College of Nurses of Ontario v. [the Member], 2001 ONCNO 62571

FULL-TEXT DECISION

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 allegations have been dismissed or if the results are not placed on the public portion of the Register.

Discipline Committee Of The College Of Nurses Of Ontario

Panel:

Kay Wetherall, Public Member, Chairperson

Janise Johnson, RN, Member

Gabrielle Bridle, RPN, Member

Christine Barber, RPN, Member

Veronica Kerr, Public Representative

BETWEEN

COLLEGE OF NURSES OF ONTARIO

Michelle Fuerst for College of Nurses of Ontario

• and -

[the Member]

ROBERT STEPHENSON for [the Member]

Heard: March 28, 2001

REASONS FOR DECISION

A panel of the Discipline Committee of the College of Nurses of Ontario (CNO) was convened on March 28, 2001, for a hearing concerning allegations against [the Member], RN. The Member was present as was his defence counsel. The allegations as presented within the January 24, 2001, Notice of Hearing are fully set out below:

Counsel for the College reviewed the Notice of Hearing (Exhibit #1) with the panel, indicating that the Member would admit to allegation #1(a, b, c, d, e, f, g, h, i, j, and n). Counsel for the College informed the panel that allegation #1 (k, l, and m ) and allegation #2 were withdrawn.

The Allegations

1. 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 period from December 6, 1999 to February 4, 2000, both dates inclusive, while employed as a Registered Nurse at [the Centre] in the [city], 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 inappropriately touched the bodies of co-workers while you were at the workplace, the particulars of which are that you:
   1. Hugged [co-worker “A”]; and/or
   2. Massaged the shoulders of [co-worker “A”]; and/or
   3. Rubbed the knee of [co-worker “A”]; and/or
   4. Touched the neck and ear of [co-worker “A”]; and/or;
   5. Patted [co-worker “B”] on the shoulder and/or back; and/or
   6. Squeezed and massaged the shoulders of [co-worker “C”]; and/or
   7. Put your arm around [co-worker “C”]; and/or
   8. Leaned your body into the body of [co-worker “D”]; and/or
   9. Massaged the shoulders of [co-worker “D”]; and/or
   10. Rubbed and massaged the arm of [co-worker “D”]; and/or
   11. Hugged [co-worker “E”]; and/or
   12. Massaged the arm of [co-worker “E”]; and/or
   13. Leaned your body against the body of [co-worker “E”]; and/or
   14. Rubbed your leg against the leg of [co-worker “E”].
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(37) of Ontario Regulation 799/93, in that during the period from December 6, 1999 to February 4, 2000, both dates inclusive, while employed as a Registered Nurse at [the facility], in the [city], 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 made inappropriate comments to co-workers while you were at the workplace, the particulars of which are that you:
   1. Referred to a co-worker as a “little girl OT” in conversation with [co-worker “A”] and/or [co-worker “B”]; and/or;
   2. Spoke to [co-worker “A”]and/or [co-worker “F”] about sexual matters including activities at your hockey orientation and women who have sexual relations with hockey players; and/or
   3. Made negative remarks about East Indian women during a hospital presentation about abuse; and/or;
   4. Referred to women as “blonde bimbos” at a hospital presentation; and/or;
   5. Told [co-worker “A”] that the surname Wong could refer to Wing Wong as in “ring the wrong number”; and/or
   6. Called [co-worker “C”] “darling”; and/or
   7. Spoke about hating “feminist” women to [co-worker “A”] and/or [co-worker “D”]; and/or
   8. Referred to male nurses as “fags” in the presence of [co-worker “D”]; and/or
   9. Stated that “it doesn’t take much to make women happy” in the presence of [co-worker “E”]; and/or
   10. Told [co-worker “E”] that you love Polish women and that you were unhappy with your wife.

Member’s Plea

[The Member] admitted the allegations set out in paragraphs numbered #1 (a, b, c, d, e, f, g, h, i, j, and n) in the Notice of Hearing. The Chairperson of the discipline panel conducted a plea inquiry which satisfied the panel that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced the Agreed Statement of Facts (Exhibit #2) which provides as follows:

BACKGROUND

1. [Name and Registration Number removed] (“the Member”), graduated with a diploma in nursing from [a community College] in 1992, and has been registered with the College of Nurses of Ontario (“the College”) as a Registered Nurse since that year. The Member has not been the subject of a complaint to the College prior to the complaint about the incidents described below.
2. The Member was employed in the Assertive Community Treatment (ACT) Programme of the Mental Health Programme at [the facility] in [the city], starting on December 6, 1999.
3. The ACT Programme consists of multidisciplinary teams of RNs, occupational therapists, psychiatrists, social workers, peer support and mental health workers who work collaboratively to assess, develop, and implement a plan of care for mentally ill clients in the community. The three main objectives of the programme are treatment, rehabilitation, and support. The ACT Team is based on a model used with mentally ill clients in the United States. As all team members work with all clients, and make decisions collaboratively, the development of good working relationships is essential to the effectiveness of the ACT Team.
4. At the time of the incidents described below, the ACT Team was just starting up, and had not taken on any clients. The Team members were involved in orientation, designing the team, creating forms, making connections in the community and setting up the physical space.
5. The Member’s employment was terminated on February 4, 2000, in connection with events described below. The Member has grieved his termination.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

6. While on duty, the Member repeatedly made unwelcome physical contact with several co-members of his ACT Team, as follows:
   1. In December 1999, the Member hugged [co-worker “A”], a female occupational therapist, and massaged her shoulders on various occasions, even though [co-worker “A”] repeatedly moved away during these encounters and finally asked the Member to stop.
   2. In December 1999, during a conversation, the Member put his hand on [co-worker “A’s”] knee and rubbed it.
   3. In January 2000, the Member put his hands on [co-worker “A’s”] neck and touched her ear, and asked her if her earrings were new.
   4. In December 1999, the Member repeatedly patted [co-worker “B”], a male registered nurse, on the back and/or shoulder on various occasions. One of these occasions, [co-worker “B”] and the Member were meeting with [co-worker “B’s”] supervisor. When [co-worker “B”] said “Please stop touching me” to the Member, he responded “Why?”. Despite [co-worker “B’s”] request, the Member repeated this behaviour on a further occasion.
   5. On January 4 or 5, 2000, the Member approached [co-worker “C”], a female registered nurse, from behind and squeezed and massaged her shoulders on two occasions, and on another occasion, put his arm around her.
   6. On or about January 5, 2000, the Member stood close to and leaned into [co-worker “D”], a female mental health worker, on more than one occasion.
   7. On January 7, 2000, the Member approached [co-worker “D”] from behind and began massaging her shoulders. [Co-worker “D”] was startled, and said “[Name removed], I have spatial issues”. The Member did not respond, but moved to sit at the other side of the table.
   8. On January 10, 2000 the Member sat down beside [co-worker “D”] and began rubbing her arm while leaning into her. When [co-worker “D”] loudly said: “[Name removed], don’t touch me”, the Member replied “Why do you have to be so anti-social?”.
   9. On January 12, 2000, the Member sat beside [co-worker “E”], a female mental health worker, while using the phone and touched her knees with his. After [co-worker “E”] asked the Member to move and not to touch her. The Member did so, but resumed touching her knees moments later.
7. Many of the incidents were witnessed by other co-workers and occurred in their presence.
8. If the Member were to give evidence, he would say that the touching described above was done in a joking manner, and that he did not perceive there was anything unprofessional or wrong with his conduct. The Member now recognises that it was inappropriate to interact with his co-workers in this manner.
9. Although the Member’s behaviour was not sexual in intent, it was unwelcome in each case, and caused the named co-workers to feel uncomfortable, and to eventually avoid him.

ADMISSION OF PROFESSIONAL MISCONDUCT

The Member admits that he has committed professional misconduct as set out in paragraph 1 of the Notice of Hearing, in that during the period December 6, 1999 to February 4, 2000, both dates inclusive, while employed as a Registered Nurse at [the facility], in the [city], in the Province of Ontario, he 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 he inappropriately touched the bodies of co-workers while he was at the workplace, the particulars of which are that he:

1. Hugged [co-worker “A”]; and
2. Massaged the shoulders of [co-worker “A”]; and
3. Rubbed the knee of [co-worker “A”]; and
4. Touched the neck and ear of [co-worker “A”]; and
5. Patted [co-worker “B”] on the shoulder and/or back; and
6. Squeezed and massaged the shoulders of [co-worker “C”]; and
7. Put his arm around [co-worker “C”]; and
8. Leaned his body into the body of [co-worker “D”]; and
9. Massaged the shoulders of [co-worker “D”]; and
10. Rubbed and massaged the arm of [co-worker “D”]; and/or
11. Rubbed his leg against the leg of [co-worker “E”].

Decision

The panel considered the Agreed Statement of Facts and unanimously finds that the facts presented support a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs #1 (a, b, c, d, e, f, g, h, i, j, and n) of the Notice of Hearing in that the Member 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 he inappropriately touched the bodies of co-workers while he was at the workplace, the particulars of which are that he:

1. Hugged [co-worker “A”]; and
2. Massaged the shoulders of [co-worker “A”]; and
3. Rubbed the knee of [co-worker “A”]; and
4. Touched the neck and ear of [co-worker “A”]; and
5. Patted [co-worker “B”] on the shoulder and/or back; and
6. Squeezed and massaged the shoulders of [co-worker “C”]; and
7. Put his arm around [co-worker “C”]; and
8. Leaned his body into the body of [co-worker “D”]; and
9. Massaged the shoulders of [co-worker “D”]; and
10. Rubbed and massaged the arm of [co-worker “D”]; and/or
11. Rubbed his leg against the leg of [co-worker “E”].

Reasons for Decision

Counsel for the College submitted that this was a case of boundary violation with no sexual intent on the part of the Member. Counsel also pointed out that the Member had no previous history of complaints with the College of Nurses; in fact his past employment record was positive.

Counsel for the Member addressed paragraphs #7, 8 and 9 of the Agreed Statement of Facts (Exhibit #2) indicating that the incidents occurred publicly not in a clandestine manner. On behalf of the Member, defence counsel stressed that there was no sexual intent in his actions toward his male and female co-workers. Defence counsel pointed out for the panel that the Member was an excellent nurse and acknowledged that this was an unfortunate incident in an otherwise unblemished career.

Defence counsel presented a number of Letters of Reference (Exhibit # 4) supporting the Member’s good character throughout his 8-year nursing career.

The panel unanimously agreed to accept the Agreed Statement of Facts (Exhibit #2).

Penalty

Counsel for the College and the Member advised the panel that a Joint Submission as to Penalty (Exhibit #3) had been agreed upon. The Joint Submission as to Penalty provides as follows:

[Name and Registration Number removed] (“the Member”) and the College of Nurses of Ontario (“the College”) jointly submit that, in view of the facts set out in the parties’ Agreed Statement of Fact, the Member’s admission of professional misconduct therein, and the Member’s attached undertaking regarding counseling for inappropriate touching of his co-workers, the panel should make an order doing the following:

1. requiring the Member to appear before the panel to be reprimanded.

The undertaking provides as follows:

1. The Member will, at his own expense, attend a minimum of six, one-hour counselling sessions with a professional counsellor (“the Counsellor”) who has received the prior approval of the Director of the Investigations and Hearings Department of the College (“the Director”), which six sessions must be completed by June 31, 2001, or such further date where agreed to by the Director in advance. The subject of the counselling sessions will be 1) the member’s inappropriate and repeated touching of his co-workers which persisted even though the co-workers had indicated that they did not welcome the touching, 2) the consequences of this behaviour to the Member and his co-workers, and 3) strategies for making the inappropriate touching unlikely to occur in the future.
2. Before commencing any of the counselling sessions referred to above, the Member will request that the Director provide the Counsellor with a copy of this Undertaking, the Notice of Hearing, the Agreed Statement of Fact, and the Joint Submission on Penalty, and the Director, or her delegate will do so.
3. The Member hereby authorises the Counsellor to communicate to the Director, or her delegate, about whether the Member has attended counselling sessions, the number of counselling sessions he has attended and their dates, and whether the subject of the counselling sessions was as is described in paragraph 2, above.
4. The Member will request of the Counsellor prior to the commencement of the counselling sessions, and the Director must receive by or before July 31, 2001, a letter from the Counsellor in which the Counsellor confirms that:
   1. the Member has attended a minimum of six, one-hour counselling sessions by June 31, 2001.
   2. the subject of the counselling sessions were the member’s inappropriate and repeated touching of his co-workers which persisted even though the co-workers had indicated that they did not welcome the touching, the consequences of this behaviour to the Member and his co-workers, and strategies for making the inappropriate touching unlikely to occur in the future.
   3. the Counsellor received copies of this Undertaking, the Notice of Hearing, the Agreed Statement of Fact, and the Joint Submission on Penalty in this matter prior to the commencement of the counselling sessions. A failure to meet the terms of this Memorandum could result in the Executive Committee referring allegations of professional misconduct to the Discipline Committee of the College.

Penalty Decision

The panel unanimously accepts the Joint Submission as to Penalty and accordingly orders that the Member appear before the discipline panel for an oral reprimand.

The panel accepts the recommendations of both counsel that the results of this proceeding not be included in the public portion of the Register.

Reasons for Penalty Decision

The panel accepted the submissions of College counsel, who pointed out for the panel that the Member’s admission and willingness to undertake voluntary counselling and the oral reprimand meets the objective of public protection and indicates to the membership that behaviour of this nature will not be tolerated by members of the profession.

The panel concluded that the penalty is reasonable and in the public interest. The Member has co-operated with the College and by agreeing to the facts and the penalty and has accepted responsibility for his actions.

I, Kay Wetherall, Public Member, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel [ ]