College of Nurses of Ontario v. Raymond Labrecque, 2006 ONCNO 81756

PANEL: Denise Dietrich, RPN Chairperson Dennis Curry, RN Member Jim Attwood, RN Member Linda Bracken Public Member Grace Isgro-Topping Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO LINDA ROTHSTEIN for College of Nurses of Ontario

and -

RAYMOND LABRECQUE Registration No. [9307802] BRIAN HANULIK for Raymond Labrecque

Heard: June 13, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 13, 2006 at the College of Nurses of Ontario (“the College”) at Toronto.

Raymond Labrecque (“the Member”) attended the hearing by teleconference.

The Allegations

College Counsel informed the panel that they would not be proceeding with allegations #1 sub paragraph a - ix and sub paragraph c. The remaining allegations against the Member as stated in the Notice of Hearing dated May 4, 2006, are as follows:

You have committed an act of professional misconduct as provided by subsection 51(1)(b) 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 you have committed an act of professional misconduct in that you have been found by the governing body of a Health Profession in a jurisdiction other than Ontario to have committed an act of professional misconduct that would, in the opinion of a panel of the Discipline Committee of Ontario, be an act of professional misconduct as defined in the Regulations and in particular, on December 16, 2002, you were found guilty of the following offences:

a) That between May 9, 2000 and June 2001, in the Province of Quebec, you did commit an act contrary to the dignity of your profession by sexually abusing a client:

i. By kissing [the client] on more than one occasion;

ii. By giving [the client] massages;

iii. By hugging [the client];

iv. By lying beside [the client] in [the client’s] bed;

v. By slipping your hands under [the client’s] dress;

vi. By playing with [the client’s] hair;

vii. By taking [the client] by the hand on several occasions;

viii. By putting your head in [the client’s] lap.

These acts are contrary to Section 59.1 of the Code des professions, L.R.Q., C. C-26; and/or

b) That between October 23, 2000 and June 2001, in the Province of Quebec, you did commit acts and behaved in a manner that are generally considered unacceptable in the practice of nursing:

i. by making inappropriate comments to a client regarding the noise made by your bed.

These acts and behaviour are contrary to Section 4.01.01 (g) of the Code de déontologie des infirmières et infirmiers, R.R.Q., c. 1-8, r.4; and/or

Member’s Plea

The Member admitted the allegations set in the Notice of Hearing allegations noting the College was not proceeding with allegations #1 sub paragraph a - ix and sub paragraph c. 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 which provided as follows:

THE MEMBER

Mr. Raymond Labrecque (the “Member”) graduated in [ ], Quebec with an RN Diploma in 1988. He registered with the College of Nurses of Ontario (the “College”) on January 25, 1993.
The Member does not have a prior discipline history with this College. Findings of professional misconduct have been made against the Member by the Discipline Committee of the Ordre des Infirmieres/ Infirmiers du Quebec (Quebec Nursing Board – “OIIQ”).
The Member is currently employed as a General Duty Nurse at [ ] in [another jurisdiction]. He has been employed in this capacity since July 2004.

BACKGROUND INFORMATION

Following his graduation in 1988 in Quebec, the Member was employed as an RN [ ] in [], Quebec for approximately three years.
The Member first registered with Ontario’s College in 1993. He remained a member until 1999, at which time he returned to Quebec. Between 1993 and 1999, the Member was employed as an occupational health nurse with [ ] in Ontario.
The Member returned to Quebec and worked as a psychiatric nurse at a hospital in [ ] from March 1999 until June 2001. Between May 2000 and June 2001, the Member committed the acts that formed the basis of the Quebec discipline case.
The Member re-registered with the College in August, 2001. In January 2002, the Member returned to Ontario after obtaining a job as a community health nurse [ ]. At the time of his hire, the Member informed his employer that he was under investigation with the OIIQ.
In December 2002, the Member was found guilty of three counts of professional misconduct by the Discipline Committee of the OIIQ. [ ]. In February 2003, the Discipline Committee of the OIIQ imposed its penalty on the Member.
In June 2003, the College received a letter from the Member dated May 20, 2003 advising that he had been before the Discipline Committee of the Ordre des Infirmieres/ Infirmiers du Quebec (Quebec Nursing Board – “OIIQ”). The Member attached the letter from the Discipline Committee of the OIIQ, dated March 14, 2003 and informing him of the penalty ordered by the Committee.

FINDINGS OF PROFESSIONAL MISCONDUCT, QUEBEC

The Member faced eight counts of professional misconduct. He pleaded guilty to one count and, following a contested hearing on the remainder, he was found guilty of another two counts. All of the allegations arose during the time the Member was employed as a psychiatric nurse in a hospital in Quebec, and all relate to incidents of violating client boundaries.

THE FIRST FINDING – COUNT ONE

It was alleged that the Member:

Between May 9, 2000 and June 2001, committed an act contrary to the dignity of his profession by sexually abusing a client, [], by kissing [the client] on more than one occasion, by giving [the client]massages, by hugging [the client], by lying beside [the client]in [the client’s] bed, by slipping his hands under [the client’s] dress, by playing with [the client’s] hair, by taking [the client] by the hand on several occasions, by putting his head in [the client’s] lap, and by watching [the client] while she was in the washroom. These acts were committed while the defendant had a professional relationship with the client, which contravenes section 59.1 of the Code des professions, L.R.Q., c. C-26.

The Discipline Committee of the OIIQ did not find the member guilty of all the specified charges contained within this count. In particular, the Committee found that there was no misconduct in relation to the Member having observed the client in the [ ] washroom. However, the Committee considered the above enumerated points as examples of the conduct at the centre of the complaint and found the Member guilty of this count based on the complainant’s evidence, [the client’s] disclosures to [the client’s] physician, and the fact that the complainant had no reason to lie because [the client] was in love with the Member.

THE SECOND FINDING - COUNT FIVE

It was alleged that the Member:

Between October 23, 2000 and June 2001, through acts or behaviour that are generally considered unacceptable in the practice of nursing, made inappropriate comments to a client, [], regarding the noise made by the defendant’s bed, which contravenes section 4.01.01(g) of the Code de déontologie des infirmières et infirmiers, R.R.Q., c. 1-8, r.4.

The Discipline Committee heard evidence on this count as well, and found that the client had knowledge of the Member that [the client] should not have known. Specifically, the client knew the Member’s marital status and that the Member used a plank around his bed at home to dull the noise his bed made when he and his wife had sexual intercourse. The Member relayed this personal information to his client in response to the client having confided in the Member that [the client] had heard [the client’s] mother engaging in sexual intercourse with her boyfriend.
The Discipline Committee found the Member had committed professional misconduct by disclosing inappropriate information to a client.

THE THIRD FINDING – COUNT SEVEN

It was alleged that the Member:

Between November 29, 2000 and December 2000, through acts or behaviour that are generally considered unacceptable in the practice of nursing, sexually abused a client, [], by rubbing [the client’s] feet which were on his thighs, which contravenes section 4.01.01(g) of the Code de déontologie des infirmières et infirmiers, R.R.Q., c. 1-8, r. 4.

The Discipline Committee found that the act of massaging a client’s feet did not constitute sexual abuse of a client, as alleged. However, the Committee accepted the Member’s guilty plea with respect to having committed the conduct and found him guilty of having committed acts that were generally considered unacceptable to the practice of nursing.

PENALTY

On February 28, 2003 the Discipline Committee of the OIIQ ordered a two-month suspension of the Member’s registration plus a $600 fine for its finding on count one. In addition, it ordered a one-week suspension for its finding on count five, to be served concurrently with the suspension on count one, plus an oral reprimand for its finding on count seven. The Member’s license was suspended in Quebec from March 11 to May 12, 2003.

RELEVANT LEGISLATION IN ONTARIO

Clause 51 of the Regulated Health Professions Code (“Code”) provides that:

51(1) A panel shall find that a member has committed an act of professional misconduct if,

(b) the governing body of a health profession in a jurisdiction other than Ontario has found that the member committed an act of professional misconduct that would, in the opinion of the panel, be an act of professional misconduct as defined in the regulations.

This clause clearly directs that the panel of the Discipline Committee in Ontario shall find that a Member has committed an act of professional misconduct if:

(a) another regulator in another jurisdiction has found that the member has committed an act of professional misconduct; and

(b) the Ontario panel is of the opinion that the act of professional misconduct found by the other jurisdiction would be an act of professional misconduct in Ontario.

ADDITIONAL INFORMATION

Between September 2001 and June 2003, the Member travelled to [ ] for counselling sessions which occurred weekly for the first three months, bi-weekly for the next four months, and then monthly for the next three months. For the remaining period, the Member attended sessions on a quarterly basis. The sessions were directly related to issues regarding the Member’s personal and professional boundaries.
The Member has not engaged in the practice of nursing in a psychiatric setting since the decision of the OIIQ. The Member has been employed as a General Duty Nurse at [ ] in [another jurisdiction], since July 2004 without incident. The Member’s direct supervisor (Nurse Manager) and the employer’s Human Resources personnel are aware of the finding of the OIIQ and this proceeding at the College.

ADMISSIONS

The Member admits that he has committed an act of professional misconduct as provided by subsection 51(1)(b) 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 he has committed an act of professional misconduct in that he has been found by the governing body of a Health Profession in a jurisdiction other than Ontario to have committed an act of professional misconduct that would, in the opinion of a panel of the Discipline Committee of Ontario, be an act of professional misconduct as defined in the Regulations.
In particular, on December 16, 2002, the Member was found guilty of counts one, five and seven, as described herein at paragraphs 11-17. With respect to count one, the Committee found that the Member’s conduct constituted sexual abuse and the Member was found to have breached section 59.1 of the Code des professions. With respect to counts five and seven, the Member was found to have committed acts and behaved in a manner that was generally considered unacceptable to the practice of nursing, contrary to s. 4.01.01(g) of the Code de dèontologie des infirmières et infirmiers.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct. The panel finds that the Member was found by the governing body of a Health Profession in jurisdiction other than Ontario to have committed an act of professional misconduct that would, in the opinion of a panel of the Discipline Committee of Ontario, be an act of professional misconduct.

Reasons for Decision

The panel [ ] noted that the decision provided by the Quebec Discipline Committee supported the Member’s admissions as contained in the Agreed Statement of Facts.

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:

Raymond Labrecque (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 Facts, and the Member’s admissions of professional misconduct, the panel of the Discipline Committee should make an Order as follows:

Requiring the Member to be reprimanded;
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) Until the Member has completed 24 months of practice following the date of this Order, the Member shall only practise nursing where he has provided his employer’s chief nursing officer (or equivalent) with a copy of the Discipline Committee’s Penalty Order with its appendices, including the Agreed Statement of Facts and Joint Submission on Penalty or, if available, the Discipline Committee’s Decision and Reasons, and the employer has agreed to write to the Director of Investigations and Hearings within fourteen (14) days of the Member’s resumption or commencement of practice confirming:

(i) receipt of the Penalty Order with appendices, or the Decision and Reasons; and

(ii) that it agrees to notify the Director of Investigations and Hearings immediately upon receipt of any reasonable information that the Member has engaged in any professional misconduct.

b) The Member must notify the Director of Investigations and Hearings of the name, address, phone number, and department (if applicable) of all facilities or agencies at which he is directly employed to practise nursing, within fourteen (14) days of commencing or resuming practice until the Member has completed 24 months of practice following the date of this Order. Such notification must be in writing and sent by verifiable form of delivery (such as courier), and the Member must retain proof of delivery.

c) The Member must meet with a Practice Consultant from the College to discuss the professional standards expected of him in Ontario and to ensure he understands what is acceptable and not acceptable behaviour regarding boundaries in the nurse-client relationship in Ontario. In preparation for this meeting, the Member shall review the current standards of the profession and shall be prepared to discuss his understanding of how his past behaviour violated the boundaries of the nurse-client relationship. The Member shall meet with the Practice Consultant on at least three occasions and not more than six occasions, to ensure that he understands boundary issues in the nurse-client therapeutic relationship and to complete any assignments and reading requested of him by the Practice Consultant.

Counsel for the College submitted that the primary obligation of a penalty should be to protect the public. Counsel for the College also acknowledged that the proposed penalty does not contemplate punishment or suspension. In coming to the proposed penalty the following issues were considered:

If this Member had been found to commit the acts that were the subject of the Quebec hearing in Ontario, a suspension would be necessary.
A 2 month suspension as occurred in Quebec would be viewed as extremely lenient.
It does make a difference that these acts occurred in Quebec where a finding of professional misconduct was made.
Underlying this sort of case is a notion that there is a type of double jeopardy. The intent of a penalty is not to penalize twice in the same way.
It is not necessary to impose suspension if we are satisfied that the public can be protected by monitoring.

Counsel for the College further advised that we should be satisfied that the public can be protected by monitoring for the following reasons:

When the member moved to Ontario he acted appropriately and disclosed to his employer and to the College the allegations he was facing in Quebec.
The member voluntarily participated in counselling which should be a sign that he accepted responsibility for his actions.
The member has co-operated fully with this College.
The member has the support of his current employer.
The member is no longer working in a psychiatric setting.
The terms and conditions identified in the Joint Submission on Penalty provide a further safety net.

Counsel for the Member advised that he echoed the comments that had been made by College Counsel. [Member’s Counsel] also advised that the proposed penalty addresses the need for specific and general deterrence and protection of the public. He advised that the penalty will remind the member and others of the serious nature of this type of professional misconduct. The penalty protects the public through monitoring.

Penalty Decision

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

The Member is required to appear before the panel to be reprimanded;
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

(i) receipt of the Penalty Order with appendices, or the Decision and Reasons; and

(ii) that it agrees to notify the Director of Investigations and Hearings immediately upon receipt of any reasonable information that the Member has engaged in any professional misconduct.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The panel found that the penalty addresses both specific and general deterrence. The panel agreed that the public would be protected through the monitoring requirements articulated in the penalty. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for his actions.

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:

Dennis Curry, RN Jim Attwood, RN Linda Bracken, Public Member Grace Isgro-Topping, Public Member