College of Nurses of Ontario v. Birchall, 2006 ONCNO 81758

PANEL: Jim Atwood, RN, Chairperson Kendra O’Bryan, RPN Member Cheryl McMaster, RPN Member Faira Bari Public Member Linda Bracken Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MARIE HENEIN for College of Nurses of Ontario

and -

BRIAN BIRCHALL Registration No. 8800179 DAVID MATHESON for Brian Birchall

Heard: June 15, 2006

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on June 15, 2006 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Brian Birchall (the “Member”) as stated in the Notice of Hearing dated May 04, 2006 (Exhibit 1), are as follows:

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 between June 2, 2004 and October 28, 2004, 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 viewed pornographic images through the internet on computers located at your place of employment and during work hours.

Member’s Plea

Brian Birchall admitted the allegations set out in the Notice of Hearing. The panel conducted a plea inquiry (Exhibit 2) 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 (Exhibit 3) which provided as follows:

THE MEMBER

Brian Birchall (the “Member”) has been registered with the College as an RN since 1988.
The Member was hired at [the hospital] as a casual nurse on May 26, 2003. He was terminated on October 29, 2004 as a result of the incident described below. He is presently employed at [ ], a Telehealth Centre providing health information through telephone call-ins.
The Member does have a prior discipline history which will be addressed below.

THE FACILITY

The Member was employed at [a] Psychiatric unit located in [ ]. The psychiatric unit is a 27 bed inpatient facility. The RNs work a 12 hour day/night rotation and the staff has a primary care assignment for each shift. During days, there is also a charge nurse and a medication nurse both of whom do not have a patient assignment.

INCIDENT

On October 12, 2004, the Member was working the day shift and was the designated medication nurse. [ ], an RPN, was also working the same shift as the Member. At approximately 1820 to 1830 hours, a patient came to the nurse station and requested medication.
[The RPN] could not find the Member to give the patient his medication. After looking for the Member throughout the unit, [the RPN] asked some co-workers if they had seen the Member. One colleague suggested that she try the social worker’s office because the Member would frequently be in there using a computer.
[The RPN] went to the office, knocked on the door and without waiting for a response, unlocked, opened the door and entered the office. The member was sitting facing the computer screen with his back to the door. [The RPN] observed a graphic pornographic image on the computer screen that was in front of the Member. [The RPN] reported her concerns to a supervisor.
Other staff noted that the Member appeared to be absent frequently for one to one and a half hours, usually after patient lunches were completed.
In addition, in June of 2004, [ ], a social worker whose office the Member frequently used, had to make two requests to the computer department as she was receiving unsolicited sexually explicit announcements on her computer.
As a result of this information, [the hospital’s] Information Services conducted a computer audit on October 13, 2004. The computer audit on the computer contained in the social worker’s office revealed that there was significant activity on pornographic websites under the Member’s user name and that he had viewed thousands of images of pornography which included both pictures and movies. The images did not contain any child pornography. An audit of a second computer located in the unit charting room yielded similar results.
A review of the dates and times that the pornographic websites were accessed coincided with the shifts worked by the Member from June 2, 2004 to October 28, 2004.
The audit further revealed that the Member accessed and viewed pornography during every shift between two and four times per shift.
Although the Member viewed pornography on the employer’s computer, he did not save any of the pornographic images on the computer.
As a result of the computer audit, the Member was suspended without pay on October 13, 2004 and, subsequently resigned on October 29, 2004.
The Member admits that he spent many hours accessing pornography while working on the computer located in the social worker’s office as well as the computer used in the unit’s charting room. The Member did not, however, deliberately save the images and was unaware that they were automatically downloaded when one viewed the pornographic website.

PRIOR DISCIPLINARY HISTORY

On January 5, 2004, the Member admitted that he committed acts of professional misconduct in relation to the verbal and physical abuse of a psychiatric patient. The allegations related to the verbal, physical and mental abuse of a psychiatric patient as well as deliberately entering a misleading entry in the patient chart regarding the events surrounding the assault. Attached at Appendix “A” is a copy of the Discipline Panel’s judgment.
The Discipline Panel imposed a penalty including a reprimand, four months suspension and the imposition of terms, conditions and limitations on the Member’s certificate of registration. The Member had completed his period of suspension in May of 2004. He began accessing pornography at [the hospital] in June of 2004.

ADMISSIONS

The Member admits that he committed an act or acts of professional misconduct in that between June 2, 2004 and October 28, 2004, while working as a Registered Nurse at [the hospital], he engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that the Member viewed pornographic images through the internet on computers located at his place of employment and during work hours.

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 of the Notice of Hearing, in that between June 2, 2004 and October 28, 2004, while working as a Registered Nurse at [the hospital], the Member engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional in that he viewed pornographic images through the internet on computers located at his place of employment and during work hours.

Penalty Submissions

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:

Brian Birchall (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 should make an Order as follows:

Requiring the Member to appear before the panel to be reprimanded;
Directing the Executive Director to suspend the Member’s certificate of registration for 30 days, to commence on the date that this Order becomes final;
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

(a) The Member must notify the Director of the names, addresses, and phone numbers of all facilities or agencies at which he is directly employed to practice nursing, within 14 days of resuming practice, until the Member has completed 12 months of nursing 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.

(b) Until the Member has completed 12 months of nursing practice following the date of this Order, the Member shall only practice nursing for an employer(s) who has acknowledged to the Director in writing that it has received a copy of the Discipline Committee’s penalty order with its appendices, including the Notice of Hearing, Agreed Statement of Facts and Joint Submission on Penalty or, if available, the Discipline Committee’s Decision and Reasons. The employer(s) must acknowledge receipt of the above within 14 days of the commencement of practice.

Counsel for the College made submissions to the panel as follows:

Aggravating factors included that:

The misconduct occurred over several months;
The behaviour was extremely frequent (2-4 times per shift); and
The behaviour started one month after his previous disciplinary suspension.

Mitigating factors included that:

When confronted by his employer, the Member immediately accepted responsibility for his actions;
The Member immediately resigned his position at the hospital; and
The Member has actively and aggressively sought professional treatment.

Counsel for the Member presented the panel with a report from Dr [A] dated June 13, 2006 ( Exhibit 6) . The Member’s counsel also submitted that mitigating factors included that the Member:

Did not download the pornographic material to the work computers;
Shielded other staff and clients from viewing this material;
Acknowledged his sole responsibility and did not attempt to implicate others; and
Is well regarded by his current employer, and is noted to be excelling at his work.

Penalty Decision

The panel accepts the Joint Submission as to Penalty (Exhibit 5) and accordingly orders:

The Member to appear before the panel to be reprimanded;
The Executive Director to suspend the Member’s certificate of registration for 30 days, to commence on the date that this Order becomes final;
The Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

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 his actions and has avoided unnecessary expense to the College.

I, Jim Attwood, RN, 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:

Kendra O’Bryan, RPN Cheryl McMaster, RPN Faira Bari, Public Member Linda Bracken, Public Member