College of Nurses of Ontario v. Wouthuis, 2006 ONCNO 81740

PANEL: Deanne Barber, RPN Chairperson Lori McInerney, RN Member Dennis Curry, RN Member Linda Bracken Public Member Sharanjit Singh Padda Public Member

BETWEEN:

CAROLINE ZAYID for College of Nurses of Ontario

and - JULIE WOUTHUIS for JOHN R. WOUTHUIS Registration No. 0180596

Heard: October 23, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 23, 2006 at the College of Nurses of Ontario (the “College”) at Toronto. John Wouthuis (the “Member”) was present and represented by a non-lawyer agent.

The Allegations

College counsel informed the panel that allegations 1 (c)(i), (d)(ii), (e)(i)(ii), (f)(i); 3 (c)(i), (d)(ii), (e)(i)(ii), (f)(i) and 4 of the Amended Notice of Hearing (Exhibit #1) dated September 8, 2006 were withdrawn. Additionally, upon agreement and requests of the parties the panel agreed to accept amendments to allegations 1(g) and 3(h). Consequently, the hearing proceeded on the basis of the following allegations against the Member:

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 paragraph 1.01 of Ontario Regulation 799/93, in that, while employed as a Registered Nurse by [the Agency], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that you:

(a) Between December 18 and December 26, 2002, requested that [client A] provide you with coffee and when [client A] was unable to make coffee for you, you made it for yourself.

(b) Between December 30, 2002 and February 16, 2003, and during your visits to [client B]:

(i) accepted the gift of a blanket;

(ii) arrived late for appointments, or arrived at dinner time, and on one such occasion, accepted an invitation for dinner;

(iii) disclosed personal information, including complaints about your landlord and not having heat at your residence;

(iv) took your dog with you to your visits with this client.

(i) (withdrawn)

(ii) requested a glass of wine; and

(iii) failed to record this visit in the nursing notes for [client C].

(d) Between March 4 and April 1, 2003, during your home visits with [client D]:

(i) took cigarettes from, and shared cigarettes with [client D];

(ii) (withdrawn)

(iii) took your dog with you to your visits with [client D];

(iv) failed to complete the flow sheet for [client D];

(v) between March 4 and March 9, 2003, shaved the pubic hair of [client D]; and

(vi) on a subsequent visit to [client D] commented to her, “So, did your [spouse] like the Mohawk I left you down there?”

(e) (withdrawn)

(i) (withdrawn)

(ii) (withdrawn)

(f) On or about February 10, 2003, during a visit with [client E]:

(i) (withdrawn)

(ii) took your dog with you to your visit with [client E]; and

(iii) discussed personal information with [client E], including advice that you and your dog were living in a car.

(g) Between December 12, 2002 and March 27, 2003, you made rude and inappropriate comments to [colleague A] and physically touched her. On one occasion, you said to [colleague A] while placing your hand about her shoulders, “You look happy today, did you get it last night?”

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 paragraph 1.08 of Ontario Regulation 799/93, in that, while employed as a Registered Nurse by [the agency], you misappropriated property from your workplace in that you, between February 22, 2003 and March 6, 2003, completed time sheets indicating that you had visited [client F] on February 25, 2003, and accepted payment therefore, when no such visit had indeed been made.
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 paragraph 1.37 of Ontario Regulation 799/93, in that, while employed as a Registered Nurse by [the agency], you engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all of the circumstances, would reasonably be regarded by Members as disgraceful, dishonourable or unprofessional, in that you:

(a) Between December 18 and December 26, 2002, requested [client A] provide you with coffee and when she was unable to make coffee for you, you made it for yourself.

(b) Between December 30, 2002 and February 16, 2003, and during your visits to [client B]:

(i) accepted the gift of a blanket;

(ii) would often arrive late for your appointments, showing up at dinner time, and on one such occasion, accepted an invitation for dinner;

(iii) disclosed personal information, including complaints about your landlord and not having heat at your residence;

(iv) brought your dog with you to your visits with this client.

(i) (withdrawn)

(ii) requested a glass of wine; and

(iii) failed to record this visit in the nursing notes for [client C].

(d) Between March 4 and April 1, 2003, during your home visits with [client D]:

(i) took from and shared cigarettes with [client D];

(ii) (withdrawn)

(iii) took your dog with you to your visits with [client D];

(iv) failed to complete the flow sheet for [client D];

(v) between March 4 and March 9, 2003, shaved the pubic hair of [client D]; and

(vi) on a subsequent visit to [client D] commented [ ], “So, did your [spouse] like the Mohawk I left you down there?”

(e) (withdrawn)

(i) (withdrawn)

(ii) (withdrawn)

(f) On or about February 10, 2003, during a visit with [client E]:

(i) (withdrawn)

(ii) took your dog with you to your visit with [client E]; and

(iii) discussed personal information with [client E], including advice that you and your dog were living in a car;

(g) Falsified billing records for personal gain, as set out in paragraph 2 above; and

(h) Between December 12, 2002 and March 27, 2003, you made rude and inappropriate comments to [colleague A] and physically touched her. On one occasion, you said to [colleague A] while placing your hand about her shoulders, “You look happy today, did you get it last night?”

Member’s Plea

John R. Wouthuis admitted the allegations set out in paragraph 1, subparagraphs (a), (b), (c)(ii)(iii), (d)(i)(iii)(iv)(v)(vi), (f)(ii)(iii) and (g); paragraph 2; paragraph 3 subparagraphs (a), (b), (c)(ii)(iii), (d)(i)(iii)(iv)(v)(vi), (f)(ii)(iii), (g) and (h) in the Amended Notice of Hearing. The panel conducted a plea inquiry and was satisfied 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 an Agreed Statement of Facts (“ASF”) which provided as follows:

THE MEMBER

John Wouthuis (“Mr. Wouthuis”) has been registered with the College since 2001. Prior to working at [the agency], he held a position as a Registered Nurse in [another] Province [ ].
Mr. Wouthuis commenced his employment with [the agency] on December 12, 2002 and was terminated on April 2, 2003. Mr. Wouthuis worked as a Registered Nurse on a casual-elect to work basis and worked as close to full time hours as was available. His average caseload was 8-12 visits per day.

THE FACILITY

[The agency] is a Home Health Care agency [ ] which provides in-home visiting nursing services. At the time of the incidents, [the agency] employed 35 nurses, of which 4 were guaranteed positions of 60 hours bi-weekly (2 RNs, 2 RPNs). All other positions were casual – elect to work (hours were based on the nurses’ availability to work and the amount of work available). The average workload consisted of 10-12 patient visits per day depending on the number of referrals and each patient’s acuity. [The agency] services had a varied patient population but the majority of referrals came from the Community Care Access Centre in [ ] and were usually hospital follow-ups.

FACTS RELEVENT TO THE ALLEGATIONS

Nurse-Client Relationship

Mr. Wouthuis provided care to various clients while working at [the agency]. The care for the relevant clients is documented throughout the nursing notes for each client.

Nurse-Client Boundaries

[Client A]

[Client A] was a client who required dressing changes at home. Mr. Wouthuis attended on [client A] on a few occasions.
Between December 18, 2002 and December 26, 2002, Mr. Wouthuis requested, on two occasions, that [client A] provide him with coffee. As the client was unable to prepare the coffee for Mr. Wouthuis, he proceeded to prepare it for himself.
If the member were to testify, he would admit the facts set out in paragraphs 5 and 6.

[Client B]

[Client B] was a homecare client who required care and treatment of an infected surgical site [ ]. [Client B] had children at home. Mr. Wouthuis attended on [client B] on a number of occasions.
Between December 30, 2002 and February 16, 2003, and during his visits to [client B], Mr. Wouthuis: accepted an invitation for dinner with the family; disclosed personal information to [client B]; complained to [client B] about his landlord not having the heat on; brought his dog to [client B’s] home during client visits; and, accepted a gift of a wool blanket from [client B]. In addition, Mr. Wouthuis was also often late and would show up at dinner time.
If the member were to testify, he would admit the facts set out in paragraphs 8 and 9.

[Client C]

[Client C] was a homecare client who required care pertaining to an ileostomy bag following surgery in February 2003.
On or about February 26, 2003, after completing the change of [client C’s] ileostomy bag, Mr. Wouthuis asked [client C’s] adult [child] for a glass of wine. The visit took place at approximately 11:00 p.m., and Mr. Wouthuis had no further nursing obligations that day.
If [client C and the child] were to testify, they would say that this caused them considerable concern. They did not have any liquor in the house and they immediately called [the agency’s] office because they were worried that Mr. Wouthuis might be drinking and driving. They did not want Mr. Wouthuis back to care for [client C].
Mr. Wouthuis also failed to record this visit in the nursing notes for [client C].
If the Member were to testify, he would admit the facts set out in paragraphs 11, 12 and 14.

[Client D]

[Client D] was a homecare client with a neurogenic bladder suffered as a complication of diabetes. [Client D] required nursing intervention at home pertaining to an in-dwelling suprapubic catheter.
Between March 4 and April 1, 2003, during home visits with [client D], Mr. Wouthuis: took his dog with him to some home visits and took from and shared with [client D] cigarettes.
Mr. Wouthuis also neglected for some of the visits with [client D] in the same period to complete the nursing flow sheet for his visits with [client D].
During a visit which occurred between March 4 and March 9, 2003, Mr. Wouthuis shaved the pubic hair of [client D]. On his next visit with [client D], Mr. Wouthuis asked: “So, did your [spouse] like the Mohawk I left you down there?”
If the Member were to testify he would admit the facts as set out in paragraphs 16-19, inclusive, and would say that:

(a) [Client D] asked him to bring his dog to the home visits;

(b) he neglected to complete the nursing flow sheet on some occasions because he was too busy; and

[Client E]

[Client E] was a home care client who required dressing changes and monitoring of diarrhea.
On or about February 10, 2003, during a visit with [client E], Mr. Wouthuis brought his dog, Leo, with him into [client E’s] home. In addition, Mr. Wouthuis discussed personal information with [client E], including information that he and his dog were living in a car.
If [client E] were to testify, [client E] would say that [client E] got the impression that Mr. Wouthuis was not able to pay rent.
If the Member were to testify, he would admit the facts as set out in paragraphs 21 and 22.

Inappropriate Behaviour with Colleague [A]

[Colleague A] is a Registered Practical Nurse and, at the relevant time, was a colleague of Mr. Wouthuis’s at [the agency]. They worked in the same district and they shared many patient assignments.
Between December 12, 2002 and March 27, 2003, Mr. Wouthuis made rude and inappropriate comments to [colleague A] and physically touched her.
On another occasion, Mr. Wouthuis placed his hand on [colleague A’s] shoulders and stated “You look happy today, did you get it last night?”.
If [colleague A] were to testify, she would say that she perceived the remark set out in paragraph 27 to be a sexual remark and she was made to feel uncomfortable.
Mr. Wouthuis was counselled by his employer on December 27, 2002 and again on December 31, 2002, that his behaviour in the workplace was inappropriate. In spite of this, his behaviour did not stop.
If the Member were to testify, he would admit the facts as set out in paragraphs 25, 26, 27 and 29. He would further testify that [colleague A] “started it”.

Misappropriation of Property

Between February 22, 2003 and March 6, 2003, Mr. Wouthuis completed his time sheets indicating that he had visited with [client F] on February 25, 2003. Mr. Wouthuis did not physically see [client F] on February 25, 2003; rather, Mr. Wouthuis spoke with [client F] on the telephone on that date.
Mr. Wouthuis accepted and received payment for the alleged visit with [client F] on February 25, 2003, when no such visit had taken place.
If Mr. Wouthuis were to testify, he would admit the facts as set out in paragraphs 31 and 32 but would say that he thought a telephone call with a client was equivalent to a visit with the client at his home.

THE COLLEGE STANDARDS

In March of 1999 the College of Nurses of Ontario published a document entitled “Standard for the Therapeutic Nurse-Client Relationship” which deals specifically with the nurse-client relationship (please see Appendix “A”). It points out that it is the responsibility of the nurse, regardless of his or her intent, to set and maintain appropriate boundaries of the nurse-client relationship for the duration of the relationship, regardless of the wishes of the client. This document was re-published in January 2000. (please see Appendix “B”)
In June 2002 the College of Nurses of Ontario published a document entitled “Nursing Documentation Standards (Revised 2002)” which deals specifically with documentation standards expected of nurses (please see Appendix “C”). It points out that a nurse maintains documentation that is timely and a complete record of nursing care provided, and that a nurse maintains the standards by, among other things, documenting an assessment of the client’s health status and situation/circumstances, documenting during or as soon after the care/event as possible, and by documenting chronologically and indicating the date and time the care/event occurred. In the event of forgotten or late entries, the nurse meets the standards by documenting at the next available entry space and by documenting the date and time of the entry and the date and time that the care was given.

MEMBER’S ADMISSION

If the Member were to testify, he would admit the facts and matters as indicated above. Mr. Wouthuis admits that the above conduct amounts to professional misconduct as set out in following paragraphs of the Notice of Hearing:

paragraph 1, subparagraphs (a), (b), (c)(ii), (c)(iii), (d), (f)(ii) and (f)(iii);
paragraph 2;
paragraph 3 subparagraphs (a), (b), (c)(ii), (c)(iii), (d), (f)(ii), (f)(iii) and (g); and
paragraphs 1(g) and 3(h) amended as follows “Between December 12, 2002 and March 27, 2003, you made rude and inappropriate comments to [colleague A] and physically touched her. On one occasion, you said to [colleague A] while placing your hand about her shoulders, “You look happy today, did you get it last night?””

College Counsel reviewed the ASF and requested the panel make findings of professional misconduct.

The Member’s representative stated that they agreed to the ASF and submitted that the Member was not a danger to the public. The Member was too friendly and had learned his lesson.

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 an act of professional misconduct as alleged in paragraph 1, subparagraphs (a), (b), (c)(ii)(iii), (d)(i)(iii)(iv)(v)(vi), (f)(ii)(iii) and (g); paragraph 2; paragraph 3 subparagraphs (a), (b), (c)(ii)(iii), (d)(i)(iii)(iv)(v)(vi), (f)(ii)(iii), (g) and (h) in the Amended Notice of Hearing.

Specifically, the Member failed to meet the Standard of practice, in that he violated the therapeutic nurse-client relationship and violated documentation standards. In addition, the Member misappropriated property from the workplace and engaged in behaviour that would be regarded by the profession as disgraceful, dishonourable and unprofessional.

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 (JSP) provides as follows:

THE MEMBER AND THE COLLEGE JOINTLY SUBMIT that the appropriate penalty in this case is for the Discipline Committee to make the following order:

Requiring the Member to appear before the panel to be reprimanded within three months from the date this order becomes final;
Directing the Executive Director to suspend the Member’s certificate of registration for a period of three months to commence on the date this order becomes final;
Directing the Executive Director to impose the following terms, conditions and limitation on the Member on the date this order becomes final:

(a) The Member shall not engage in independent community nursing practice until he successfully completes sensitivity training with an expert as designated or approved by the Director of Investigations and Hearings (the “Director”) at the Member’s cost. The Member shall provide to the expert copies of the Agreed Statement of Facts, Joint Submission as to Penalty and the Discipline Committee’s decision and reasons in this matter. The training plan shall be developed by the expert and be based upon the incidents which gave rise to the findings of professional misconduct, and the plan must be approved by the Director prior to implementation. The duration of the training will be up to the discretion of the expert. The Member shall complete any prepatory reading/exercises recommended by the expert. At the completion of the training, the Member must ensure that the Director receives from the expert a report indicating the Member’s participation in the training, successful completion of the training, as well as his or her assessment of the Member’s insight into his behaviour.

(b) Until such time as the requirements under paragraph 3(a) have been satisfied, the Member can only work for an employer who agrees to ensure that the Member is supervised by another RN member of the College in accordance with the terms set out in paragraph 3(d)(i) below and who will provide written confirmation of such agreement to the Director.

(c) The Member shall provide the Director with the name and address of his current employer(s) within one month of hiring for a period of 18 months following the completion of the suspension.

(d) The member shall provide a copy of the Discipline Committee’s decision and reasons in this matter to each nursing employer he may have during the 18 months following the completion of the suspension. During this period, the Member can only work for an employer who agrees:

(i) that the Member’s practice will be monitored by another RN member of the College from time-to-time and no less often than every three months to ensure that the Member is meeting the standards of practice of the profession and, in particular, is meeting the standards with respect to the therapeutic nurse-client relationship;

(ii) to immediately notify the Director in the event any information comes to its attention that the Member is conducting himself in an inappropriate manner in his interaction with clients, and agree to provide all necessary information to the College to allow it to ascertain whether the Member is breaching the standards of practice, and the extent of the breach; and

(iii) to send to the Director written confirmation of their agreement to (i) and (ii) above and of receipt of a copy of the Discipline Committee’s decision and reasons in this matter from the Member.

The effect of an order by the Discipline Committee in this matter shall be suspended until such time as the Member reinstates his certificate of registration.

College Counsel submitted that general deterrence was provided for in the penalty in that the decision would be on the public record. There was specific deterrence to the Member provided in the three month suspension. Public safety and rehabilitation would be provided for in the sensitivity training and supervised practice portion of the penalty.

The Member’s representative declined to make submissions as to penalty.

Penalty Decision

The panel deliberated and accepted the Joint Submission as to Penalty. The parties requested that the panel reconvene the hearing. College Counsel notified the panel that both parties were requesting that the beginning of paragraph 4 of the JSP be amended to read, “The effect of an order by the Discipline Committee in this matter shall be suspended until such time as the Member reinstates his certificate of registration, except for the reprimand outlined in paragraph 1 of the order,” in order to facilitate the immediate administration of the oral reprimand. The panel agreed to the amendment to the order as requested. The panel ordered that:

The Member appear before the panel to be reprimanded within three months from the date this order becomes final;
The Executive Director suspend the Member’s certificate of registration for a period of three months to commence on the date this order becomes final;
The Executive Director to impose the following terms, conditions and limitation on the Member on the date this order becomes final:

(c) The Member shall provide the Director with the name and address of his current employer(s) within one month of hiring for a period of 18 months following the completion of the suspension.

The effect of an order by the Discipline Committee in this matter shall be suspended until such time as the Member reinstates his certificate of registration, except for the reprimand outlined in paragraph 1 of the order.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The penalty provides for specific and general deterrence, rehabilitation, monitoring and protection of the public. The panel recognizes the seriousness of the Member’s actions. The profession will not tolerate this type of behaviour. Honesty, integrity and professionalism are the cornerstone of the nursing profession.

I, Deanne Barber, 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:

Lori McInerney, RN

Dennis Curry, RN

Sharanjit Singh Padda, Public Member

Linda Bracken, Public Member