOHANNA BRADEN ) Independent Legal Counsel ) ) ) ) Heard: March 7, 2014 and May 2, 2014 DECISION AND REASONS This matter came on for hearing before a panel of the Discipline Committee on March 7 and May 2, 2014, at the College of Nurses of Ontario ( the College ) at Toronto. At the outset of the hearing, counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1c and 1e, 2c and 2e, and 3c and 3e in the Notice of Hearing dated February 7, The panel granted this request. The remaining allegations against the Member are as follows. The Allegations 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 you contravened a standard of practice of the profession or failed to meet the standard of

2 practice of the profession in that, on or about November 24 and 25, 2010, and in subsequent investigations into the events occurring on those days in respect of [the Client], you: a. performed sternal rubs on [the Client] and/or other acts of physical discomfort upon [the Client]; b. recruited and/or assisted a coworker [ ] in the application of sternal rubs and/or flicking of [the Client] s head and face and/or other acts of physical discomfort upon [the Client]; c. withdrawn d. acted in an intimidating and/or threatening manner towards [the Client]; e. withdrawn f. failed to intervene to protect the health and well-being of [the Client] when she was being abused by [the co-worker]. 2.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, on or about November 24 and 25, 2010 you verbally, physically or emotionally abused [the Client] when you: a. performed sternal rubs on [the Client] and/or other acts of physical discomfort upon [the Client]; b. recruited and/or assisted a coworker [ ] in the application of sternal rubs and/or flicking of [the Client] s head and face and/or other acts of physical discomfort upon [the Client]; c. withdrawn d. acted in an intimidating and/or threatening manner towards [the Client]; and/or e. withdrawn 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 1.37 of Ontario Regulation 799/93 in that, on or about November 24 and 25, 2010, you engaged in conduct or performed acts that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and, in particular: a. performed sternal rubs on [the Client] and/or other acts of physical discomfort upon [the Client]; b. recruited and/or assisted a coworker [ ] in the application of sternal rubs and/or flicking of [the Client] s head and face and/or other acts of physical discomfort upon [the Client]; c. withdrawn d. acted in an intimidating and/or threatening manner towards [the Client]; e. withdrawn

3 f. failed to intervene to protect the health and well-being of [the Client] when she was being abused by [the co-worker]. Member s Plea The Member admitted the allegations set out in paragraphs 1 a, b, d, and f, 2 a, b and d, and 3 a, b, d, and f in the Notice of Hearing. The panel received a written plea inquiry which was signed by the Member. The panel also conducted an oral plea inquiry. As described below, the events of this case caused the panel to have concerns about whether the Member s admissions were entirely unequivocal. However, the panel was eventually satisfied that the Member s admissions were voluntary, informed and unequivocal. Overview Many cases come to this Discipline Committee on an uncontested basis. In such cases, the member makes one or more admissions of professional misconduct and the parties present the panel with an Agreed Statement of Facts which outlines facts sufficient to convince the panel that professional misconduct as set out in the allegations has occurred. Once the facts and admissions are accepted by the panel and findings of professional misconduct are made by the panel, the panel is presented with a joint submission on order that outlines a penalty jointly proposed by both parties. The Discipline Committee appreciates and respects these agreements. They show that many members of this College are prepared to take responsibility for their conduct and undergo the remedial efforts necessary to ensure such conduct is not repeated. They show that the College is responding to these members in a fair and balanced way that protects the public while still supporting members who are capable of rehabilitation. Even when a member and the College come to an agreement, the Discipline Committee still plays an important role in the discipline process. A member s admission of professional misconduct is, on its own, an insufficient basis on which a panel can or should make findings of professional misconduct. In uncontested matters, the Agreed Statement of Fact must provide sufficient evidence that convinces a panel, on a balance of probabilities, that the agreed misconduct has occurred and that it falls within that which constitutes professional misconduct. The Discipline Committee, not the parties, is responsible for determining what constitutes professional misconduct. The views and perspectives of the parties are important, but they are not a substitute for the judgment of the panel of the Discipline Committee. This case raised the issues of what evidence, if any, a panel needs before it can make a finding of professional misconduct, and what steps a panel can take if it has concerns about the evidence put before it in an Agreed Statement of Facts. The Agreed Statement of Facts entered into evidence in this case was not sufficiently clear nor sufficiently detailed to allow this panel initially to conclude with confidence that, on a balance of probabilities, all the allegations had been proven. Eventually, the panel was persuaded that all but one of the allegations could be proven based on the evidence in the Agreed Statement of Facts or on inferences drawn by the panel from the evidence in the Agreed Statement of Facts. The process of reaching this

4 conclusion was an unfortunately complicated one which this panel hopes will be avoided by future parties ensuring that the evidence placed before a panel by means of Agreed Statements of Facts is clear and sufficient in light of the specific allegations. Agreed Statement of Facts Counsel for the College and the Member advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts ( ASF ) as an exhibit [in] the hearing. The entire exhibit reads as follows, with the names of individuals other than the Member redacted, and with one of the dates corrected as agreed to by the parties during the hearing. THE MEMBER 1. Brooke Rasinaho (the Member ) obtained a degree in nursing [ ] in The Member registered with the College of Nurses of Ontario (the College ) as a Registered Nurse ( RN ) on April 1, The Member was employed at [the Facility] from July 3, 2006, to December 14, THE HOSPITAL 4. The [Facility] is located in [ ] Ontario. 5. The Member worked in the Emergency Department as a full-time, staff nurse on day, night and weekend shifts. THE CLIENT 6. [The Client] was [a teenager] at the time of the incident. 7. At approximately 23:58 on November 24, 2010, [the Client] was brought to the Emergency Department at [the Facility] by city police and paramedics. [The Client] had been found at a [coffee shop] with a decreased level of consciousness, due to alcohol and drug consumption, and was also bleeding from her wrists. 8. [The Client] did not have any identifying information with her and was either not willing or not able to provide her name to [Facility] staff, despite several attempts to gather this information. INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT 9. [The Client] was initially assigned to [RN A] who was assisted by [RN B]. [RN A] performed a light sternal rub because [the Client] was not responding to voice or touch. [The Client] responded to the sternal rub by wincing and moving her

5 shoulders and arms, which indicated she was not unconscious. [RN A] stopped applying the sternal rub. 10. [The Client] was conscious and interacting with staff, but was non-verbal, when [RN A] went on her break around 02: Around 03:00, [redacted] [the charge nurse] asked staff to go and rouse the Client in order to try and obtain the Client s name. [The charge nurse] did not direct this request to anyone in particular, but rather it was a general request made to a group of nurses. 12. The Member was in the area when [the charge nurse] made this request and volunteered to assist. The Member proceeded to the Client s area with another nurse, [RN C]. 13. The Member proceeded to perform two sternal rubs on the Client, who was not responding to voice or touch, causing the Client physical discomfort. 14. If [RN C] were to testify, she would say she observed the Client shaking her head, resisting, crying and squirming. 15. The Member asked the Client to provide her name but the Client did not provide this information. 16. [RN C] left after about thirty seconds because she was uncomfortable with the Member s actions. 17. The Member then paged a co-worker, [RN D], to come and assist her with the Client. 18. The Member and [RN D] proceeded to the Client s bedside where [RN D] applied sternal rubs to the Client and flicked the Client in the head and face causing physical discomfort to the Client. The Member did not intervene when her co-worker engaged in these actions. 19. The Member and [RN D] asked [the Client] questions to try to elicit her name and information about her condition. [The Client] continued to keep her eyes closed and did not respond and was crying softly. 20. The Member made a number of comments and suggestions to [RN D] in the presence of [the Client]. These included: a. suggesting changing the Attends that [the Client] was wearing; b. suggesting they insert a catheter; c. suggesting they might have to call the police; and d. discussing the cutting of dreadlocks (which was the style of [the Client] s hair)

6 21. If the Member were to testify, she would say that she raised the possibility of needing to call the police in light of [the Client] s apparent young age and that the discussion around the cutting of hair was in relation to the Member s experience with a friend having to cut her hair in order to remove dreadlocks. 22. During this time the Member and [RN D] asked [the Client] for information about her identity. 23. [The Client] was crying and did not respond to the Member and [RN D] s request for information. The Member and [RN D] subsequently left the room. 24. [RN A] returned from her break after approximately 40 minutes. [The Client] s heart rate was over 130 beats per minute and she was crying and gasping and was so upset she could not catch her breath. 25. [The Client] was transferred to [another unit] on November 25, A physical assessment was conducted on [the Client] s admission to the [other unit]. After having received at least 6 sternal rubs by [RN A], [RN D] and the Member, it was noted that her sternum was bruised and tender. The bruising was recorded into the progress notes of the chart as a late entry. ADMISSIONS OF PROFESSIONAL MISCONDUCT 26. The Member admits that she committed the acts of professional misconduct as described in paragraphs 9 to 23 above and as alleged in the Notice of Hearing at the following paragraphs: 1(a), (b), (d) and (f); 2(a), (b), (d); and 3(a), (b), (d) and (f). The ASF was the extent of the evidence presented. Counsel for the Member submitted that, in hindsight, the Member recognizes that her conduct was wrongful, and that at the time of the events, she felt she was doing the right thing. The Panel s Concerns with the ASF The panel had concerns that the facts as presented in the ASF did not clearly establish, on a balance of probabilities, that all allegations had been proven. The panel asked the parties several additional questions for clarification, as follows. With regard to Allegation 1a, which standard was breached and how was the standard breached? With regard to Allegation 1b, what is the evidence that the Member recruited and/or assisted [RN D] specifically, as set out in Allegation 1b, in the application of sternal rubs

7 and/or flicking of [the Client] s head and face and/or other acts of physical discomfort against [the Client]? What standard was breached and how was it breached? With regard to Allegation 1d, what is the evidence that the Member acted in an intimidating or threatening manner towards [the Client]? What standard was breached and how was it breached? With regard to Allegation 1f, what is the evidence that [RN D] abused [the Client]? If [RN D] abused [the Client], what standard did the Member breach by failing to intervene? With regard to Allegation 2a, what is the evidence that the performance of sternal rubs and/or other acts of physical discomfort constituted verbal, physical, and/or emotional abuse of [the Client]? With regard to Allegation 2b, what is the evidence that the Member s recruitment and/or assistance of [RN D] constituted verbal, physical, and/or emotional abuse of [the Client]? With regard to Allegation 2d, what is the evidence that the Member engaged in threatening and/or intimidating actions such that these actions constituted verbal, physical, or emotional abuse of [the Client]? With regard to Allegations 3a, b, d, and f, they allege that the Member s conduct was unprofessional, dishonourable, and/or disgraceful. The panel asked the parties jointly or severally, to characterize the conduct for these allegations. The parties asked for an adjournment so that they could formulate responses to the panel s questions. The panel granted this adjournment and the hearing reconvened on May 2, The panel had anticipated that the parties would provide a new or amended ASF that addressed the panel s questions. Instead, the panel was advised by Counsel for the Member that, despite several attempts on her behalf to open communication with Counsel for the College, no discussion on the matter had occurred except for discussion of a general nature approximately 24 hours prior to reconvening the hearing on May 2, Counsel for the College did not dispute this submission. The parties each made submissions, summarized as follows. Submissions by Counsel for the College In terms of the standards that were breached by the Member s conduct, College Counsel submitted three of the College s published practice standards for the panel s consideration: Professional Standards, Revised 2002; Therapeutic Nurse-Client Relationship, Revised 2006; and Ethics. Counsel highlighted specific sections within each of these three standards. With respect to how the standards were breached, College Counsel submitted that the panel should rely on the ASF as well as the Member s admissions. With respect to Allegation 1a, paragraphs 10 through 13 inclusive set out that sternal rubs were performed when the client was conscious (paragraphs 10 and 13) for the purpose of obtaining the Client s name (paragraph 11) by the Member (paragraph 12). Physical touching to cause discomfort to obtain a client s name is inappropriate and a breach of standards.

8 With respect to Allegation 1b, paragraph 15 of the ASF establishes that the client did not provide her name; paragraph 17 of the ASF establishes that the Member paged [RN D] to attend the client with the Member; paragraph 18 of the ASF establishes that [RN D] applied sternal rubs to the Client and flicked the Client in the head and face causing physical discomfort to the Client and that the Member did not intervene in these actions by [RN D]. With respect to Allegation 1d, the necessary evidence is set out in paragraphs 17 to 20 inclusive of the ASF, [which] describe a contiguous set of events. That is, paragraph 17 sets out that the Member paged [RN D], paragraph 18 sets out that [RN D] applied sternal rubs to the Client and flicked the Client in the head and face causing the client physical discomfort and that the Member did not intervene in these actions by [RN D]; paragraph 19 establishes that the client did not respond to the Member s and [RN D] s questions to elicit her name and information about her condition and was crying softly; and paragraph 20 sets out threatening and/or intimidating remarks made to [RN D] in the presence of the client. With respect to Allegation 1f, paragraph 18 of the ASF establishes that [RN D] applied sternal rubs and that the Member did not intervene. As the client was conscious, the sternal rubs were not applied for a clinical assessment purpose. With respect to Allegation 2a, paragraphs 10 through 13 inclusive and paragraph 15 establish that the client was conscious but non-verbal (paragraph 10), that the charge nurse asked staff to rouse the Client to obtain the Client s name (paragraph 11); that the Member went to the Client with another nurse in response to the charge nurse s request (paragraph 12), that the Member performed sternal rubs on the Client who was not responding to voice or touch (paragraph 13), and that subsequently the Client did not provide her name to the Member (paragraph 15). Using sternal rubs as a means of encouraging the Client to provide her name is physical abuse. With respect to Allegation 2b, assisting another nurse in applying sternal rubs for a nonclinical purpose is abuse; by bringing in the abuser, the Member participated in the abuse. With respect to Allegation 2d, paragraphs 13, 17, 18 and 20 of the ASF establish that the Member used sternal rubs on the Client when the Client was not responsive to voice or touch (paragraph 13), that the Member paged a co-worker to assist the Member with the Client (paragraph 17), that the Member did not intervene when the co-worker applied sternal rubs and flicked the Client s head and face (paragraph 18), and that the member made comments and suggestions in the presence of the Client (paragraph 20). With respect to Allegation 3, [ ] when all are considered together, the Member s conduct was unprofessional, dishonourable and disgraceful. All of the Member s conduct was

9 unprofessional and the Member s abusive conduct was dishonourable and disgraceful. College Counsel submitted that he and the Member s counsel were agreed on this point; such agreement was disputed by counsel for the Member, who said there was no such agreement. Two previous cases of this Discipline Committee were submitted to support how the Member s conduct may be regarded by members of the profession. o CNO v. Lana Pottruff (Discipline Committee, 2006) is a matter in which a member s conduct was found to be unprofessional, dishonourable and disgraceful when that member slapped a client and shouted, Let go of my wrist, you fucking prick or words to that effect. o CNO v. Sandra Munro (Discipline Committee, 2011) is a matter in which a member s conduct was found to be unprofessional, dishonourable and disgraceful when that member: Failed to properly redirect a client after the client became aggressive and/or confused; Used physical force, including pushing the client on several occasions; Threatened to hit the client; Used physical force, causing the client to fall; Improperly restrained the client by holding him down while the client was on the floor; Failed to assess and provide appropriate care to the client; and Failed to accurately and or adequately document his interactions with the client. In terms of what constitutes disgraceful, dishonourable and unprofessional conduct, College Counsel referred to the definitions that this Discipline Committee have relied upon for many years, and which were memorialized in a memorandum that has been sent to counsel (the DDU Memo ) through the hearings administration department of the College of Nurses. Although the panel s working definition of these terms has been known to and relied upon by the College for years, College Counsel took issue with it in this case. The DDU Memo reiterates the definitions that appear in numerous decisions of this Discipline Committee. o Disgraceful conduct is conduct that has the effect of shaming the member and, by extension, the profession. In order to be disgraceful, the conduct should cast serious doubt on the Member s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet. o Dishonourable conduct is similar, but need not be as severe. However, dishonourable conduct is often the best description for conduct involving dishonesty or deceit. Both dishonourable and disgraceful conduct have an element of moral failing. A member ought to, or will, know that the conduct is unacceptable and falls well below the standards of a professional when he or she

10 commits a disgraceful or dishonourable act. Conduct amounting to fraud, theft, public indecency or assault, would be examples of dishonourable or disgraceful conduct. In general, the more knowledge of the wrongfulness the Member had or ought to have had at the time of the conduct, the more it will tend to be disgraceful instead of merely dishonourable. o Unprofessional conduct does not require any dishonest or immoral element to the act or conduct. Many courts have found that unprofessional conduct includes a serious or persistent disregard for one s professional obligations. This term recognizes the general traits of good judgment and responsibility that are required of those privileged to practi[s]e the profession. Whether or not a member commits an act that disgraces him or her and dishonours the profession, failure to live up to the standards expected of him or her can demonstrate that a member is, simply put, not professional. However, mere errors in judgment, or discretionary decisions made reasonably (though the panel might have made them differently), are not properly considered unprofessional conduct. o These definitions must be considered in the context of the Regulation as a whole, which provides that the conduct in question, in order to be considered disgraceful, dishonourable or unprofessional, must be relevant to the practice of nursing. The Discipline Committee understands that purely private conduct is not meant to be regulated by the rule, unless that conduct has some impact on the public trust in nursing professionals. College Counsel disagreed with the DDU Memo in two respects. First, he did not agree that dishonesty and/or deceit were defining factors in dishonourable conduct. Second, he disagreed that In order to be disgraceful, the conduct should cast serious doubt on the Member s moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet. He submitted this was too high a threshold and not a requirement to find disgraceful conduct. In any event, regardless of College Counsel s disagreement with the DDU Memo, College Counsel submitted that even if those definitions were to be used by the panel, the thresholds for unprofessional, dishonourable and disgraceful conduct have been met on the facts of this case. Submissions by Counsel for the Member Despite the long adjournment separating the first and second hearing dates, and despite attempts by her during this interlude to open discussion with Counsel for the College, there were no discussions between the parties regarding responses to the panel s questions. The only communication that Counsel for the Member received was a general outline of College Counsel s intended submissions in the 24 hours prior to the May 2 nd recommencement of the hearing. As such, she has had no opportunity to agree or disagree with College Counsel submissions of May 2, 2014.

11 The Member agreed to the contents of the ASF and to admit the allegations. That was the extent of the agreement. There is a fine line between disagreeing with the College s submissions on May 2 nd and the Member s obligation not to renege on the agreement originally reached between the parties. The ASF is the only evidence before the panel and it is the panel s role to decide whether the admissions are supported by the ASF. The panel should not rely on subsequent submissions and/or interpretations by College Counsel. The panel must decide if the factual evidence in paragraphs 1 to 25 of the ASF support[s] findings of professional misconduct for each allegation. Paragraph 26 of the ASF is the Member s admission and is not a factual statement of what happened. It is, simply put, the Member s plea. The law states that findings are discretionary decisions made by the panel and it is up to the panel to determine if the ASF establishes guilt. While paragraph 9 of the ASF establishes that [RN A s] assessment at an undated time was that the Client in this matter was not unconscious, paragraph 11 indicates that the request to which the Member responded at 03:00 hours was to rouse the Client, and that if the Client had been conscious at that time, there would have been no need to rouse the Client, and that while paragraph 13 of the ASF sets out that the Client was not responsive to voice or touch and hence sternal rubs may have been or were appropriate at this point, paragraph 14 indicates that the Client was observed as responsive; collectively these facts suggest inconsistency in the evidence regarding the level of consciousness of the Client. Paragraph 20 of the ASF simply outlines comments made in the presence of the Client by the Member to another nurse. The College is asking the panel to conclude that the comments were threatening and hence abusive, however paragraph 21 sets out the context in which the comments were made that the Member raised the possibility of needing to call the police in light of the Client s apparent young age, and that discussion of cutting the Client s hair was in relation to the Member s experience with a friend having to cut her hair in order to remove dreadlocks. Paragraph 17 of the ASF is not disputed, but the panel needs to conclude that [RN D] abused the Client in order for the Member to be found guilty of not interfering during the abuse. In terms of Allegation 3, Counsel for the Member agrees with the advice set out in the DDU Memo. There must be elements of moral turpitude in conduct that is found to be dishonourable or disgraceful. The Member was content to leave this to the panel to determine on the facts before it.

12 While the Member is admitting the allegations, the panel should only accept the plea if the ASF, taken in its totality, satisfies the panel that the allegations are proven by the College. If the panel makes no findings for some or all of the allegations, then those allegations should be dismissed. The Member is not bringing a motion to absent her plea nor is she reneging on her agreement with the College. Notwithstanding that, the panel must assess guilt based on the evidence in the ASF. The panel s questions suggest that the panel needs clarifications on the facts to determine if the Member s plea can be accepted based on the ASF as it was originally presented. College Counsel s Response to submissions by Counsel for the Member The submissions by the Member s Counsel suggest that the Member is backing away from her admissions and the agreement reached between the parties and that the Member wants the panel to not rely on the admissions. Paragraph 20, when considered with paragraph 26, supports the interpretation that the comments made by the Member in the presence of the Client were threatening and intimidating. The opportunity for the Member to raise the issue of the Client being conscious versus unconscious is not open. The Member agreed via paragraph 26 that her behaviour was abusive. For the Member to suggest that the panel can consider whether the actions are in fact abusive is tantamount to reneging on the deal struck between the parties. College Counsel disputed that he was trying to put forth new facts. His submission was confined to taking the panel through details as requested by the panel. College Counsel is concerned with the panel s request to spell out the standards that were breached as this is not the norm in agreement cases. College Counsel would not have agreed to the ASF if the Member s admission was not sufficient to prove the allegations. In the event that the panel feels that the allegations are not supported by the ASF, College Counsel would not agree that the allegations should be dismissed. Advice from Independent Legal Counsel Following these submissions from the parties, the panel consulted Independent Legal Counsel ( ILC ), and asked for advice on three questions, as follows. 1. To what extent can the panel rely on the Member s plea and admissions in paragraph 26 of the ASF as evidence that the allegations in the Notice of Hearing are true?

13 2. If the panel needs evidence beyond paragraph 26 of the ASF before it can make a finding of professional misconduct, then to what extent, if any, can the panel draw inferences from the other facts in the ASF? 3. If the panel determines that the evidence is not sufficient for the panel to make some or all of the findings of professional misconduct, then what orders can the panel make? ILC prepared her advice in writing, and it was provided to the panel and the parties at the same time, via a letter dated June 17, As ILC had not been present at either hearing date, in preparing her opinion, she reviewed the Notice of Hearing, the ASF, the list of questions to the parties posed by the panel on the first hearing date, and the three published College Standards that College Counsel presented to the panel on May 2. The advice of ILC is reprinted below, in italics as taken directly from the written advice provided to the panel and the parties. The I referenced in this advice is the panel s ILC. 1. The Member s Plea and Admissions The ASF is 26 paragraphs long. Paragraph 26 reads: ADMISSIONS OF PROFESSIONAL MISCONDUCT 26. The Member admits that she committed the acts of professional misconduct as described in paragraphs 9 to 23 above and as alleged in the Notice of Hearing at the following paragraphs: l (a), (b), (d) and (f); 2(a), (b), (d); and 3(a), (b), (d) and (f). Paragraph 26 is the Member s written admission of professional misconduct. Where members do not contest allegations of professional misconduct made against them, a member s formal admission is an essential step towards making a finding of professional misconduct. However, the formal admission it is not the only step. Section 49 of the Health Professions Procedural Code to the Nursing Act, 1991, S.O. 1991, c. 32 (the Code ), provides as follows. Admissibility of evidence 49. Despite the Statutory Powers Procedure Act, nothing is admissible at a hearing that would be inadmissible in a court in a civil action and the findings of a panel shall be based exclusively on evidence admitted before it [emphasis added]. This means that, even in cases where a member admits to professional misconduct, the panel cannot make any findings of professional misconduct unless there is sufficient admissible evidence before the panel to justify the findings it is asked to make. The parties cannot dispense with the requirement that the panel must make its findings based on admissible evidence. Indeed, paragraph 26 of the ASF expressly contemplates this by referring back to the evidence in

14 paragraphs 1-23 of the ASF. Accordingly, my advice is that paragraph 26, by itself, is insufficient for the panel to make a finding of professional misconduct. At a minimum, the panel must look to paragraphs 1-23 of the ASF to see whether they provide a sufficient evidentiary basis to substantiate the findings of professional misconduct that the panel is being asked to make. As to the form of that evidence, the introduction of exhibits on consent is a typical and accepted practice of introducing evidence in a court in a civil action. It has become accepted practice in professional discipline proceedings where evidence is required to allow the parties to submit an agreed statement of facts or similar document as the evidentiary basis for the decision the parties wish the tribunal to make. In other words, while the parties cannot dispense with the need for evidence altogether, the parties can agree to relax the strict rules of evidence. Facts need not be strictly proven by one party or another, as long as both parties agree on what facts the panel can assume to be true. [See, for example, Re Emerson and Law Society of Upper Canada, [1983] O.J. No (QL) (H.C.J.) at paras ] As to the sufficiency of the evidence, the ASF should, at a minimum, contain sufficient facts to substantiate the essential elements of the allegations being pleaded to. This allows the panel to determine whether the Member s plea should be accepted and, if so, the degree of the Member s fault and the appropriate order that should be imposed upon the Member during the penalty phase of the hearing. 2. If the panel needs evidence beyond paragraph 26 of the Agreed Statement of Facts before it can make a finding of professional misconduct, then to what extent, if any, can the panel draw inferences from the other facts in the ASF? Ideally, the ASF would clearly set out sufficient facts for all members of the panel (including its public members, who may not have any nursing expertise) to easily conclude that the evidence substantiates the allegations being admitted by the Member. If the evidence in the ASF is not entirely clear, my advice is that, as a general rule, it is permissible and even advisable for the panel to draw reasonable inferences from the facts in the ASF in order to conclude that the Member has committed professional misconduct as alleged and admitted. For example, in this case, the panel could theoretically draw inferences from the ASF as follows. a) The allegation that the Member performed sternal rubs and/or other acts of physical discomfort on [the Client], which constituted a contravention of the standard of practice; verbal, physical or emotional abuse; and conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. There is no doubt from the ASF that the Member performed two sternal rubs on the Client (paragraph 13). However, as I understand it, the panel s concern is that it is not clear from the ASF why these sternal rubs (which can have a clinical purpose) are said to amount to professional misconduct in the circumstances.

15 Paragraph 9 of the ASF suggests that it is appropriate to perform a light sternal rub if a client is not responding to voice or touch in order to assess whether a client is conscious. Paragraph 13 states that the Member performed two sternal rubs on the Client, who was not responding to voice or touch, causing the Client physical discomfort. The panel is aware that many clinically appropriate procedures cause clients physical discomfort, and does not want to make a finding of professional misconduct unless there is some evidence on which the panel can conclude that one or both of the sternal rubs were done for a purpose other than an appropriate clinical purpose, and/or were done with excessive force that was not appropriate to the circumstances. The ASF also provides as follows. o The Member initially approached the Client for the purpose of rousing the Client in order to try and obtain the Client s name (paragraphs 11 and 12). The ASF does not identify any other purpose for the Member s interventions with the Client (paragraphs 11 and 12). The Member was not assigned to the Client s case. From this the panel could infer that at least one purpose of the Member s sternal rubs was to use a clinical technique that causes physical discomfort for a nonclinical purpose (to obtain the Client s name). o The ASF does not specifically state that the sternal rubs were being done for a clinical purpose, and were done in a manner that was clinically appropriate. In light of the Member s admissions of professional misconduct generally, the panel could infer from the absence of this language that the sternal rubs were not being done for a clinical purpose, and/or were not done in a manner that was clinically appropriate. o The Member initially approached the Client in the presence of another nurse, [RN C] (paragraph 12). [RN C] observed the Client shaking her head, resisting, crying and squirming (paragraph 14), and it can reasonably be inferred that these observations were made as the Member was performing the two sternal rubs on the Client (paragraph 13). The Member asked the Client to provide her name but the Client did not (paragraph 15), and [RN C] left after about 30 seconds because she was uncomfortable with the Member s actions (paragraph 16). A panel could reasonably infer that the Member was asking the Client for her name at the same time as she was performing the sternal rubs, lending further support for the inference that the sternal rubs were not being done solely for a clinical purpose (to rouse the patient/assess consciousness) but also for a non-clinical purpose (to obtain the Client s name). The panel could also infer that the Client was showing signs of consciousness while the Member was performing the sternal rubs and that the Member did not cease the sternal rubs once it was apparent that the Client was conscious. Rather, the Member persisted with the sternal rubs to cause the Client physical discomfort so that the Client would reveal her name. If the sternal rubs were done not for a clinical purpose, or not solely for a clinical purpose, and/or were done with more force than clinically appropriate, then the panel can rely upon the three standards submitted by College Counsel to conclude that causing

16 a client physical discomfort so that the client will reveal her name is a breach of the standards of practice of the profession. The panel could also rely on those standards and on its own understanding of the term abuse in determining that the sternal rubs constituted physical and/or emotional abuse of a client. The panel should rely on its own assessment of the collective view of the nursing profession in determining whether members of the profession would reasonably consider it to be disgraceful, dishonourable and/or unprofessional for a nurse to cause a client physical discomfort in order to obtain the client s name. b) The allegation that the Member recruited and/or assisted a coworker ([RN D]) in the application of sternal rubs and/or flicking of [the Client] s head and face and/or other acts of physical discomfort upon [the Client], which constituted a contravention of the standard of practice; verbal, physical or emotional abuse; and conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional The ASF is clear that the Member s co-worker ([RN D]) applied sternal rubs to the Client and flicked the Client in the head, causing physical discomfort to the Client (paragraph 18). As I understand it, the issues for the panel are whether the Member recruited and/or assisted [RN D] in inflicting these acts of physical discomfort upon the Client, and whether the act of recruiting and/or assisting [RN D] for this purpose was professional misconduct as alleged and admitted. As to whether the Member assisted and/or recruited [RN D], my advice is that there is nothing in the ASF which could lead the panel to conclude that the Member assisted [RN D]. Indeed, the ASF states that the Member did not intervene when her co-worker engaged in these actions (paragraph 18). However, there is evidence on which the panel could infer that the Member recruited [RN D] for the purpose of performing acts of physical discomfort upon the Client so that the Client would reveal her name. o The Member had approached the Client for the purpose of obtaining the Client s name (paragraphs 11 and 12). o The Member had performed two sternal rubs on the Client, causing the Client physical discomfort (paragraph 13). o The Member asked the Client for her name and the Client had refused to provide it (paragraph 15). o The Client was showing signs of consciousness by shaking her head, resisting, crying and squirming (paragraph 14). o [RN C] left (paragraph 16), and the Member wished someone to take [RN C] s place. o The Member paged a co-worker ([RN D]) to assist her with the Client (paragraph 17). Since the only reason the Member was with the Client at this point was to

17 obtain the Client s name, the panel could infer that the reason the Member paged [RN D] was to recruit her in trying to obtain the Client s name. o Since [RN D] proceeded to apply sternal rubs to the Client and flick the Client in the head and face, and the Member did not intervene, and the Member has admitted professional misconduct generally, the panel could infer that the Member knew or ought to have known when she recruited [RN D] s assistance that [RN D] would inflict acts of physical discomfort upon the Client in order to obtain the Client s name. As to whether it was appropriate for [RN D] to inflict deliberate physical discomfort upon the Client so that the Client would reveal her name, the panel can rely on the three published College standards submitted by College Counsel to determine whether such conduct is a breach of the standards of practice of the profession. The panel could also rely on those standards and on its own understanding of the term abuse to determine whether the acts of physical discomfort constitute physical and/or emotional abuse of a client. c) The allegation that the Member failed to intervene to protect the health and well-being of [the Client] when she was being abused by [RN D] The ASF is clear that the Member did not intervene when [RN D] applied sternal rubs to the Client and flicked the Client in the head and face, causing physical discomfort to the Client (paragraph 18). I assume that with respect to this allegation, and in light of the published College standards that have been submitted by College Counsel, the panel accepts that a nurse contravenes the standards of practice of the profession when she fails to intervene when a client is being abused by another nurse. I also assume that the panel accepts that failing to intervene when a client is abused by another nurse is conduct that members would reasonably regard as disgraceful, dishonourable or unprofessional. If these assumptions are incorrect, please advise me. My understanding with respect to this allegation is that the panel is concerned about the evidentiary basis for concluding that [RN D] abused the Client. The ASF does not expressly state that [RN D] abused the Client. However, the advice I provided above explains the basis on which the panel could infer that [RN D] deliberately inflicted acts of physical discomfort on the Client for the purpose of obtaining the Client s name. The panel could rely on those inferences and the published College standards that have been provided to you in concluding that such conduct is physical and/or emotional abuse. As to the implications of your finding with respect to [RN D], I can advise that any decision you make with respect to [the Member] is a finding against [the Member] only, and not a finding against any other member of the College (including [RN D]). In the event that [RN D] were to face allegations of professional misconduct at this College, the fact that this panel had concluded on the basis of an ASF that [the Member] had failed to

18 intervene in abuse inflicted by [RN D] will not be held against [RN D]. For legal purposes, it is a finding against this Member only. d) The allegation that the Member acted in an intimidating and/or threatening manner towards [the Client], which constituted a contravention of the standard of practice; verbal, physical or emotional abuse; and conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. I understand that this is a separate allegation from the allegation concerning the sternal rubs and other acts of physical discomfort. The Member has admitted that she made a number of comments and suggestions to [RN D] in the presence of [the Client], including: o suggesting changing the Attends that [the Client] was wearing; o suggesting they insert a catheter; o suggesting they might have to call the police; and o discussing the cutting of dreadlocks (which was the style of [the Client] s hair) (paragraph 20). The ASF contains the Member s explanations for two of those comments. Paragraph 21 of the ASF provides that if the Member were to testify, she would say that she raised the possibility of needing to call the police in light of [the Client] s apparent young age and that the discussion around the cutting of hair was in relation to the Member s experience with a friend having to cut her hair in order to remove dreadlocks. Paragraph 22 states that during this time the Member and [RN D] asked [the Client] for information about her identity. [The Client] was crying and did not respond to the Member and [RN D] s request for information (paragraph 23). In context, the words during this time must mean during the Member s comments about calling the police and the cutting of dreadlocks. During this time could also reasonably be interpreted to mean during the Member s comments about changing the Client s Attends and inserting a catheter as described in paragraph 20. In any event, the evidence in ASF is that the entire length of time that the Member was with the Client was ten minutes at the most ([RN A] went on break at 0230, [the charge nurse] asked the group of nurses to obtain the Client s name at 0300, the Member volunteered, the Member and [RN C] approached the Client, [RN C] left after about 30 seconds, the Member paged [RN D], the Member and [RN D] engaged with the Client as described in the ASF, the Member and [RN D] left the Client s room after failing to get the Client s name, and then [RN A] returned from her break at approximately 0310 to discover the Client crying and gasping). The evidence in the ASF shows that the events must have taken place over a relatively short time period. From the ASF, the panel could infer as follows:

19 o that there was no clinical purpose for the comments about changing the Client s Attends and/or inserting a catheter, and that the purpose of those comments was to encourage the Client to reveal her name; o that the Member knew or ought to have know[n] that the Client would perceive some or all of her comments about changing the Attends and inserting a catheter as threats that would be carried out if the Client failed to give her name; o that, even if the Member had a legitimate or clinical reason to make comments about calling the police and the cutting of dreadlocks, those comments were made in circumstances that were inappropriate and the Member knew or ought to have known they would have been perceived as a threat by the Client and an effort to intimidate her into providing her name. This is an example of how the panel could draw inferences from the ASF in order to fill in any gaps that are concerning to the panel. However, before the panel draws inferences from the facts set out in the ASF, my advice is that the panel should ensure that both parties to the proceeding, and particularly the Member, agree that the inferences the panel seeks to draw are proper ones. If the Member is not prepared to agree that the panel can draw negative inferences from the express facts set out in the ASF in the manner that I have proposed above (or in any other, similar manner that would permit the panel to conclude that the essential elements of each allegation had been made out), then my advice is that the panel should be concerned that the Member s admissions are equivocal and ambiguous. Either she is prepared to admit facts that would support the essential elements of the allegations, or she is not. 3. If the panel determines that the evidence is not sufficient for the panel to make findings of professional misconduct, then what orders can the panel make? If the Member is prepared to admit the essential elements of the allegations and particulars to which she has pleaded, the panel can accept her plea. If the panel is concerned that the evidence is not sufficient to make out the essential elements of the allegations being pleaded to, and the Member is not content for you to draw reasonable inferences necessary for you to be able to make findings of professional misconduct, then my advice is that the panel should refuse to accept the Member s plea and should instead direct that the Member is deemed to deny the allegations of professional misconduct. It is a fundamental principle that the panel can only rely on admissions by the Member that are clear, deliberate, unambiguous and unequivocal. [See Farbeh v. College of Pharmacists of British Columbia, 2011 BCSC 1617 (B.C.S.C.), rev d on other grounds (2013), 54 Admin L.R. (5th) 124 (C.A.)] If the Member is not prepared to admit to any facts that would substantiate the essential elements of the allegations, then the Member s plea does not meet this standard and must be rejected. I understand that the Member s counsel has proposed that if the panel is not satisfied that the evidence contained in the ASF is sufficient to substantiate the allegations of professional misconduct, the panel should direct that there be no findings of professional misconduct with