College of Nurses of Ontario v. The Member, RPN, 1999 ONCNO 36531

Discipline Committee of the College of Nurses of Ontario

Panel: [Panel Members]

Between: College of Nurses of Ontario

[ ] for College of Nurses of Ontario

• and -

The Member, RPN

Member Unrepresented

Heard: September 23, 1999

Reasons for Decision

A panel of the Discipline Committee met to hear the following allegations against [the Member], (the "Member") as contained in Exhibit #1, the Notice of Hearing:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, in that on June 22, 1998 in the Ontario Court of Justice (General Division) [ ], Ontario, you were found guilty of an offence that is relevant to your suitability to practise, in that you pleaded guilty to the charge of sexually assaulting [the victim] and/or;
2. You have committed an act of professional misconduct as provided by subsection 5(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that during the period between December 15, 1986 and March 1, 1987 at the [ ], Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that you sexually assaulted [the victim].

The Member was not present nor was he represented by legal counsel.

Counsel for the College of Nurses of Ontario ("CNO" or "the College") filed an Affidavit of Service proving that the Member had been served with a Notice of Hearing on July 16, 1999. CNO counsel submitted that because the Member was not present, the allegation was not admitted. CNO counsel requested a publication ban of the Member's daughter's name ([the victim]) and the panel made the order as requested.

Evidence on the Hearing

A CNO staff member testified that the Member was initially registered with the College on September 29, 1987, and maintained his registration until December 31, 1998. In 1999 his registration was suspended for non-payment of fees.

An Ontario Court of Justice Indictment dated November 29, 1996, was filed as Exhibit #2. This exhibit showed that the Member was charged that he, between December 15, 1986, and March 1, 1987, [ ], did sexually assault [the victim], contrary to Section 246.1 (1) of the Criminal Code of Canada.

Evidence revealed there were two incidents of sexual assault involving [the victim], the Member's daughter.

Court records filed during the hearing revealed that the Member pleaded guilty to the charge on June 22, 1998 and a conviction was entered by the presiding judge.

Exhibit #4 before us was a transcript of the sentencing hearing before the Ontario Court of Justice. On September 1, 1998, the Member was ordered to serve a nine-month custodial term but, due to several factors, was permitted to serve the sentence in the community (at his home).

Counsel for the College, referred the panel to Sections 13 and 14 of the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991):

13 (1) A person registered by the College is a member. 13 (2) A person whose certificate of registration is suspended is not a member.

14 (2) A person whose certificate of registration is suspended continues to be subject to the jurisdiction of the College for incapacity and for professional misconduct or incompetence referable to the time when the person was a member or to the period of the suspension.

The panel accepts that the statute provides it with jurisdiction over this matter in that the Member pleaded guilty and was sentenced for the offense while he was a Member of the College.

[Witness #1] has been Nurse Manager at [the institution] testified that she had first met the Member when he was a consolidation student at the hospital. As his immediate supervisor, she testified he left the hospital in March of 1998 on sick leave and is currently on long-term disability.

The unit where [the Member] had been employed cared for a wide range of male and female clientele from age 18 and up with the occasional client in the 16 to 18 year range. [Witness #1] testified that the job responsibilities of an RPN on the unit involved admission, treatments plans, education, activities of daily living, care of primary, secondary and other clients, and working with clients to increase their coping skills so that they may return to living in the community. RPNs on the unit are part of the multidisciplinary team and are responsible for documentation. Their responsibilities include one-on-one relationships with the clients.

It was [witness #1]'s evidence that the RPN is placed in a position of power, trust and authority in the relations with clients.

[Expert Witness] is currently with the Department of Nursing at the University of Toronto. Since 1990, she has been a senior researcher, at the Department of Nursing, the Clarke Institute of Psychiatry.

[The Expert Witness] was tendered by CNO counsel as an expert in the scope of professional nursing practice, especially regarding boundaries as related to nurse-client relationships in psychiatric nursing. The panel accepted [the Expert Witness] as an expert as tendered.

CNO Counsel supplied [the Expert Witness] with a hypothetical scenario similar to the case before the panel regarding a Member's sexual assault of his daughter.

[The Expert Witness] testified that the sexual assault attributed to the Member in the scenario presented was an offense relevant to his suitability to practice nursing. [The Expert Witness] testified that therapeutic relationships are ones of trust, respect, dignity and empowering of the client.

She stated that sexual assault of one's child is a betrayal of trust, integrity and abuse of power of the worst kind. She stated that the actions of the Member in the scenario were contrary to every fundamental value of the nursing profession. This behavior was exploitation of his daughter when he should have been providing her with an environment of trust, safety and respect.

When informed by CNO counsel that the Member's area of practice in the scenario was that of a psychiatric nurse, [the Expert Witness] testified that it was her opinion that the Member should not be practicing in that setting. She stated that such clients are extremely vulnerable for exploitation and the role of the nurse is very important in developing a trusting relationship with clients in the psychiatric treatment situation. She said we must be extremely cautious; she would worry about him re-offending.

Submissions by College Counsel

Allegation #1

College counsel submitted that sexual assault of his daughter by the Member had been proven by the evidence before the panel. She submitted that the expert witness, [the Expert Witness], in her opinion, had testified that the behavior of the Member was an offense highly relevant to his suitability to practice nursing generally and in the psychiatric setting in particular. Counsel pointed out that in the criminal proceedings, the presiding judge had described the behavior of the Member as involving serious offenses and a significant breach of trust.

Allegation #2

College counsel suggested that, in effect, no evidence in connection with Allegation #2 had been put before the panel and suggested that no finding of professional misconduct be made in relation to that allegation.

Decision

The panel found that the Member had committed an act of professional misconduct as stated in Allegation #1 in the Notice of Hearing. The panel also concluded that the College had not presented any evidence directed at Allegation #2 and therefore did not make any finding in regard to Allegation #2.

Reasons

The Panel accepted the evidence of the criminal court in relation to the criminal charge of sexual assault of the Member's daughter and the fact that he pleaded guilty to the charge and was sentenced by the court. The panel also accepted the opinion of the expert witness, [the Expert Witness], that the behavior of the Member constituted an abuse of the Member's position of trust and, in fact, made him unsuitable to continue his practice in the nursing profession.

Penalty

The CNO's position, as stated by counsel, is that the Member should be orally reprimanded and that his certificate of registration be revoked for the following reasons:

1. The nature of the criminal offense as established was a gross abuse of his position of trust and that it involved two incidents of sexual assault;
2. Protection of the public so that clients are not put at risk by Members of the profession;
3. The maintenance of the public image of the profession;
4. Absence of the Member at the CNO hearing and absence of information concerning possible rehabilitation or mitigating factors.

Decision and Reasons

The panel concurred with the recommended penalty as put forward by the College counsel and also concurred with the penalty criteria as put forward by College counsel.

In addition, the panel believed that revocation of the Member's certificate of registration would be a significant deterrent to other members of the profession and a clear message to the public that the College and the profession would not condone such behavior by one of its members. This behaviour has rendered him unsuitable to continue to practice in this profession.

I, [panel chair], sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel [ ]