Full Text for: Yvon Biron, #90-1152-9 Date of Editing: September 13, 1999

Discipline Committee Of The College Of Nurses Of Ontario Panel:

[Names of Panel Members]

BETWEEN

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

• and -

YVON BIRON #90-1152-9

REASONS FOR DECISION

Counsel for Yvon Biron

Heard: May 12-13, 1999

A panel of the discipline committee of the College of Nurses of Ontario (the "College") convened a hearing at the College's premises, May 12 and 13th, 1999. Counsel for the College informed the panel that there were two Notices of Hearing as there were two sets of allegations (Exhibit #1 and #2) against Yvon Biron,(the "Member") and that the hearing would be proceeding on an Agreed Statement of Fact. The panel noted that the Member was not in attendance but was represented by counsel.

The first set of allegations 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, c.32, as amended, in that on December 2, 1997 at the Court of Quebec, Criminal and Penal Court, in Hull, Quebec, you were found guilty of an offence that is relevant to your suitability to practise, in that you pleaded guilty to the charge of living off the proceeds of prostitution of another person; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, in that during the months of August and September, 1997 while working as a Registered Nurse at [the institution] in the City of Ottawa, in the Province of Ontario, you sexually abused a patient, namely [the first Complainant].; and/or

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that during the months of August and September, 1997 while working as a Registered Nurse at [the institution] in the City of Ottawa, in the Province of Ontario, you abused a client physically and/or emotionally in that you engaged in a non-therapeutic, personal and/or romantic and/or sexual relationship with a patient, namely [the first Complainant]; and/or

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that during the months of August

and September, 1997 while working as a Registered Nurse at [the institution] in the City of Ottawa, in the Province of 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:

a. were found guilty of an offence that is relevant to your suitability to practise, in that you pleaded guilty to the charge of living off the proceeds of prostitution of another person; and/or

b. engaged in a non-therapeutic, personal and/or romantic and/or sexual relationship with a patient, namely [the first Complainant].

The second set of allegations are as follows:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, in that in or about October, 1996 while working as a Registered Nurse at [the institution] in the City of Ottawa, in the Province of Ontario, you sexually abused a patient, namely [the second Complainant].; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and defined in subsection 1(7) of Ontario Regulation 799/93, in that in or about October, 1996 while working as a Registered Nurse at [the institution] in the City of Ottawa, in the Province of Ontario, you abused a client physically and/or emotionally, in that you:

a. engaged in a non-therapeutic, personal and/or sexual relationship with a patient, namely [the second Complainant]; and/or

b. made inappropriate physical contact with a patient, namely [the second Complainant]; and/or

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that in or about October, 1996 while working as a Registered Nurse at [the institution] in the city of Ottawa, in the Province of 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:

a. engaged in a non-therapeutic, personal and/or sexual relationship with a patient, namely [the second Complainant]; and/or

b. made inappropriate physical contact with a patient, namely [the second Complainant]; and/or

c. engaged in inappropriate discussions and made inappropriate comments to a patient, namely [the second Complainant], about her physical appearance and your personal life.

Through counsel, the Member admitted all allegations. In the circumstances, the panel dispensed with the plea inquiry.

The Agreed Statement of Fact is reproduced below:

AGREED STATEMENT OF FACT

1. Yvon Biron (the "Member") is a Registered Nurse. He completed his studies in nursing at Hull, Quebec and became a member of the College of Nurses of Ontario (the "College") in 1989.

2. The Member became employed as a nurse at [the institution] (the "Hospital") in Ottawa in 1989. In 1994 he began working on the Psychiatric Unit (the "Unit") of the Hospital. That Unit consists of 30 in-patient beds, and also provides an out-patient program. In 1996 and 1997 the Member worked as a part-time nurse on the Unit.

The Patient [the first Complainant] (Notice of Hearing re: 1997 Allegations 2, 3 and 4(b))

3. [The first Complainant] was admitted to the Hospital's Psychiatric Unit in August 1997. [The first Complainant] met the Member soon after she arrived on the Unit. She had been assigned to a private room and the Member often came to speak with her there when she was alone. He spoke to her about his personal life, his girlfriend, and problems in his sexual relationship with his girlfriend. He told [the first Complainant] that he was having fantasies of having sexual relations with two women at the same time.

4. The Member told [the first Complainant] that he was setting up an escort service. He discussed with her how to run the business. For example, he discussed with her what "services" his employees would provide, and how much customers would be charged.

5. The Member gave [the first Complainant] the access code to his garage so that she could get into his house once she was released from the Hospital. He also gave her his cellular telephone number. He telephoned her on the patient's line when he was off duty, suggesting that he knew she could leave the Hospital and that he would come to get her.

6. In August , 1997 [the first Complainant] refused further treatment and left the Hospital. As she had nowhere else to go, she went to the Member's home. He was away, but she used the access code he had given her to gain entry to the home. She stayed there for four days. After she left the house, the Member telephoned her repeatedly.

7. On September , 1997 [the first Complainant] was again admitted to the Psychiatric Unit of the Hospital. Although she was sharing a room with another patient, the Member continued to come to see [the first Complainant] in her room. On one occasion she woke up to find him touching her breasts and genitals under her clothes. On another occasion, he kissed her, tried to masturbate her, and penetrated her vagina with his finger.

8. There was sexual touching of [the first Complainant] by the Member on several occasions. The touching happened several times in [the first Complainant]'s room, but also in the medication room and in the kitchen. The Member kissed her, touched her breasts, touched her buttocks, and touched her genitals. He asked her to have sexual relations with him. [The first Complainant] refused these proposals. On one occasion, the Member asked her to perform fellatio on him. He masturbated and ejaculated in [the first Complainant]'s presence.

9. [The first Complainant] reported the Member's behaviour to Hospital staff in early October, 1997. The Member's employment was terminated on October 17, 1997.

The Criminal Conviction (Notice of Hearing re: 1997 Allegations 1 and 4(a)

10. On October 9, 1997 the Member was charged in Hull, Quebec with the criminal offence of living on the avails [proceeds] of prostitution. It had been determined after investigation by a private investigator hired by the Hospital that the Member was running an escort service.

11. On December 2, 1997 the Member was convicted upon his plea of guilty to the criminal charge. He was sentenced to pay a fine of $1000 and was placed on probation for one year.

The Patient [the second Complainant] (Notice of Hearing re: 1996)

12. [The second Complainant] was admitted to the Psychiatric Unit of the Hospital in January, 1994.

13. [The second Complainant] had contact with the Member during this admission to the Unit. The Member administered medication to her and he accompanied her on walks on the grounds of the hospital. The Member and [the second Complainant] sat and talked in the smoking room during the evening when she was unable to sleep.

14. [The second Complainant] was admitted to the Hospital's Psychiatric Unit on a second occasion in January 1996. [The second Complainant] expressed a fear of men to the staff on the Unit. She did not wish to be cared for by male nurses. Consequently, only female nurses were assigned to her care during this admission. The Member spoke with [the second Complainant] on occasions

when he was working on the unit.

15. After her discharge from the Hospital, [the second Complainant] continued to frequent the Unit on an out-patient basis. When the Member noticed [the second Complainant] on the Unit, he approached her. During one visit in the fall of 1996, the Member stopped to talk with [the second Complainant] The Member commented to [the second Complainant] on how well she looked. The Member then asked [the second Complainant] for her telephone number, which she provided to him.

16. In October, 1996 the Member telephoned [the second Complainant] at her home and made plans to meet to have a drink and talk. The Member arranged to meet [the second Complainant] at a car park. They did meet, and the Member then led [the second Complainant] to a house nearby, which he identified as his home.

17. The Member took [the second Complainant] into the house and into a sitting area in the basement. At that time, he told [the second Complainant]:

i. His girlfriend was also a nurse but she worked on opposite shifts and he therefore rarely saw her;

ii. His girlfriend was not affectionate with him, whereas he was a very affectionate person;

iii. He and his girlfriend had not had sex for a long time;

iv. He had been keeping a bottle of wine for a special occasion as he liked wine but his girlfriend did not drink; being with [the second Complainant] was a special occasion and therefore he would open the bottle;

v. He wanted to have a mistress with whom he could engage in activities that he could not with his girlfriend.

18. In response to the Member's statements, [the second Complainant] said that she did not wish to be the Member's mistress or anybody else's mistress. The Member then offered her wine and they both drank. [The second Complainant] was on medication at the time and she had been cautioned by her psychiatrist about drinking alcohol. However, [the second Complainant] had complete confidence in the Member and believed that he would not have offered her alcohol if he felt it was unsafe for her to drink.

19. The Member took [the second Complainant] for a tour around the house. During the tour, he stood very close behind her and held her body to his from behind, with his arms locked around her waist. [The second Complainant] felt great discomfort with this, but she did not object.

20. The Member returned with [the second Complainant] to the sitting area in the basement. They sat on the couch and began to watch a movie on the VCR. The Member sat close to [the second Complainant] and then began to kiss her, placing his tongue in her mouth. He began to undress her, running his hands under her skirt, lifting up her shirt, touching her breasts and kissing her breasts.

21. The Member led [the second Complainant] to a nearby room, also in the basement, where there was a double bed. He undressed [the second Complainant] completely and then undressed himself. [The second Complainant] felt panicked, but she was unable to say anything.

22. The Member laid [the second Complainant] on the bed and lay down beside her. He kissed her, and touched her body, including her vagina and her breasts. The Member then lay on top of [the second Complainant], with his penis touching her vaginal area. She lay stiff and would not open her legs. The Member made statements to the effect that he would not hurt her and that "it was OK". The Member persevered with touching and kissing her.

23. [The second Complainant], finally told the Member, "No". She got up and dressed and went back to the sitting area. The Member joined her shortly thereafter, sat next to her and continued to touch and kiss her. [The second Complainant] got up from her seat and she and the Member went to smoke a cigarette in the garage. [The second Complainant] left the house shortly thereafter.

24. The Member telephoned [the second Complainant] once or twice after this incident, but she did not return his calls. When she saw him at the Hospital, she avoided him.

25. [The second Complainant] did not disclose the Member's conduct until the spring of 1998, when she discussed it with her therapist. The matter was brought to the attention of the Hospital administration, who in turn informed the College in August, 1998. On September 24, 1998, the College imposed an interim suspension on the Member.

The Expert Opinion

26. [The Expert witness], a Professor and Associate Dean of the Department of Nursing Science at a university, has been qualified as an expert witness in psychiatric nursing and given expert evidence before panels of the Discipline Committee of the College on several occasions. She would testify that where a nurse has participated in the psychotherapeutic care of a client as an in- patient, and the client subsequently attends at the hospital as an out-patient, there continues to be a nurse-client relationship in existence. Pursuant to the College's Guidelines for Professional Behaviour, in the case of psychotherapeutic treatment, the nurse must not engage in a romantic and/or sexual relationship with the client either during the nurse-client relationship, or for one year after its termination. Further, in the context of a psychotherapeutic relationship, it cannot be contended that the client is a "willing" participant in a romantic and/or sexual relationship with the nurse. The nurse occupies a position of power over the client due to the nature of the treatment process.

FINDINGS OF PROFESSIONAL MISCONDUCT

The panel accept the facts as set forth in the Agreed Statement of Fact and finds the Member guilty of professional miscounduct on all charges as specified in both notices of hearing.

PENALTY DECISION:

The panel directs the Executive Director to revoke the Member's Certificate of Registration. Revocation is mandatory under the Health Professions Procedural Code, subsection 51(5), which provides as follows: 'if a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under Subsection (2)'.

1. Reprimand the Member

2. Revoke the Member's Certificate of Registration if a sexual abuse consisted of, or included, any of the following:

i. sexual intercourse

ii. genital to genital, genital to anal, oral to genital, or oral to anal contact,

iii. masturbation of the Member by, or in presence of, the patient,

iv. masturbation of the patient by the Member,

v. encouragement of the patient by the Member, to masturbate in the presence of the Member."

The panel's order also requires the Member to appear before the panel to be reprimanded as required by the Code. Consequently, the panel also recommends to the College of Nurses of Ontario that the College notify the registrar of the Order of Nurses of Quebec concerning the decision of this panel at the College's earliest convenience.

Because of the close proximity of the Ottawa-Ontario, and Hull-Quebec regions, nurses may be registered and employed in both provincial jurisdictions. It is for this reason that the panel believe it important that the Quebec nursing governing body be made aware of the panel's decision.

REASONS FOR PENALTY DECISION

The panel also finds that the Member's behaviour as specified in the Agreed Statement of Fact is of a most egregious nature and represents behaviour destructive to the profession of nursing in addition to

the harm done to the two patients involved.

In considering the serious nature of the offences, the panel was mindful of the fact that a distinct message of deterrence should be conveyed to both the College's membership and the public. However, considering that the Member's certificate of registration has been under interim suspension for a considerable length of time and that the Member's cooperation with the College was confirmed by College counsel, it is the decision of the panel not to impose a fine. The panel is particularly mindful that the Member's cooperation obviated the need for the two female victims to appear before the panel and undergo the stress of testifying, possibly over an extended period. The decision not to impose a monetary penalty should not be seen as detracting from the panel's belief that general deterrence is of critical importance.

The panel strongly believes that the revocation of the Member's certificate of registration is essential to the protection of the public. It is the hope of the members of the panel that the penalty imposed in this case conveys a strong message to both the College membership and the public. To be clear, that message is that such abominable behaviour will not be tolerated and that protection of the public is the paramount consideration in cases of this nature.

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 as listed below:

, Chairperson Date [Names of Panel Members]