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Nurse's discipline hearing got ahead of a 'political hot potato'

It’s not surprising that Ontario’s nursing regulator recently held a disciplinary hearing for a nurse, even though she has resigned from the profession and is serving a life sentence for killing eight seniors, says Toronto litigator Richard Shekter.

“Notwithstanding that the result is a foregone conclusion, they want to be seen as basically getting ahead of the story and doing the right thing,” says Shekter, partner with Shekter Dychtenberg LLP. “This thing is a political hot potato.”

The College of Nurses of Ontario held a discipline hearing for Elizabeth Wettlaufer in late July, almost two months after the 50-year-old former nurse pleaded guilty to the first-degree murder of eight seniors in her care, attempted murder of four others and aggravated assault of two more people, all by way of drug overdoses.

The college’s disciplinary panel found her guilty of professional misconduct and revoked her licence, even though she had resigned 10 months earlier, reports Canadian Press.

“It’s not surprising that a discipline hearing was held with all of the public scrutiny this is getting,” Shekter tells AdvocateDaily.com. “And I’m sure there’s as much concern about potential civil liability so that the college doesn’t want to do anything that would be considered after the fact to be turning its back on this thing.”

The college has, since 1994, had the power to discipline members even if they have resigned, Shekter says.

It frequently holds such hearings to prevent delinquent nurses from being able to travel to another jurisdiction and start with a clean slate because their licence has not been suspended or revoked, he says.

When first notified in 2014 by Woodstock’s Caressant Care nursing home that Wettlaufer had been fired for a medication error, the college did not hold a formal investigation into her conduct.

The college’s lawyers have defended this decision, telling the media that the regulator had no way of knowing Wettlaufer’s dismissal was different from the 1,300 other firing notices it receives annually, The Toronto Star reports.

Shekter points out, however, that the nursing home did inform the college about substantive issues regarding the quality of Wettlaufer’s care and the medication errors she made.

“I think it may be too facile of the college to say, ‘Well, there was nothing in the way that it was reported that suggested that we had to undertake any kind of investigation,’” he says.

Although medication errors are regrettably common in hospitals and nursing homes, Wettlaufer’s case would seem to raise red flags because she had previously had several job suspensions for similar mistakes, he points out.

In Caressant’s termination letter to Wettlaufer, it described the error that got her fired as part of “a pattern of behaviours that are placing residents at risk,” The Toronto Star reports.

“You have an extensive disciplinary record for medication-related errors which includes numerous warnings as well as 1, 3 and two 5 day suspensions,” the termination letter says.

It's not clear, however, that had the college investigated it would have discovered that she was a killer, Shekter says. “That's the first question on everybody's mind. I don't know that it would have made a difference at all.”

The victims were elderly and the murders were spaced over several years, making them hard to detect, he says. “Until she confessed there was nobody that was able to connect the dots.”

Wettlaufer’s discipline history also raises questions about how she could move from one nursing home to another, Shekter says.

Less than a month after losing her job at Caressant, where she had murdered seven residents over seven years, she landed one at the Meadow Park nursing home in London, Ont. There she killed an eighth senior, the Star reports. She resigned from Meadow Park to be treated for drug and alcohol abuse and went on to try to kill two more patients at other residences.

The conduct of all the players will be under a legal microscope in a coming public inquiry into the case, headed by Justice Eileen Gillese, Shekter says.

The inquiry will look at the relevant documentation, such as internal employee files and internal college investigative files. “That’s where the paper will speak,” he says.

“We will find out during the inquiry just how extensive Wettlaufer’s problems were at the various institutions and what notifications were passed on,” he says.

The inquiry will look at what the evidence was at the home where she was fired, he says. “Was the home remiss, either failing to adequately supervise her or failing to report it adequately?”

We may also find out what kinds of references Wettlaufer took with her from the various homes where she worked. “You’ve got that institutional imperative where nursing home number one may have been reluctant to completely convey to nursing home number two, assuming references were sought, just how bad Wettlaufer was,” he says.

But at the end of the day the question will always be had the college investigated Wettlaufer in 2014, would her string of murders have been discovered earlier, he says.

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