TRANSCRIPT July 23

TRANSCRIPT July 23, 1997 - College of Nurses of Ontario vs. Marilyn Munro re: Kennedy complaint: Witness - Norma Johnston [ADDRESSES] A-0027

2 DISCIPLINE COMMITTEE OF THE

3 COLLEGE OF NURSES OF ONTARIO

8 PANEL:

11 ELIZABETH HAUGH, RN, The Chair

12 SHIRLEY DRAYTON, RN

13 JANISE JOHNSON, RN

14 YVONNE SLIVINSKI Public Representative

16 WARREN STANTON Public Representative

18 _____________________________

21 B E T W E E N:

24 THE COLLEGE OF NURSES OF ONTARIO

29 _ and _

34 MARILYN MUNRO

38 APPEARANCES:

41 NICK COLEMAN For the College of Nurses

43 PERRY BRODKIN For the Member

1 COLLEGE OF NURSES OF ONTARIO

2 DISCIPLINE COMMITTEE

7 Hearing for: MARILYN MUNRO, RN

8 pursuant to s. 38(1) of the Health

9 Professions Procedural Code of the

10 Nursing Act, 1991, S.O. 1991, c. 32,

11 as amended.

16 Held on: July 23, 1997

19 Present: Panel members of the Discipline Committee

22 ELIZABETH HAUGH, RN, The Chair

23 SHIRLEY DRAYTON, RN

24 JANISE JOHNSON, RN

25 YVONNE SLIVINSKI, Public Representative

26 WARREN STANTON, Public Representative

29 College of Nurses

30 Legal Counsel _ NICK COLEMAN

33 Defence Counsel _ PERRY BRODKIN

36 Verbatim Reporter _ Deanna Santedicola

1 TABLE OF CONTENTS

3 INDEX OF EXAMINATIONS:

4 NORMA AUDREY JOHNSTON: Sworn. ............ 6

5 EXAMINATION_IN_CHIEF BY MR. COLEMAN: ......... 7

6 CROSS_EXAMINATION BY MR. BRODKIN: ........... 53

7 RE_EXAMINATION BY MR. COLEMAN: ........... 114

8 QUESTIONS BY THE PANEL ............... 115

9 QUESTIONS ARISING FROM PANEL'S QUESTIONS BY

10 MR. BRODKIN ..................... 121

11 SUBMISSIONS RE SCHEDULING AND ORDER OF WITNESSES .. 124

15 REPORTER'S NOTE: Due to a Publication Ban ordered by the

16 Discipline Panel of the College of Nurses

17 of Ontario to protect the names of the

18 clients in this matter, their names have

19 been substituted for their initials

20 herein.

TABLE OF CONTENTS (Continued)

INDEX OF EXHIBITS

Page No.

2 EXHIBIT NO. 27: Two brochures of Comcare

3 (Canda) Ltd ................. 10

5 EXHIBIT NO. 28: Guidelines published by the

6 College of Nurses .............. 41

1 ___ Upon commencing at 9:00 a.m.:

2 THE CHAIR: Good morning. We are going to

3 reconvene. Good morning, Ms. Johnston.

4 THE WITNESS: Good morning.

5 THE CHAIR: My name is Liz Haugh, and I am

6 Chair of this Panel of the Discipline Committee of the

7 College of Nurses.

8 Have you been here before to give

9 testimony, or is this a new experience?

10 THE WITNESS: This is a new experience,

11 yes.

12 THE CHAIR: I'll just __ I'm sure you have

13 heard it before, but I'll just review the procedure for

14 you.

15 THE WITNESS: Thank you.

16 THE CHAIR: We ask that you speak as loudly

17 and as distinctly as slowly as you can. Your testimony

18 will be recorded by the verbatim reporter. In addition,

19 the panel will be writing down your words, okay?

20 THE WITNESS: Okay.

21 THE CHAIR: Mr. Coleman will go first and

22 then Mr. Brodkin, and then we'll go back to Mr. Coleman.

23 And then the panel will have questions and then likely

24 back to each counsel again, okay?

25 THE WITNESS: Okay.

1 THE CHAIR: Any questions?

2 THE WITNESS: No, not at this point.

3 THE CHAIR: Okay, great.

4 Is it your wish to be sworn on the Bible or

5 affirmed?

6 THE WITNESS: It makes no difference.

7 Sworn on the Bible is fine.

8 THE CHAIR: Okay.

9 NORMA AUDREY JOHNSTON: Sworn.

10 THE CHAIR: Thank you. Please consider

11 yourself under oath.

12 Mr. Coleman.

13 MR. COLEMAN: Thank you, Madam Chair.

14 As you know, Ms. Johnston is being put

15 forward as an expert in nursing practices by the College

16 in this matter, as an expert in nursing practices and

17 particularly an expert with respect to the practices of

18 nurses in community nursing agencies.

19 Now, in presenting Ms. Johnston's evidence

20 to you, we will proceed in the usual two_step process.

21 First, we will identify for you through her

22 evidence her qualifications as an expert and ask that she

23 be received by the panel as an expert qualified to give

24 expert evidence within the field of her expertise. And at

25 that point, if Mr. Brodkin has any objections or wishes

1 to cross_examine, he should do so.

2 And anticipating that the panel will

3 recognize Ms. Johnston's expertise and the assistance that

4 her evidence can provide to you, we will then go into the

5 merits of this case posed to her as hypothetical

6 situations for her comment.

7 So first we'll deal with the issue of

8 Ms. Johnston's expertise, and I would ask you and the

9 members of the panel and the witness to turn to the

10 documents at tab 6 at the book of exhibits, that is,

11 Exhibit 6.

12 And attached to Exhibit 6, if you would

13 turn to the last three pages, we will find Ms. Johnston's

14 CV. And I invite you to take just a moment to review the

15 CV for yourselves before we go through it in some detail.

16 THE CHAIR: Okay.

17 EXAMINATION_IN_CHIEF BY MR. COLEMAN:

18 Q. Ms. Johnston, I see from your CV that

19 you have been engaged in the practice of nursing since

20 1981; is that correct?

21 A. That is correct.

22 Q. And you are currently employed by

23 Comcare (Canada) Ltd.?

24 A. Yes.

25 Q. And if we look to your employment

1 background on page 1 of the CV, the first item there

2 indicates that you have been employed as the corporate

3 quality management director for Comcare (Canada) Ltd.,

4 Kingston and Toronto?

5 A. Corporate quality management director

6 and I __ my head office is Toronto. So being a corporate

7 staff person, I work from Toronto, but my home base is

8 Kingston, supporting all offices across Canada.

9 Q. Now, I wonder if perhaps we could

10 provide some background on Comcare (Canada) Ltd. i gather

11 it's a private nursing agency or privately owned nursing

12 agency; is that correct?

13 A. That's correct. It's a privately owned

14 nursing and home health care company that had been owned

15 by a family and has just recently been merged with another

16 home health care company. We had in Comcare (Canada) Ltd.

17 32 branches located across six provinces providing a range

18 of services, both professional and unregulated home

19 support nursing, both visits, shifts, clinics,

20 rehabilitation services __.

21 Q. You'll have to slow down a little bit.

22 A. Oh, Sorry.

23 MS. SLIVINSKI: I am up to six provinces.

24 BY MR. COLEMAN:

25 Q. Yes, I'll confess at this point that's

1 about as far as I got too.

2 A. Okay. 32 offices in six provinces. We

3 offer a range of services, both regulated and unregulated.

4 We have home support services. We have nursing services.

5 We have rehabilitation services. And the areas are

6 registered nurse, registered practical nurse,

7 physiotherapy, occupational therapy, as well as we are

8 just starting to go into speech pathology, social work.

9 A. And the unregulated is home support

10 work, health care aid. We do this both in long_term care

11 facilities, community agencies, private client homes and

12 in contract arrangements with government programs.

13 Q. Let's just hold up there so we can

14 catch up.

15 Q. Now, you mentioned that you operate in

16 six provinces. I gather that includes Ontario, Nova

17 Scotia, New Brunswick, Quebec, Alberta and British

18 Columbia?

19 A. That's correct.

20 Q. And I understand that with the recent

21 merger that you referred to, you have expanded from 32

22 branches in those six provinces to 43 branches; is that

23 correct?

24 A. That's correct.

25 Q. Perhaps we could share with the defence

1 and the members of the panel the two brochures that

2 describe Comcare.

3 THE CHAIR: Mr. Coleman, do you want this

4 as an exhibit?

5 MR. COLEMAN: I think we should mark the

6 two documents as exhibits, Madam Chair.

7 THE CHAIR: Mr. Brodkin?

8 MR. BRODKIN: That's fine. If I could just

9 be given an opportunity for one or two minutes to read the

10 documents?

11 THE CHAIR: Yes.

12 This will be number 26.

13 MR. COLEMAN: Is that the large one or are

14 you marking the two together?

15 THE CHAIR: I think we can do them both

16 together.

17 MR. COLEMAN: Okay.

18 THE CHAIR: Is this 27 or 26, Ms. Jacalan?

19 MR. COLEMAN: I have 27.

20 MS. JACALAN: 27.

21 THE CHAIR: 27, thanks.

22 EXHIBIT NO. 27: Two brochures of Comcare

23 (Canada) Ltd.

24 BY MR. COLEMAN:

25 Q. Now, I take it, Ms. Johnston, that in

1 outline form these two brochures describe the services

2 provided by Comcare, do they?

3 A. They give a general overview of the

4 services provided, yes.

5 Q. Now, I take it that in the course of

6 its business, Comcare engages in contract arrangements

7 with individual clients as well as government or community

8 agencies to provide nursing and other services?

9 A. That's correct.

10 Q. And do those contract arrangements

11 entail direct contact between the agency Comcare and the

12 individual clients?

13 A. Yes.

14 Q. Now, in terms of developing a

15 contractual arrangement for nursing services in a home

16 care setting with a private individual, could you perhaps

17 describe for us the steps that Comcare would go through in

18 setting up that arrangement?

19 A. Certainly.

20 A. Most often it is a call that is

21 received by the client or the client's family that has

22 been placed to Comcare.

23 A. At that point, they would be in contact

24 with one of our service coordinators. Preliminary

25 information would be taken as to what the request for

1 service was, whether it was home support or nursing

2 particularly.

3 A. At that time, once the details have

4 been obtained, the information is given to a nursing

5 supervisor or a team leader; we use either term, depending

6 on the branch. At that point, the team leader would make

7 an appointment to go and visit the client to do a clinical

8 assessment and to reaffirm that the needs that the client

9 had requested were truly the needs that they, from their

10 nursing background, felt that they needed. And they would

11 establish, if it was agreed to by the client, a plan of

12 care for that service.

13 A. There would be discussions during that

14 assessment period about who was going to take on the

15 various aspects of the plan of care, and that could be

16 nursing, other team members, and it could also include the

17 family themselves.

18 A. In addition, we would look at what

19 arrangements they had for payment. And should they feel

20 that they have the ability to access insurance, then that

21 would be something that we would certainly assist them in

22 verifying. And we thoroughly look into the insurance

23 policy for them to look at what their policy covers, any

24 limitations, any restrictions and the requirements that

25 the insurance company would have on us as a provider to

1 provide them with any information about the level of care

2 and the changes that may occur in the care plan and the

3 communication that would be required.

4 A. The client has the opportunity to

5 choose whether they will deal with the insurance company

6 themselves or whether they would prefer us to do direct

7 processing and providing them with detailed, itemized

8 invoices with their portion and the insurance portion

9 clearly marked.

10 Q. Just hold on there for a moment.

11 Q. Now, in terms of payment, I take it

12 that a variety of arrangements could be made for payment

13 that might involve OHIP or government funding, insurance

14 benefits and simply private payment by the client?

15 A. That's correct, and all of those

16 options are discussed with the client. They may be

17 eligible for funding through the Home Care Program or what

18 we are calling now the Community Care Access Centre, and

19 they may not be aware that they are eligible for that

20 funding.

21 A. So we certainly seek out community

22 resources that might be available to the client and

23 provide them with that information, and if it's the most

24 appropriate, then we would refer them on to the Home Care

25 Program for them to take on a case management role.

1 Q. Now, have you, in the course of your

2 employment with Comcare, been involved in the various

3 steps of this process that you have just described?

4 A. I have been involved in all of those

5 steps that have been described, including the direct care

6 delivery.

7 Q. Now, if we could perhaps review the

8 various positions that you have held with Comcare. If we

9 look at the CV, and as you have already indicated, from

10 September 1995 to the present you held the position of

11 corporate quality management director and Eastern Ontario

12 and Nova Scotia regional manager for Comcare?

13 A. With the exception of Nova Scotia, that

14 is presently my position. Just recently that position has

15 been, due to the restructuring, passed over to another

16 individual.

17 Q. Okay, so your responsibilities as Nova

18 Scotia regional manager have recently been assigned, so

19 that leaves you Eastern Ontario regional manager and

20 corporate quality management director for Comcare?

21 A. Yes.

22 Q. And I wonder if you could tell us in

23 summary fashion the nature of your responsibilities, first

24 as the corporate quality management director?

25 A. Sure. My responsibilities as the

1 corporate quality management director are to basically

2 direct the quality initiatives within the organization for

3 both the branch, the local branch level, as well as middle

4 management and corporate.

5 Q. And is this on a Canada_wide basis?

6 A. That's correct. And the quality

7 aspects are anything from the day_to_day operations and

8 how we provide our services through to strategic planning

9 based on quality improvement activities and data

10 collection. I act as a corporate resource to both the

11 local offices and the board of directors related to

12 quality aspects, practice issues and risk management

13 issues.

14 Q. Now, when you refer to "practice

15 issues", are you referring to nursing practice issues in

16 relation to professional standards?

17 A. Both unregulated and nursing. We do

18 have a separate consultant that we use for rehabilitation.

19 Q. Now, I take it that what you are

20 referring us to is identified on your CV as bullet point

21 number 5 __ or number 4 and number 5, is that correct, in

22 particular, with respect to practice issues and quality __

23 ?

24 A. It would start with bullet 1 and go to

25 bullet 4, as well as bullet 5, chair of the professional

1 advisory committee, my role in that committee is to

2 facilitate discussions around professional practice issues

3 in all disciplines.

4 A. Policy and procedure standards of

5 practice are looked at through this committee, and

6 recommendations are provided to the board of directors

7 related to these issues.

8 A. The issues themselves come to us from

9 both direct care staff as well as management and possibly

10 clients or incidents that have occurred that we need to

11 insure appropriate actions are put in place to prevent

12 them from occurring again.

13 A. Various position papers are developed

14 through this committee as well.

15 Q. Now, I think you have touched on your

16 responsibilities as corporate quality management director.

17 What about your responsibilities as a regional manager?

18 A. As a regional manager, I am responsible

19 to assist the local managers in those three branches, and

20 actually it sort of folds into the quality management as

21 well, in the day_to_day operations of the branch. Again,

22 that's dealing with anything from administrative issues

23 that may arise, through staffing, through direct care

24 services. It means visiting those sites and providing

25 reports to corporate on the performance of the office in

1 regards to all aspects of administration, service

2 delivery, human resources.

3 A. In addition to that, which is sort of

4 folded into my quality management position, is the

5 provision of sessions related to professional growth

6 within the organization; for example, sessions that I have

7 conducted on the role and responsibilities of a

8 supervisor, how to prepare proposals, those aspects

9 related to both risk management and quality management,

10 how to investigate incidents, how to verify, process

11 insurance, how to do insurance inquiries, relationship

12 building.

13 Q. Does your responsibility in that regard

14 entail discussions of professional standards issues?

15 A. Yes. In other words, if we know that

16 an insurance policy is stating that it's only RNs or RPNs

17 that can go in and our assessment is that the client may

18 not need that level, then our responsibility is to not

19 service them with that level, and counsel the client to

20 the fact that we don't see the need based on the care

21 components to put that level in.

22 A. And that would not be a decision that

23 we would make independently. That's a decision that is

24 made within the health care team, which would include the

25 physician, possibly the hospital if the hospital is

1 involved, and any other community agencies or

2 organizations.

3 A. And that particular statement is right

4 in our policy and is certainly communicated to all staff.

5 Q. And more generally, as the regional

6 manager, are you required to deal with professional

7 standards issues as they arise in the conduct of the

8 affairs of the offices under your responsibility?

9 A. Yes, and we work closely with the

10 individual who has addressed the concern, or if it's a

11 matter of just looking at general professional practice,

12 we work very closely with them to insure that they are

13 adhering to the standards.

14 Q. Okay. When you say "we", I gather that

15 the "we" includes yourself, does it?

16 A. That's correct. It is a team approach.

17 Q. Now, moving down your CV, I see that

18 between March of 1992 and September of 1995, you were the

19 director for Comcare in Kingston; is that correct?

20 A. Yes.

21 Q. And could you describe for us in

22 summary fashion your responsibilities as director?

23 A. It was sort of a transition period from

24 the time that I was taking on the responsibilities in

25 quality management but facilitating an opportunity for

1 another individual to take on the local office

2 responsibilities. So I certainly directed the branch and

3 dealt with all aspects of supervision at that point. It

4 was not necessarily as close of a hands_on position to the

5 day_to_day operations as being the office manager from

6 June '87 to March 1992.

7 Q. All right. Just to sort this out, what

8 branches does Comcare have in Eastern Ontario, first of

9 all?

10 A. Oshawa, Ottawa and Kingston is

11 determined as Eastern Ontario.

12 Q. And with respect to being a director

13 and office manager, I take it that you were __ that you

14 held those functions with respect to your branch in

15 Kingston only?

16 A. That's correct.

17 Q. Now, the next heading on your CV is

18 March 1992 to the present day, quality management

19 coordinator. I take it that your responsibilities as

20 quality management coordinator actually arose in I believe

21 that's 1992?

22 A. That's correct.

23 Q. And have continued to the present day

24 and have been merged with various other responsibilities

25 over that time?

1 A. Yes.

2 Q. And so some of the responsibilities you

3 have had are, for example, set out under the second bullet

4 point under that heading:

5 "Creation of Corporate and Local Policy and

6 Procedures Manuals, Working Group Facilitator, Proposal

7 Writing, Corporate Resource Person, Presentations and

8 Educational Sessions Related to Agency Operations and

9 Quality Issues"?

10 A. Yes. I am the key person responsible

11 for the development of all of Comcare's policies and

12 procedures and the preliminary review of local amendments

13 related to contractual obligations, and those contractual

14 obligations would be particularly with, for example, a

15 Home Care Program or a CCAC, as we would call them; or if

16 we are talking about a nursing practice, it may be a

17 particular protocol within a community that a hospital is

18 using that must be researched and determine whether we are

19 prepared to follow that protocol based on the principles

20 of how it's being conducted.

21 Q. And I take it from what you have told

22 us that quality management, the quality management

23 coordinator position requires you to consider and deal

24 with professional standards issues for nursing staff?

25 A. Yes.

1 Q. And the next point, June 1987 to March

2 of 1992, you were the office manager and regional

3 supervisor for Comcare in the Kingston and Brockville

4 area?

5 A. Yes.

6 Q. Could you describe in summary fashion

7 your responsibilities in that position?

8 A. I was responsible for overseeing the

9 day_to_day operations of a branch who had approximately

10 300 staff; of those staff, approximately 70 were regulated

11 and the others were unregulated.

12 Q. And of those 70 regulated staff, would

13 you recall how many would be RNs and RNAs?

14 A. The majority, I would say that probably

15 75 to 80 percent were registered nurses, and the remainder

16 were RNAs at that point, now RPNs.

17 A. The day_to_day operations entailed

18 overseeing, as I had said, both the field staff and office

19 staff, so there was a direct supervision component.

20 A. In addition to the fact that if for

21 some reason there was a time where a direct care staff was

22 unavailable to service a client, it may have meant that I

23 needed to go in and provide the direct care for a period

24 of time as a supervisor until a direct care staff could be

25 available.

1 Q. Were you involved as the office manager

2 with nursing assessments or assessments of services

3 required and contractual arrangements with private

4 clients?

5 A. Yes. During my time with the __ as the

6 office manager, I also was key in the development of a

7 start_up for a visiting nurse program specifically in the

8 area of home infusion therapy.

9 Q. What's home infusion therapy?

10 A. Intravenous therapy, which was anything

11 from heparin locks, accessing ports, central lines, to the

12 peripheral hydration antibiotic therapy.

13 A. In that period of time, I also

14 developed a palliative care course for Comcare, which was

15 broken down into sections for both regulated and

16 unregulated staff, and it was during that time as well

17 that I developed the supervisor orientation and training

18 manual.

19 Q. Now, in the course of your

20 responsibilities in the various positions you have held

21 with Comcare, have you had occasion to have discussions

22 with members of the nursing profession regarding

23 standards, including what members would reasonably regard

24 as disgraceful, dishonourable, unprofessional conduct?

25 A. Yes. I have had experience in dealing

1 with specific situations, as well as consulting with the

2 College on particular hypothetical situations for

3 interpretation.

4 Q. Now, given that Comcare is a private

5 agency, have you had occasion in the course of your

6 responsibilities with Comcare to consider and discuss

7 professional standards of nursing in the context of the

8 practice of nursing as a business?

9 A. Yes. Part of the Professional Advisory

10 Committee is to make recommendations based on that, and

11 those are the position papers that I referred to that were

12 developed, particularly position papers that deal with

13 conflict of interest, philosophy, nursing philosophy,

14 models of service delivery and how they impact business.

15 Q. Now, I see moving on on your CV down to

16 the bottom of the first page there that, aside from your

17 work for Comcare as a private agency providing community

18 and private home care, you have also been employed as an

19 RN at Kingston General Hospital?

20 A. That's correct, and that period of time

21 actually overlapped, because I felt during the period that

22 when I first started with Comcare and I continued with

23 other opportunities that I needed to maintain my clinical

24 skills for the direct care services that were being

25 rendered and to certainly keep myself competent in the

1 background for these procedures.

2 Q. And turning to the next page, you

3 worked as a staff nurse at Kingston General Hospital on a

4 full_time basis from September of 1981 to June of 1987; is

5 that correct?

6 A. That's correct.

7 Q. And finally, I see that for the period

8 1979 to 1981 you worked as the relief night manager for

9 the Reitmans Store in Kingston?

10 A. Yes, that was a clothing store, a

11 business.

12 Q. Now, in terms of educational

13 background, and perhaps in this section we'll work from

14 the bottom up here, you are a graduate of a secondary

15 school in Kingston?

16 A. Yes.

17 Q. And you completed the Diploma Nurse

18 Program at St. Lawrence College in Kingston during the

19 years 1979 to 1981?

20 A. That's correct.

21 Q. And in addition to that, you have

22 completed the Nursing Unit Administration Diploma during

23 the years 1984 to 1985 by correspondence; is that correct?

24 A. It's actually, although it says

25 "diploma", it is a certificate.

1 Q. Certificate, okay. And that was a

2 certificate that you obtained by way of correspondence

3 courses put together by the Ontario Hospital Association

4 in conjunction with Ottawa University?

5 A. That's correct.

6 Q. And I take it as well that between

7 November 1992 and present you have taken part in various

8 educational conferences; is that correct?

9 A. That's correct.

10 Q. And you have listed under the bullet

11 points the various programs that you have attended that

12 have an educational component?

13 A. Those are the educational components

14 related to my path in quality management.

15 Q. Now, I see on the next heading on page

16 2 of your CV, "Volunteer Activities, September 1987 to

17 October 1993", that you have engaged in various volunteer

18 activities; I see for one as a volunteer nurse at the

19 Hospice in Kingston?

20 A. That's correct. In that position I did

21 coordination of care for patients and their families who

22 were terminally ill. It was again going in and conducting

23 actual visits, doing assessments for those clients and

24 rendering the services as required on a volunteer basis,

25 and supervising the other services that may go in, that

1 may have been in conjunction with a government program or

2 it may have been strictly private pay.

3 Q. Now, I see as well that on a volunteer

4 basis you have been involved in various planning

5 committees for conferences. In particular, are there

6 conferences that you have been involved with on a

7 volunteer basis that have focussed on provision of

8 professional nursing services in the agency nurse and

9 business context?

10 A. Certainly the "Elder Abuse" Conference

11 that is written down there was dealing with the

12 responsibilities of professional staff related to __ and

13 it wasn't __ it was stemmed out of elder abuse, but it was

14 abuse generally and the definition of what "abuse" is.

15 A. From that committee, the Task Force for

16 Elder Abuse for the Kingston area was formed and I chaired

17 that committee.

18 A. The "Making It to Tomorrow" Conference

19 was a conference again that I was involved in co_chairing

20 with the St. Lawrence College (St. Laurent) Health and

21 Nursing Advisory Committee, which I was a member of, and

22 "Making It to Tomorrow" dealt with nursing aspects related

23 to grief and bereavement in various situations.

24 Q. Now, what can you tell us about your

25 involvement with the Steering Committee for Development of

1 Core National Standards for Home Care?

2 A. The Steering Committee for Core

3 National Standards for Home Care was a subcommittee from

4 the Canadian Council of Health Services Accreditation.

5 Q. The Canadian __ ?

6 A. CCHSA, The Canadian Council of Health

7 Services Accreditation.

8 Q. And what is that organization, just __

9 ?

10 A. It's a non_profit organization who

11 conducts the accreditation for health care services in

12 Canada, the body that would accredit or survey an award

13 accreditation to hospitals, community agencies __.

14 Q. I see.

15 A. __ Long_term care facilities.

16 Q. All right, this is accreditation of

17 facilities or agencies or companies as opposed to

18 accreditation of individuals?

19 A. Yes, that's correct. That was in

20 partnership with the Canadian Home Care Association and

21 what we would have called Home Support Canada, which is

22 now the Canadian Association for __ I can't remember the

23 actual title now because it's changed. It's basically a

24 home support association nationally. They joined together

25 to develop home care standards that would be relevant to

1 both government programs as well as home health care

2 agencies, respiratory therapy companies that deal with all

3 aspects of their service delivery and business.

4 Q. All right. And what's your involvement

5 been with the Steering Committee for the Development of

6 Core National Standards?

7 A. The __ my involvement has been, one,

8 first of all, assisting in the development of those

9 standards and identifying the criteria and the tools for

10 measurement, as well as Comcare was selected after

11 volunteering to pilot those standards in the fall of last

12 year.

13 Q. And do those standards include

14 standards touching on the professional conduct of nurses,

15 nursing staff?

16 A. They talk about the business aspects

17 and the administrative aspects in providing professional

18 services through your organization.

19 Q. And So again, it's the interaction

20 between professional standards and business practices that

21 you are referring to?

22 A. Correct.

23 Q. And the final item there on page 2, the

24 Standards Committee for Development of Provincial

25 Standards for Ontario Home Health Care Providers. Can you

1 describe your responsibilities and/or your involvement

2 with that standards committee?

3 A. I am the chair of the Standards

4 Committee for the Ontario Home Health Care Providers

5 Association, which is an association for proprietary

6 organizations within Ontario for profit organizations

7 delivering home health care services.

8 A. My responsibility as chair was to

9 assist in the development of standards related to the

10 delivery of home health care services in Ontario, and

11 again, developing the standards, identifying the criteria

12 and the tools for measurement.

13 Q. And I take it the standards that you

14 are referring to are voluntary standards __?

15 A. Yes.

16 Q. __ That would be assumed by the members

17 of that organization?

18 A. When an organization actually joins the

19 association, they are provided with those standards so

20 that they have an opportunity to reference those standards

21 against their current operations and evaluate them.

22 A. We are at this point looking at how we

23 would start putting a more meaningful process in place for

24 our members in evaluating how much they have met those

25 standards or how well they have met those standards.

1 Q. And then turning over to the third

2 page, I see that you have listed a number of current

3 memberships. You were on the St. Lawrence College Health

4 and Nursing Advisory Committee?

5 A. Yes.

6 Q. And what did that entail?

7 A. It entailed __ Comcare (Canada) Ltd. in

8 Kingston provides nursing experience to both RNs and RPNs

9 for part of their community hands_on experience, so part

10 of my responsibility is to sit on that committee along

11 with designates from the Kingston office to look at

12 current issues that may arise through those particular

13 experiences that the students have and practice issues

14 that we need to deal with, looking at current trends

15 within the community as far as health care needs and those

16 related to human resource responsibilities and human

17 resource needs.

18 Q. The next membership you have listed

19 here is Coordinators of Continuing Care Committee. Can

20 you tell us what that is about?

21 A. It again is certainly a local Kingston

22 committee. That particular committee is represented by

23 all hospital and community_based health organizations in

24 the Kingston and surrounding area, taking in Gananoque,

25 Napanee, Deseronto, so the surrounding area as well.

1 A. It's a meeting where we discuss such

2 things as the continuum of care, placement

3 coordination. We discuss such things as health education

4 to the community, and it was through this committee that

5 the elder abuse conference was the brainchild from.

6 Q. And I see you are a member of the

7 Registered Nursing Association of Ontario?

8 A. That's correct.

9 Q. And of the College of Nurses of

10 Ontario?

11 A. Yes.

12 Q. You refer to the Elder Abuse Task Force

13 Steering Committee. I take it that that was the committee

14 that staged the conference that you have described for us?

15 A. Staged the conference and has now

16 operationalized the elder abuse protocols within the

17 network of community agencies in Kingston.

18 Q. And you have various other memberships

19 there, the Canadian Association for Quality in Health

20 Care?

21 A. Yes.

22 Q. Is that a membership other than what

23 you have described for us to this point?

24 A. It's a membership in looking at quality

25 aspects nationally in Canada, so what is __ it looks more

1 at operations and some practice issues.

2 Q. And does the Toronto Association for

3 Quality in Health Care operate in the same fashion but

4 with respect to Toronto issues?

5 A. It has just recently folded, but it was

6 a chapter of the Canadian association.

7 Q. And I see next that you were the

8 Ontario Home Health Care Providers Association

9 vice_president; is that correct?

10 A. Currently.

11 Q. Oh, you are currently the

12 vice_president, okay, and you have described for us the

13 nature of the association and your work with it.

14 A. Yes.

15 Q. And as well, the Canadian Home Care

16 Association, have you described for us your involvement

17 with those two associations?

18 A. My involvement in the Canadian Home

19 Care Association is involved with the development of the

20 standards nationally, the core national standards, and to

21 attend their conferences and to certainly review their

22 newsletters and any other particular documents related to

23 home care.

24 A. In addition, any requests that may come

25 in from the Canadian Home Care Association related to

1 practice, whether it's regulated or unregulated, those

2 requests come to myself to disseminate information related

3 to our operations and how we have formed a policy.

4 Q. That's with respect to nursing

5 practice __ or nursing and other practice issues?

6 A. Nursing and other, yes.

7 Q. And I see as well that you have listed

8 here membership in Home Support Canada. What is that

9 organization?

10 A. That organization is again a national

11 organization. Its name has changed. It's the Canadian

12 association of something, I can't remember how they have

13 put it, but basically it's an association that represents

14 home support services in Canada.

15 Q. Now, finally, touching on past

16 memberships, you have listed here that you were the

17 Clinical Preceptor of the Preceptorship Program of Queen's

18 University, School of Nursing. Can you describe what your

19 responsibilities were as a Clinical Preceptor?

20 A. Yes. I was one of a number of clinical

21 preceptors. My responsibility was to take __ I was

22 assigned a third_year student for Queen's University in

23 nursing and to have that person shadow me for a period of

24 two months. And my responsibilities were to deal with

25 educating and certainly mentoring this individual in

1 nursing practice, and that was in an acute care __ my

2 acute care experience at Kingston General Hospital.

3 Q. And did you have occasion while working

4 as the Clinical Preceptor to discuss issues of

5 professional standards and professional misconduct?

6 A. Yes.

7 Q. The Total Patient Care Education

8 Committee of Kingston General Hospital is listed as a past

9 membership. Can you describe your association with that

10 committee, please?

11 A. When I was working at Kingston General

12 Hospital, they decided that they would move to a total

13 patient care model, and so I was selected to sit on that

14 committee and to work with the various floors or units in

15 implementing that model.

16 Q. What is the total patient care model?

17 A. The total patient care model is looking

18 at the total care of a client, and you would have a group

19 of maybe five patients and you were responsible for the

20 overall care of those clients. It was not task_related.

21 It was certainly total client focussed, as opposed to

22 having a medication nurse and a __ the various tasks that

23 were there.

24 MR. COLEMAN: All right. I would ask at

25 this point that Ms. Johnston be recognized as an expert in

1 nursing practices and especially nursing practices as

2 conducted by community and home care nursing agencies.

3 THE CHAIR: Thank you, Mr. Coleman.

4 Mr. Brodkin.

5 MR. BRODKIN: That's fine.

6 THE CHAIR: You accept that?

7 MR. BRODKIN: I accept that.

8 BY MR. COLEMAN:

9 Q. Now, I would ask you then,

10 Ms. Johnston, to turn to the hypotheticals, the

11 hypothetical situation number one, which should be before

12 you, I believe it is.

13 Q. It can be found at Exhibit 6, tab 6 of

14 the Book of Exhibits. It's entitled "Hypothetical

15 Situation #1", and if we could just pause for a moment

16 while the panel members take the opportunity to read the

17 hypotheticals.

18 Q. The first issue I would like to ask you

19 about, Ms. Johnston, with respect to the hypothetical

20 situations, is the issue of conflict of interest.

21 Q. Can you tell us or describe for us what

22 role, if any, a nurse may play as an advocate for a client

23 in a home care situation?

24 A. In an in_home care situation?

25 Q. In a home care situation or a community

1 care situation.

2 A. As a direct care provider, the role of

3 advocacy is part of the direct care services. The

4 responsibility of the nurse in that aspect is to insure

5 that the client's rights are upheld and that they have the

6 opportunity for informed consent, informed

7 decision_making, and that they have the client's best

8 interest __ and when I say "client", it's

9 patient/client __ upheld during the delivery of services

10 and their relationship. It doesn't include legal

11 consultation.

12 Q. Now, more specifically, you had

13 referred to, in describing your experience with Comcare,

14 involvement with clients who had insurance policies and

15 inquiries that might be made about insurance policies?

16 A. Uhm_hmm.

17 Q. I wonder if you could expand on that

18 somewhat with respect to the nurse's role as advocate for

19 the client with respect to insurance matters?

20 A. This __ the role of the nurse in

21 insurance matters could be one of the direct care provider

22 or the supervisor/administrator.

23 A. And those responsibilities, first of

24 all, entail assisting the client to verify the policy

25 itself, looking at what the coverage is, assessing whether

1 there is any restrictions, limitations, looking at a plan

2 of care that will meet the needs of the client, seeking

3 out how the client wants the __ .

4 MS. SLIVINSKI: Could you just slow down.

5 THE WITNESS: Sorry.

6 BY MR. COLEMAN:

7 Q. So you have covered verify the policy,

8 determine the coverage and restrictions and limitations on

9 the insurance policy, develop a plan of care for the

10 client. And what would follow from that?

11 A. In addition to those elements, you

12 would also develop or determine the communications that

13 are required for additional follow_up with the insurance

14 company. It's not unusual for an insurance company to ask

15 for monthly reports or weekly reports every six months,

16 depending upon the policy and as well the client's

17 condition.

18 A. They may require that it be filled out

19 by a physician, in which the role would be more of

20 coordination with the physician, or they may require the

21 nurse to communicate those particular care changes or care

22 needs directly. Those are typically coordinated through a

23 supervisor or administrator.

24 A. The plan of care, recognizing the

25 restrictions and limitations, needs to be discussed with

1 the client so that __ or the client's family so that it is

2 clearly understood as to the care requirements, any

3 restrictions that may be in the policy and the role that

4 the individual client's caregiver will play in the plan of

5 care, as well as any other team members that may be

6 outside of the particular nursing agency. We may be only

7 one of a number of providers in that home.

8 Q. And other health care providers could

9 include the physicians or home care support?

10 A. Correct. And again, our responsibility

11 is to promote the independence of the client to the

12 optimum level of functioning, recognizing their care

13 needs.

14 Q. Now, you have described for us the role

15 of the nurse as advocate in health care in home care

16 service settings. Can you tell us how the nurse would and

17 should be remunerated for such advocacy assistance?

18 A. How the nurse should be remunerated?

19 Q. Or how would the nurse or the nursing

20 agency be remunerated for those activities?

21 A. The __ if you are talking about the

22 advocacy service, which is part and parcel of the plan of

23 care of service, which it is, it is usually a per_hour or

24 per_visit rate.

25 Q. And would the advocacy function that

1 you have described be included in the charge for nursing

2 services?

3 A. Yes.

4 Q. And would those advocacy_related

5 services be charged at the same rate and according to the

6 same arrangement as the nursing care services?

7 A. It's part and parcel. It's a totality

8 of service.

9 Q. Now, if we go back to the hypothetical,

10 we have the situation that's set out in particular in

11 paragraph 5, which refers to an arrangement by which

12 advocacy services or consultation fees are charged above

13 and beyond the nursing services at the rate set out there,

14 $125 an hour with a minimum of 15 hours per week to

15 continue without interruption until termination.

16 Q. Can you tell us if this would give rise

17 to a conflict of interest situation and, if so, why?

18 A. In my opinion, it would give rise to a

19 conflict of interest because the advocacy service that is,

20 one, being looked at separate from the overall plan of

21 care for the client and client's family, and the fact that

22 if the advocacy services are required, then there is a

23 conflict when the individual may gain or benefit

24 financially from the advocacy that is being conducted.

25 There is a true conflict of interest.

1 Q. Now, the conflict there, does it arise

2 from the separate arrangement in charging for an advocacy

3 service that should be included in the regular charges for

4 nursing services?

5 A. Yes.

6 Q. And would you assume then, if there was

7 a separate charge for these advocacy services, that those

8 advocacy services would then not be provided in the

9 context of the arrangement for nursing services?

10 A. It could be perceived that advocacy is

11 not part of the totality of care and it is. The nurse is

12 responsible to advocate on behalf of a client.

13 Q. Now, what comment can you provide to us

14 regarding the use of a nurse_client relationship

15 apparently for commercial gain?

16 A. The nurse_client relationship in

17 respect to commercial gain is an issue when the member

18 will have a gain from the services that could put the

19 person in a conflict of interest.

20 A. So in other words, in this situation,

21 if the advocacy services are being billed separately and

22 the outcome of the advocacy could gain financial benefit

23 for both the client and the member, that becomes a

24 conflict of interest. The member needs to withdraw either

25 the service or the advocacy. And recognizing that the

1 nurse has a responsibility to continue to offer service,

2 advocacy should be passed over and discussed with other

3 health care team members outside of the agency.

4 Q. And I take it what you are referring to

5 is advocacy beyond what the nurse would be expected to do

6 in the course of her nursing responsibilities?

7 A. That's correct.

8 Q. Now, I wonder if I could refer you to

9 the Guidelines that are published by the College of

10 Nurses.

11 Q. I think, Jackie, you have some copies

12 there that we might pass around.

13 THE CHAIR: Mr. Coleman, do you want this

14 entered as an exhibit?

15 MR. COLEMAN: I would like to have this

16 entered as an exhibit, if I may, Madam Chair.

17 THE CHAIR: Mr. Brodkin.

18 MR. BRODKIN: That's fine.

19 THE CHAIR: No objections?

20 MR. BRODKIN: No objections.

21 THE CHAIR: That will be Exhibit 28.

22 EXHIBIT NO. 28: Guidelines published by

23 the College of Nurses.

24 BY MR. COLEMAN:

25 Q. I wonder if you could turn to page 44

1 of the Guidelines, to part 9 dealing with "Conflict of

2 Interest".

3 Q. First of all, I note that these

4 particular Guidelines, Ms. Johnston, were published in

5 February of 1995. I take it you are familiar with these

6 Guidelines, are you?

7 A. Yes, I am.

8 Q. And is it your understanding that the

9 Guidelines created new standards, or are they reflective

10 of standards that pre_existed the actual publication of

11 these guidelines?

12 A. Those standards pre_existed prior to

13 the Guidelines. It's my opinion that what the Guidelines

14 have done is give a little more description, but they have

15 all been pre_existing to this document.

16 Q. Now, if we turn to the bottom of page

17 44, "Conflict of Interest", under the point there at 26,

18 "Practising the profession while the member is in a

19 conflict of interest", the "Discussion":

20 "Nurses should ensure that their

21 registration status is not used to promote other personal

22 interests, such as commercial products or services."

23 Can you tell us, is it your view that

24 negotiating or having an arrangement by which charges are

25 made for advocacy services separately from charges for

1 nursing services, does that raise this spectre of using

2 registration status to promote other commercial interests?

3 A. Yes, it does.

4 Q. And the discussion goes on:

5 "Nurses should declare any financial or

6 other interest in organizations that provide goods and

7 services and should not put themselves in situations where

8 their nurse/client relationship may be used to influence

9 or may be perceived as an advantage to the nurse to gain

10 some commercial benefit."

11 In your opinion, do the circumstances

12 regarding the arrangement for advocacy services or

13 consultation fees in the hypothetical raise the spectre

14 that the member may have placed herself in a situation

15 where the nurse_client relationship was used to influence

16 or may be perceived as an advantage to gain some

17 commercial benefit?

18 A. That's correct. It's the nurse's

19 responsibility to maintain that __ those boundaries, to

20 understand and recognize that the client is in a

21 vulnerable state, and they are responsible for insuring

22 that it is a therapeutic relationship and that therapeutic

23 relationship is not compromised.

24 Q. Now, you refer to the client being in a

25 vulnerable state. Can you describe for us what makes the

1 client vulnerable in the nurse_client relationship?

2 A. The client or the client's family is in

3 a vulnerable relationship by the fact that their knowledge

4 is __ may or may not be, of health care, as great.

5 A. Home health care typically, any service

6 is better than no service, so recognizing that there is

7 caregiver stress.

8 A. The nurse provides health care

9 information that the client or family may not have the

10 advantage of knowing any other options, so again, there is

11 that __ a power imbalance, recognizing that the nurse may

12 be in a position of power or perceived power.

13 Q. Does the health condition of the client

14 or the patient contribute to the vulnerability of the

15 client?

16 A. Yes, and it also certainly contributes

17 to the vulnerability of the client's family as well in

18 both aspects.

19 Q. Now, in your opinion, is the client

20 less vulnerable if that client happens to have financial

21 resources rather than being poor and destitute?

22 A. No, the client is not less vulnerable.

23 In fact, I would question that maybe they are a little

24 more vulnerable to exploitation because it may be

25 perceived that they have the ability to pay more than

1 someone else, so it's not universal access.

2 Q. Now, the reference in the standard, at

3 least for the period following 1994, is "practising the

4 profession while the member is in a conflict of

5 interest." Is a member practising the profession if she

6 is operating as the owner or operator or director of a

7 community health care agency?

8 A. Yes.

9 Q. Now, let me ask you in summary form

10 then, in your opinion, do the circumstances described in

11 hypothetical situation number 1 constitute a conflict of

12 interest for the member?

13 A. Yes, they do constitute a conflict of

14 interest. If the member, first of all, is an owner or

15 operator of an organization and has the ability to

16 financially benefit from the situation that is placed here

17 with the advocacy role separate from a direct delivery of

18 care, that is a conflict of interest.

19 Q. Now, in the hypothetical, the

20 hypothetical facts set out in paragraph 6 refer to a

21 billing of $60,000 for 32 weeks of advocacy services and

22 then a further billing of $60,000 for the subsequent

23 32_week period.

24 Q. Would it make any difference to your

25 opinion regarding this assessment of conflict of interest

1 if in fact the client was not billed for the second __ for

2 the subsequent 32_week period and therefore was only

3 billed $60,000 rather than $120,000?

4 A. It's irrelevant.

5 Q. Now, next I would like to ask you about

6 whether members would reasonably regard the member's

7 conduct as set out in the hypothetical facts, whether that

8 would be regarded by members reasonably as disgraceful,

9 dishonourable or unprofessional conduct.

10 Q. And perhaps before I get that

11 assessment from you, I wonder if I could ask you to turn

12 to some of the documents attached to the hypothetical

13 regarding the terms of the arrangement for advocacy

14 services.

15 Q. If you could turn first to Appendix

16 "A". Do you see the indented paragraph in approximately

17 the middle of that correspondence with respect to an

18 hourly rate of $125, minimum hours per week 15, weeks to

19 continue without interruption until termination and

20 payment to be made immediately upon request. There is

21 also a paragraph here dealing with the on_call service at

22 $50 per day.

23 Q. Maybe you could comment on that first.

24 Is that an appropriate charge in itself?

25 A. No, that is an inappropriate charge.

1 On_call service is the ability to provide service to a

2 client 24 hours a day. It is part and parcel of the

3 charge that would be given hourly or per visit.

4 A. If a nurse __ the fact that a nurse

5 might be required to go into the home based on the fact

6 that they have been called in could be then billed as

7 direct service for the fact that they have actually

8 delivered the service, but the responsibility of on_call

9 should be again inclusive in the rate of service.

10 Q. Going back then to the terms with

11 respect to the advocacy services, what comment do you

12 have, for example, on the provision here that minimum

13 hours per week is 15?

14 A. Inappropriate to have blocked hours. I

15 have __ from looking at this particular document, it's a

16 minimum hours per week that's identified, and it's

17 inappropriate to bill block funding, blocked time __.

18 Q. And why is __ ?

19 A. __ For an undetermined period of time.

20 Q. And why is it inappropriate?

21 A. We have no idea whether this is

22 over_service or under_service. It doesn't necessarily

23 estimate the accuracy of the service that has been

24 delivered, which again could potentially create problems

25 in how much would be required later to be billed or how

1 much would need to be discounted. It's inappropriate to

2 bill in blocked periods. I have no idea what service is

3 for this period.

4 Q. And I take it it raises the prospect

5 that billing may be __ that the client may be billed even

6 though __?

7 A. Regardless of the amount.

8 Q. __ No work was done?

9 A. That's correct.

10 Q. Now, what can you tell us about the fee

11 structure of $125 per hour and a minimum 15 hours per

12 week? How does that compare to charges for nursing

13 services?

14 A. Extremely high.

15 Q. In the course of your employment with

16 Comcare, are you familiar with or have you conducted

17 client assessments that are done before nursing services

18 are provided or done separately and distinct from nursing

19 services?

20 A. Yes. We have various ways of doing the

21 nursing assessment or have been asked by various

22 organizations and clients to do assessments. For example,

23 it's not unusual for Comcare to be asked to go in and to

24 conduct a nursing assessment where another provider is

25 providing the service to insure that the plan of care is

1 appropriate from an insurance perspective.

2 A. And vice versa. We don't necessarily,

3 from an insurance perspective, verify the accuracy of our

4 own service, and we would certainly invite and encourage

5 another organization to come in and assess that the level

6 of care and the services being rendered have been assessed

7 appropriately by Comcare.

8 Q. And how would Comcare charge or be

9 charged for such an assessment service?

10 A. Comcare would charge per visit, and

11 that could be anything up to 4 hours.

12 Q. Again, how much would you charge for

13 that service?

14 A. I can speak anywhere from a range of

15 $30 per visit to 39 per visit.

16 Q. Now, is that in terms of an hourly

17 rate?

18 A. No, that's per visit.

19 Q. That's per visit, okay.

20 A. If it was hourly, it would be in the

21 range of 25 to 30. Again, I am looking at geographical

22 range across Ontario.

23 Q. Now, in your assessment of the

24 circumstances set out in the hypothetical regarding the

25 charges for these advocacy services, is the vulnerability

1 of the client a relevant factor?

2 A. Yes. Again, the client may not be

3 aware of what is appropriate rates for advocacy service or

4 what it truly entails. So the vulnerability of the client

5 is the lack of knowledge and the fact that if a service is

6 currently in there, they may accede to the options that

7 have been given to them whether they are aware that there

8 are other options or not. So they are in a vulnerable

9 position.

10 Q. Now, if a client is having difficulties

11 both securing appropriate health care for a loved one who

12 has serious disabilities and having difficulties with the

13 insurance company obtaining the appropriate coverage, does

14 that contribute to the vulnerability of the client with

15 respect to an arrangement such as described in the

16 hypothetical?

17 A. It absolutely does, and this is quite

18 common to occur. And the responsibility of the nurse is

19 to, again, recognize that vulnerability and not to place

20 himself or herself in a position where the therapeutic

21 relationship has been compromised.

22 THE CHAIR: Excuse me, Mr. Coleman, we'll

23 be thinking of a mid_morning break any time you are ready.

24 MR. COLEMAN: I think I am perhaps going to

25 be only another five or ten minutes or so, Madam Chair.

1 If it makes sense to __ .

2 THE CHAIR: That's fine.

3 BY MR. COLEMAN:

4 Q. All right. Now, let me ask you this.

5 With respect to the arrangement set out in the

6 hypothetical for charging for advocacy services, in your

7 assessment is that arrangement relevant to the performance

8 of nursing services in the sense that is it conduct that

9 is relevant to the performance of nursing services?

10 A. The advocacy service relevant __ .

11 Q. The arrangement that is described in

12 the hypothetical for advocacy services, in the context and

13 circumstances set out in the hypothetical, is that conduct

14 that you would __ or misconduct that you would

15 characterize as relevant to the performance of nursing

16 services?

17 A. Yes, it is. It is misconduct.

18 Q. And using the language of the statutory

19 regime after 1994, is it misconduct that would be relevant

20 to the practice of nursing?

21 A. Yes, it is.

22 Q. And I think you have tipped your hand

23 here, but in terms of your assessment of the conduct of

24 the member as described in the hypothetical, is this

25 conduct that would reasonably be regarded by members as

1 disgraceful, dishonourable or unprofessional?

2 A. Yes, it is.

3 Q. Now, again, let me review with you a

4 couple of possible hypothetical variables, and that is, as

5 I have indicated previously, if in fact the client was

6 billed only for $60,000 for 32 weeks of advocacy services

7 rather than $120,000 for 64 weeks of advocacy services,

8 would your opinion regarding this misconduct be any

9 different?

10 A. No, my opinion would not change.

11 Q. And finally, let me ask you, in your

12 opinion would the professional misconduct be any more or

13 less serious if it turns out that the client did not in

14 fact agree to these charges for consultation fees but

15 believed, when paying the $60,000, was paying for nursing

16 services?

17 A. That would be even more serious.

18 MR. COLEMAN: Those are my questions, Madam

19 Chair.

20 THE CHAIR: Thank you, Mr. Coleman.

21 We'll take a fifteen_minute break and be

22 back shortly after 11:00.

23 (RECESS TAKEN.)

24 THE CHAIR: Thank you. And, Mr. Brodkin,

25 your cross_examination.

1 CROSS_EXAMINATION BY MR. BRODKIN:

2 Q. Thank you. Ms. Johnston, you testified

3 that Comcare recently merged with another home health care

4 company. Could you be a little bit more specific, if you

5 can be, about when they recently merged?

6 A. The notice of merger was the 2nd of

7 June, 1997. Phase 2 of that merger was to be completed

8 yesterday, and I have not heard the outcome that the final

9 stage has been completed.

10 Q. What is the name of the company that

11 Comcare has recently merged with?

12 A. Med_Plus Care.

13 Q. Does Med_Plus Care carry on business in

14 the province of Ontario?

15 A. Yes, it does.

16 Q. Does it carry on business in northern

17 Ontario?

18 A. It does not have offices __ well, what

19 do you consider northern Ontario?

20 Q. Well, I believe the definition in the

21 law in this province is something above the French River,

22 wherever the French River is.

23 A. They do not have offices beyond western

24 Ontario and we have an office in Thunder Bay.

25 Q. And to your knowledge, does Med_Plus

1 Care have any plans to expand into northern Ontario beyond

2 Thunder Bay?

3 A. I have __ I know that the strategic

4 plan has not been discussed yet, and it is not my

5 knowledge that it is prepared yet. So expansion is not __

6 I am not sure of expansion at this point.

7 Q. Now, how many branch offices does

8 Comcare have across Canada?

9 A. We have 32 offices across Canada.

10 Q. I note that in your curriculum vitae

11 there are two references to branch offices across Canada.

12 Towards the top of your curriculum vitae, there is a

13 reference to 32 branch offices across Canada. In the

14 middle of your curriculum vitae there is a reference to 34

15 branch offices across Canada.

16 A. That's correct. There were offices

17 that had been closed for various reasons, one in

18 Newfoundland and one in Brockville.

19 Q. With respect to your testifying here

20 today, have you dealt with anyone at Comcare other than

21 yourself with respect to your testifying here today? And

22 I guess I'll put it this way. Does Comcare have a human

23 resources manual?

24 A. Yes, Comcare does have a human

25 resources manual.

1 Q. Does that manual contain a section

2 outlining what is to occur if an employee of Comcare is

3 served with a summons to witness or is asked to testify?

4 MR. COLEMAN: I am concerned about this

5 line of questioning. I don't think it could possibly be

6 relevant.

7 THE CHAIR: Objection on relevancy?

8 MR. COLEMAN: Yes.

9 THE CHAIR: Do you want to expand on that,

10 Mr. Coleman?

11 MR. COLEMAN: Well, Mr. Brodkin is asking

12 this witness about Comcare's policies with respect to

13 witnesses under subpoena. I fail to see any relevance to

14 that line of inquiry.

15 MR. BRODKIN: From my knowledge, having

16 been an employee, with respect to human resources manuals

17 there are sections contained in human resources manuals

18 that deal with what is to transpire if an employee is

19 served with a summons to witness vis_a_vis the conduct

20 money, vis_a_vis what is to be done in respect of salary

21 during the period of time that the employee testifies as a

22 witness. And I am just asking whether or not Comcare does

23 have that.

24 THE CHAIR: Could you just expand on how

25 you feel that's relevant to the expert's testimony?

1 MR. BRODKIN: It's relevant to the expert's

2 testimony in demonstrating whether or not Comcare has an

3 appropriate human resources manual.

4 THE CHAIR: Okay, thank you. Mr. Coleman.

5 MR. COLEMAN: I would simply repeat my

6 objection that the evidence can't be relevant. As to

7 whether or not Comcare has a provision in the human

8 resources manual regarding witnesses under subpoena and

9 treatment of any conduct money that may be paid can have

10 no bearing on this expert's opinion evidence and this

11 particular proceeding.

12 THE CHAIR: Just to clarify, Mr. Brodkin,

13 are you trying to determine the extent of the human

14 resource manual at Comcare, and this is one specific

15 example to determine how comprehensive the manual is?

16 MR. BRODKIN: That's correct. Are we

17 dealing with a company, and this witness is an employee of

18 a company, who has covered all of the bases.

19 THE CHAIR: Does that assist, Mr. Coleman?

20 MR. COLEMAN: It assists me not at all. I

21 fail to understand the nature or the purpose of the

22 inquiry or how any conceivable answer that might be given

23 could have any bearing on this matter, whether there is a

24 policy or there is not a policy or whether that's any

25 evidence of whether Comcare has a comprehensive human

1 resources manual or not. I fail to see how Comcare's

2 human resources manual would have any bearing on any

3 matter in dispute in this case. So I simply repeat my

4 submission that the line of inquiry is irrelevant.

5 THE CHAIR: Any questions from the

6 Panel? Questions to clarify? No?

7 MS. JOHNSON: Yes, I have a question. Are

8 you trying to establish that the manuals that have been

9 written by Comcare may be deficient in some way? Is that

10 what you are trying to establish?

11 MR. BRODKIN: I may be trying to establish

12 that they aren't deficient in any way, but this particular

13 witness didn't have any knowledge with respect to the

14 manual.

15 MS. JOHNSON: Oh, okay.

16 MR. COLEMAN: I could comment on that, if I

17 may.

18 THE CHAIR: Yes.

19 MR. COLEMAN: The allegation in this case

20 with respect to Ms. Munro does not involve whether or not

21 her agency maintained an appropriate manual. It's whether

22 or not her conduct amounted to a conflict of interest or

23 disgraceful, dishonourable or unprofessional conduct.

24 The status of her human resources manual or

25 the human resources manual of any other nursing agency in

1 the province of Ontario or the nation of Canada would not

2 appear to have any relevance or any bearing on this matter

3 at all.

4 THE CHAIR: Mr. Brodkin, before we consider

5 this, I think we do need a little bit more clarification

6 on how you feel this is relevant to the testimony. Is

7 this __ .

8 MR. BRODKIN: I feel it's relevant to the

9 testimony because there is two possible scenarios. Either

10 there is nothing in the human resources manual with

11 respect to a summons to witness of persons who are

12 employed and questions will flow from that, if there is

13 nothing in the human resources manual as to what an

14 employee would do if served with a summons to witness.

15 The second scenario is that there is a

16 detailed section in the human resources manual dealing

17 with summons to witnesses and if that was complied with by

18 the witness.

19 THE CHAIR: So this goes to the weight of

20 the witness's testimony that you expect the Panel to

21 apply?

22 MR. BRODKIN: Yes. I am not saying this

23 witness is not an expert witness. I have agreed to that.

24 This is an expert witness.

25 MR. STANTON: Mr. Brodkin, are you

1 suggesting that there might or could be something in the

2 manual that would direct the witness how to testify or her

3 demeanour while testifying or are you suggesting there

4 would be something in the manual that would somehow affect

5 her demeanour or the content of her testimony today? Is

6 that what you are suggesting might be in the manual?

7 MR. BRODKIN: No, what I am suggesting

8 might be in the manual might go to demonstrate it's not

9 the case that __ what I am attempting to demonstrate is

10 it's not the case that everybody does everything perfectly

11 24 hours of the day, seven days a week.

12 THE CHAIR: Mr. Coleman, the last word is

13 yours, as it's your objection, before we leave the room.

14 MR. COLEMAN: A novel proposition. I'm not

15 sure I disagree with the statement that was just made.

16 There may be more direct ways to get at it than the line

17 of inquiry.

18 Perhaps to get beyond the argument, you

19 might just ask the witness whether she is here under

20 subpoena. I think that may possibly send us off in a

21 different direction altogether; and if it doesn't, then we

22 may have to come back and revisit this issue and get your

23 ruling on it.

24 BY MR. BRODKIN:

25 Q. Were you served with a summons to a

1 witness?

2 A. With a subpoena, no.

3 Q. You are appearing here voluntarily?

4 A. That's correct.

5 Q. Now I have many more questions.

6 THE CHAIR: On the same line, regarding the

7 manual?

8 MR. BRODKIN: Yes.

9 MR. COLEMAN: Well, let me ask this. Has

10 my objection become outdated? Will it have to do with

11 Comcare's human resources manual with respect to subpoenas

12 or will it be some other matter?

13 MR. BRODKIN: It will be some other matter

14 rather than subpoenas. It will be appearing in courts as

15 a witness, appearing in court tribunals as a witness.

16 MR. COLEMAN: And again, unless you are

17 suggesting that there is something in the manual that

18 should lead this Panel to discount Ms. Johnston's evidence

19 in some way, unless you are contending that there is

20 something in the manual that directs the witness that her

21 evidence will be given in what you would assess to be a

22 tainted manner, again, I would repeat my objection that

23 what may be in Comcare's human resources manual regarding

24 subpoenas to witnesses or attending and giving evidence at

25 hearings cannot be relevant.

1 THE CHAIR: Okay. I think we'll have to go

2 out and discuss this and try to render a decision.

3 (RECESS TAKEN.)

4 THE CHAIR: Mr. Brodkin, we are a little

5 confused ourselves. We are just going to let you continue

6 briefly in this line of questioning, just to see if it is

7 directly relevant to the matters in this case. And if

8 it's not, then we will allow the objection. So we are

9 just going to continue on a little more.

10 BY MR. BRODKIN:

11 Q. Okay, that's fine. Did you discuss the

12 matter of your appearing here voluntarily with any of your

13 immediate superiors at Comcare?

14 A. Yes.

15 Q. And as result of those discussions,

16 they approved your appearing here today voluntarily?

17 A. They approved my leave of absence for

18 that time to appear voluntarily.

19 Q. And your leave of absence is a leave of

20 absence without pay?

21 A. Correct.

22 Q. Okay. If we could move on then to

23 insurance companies and insurance policies. You stated in

24 your testimony that you assist in verifying insurance

25 policies?

1 A. Over my time with Comcare, yes, I have

2 had the responsibility of verifying insurance policies and

3 assisting the client with those insurance policies.

4 Q. And you testified you look into the

5 insurance policies for them. Does that mean that you read

6 the insurance policies?

7 A. Contacting the insurance company and

8 talking to the claims manager for that particular policy,

9 asking specific questions that are related to the actual

10 policy.

11 Q. And that you also seek out community

12 resources that might be available to the client?

13 A. That's correct.

14 Q. And if one of those resources is Home

15 Care, you refer the client to Home Care?

16 A. That's correct.

17 A. Have you ever had an instance where,

18 having referred the client to Home Care, the client

19 returns to you and says that they are dissatisfied with

20 the maximum number of hours being provided by Home Care?

21 A. Yes.

22 Q. And what do you then do?

23 A. We communicate that information back to

24 the Home Care Program. We look at what other alternatives

25 are out there for funding. And we basically provide that

1 information to the case manager at the Home Care Program

2 who is the case manager of that case to insure that they

3 are aware that there is other opportunities for funding if

4 they needed it. And that decision remains between the

5 case manager and the client and the client family.

6 Q. What other options for funding would

7 there be?

8 A. Other options for funding, for example,

9 in our area may be a palliative care association. There

10 is respite funds through other support organizations. For

11 example, the Alzheimer's Society has the ability to

12 provide some funding, the ALS Society has provided funding

13 in the past.

14 A. Volunteer bureaus are also used to

15 assist in meeting those needs where the client wants to

16 remain at home and that's __ and the family is prepared to

17 keep that client at home. So it may not necessarily just

18 be funding; it's how do we cover the plan of care.

19 Q. But with respect to funding, if you

20 have exhausted __ have you ever had an example or an

21 instance where you have exhausted all of those other

22 options for funding, leaving you with only funding by Home

23 Care and the client remains dissatisfied?

24 A. Yes.

25 Q. Then what transpired in that particular

1 instance?

2 A. The client has to make a choice whether

3 they want to continue with the Home Care Program, and if

4 they choose to stay with the Home Care Program, more than

5 likely, as our advocate, we would suggest to the Home Care

6 Program that they maybe be switched to a different case

7 manager or a different area.

8 A. And that has been __ that has been

9 done and has __ or has been suggested and actually has

10 been done with satisfactory results.

11 A. There have been occasions where the

12 program and the client have come to the conclusion that

13 this is inappropriate, that they don't want to continue

14 services, and our role in that particular time is if there

15 is insurance, then we will continue servicing the plan of

16 care as best we can. Should we feel that we are unable to

17 satisfy all of the needs within the plan of care, then we

18 would discuss with the client and other options, for

19 example, placement coordination, social work through maybe

20 an acute care centre, other options that are available,

21 because maybe the home environment is not necessarily the

22 best environment for that client.

23 Q. By "placement coordination", do you

24 mean institutionalization; is that correct?

25 A. Respite possibly, so it would be

1 institutionalization for a period of time, various other

2 options. As I said, the volunteer services is another

3 way. Attendant outreach has been used. There has been

4 various means. And yes, institutionalization is also an

5 option.

6 Q. Is it an option if the family of the

7 client says no institutionalization?

8 A. We uphold and respect the rights of the

9 client and the client's family. However, we also have to

10 be very cognizant of the available resources, and so we

11 offer the options and make sure that the client and the

12 family are making an informed decision.

13 A. Would institutionalization be an option

14 when the client or the client's family feels that they can

15 be best suited at home? That would not be a decision that

16 Comcare independently nor any agency independently would

17 make. That would be a decision that the care team,

18 including the client and family, would conclude.

19 Q. Now, returning to insurance policies,

20 private insurance policies, private insurance companies,

21 you testified with respect that the insurance policy may

22 contain different levels of care?

23 A. Correct.

24 Q. And that you might have a client who

25 would want one particular level of care but you were of

1 the view that that wasn't the appropriate level of care;

2 correct?

3 A. There have been various __ that's

4 correct. Would you like me to elaborate?

5 Q. Please.

6 A. Okay. There have been various

7 situations where a client's insurance coverage may only

8 cover RNs, and yet when we start looking at the service

9 that they are actually requiring, there is not necessarily

10 a nursing need that's been identified. It may be one of

11 more personal care and home support. So it would not be

12 our __ we would not counsel the client to use the

13 insurance for the benefit of having those resources when

14 it was inappropriate for that level of care to be put in.

15 Q. And would the insurance policies also

16 perhaps refer to RNs and RNAs?

17 A. RNs and RPNs?

18 Q. Yeah, as providing different __ ?

19 A. Possibly __ yes, yes.

20 Q. And have you ever had an instance where

21 a client __ where the insurance policy provides for both

22 RNs and RPNs?

23 A. Yes.

24 Q. And the client has stated or demanded

25 RN service, whereas Comcare's view is that that level of

1 care isn't needed?

2 A. We have had occasions where clients

3 have insisted upon having registered nurses when

4 registered practical nurses are appropriate for that

5 particular case. Again, we have to insure that they have

6 all of the information to make those decisions.

7 A. Typically, registered nursing services

8 are reimbursed higher than registered practical nurse

9 services, so we talk about the plan of care and the

10 available resources and what the impact to those resources

11 would be if we put in a level beyond what we felt was

12 required.

13 A. But again, we wouldn't necessarily make

14 that decision ourselves. It would be, because it's based

15 a lot on medical model and medical decisions, the

16 physician would be consulted to assist in that

17 decision_making.

18 Q. Now, if the physician were consulted to

19 assist in that decision_making and the decision of the

20 physician was that all that was required was an RPN level

21 of care and the client demanded still an RN level of care,

22 what would you do?

23 A. If we have not entered into an

24 agreement of delivering services, we would provide the

25 client with the options of other service providers. From

1 a professional standpoint and also from business practice

2 right in our policy, it indicates that we are not to be

3 providing services that in our opinion professionally are

4 not responsible, therefore taking advantage of funding

5 that shouldn't necessarily be used, so potentially

6 defrauding the insurance company with a service that isn't

7 required.

8 Q. And that was prior to your having

9 entered into the contract; is that correct?

10 A. That's correct.

11 Q. And what would transpire if you had

12 already entered into the contract?

13 A. Well, basically, if we have entered

14 into a contract, there may be some particular situations

15 which have occurred where the client or client's family is

16 questioning the level of care and whether it should be

17 upgraded. And it may be that policies, per se, have a

18 limit for "X" number of RPN hours, and typically what you

19 see is RN hours for "X" number of dollars and then

20 reverting down to RPN.

21 A. And where the issue comes in is when an

22 RN is possibly still required where it's only being funded

23 to an RPN by the insurance company. And continuity of

24 care may be an issue, and so again, we look at what

25 funding options are there.

1 A. A private pay option is a possibility,

2 but again, it's making sure that they are aware of all of

3 the options and that what we try to do in each situation

4 is we stand __ we take a step back. We provide them with

5 the options, but it's within the dynamics of a much larger

6 care team, even if it's bringing in outside consultation

7 for that.

8 Q. Let's deal with __ can we turn now to

9 hypothetical situation number 1, paragraph 2 and the

10 second sentence of paragraph 2.

11 Q. Now, again, what I am going to do, in

12 the same way that my friend did, is change the variables

13 and just ask for your comments with respect to those

14 changed variables.

15 Q. With respect to paragraph 2, the second

16 sentence, assuming that Mr. K contracted with the member

17 to provide nursing services to his wife at home but the

18 member did not provide nursing care to Mr. K's wife at

19 home immediately but it was some period of time after the

20 entering into the contract that nursing services began to

21 be provided, would you consider the member's conduct

22 amounting to practising the profession while in a conflict

23 of interest during that initial period of time where

24 nursing services weren't provided?

25 A. If it __ I guess I am asking for more

1 clarification. If you are saying they are contracted and

2 yet not provided?

3 Q. The contract is entered into.

4 A. Yes.

5 Q. Then there is a period of time, whether

6 that period of time be a week or a month or two months or

7 whatever, where nursing services aren't provided, but

8 nursing services begin to be provided at the end of that

9 period of time. Would you consider for that period of

10 time for there to have been any conflict of interest, or

11 does the conflict of interest begin when nursing services

12 are provided?

13 A. Can I ask for further clarification? I

14 am questioning whether or not the contract for nursing

15 services was bigger __ was part of a bigger contract of

16 health care services?

17 Q. No. What I am saying is when you look

18 at hypothetical situation number 1, paragraph 2, the

19 second sentence, it says, "Mr. K contracted with the

20 member to provide nursing care to his wife at home."

21 Q. Is that the factor that one considers

22 when one considers conflict of interest, or is it the

23 provision of the nursing services themselves that is the

24 factor that one would consider?

25 A. In the conflict of interest related to

1 this hypothetical in this second sentence is that the

2 conflict of interest in providing the care, the actual

3 services, in addition to additional advocacy service is a

4 conflict of interest.

5 Q. Correct. Now I am saying that __ and I

6 believe that I heard you testify to this effect, and

7 that's why I am pursuing this avenue __ is that you have

8 this contract for advocacy services.

9 A. Uhm_hmm.

10 Q. And then you enter into a contract for

11 nursing services but you never provide the nursing

12 services. Is there any conflict of interest there?

13 A. There is potential conflict of

14 interest.

15 Q. It's a potential conflict of interest.

16 Q. Now, let's assume that Mr. K contracted

17 with the member to provide nursing care to his wife at

18 home and on the date that he so contracted and prior to

19 his having so contracted, care, nursing care, was being

20 provided by another agency.

21 Q. Would you consider the contract for

22 advocacy services __ would you consider the member to be

23 in a conflict of interest for having a contract with

24 respect to advocacy services?

25 A. If it was separate and apart __.

1 Q. Separate and apart.

2 A. __ From the delivery of the services

3 where the member would not gain financially __.

4 Q. That's correct.

5 A. __ Nor compromise the client's

6 therapeutic relationship and that all options have been

7 laid out and that there is a declared potential conflict

8 of interest that you are also able to provide those

9 nursing services in addition to advocacy, then there is no

10 conflict of interest.

11 Q. Now, let's take it to the next

12 variable.

13 Q. Mr. K contracts with the member to

14 provide nursing care to his wife at home. The member

15 provides nursing care to his wife at home but not as the

16 primary caregiver. There is another nursing agency who is

17 the primary caregiver, and the member's nursing agency is,

18 in effect, the secondary caregiver.

19 A. There is a conflict of interest.

20 Q. Now, if we could turn __ if I could

21 just refer you to paragraph 5, the first sentence of

22 paragraph 5, and again, we'll do variables on the first

23 sentence.

24 Q. Assuming that the member's contract

25 with Mr. K for her agency to provide advocacy services on

1 his behalf with respect to insurance coverage terminated

2 as of a certain day, would the member's conduct on or

3 after that day in providing nursing services be a conflict

4 of interest?

5 A. Repeat that again, if the __.

6 Q. Okay, paragraph 5 refers to the fact

7 that there is __ "In addition to the arrangement for

8 nursing care ..." __

9 A. Yes.

10 Q. __ "...the member also contracted..."

11 Q. Well, contracts always end, so when the

12 contract ends __ and this is the contract for advocacy

13 services __ is there any conflict of interest on and

14 after that day?

15 A. For the continued delivery of nursing

16 services?

17 Q. Right.

18 A. If you are looking at the delivery of

19 nursing services and a separate advocacy service being

20 provided by the same member where there is financial gain,

21 then that is a conflict.

22 A. If the contract had ended but there was

23 financial gain from the contract, that's still a conflict

24 of interest.

25 A. If you have a situation where the

1 contract of advocacy has ended, which was separate and

2 apart from the delivery of service __ and I guess I am a

3 little confused as to the fact that we still have those

4 two services there that are still in a conflict and the

5 contract has now ended __ there still was a conflict.

6 Q. There was a conflict, but there is no

7 conflict on and after the day the contract is terminated?

8 A. I believe that it continues on because

9 of the impact that that contract had on services.

10 Q. Now, let's deal __ could you please

11 turn to the interview summary which is just a few pages

12 on, from the bottom right_hand corner it's A_1012,

13 hypothetical situation number 1, where it's stated,

14 "Advocacy is inclusive of the role of the community health

15 nurse and is not a separate entity."

16 A. Correct.

17 Q. What else besides advocacy is inclusive

18 of the role of the community health nurse and is not a

19 separate entity?

20 A. The assessment of the care, the

21 delivery of care, the supervision, the delegation, the

22 assignment of care.

23 Q. Could you please just go just a bit

24 slower?

25 A. Sure.

1 Q. I guess what else is inclusive of the

2 role of the community health nurse besides advocacy?

3 A. The assessment, the delegation,

4 assignment, the health care planning, the supervision of

5 services, the funding resources, so resources generally,

6 both human and financially, the right __ upholding the

7 client's rights, informed decision_making, consent,

8 upholding the standards of practice within the delivery of

9 that service, communication, documentation,

10 confidentiality, health care networking for the delivery

11 of the plan of care, case management, consultation.

12 A. I think that I have covered them.

13 Q. Does it also include research?

14 A. Yes, it can.

15 Q. What do you mean by the term

16 "research"?

17 A. When we are talking about research, we

18 may be looking at a particular plan or a protocol that

19 requires research and consultation related to the

20 treatment itself.

21 Q. Does research involve __ again, in

22 different professions we may have different understandings

23 of the term "research". I know what research means to me.

24 Does research mean to you perhaps physically going to a

25 library?

1 A. It has, yes, and it does.

2 Q. And reading whatever material you read

3 at the library?

4 A. Yes.

5 Q. And when __ and I have to try to get

6 this clear because you are saying advocacy is inclusive of

7 the role of the community health nurse. Research and all

8 of these other matters are also inclusive of the role of

9 the community health nurse?

10 A. Yes.

11 Q. But is there any billing going on at

12 the time?

13 A. The billing that is going on is an

14 inclusive rate. Therefore, if we have an advocacy as part

15 of the totality of care, that is upholding the client's

16 rights and informed decision_making within that plan of

17 care. There is no additional cost for that. That is part

18 of the cost per hour or per visit.

19 A. Rolled into that cost per hour and per

20 visit is the administrative margin to carry out those

21 other aspects that we are talking about as far as

22 supervision, research, other documentation follow_through

23 that's required, consultation. It's not separate and

24 apart.

25 Q. Is there a minimum number of hours of

1 nursing care that you require to be provided before you

2 would enter into a contract with a client?

3 A. No, there is not.

4 Q. So a client could potentially say one

5 hour a week, and you would enter into a contract with that

6 client?

7 A. The client may ask for one visit per

8 week.

9 Q. One visit per week?

10 A. And that could be anywhere from five

11 minutes, fifteen minutes, to three hours, up to four

12 hours, depending on the geographical area and how in that

13 particular area a "visit" is defined. In most areas it's

14 three to four hours is the maximum that a visit would be

15 before it converts to hourly.

16 Q. So you would enter into a contract with

17 a client in respect of one visit per week?

18 A. That's correct.

19 Q. And again, if the client then __ your

20 having entered into that contract with respect to one

21 visit a week __ started to ask or request for certain

22 services, for example, research, etc., you would provide

23 all of those services requested by the client or asked for

24 by the client?

25 A. We would discuss how it fits into the

1 plan of care, and we would not do that in isolation of the

2 other health care members. And we do feel that the

3 physician and other community organizations are part of

4 that larger picture for the care team.

5 Q. Have you ever in your experience then

6 had a client where the request or perhaps even demands of

7 the client far exceeded the number of visits per week?

8 A. Have we ever had a client where the

9 number of visits far exceeded their expectations?

10 Q. Well, let's say you had a client for

11 one visit a week or two visits a week or three visits a

12 week.

13 A. Yes.

14 Q. And the requests that the client was

15 making of you or the demands that the client was making of

16 you with respect to research, with respect to assessment,

17 with respect to delegation, with respect to assignment,

18 health care planning, supervision, consultation, and on

19 and on and on, far exceeded the amount of money that you

20 would make with respect to the one or two or three visits

21 per week.

22 A. Have we had those?

23 Q. Have you ever had that situation?

24 A. Yes, we have.

25 Q. And what have you done with respect to

1 those clients?

2 A. We have looked at various options.

3 A. One option that we have done is, you

4 know, we have a professional responsibility, and, yes,

5 from a business sense we may be losing money on this, but

6 we do have a professional obligation.

7 A. In other situations, it may be

8 appropriate to go in and negotiate with the client

9 increased hours based on the plan of care, but it's not a

10 separate piece. There wouldn't be a different rate for

11 that particular __ it means that it would increase hours.

12 A. If you are talking about the

13 administrative responsibilities that are outside of the

14 direct service delivery, that is built into the rate

15 charged to the client inclusive.

16 A. If you are talking about additional

17 direct care service that is provided, then we have to look

18 at how the plan of care is delivered and whether we have

19 the appropriate number of hours to service that client.

20 And we would discuss that with the client and the other

21 care team members.

22 Q. So you have had instances where you

23 have said to the client that one or two or three visits a

24 week is not sufficient for us to provide the services that

25 we are providing to you, and we therefore have to

1 increase __ is what you increase the number of visits per

2 week?

3 A. The number of visits or the time __.

4 Q. The time?

5 A. __ That we are in that home. For

6 example, if we have __ .

7 Q. But you are not in that home.

8 A. Yes, I am in that home.

9 Q. I am confused again.

10 MR. COLEMAN: I think the witness was going

11 to give you an answer and an example which may clarify it.

12 BY MR. BRODKIN:

13 Q. Okay.

14 A. If we have a client who is requiring

15 home infusion therapy services and they have been switched

16 from one therapy to another that takes for a longer period

17 of time and the risks that are associated with that

18 therapy warrants that we are in the home for a longer

19 period of time, we will discuss that with the client and

20 either with the __ and if there is a separate funder,

21 certainly with the funder, and that is made in

22 consultation as well with the physician, because we do

23 have to look at providing safe care and a safe environment

24 for that client.

25 Q. I understand that. But you used the

1 word "negotiate" in your testimony __ ?

2 A. Negotiate means what is appropriate for

3 the client or client's family to pick up in this and what

4 is appropriate for us to be there. Remember, we are

5 promoting the independence and the optimum functioning of

6 the client and the client in their home environment.

7 Q. Okay, but now we are talking about __

8 I understand that, when you talk about intravenous

9 whatever.

10 Q. But now we are not talking about

11 hands_on care. We are talking about something other than

12 hands_on care. And you have a contract with the client,

13 and it provides for one or two or three visits per week,

14 whatever, and you discover subsequent to the contract that

15 the client is making requests or demands with respect to

16 research and all of the other components that you had set

17 out. Are you saying that what you do is increase the

18 number of hours?

19 A. Not for the client, no. That's

20 inclusive of the administrative responsibilities for the

21 plan of care for that client. It's directly related to

22 the direct service costs that the client is incurring.

23 A. So in other words, if we are only

24 required in that home for three hours and the

25 administration of us serving that client also costs

1 another three hours, then that's our responsibility. We

2 should have been able to assess that appropriately, and

3 it's not unusual for a client's situation that's very

4 complex to take that time. And, no, it's not necessarily

5 profitable, but it is a professional obligation.

6 Q. So is it the case that in no instance

7 that you are aware of was the contract ever terminated?

8 A. I can't say that, no.

9 Q. Then you are aware of instances where

10 the contract has been terminated?

11 A. The contract may have been terminated

12 because we could no longer safely meet the needs of the

13 client or it's been mutually agreed upon that there is

14 another care option that's more appropriate.

15 Q. But has there ever been a contract

16 terminated, to your knowledge, where the client has made

17 inordinate requests or demands of Comcare such that

18 Comcare says, We cannot provide these inordinate demands

19 and requests never; is that what you are saying?

20 A. Not to my knowledge, no.

21 Q. And if that __ since we are dealing

22 with hypotheticals and variables on hypotheticals, what if

23 that were to occur, what would be your response to that?

24 A. What would be my recommendation to our

25 board?

1 Q. Yes.

2 A. That we have a professional obligation

3 to provide those services, and that is a recommendation

4 that I have made in the past, that we will continue to

5 provide services regardless.

6 Q. And that being a recommendation that

7 you made to the board, has the board adopted or approved

8 that recommendation?

9 A. The board has had situations, as I

10 said, where we are servicing for three hours and the

11 administration associated with those three hours is also

12 another three hours and we have continued to service that

13 client.

14 Q. And that's a board decision, your

15 recommendation and a board decision?

16 A. It could be a board decision. It's not

17 always a board decision. If it got to the board level,

18 because we look at resolution at the lowest possible

19 level, would be that we continue.

20 A. But that __ it's not really an issue,

21 because if we are looking at our policies and procedures,

22 it certainly indicates that it is an all_inclusive rate,

23 that health care planning looks at all aspects, including

24 the components that I gave to you earlier about the

25 consultation, the assessment, the delegation, the

1 assignment, the supervision.

2 Q. And what would be __ again, dealing

3 with hypotheticals, and you have spoken about the three

4 hours of services as opposed to three hours of

5 administration. What would be your response if it was

6 three hours of services and possibly thirty hours of

7 administration?

8 A. I would be questioning what was going

9 on in that particular situation and whether it was really

10 a nursing function, was it appropriate for another

11 community network, not necessarily health, to be dealing

12 with those other responsibilities?

13 Q. And you might conclude that it was not

14 a nursing function, or might conclude?

15 A. This is hypothetical. I can't make

16 that decision.

17 Q. Hypothetically you may or might

18 conclude that it was not a nursing function that was being

19 provided?

20 A. Possibly.

21 Q. And if it was not a nursing function

22 that was being provided, would you still be concerned with

23 conflict of interest?

24 A. If it was not a nursing function that

25 was being provided but it was something that needed to

1 occur through that nursing agency, then yes, it is a

2 conflict of interest.

3 Q. But if it was not something that needed

4 to occur through that nursing agency but could be provided

5 by others?

6 A. And was it being provided by others?

7 Q. Well, it could be provided by others

8 but was being provided by the nursing agency.

9 A. Then that's a conflict of interest.

10 MR. BRODKIN: Do you want me to continue

11 or __.

12 THE CHAIR: If you are __ .

13 MR. BRODKIN: Yes, because I am moving on

14 to the next page, so this would be a good place.

15 THE CHAIR: So this would be an appropriate

16 time to break for lunch. Okay, we'll reconvene at 1:30.

17 Thank you.

18 (LUNCH RECESS TAKEN.)

19 THE CHAIR: I just thought we could take a

20 few minutes prior to continuing with Ms. Johnston's

21 testimony to review dates just in case we tend to go a

22 little late tonight. People have planes to catch, etc.

23 We'll try to go as close to 4:30 today as possible, but in

24 the meantime, I guess it would be maybe you two assessing

25 your availability. Have you done that yet?

1 MR. COLEMAN: What about the panel, the

2 five members of the panel, that may be __ are you

3 available in blocks of time from here on?

4 THE CHAIR: Yes, but I think we assumed

5 that it would be more difficult for __ .

6 MR. BRODKIN: I think it might be more

7 difficult for five people than for two people.

8 MR. COLEMAN: I would agree.

9 THE CHAIR: All right. Then what we'll do

10 during our afternoon break is we'll give you several sets

11 of blocks of time. We already estimated that we would

12 need approximately an additional day and a quarter?

13 MR. BRODKIN: A day and a quarter to a day

14 and a half.

15 THE CHAIR: Plus final submissions. So I

16 am going to assume two days, or do you think final

17 submissions will take a little longer than a half a day?

18 My own experience with this is that

19 whenever everybody says a day and a half, a day and a

20 quarter, it tends to be a little bit more.

21 MR. COLEMAN: I think we should schedule

22 three days of hearing. We may have just started the

23 defence's case today. I think to be safe, we should

24 probably book three days.

25 THE CHAIR: All right. So we'll try to

1 find three days, and that way you don't have to rush with

2 your final submissions and __ .

3 MS. DRAYTON: Is the weekend an option?

4 MS. JOHNSON: The weekend?

5 MR. COLEMAN: The answer is apparently not.

6 THE CHAIR: All right, so that's what we'll

7 do during our break.

8 MR. BRODKIN: I think somebody said last

9 week when we were trying to set up a meeting how about is

10 the evening an option and got the same kind of response.

11 THE CHAIR: We'll see. Okay, we'll bring

12 in the witness.

13 Thank you, Ms. Johnston. I'm sure you are

14 aware you are still under oath.

15 THE WITNESS: Yes.

16 THE CHAIR: Mr. Brodkin, please continue.

17 MR. BRODKIN: Thank you.

18 BY MR. BRODKIN:

19 Q. If you could turn again, Ms. Johnston,

20 to the document that's entitled "Interview Summary",

21 Exhibit No. 6. Specifically I think if we have the pages

22 in the bottom right_hand corner, page A_1013.

23 A. Thank you.

24 Q. And I guess I'll refer to the

25 paragraphs as the third paragraph on that page, the third

1 bullet, as it were.

2 A. Yes.

3 Q. Specifically, if you could just take

4 just one or two seconds to read that third bullet again.

5 With respect to the last sentence of that third bullet,

6 assuming __ and again, we are changing the variables.

7 A. Uhm_hmm.

8 Q. Assuming that the option suggested to

9 Mr. K was a lawyer and assuming that Mr. K rejected that

10 option and did so in writing, in your opinion in that

11 hypothetical did Mr. K accede to whatever option was

12 suggested to him?

13 A. I have to look at this in a bigger

14 context because, again, the nurse or the member is in a

15 position of knowledge and probably perceived in a power

16 position. So if I look at __ I am not sure whether all

17 options have been fully laid out. The member is

18 responsible to lay out all options. But it does not

19 eliminate the fact that a member, under these

20 circumstances, would continue to agree to provide that

21 other service. That is the conflict of interest.

22 A. So acceding the option suggested to the

23 client or the family related to legal counsel and the fact

24 that the client refused in writing is irrelevant to the

25 conflict of interest because it's the nurse's

1 responsibility to determine the boundaries in that

2 relationship.

3 Q. But your hypothetical concludes with

4 clients tending to accede to whatever option is suggested

5 to them.

6 Q. Have you ever had an instance where a

7 client didn't accede to whatever option is suggested to

8 them? In other words, you may have suggested only one

9 option to the client, but you may have suggested a half a

10 dozen or a dozen options to the client, but have you ever

11 had an instance where a client did not accede to the one

12 option suggested or the half a dozen or the dozen options

13 suggested to the client?

14 A. Yes.

15 Q. You have, and what has transpired where

16 the client has not acceded to the option or options that

17 you have suggested to the client?

18 A. There may have been alternative

19 solutions that the client may have researched out

20 themselves, and in that situation that's exactly what

21 happened. That, in our opinion, was not an option that we

22 were aware of, and it was considered then an additional

23 option that was not introduced to them because of our

24 unfamiliarity with the client family situation.

25 Q. Has there ever been any instance where

1 one of the options that you suggested to the client was to

2 seek out a lawyer?

3 A. Have we suggested as an option to seek

4 out legal counsel?

5 Q. Yes.

6 A. Yes.

7 Q. And have you ever had an instance where

8 you suggested that option to the client and the client did

9 not accede to that option?

10 A. I can't recall a situation where that

11 was the only option that we had provided to them.

12 Q. Well, it could be that's the only

13 option or a range of options, but the client did not

14 accede to the option of consulting a lawyer?

15 A. I have to repeat that I can't recall a

16 situation where a legal option was the only option that

17 was provided to a client. Most times the __ I would have

18 to say in all times that I am familiar with the client

19 options would include not only legal counsel but other

20 community support agencies or organizations that could

21 provide other options or consultation service.

22 Q. And what would those be?

23 A. Again, they would be anything from

24 social work, to social services, to case management

25 through the Home Care Program, to their employer for

1 claims management, various options. They are client

2 specific.

3 Q. And has there been any instance where

4 all of those options have been exhausted? So you have

5 advised with respect to Home Care and social workers and

6 all of those options have been exhausted, or the client

7 says, if they haven't been exhausted, that I don't want to

8 seek out any of those options?

9 A. Yes, there have been __.

10 Q. You wouldn't seek out Home Care as an

11 option if you were having a dispute with Home Care; is

12 that correct?

13 A. We would not seek out Home Care as an

14 option if there was a dispute with Home Care, but the

15 question that I would have is, Is it with the program

16 itself or is it with the individual that they are dealing

17 with?

18 Q. The individual they are dealing with at

19 Home Care?

20 A. Correct.

21 Q. But if you ascertained that the problem

22 was Home Care and not an individual at Home Care, what

23 would then transpire?

24 A. If we determine that the issue is

25 related to the Home Care Program, then we would refer them

1 back to their family physician who referred them to the

2 Home Care Program in the first place.

3 Q. If you had set out all of the options

4 available to a client and if the client refused to accede

5 to all of the options and said, Thanks for telling me all

6 of the options that are available to me, I refuse to

7 accede to all of those options that you have suggested to

8 me, what do you then say to the client?

9 A. It would be dependent upon what the

10 client says as far as their options. We would certainly

11 commit to respecting the client's wishes or the client's

12 family's wishes, and that's the first priority.

13 Q. All right. Now, let's try that one of

14 the options you have suggested is a lawyer and the client

15 says to you, I don't want to go to see a lawyer, they are

16 too much money. Have you ever encountered that instance?

17 A. Yes, and we have provided them the

18 option of Legal Aid.

19 Q. And are you aware that Legal Aid has

20 been, in effect, gutted?

21 A. Yes, we haven't had any situations

22 since that occurred.

23 Q. Would you consider a client in __ a

24 client that we have just discussed to be a vulnerable

25 client or a client under a tremendous amount of stress?

1 A. The client in this hypothetical?

2 Q. Yes.

3 A. Yes.

4 Q. Yes, you would. You wouldn't perhaps

5 consider the client to be merely a client who wanted

6 economical advocacy services as opposed to a lawyer?

7 A. Can you clarify that?

8 Q. Well, the last hypothetical that we

9 discussed was the client who had been provided with all of

10 the options by you, and one of the options had been to

11 consult a lawyer. The client had specifically said to you

12 with respect to the option of consulting a lawyer, No

13 thanks, I don't want to go and consult a lawyer. Lawyers

14 are a lot of money. Will you do it all for me?

15 Q. Have you ever had that instance occur?

16 A. I can't say that we have.

17 Q. If we could remain on page A_1013.

18 A. Yes.

19 Q. The sixth paragraph, the sixth bullet,

20 "Particular issues noted with respect to Appendices A, B,

21 C & D".

22 Q. Now, is it correct that Appendices A,

23 B, C and D all refer to advocacy and/or consultation

24 services?

25 A. It's related into the generality of the

1 documents and then the specific references to the advocacy

2 service.

3 Q. Assuming that while the documents, the

4 appendices refer to advocacy and/or consultation services

5 and advocacy and/or consultation fees, assuming that no

6 advocacy or consultation services were provided but some

7 other services were provided other than those kinds of

8 services, would it remain your opinion that the member's

9 conduct would amount to practising the profession while in

10 a conflict of interest?

11 A. Some other service has been provided?

12 Q. Yes. We are varying the hypothetical

13 now.

14 A. Okay, so for example?

15 Q. For example, any kinds of services

16 other than advocacy or consultation services were

17 provided. You might say research services. Do you

18 remember you listed all of the services that were

19 provided?

20 A. The member is still in conflict.

21 Q. But only in respect of that list that

22 you testified to?

23 A. Only in respect to the list?

24 Q. Yes. We have got this lengthy list

25 that you testified __ ?

1 A. In the separation of those components

2 of care which are within the totality of the plan of care,

3 it is a conflict of interest. If you were talking about a

4 complementary service, there is also a conflict of

5 interest.

6 Q. A complementary service to the services

7 that you have listed __?

8 A. Yes.

9 Q. __ In your testimony?

10 A. Yes.

11 Q. What would a complimentary service be

12 to you?

13 A. Home support service.

14 Q. Home support service. But if we are

15 not talking about the list of services __?

16 A. Yes.

17 Q. __ One of which was research, but there

18 was a multitude of them. We are not talking about any of

19 those on the list and we are not talking about home

20 support services. It's another service, other than all of

21 those services, were provided. Would it still be a

22 conflict of interest?

23 A. If there is financial benefit to the

24 member, yes.

25 Q. So the key is financial benefit to the

1 member?

2 A. And the compromising of the therapeutic

3 relationship within the power position of the member.

4 Q. So we are talking about an imbalance of

5 power?

6 A. That's correct, an imbalance in power,

7 correct.

8 Q. An imbalance of power. Okay, imbalance

9 of power?

10 A. Yes.

11 Q. All right. Now, again, I'll vary the

12 hypotheticals.

13 A. Uhm_hmm.

14 Q. Assuming that we are not talking

15 advocacy and we are not talking consultation. We are not

16 talking home support or any of that stuff. Photocopying

17 services provided to a client?

18 A. At a cost?

19 Q. At a cost.

20 A. Yes, there is a conflict of interest.

21 Q. Fax sending and receiving services

22 provided to a client?

23 A. At a cost?

24 Q. At a cost.

25 A. Yes, there is.

1 Q. The provision of stationery and office

2 supplies?

3 A. At a cost?

4 Q. At a cost.

5 A. Yes.

6 Q. All other services that are provided by

7 businesses? And I'll give you an example of the

8 businesses. Businesses such as Kinko's, Mailboxes Etc.,

9 All of the services that would be provided by businesses

10 such as those businesses, and you provided those services,

11 that would be a conflict of interest?

12 A. At a cost __.

13 Q. At a cost.

14 A. __ Where there is financial gain, yes.

15 Q. Let me take that then one step further.

16 And we are going to __ still the variables are being

17 changed.

18 A. Uhm_hmm.

19 Q. If, instead of providing those services

20 within the nursing agency, the owner of the nursing agency

21 owned a franchise such as Kinko's or Mailboxes Etc. and

22 referred clients to that franchise for services, would

23 that be a conflict of interest?

24 A. Yes.

25 Q. And if the member advised clients that

1 the member owned that franchise, would that be a conflict

2 of interest if the business was utilized by a client?

3 A. That stand_alone is not sufficient, and

4 it is a conflict of interest.

5 Q. It's not sufficient to merely advise

6 that you own a franchise?

7 Q. If the member advised that they owned

8 the franchise and then advised, Do not go to the

9 franchise, would that still be a conflict of interest if a

10 client went to the franchise?

11 A. I question why the member is just

12 saying, Don't go there, rather than exploring all options

13 with the client.

14 Q. Well, let's assume the franchise is

15 across the road from the nursing agency. The client says,

16 I need photocopying services done. I need fax sending

17 services done. I need word processing services done. I

18 need preparation of letters done. The client says that

19 the client needs all of that, and right across the road is

20 the franchise. And the member says to the client, Don't

21 go to that franchise because I own the franchise. And the

22 client then goes to the franchise. Is that a conflict of

23 interest?

24 A. In my opinion, no.

25 Q. In your opinion, no. What is the

1 presently existing law pertaining to conflict of

2 interest? I know you are not a lawyer, but __?

3 A. No, I am not.

4 Q. __ We have already introduced as an

5 exhibit the Guidelines for Professional Behaviour.

6 Q. And that, in effect, sets out the

7 presently existing law that pertains to conflict of

8 interest as well as to all professional misconduct?

9 MR. COLEMAN: Well, I would object to that

10 question for the very reasons noted by Mr. Brodkin, and

11 that is that this witness is not an expert in the legal

12 definition of "conflict of interest" and she shouldn't be

13 asked the question directly; nor should she be asked the

14 question indirectly by being told, in the course of asking

15 the question, that it is the law of conflict of interest.

16 Perhaps you could try again, Mr. Brodkin.

17 BY MR. BRODKIN:

18 Q. Am I correct in stating that there is

19 no definition of "conflict of interest" that I can turn

20 to?

21 A. There is no definition of "conflict of

22 interest"?

23 Q. That I can turn to. If I wanted to

24 find a definition of "conflict of interest", we live in a

25 democracy, and under the rule of law can I find a

100

1 definition of "conflict of interest" in the law?

2 MR. COLEMAN: Again __.

3 THE WITNESS: I am sorry, I don't feel I

4 can answer that.

5 MR. COLEMAN: I am just raising an

6 objection here, Ms. Johnston.

7 I don't think this is a fair question,

8 Madam Chair: Can Mr. Brodkin find a definition of

9 "conflict of interest" in this democracy in law?

10 First of all, what Mr. Brodkin is capable

11 or not capable of doing should be a question he addresses

12 to himself. This is a question that's not within the

13 scope of the witness's expertise.

14 Perhaps if it could be redefined or

15 clarified as to what __.

16 BY MR. BRODKIN:

17 Q. Okay, you are aware of __?

18 THE CHAIR: Mr. Brodkin, could you just

19 repeat your original question, please?

20 MR. BRODKIN: Okay. My original question

21 is whether I am correct in stating that there is no

22 definition of "conflict of interest" that I can find in

23 the law, as opposed to anywhere else other than the law?

24 THE CHAIR: Mr. Coleman, I think the

25 witness would be able to say she doesn't know to that

101

1 question.

2 MR. COLEMAN: Could you repeat the question

3 once again?

4 MR. BRODKIN: Am I correct in stating that

5 there is no definition of "conflict of interest" contained

6 in the law, as opposed to elsewhere other than the law?

7 MR. COLEMAN: Again, it calls for an

8 expertise in the matters of the law.

9 MR. BRODKIN: Well, let's qualify the

10 expert __.

11 MR. COLEMAN: And it may be that the

12 witness will answer, I don't know how to answer that

13 question, which is fair enough. But it's not a proper

14 question in the first place, because even if she answered

15 yes, it would not assist us.

16 THE CHAIR: Mr. Brodkin, can you __.

17 BY MR. BRODKIN:

18 Q. You are aware of the guidelines for __

19 you testified, did you not, with respect to the Guidelines

20 for Professional Behaviour?

21 A. Are you referring to the document that

22 I have at my side here?

23 Q. Yes.

24 A. The Guidelines for Professional

25 Behaviour, yes, I am familiar with it.

102

1 Q. If you can turn to page __ beginning at

2 page 34, which is just the I guess cover, and turning to

3 page 36 at the top, to your knowledge is it correct where

4 it states that:

5 Q. "The Professional Misconduct

6 Regulation, (the Regulation) made under the Nurses Act,

7 1991 defines professional misconduct for Registered Nurses

8 (RNs) and Registered Practical Nurses (RPNs) in

9 considerable detail."

10 Q. Do you have any knowledge with respect

11 to that statement made?

12 A. The statement that is written here

13 defines professional misconduct but does not necessarily

14 give hypotheticals or situations related to it.

15 Q. It defines professional misconduct?

16 A. It __ well, I don't want to say the

17 word "define".

18 Q. That's what you said, though, it

19 defines professional misconduct?

20 A. It gives the information that describes

21 professional misconduct.

22 Q. Okay. Does it list, in effect, the

23 conduct that amounts to professional misconduct?

24 A. I can't recall.

25 Q. Okay. But you did testify with respect

103

1 to page 44, did you not?

2 A. Yes.

3 Q. And you testified with respect to Roman

4 numeral 9, "Conflict of Interest"?

5 A. Yes, I did.

6 Q. And do you have any knowledge as to

7 whether that item 26, "Practising the profession while the

8 member is in a conflict of interest", is in the law of the

9 Province of Ontario?

10 A. This is defined through the description

11 of professional misconduct.

12 Q. Okay, but you don't know whether or not

13 that's in the law or anything?

14 A. I cannot tell you whether the wording,

15 per se, is in the document.

16 Q. Okay. Would I be correct in stating

17 that what constitutes a conflict of interest varies with

18 each profession?

19 A. Can you describe "profession"?

20 Q. One of the regulated health professions

21 under the Regulated Health Professions Act, the main part,

22 the procedural code, and all of the acts flowing from the

23 Regulated Health Professions Act, one of the 37 regulated

24 health professions __ or I think it's 43 by now.

25 A. Through the RHPA conflict of interest,

104

1 each of the governing bodies have developed their own

2 position paper and description around conflict of

3 interest. The principles remain the same.

4 Q. How would a regulated health

5 professional go about ascertaining whether or not a

6 situation would or would not amount to a conflict of

7 interest?

8 A. They could consult with other members

9 of their profession. They can contact their governing

10 body. They can seek legal counsel.

11 Q. And assuming that member did one of

12 those things as opposed to all of those things __ again,

13 we are dealing with hypotheticals, so assuming __ you may

14 have listed, what, three, four or five or six things that

15 a member could do.

16 Q. Assuming that a member did one of those

17 things but not all of those things, do you feel that the

18 member should do everything or is it satisfactory for the

19 member to do just one thing?

20 A. It's my opinion that the member must

21 seek out all of the options that would cover the bases

22 required under that conflict of interest, and it could be

23 that one option is not going to suffice related to a

24 particular situation.

25 Q. Could we return to page A_1013, this is

105

1 again Exhibit 6, to the seventh bullet where you refer to

2 "CNO guidelines and standards". When you refer to "CNO

3 guidelines and standards", are you referring only to the

4 Guidelines for Professional Behaviour that have been

5 introduced as an exhibit or is there something else?

6 A. No, I am referring to the Standards of

7 Practice as established by the College of Nurses of

8 Ontario as well as the Guidelines that have been entered.

9 Q. So it's more these Guidelines for

10 Professional Behaviour __?

11 A. Correct.

12 Q. __ That have been entered as an

13 exhibit?

14 Q. And what is the other document you are

15 referring to?

16 A. The Standards of Practice, the College

17 of Nurses Standards of Practice document.

18 Q. And where does one find that?

19 A. Well, in my office I have a copy, and

20 in each of our offices we have copies, as well as you can

21 certainly get it from the College of Nurses of Ontario.

22 Q. In your opinion __ let's do it this

23 way.

24 Q. In your experience, has there ever been

25 an instance where you were of the view that there was no

106

1 power imbalance in the nurse_client relationship?

2 A. No.

3 Q. In every instance that you have

4 experienced there has been a power imbalance in the

5 nurse_client relationship?

6 A. It's inherent in the relationship.

7 Q. So it's not the reality then; it's the

8 appearance or perception?

9 A. I would have to say it's based on the

10 knowledge, experience of the sector you are working in, as

11 well as your knowledge of your standards of practice and

12 your professional obligations. And there is certainly __

13 if you are involved in delivering care to a client, the

14 power imbalance is even after the consent of treatment.

15 Q. Now, if we could go to the bottom of

16 page A_1013, the last bullet on the page, "Setting a

17 minimum number of hours per week as a block fee for

18 advocacy services is unethical."

19 Q. Assuming that it was the client and not

20 the member who set a minimum number of hours per week as a

21 block fee, in your opinion would setting a minimum number

22 of hours per week as a block fee be unethical?

23 A. It's still unethical because the nurse

24 is responsible for looking at the decisions and insuring

25 that the client is given all of the information and

107

1 setting the boundaries for that relationship.

2 Q. Now, you have testified that it's

3 inappropriate to bill block funding?

4 A. Yes, I did.

5 Q. From what do you derive that testimony?

6 A. Block funding, when you are doing

7 services within a period of time, does not necessarily

8 give the detail of whether you have over_estimated or

9 under_estimated the services. It's, in respect, billing

10 in advance of service and is against how nurses would bill

11 for service.

12 Q. Are you aware of the fact that the

13 courts of this province have held that it's appropriate to

14 bill block funding?

15 A. We have __.

16 MR. COLEMAN: I'm sorry, appropriate for

17 who to bill block funding? You say __ you are giving a __

18 you are a lawyer and you are giving a statement of law to

19 the witness. It's only fair that you state whatever law

20 you are referring to.

21 BY MR. BRODKIN:

22 Q. I am not referring to any law. I am

23 referring to do you have any knowledge, and your knowledge

24 can be gained from many sources other than strictly law

25 reports.

108

1 Q. Are you aware that in respect of the

2 physicians of this province that the courts have held that

3 it's appropriate for physicians of this province to bill

4 block funding?

5 A. I am not aware from a court of law that

6 physicians are allowed to bill block funding.

7 Q. Thank you.

8 Q. Let's deal with page A_1014, the third

9 bullet, the third paragraph, "The fee structure is

10 excessive."

11 Q. Assuming that it was the client and not

12 the member who set the fee structure, in your opinion

13 would the fee structure still be excessive?

14 A. Yes, the fee structure would still be

15 excessive, recognizing, if we look at competitive analysis

16 for services, that for nursing services that include

17 advocacy service, the fee structure is still excessive.

18 Q. To your knowledge, has Comcare ever had

19 a client who signed blank pieces of paper to be completed

20 or prepared or filled in subsequently by Comcare?

21 A. Blank pieces of paper?

22 Q. Blank let's call it letters, letters

23 where nothing is contained in the letter. The letter is

24 blank. The client signs his or her signature at the

25 bottom of the letter, a blank letter, a blank piece of

109

1 paper, to be filled in subsequently by Comcare?

2 A. No, I am not aware of that.

3 Q. Can we return to page A_1013, the

4 second_last paragraph, and this is the paragraph that

5 deals with the $50_a_day charge for 24_hour on_call

6 service being inappropriate.

7 A. Yes.

8 Q. Assuming that the member's nursing

9 agency was not the primary caregiver but another nursing

10 agency was the primary caregiver and Mr. K demanded

11 24_hour on_call service from the member, would the charge

12 be appropriate?

13 A. No, the charge is inappropriate. It's

14 inclusive of the service for nursing care.

15 Q. Assuming that the nursing agency is not

16 a 24_hour nursing agency but is only an 8_hour nursing

17 agency providing services 8 hours a day, is it the

18 responsibility of the 8_hour nursing agency to make this

19 resource available to the client?

20 A. That's quite an unusual agency,

21 recognizing that service is required 24 hours a day in the

22 community.

23 Q. Well, by that I mean service is only

24 being provided 8 hours a day.

25 A. Elaborate, please?

110

1 Q. All right. The nursing agency is not

2 providing 24_hour nursing services to the client. The

3 nursing agency is only providing 8_hour nursing services

4 to the client. The other 16 hours may be provided by the

5 client or other nursing agency or whatever.

6 Q. Is it the responsibility of the 8_hour

7 nursing agency to make the resources available to the

8 client?

9 A. Yes, it is.

10 Q. Now, I would like to deal with what you

11 may call difficult clients or non_compliant clients or

12 unmanageable clients. Have you ever dealt with those

13 kinds of clients?

14 A. Yes.

15 Q. And does Comcare have a policy and

16 procedures manual that might deal with those kinds of

17 clients?

18 A. Yes, we have policies that deal with

19 service contracts and establishing relationships with

20 those clients.

21 Q. And what does that __ what do those

22 policies say?

23 A. That we would render a resolution with

24 these clients through both internal and external

25 resources, that we would establish a contract that gives

111

1 parameters for service related to risk issues for both the

2 client and the staff, and we outline the conditions in

3 which we would provide that service.

4 Q. And has there ever been an instance

5 where you have outlined the conditions in which you would

6 provide that service and the client remains unmanageable

7 or non_compliant?

8 A. Yes.

9 Q. And then what transpires with respect

10 to that client?

11 A. Within that contract there is also a

12 discussion with them about potential transfer to another

13 agency or withdrawal of services, providing notice to that

14 individual and insuring that adequate services are put in

15 place if we withdraw.

16 Q. So there are instances where you have

17 withdrawn?

18 A. Yes.

19 Q. And the instances where you have

20 withdrawn, have there been any instances where you have

21 withdrawn in small communities where there were only one

22 or two or three other agencies that could be accessed?

23 A. Yes. In fact, that's __ Kingston is

24 one of those sites.

25 Q. And have there been any instances to

112

1 your knowledge where the other, talking about the one or

2 two or three other agencies, have already terminated; in

3 other words, you are the last agency?

4 A. The last resolution?

5 Q. Right, the last resolution and you have

6 made that decision to terminate, what then happens to the

7 client?

8 A. Before the termination, there is a

9 discussion with other resources to determine if there is

10 anything more that can be done for this particular client.

11 And we look at what we feel would be the best plan of

12 care, but the best plan of care, we keep in mind that the

13 client's wishes need to be addressed but we can't allow

14 someone to endanger the lives of our staff nor themselves

15 or other people.

16 A. So those are the parameters around what

17 determines the withdrawal of service overall.

18 Q. So are you saying that if you had a

19 client __ again, this is varying the hypothetical __ who

20 was charged with assaulting one or more of your nurses and

21 who was convicted of assaulting one or more of your

22 nurses, that you would terminate the contract?

23 A. If they were not prepared to agree to

24 the terms of the contract and our staff were still at

25 risk, and they also look at risk to themselves or to other

113

1 people, then we would look at other resources. We would

2 give the time to set up what we felt were the necessary

3 resources in conjunction with the client and the client's

4 family and withdraw within that term.

5 Q. Is there any instances that you are

6 aware of where that would leave the client with no

7 resources other than private duty nursing?

8 A. Yes.

9 Q. And are there any adverse consequences

10 in respect of __ are there any adverse consequences in

11 respect of using private duty nursing as opposed to an

12 agency?

13 MR. COLEMAN: If I could raise an objection

14 here, Madam Chair.

15 We have been on this line of inquiry for

16 some period of time now. This case is not about the

17 termination of nursing services by Ms. Munro and Elite.

18 It's not alleged that there was anything improper about

19 Elite terminating the nursing services.

20 This case is about consultation fees for

21 advocacy services charged to the client while the nursing

22 service was ongoing. So a line of questioning about

23 whether or not this expert is aware of situations where a

24 contract might have to be terminated is entirely

25 irrelevant. It's not part of this case.

114

1 THE CHAIR: Thank you, Mr. Coleman. Mr.

2 Brodkin.

3 MR. BRODKIN: I have no further

4 questions. I am concluded.

5 THE CHAIR: You have concluded your entire

6 cross_examination?

7 MR. BRODKIN: Yes.

8 THE CHAIR: Mr. Coleman.

9 MR. COLEMAN: If I had known that was going

10 to be the result, I would have made that objection much

11 earlier, Madam Chair.

12 If I could have perhaps ten minutes?

13 THE CHAIR: Certainly. Okay, we'll be back

14 in about ten minutes then.

15 (RECESS TAKEN.)

16 THE CHAIR: Thank you. Mr. Coleman,

17 redirect.

18 RE_EXAMINATION BY MR. COLEMAN:

19 Q. I just have one question for you,

20 Ms. Johnston.

21 Q. Mr. Brodkin asked you about when a

22 conflict of interest would arise, if the arrangement for

23 advocacy or consultation fees was made at one point of

24 time but nursing services were not actually rendered until

25 a later point of time.

115

1 Q. I wonder if you could tell us, since

2 the regulation refers to __ for the period after 1993

3 anyway, refers to practising the profession while the

4 member is in a conflict of interest, could you tell us is

5 a nurse practising the profession if the nurse meets with

6 the clients in the client's home to discuss nursing

7 services and arrangements by which those services are to

8 be paid? Is that nurse engaged in the practice of

9 nursing?

10 A. Yes.

11 MR. COLEMAN: Those are my questions, Madam

12 Chair.

13 THE CHAIR: Thank you, Mr. Coleman. I

14 believe the panel will have a few questions for you.

15 Ms. Slivinski.

16 MS. SLIVINSKI: Yes, just a quick question,

17 Ms. Johnston. When you say that you visit at a client's

18 house three to four hours, or however much time that you

19 are submitting time for, does that include travel time?

20 THE WITNESS: If you are talking about

21 visits __.

22 MS. SLIVINSKI: Or whatever.

23 THE WITNESS: The treatment time is the

24 time that you spend actually rendering care to the client,

25 and there is some confusion right now about what is direct

116

1 time or direct care and indirect care, but it does not

2 include the travel to the client's home, if you are

3 talking about three hours in the client's home.

4 MS. SLIVINSKI: Okay, so it doesn't include

5 travel time?

6 THE WITNESS: No.

7 MS. SLIVINSKI: Okay, thank you. I have no

8 more questions.

9 MS. JOHNSON: I have a few questions.

10 Regarding the insurance companies, if you

11 do your nursing assessment and decide that a less

12 qualified person than an RN or an RPN is required in the

13 home, would the insurance company change their policies so

14 that they would cover, say, an unregulated health care

15 provider?

16 THE WITNESS: The policies are established

17 through whatever means they have been established. So I

18 have never experienced a situation where a policy has

19 actually described the limitations or the criteria for

20 service and then amended that particular criteria to a

21 different level of staff.

22 MS. JOHNSON: So it's necessary, if the

23 insurance policy says that a Registered Nurse is required

24 to go into that home, then you as a provider would have to

25 put a Registered Nurse in that home to have the insurance

117

1 policy cover the funding of the care?

2 THE WITNESS: Yes, but it's not as simple

3 as that, because it is based on medical directive. The

4 majority of insurance policies related to private duty

5 nursing and nursing services require a physician's letter

6 that describes the services that none other than a nurse

7 can provide.

8 MS. JOHNSON: Okay, I see. I also have

9 another question. Do you always get a contract signed

10 when you involve Comcare? Is there always a contract that

11 Comcare signs with the client or the client's family

12 before service is commenced?

13 THE WITNESS: No, there is not always a

14 signed contract. If we are looking at the fact that

15 someone invites us into their home, that in itself is

16 consent. When we are dealing with our purchaser of

17 services, for example, the Home Care Programs, they do

18 obtain consent and establish the contract on our behalf.

19 MS. JOHNSON: So Home Care would do it __.

20 THE WITNESS: That's correct.

21 MS. JOHNSON: __ If you haven't done it.

22 THE WITNESS: That's correct.

23 MS. JOHNSON: I have also got one other

24 concern, is that if you start dealing with an extremely

25 difficult client and you are starting to worry about your

118

1 staff's safety, would you ever consider calling in the

2 police?

3 THE WITNESS: We have called in the police.

4 MS. JOHNSON: Now, can you use the police

5 department as a resource for you to help __ would you call

6 them in, say, a Home Care plan, that when you are trying

7 to __ that when you get the team together and you have got

8 a difficult client, would you involve a police resource to

9 help you resolve this conflict?

10 THE WITNESS: We have actually had

11 situations where the fire department, the police, the

12 discharge planners from the hospitals and the Home Care

13 Program have all been involved in the planning of service

14 for a particular client, so those options are all

15 utilized.

16 MS. JOHNSON: So have you been able to come

17 up with a resolution when you involve all these various

18 community players?

19 THE WITNESS: Have we been able to continue

20 to service that client in a safe, effective manner?

21 MS. JOHNSON: Yeah, well, service the

22 client and come up with a resolution that the client is

23 happy with and the caregivers are happy with?

24 THE WITNESS: Yes, we have.

25 MS. JOHNSON: I see, that's interesting,

119

1 Thank you.

2 THE CHAIR: I just have a few questions for

3 you, Ms. Johnston.

4 You stated that the agency absorbing

5 photocopying services, fax services, provision of

6 stationery and office supplies would be a conflict where

7 there were a financial gain from the provision of those

8 services.

9 What if there were no financial gain from

10 the provision of those services; do you still think there

11 would be a conflict?

12 THE WITNESS: For example, if we have a

13 client who has requested photocopying of their health care

14 record, we would not charge them for the photocopying of

15 that record and put a surcharge on it. That's an

16 administrative responsibility, and it's enclosed in __

17 inclusive in the rate that we charge.

18 THE CHAIR: Do you have a cap that you

19 would put on the amount of clerical support to clients

20 before you would consider charging them at cost?

21 THE WITNESS: We don't have a, per se, cost

22 that we would consider a cap for those charges. Again,

23 it's a matter of looking at what is it that the client is

24 requesting; is it really a nursing service issue; is it

25 better served through another source, and providing them

120

1 with those options.

2 THE CHAIR: But where there is no financial

3 gain on a member who is providing these types of services,

4 can you just explain a little more how you could see this

5 to be a conflict?

6 THE WITNESS: Where I would see it to be

7 a __ where there is no financial gain? I don't think I

8 said that.

9 THE CHAIR: No, where there is none. You

10 said where there is. But if there is no financial gain

11 for the specific services __.

12 THE WITNESS: For example, if there was

13 carry_through costs, for example, supplies that a client

14 requires and we are requested to provide them with the

15 supplies, we wouldn't put an administrative surcharge on

16 those supplies, but we would charge them for those

17 supplies related to their care.

18 THE CHAIR: So just at cost or a cost

19 recovery basis?

20 THE WITNESS: At cost, correct.

21 THE CHAIR: Okay. And in regard to the

22 24_hour on_call charge, you said that __ you implied that

23 both nursing agencies would be required to provide 24_hour

24 on_call services if two nursing agencies were involved

25 with the family?

121

1 THE WITNESS: The on_call service is part

2 of the plan of care and the availability of service for

3 that client, so it's irrelevant whether you are in there 8

4 hours or whether you are in there 24 hours.

5 THE CHAIR: So then in other words, both

6 agencies would be expected to provide it?

7 THE WITNESS: Yes.

8 THE CHAIR: Okay, thank you. Does anyone

9 have any further questions?

10 MS. JOHNSON: Regarding 24_hour care, when

11 would a patient use that, when a crisis develops? Or if

12 you haven't arranged to have 24_hour coverage, why would a

13 Home Care nurse have to be on call for 24 hours unless a

14 crisis develops?

15 THE WITNESS: And that's exactly what the

16 issues are, that there may be a need for increased

17 service, if there is a crisis, a change in condition __.

18 MS. JOHNSON: I see, so it's crisis

19 management that may occur, okay. Thank you.

20 THE CHAIR: Mr. Brodkin, any clarification

21 questions arising from the panel's questions?

22 BY MR. BRODKIN:

23 Q. Yes, just one additional question

24 arising out of your questions. You just testified with

25 respect to a cost recovery basis?

122

1 A. Correct.

2 Q. And charging a client on a cost

3 recovery basis in respect of the certain matters that you

4 have testified to?

5 A. Within the example that I have

6 provided, yes.

7 Q. Right. What is included __ what would

8 be included in cost?

9 A. The direct cost that we are incurring

10 to purchase that particular supply. There would not be

11 any mark_up or an inflated rate of any kind.

12 Q. So you are limiting yourself strictly

13 to supplies then?

14 A. No, that was the example that I used.

15 Q. All right. So there is a direct cost

16 recovery incurred with respect to the purchase of the

17 supply, meaning the cost of purchasing the supply?

18 A. That's correct.

19 Q. And what about in respect of other

20 matters other than supplies?

21 A. If you are talking about printing

22 material, would we charge a client for the fact that we

23 had to use a case of photocopy paper? I have never seen

24 that occur. Would we charge them for a package of

25 photocopy paper? I haven't seen that occur either. Have

123

1 we been asked to photocopy documents on behalf of a

2 client? Yes.

3 Q. What about faxing and resending __

4 sending faxes and receiving faxes if they were long

5 distance?

6 A. We have done that on behalf of the

7 client for correspondence related to their care and we

8 have not charged for that service.

9 Q. So are you saying then that the cost

10 recovery basis only applies to supplies? I guess

11 before __ ?

12 A. I am trying to think of other examples

13 of where it would be, and I can't really say that I have

14 experienced any other area where we have __ where I am

15 aware that we have charged.

16 Q. And when you speak about supplies, you

17 are meaning strictly medical supplies?

18 A. Yes, yes.

19 MR. BRODKIN: Those are all my questions.

20 THE CHAIR: Thank you, Mr. Brodkin. Mr.

21 Coleman, any questions?

22 MR. COLEMAN: I have no questions. Thank

23 you, Madam Chair.

24 THE CHAIR: Ms. Johnston, thank you very

25 much for coming and giving us your testimony today.

124

1 THE WITNESS: Thank you.

2 MR. COLEMAN: And with that, the College

3 closes its case.

4 THE CHAIR: Okay. Thank you, Mr. Coleman.

5 Mr. Brodkin, are you ready to proceed with __ .

6 MR. BRODKIN: Do we wish to deal with

7 additional days? I know I have informally been given the

8 days, so maybe we can formally deal with the days and put

9 it on the record __.

10 THE CHAIR: We could put it on the record

11 that the panel has booked September 15th and 16th and

12 November 10th. Those are the days we could __ .

13 MR. BRODKIN: Monday, September 15th and

14 Tuesday, September 16th.

15 THE CHAIR: And Monday, September the

16 10th __ no, November the 10th, I'm sorry.

17 MR. BRODKIN: Monday, November the 10th.

18 THE CHAIR: Those are the days. There was

19 some discussion about the possibility of needing a fourth

20 day just in case from one of the College staff. That

21 would be in both of your hands if you think that that

22 would be safer.

23 MR. BRODKIN: I don't think there is any

24 possibility of there being a fourth day.

25 MR. COLEMAN: I would never say there is

125

1 never a possibility of needing a fourth day.

2 THE CHAIR: The panel has reserved the 11th

3 and the 12th to begin deliberations, so __.

4 MR. COLEMAN: If necessary, we __.

5 THE CHAIR: __ If necessary, you may keep

6 that in mind.

7 MR. BRODKIN: The 11th is Remembrance Day.

8 THE CHAIR: That's correct. The College is

9 open on the 11th.

10 MR. BRODKIN: Okay.

11 THE CHAIR: So you just might keep that in

12 mind in September if things do seem to be expanding. But

13 the panel will be here on the 11th.

14 MR. BRODKIN: I am going to book the 11th

15 in case anybody else asks me, all right.

16 THE CHAIR: Or just a question mark.

17 You'll know by September I'm sure if you can tidy it up in

18 one day.

19 And are you ready to proceed?

20 MR. BRODKIN: Yes.

21 THE CHAIR: Thank you.

22 MR. BRODKIN: My first witness will be Mr.

23 Aivars Zvaigne.

24 MR. COLEMAN: I would just raise a point

25 here, Madam Chair, that we may have, and I have put my

126

1 friend on notice, in fairness to him.

2 The usual manner of proceeding is to call a

3 member as the first witness, and that's certainly not

4 required. Mr. Brodkin and Ms. Munro can decide how they

5 wish to present their case. However, if Mr. Zvaigne gives

6 evidence while Ms. Munro is present to hear the evidence,

7 then on any matter in dispute, it will be our position

8 that that evidence, as between Ms. Munro and Mr. Zvaigne,

9 is not reliable as evidence of corroboration because

10 Ms. Munro will not have given her evidence until she hears

11 what the other witness had to say.

12 That is why it is usually the practice for

13 the member to give her evidence first so that it cannot be

14 suggested that the member has tailored her evidence in

15 view of what she has heard her other witnesses say.

16 And I would just put Mr. Brodkin on notice

17 of that, that if that turns out to be the case, that we

18 will then take the position that Ms. Munro's evidence is

19 not reliable as corroboration for whatever it is that

20 Mr. Zvaigne may say.

21 THE CHAIR: I think the panel will need to

22 get some independent legal advice on that as well.

23 MR. BRODKIN: The difficulty, as I see it,

24 or one of the difficulties is that we only have one hour

25 and six minutes left.

127

1 THE CHAIR: That's correct.

2 MR. BRODKIN: Ms. Munro is going to be on

3 the stand for a significant period of time and Mr. Zvaigne

4 isn't.

5 And I would be quite amenable if the panel

6 would say to adjourn today, and I'll put Ms. Munro on the

7 stand first next time. But Ms. Munro is going to be on

8 the stand for more than one hour and six minutes.

9 THE CHAIR: Oh, definitely.

10 Well, if it would make the testimony __ as

11 Mr. Coleman says, if you are going to make submissions

12 because of the order of witnesses that the testimony

13 shouldn't be relied on __ .

14 MR. COLEMAN: Depending on how the evidence

15 unfolds. If they are giving evidence about entirely

16 unrelated matters, then it may not be an issue at all,

17 Madam Chair.

18 The point is that if we are hearing two

19 witnesses for the defence and it is the role of the second

20 witness, that is, Mr. Zvaigne, to support Ms. Munro

21 regarding her evidence in certain matters, the support is

22 gained by having one witness apparently confirm what the

23 other witness is telling us in evidence.

24 THE CHAIR: Yes.

25 MR. COLEMAN: And if it turns out the

128

1 member has had the opportunity to hear what her other

2 witnesses have to say before she gives evidence, it raises

3 suspicion or at least it creates a doubt as to the

4 reliability of her evidence.

5 I simply point that out. I don't suggest

6 for a moment that we can block Mr. Brodkin from proceeding

7 in this manner or that you should direct him to proceed

8 otherwise. I simply note for the record and in fairness

9 to him that I will certainly avail myself of that

10 opportunity to comment adversely on his evidence or on the

11 evidence presented if that turns out to be the case.

12 Now, it is also our view that we have a

13 good full hour remaining of the day and that we should

14 start on the defence's case, and if that means getting

15 started on Ms. Munro but not completing her, we take the

16 position that that's exactly how we should proceed. It's

17 not the perfect scenario, but then nor is ceasing the

18 proceeding an hour early the ideal solution.

19 THE CHAIR: Mr. Brodkin?

20 MR. BRODKIN: I would prefer __ if we are

21 going to continue, I would prefer to call Mr. Zvaigne. I

22 wouldn't want my examination of a witness broken up, as it

23 were, for the significant period of time that we are

24 talking about. Were we talking about the hearing resuming

25 in the month of August even, the witness would presumably

129

1 recall his or her testimony, it having been a relatively

2 brief period of time. But now that we are talking in

3 September, to break up a witness's examination just to me

4 doesn't seem appropriate. And I felt that we could get

5 through Mr. Zvaigne's testimony and then the

6 cross_examination would begin.

7 THE CHAIR: And the question of Ms. Munro

8 leaving the room is not possible, is it, during his

9 testimony?

10 MR. BRODKIN: I have no problem with

11 Ms. Munro leaving the room during his testimony.

12 MR. COLEMAN: That's another option that at

13 times is exercised. Again, it isn't in my mouth to make

14 that as a suggestion to the other side, but it's certainly

15 an option if Ms. Munro is not present in the room and does

16 not discuss the evidence with Mr. Zvaigne, then that would

17 certainly __ .

18 THE CHAIR: Well, do you want to discuss

19 that with Ms. Munro and see if that's a possibility?

20 MR. BRODKIN: Sure, yes.

21 THE CHAIR: We'll give you a few minutes to

22 see.

23 MR. BRODKIN: Five minutes?

24 THE CHAIR: Sure.

25 (RECESS TAKEN.)

130

1 THE CHAIR: Have you come up with any

2 solution?

3 MR. BRODKIN: Yes, we will be calling Mr.

4 Aivars Zvaigne at this time as a witness.

5 MR. COLEMAN: And what about Ms. Munro, is

6 she going to be staying in?

7 MR. BRODKIN: And she will be staying here.

8 MR. COLEMAN: Okay.

9 THE CHAIR: I think Ms. Jacalan will need

10 to change the name.

11 We do believe we can get through this

12 witness before 4:30?

13 MR. BRODKIN: I am hoping that we can, but

14 I am not expecting that we can.

15 MR. COLEMAN: We are really no further

16 ahead then, but...

17 MR. BRODKIN: Whatever the panel would

18 like. I'll begin or if the panel wants to adjourn...

19 THE CHAIR: We are just worried about the

20 long_term results of this.

21 MS. JOHNSON: You don't think you can get

22 through this in an hour?

23 MR. BRODKIN: If I was to guess now, I

24 would say approximately one hour.

25 THE CHAIR: Just for __.

131

1 MR. BRODKIN: This is just for my questions

2 of Mr. Zvaigne.

3 THE CHAIR: Okay, well __.

4 MR. COLEMAN: Just to comment on the

5 situation, Mr. Brodkin doesn't want to call the member

6 because he feels that she will be partway through her

7 evidence and not completed as a witness, and undoubtedly

8 the witness that he is going to call, possibly out of

9 order, and I will make submissions to that effect, is a

10 witness who won't be completed either who will be carried

11 over to the next day.

12 MR. BRODKIN: There is a much greater

13 likelihood that Mr. Zvaigne will be completed in_chief.

14 MR. COLEMAN: But he is still to be

15 cross_examined.

16 THE CHAIR: But your point is you don't

17 want to interrupt your examination_in_chief.

18 MR. BRODKIN: My in_chief.

19 THE CHAIR: We are just going to discuss

20 this, okay, in terms of order. We'll try to be less than

21 one minute.

22 (RECESS TAKEN.)

23 THE CHAIR: The panel has decided that in

24 the interests of fairness to the member and perhaps in

25 preventing some long_term delays with another motion and

132

1 more submissions down at the end, we'll adjourn for the

2 day and you can start again and complete your entire

3 examination_in_chief with Ms. Munro and then her testimony

4 will be taken at its value given in that context.

5 MR. BRODKIN: Thank you very much.

6 THE CHAIR: All right. So we'll adjourn

7 and we'll reconvene September 15th.

8 MR. BRODKIN: That's 9 o'clock in the

9 morning?

10 THE CHAIR: Yes, 9 o'clock in the morning,

11 Monday, September 15th, okay. Thank you.

12 ___ Whereupon the hearing adjourned at 3:30 p.m.

I HEREBY CERTIFY THE FOREGOING

to be a true and accurate

transcription of my shorthand notes

to the best of my skill and ability.

Deana Santedicola, CSR, RPR, CRR

Computer_Aided Transcription