College of Nurses of Ontario v. [Member], 2006 ONCNO 81732

Discipline Committee of the College of Nurses of Ontario

Panel: Denise Dietrich, RPN Chairperson Shiela Pendock, RN Member Faira Bari, Public Member Linda Bracken, Public Member

Between: Marie Henein for College of Nurses of Ontario

• and - Luigi DeLisio for [Member]

Registration No. [ ]

Heard: January 9, 2006 and November 30, 2006

Decision and Reasons

This matter came on for hearing before a panel of the Discipline Committee on January 9, 2006 and November 30, 3006 at the College of Nurses of Ontario (the "College") at Toronto.

The Allegations

College counsel informed the panel that allegation 1, subparagraph 1, had been withdrawn. The remaining allegations against [the Member] as stated in the Notice of Hearing (Exhibit # 1) dated December 5, 2005 are as follows:

1. You have committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32, as amended, and defined in subsection 1(37) of the Ontario Regulation 799/93, in that you engaged in conduct or performed an act or acts 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:

(1) [withdrawn]

(2) on October 23, 1996, you were convicted of the offences of sexual interference and sexual touching contrary to the Criminal Code of Canada.

2. You committed an act or acts or professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, c. 32 as amended, in that on October 23, 1996, you were found guilty of the offences of sexual interference and sexual touching contrary to the Criminal Code of Canada.

Member's Plea

The Member admitted the allegations set out in paragraphs 1(2) and 2 in the Notice of Hearing. The panel conducted a plea inquiry and was satisfied that the Member's admission was voluntary, informed and unequivocal.

The panel also received a written and signed plea inquiry (Exhibit #2).

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached between the parties on the facts and introduced an Agreed Statement of Facts (Exhibit #3), which provided as follows:

THE MEMBER

1. [The Member] graduated from [ ] College with a RN Diploma in 1989 and registered with the College of Nurses of Ontario (the "College") on June 7, 1989.

2. The Member does not have a prior discipline history with the College.

THE OFFENCES

3. The Member was arrested on April 1, 1989. [The Member] was charged that between January 1st, 1988 and February 3rd, 1989, [the Member] committed the offences of sexual interference and invitation to sexual touching involving [the member's child].

4. Following [the Member's] trial in 1991 and while renewing [the Member's] membership with the College, the Member reported that [the Member] had been found guilty of the criminal offences and that [the Member] intended to appeal [the] convictions.

5. The Member appealed [the] convictions to the Court of Appeal for Ontario and the Supreme Court of Canada. The Supreme Court overturned [the] convictions and ordered a new trial for the Member due to legal errors. The new trial proceeded in 1996.

6. On October 23, 1996, the Member was again convicted of sexual interference and invitation to sexual touching. [The Member] was sentenced on that day to five years' imprisonment on each count, to be served concurrently, plus a ten year firearm prohibition order. The Member has completed serving [the] sentence.

BACKGROUND INFORMATION ON THE OFFENCES

The following information is a brief summary of the Trial Judge's Reasons for Judgment on October 23, 1996.

7. The Member [ ] married in September 1984. They separated in mid-January 1985. Their [child] was born in September 1985.

8. A few weeks after their [child's] birth, [the Member's spouse] arranged to meet the Member and provide [ ] access to the child in [the spouse's] presence. The Member had access once a week, sometimes two to three times a week. The visits usually occurred at [the Member's] parents' home.

9. The relationship between the Member and [the Member's spouse] fluctuated. On a number of occasions during this time, they had family outings together with their [child].

10. The Member's last visit with [the child] was in January 1989, after which [the member] returned [the child] to [the child's] grandmother's home. The trial Judge found that at this time the Member's [child] spontaneously disclosed to [the] grandmother some of the facts giving rise to the charges.

11. The main issue at the Member's trial was the credibility of the witnesses.

12. The Member's [child] [ ] testified about what had happened [ ]. [The child] testified that during access visits [the Member engaged in sexual acts].

13. [The child] testified that [ ].

14. [The child] testified that [ ]. [The child] also testified that the Member would tell [the child] to shut up or [the Member] would kill [the other parent]. [The child] testified [to feeling fearful of the Member] and would stop screaming. [The child] testified that [the Member] threatened to kill [the child] if [the child] told [the other parent].

15. A child psychologist examined the Member's [child] in October and November 1989. The psychologist described two drawings made by the Member's [child] as "bizarre" and "unusual". The [child] refused to identify the [person] in the drawings. The psychologist found the child suffering from an anxiety disorder interfering with normal development, with high sexual overtones, a negative feeling for [the Member], and a clinging, worried feeling for [the other parent].

16. The Trial Judge found the child to be a bright, articulate child, recounting material events in a forthright and assertive manner. He did not believe the child attempted to embellish any of [the child's] evidence, but found [the child's] description of events to be coherent and complete. He found an absence of any reason or motive to fabricate. He found that [the child's] evidence related to a progression of sexual activity with age inappropriate sexual knowledge. As a result of all of the evidence, the Trial Judge found the child's evidence had an "air of reality" that was drawn from personal experience and was not the product of imagination or fantasy.

17. The Trial Judge found that where the child's [other parent's] evidence was in conflict with the Member's testimony, he accepted [the other parent's] evidence as being more reliable and trustworthy. [The Member] denied all the allegations made by [the child], testifying that they did not happen. The Trial Judge found that in considering the totality of the Member's evidence, it did not have the ring of truth, and he rejected the Member's testimony. The Trial Judge concluded that the Member had ample and exclusive opportunity to commit the offences.

18. While sentencing the Member to five years of imprisonment on each count to be served concurrently¹, the Trial Judge noted a number of mitigating factors, including the fact that the Member was a university educated graduate nurse with no prior convictions. Aggravating factors include the fact that the sexual abuse of one's child is a despicable crime, and that the Member abused the position of trust [the Member held as a parent] and caregiver to [the] child.

THE MEMBER'S POSITION

19. The Member acknowledges that [the Member] has been convicted of the offences named above. [The Member] denies that [the Member] is guilty of the offences and believes [the] convictions are a gross miscarriage of justice. [The Member] believes the charges were brought against [the Member] as a result of a growing level of animosity between [the Member and the Member's ex-spouse] and that [the child] was used as a pawn.

ADDITIONAL INFORMATION

20. While in prison, the Member participated in several programs, including one designed for [persons] who have been convicted of a sexual offence they deny having committed. Post-treatment evaluation indicated that the Member had made significant gains on issues such as understanding victim harm, expressions of empathy, self-worth, relationship and social skills, coping style and skills, emotional expression, attitudes toward the rights of others, plans to avoid and cope with future potential risk, and release plans. According to the director of [Psychological Services], given the Member's gains in [the] treatment programs, the fact that the offences occurred over 14 years ago, the fact that [the Member] has remained problem free since [the Member's] release, he considers the Member to be "as close to a zero risk to re-offend as is possible for someone previously convicted of a sexual offence". The Member has adduced no current psychiatric assessment or report.

21. The Member worked at [a Hospital] for two years prior to [the] convictions in 1996. Upon [ ] release from prison the Member took New Start Nursing courses through [ ] College, and successfully completed the program in December 2002.

22. The Member is not currently employed as a [nurse] and has not been employed as a [nurse] since 1996. While in practice, the Member worked with adults and [the Member] wishes to return to work with the elderly.

ADMISSIONS

23. The Member acknowledges that [the Member] has committed an act or acts of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, c.32, as amended, and defined in subsection 1(37) of the Ontario Regulation 799/93, in that [the Member] engaged in conduct or performed an act or acts 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 on October 23, 1996 [the Member] was convicted of the offences of sexual interference and sexual touching contrary to the Criminal Code of Canada.

24. The Member acknowledges [committing] an act or acts of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, c.32 as amended, in that on October 23, 1996 [the Member] was found guilty of the offences of sexual interference and sexual touching contrary to the Criminal Code of Canada.

25. The College seeks leave of the Discipline Committee to withdraw allegation #1(1) in the Notice of Hearing.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed the following acts of professional misconduct:

Engaging in Disgraceful, Dishonourable or Unprofessional Conduct or Acts

The Member engaged in conduct and 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. Specifically, on October 23, 1996, the Member was convicted of the offences of sexual interference and sexual touching contrary to the Criminal Code of Canada.

Criminal Code Findings of Guilt

The Member was found guilty of the offences of sexual interference and sexual touching contrary to the Criminal Code of Canada.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Penalty had been agreed upon. The Joint Submission as to Penalty provides as follows:

[ ] (the "Member") and the College of Nurses of Ontario (the "College") respectfully submit that, in view of the circumstances set out in the Agreed Statement of Fact and the Member's admissions of professional misconduct, the Panel of the Discipline Committee ("the Panel") should make an Order as follows:

1. Requiring the Member to appear before a Panel of the Discipline Committee to be reprimanded, at a date to be arranged, but in any event within three months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member's Certificate of Registration for twelve (12) months. The suspension shall commence to run on the date this Order becomes final through waiver, expiry, or exhaustion of the Member's rights of appeal, or upon the day that the Member meets the condition specified in 3(a), below, whichever date is later. The suspension shall run continuously so long as the Member maintains a current registration. In the event that the Member fails to maintain a current registration, any portion of the suspension which has not yet been served shall be served commencing on the day that the registration is renewed.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member's certificate of registration:

a) prior to accepting any employment in nursing, the Member shall provide the Director of Investigations and Hearings ("the Director") with evidence satisfactory to the Director of the Member's safe practice of nursing within the past five (5) years or, alternatively, the Member shall provide the Director with evidence of [ ] successful completion of a refresher course in nursing, satisfactory to the Director. Any costs associated with this condition shall be borne by the Member;

b) the Member shall only practice nursing for an employer where other registered nurses are employed and will not practice independently or in the community;

c) the Member shall refrain from practicing nursing in a pediatric nursing setting or any other setting involving individuals under the age of fourteen (14) years;

d) the Member shall only practice nursing for an employer who agrees:

i. to receive, in advance of the Member accepting a nursing position, the employer's chief nursing officer or equivalent, with a copy of the panel's Penalty Order with the attached Notice of Hearing, Agreed Statement of Facts, Joint Submission on Penalty and any attachments to these documents and, if available, the panel's written Decision and Reasons;

ii. to write to the Director of Investigations and Hearings ("the Director") within 14 days of the Member commencing employment to:

A. confirm the date the Member's employment commenced;

B. confirm the employer's receipt and review of the documents referred to in 3(d)(i), above;

C. acknowledge that the employer, and any staff the employer deems necessary, are aware of the restrictions on the Member's certificate of registration, and

D. confirm their agreement to supervise the Member in the enforcement of the restrictions on the Member's certificate.

iii. to notify the Director immediately upon receipt of any reasonable information that the Member has failed to abide by any of the terms of this Order;

e) the Member will refrain from being alone in [the Member's] place of employment with any individuals under the age of 14 (fourteen) years old; and

f) The Member shall notify the Director of the name, address and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position. Notification shall be in writing and sent by verifiable form of delivery, such as courier, the proof of which delivery the Member shall retain.

Counsel for the College provided the panel with a document brief (Exhibit #4) that contained a report from [Dr. A] of [Facility A] and reports from [Dr. B] of [Facility B] dated January 20, 2004 and February 14, 2006. Also contained in this document brief was a summary of evidence that would have been provided by [Dr. C] had she been called to testify in this matter.

Counsel for the College reviewed with the panel that when considering penalty in this matter it was necessary to determine the element of risk involved. The Member had provided the College with an assessment from [Dr. B] that indicated the risk of the Member re-offending was low. The College required further information of an independent nature in order to formulate what it viewed to be a reasonable penalty in this matter. The Member agreed to undergo an assessment with [Dr. A] and the results of this report were reviewed with the panel prior to the presentation of the Joint Submission on Penalty.

The report received from [Dr. A] was based on an assessment of the Member on September 14, 2006. It was noted that the Member had refused a request by [Dr. A] to undergo [one form of testing] testing. The Member did cooperate with the other components of [Dr. A's] assessment which included interviewing and completion of psychometric testing to assess risk of re-offending. [Dr. A] concluded that the Member was "at low long-term risk of engaging in hands-on sexually aggressive behaviour as compared with other sexual offenders". He recommended that, should the Member return to nursing practice, [the Member] should have "no unsupervised access to patients under the age of 14, and in all likelihood, should not work in a facility which would require such treatment or wherein children would be visiting on a regular basis".

[Dr. A's] report was consistent with reports received from [Dr. B]. [Dr. B] had been the Member's treating psychologist when [the Member] was incarcerated and had seen the Member in follow up in 2004 and 2006. Dr. B commented that the Member had successfully completed the [ ] Treatment Program [ ] in 1998. He maintained that based on the Member's time in treatment and [the Member's] subsequent visits to [Dr. B] that the Member is in the lowest possible risk category to re-offend. [Dr. B] also stated in his report, "I do not believe [the Member] constitutes any risk to offend against adults (young, middle-age, or elderly) who might be in [the Member's] care".

Counsel for the College reviewed with the panel a document compiled as a result of a telephone interview with [Dr. C] on December 1, 2005. [Dr. C] is a professor in the faculty of Nursing at the University of [ ] and has acted as an expert witness for the College in past sexual misconduct matters. The interview occurred prior to the assessment of the Member by [Dr. A]. At the time of the interview, [Dr. C] reported that she had concerns about the Member's suitability to practice given that the Member's past behaviour is the "exact antithesis of every nursing value at the heart of the profession". In particular the Member's actions were violent, abusive, deceptive and deceitful. Contributing to [Dr. C's] concern was the fact that, at the time of her interview with the Member, there was no current psychological assessment of the Member and no assurance that [the Member] has been rehabilitated.

Counsel for the College advised the panel that the proposed penalty was severe and appropriate. In her submission, the penalty strikes the "correct note" and serves to protect the public. She advised the panel that:

• the penalty was severe and within range of penalties provided in similar cases;
• the terms and limitations in the penalty are significant in the workplace when one considers that the Member has no restrictions placed on [the Member] currently in the community;
• the proposed conditions are not time limited and will be in effect for the rest of the Member's nursing practice;
• the proposed penalty restricts [the Member] from practising with a population that [the Member] might abuse or violate;
• the Member has completed [the Member's] sentencing requirements and undergone treatment [ ];
• the offences occurred 17 years ago; and
• [the Member] is seen as being at low risk to re-offend.

Counsel for the College also advised that she was seeking a publication ban to protect the identity of the victim in the criminal proceedings.

Counsel for the Member advised the panel that [the Member] was in agreement with the submissions made by Counsel for the College. He further added that the proposed penalty would protect the public while allowing the Member to serve the public through the practice of nursing. He reminded the panel that the Member would need to undergo upgrading, disclose findings to any nursing employer and that [the Member] would never be able to work with children. The Panel further inquired as to why the age of 14 years was identified as the age of individuals that the Member should not be alone with. Counsel for the College advised that this age limit had been identified in [Dr. A's] report. Counsel for the Member concurred that it was [Dr. A's] report that defined the age of restriction. Counsel for the College acknowledged that a specific age was difficult to determine but that she also would find raising the age to sixteen or eighteen to be acceptable. Counsel for the Member agreed that an age limit was difficult to determine.

Penalty Decision

The panel accepts the Joint Submission as to Penalty and accordingly orders:

1. The Member is required to appear before a Panel of the Discipline Committee to be reprimanded, at a date to be arranged, but in any event within three months of the date that this Order becomes final.

2. The Executive Director shall suspend the Member's Certificate of Registration for twelve (12) months. The suspension shall commence to run on the date this Order becomes final through waiver, expiry, or exhaustion of the Member's rights of appeal, or upon the day that the Member meets the condition specified in 3(a), below, whichever date is later. The suspension shall run continuously so long as the Member maintains a current registration. In the event that the Member fails to maintain a current registration, any portion of the suspension which has not yet been served shall be served commencing on the day that the registration is renewed.

3. The Executive Director shall impose the following terms, conditions and limitations on the Member's certificate of registration:

a) prior to accepting any employment in nursing, the Member shall provide the Director of Investigations and Hearings ("the Director") with evidence, satisfactory to the Director, of the Member's safe practice of nursing within the past five (5) years or, alternatively, the Member shall provide the Director with evidence of successful completion of a refresher course in nursing, satisfactory to the Director. Any costs associated with this condition shall be borne by the Member;

b) the Member shall only practice nursing for an employer where other registered nurses are employed and shall not practice independently or in the community;

c) the Member shall refrain from practicing nursing in a pediatric nursing setting or any other setting involving individuals under the age of sixteen (16) years;

d) the Member shall only practice nursing for an employer who agrees:

(i) to receive, in advance of the Member accepting a nursing position, the employer's chief nursing officer or equivalent, with a copy of the panel's Penalty Order with the attached Notice of Hearing, Agreed Statement of Facts, Joint Submission on Penalty and any attachments to these documents and, if available, the panel's written Decision and Reasons;

(ii) to write to the Director of Investigations and Hearings ("the Director") within 14 days of the Member commencing employment to:

(A) confirm the date upon which the Member's employment commenced;

(B) confirm the employer's receipt and review of the documents referred to in 3(d)(i), above;

(C) acknowledge that the employer, and any staff the employer deems necessary, are aware of the restrictions on the Member's certificate of registration; and

(D) confirm the employer's agreement to supervise the Member in the enforcement of the restrictions on [the Member's] certificate.

(iii) to notify the Director immediately upon receipt of any reasonable information that the Member has failed to abide by any of the terms of this Order;

e) the Member shall refrain from being alone in [the Member's] place of employment with any individual under the age of 16 (sixteen) years;

f) the Member shall notify the Director of the name, address and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position. Notification shall be in writing and sent by verifiable form of delivery, such as courier, the proof of which delivery the Member shall retain.

The panel also agrees with Counsel for the College that a publication ban is a necessary and appropriate action in regard to this matter. The intent of this Publication Ban is to protect the identity of the victim of [the Member's] actions.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for [the Member's] actions. Although the Member continues to proclaim [ ] innocence in regard to [the] criminal convictions, [the Member] has served the sentencing requirements, successfully completed treatment in a [ ] program and is reported to be at a very low risk to re-offend.

The panel's penalty decision varied slightly from the Joint Submission as to Penalty. The panel finds it necessary to restrict the Member's practice to prohibit [the Member] from working with individuals under the age of 16 (sixteen) years, as opposed to 14 (fourteen) years as submitted in the Joint Submission as to Penalty. The panel is of the view that it is difficult to determine an appropriate age given that reports indicate that the Member could practice safely with an adult population. The panel found that persons under the age of 16 could not reasonably be defined as "adults". Neither counsel objected to the change in the age limits provided in the panel's penalty order. Raising the age of restriction to 16 would protect the public without causing additional significant restrictions to the Member's ability to practice.

In addition the panel clarified through its penalty decision that the Member would need to have successfully completed a nursing refresher course within the past five years prior to returning to practice.

The panel concluded that the penalties imposed met the objectives of specific deterrence in that they would place significant limits on the Member's future practice. The panel felt that the restrictions in terms of exposure to children were necessary in order to protect the public despite this Member's relatively low risk of re-offending.

The panel recognizes that honesty and trustworthiness are the hallmarks of the nursing profession. While the actions that led to the Member's criminal convictions were not committed while engaged in nursing practice, nurses hold a high position of trust in the public viewpoint and must always conduct themselves in a manner that is deserving of this privilege of trust.

I, Denise Dietrich, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members: Shiela Pendock, RN Faira Bari, Public Member Linda Bracken, Public Member

Footnotes

1. 1In addition, the Member is prohibited from possessing any firearm or any ammunition or explosive substances for a period of 10 years following [ ] release from custody.