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:

Elizabeth Baker, RN (EC) Chairperson Marsha Taylor, RPN Member

George Rudanycz, RN Member Betty Hill Public Representative Bill Weichel Public Representative

BETWEEN:

COLLEGE OF NURSES

and -

Maureen E. Major #98-0215-8

Michelle Fuerst; Linda Rothstein and Karen Jones for College of Nurses of Ontario

Sean McGee for Maureen Major

Independent Legal Counsel: Nancy Spies

Heard:

November 19, 28, 2001 (video conference)

January 14-15, 2002; April 17,2002

May 27-28, 2002; September 23-25, 2002

January 27-30, 2003; February 25-26, 2003

REASONS FOR DECISION

This matter came on for a hearing before a panel of the Discipline Committee on the dates noted above [ ] and by video-conference.

At the outset of the hearing, following an overview of the intended arguments and process, the panel heard four motions as follows:

Motion for Production of Third Party Documents

Defence counsel brought a motion for an order seeking the production of patient records and other documents that were in the possession of [the Hospital], specific to [the client]. The panel was informed that the patient did not consent to the release of any records. [Dr. A], the patient's attending

physician, and the Hospital, were represented by legal counsel on the motion.

The panel's Decision and Reasons on this motion are attached as Appendix A. The panel made an order January 15, 2002 for the production of medical records from the Hospital relating to the Patient for the time period of October 10, 1999 through to May 4, 2000 inclusive, and for records of the patient for any shift that the Member worked on the [ ] Unit during the period of July 1998 to October 1999. The terms of an agreement regarding production of documents entered into between the College, the Member and [Dr. A] are attached to the panel's decision as Schedule A.

The above records were limited to records reflecting any diagnosis or treatment by mental health professionals, and all records reflecting nursing care provided to the patient. The documents were ordered to be produced to the College of Nurses of Ontario for review by the panel. In addition, the panel issued a publication ban on November 28, 2001 to maintain the confidentiality of the patient's name and identifying features.

Motion to Deny the Member's Attendance at the Hearing

Counsel for [Dr. A] and the Hospital requested an order that the Member not be present at her own hearing. It was argued there was potential for her to learn intimate and psychological details about the patient and other third parties. Counsel for the Hospital and [Dr. A] advised the panel that potential harm may come to the Patient and third parties if the Member was present and sensitive information divulged. He felt that she should be considered a member of the public and therefore denied access to information in the records.

Defence counsel's position was that Ms. Major was not considered a "member of the public" to these proceedings and should be allowed to stay. The panel was informed of one occasion, prior to the hearing, where the Member had given information to the press.

College counsel submitted that the Member is a party to the hearing, which can be heard in camera, should a question of disclosure arise. College counsel submitted that during College of Nurses discipline hearings, the Member is not considered a member of the public and has the right to attend her own hearing.

Based on the arguments of counsel, independent legal counsel was contacted by the panel. Independent legal counsel, advised that section 35(6) of the Mental Health Act requires that where there is a statement from a physician whose opinion is that disclosure of information is likely to result in harm to a patient, a hearing from which the public is excluded must be used in order to consider the matter.

Under comparable statutes and in the context of adversarial proceedings involving the Member's licence or restriction on that licence, the Member, as a party to the hearing, under section 35(6) of the Mental Health Act, would not be considered a member of the public.

The panel deliberated and unanimously denied the motion to exclude the Member from this hearing. The panel recognized that the privacy interests of third parties must be balanced against the Member's right to make full answer and defence in accordance with accepted legal principles. The panel recognized the very real concerns for the welfare of the affected patient and strongly directed that the Member not communicate to anyone, by any form (electronic, written or verbal), other than with her defence counsel, any matters pertaining to this hearing.

Defence counsel formally acknowledged that the Member heard the direction and that it carries the full force of the panel.

Decision Regarding Release of Third Party Documents

The panel received the sealed third party documents on January 28, 2002 from the hospital. These

documents had been edited as required by the agreement regarding production of documents (Schedule A to the panel's Decision on the Motion for the Production of Third Party Documents). Following an extensive review of the documents, the panel made an order to release the documents to both counsel in their entirety, in accordance with the agreement and gave reasons for that decision which are annexed hereto as Appendix B.

Motion by the Member for an Adjournment

On April 17, 2002, defence counsel requested an adjournment of the previously set hearing days of April 22, through April 26, 2002 and May 27, through May 31, 2002 for the purpose of preparing an application to be brought before the panel regarding a Charter of Rights and Freedoms ("Charter") challenge. College counsel opposed the request for an adjournment and indicated that this aspect of the hearing had been anticipated for at least the last year and that multiple delays had already occurred at the request of defence counsel, despite College counsel being prepared to proceed.

Following deliberation, the panel allowed an adjournment and directed that the hearing resume on May 27, 2002

Further Motion for Production of Patient Records

Defence counsel brought a further motion on May 27, 2002 for the production of all documents not previously produced regarding the patient's treatment at [facility A, facility B and the Hospital]. An affidavit in support of the motion by [Dr. B] stated that the records received from [the Hospital], pursuant to the panel's earlier decision, provided no information regarding the role the patient played in initiating and maintaining the relationship with the Member, and did not indicate whether there was any attempt to explore [the client's] role and active participation in the relationship, and as such were not sufficient in order for him to form an expert opinion. He went on to say that records from previous hospitals, institutions, and providers were required to make a complete assessment of the patient.

A faxed letter (Exhibit I) from counsel for [Dr. A] and [the Hospital] advised the panel that he would not be appearing at the hearing. The letter requested, however, that if the panel ordered production of additional medical records of the Patient, that the panel extend the terms of Schedule A of the Amended Order dated January 15, 2002, to any medical records of the patient obtained from any other physician, hospital, or institution. The panel was also advised that counsel for the College and the Member had agreed to this proposal.

Defence counsel argued that [Dr. B's] evidence was uncontested and that the records would show whatever culpability there might be in the conduct of the Member. Blameworthiness, or it's absence, would be a central feature of this hearing. Defence counsel intended to argue that the mandatory penalty provisions of the Code were invalid as a result of the Charter, and that the events in question were the result of an interaction of the Member's disabilities. Defence counsel submitted that the panel did not need to weigh the merits of the argument, but rather the arguable relevance of the documents requested. He submitted that to deny even the production of the documents in the face of uncontested evidence would put the Member in a difficult position.

Counsel for the College objected to disclosure of these records, and that the question of "blameworthiness or absence of blameworthiness" was not the basis of the College's case. The question before the panel was whether or not the Member committed an act of professional misconduct because she engaged in [a sexual relationship] with the patient. On that basis the records were not relevant.

The panel made the following order on May 28, 2002 and gave the following reasons on the record:

The panel unanimously denied the motion for production of further documents. The panel balanced the right of the Member to make full answer and defence against the privacy interest of the patient in [the

client's] medical records.

The panel found that the documents already within the possession of both counsel, most notably Exhibit J, provided adequate information for an expert opinion. In addition, the relevant hospital documents received included those that related to any potential interaction between the patient and the Member during her time of employment at the hospital.

The hearing continued on September 23, 2002 in Ottawa.

The Allegations

The allegations against Maureen Major (the "Member") as stated in the Notice of Hearing dated September 25, 2001, are as follows:

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 period from October 10, 1999 to May 4, 2000 while working as a Registered Nurse at [the Hospital], you sexually abused [the client], who was assigned to [the Unit] at the Hospital, and in particular you:

(a) Engaged in [sexual activity] with [the client]; and/or

(b) Engaged in [sexual activity] with [the client]; and/or

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(1) of Ontario Regulation 799/93, in that during the period from October 10, 1999 to May 4, 2000 while working as a Registered Nurse at [the Hospital], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to your dealings with [the client], who was assigned to [the Unit] at the Hospital, in that you:

(a) Had telephone contact with [the client]; and/or

(b) Were alone with [the client] on hospital grounds; and/or

(d) Loaned money to [the client]; and/or

(e) Lay on [the client's] bed in [the client's] room at the hospital; and/or

(f) Inappropriately rubbed [the client's] shoulders; and/or

(g) Engaged in sexual contact [ ] with [the client].

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(1) of Ontario Regulation 799/93, in that during the period from March 8, 2000 to May 3, 2000 while you were in the Province of [ ], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession in that you had telephone contact with [the client] while [the client] was [ ] assigned to [the Unit] at [the Hospital].
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 October 10, 1999 to May 4, 2000 while working as a Registered Nurse at [the Hospital], 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) Had telephone contact with [the client]; and/or

(b) Were alone with [the client] on hospital grounds; and/or

(d) Loaned money to [the client]; and/or

(e) Lay on [the client's] bed in [the client's] room at the hospital; and/or

(f) Inappropriately rubbed [the client's] shoulders; and/or

(g) Engaged in [sexual activity] with [the client]

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 March 8, 2000 to May 3, 2000 while you were in the Province of [ ], 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 had telephone contact with [the client] while [the client was] assigned to [the Unit] at [the Hospital].

Counsel for the College advised that the College was not calling any evidence with respect to the allegation set out in paragraph 3 of the Notice of Hearing.

Member's Plea

The Member admitted the allegations as set out in the Notice of Hearing with the exception of allegations #2 d, e, & f and allegations #4 d, e, & f.

The panel conducted a plea inquiry and was satisfied that the Member's admission was informed, voluntary and unequivocal.

Agreed Statement of Facts

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

The Member

In 1996, Ms Major graduated with a Diploma in Nursing from [ ] College [ ] and became a member of the College in 1997.
Following her graduation, Ms Major was employed in numerous settings, including nursing homes and psychiatric facilities.
In July 1998, Ms Major became employed with [the Hospital], a large regional psychiatric facility providing a wide range of psychiatric care to clients on an in-patient and outpatient basis. Her initial position was a temporary casual part-time position on a General Psychiatry unit.
In October 1999, Ms Major transferred to [the Unit]. The position was part-time, and allowed her to accept extra shifts. She remained in that position until March 7, 2000 when she resigned to accept nursing employment in [another province]. Several weeks later, Ms Major [ ] accepted a part-time position on another [ ] unit at [the Hospital]. Ms Major was terminated from [the Hospital] on May 4, 2000 in relation to the events described below.
Ms Major is currently employed by [two facilities] as a Registered Nurse.

The Client

At the time of the events, the Client, [ ] who was held at [the Hospital] [ ]
While held at [the Hospital], the Client had [ ] privileges, which allowed [the client] to go on and off hospital grounds without assistance, although [the client] was subject to a curfew.

Relationship between the Client and the Member

During the period from October 1999 to May 2000, Ms Major was assigned to [the Unit] and provided nursing care to the Client on a number of occasions. On at least one occasion, Ms Major engaged in a one-to-one counselling session with the Client.
Between January and May 2000, Ms Major and the Client developed a personal and sexual relationship. During the course of the relationship:

Ms Major and the Client engaged in telephone and email contact that was personal in nature;

Ms Major spent her on-duty break time on the hospital grounds with the Client; Ms Major gave gifts to the Client [ ]; and

While she was in [another province], Ms Major telephoned the Client and discussed her [personal feelings] with the Client.

Between February 13th and March 6th, 2000, the Client and Ms Major engaged in sexual activity, including [intercourse and oral sex], on eight or nine occasions. The sexual activity occurred on hospital grounds in the injection room and the photocopy room, as well as off hospital grounds. On one occasion while she was on-duty escorting the Client and another client at a job fair, Ms Major left the other client unattended for several hours and rented a hotel room where she and the Client engaged in sexual activity.

Admissions

Ms Major admits that she has committed an act or acts of professional misconduct as set out in Allegation 1 of the Notice of Hearing and 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 period from October 10, 1999 to May 4, 2000 while working as a Registered Nurse at [the Hospital], she sexually abused [the client], by engaging in [intercourse and oral sex] on several occasions.
Ms Major admits that she has committed an act or acts of professional misconduct as set out in Allegation 2(a), (b), (c) and (g) of the Notice of Hearing in that she contravened a standard of practice of the profession or failed to meet the standard of practice of the profession with respect to developing a personal relationship with [the client] by engaging in telephone contact, being alone with [the client] on hospital grounds, giving gifts to [the client] and engaging in sexual contact including sexual intercourse with [the client].
The College submits no evidence with respect to Allegation 3.
Ms Major admits that she has committed an act or acts of professional misconduct as set out in Allegation 4(a), (b), (c) and (g) of the Notice of Hearing in that she 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 and unprofessional in that she developed a personal relationship with [the client] by engaging in telephone contact, being alone with [the client] on hospital grounds, giving [the client] gifts and engaging in sexual contact including sexual intercourse with [the client].
Ms Major admits that she has committed an act or acts of professional misconduct as set out in Allegation 5 of the Notice of Hearing in that she 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 and unprofessional in that she had telephone contact of a personal nature with [the client], a former client, while she was in [another province] and [the client was on the Unit] at [the Hospital].

Decision

The panel considered the Agreed Statement of Facts (Exhibit 2) and made a finding of professional misconduct as set out in paragraphs #1(a), (b), (c), #2(a), (b), (c), and (g), # 4(a), (b), (c), and (g), and #5 of the Notice of Hearing.

In particular, the panel finds that the Member:

Under allegation #1:

(a) Engaged in [sexual intercourse] with [the client]; and/or

(b) Engaged in [sexual intercourse] with [the client]; and/or

Under allegation #2:

(a) Had telephone contact with [the client]; and/or

(b) Was alone with [the client] on hospital grounds; and/or

Under allegation #4:

(a) Had telephone contact with [the client]; and/or

(b) Was alone with [the client] on hospital grounds; and/or

The panel made no finding with respect to allegation 3 as the College submitted no evidence in this regard.

Penalty Hearing

Defence counsel brought a motion requesting that the panel find sections 51(5)(2) and 72(3) of the Code to be unenforceable and contrary to section 15 of the Canadian Charter of Rights and Freedoms ("Charter"). Defence counsel provided the panel with a "Notice of Constitutional Question" (Exhibit 3) that had been provided to the Attorney General of Ontario and Canada on August 20, 2002. Counsel advised the panel that no one from the Attorney General would be participating. He intended to advance the argument that the Member suffered from a mental disability and therefore should not receive the same penalty, under the RHPA, in the same way as other nursing professionals.

Specifically, the Member should not be subject to the mandatory five-year revocation for sexual abuse of a client, but rather be subject to a modified penalty.

College counsel argued that if the panel found that the Member had a mental health diagnosis it would not necessarily indicate a presence of a disability nor that the legislation discriminates against her on that basis. Further, the overall objectives of the RHPA are vitally important to protect patients who are acutely vulnerable and at-risk, and are therefore demonstrably justified in a free and democratic society.

Counsel for the College provided the panel with a decision tree setting out the questions the panel would need to consider in hearing the Member's Charter challenge. Counsel for the Member was in agreement with the process. A copy of the decision tree is annexed as Appendix C.

The panel found the issues to be:

(a) Did Ms. Major suffer from a mental disability, within the meaning of section 15 of the Charter, at the time of the misconduct?

(b) If yes, do the sentencing provisions in the Code violate the Member's right to equality under section 15 of the Charter?

If the answer to the above issues are yes, then it must be determined if the violation of the Charter can be demonstrably justified in a free and democratic society. If not, then the motion succeeds and an appropriate Charter remedy must be determined.

If the answer to the above issues are no, then there is no Charter violation and the Member is subject to the RHPA legislated discipline penalty.

Overview

In addition to the Agreed Statement of Facts, the panel was provided with a series of agreed upon documents, which the panel reviewed. Based on that evidence, the panel was able to determine the following relevant facts. The Member is a registered nurse who graduated from [ ] College in Nursing in 1996. In 1996, Ms. Major moved to [ ] where she had a full-time position in a nursing home. She briefly returned to [ ] in 1997 and then moved in August of 1997 to [another province] as she was involved in a relationship. In July 1, 1998, she once again returned to [ ] and was employed by [the Hospital], a psychiatric facility, in a casual-temporary position [ ] . By August 1999, she was consulting [Dr. C], her physician, for assistance with her mental health issues. In October 1999, the Member began working in [the Unit] at the Hospital. She became involved in a relationship, which then became sexual, with [the client] on the Unit on or around February 13, 2000 to March 6, 2000 whom she had met on or about January 4, 2000.

[ ] Ms. Major briefly moved to [another province] on or about March 8, 2000 after accepting a nursing position at a hospital. However, [ ] it was determined that [ ], she was unable to work as a nurse in [the province] and [she] returned to [ ]. Maintaining her relationship with [the client], she returned to her position on [the Unit] at the Hospital on March 22, 2000. Upon her return, [the client] admitted to Ms. Major that [the client] had become involved with someone else.

Eventually, staff on the unit reported to the [ ] Coordinator, that Ms. Major's contact with [the client] was more than a nurse/client relationship. On April 27, 2000, the Member revealed the sexual nature of a relationship with a patient, during a telephone conversation with a nursing union representative, and discussed her professional obligation of self-reporting. Ms. Major was called to a meeting on May 4, 2000 with management at the hospital during which her employment was terminated. Later that same afternoon, Ms. Major reported her conduct to the College of Nurses.

The Evidence

Defence counsel called two witnesses, [Dr. B], a psychiatrist, and [Dr. C], a physician whom the Member was seeing for psychotherapy.

Evidence of [Dr. B]

[Dr. B.] is an adjunct professor of Psychiatry at the University of [ ], and spends approximately 35 hours per week providing actual therapy in private practice. He graduated in 1965, and has specialized in psychiatry since 1970.

In May of 2000, [Dr. B] was retained by defence counsel to complete a psychiatric assessment of the Member. She was interviewed May 16th, 18th and June 21st, of 2000 for a total of 3½ hours. The report was produced August 30, 2000 and tendered as Exhibit 20. [Dr. B] contacted [Dr. C] by phone in September 2000 and also reviewed [the client's] records.

[According to Dr. B's evidence, the member had a mental disorder that left her vulnerable to the interest that the client showed toward her. He testified he does not believe that there is any chance that the member will become involved with a patient in the future. However, she should not work in a

psychiatric setting for at least a significant period of time. Dr. B also indicated that he was of the view that in not all sexual encounters are people harmed/abused, and in fact, some of these relationships lead to marriage. He acknowledged that it is up to the therapist/provider to maintain boundaries.]

The Evidence of [Dr. C]

[Dr. C] is a family physician, with a special interest in psychotherapy and hypnotherapy, who pursued continuing education programs related to various aspects of psychotherapy. [She was the member's therapist]

[Dr. C testified that while she felt that the member had symptoms, she would not have given the same diagnosis as Dr. B. According to Dr. C's testimony, the member went on a vacation during the time that she was in the relationship with the client. Eventually, the member revealed to Dr. C that she was involved in a sexual relationship with a client. Dr. C's clinical notes indicate that the member had a mental disorder. She testified that the member frequently attributed her predicament to the client's actions and behaviour. She stated that there was no risk that the member would have another sexual relationship with a client in a non-psychiatric environment. However, it would be prudent to restrict the member's practice to areas that did not involve an "interpersonal relationship" and to require ongoing supervision.]

Evidence of [Dr. D]

[Dr. D], Psychiatrist in chief at [ ] since 1993, is also a consultant (for long term care) at [ ]. His curriculum vitae referenced extensive clinical and academic experience in psychiatry. His patient care focus is centred on crisis care and personality disorders. He also participated in setting standards of care for the psychiatric department, quality of care education and supervising residents.

He was called by the College to provide his expert opinion on the evidence of prior witnesses, [Drs. B and C]. [Dr. D] testified on whether or not, in his opinion, the Member had a [mental] disorder; whether [the client] was the aggressor and Ms. Major the "victim" of their relationship; and finally, whether Ms. Major's condition had been successfully treated by [Dr. C]. In addition, the issue of a [mental] disorder, [another disorder] and boundary violations were addressed.

Re [Mental] Disorder

[Dr. D testified that he felt that there was not enough information in Dr. B's report to come to a clear diagnosis. He also indicated that he felt the criteria for a diagnosis of a mental disorder were not met.]

[Other Mental] Disorder

[Dr. D testified that there was not enough information to make a diagnosis of a mental disorder. He stated that there was evidence that there was a sense of balance in the relationship between the member and the client.]

[Information deleted]

Disability

College counsel asked [Dr. D] whether or not a mental health [ ] diagnosis was the equivalent of a disability. The witness indicated that the categories within the [diagnosed condition] range from mild to severe and that disability was a different axis. The level of disability must be matched to a diagnosis, in that the level of function must be considered. In order to assess the level of function [ ], one must

perform a global assessment of function, which included the individual's capacity to work, to function and the level of suicidality.

[Dr. D testified that there was little evidence that the member had a disability during the time that she had the relationship with the client in that she was working and participating in complex behaviours that required planning and organization. As well, there were no problems identified about her professional practice during that time.]

Regarding the alleged "dangerous" aspect to the Member's relationship with the patient, [Dr. D] was firm in his position that it would depend upon the status of the patient at the time. He felt that the evidence indicated a level of rehabilitation with privileges, which did not suggest risky behaviour.

A publication ban pursuant to section 45 of the Code was sought by defence counsel in that [Dr. C's] clinical records (Exhibit 33) were of a private nature [ ], which were not relevant to these proceedings. The panel ordered a publication and broadcasting ban of any details or knowledge contained in the exhibit unless specifically referred to in this hearing. Personal matters may be disclosed in these documents of such a private nature that the desirability of avoiding public disclosure of those matters in the interest of the Member outweighs the desirability of adhering to the principle that hearings be open to the public.

Evidence of [Dr. E]

[Dr. E] graduated with a BScN in 1960 and a PhD in 1989 (CV, exhibit 34). In 1997, she became a professor with [a university] faculty of nursing [ ]. The witness was the team leader of a panel which developed Best Practice Guidelines: Therapeutic Boundaries/Relationships [ ] in addition to being the author of several scholarly articles, some of which relate to sexual abuse. She has also received international professional awards over a seventeen-year period. For the last 8-10 years, she has also provided counselling for nurses who have violated boundaries, involving mainly sexual relationships.

[Dr. E] was asked her opinion regarding the nurse-client relationship, specifically in nursing. She testified that the role of the nurse in all settings, and especially in a psychiatric setting, is to carry out a therapeutic relationship regardless of the diagnosis. It is the nurse's responsibility and expectation to maintain a professional boundary. The witness emphasized that clients are an extremely vulnerable population, and that a personal relationship with a client is always harmful.

She added that in a psychiatric setting, clients can be particularly manipulative. Nurses must maintain a heightened vigilance of upholding boundaries with this group. Clients frequently seek to develop "special" relationships, request secrecy, or show attention seeking behaviour. In a [ ] setting, the nurse must be more vigilant of the likelihood of this occurring.

College counsel questioned [Dr. E] on her recent work in the area of therapeutic relationships and boundary violations. In addition to the Best Practice Guidelines, she was also involved with [ ] during the development of the Regulated Health Professions Act and Bill 100, which dealt with concerns of sexual abuse and patients. She acted as a consultant for [international nursing associations] regarding abuse of power and [ ] relating to boundary violations. College counsel then requested that she be accepted as an expert witness in the area of nurse-client relationships and boundary issues. Defence counsel requested that the witness be accepted as an expert in the specified areas only and not in nursing in totality. The panel unanimously accepted the witness as an expert in therapeutic relationships which includes nurse/client relationships and boundary issues.

The witness provided the panel with broad principles regarding the expectations for regulated professionals in maintaining therapeutic relationships, including: the fiduciary relationship, power and balance; grounded in respect; do no harm; and working in the best interest of the client.

[Dr. E] stated that boundaries enable the nurse to focus on promoting the health of the client, in that nurses have privileged information, control of medications and input into certain patient privileges, which can influence the outcome of care. There is a natural imbalance of power between the nurse and client. This is particularly true in the area of mental health.

College counsel asked the witness how failing to maintain boundaries in nursing can affect a client. She indicated that, in general, it was "profoundly harmful to the client" with consequences such as anxiety, depression, disassociation or even suicidal ideation.

[Dr. E's] response to [Dr. B's] view that a sexual relationship between a doctor (or other health professional) and a patient need not always be harmful, was that she had serious concerns and strongly opposed that opinion.

The witness explained that there are several cues to a nurse, especially in a mental health setting, that she is at risk of, or actually crossing boundaries. These include: the client asking the nurse to keep secrets; the client indicating that only that nurse truly understands them; the nurse behaving differently or dressing differently than usual or refusing to disclose his/her work with the client, or being unable to share with colleagues or the supervisor information about the therapeutic relationship.

[Dr. E] advised that nurses dealing with manipulative or seductive behaviour should deal with the client on an individual basis regarding the inappropriateness of the behaviour in addition to involving the whole clinical team.

Defence counsel questioned the witness as to whether or not there were any circumstances in which the mandatory five-year revocation was inappropriate. Counsel suggested that the mandatory penalty was disproportionate on those with psychological disabilities. [Dr. E] replied that she supported the RHPA legislation and did not consider the need to do otherwise. The purpose of the sexual abuse section of the Nursing Act is to eradicate incidents of sexual abuse by nurses. Public safety and confidence must be maintained. [Dr. E] concluded that the appropriate penalty is the mandatory revocation.

Defence counsel asked [Dr. E] if it was possible that a nurse is manipulated by a client. She responded that while it does occur in psychiatric settings, the individual must still be able to say no to boundary issues. A notion of "was I manipulated?" applied blame onto the client. Clients in psychiatric settings frequently display manipulation on a regular basis. It was [Dr. E's] opinion that Ms. Major failed to see and respect boundaries and failed to address the client's seductive behaviour. In addition, [Dr E] stated that the member was not ready to return to nursing practice as awareness and insight were missing.

During redirect examination by the College, [Dr. E] was questioned about the education of nurses in relation to boundaries and therapeutic relationships. In addition to learning obtained during basic nursing education, the Communiqué, published by the College of Nurses of Ontario, contains articles regarding boundary issues (Exhibit, 10-17), including the Standards of Practice, Explanation of Misconduct (CNO, 1999) and the Standards for the Nurse-Client Relationship (CNO, 1999). These quarterly publications are sent to all nurses registered in the province of Ontario. The Policy and Procedures of [the Hospital] (Exhibit 4), was consistent with what is taught in Ontario and with CNO's information. [Dr. E] testified that these documents provided very clear guidelines and highlighted warning signs that every clinician should follow regarding boundary violations. The Member, through her defence counsel, agreed that there was an orientation package from the hospital, and that she had an orientation but was unable to remember if all areas were covered.

College counsel reviewed the submission to the Complaints Committee by the Member (Exhibit 8) with [Dr. E]. This document outlined a progression from the patient flirting with the member, telling her things that he didn't tell others, making personal phone calls to her, and ultimately to making explicit sexual comments. [Dr. E] testified that this was a classic example of how boundary violations occur and that the nurse has full responsibility for maintaining the boundaries.

[Information deleted]

The witness was asked to comment on the rehabilitation potential of the Member. [Dr. E] responded that the Member showed minimal insight to her behaviour and role in the boundary violation and would need significant counselling and reflection.

[Dr. E] indicated that therapeutic relationships are a component of patient care for all registered nurses, not just the psychiatric department. She could not think of any area where a nurse would not use a therapeutic relationship with patients.

Charter Challenge

The panel heard submissions from both counsel on this issue. Both were in agreement that the issue for the panel to determine was whether the Member had a mental disability at the time of the allegations, within the meaning of section 15 of the Charter. The panel was frequently referred to Granovsky v.

Canada (Minister of Employment and Immigration), in which the Court identified three aspects to a disability:

a) a physical or mental impairment;

b) a functional limitation as a result of that impairment; and

c) a socially constructed handicap.

Both counsel also agreed that the onus was on the Member to prove that she had a mental disability. The standard of proof considered by the panel was a civil standard, specifically a balance of probabilities: was it more likely than not that Ms. Major was suffering from a mental disability at the relevant time? Both a mental impairment and functional limitation are required, together forming a mental disability. The socially constructed handicap component does not have to be present.

Defence counsel submitted that it was not relevant whether or not the Member's psychiatric illness was classified as [ ]. He argued that what was important was that she was functionally impaired during the time of the allegations. Defence counsel also focused on the effect of society and the State, through the Regulated Health Professions Act, in creating a disproportionate burden or adverse effect on those who suffer from a psychiatric or similar disability. Counsel argued that, dependant upon mitigating circumstances, all members should not be subject to the same duration of revocation as required by the Code.

The panel was provided with a number of authorities by defence counsel, including: R. v. Big M Drug Mart Ltd. (1985), 1 S.C.R. 295; Andrews v. Law Society of British Columbia (1989), 1 S.C.R. 143; Peter Hogg, (1997), Constitutional Law of Canada, Fourth Edition, pages 818-820; David J. Mullan, (2001), Administrative Law, pages 365-367; and, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board) (1991), 2 S.C.R. 5.

In his submissions, defence counsel advised the panel that if they were satisfied that there was discrimination, the College must then satisfy the panel that it is saved by section 1 of the Charter. Specifically, it needs to be demonstrably justified that it is a reasonable limit in a free and democratic society and meets the test in R. v. Oakes (1986), 1 S.C.R. 103. Defence counsel reiterated that the panel must have proof before them, that is, a balance of probabilities in considering these aspects.

Both counsel agreed that a causal connection between any alleged disability and the behaviour (offence) must be present. Defence counsel acknowledged the need for some type of penalty however he suggested that there were lesser mechanisms available.

Decision With Respect to Charter Challenge

The panel unanimously finds that there was no clear evidence to support a finding that the Member suffered from a mental disability within the meaning of s. 15 of the Charter, which affected her ability to function at the time of the misconduct.

Reasons for Charter Decision

In reaching its decision, the panel relied on the evidence of [Dr. C], the Member's physician at the time of the allegations. [Dr. C], while using a variety of medications and psychotherapy to assist the Member, did not suggest any need for a leave of absence, nor that she was concerned that she was incapable of carrying out her nursing role. In addition, the witness would not commit to the diagnosis, suggested by [Dr. B], of [a mental disorder]. The panel gave lesser weight to the testimony of [Dr. B], in that he had minimal interaction with the Member, had met her only after the time of the allegations, and his testimony had several internal inconsistencies. [Dr. D] and [Dr. E] both provided clear, cogent and convincing testimony relating to mental health issues and nurse-patient therapeutic relationships and boundaries. In addition, the panel referred to the provided Compendium of Standards of Practice from the College of Nurses of Ontario in coming to their decision.

The panel acknowledges that while there were likely some mental health issues, the panel did not hear any evidence that indicated that any limitation of function occurred over the allegation period. On the contrary, the panel heard evidence that the Member was commended for her nursing action, she was able to travel on vacation and there was a lack of evidence that the Member had taken any sick leave, or of any concerns, except for the particular relationship in question, regarding her nursing practice by her colleagues.

The panel unanimously finds that the Member did not suffer from a mental disability at the time of the allegations and that the sentencing provisions under the RHPA do not violate the Member's right to equality under section 15 of the Charter. Therefore there is no Charter violation, and there is no basis upon which the panel should not order the penalty as required by the Code given its findings.

Penalty Decision

With respect to penalty, the panel makes the following order:

The Member is required to appear before a panel of the Discipline committee to be reprimanded;
The Executive Director is directed to revoke the Member's Certificate of Registration, in accordance with section 51(5) of the Code.

Reasons for Penalty Decision

Section 51(5) of the Code states:

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, under subsection(2):

reprimand the member
revoke the Member's certificate of registration, if the 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 the 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 Code provides clear guidance to the panel as to what constitutes sexual abuse of a Patient and the required penalties. The Member herself, admitted to being sexually involved with the patient, [including sexual intercourse and oral sex] with the patient. Evidence from [Dr. C], the Member's self- report to the College and her comments to the Complaints Committee all substantiated that the Member knew the behavioural guidelines, Nursing Standards of Practice and Standards of the Nurse-Client Therapeutic Relationships, at the time of the allegations. Accordingly, the panel's penalty decision is as required by s. 51(5) of the Code.

I, Elizabeth Baker, RN (EC), sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the panel members listed below:

Chairperson Date

Panel Members:

Marsha Taylor, RPN George Rudanycz, RN Betty Hill, Public Member

Bill Weichel, Public Member

APPENDIX A

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

FULL-TEXT DECISION

Panel:

Elizabeth Baker RN (EC) Chairperson Marsha Taylor, RPN Member

George Rudanycz Member Bill Weichel Public Member Betty Hill Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO

MICHELLE FUERST for

College of Nurses of Ontario

and -

MAUREEN MAJOR #98-0215-8

SEAN MCGEE for Maureen Major

JOHN LUNDRIGAN for [the Hospital]

Heard: January 14-15, 2002

REASONS FOR DECISION ON MOTION FOR PRODUCTION OF THIRD PARTY DOCUMENTS

Counsel for the Member, Maureen Major (the "Member"), brought a motion for an order seeking production of patient records and other documents in the possession of [the Hospital], specific to [the client]. The Patient does not consent to release of his files. [Dr. A], the Patient's attending physician, and the Hospital were represented by legal counsel during the motion.

Defence counsel acknowledged that there was a relationship between his client and the Patient, who has had a long history of serious psychiatric illness. It is defence counsel's position that the panel should order production of the Patient's records over an extended period of time. Defence counsel argued that culpability will be a central issue in this case and he intends to demonstrate that mitigating factors will play a dominant role. Defence counsel's position was that in order to obtain informed expert opinion, it is necessary to obtain documents that extend beyond the period during which the misconduct is alleged to have taken place.

Defence counsel filed an affidavit to support the request for production of third party documents. The affidavit outlined both the Member's and the Patient's reported [ ] traits, diagnoses, behaviors, and characteristics. An agreement among all three parties was later provided to the panel which outlined and stipulated measures to protect privacy of the Patient and security of the records if the release of any documents was ordered by the panel.

The case of O'Connor vs. The Queen (1995), 103 C.C.C. (3d) 1, was referred to the panel as a guide by defence counsel. This case describes the basic principles governing disclosure of third party records.

The first stage of a two-stage process relates to establishing "likely relevance" which directs that the panel must be satisfied that the documentation is likely to be relevant to the material issues in the hearing. If the panel is persuaded that the records are likely to be relevant, it then proceeds to the second stage to determine to what extent the records should be produced to the parties. During this second stage, the panel balances full answer and defence on the one hand, and privacy of the Patient on the other. Factors to be considered are: (1) the extent to which the record is necessary for the Member to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; and, (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question. In addition, "the extent to which production of records of this nature would frustrate society's interest in encouraging the reporting of sexual offences and the acquisition of treatment by victims" must be considered.

Counsel for the College reminded the panel that although the Patient was not present nor represented at the hearing, [the client] was not consenting to having any of [the] records produced, released, or reviewed for the purposes of the hearing.

It is the College's position that the fact that the Patient was in an institution, and that the Member may

have seen all or portions of any file, does not diminish the Patient's privacy interests or rights.

Counsel for the College was in agreement with the application of the two-step process relating to the production of third party documents and to the use of the O'Connor decision for guidance.

Counsel for the College did not agree that the Patient's condition, diagnosis, or medical history in any way changes the definition of sexual abuse or diminishes any member's professional responsibility.

Counsel for the College's position was that medical records outside the dates of the allegations are not relevant, and in addition, should be limited to those produced at the Hospital.

Counsel for the Hospital restated the concern for the Patient's right to privacy and the attending physician's concern that the patient's rehabilitation would be negatively impacted if the criteria for security contained in the Agreement are not upheld.

Decision

The panel orders the production of medical records from [the Hospital], relating to [the client], for the time period of October 10, 1999 through to May 4, 2000 inclusive and, for records of [the client] for any shift that Ms. Major (the Member) worked on the [ ] Unit during the period of July 1998 to October 1999, in accordance with the terms of the Agreement regarding production of documents entered into between the College of Nurses of Ontario, Maureen Major and [Dr. A], dated January 14, 2002, and filed as Exhibit "F" in this hearing. A copy of this Agreement is attached to this decision as Schedule "A".

The above records are to be limited to records reflecting any diagnosis or treatment by mental health professionals and, all records reflecting nursing care provided to [the client]. The documents will be produced to the College of Nurses of Ontario and the review will be done by the panel in camera.

Reasons for the Decision

(1) Production of Documents

The panel was satisfied with the defence argument that the information contained in the Patient's medical records is likely to be relevant to the material issues in this hearing. These records contain information concerning the unfolding of events underlying the allegations against the Member. In addition, the panel feels that access to the records is necessary in order to ensure the Member's right to full answer and defence.

(2) Timing

The dates selected for production of documents reflect the time-period of the allegations during which the Member was employed full-time on the [ ] Unit. In addition, periods of time in which the Member worked as a casual employee on the [ ] Unit may also be of relevance.

(3) In-camera

The panel acknowledges the Patient's right to privacy for the review of documents and therefore orders the review to be carried out by the panel in-camera.

I, Elizabeth Baker, RN (EC) sign this Decision and Reasons for the Decision as Chair of the Discipline panel and on behalf of the panel members listed below:

Date:

Signed:

Chair

Marsha Taylor, RPN George Rudanycz, RN

Bill Weichel, Public Member Betty Hill, Public Member

Exhibit "F" - Re Maureen Major

COLLEGE OF NURSES OF ONTARIO DISCIPLINE COMMITTEE

FULL-TEXT DECISION

In the matter of the Health Professions Procedural Code of the Nursing Act S.O. 1991 C. 32 As amended

And in the matter of a Disciplinary Proceeding Against Maureen Major ("the Member") Agreement Regarding Production of Documents

In order to resolve issues relating to the production of documents pertaining to a patient of [the Hospital] and arising from the service of a notice of motion dated November 23, 2001 in these proceedings, the parties agree as follows:

The Panel seized of the matter will make an Order for the production of the requested documents, subject to the following conditions and undertakings;

[The Hospital] will transmit the documents to the College by January 25, 2002 for review by the panel.
Information regarding the identity of the patient and the identity, location and particulars of the patient's work and educational placements, community integration information including family visitations etc. may be deleted by [the Hospital] prior to transmitting the documents to the College.
In the event that the panel orders documents released, the College, Member and Member's counsel shall not photocopy or reproduce any of the documents electronically or otherwise, or transcribe said documents in detail, except for the purpose of condition 4 below.
The College, the Member and the Member's counsel shall not disclose any of the information regarding the content of the patient's records to anyone other than the Panel in this proceeding, a panel on Appeal, and such employees of the College as are necessarily involved in the hearing or appeal and its preparation. Counsel for the Member and counsel for the college shall be permitted to disclose the records and information to any expert witness or proposed expert witness, who shall agree in writing not to make further disclosure of the records or information.

Counsel for the Member and counsel for the College may also discuss the records and the information in them with the persons who prepared those records and/or had access to them in the course of their employment at the Hospital, who shall agree in writing not to make further disclosure of the records or the information in them.

Although the Member may be shown the documents, they will always remain in the offices of [

], or in the custody of the Member's counsel. At the conclusion of the proceedings, or any appeal or judicial review, the Member's counsel will return the copy of the documents to the College.

The parties agree that the information in the patient's records is or may be of a sensitive and personal nature. In the event that representatives of the public or media wish to attend any of the proceedings or gain access to any of the documents, the parties further agree to request the Panel to order appropriate restrictions on access to the patient's records and order a publication ban of the information contained in the patient's records including information relating to the identity, location and particulars of the patient's work and educational placements, community integration etc.

Dated This 14th Day of January, 2002

Maureen Major Sean McGee [ ]

College of Nurses of Ontario Michelle Furst

Gold & Furst

Dr. [A] John P. Lundrigan

APPENDIX B - Re Maureen Major

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

FULL-TEXT DECISION

Panel:

ELIZABETH BAKER RN(EC) - Chairperson MARSHA TAYLOR, RPN - Member GEORGE RUDANYCZ, RN - Member

BILL WEICHEL - Public Representative BETTY HILL - Public Representative

BETWEEN:

COLLEGE OF NURSES OF ONTARIO

and -

MAUREEN MAJOR #98-0215-8

MICHELLE FUERST

for College of Nurses of Ontario

SEAN MCGEE

for Maureen Major

JOHN LUNDRIGAN

for [the Hospital]

Heard: January 14-16, 2002

DECISION REGARDING RELEASE OF THIRD PARTY DOCUMENTS

The Panel received the sealed Third Party Documents January 28, 2002, from [the Hospital]. These documents had been edited as required by the Agreement Regarding Production of Documents (Exhibit F). The time-period included October 10, 1999 through May 4, 2000 inclusive. Potential documents that were requested relating to any shifts worked by the Member during the time period of July 1998 to October 1999 were not provided as the patient was not a patient of the Hospital during that period. This was indicated in the cover letter by Mr. Lundrigan which was included with the documents. The Panel reviewed the documents in camera.

Following an extensive review and deliberations, the Panel makes an order to release the document to Counsel in its entirety in accordance with the Agreement Regarding Production of Documents (Exhibit F) as attached.

REASONS FOR DECISION

The Supreme Court of Canada has held that the privacy of a patient is an interest that merits protection as does the need for a relationship of confidence between a patient and his psychiatrist. The Court stated, however, that the right to privacy must be balanced against the need to provide a fair trial for the accused. The Panel considered the balance of the right of the member to make full answer and defence against the privacy interest of the patient in his medical records.

This order takes effect January 30, 2002.

I, Elizabeth Baker, RNEC, sign this Order as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.

Discipline Panel Chairperson

Panel Members:

Marsha Taylor, RPN

Bill Weichel, Public Member George Rudanycz, RN

Betty Hill, Public Member

APPENDIX “C”

DECISION TREE

Are Sections 51(5) and 72(3) of the Code

(“sentencing provisions”) constitutionally valid?