College of Nurses of Ontario v. Unnamed Member, 1999 CanLII 36533

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Note: This is the full text of the decision of the Discipline panel in this matter. Any information identifying clients, witnesses or facilities has been removed [ ]. The member's name is omitted if the allegations have been dismissed or if the results are not placed on the public portion of the Register.

Panel:

Marsha Taylor, RPN Chairperson

Jo-Anne Marr, RN Member

Kien Campbell, RPN Member

Sophie Young Public Representative

Victor Kingsley Public Representative

BETWEEN

COLLEGE OF NURSES OF ONTARIO Counsel for College of Nurses of Ontario

• and -

[Name of member and Registration Number Deleted] MEMBER UNREPRESENTED

Heard: November 9, 1999

AMENDED DECISION AND REASONS

A panel of the Discipline Committee of the College of Nurses of Ontario ("the College") convened on November 9, 1999 at 0900 hours, at the Hearing Room of the Royal College of Dental Surgeons of Ontario, 4th Floor, Crescent Road, Toronto, Ontario.

The Member was not represented by Legal Counsel, nor was the Member present. The hearing adjourned for approximately thirty minutes in order to give the Member an opportunity to appear. The panel received notification that the Member had arrived for the hearing at the incorrect location and consequently, the proceedings were further delayed until the Member's arrival.

NOTICE OF HEARING

The Notice of Hearing was introduced into evidence as Exhibit #1. The allegations against the Member are as follows:

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, Vol. 2, c.32, in that on May 15, 1998, in the Ontario Court (Provincial Division) in [ ], you were found guilty of an offence relevant to your suitability to practice, and in particular, you were convicted of committing a sexual assault on [the complainant], contrary to subsection 271(1) of the Criminal Code of Canada.

College counsel advised the panel that she had reviewed the procedures the panel would follow with the Member.

MEMBER'S PLEA

The Member admitted that he had committed an act of professional misconduct as provided in Allegation #1 to the Notice of Hearing.

PLEA INQUIRY

The Chair conducted its usual Plea Inquiry in order to ensure that the Member's admission of professional misconduct as alleged, was informed and voluntarily made. The Member's answers to the questions asked by the panel confirmed that his admission of professional misconduct was informed and made voluntarily.

THE EVIDENCE

Counsel for the College introduced the following evidence:

1. A copy of the Certificate of Conviction of Sexual Assault contrary to Section 271(1) of the Criminal Code of Canada (Exhibit #2);
2. Proceedings at Plea & Proceedings at Sentence (Exhibit #3);
3. The Presentence Report (Exhibit #4);
4. The Psychotherapy Report (Exhibit #5) - The Member referred himself for assessment and counselling for his sexually abusive behaviour towards [ ];
5. The Curriculum Vitae of the expert witness (Exhibit #6) The panel accepted the Curriculum Vitae as evidence of the expertise of [ ];
6. A summary of the expert opinion of [ ] (Exhibit #7) - A summary of the expert opinion of [ ] presented the relevance of the Member's suitability to the practise of nursing.

FINDING OF PROFESSIONAL MISCONDUCT

The panel considered the evidence and the fact that the College bears the onus of proving the allegations in accordance with the standard of proof as set out in Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON HCJ), 15 O.R. (2d) 447, namely, that the proof must be clear and convincing and based upon cogent evidence which is accepted by the panel.

After considering the evidence, the panel found that the Member had committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code, in that the Member was convicted of committing a sexual assault on [the complainant], contrary to Section 27(1) of the Criminal Code of Canada, which, in the opinion of the panel, was an offence relevant to the Member's suitability to practise.

REASON FOR DECISION

In the opinion of the panel in that the Member committed an act of professional misconduct as set out in Allegation #1, that it was of such severe significance the Member's return to practice would require extensive education and rehabilitation:

1. Suitability to practice nursing in an adverse manner;
2. Public and private behaviours are not separate. The Member's behaviour displayed poor judgement and is directly relevant to his capacity to maintain a professional therapeutic relationship with clients in a health care setting.

PENALTY

Counsel for the College recommended that the Member's Certificate of Registration be revoked. The Member did not contest the penalty submission.

PENALTY DECISION

After considering the submissions of College counsel and the Member, the panel accepted the penalty recommendation of revocation of the Member's Certificate of Registration. The panel accordingly directs that the Registrar of the College revoke the Member's Certificate of Registration, effective immediately.

REASONS FOR DECISION ON PENALTY

The panel accepted the proposed penalty for the following reasons:

1. Counsel for the College presented the panel with the information that the Member had previously and voluntarily, surrendered his Certificate of Registration;
2. Counsel indicated that the Member was not interested in practicing as an RPN, nor was the Member interested in pursuing a career in nursing in the future;
3. The Member expressed remorse and a profound sense of regret to Counsel for the College;
4. The Member acknowledged the seriousness of the misconduct and apologized for any disrespect brought to the College and the profession of nursing as a result of his misconduct

In accepting the penalty, the panel took into consideration the nature of the misconduct and the mitigating factors which were reiterated by both counsel for the College and the Member. The mitigating factors considered by the panel included the Member is no longer engaged in the practice of the profession nor does the Member wish to practice the profession in the future.

The Member admitted his behaviour amounted to professional misconduct. The Member expressed genuine remorse and a profound sense of regret. The Member had previously and voluntarily surrendered his Certificate of Registration.

The Member acknowledged the seriousness of the misconduct and apologized for any disrespect brought to the College and the professions of nursing as a result of his misconduct.

The panel concluded that the objectives of specific deterrence to the Member's future conduct, remediation to prevent a recurrence of the particular misconduct and general deterrence to the members of the profession will be fulfilled, thereby serving the College's mandate to protect the public interest.

I, Marsha Taylor, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel [ ]