College of Nurses of Ontario v. Randolph Scott Leslie, 2010 CanLII 100032

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Isgro-Topping, Chairperson Spencer Dickson, RN, Member Angela Verrier, RPN, Member Jim Attwood, RN, Member Gino Cucchi, Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MEGAN SHORTREED for College of Nurses of Ontario

• and -

RANDOLPH SCOTT LESLIE Registration No. 8927477 NO REPRESENTATION for Randolph Scott Leslie

AARON DANTOWITZ Independent Legal Counsel

Heard: April 12-13, 2010

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on April 12^th^ and 13^th^, 2010 at the College of Nurses of Ontario (“the College”) at Toronto.

As Randolph Scott Leslie (the “Member”) was not present, the hearing recessed for 25 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was not in attendance, nor was he represented by counsel.

College Counsel provided the panel with an Affidavit of Service, confirming that the Member had been served with the Notice of Hearing on March 10^th^ 2010. The panel was satisfied that the Member had received adequate notice and therefore proceeded with the hearing in the Member’s absence.

Publication Broadcasting Ban

College Counsel requested an order under Section 47 of the Health Professions Procedural Code (the “Code”) for a ban of the publication of the identity of [the Client] or any information that could disclose [the Client’s] identity, except for the use of initials. The panel granted the order as mandated.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated the 23^rd^ day of February, 2010, are as follows.

1. 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 between July 3 and 6, 2009, while working as a Registered Nurse for [the Facility] in [ ] Ontario, you contravened a standard [of] practice of the profession or failed to meet the standards of practice of the profession as follows:

a. you breached the boundaries of the therapeutic nurse-client relationship by engaging in a sexual and/or other personal relationship with [the Client] while [that individual] was a [client] at [the Facility]; and/or

b. you disclosed personal information to [the Client] when such disclosure did not meet an articulated therapeutic need of the client; and/or

c. on one or more occasions, you conducted “hands on healing” in the form of massage and/or deep breathing therapy on [the Client] which was not prescribed for the client or part of the client’s plan of care; and/or

d. on one or more occasions, you failed to assess and/or document [the Client]’s mental health status before providing massage and/or deep breathing therapy and/or failed to consult with other members of the health care team regarding such therapy; and/or

e. on one or more occasions, you failed to document providing [the Client] with massage and/or deep breathing therapy; and/or

2. 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(13) of Ontario Regulation 799/93, in that between July 3 and 6, 2009, while working as a Registered Nurse for [the Facility] in [ ], Ontario, you failed to keep records as required as follows:

a. on one or more occasions, you failed to document [the Client]’s mental health status before providing massage and/or deep breathing therapy; and/or

b. on one or more occasions, you failed to document providing [the Client] with massage and/or deep breathing therapy; and/or

3. 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 on or about July 6, 2009, while working as a Registered Nurse for [the Facility], in [ ], Ontario, you sexually abused a client [ ] as follows:

a. you engaged in sexual intercourse and/or other forms of physical sexual relations and/or touching of a sexual nature with [the Client]; and/or

b. you engaged in touching of a sexual nature with [the Client]; and/or

c. you engaged in behaviour and/or remarks of a sexual nature toward [the Client]; and/or

4. 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 between July 3 and 6, 2009, while employed as a Registered Nurse for [the Facility], in [], Ontario, 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, as follows:

a. you breached the boundaries of the therapeutic nurse-client relationship by engaging in a sexual and/or other personal relationship with [the Client] while [that individual] was a [client] at [the Facility]; and/or

b. you disclosed personal information to [the Client] when such disclosure did not meet an articulated therapeutic need of the client; and/or

c. on one or more occasions, you conducted “hands on healing” in the form of massage and/or deep breathing therapy on [the Client] which was not prescribed for the client or part of the client’s plan of care; and/or

d. on one or more occasions, you failed to assess and/or document [the Client]’s mental health status before providing massage and/or deep breathing therapy and/or failed to consult with other members of the health care team regarding such therapy; and/or

e. on one or more occasions, you failed to document providing [the Client] with massage and/or deep breathing therapy.

Member’s Plea

Given that the Member was neither present nor represented, he was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member was a Registered Nurse working part time, twelve-hour shifts [ ] as a night nurse at [the Facility]. The Member also held a Psychiatric/Mental Health Certificate. [In] July [ ] 2009, the Member was working as the Charge Nurse on the psychiatric floor [ ]. It was generally known among his co-workers that the Member had studied, and had a keen interest in, Massage Therapy, Reiki and Acupuncture.

[The client] was [an adolescent] with a history of [ ] sexual abuse. [The Client] had been diagnosed with a major depressive disorder. [The Client] had been hospitalized at the [Facility] following a suicide attempt [ ]. [The Client] was transferred to [the psychiatric unit] and was a [client] [there] on [three] evenings of July [ ] 2009.

During the three nights of his shift the Member provided nursing care to [the Client] [ ]. He had built a rapport with [the Client], [who] was comfortable with him and viewed him as a “father figure”. The Member had provided [the Client] with his phone number, and advised [ ] that [the Client] should call him for a massage once [discharged].

On Saturday, [ ] the Member engaged in “hands-on healing” and deep breathing techniques with [the Client], contrary to [the] care plan, and without a physician’s order. Months earlier, the Member had been cautioned by both the Program Manager and a co-worker about performing “hands-on” therapies on a [client]. The Program Manager advised the panel that “hands-on” therapies were not used on the psychiatric units of the hospital as they were viewed as invading a [client]’s personal space and tend to escalate fears relating to previous abuse.

On Sunday [ ], the Member arranged to give [the Client] a massage at some point during his shift. The Member told [the Client] that “he was not supposed to” but would [do it] for [the Client]. During the evening, into early Monday morning, [the Client] had been communicating with [the client’s] [partner]. [The Client] informed [the partner] that the Member was going to give [the Client] a massage later.

In the early morning of Monday, [ ] the Member took a short break and returned to the floor and encouraged [the RPN], the only other nursing staff on the unit, to take an extended three-hour break.

While [the RPN] was on break, the Member went to [the Client]’s room with massage oil, paper towel and a Kleenex box. The Member [started] to give [the Client] a massage, and then proceeded to sexually abuse [the Client]. The evidence shows that the Member performed oral sex on [the Client]; had [the Client] perform oral sex on him; penetrated [the Client] with his fingers; and [engaged] in sexual intercourse with the Client.

After the Member left [the Client]’s room, in the early morning [ ], [the Client] called [the partner] to tell [ ] what had happened. [The partner] called [the Client]’s [parent]. Both [the Client]’s [partner and parent] immediately went to the hospital and the police were contacted.

Once the police arrived, the Member readily admitted the sexual encounter. The Member was charged with sexual assault and sexual exploitation. Those charges have not yet been resolved.

At this hearing, the panel heard testimony from five witnesses, and reviewed 20 numbered exhibits, which included a taped statement by the Member. After consideration of all the evidence, and careful deliberations, the panel found that the Member committed acts of professional misconduct as alleged in the Notice of Hearing, in that he;

o Sexually abused [the Client];

o Breached professional standards by:

o abusing the therapeutic nurse-client relationship;

o conducting hands-on healing on [the Client], which was not prescribed or part of the client’s care plan;

o failing to document treatments;

o disclosing personal information to [the Client] when such disclosure did not meet the client’s therapeutic needs; and

o Engaged in disgraceful, dishonourable, and unprofessional conduct

The Evidence

Sexual Abuse of [the Client]

The panel heard testimony from [the Client]. The Member came in to [the Client’s] room with massage oil, paper towel and a box of Kleenex. The Member initiated a hands-on massage of [the Client] during which the Member asked [the Client] to take off [the Client’s] shirt. [The Client] had had massages in the past, and did not think that this was an unusual request. However, [the Client] [ ] “froze” when the Member proceeded to take off [the Client’s undergarment]. The Member continued to massage [the Client]’s back, sides and legs. At this point, the Member asked, “Am I crossing any boundaries yet?” He then moved his hands to what [the Client] described as [the] “bum” and very high up [the] thighs, at which time, as [the Client] testified, “I didn’t know what to do”. The Member “started touching me with his mouth up and down my back”, [the Client] testified. During this part of [the] testimony, [the Client] became very emotional. [The Client] stated, “He told me twice that I was beautiful and my skin was soft”. The Member had [the Client] turn over [onto the Client’s] back and proceeded to take off [the Client’s] pyjama bottoms and underwear. The Member ran his tongue on [the Client’s] skin, and his mouth up and down [the Client’s] stomach and [chest], at which time [the Client] “could still feel his moustache”. The Member put his tongue in [the Client]’s mouth and [the Client] remembered “gagging from it”. The Member turned [the Client]’s legs around the edge of the bed and proceeded to penetrate [the Client] with his fingers. He touched [the Client’s genital] area with his mouth. At this point in [the] evidence, [the Client] became very upset and requested a recess to compose [ ]self. Given the emotional content of this testimony, [the] request was granted.

When [the Client] resumed [ ] testimony, [the Client] described that the Member had performed oral sex on [the Client]. The Member then turned [the Client] around on the bed, took [the Client’s] head and put his penis into [the Client’s] mouth. [The Client] testified that, “He was aggressive and really didn’t give me a choice”. [The Client] stated, “It seemed like forever, but it was probably only a few minutes”. The Member then turned [the Client]’s legs to the edge of the bed and “put his penis in [ ] and tried to penetrate me, but this did not work”. The Member told [the Client] that his penis was not hard enough and forced his penis into [the Client’s] mouth again. The Member then proceeded to have [ ] intercourse with [the Client] until he ejaculated within [the Client]. The Member got up and cleaned himself off with a paper towel that he had brought into the room. [The Client] rushed to put [ ] pyjamas back on, at which time the Member went to the side of [ ] bed and put his arms around [the Client] and said, “Sorry, I’m out of practice”. He also asked [the Client], “Did I get you?” [The Client] took this to mean did [the Client] have an orgasm and [ ] replied, “No”.

[The Client] stated the Member [said the Client] had his number if [the Client] wanted to do it again sometime. [The Client] stated, “He acted like it was no big deal” and then [said] that he wasn’t cheating on his [spouse], because they have an open marriage.

Once the Member left, [the Client] called [the Client’s] [partner] to ask what [would be] considered rape. After [the partner] asked what [the Client] meant, [the Client] told [the partner], “It was my nurse”. [The Client] later learned that [the partner] had called [the Client’s parent] and within twenty-five minutes they showed up at [the Client’s] room. [The Client’s parent] then contacted the police. Once the police were contacted, [the Client] had no further interactions with the Member.

[The Client] went on to testify that [the Client] was later interviewed by a police officer and had met with a crisis nurse from the Sexual Assault Care Centre. [The Client] was examined by the crisis nurse and a rape kit was completed. [The Client] was given “a lot of pills” which [ ] may have been for prevention of HIV, [ ] and other infections.

[The Client] also recalled an earlier conversation with the Member where he [said the Client] was “ridiculously attractive”. This comment made [the Client] feel “awkward”. This testimony was substantiated by [electronic] messages [ ] between [the Client] and [the Client’s partner].

During the course of the hearing, the panel was able to view a true and accurate account of the Member’s recorded statement to the police.

In the statement - recorded [ ] a few hours after the incident - the Member stated that he was giving his confession voluntarily and declining his right to legal representation. The Member confirmed that he was working a twelve-hour shift, commencing [in] July [ ]. He was acting as charge nurse [ ], working [ ] with one other nurse.

The Member was unable to identify [the Client] by last name. He stated he did not know [the Client] was [an adolescent]. He found out [the Client’s] age after police were on the scene when he checked [the] nursing chart. He thought “[the Client] was provocative” and that over the weekend the nurses were talking about how [the Client was dressed]. The Member went on to make a gesture with his hand to indicate to the officer the [shape of the Client’s body].

The Member stated that in the early morning [ ], he went into [the Client]’s room to check on [the Client] and [the Client] asked him for a massage. The Member states that he told [the Client] that he could not do that as he would get into trouble. [The Client] then proceeded to take off [the top the Client was wearing]. He states [the Client] then put the Member’s hand on [the Client’s chest] and [ ] touched his penis. The Member stated that he asked [the Client], “are you sure?” and [said], “I could get into trouble”. [The Client] responded, “I won’t tell” and “I want to have sex”. When the Member could not get an erection, he said, “[the Client] played with my penis more … I was only half hard when I entered [the Client] and ejaculated”. The Member stated they kissed and he went back on the floor to do his rounds. He stated that [the Client] later came to the desk and asked “if I liked it”. The Member replied that [the Client] was “wonderful”. The Member told [the Client] in conversation that he [ ] had no diseases.

The Member stated to police that, “I shouldn’t have done it, but I did it”. He went on to say that he continually asked [the Client] “if this is ok” and “are you all right?” The Member told the police detective, “I am stupid, that’s all, but I don’t want people to think I hurt [the Client], or I forced [the Client]”.

The panel accepted an exhibit titled “Report Form for Facility Operators and Employers” [ ]. It had been completed by [the then] Program Manager [ ] at [the Facility]. The form contained information about the events that occurred on [a] morning [in] July [ ], and confirmed a sexual encounter between the Member and [the Client].

The panel also admitted into evidence a “Sexual Assault Forensic Evidence Form” that had been completed after an exam on [the Client] [in July].

[The RPN] documented in [the Client]’s health care record a written account of the sexual abuse as verbalized to her by [the Client] immediately following the incident. This account also documented [the Client]’s emotional state.

Breach of Professional Standards

The panel heard evidence from [staff] at the College. She was familiar with the records of registration pertaining to the Member. She indicated that the Member had been a Registered Nurse with the College since June 7, 1989. The Member was suspended on September 24, 2009 through a decision of the ICR Committee and the Member subsequently resigned from the College on November 23, 2009.

[The staff member] confirmed [which standards] were [ ] in effect at the time of the allegations in July 2009. These [standards] included the Professional Standards 2002; Documentation Standard 2008; Therapeutic Nurse Client Relationship Standard 2006; The Complementary Therapy Practice Guidelines; and, the Professional Conduct\Misconduct Reference Document.

The panel accepted the evidence of [College staff], and had no reason to doubt the credibility or reliability of her testimony.

The panel also heard from [ ] the acting director at [the Facility]. In July 2009, [this witness] was the Program Manager, [ ]. She stated that all Nursing Standards and Guidelines of the College [ ] were in place at the time of the allegations, and were available to all the nurses on the psychiatric floor. It was an expectation that all nurses meet these standards. This hospital also has its own Code of Conduct [ ] which was available to all staff.

Boundaries – Abusing the Therapeutic Nurse-Client Relationship, which includes:

Engaging in a Sexual and/or Personal Relationship with [the Client], and

Disclosing Personal Information to [the Client]

The panel heard evidence from [the RPN], the other nurse in [the unit] with the Member on the night shifts [in] July [ ] 2009. In her testimony, [the RPN] indicated that she was uncomfortable with the “unusual closeness” and “intimacy” she observed between the Member and [the Client]. The Member had stated to [the RPN] that he had a “closeness” with [the Client]. [The RPN] made the assumption that it was a [parent/child] kind of connection. Through a video monitor at the nurse’s station, [the RPN] had an opportunity to view the Member and [the Client] in the patient lounge. She noticed that the Member spent 30-40 minutes with [the Client], more time than any other [client].

During [ ] testimony, [the Client] stated that the Member [said the Client] was “ridiculously attractive”. [The Client] testified that the Member [spoke] about another male [client]’s condition. The Member also stated to [the Client] that if the other [client] did not think [the Client] was attractive, “then that [client] was sicker than I was.” The panel also had evidence of [electronic] messages between [the Client] and [the Client’s partner], tending to confirm that the Member did speak to [the Client] regarding another [client] and, that the Member made comments about [the Client] being attractive. The Member also told [the Client] that he had studied massage therapy and acupuncture. [The Client] testified that the Member gave [the Client] his home address and phone number, so [the Client] could contact him for a massage following [ ] discharge, as he was not allowed to do it in the hospital.

The Member spoke to [the Client] about his personal life, such as his family, his “open” marriage, [ ]. The Member in his videotaped statement to police stated that he told [the Client] that he did not have any sexually transmitted diseases.

The panel also had before it the evidence of [the Client] and the taped statement of the Member regarding the sexual abuse. This evidence was taken into account when considering if the Member had abused the therapeutic nurse-client relationship, leading to a breach of the standards of practice of the profession.

Conducting Hands-on Healing not prescribed to [the Client], or part of [the Client]’s care plan

The panel heard evidence from [the Program Manager]. She stated that hands-on healing is not a therapy used in the psychiatric units, as psychiatric [clients] may view this form of therapy as invading their personal space. Hands-on massage can be considered intrusive, and can escalate fears of previous abuse. [The Program Manager] testified that hands-on healing and massage therapy were not part of [the Client]’s care plan. There was no documentation in [the Client]’s chart of massage therapy being ordered, nor was there any documentation that this form of therapy was performed on [the Client]. [The Program Manager] was aware that the Member had an interest in Acupuncture, Massage Therapy and Reiki therapy. [The Program Manager] also testified that, [ ] prior to July 2009, she had spoken to the Member about his inappropriate use of these therapies on the unit. The Member told her he was just trying to be helpful, and had agreed to stop.

The panel found [the Program Manager]’s testimony to be honest and forthright. Her testimony was supported by other evidence. She was found to be a credible and reliable witness by the panel.

[The RPN] confirmed that any form of “hands-on treatment” was not acceptable therapy on the unit. She also noted that “hands-on healing” was not in [the Client]’s care plan, or part of [the] ordered treatment. She observed the Member touching [the Client]’s forehead and the back of [the Client]’s neck in order to treat [the Client] for a headache. She observed the Member applying pressure to the back of [the Client]’s neck when [the Client] had the hiccups. The Member also did deep breathing exercises with [the Client]. [The RPN] testified that she was not aware of any arrangements the Member had made to give [the Client] a massage. He had not spoken to her about it, nor had he documented it in [the Client]’s chart. [The RPN] testified that, nine months earlier, she had had a detailed, confrontational discussion with the Member, where she voiced her concerns to him about practi[s]ing “hands-on healing” without written consent or a physician’s order.

The panel considered [the RPN] to be a credible witness, in that her testimony was given in an honest and forthright manner, and was also supported by the evidence.

[The Client] testified that the Member performed “hands-on treatment” on both [the Client] and another [client] in the patient lounge. [The Client] also stated that the Member put his hands on [the Client’s] neck to relieve [a] headache. The panel also had [the Client]’s testimony with respect to the massage that led to the sexual assault. The Member advised [the Client] that he was not allowed to perform the massage therapy in the hospital, but would do it for [the Client].

The Member stated in his videotaped statement to police that he did perform a massage on [the Client], even though massage therapy was not ordered or advised for [the Client].

Failed to Assess/Document Treatments

In her testimony, [the RPN] stated that on two separate occasions, she witnessed the Member perform “hands-on healing” therapy on [the Client]. The panel also had before it [the Client]’s evidence, as well as the statement of the Member, stating that the treatments took place. The Member had made various notations in [the Client]’s chart. However, there was no documented evidence in the chart indicating that these hands-on treatments had taken place. For example, the Member told the police that he performed acupuncture on [the Client] to relieve [a] headache. In the nursing notes, he referred to the headache and to giving the [Client] a Tylenol. However, he made no reference to the hands-on treatment. As well, the Member did not indicate in the chart that he had intended to provide [the Client] with a massage. The Member, despite having charted in the nursing notes, stated, in his videotaped statement, that he was not aware of [the Client]’s age, as he had not looked at [the Client]’s chart until the morning [ ], after the police arrived on the unit.

[The Client]’s chart contained ample documentation regarding [the Client’s] history of sexual abuse at an early age, [ ] diagnosis of major depression, and [ ] suicidal tendencies. The Member failed to assess [the Client]’s mental status prior to providing [ ] hands-on healing. This type of treatment is not acceptable for [clients] with these diagnoses, as stated by [the Program Manager] in her testimony. [The Program Manager] testified that these treatments can be viewed as invading personal space and tended to set the [clients] back, as they can escalate fears related to previous abuse. Despite the fact that the Member was a psychiatric nurse with a mental health certificate, in his statement to police he said that he did not view [the Client] as a psychiatric [client], as [the Client] had “only overdosed on some pills”.

Final Submissions

College Counsel submitted that the panel had before it a clear legal and factual framework to make the findings of professional misconduct alleged in the Notice of Hearing.

Sexual abuse is an offence under Section 51 of the Code. That section provides that a panel shall find that a member has committed an act of professional misconduct if the member sexually abuses a [client]. “Sexual abuse” is a defined term in the Code, and includes sexual intercourse, touching of a sexual nature of a [client] by a member, and/or behaviour or remarks of a sexual nature to the [client] by a member. In this case, there was no doubt that [the Client] was a [client] and the Member was [the Client’s] nurse. If the Member had sexual interactions with [the Client] of any kind, it is sexual abuse. Consent is not an issue. The Member, a senior nurse with a mental health psychiatric certificate, admitted to having had sexual intercourse with [the Client]. Counsel stated that this admission alone was proof of professional misconduct and sexual abuse. The panel also had the additional undisputed and uncontested evidence of [the Client].

College Counsel stated that there was enough evidence that the Member breached a number of the written Nursing Standards. These include: the Therapeutic Nurse-Client relationship, Complementary Therapies, and Documentation.

The Member breached the boundaries of the nurse-client relationship by engaging in a personal relationship with [the Client]. It was this boundary violation that [led] to the sexual abuse of [the Client]. [The Client] trusted the Member [and] was encouraged to confide in the Member and he took advantage of this trust and his position. The nurse-[client] relationship is one of unequal power, the Member has the power, and the Member has the authority. It is the nurse’s responsibility to maintain the professional boundaries and not the [client’s]. The Member had crossed the therapeutic nurse-client relationship with [the Client] multiple times during his weekend shifts, by:

o providing his personal contact information to [the Client];

o speaking to [the Client] about another [client];

o [calling the Client] “ridiculously attractive” and “wonderful”;

o setting up and agreeing to massage [the Client] in [the Client’s] room, even though he [said] he wasn’t allowed to, but would do it for [the Client];

o spending more time with [the Client] than other [clients] on the unit;

o talking to [the Client] about numerous personal issues pertaining to himself and his family;

o telling [the Client] that he and his [spouse] had an “open marriage”, [ ] and he had no STDs;

o providing [the Client] with hands-on healing that was not in [the] care plan;

o going into [the Client]’s room, at 3:00am, while the RPN was on break, with massage oil, paper towel and tissue in hand; and

o asking [the Client] if he was “crossing any boundaries yet” while massaging [the Client’s] legs.

By providing “hands-on healing” to [the Client] without it being in [the] care plan and without doctor’s orders, the Member breached the Complementary Therapy standard. By not documenting any of the “hands-on healing”, the Member was in breach of the Documentation Standard.

College Counsel submitted that the Member’s conduct was disgraceful, dishonourable and unprofessional. College Counsel told the panel that [the Client] was in a vulnerable position, and asked whether there could be a more vulnerable client than [an adolescent] admitted to a psychiatric unit after a suicide attempt, diagnosed with major depression, with a history of sexual abuse at a young age [ ]. It was a deliberate and contemptible breach of boundary standards throughout the weekend that led to the sexual abuse. [The Client] felt powerless to stop the act and as [the Client] stated, [the Client] “froze” when the massage turned to sexual touching. The Member should have known better than to take advantage of a vulnerable [adolescent] psychiatric [client].

Decision

Having carefully considered the evidence and the onus of proving the allegations in accordance with the standard of proof, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs # 1 (a), (b), (c), (d), and (e); 2 (a) and (b); 3 (a), (b) and (c) of the Notice of Hearing. In particular, the Member contravened or failed to meet the standards of practice of the profession, and committed acts professional misconduct, in that he:

o sexually abused [an adolescent] psychiatric [client];

o breached the boundaries of the therapeutic nurse-client relationship;

o provided hands-on healing in the form of massage and deep breathing exercises which were never prescribed to [the Client] or part of [the Client]’s care plan;

o disclosed personal information to [the Client]; and

o failed to assess and/or document [the Client]’s mental health status before providing complementary therapies, and failed to document providing [the Client] with those therapies.

With respect to allegation # 4 (a), (b), (c), (d) the panel finds the Member engaged in conduct that would reasonably be regarded by Members of the profession as disgraceful, dishonourable and unprofessional.

With respect to allegation # 4 (e), the panel finds the Member’s conduct was dishonourable and unprofessional.

Reasons for Decision

It was the unanimous decision of the panel that the evidence was clear and convincing and sufficient to prove that it was more likely than not that the misconduct occurred. The allegations in the Notice of Hearing consist of the following:

o the sexual abuse of [an adolescent] psychiatric [client];

o breaching the boundaries of the therapeutic nurse-client relationship by engaging in a sexual and/or personal relationship with [the Client], and disclosing personal information to [the Client];

o providing hands-on healing in the form of massage and deep breathing exercises to [the Client], which were never prescribed or part of [the] care plan;

o failing to assess and/or document [the Client]’s mental health status before providing complementary therapies and failing to document providing those therapies; and

o engaging in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and/or unprofessional.

Sexual Abuse

Section 51(1)(b.1) of the Code provides that a panel shall make a finding of professional misconduct if a member has sexually abused a [client]. Section 1(3) of the Code states that “sexual abuse” of a [client] by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the [client],

(b) touching, of a sexual nature, of the [client] by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the [client].

The evidence before the panel showed that [on an] early morning [in July 2009], the Member went to [the Client]’s room with the intention of giving [the Client] a massage, and ended up sexually abusing [the Client].

The panel heard evidence from [the Client] that [the Client] trusted the Member, felt [able to] confide in him as [the Client] had been encouraged to do, and viewed him as a “father figure”. [The Client] had agreed to the massage in [the Client’s] room, as other hands-on therapies that the Member had provided over the weekend had worked. At the initiation of the massage, [the Client] [ ] felt a little “weird” when the Member asked [the Client] to take off [a] shirt, but as he had [said] he was a massage therapist, [the Client] trusted him and did it.

The massage rapidly progressed to one of a sexual nature. [The Client] [ ] “froze” when the Member took off [the Client’s undergarment] and, when he started to massage [the] upper thighs, [the Client] stated, “I didn’t know what to do”.

In [ ] testimony, [the Client] described that the Member:

o took off [the Client’s undergarment];

o took off [the Client’s] pants and underwear;

o touched and kissed [the Client];

o used his tongue on parts of [the Client’s] body;

o performed oral sex on [the Client];

o “forced” [the Client] to perform oral sex on him, twice;

o penetrated [the Client] with his fingers;

o had [ ] intercourse with [the Client]; and

o ejaculated inside [the Client].

The Member made comments such as “Sorry I am out of practi[c]e” and “did I get you?” He asked [ ] if [the Client] wanted to do it again sometime, [the Client] was free to call him.

[The Client] felt that [the Client] had been raped. [The Client] called [the Client’s partner] to tell [of it].

Considering the emotional and physical trauma [the Client] experienced, the panel found [the Client’s] testimony to be honest and forthright. The panel found that the evidence supported [the Client]’s testimony that a sexual encounter had taken place between [the Client] and the Member.

The panel also considered the videotaped statement of the Member. The statement was given to [the] Police Department within hours of the incident. The panel took the evidence to be a true and accurate account of the Member’s reported confession to police.

The Member admitted that, [on an] early morning [in July 2009], while he was on shift at the hospital, events of a sexual nature took place between him and [the Client]. He told the detective that he thought that [the Client] was 18 years old, and that it was a consensual encounter. He went on to describe that he did go into [the Client]’s room to check up on [the Client], at which time [the Client] requested a massage. The Member admitted to:

o touching and massaging [the Client’s chest];

o having [ ] intercourse; and

o ejaculating inside [the Client].

The Member also stated that:

o [the Client] put [a] hand on his penis;

o he kissed [the Client];

o he told [the Client] he [ ] did not have any sexually transmitted diseases;

o after the sexual intercourse he [said the Client] was “wonderful”; and

o he tried to protect himself by asking [the Client], “Is this ok?” and, “Are you all right?”

Although the Member’s statement to the police was given just a couple of hours after the abuse, the panel found the Member seemed very relaxed and calm. In his defence, the Member attempted to use the fact that he thought [the Client] was “of age” and [ ] had asked for sex. The fact is that the Member and [the Client] were in a nurse-client relationship, and so neither consent nor age is an issue. The nurse-client relationship is not one of equal power. Even in the Member’s own version of events, the panel found that Member abused his authority and crossed many boundaries. It is the responsibility of the nurse to maintain and uphold these boundaries, and the Member did not. It was obvious in the interview with [police], that the Member did not understand the boundaries when he said, “I am stupid, that’s all, but I don’t want people to think that I hurt [the Client] or forced [the Client]”.

In making its finding, the panel also considered the “Report Form for Facility Operators and Employers”. This form was completed by [ ] the Program Manager, [ ] at [the Facility]. The Report was forwarded to the College, and contained information about the events that occurred on [a] morning [in July 2009], and confirmed a sexual encounter between the Member and [the Client].

The panel also relied on a Sexual Assault Forensic Evidence Form that was completed after an exam on [the Client] [in July] 2009. Finally, the panel relied on the documentation of [the RPN] in [the Client]’s health care record, which included notes on [the Client]’s emotional state and a written account of the sexual abuse as told to [the RPN] by [the Client] immediately following the incident.

After considering all of the evidence, including the Member’s confession, the panel was able to make a finding of professional misconduct and conclude that the Member had sexually abused [the Client].

Breach of Standards

Boundaries – Abusing the Therapeutic Nurse-Client Relationship, which includes Engaging in a Sexual and/or Personal Relationship with [the Client], and Disclosing Personal Information to [the Client]

The panel considered [ ] the written practice standard related to the “Therapeutic Nurse-Client Relationship.” The practice standard (at page 7) clearly states that “Nurses are responsible for effectively establishing and maintaining the limits or boundaries in the therapeutic nurse-client relationship”.

The panel heard evidence that the Member crossed the boundaries of the nurse-client relationship with [the Client] on numerous occasions throughout his weekend shift [in July 2009].

[The Client] testified that the Member [said the Client] was “ridiculously attractive”. [The Client] also stated that the Member provided [the Client] with his personal phone number and home address so [the Client] could call him for a massage once [ ] released. Although the Member told [the Client] that he was “not allowed” to give [the Client] a massage at the hospital, he said he would do it for [the Client], and proceeded to make arrangements. The Member also discussed a number of personal issues with [the Client], such as his education, family, marriage and the fact that he [ ] was free of STDs. The Member also discussed another [client] with [the Client]. [The Client] shared these comments with [the Client’s partner] [ ]. The [ ] conversations [with the partner] confirm [the Client]’s testimony regarding the Member’s comments, and the discussion with respect to the other [client].

[The RPN] testified that she observed an “unusual closeness” and “intimacy” between the Member and [the Client]. She noted that the Member spent more time with [the Client] th[a]n with other [clients] in the unit.

It was evident to the panel that the Member did not clearly understand these boundaries. He sexually abused [an adolescent client], [who he] blamed for being “provocative” and “cuddly”, putting the onus for maintaining boundaries on the [client]. The Member told police that he thought [the Client] was 18 and that it was a consensual act, because he kept asking [ ] “if this is okay” and “are you all right”. It is the nurse’s responsibility for maintaining the boundary – not the [client’s].

The panel took into consideration the testimony of both [the Client] and the Member regarding the sexual abuse. Since the panel had already made a finding of sexual abuse, and based on the evidence of the standards of practice of the profession, the panel found that the Member, by engaging in a sexual relationship with [the Client], and disclosing his personal information to [the Client], had clearly committed an act of professional misconduct in that he breached the standards of practice of the profession by abusing the therapeutic nurse-client relationship.

Hands-on Healing

The panel reviewed [ ] the Practice Guideline regarding Complementary Therapies (page 4) which clearly states that, “Before providing a particular intervention, it is important to determine that the intervention falls within the scope of nursing practice, and that it is an accepted intervention, within the nurse’s role, at the agency where the nurse is employed.”

The panel considered the evidence of both [the Program Manager] and [the RPN]. They both stated that “hands-on healing” is not a therapy used in the psychiatric units of the Hospital. Psychiatric [clients] may consider this form of therapy as intrusive, it may invade their personal space, and can escalate fears related to previous abuse. They confirmed that “hands-on healing” and massage therapy were not part of [the Client]’s care plan. There was no documentation in [the Client]’s chart of massage therapy being ordered, nor was there any documentation that this form of therapy was performed on [the Client]. This was corroborated by [ ] excerpts from [the Client]’s health records. The panel noted that [the Client]’s chart did not include a physician’s order for hands-on healing, nor was it part of [the] care plan.

[The Program Manager] also testified that, prior to July 2009, she had spoken to the Member about his inappropriate use of these therapies on the unit. [The RPN] also testified that she had a confrontation with the Member regarding his “hands-on” practices on [clients] without written consent or a physician’s order.

[The RPN] testified that she observed the Member performing alternative therapies on [the Client]. These therapies included touching [the Client]’s forehead and neck to relieve a headache, acupuncture for hiccup relief, as well as performing deep breathing exercises.

The panel also relied on the testimony from [the Client] that the Member had performed “hands-on therapy” on both [the Client] and another [client]. The Member advised [the Client] that he was not allowed to perform the massage therapy in the hospital, but would do it for [the Client]. The panel also had [the Client]’s testimony with respect to the massage that led to the sexual assault.

The Member admitted to the police that he performed a massage on [the Client] even though no massage therapy was ordered or advised [ ].

In considering all the evidence, the panel found that the Member committed an act of professional misconduct by failing to meet the standards of practice of the profession by conducting “hands-on healing” which was not prescribed for [the Client] or part of [the] plan of care. These interventions did not fall within the scope of the Member’s nursing practice, nor were they an accepted intervention at the hospital.

Failed to Assess/Document Treatments

As to the allegation that the Member failed to properly assess [the Client], the panel relied on excerpts from [the Client]’s personal health records. [The] chart contained ample documentation regarding a history of sexual abuse at an early age, a diagnosis of major depression, and suicidal tendencies. Even with all this information on [the Client]’s history, the Member told the police that he did not view [the Client] as a psychiatric [client], as [the Client] had “only overdosed on some pills”.

In the Member’s confession to the police, he stated that he was not aware of [the Client]’s age, as he had not reviewed [the Client]’s file until after the police arrived on the unit following the sexual assault. The panel knows that this is not truthful, as the Member had made notations in the chart over the course of the weekend.

The panel had other evidence on which to rely [ ] in order to make findings on this issue.

Had the Member, a certified psychiatric and mental health nurse, properly assessed [the Client]’s file, as was expected of him, he would not have provided [ ] any alternative “hands-on” therapies. [The Program Manager], in her testimony, stated that these treatments can be viewed as invading personal space and tended to set the [clients] back, as they can escalate fears related to previous abuse. The Member was made aware on a number of occasions that these types of treatments were not acceptable on [clients] with these diagnoses, and that he was not to provide these types of therapies to [clients] on the psychiatric units. Nothing in [the Client]’s chart indicated that there was a physician’s order for “hands-on therapy”, or that it was part of [the] care plan.

As to the allegation that the Member failed to properly document, the panel was satisfied, as noted above, that the Member had performed “hands-on treatments” on [the Client]. The Member made various notations in [the Client]’s chart, however, he failed to document that these “hands on” treatments took place. The Member also failed to document that he had intended to provide [the Client] with a massage. The Member did not consult with [the RPN], the other nurse on duty, that he was planning on providing [the Client] with alternative therapy.

[ ] The section of the Practice Standard regarding Documentation beginning at page 3, ‘Why document?’, clearly spells out the importance of nursing documentation. The bottom line is, if you are not ashamed of what you are doing, you document it. If you don’t believe your actions are unethical, you document them.

In the same written standard, at page 6, it reads, “Nurses ensure that documentation presents an accurate, clear and comprehensive picture of the client’s needs, the nurse’s interventions and the client’s outcomes.” A nurse meets this standard by ensuring that documentation is a complete record of nursing care provided and reflects all aspects of the nursing process, including assessment, planning, intervention (independent and collaborative) and evaluation.

The Member did none of this, therefore breaching this aspect of the standard. The panel also noted that the Member made an entry in [the Client]’s chart [in July] 2009, 2000hrs – 0800hrs. He made his notations about [the Client] and signed the entry. Evidence shows that the Member was not even in the building at 0800hr when the notation was supposedly made.

In considering all the evidence, the panel found that the Member committed professional misconduct in that his actions or lack thereof failed to meet the standards of practice of the profession by failing to assess [the Client]’s mental health status before providing alternative therapies, including “hands-on” treatments. Further, the Member also breached the Documentation Standard by failing to document these treatments in [the Client]’s health chart

Engaged in Disgraceful, Dishonourable and Unprofessional Conduct

With respect to allegation # 4 (a), (b), (c) and (d), the panel finds the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional. The panel’s reasons are as follows.

Disgraceful Conduct – The Member’s conduct casts a serious doubt on his ability to discharge the moral obligation that is expected of a nurse. The Member sexually abused [an adolescent] psychiatric [client] who was suffering from depression, had suicidal tendencies and had a history of sexual abuse at a young age. The Member distorted this information to take advantage of his [client]. Despite the fact that the Member was a psychiatric nurse with a mental health certificate, the Member in his taped confession stated that he did not view [the Client] as a psychiatric [client], as [the Client] had “only overdosed on some pills”. [The RPN] in her testimony stated that, ‘it is the nurse’s professional role to protect the client’, especially in mental health units, and she was angered and disappointed in the Member for failing to do this. Following her assessment of [the Client] after the assault, [the RPN] believed [the Client]’s emotional state to be “distressed and terrified”. The panel also heard evidence that within three weeks of the assault, after being discharged, [the Client] attempted suicide. [The RPN] was very emotional when she stated the Member’s actions had not only negatively affected [the Client], but had adversely affected her and the rest of the health care team at the hospital.

Dishonourable Conduct – This usually refers to conduct that involves dishonesty and/or deceit. The Member provided the client with his personal contact information, [said the Client] was “ridiculously attractive”, and after the sexual intercourse, [said the Client] was “wonderful”. The Member set up a massage of [the Client] in [the Client’s] room even though he told [the Client] he was not allowed to do so. He told [the Client] he would do it for [the Client]. The Member knew what he was doing was wrong and told [the Client] [not] to tell anyone if [the Client] didn’t want to. He did not disclose his intentions to give [the Client] a massage to the Nurse on duty before he sent her on a long break. He was surreptitious. These events were deceitful and dishonest and have an element of moral failing, as he did not take into regard the [client]’s age, vulnerability and psychiatric history.

Unprofessional Conduct – The Member demonstrated a serious disregard for his professional obligations, showed lack of integrity and lack of judgment. He took advantage of a very vulnerable client.

With respect to allegation # 4 (e), the panel finds the Member’s conduct was dishonourable and unprofessional. The Member knew or ought to have known that what he was doing was wrong. However, he chose to do it anyway. The Member did not document that he was planning to provide [the Client] with “hands-on healing”, nor did he document that he had done it.

Penalty Submissions

College Counsel submitted that under Section 51(5) of the Code, once findings of sexual abuse involving sexual intercourse have been made, the panel has no discretion with respect to certain aspects of the penalty. It is mandatory that the penalty include an oral reprimand and revocation of the Member’s certificate of registration.

College Counsel submitted that although the panel does not have any discretion regarding these aspects of the penalty order, the panel should still consider all the aggravating circumstances in this case.

The Member, as a psychiatric charge nurse, was in a position of trust and authority. He took advantage of [an adolescent,] vulnerable psychiatric [client] with suicidal tendencies and a history of childhood sexual abuse.

The facts support that the Member had a plan. He talked about giving [the Client] a massage and then arranged to do it. He sent the other nurse on duty for an extended break. He went to [the Client]’s room, in the middle of the night, with oil, towels and Kleenex. He knew what he was going to do. He did not advise anyone of his plans to give [the Client] a massage, nor did he document it.

The impact on [the Client] was devastating. Within three weeks of the assault, [the Client] attempted suicide.

The Member’s actions left an adverse impact on the other staff.

The Member has not expressed any remorse.

Penalty Decision

The panel makes the following order as to penalty:

The Member is required to appear before the panel to receive an oral reprimand within three months of this order; and

The Registrar is directed to revoke the Member’s certificate of registration, effective immediately.

Reasons for Penalty Decision

The panel has made a finding of sexual abuse, which included sexual intercourse, oral to genital contact, genital to genital contact, masturbation of the client and masturbation by or of the Member. Under section 51(5) of the Code, the panel must order a reprimand and revocation of the Member’s certificate of registration.

The panel, therefore, orders the mandatory penalty of an oral reprimand and revocation of the Member’s certificate of registration.

I, Grace Isgro-Topping, Public Member, 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:

Spencer Dickson, RN

Angela Verrier, RPN

Jim Attwood, RN

Gino Cucchi, Public Member