College of Nurses of Ontario v. Meghan Leclair, 2011 ONCNO 100585

THE DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Michael Hogard, RPN Chairperson Angela Verrier, RPN Member Joan King Public Member Margaret Tuomi Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) Matthew Sammon Counsel for ) College of Nurses of Ontario

• and - )

MEGHAN LECLAIR ) Chris Lafrance Legal Registration No. JC04618 ) Representative for Meghan Leclair ) Luisa Ritacca ) Independent Legal Counsel ) Heard: July 25-27, 2011 and ) September 12-15, 2011

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on July 25- July 27, and September 12 – September 15, 2011, at the Best Western Hotel and Conference Centre in North Bay, Ontario.

Ms. Kim Jinkerson, RPN, had been a member of this panel when the hearing began. However, Ms. Jinkerson withdrew from the panel before the resumption of the hearing on September 12, 2011, and took no part in the deliberations or this decision.

The Allegations

The allegations against Meghan Leclair (the “Member”) as stated in the Notice of Hearing dated June 13, 2011, 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 paragraph 1(1) of Ontario Regulation 799/93, in that, while working at [the Facility] in [ ] Ontario, you contravened the standards of practice of the profession or failed to meet the standards of practice of the profession, with respect to the following incidents:

a. You failed to maintain appropriate boundaries with [the Client] in 2008 and/or 2009; and/or

b. You maintained an inappropriate personal relationship with [the Client] in 2008 and/or 2009; and/or

c. You accepted and/or solicited gifts from [the Client] in 2008; and/or

d. You exercised undue and inappropriate influence over [the Client] in 2008; and/or

e. You misappropriated property from [the Client] through the abuse of a position of trust.

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 paragraph 1(8) of Ontario Regulation 799/93, in that, while working at [the Facility] in [ ] Ontario in 2008, you misappropriated property from [the Client], through the abuse of a position of trust.

3. 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(26) of Ontario Regulation 799/93, in that, while working at [the Facility] in [ ] Ontario, you practi[s]ed the profession while in a conflict of interest, with respect to the following incidents:

a. You failed to maintain appropriate boundaries with [the Client] in 2008 and/or 2009; and/or

b. You maintained an inappropriate personal relationship with [the Client] in 2008 and/or 2009; and/or

c. You accepted and/or solicited gifts from [the Client] in 2008; and/or

d. You exercised undue and inappropriate influence over [the Client] in 2008; and/or

e. You misappropriated property from [the Client] through the abuse of a position of trust.

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 paragraph 1(37) of Ontario Regulation 799/93, in that, while working at [the Facility] in [ ] Ontario, you have engaged in conduct or performed acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to the following incidents.

a. You failed to maintain appropriate boundaries with [the Client] in 2008 and/or 2009; and/or

b. You maintained an inappropriate personal relationship with [the Client] in 2008 and/or 2009; and/or

c. You accepted and/or solicited gifts from [the Client] in 2008; and/or

d. You exercised undue and inappropriate influence over [the Client] in 2008; and/or

e. You misappropriated property from [the Client] through the abuse of a position of trust.

Member’s Plea

Meghan Leclair denied the allegations set out in the Notice of Hearing.

Overview

The Member has been a registered practical nurse since 2003. On April 30, 2007, she was hired at [the Facility]. This is [ ] retirement residence staffed with one registered practical nurse and one personal service attendant daily and on evenings. The residents of [the Facility] were elderly, but generally able to maintain their own activities of daily living.

On May 05, 2007, [the Client] was admitted to [the Facility], where he continued to live until shortly before his death in March 2009. [The Client] was an elderly resident suffering from COPD. [The Facility] provided him with his meals, housekeeping, and nursing services, i.e. medication administration. [The Client] required oxygen at all times and had a portable oxygen tank.

The Member met [the Client] prior to his admission to [the Facility], sometime between 2004 and 2006 when they were neighbours [in the same town]. On the evidence submitted, the panel was unable to conclude exactly when they met; however the panel was satisfied on the evidence that [the Client] and the Member did meet sometime prior to [the Client]’s admission.

The Member and [the Client] developed a friendship prior to his entering [the Facility] which continued while he was a resident. [The Client] and the Member would go out for coffee, or he would attend her house for a barbeque or holidays. The Member and her children felt that [the Client] was a family member.

During his time at [the Facility], [the Client] provided the Member and her family with gifts. These included: new bikes for the children, an air conditioner, a composter, lawn furniture, cheques in the amount of $200.00, $900.00 and $1000.00, and a car.

Following his death in March 2009, [the Client]’s daughter [ ] found the returned cheques for the car, and for the large sums of money. As a result, she filed a complaint with [the Facility]. [The Facility] investigated the complaint for fraud and financial Resident abuse. The Member was terminated for just cause in March 2009.

The College has made allegations against the Member as outlined in the Notice of Hearing. The hearing was held over three days in July and four days in September 2011.

At the hearing, the panel heard testimony from fourteen witnesses and received 44 exhibits into evidence. 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 she contravened the standards of practice of the profession, particularly in that she practi[s]ed the profession while in a conflict of interest, with respect to the following incidents:

• Failed to maintain appropriate boundaries with [the Client]

• Maintained an inappropriate personal relationship with [the Client]

• Accepted gifts from [the Client]

• Engaged in dishonourable and unprofessional conduct

With respect to allegations 1(d), (e), 2, 3(d), (e), and 4(d), (e), involving undue influence and the misappropriation of property from[the Client], the panel was not able to make findings.

The Evidence

With regard to allegations 1(a), (b), (c), 3(a), (b), (c), and 4(a), (b), (c), the panel heard the following evidence.

The Member and [four witnesses] stated that the Member and [the Client] met prior to his becoming a resident of [the Facility]. The witnesses gave evidence with regard to the pre-existing relationship, however, each witness gave testimony with conflicting dates as to when the relationship started. The best evidence is that this relationship began sometime between 2004 and 2006. The panel heard evidence that [the Client] was seen at the Member’s home on numerous occasions for barbeques and holidays. The Legal Representative for the Member stated to the panel that these dates were years ago and that not remembering the exact dates of something that happened 5-7 years ago is reasonable. The panel agreed.

The Member told the panel that this relationship continued during [the Client]’s stay at [the Facility], but denied any inappropriateness. She stated that while at work she was his nurse and that their “family” relationship was acted upon only when outside of the residence.

During [the Client]’s stay at [the Facility], the Member admits to receiving numerous gifts from the [the Client], including a cheque for $900.00 [ ], a cheque for $1000.00 [ ], a cheque for $200.00 dollars, lawn furniture, a composter, an air conditioner, new clothes for her children and a car. She also admitted to the exchange of personal greeting cards, including a thank you card she gave to [the Client] The card [ ] contained a handwritten note on the inside from the Member which stated:

[Client’s name]

Thank you for everything...

You really are an angel, my

angel.

I don’t know what I would

have done without you.

You have given my days

with a better outlook.

Remember if there is anything

I’m here, you can count on me.

Meghan

The Member admitted to receiving the car as a gift from [the Client], but stated that she did not know in advance that he was buying it for her. She stated she had no knowledge of this purchase until she was notified by [a car dealership] that a car had been purchased for her and she needed to pick it up.

The College called evidence that disputed the Member’s suggestion that she did not know about the purchase of the car in advance. The current manager of [the dealership] brought the records from the dealership regarding the purchase of the Member’s car. Based on the records, the car was purchased on October 24, 2008. The cheque written by [the Client] to [the dealership] was written on October 24, 2008. The Member’s driver’s licence had been suspended for non-payment of a traffic ticket. This fine was paid a few days prior to the car being purchased and records from the Ministry of Transportation confirmed that the Member’s licence was reinstated on October 24, 2008.

[A witness] was qualified by this panel as an expert in boundary guidelines and practice standards.

[The expert] testified that if a nurse and a client have a relationship before the client enters a facility (in this case a retirement residence), the nurse must be even more careful about preserving boundaries in the relationship. [The expert] explained that the nurse in such a situation is bound by the Therapeutic Nurse-Client Relationship Standard (the “Standard”) [ ]. The nurse must make sure that the client’s needs are first and that the nurse maintains her professional role. [The expert] explained to the panel that where a personal relationship moves into a nurse-client relationship, the nurse must be cognizant of the “different power balance” created by the change in the relationship. [The expert] also stated that if the Member was providing care to [the Client] and the Member understood the Standard, she should have consulted with her manager and [the Client] to set boundaries for their nurse-client relationship. The Standard provides that a nurse should abstain from accepting individual gifts unless, in rare circumstances, the refusal will harm the nurse-client relationship. [The expert] explained that in a retirement residence, the vulnerability of the client increases, given that the clients are elderly and may feel isolated or lonely. Even if the Member and [the Client] were family, [the expert] testified that the Member should not have allowed the relationship to cross boundaries.

[The next witness] was the resident services manager at [the Facility] during [the Client]’s residency, and the Member’s supervisor. She testified that the Member had told her of a pre-existing relationship with [the Client] but denied that any meeting took place with [the Client] to define their boundaries or review the Standard or [the Facility]’s policy on accepting gifts from residents.

[The manager] told the panel that [the Facility] had a policy about accepting gifts from Residents. This policy was clearly posted in the nurse’s station, and given to all staff. Gifts were not to be accepted from residents. However, when the Member told [The manager] about a watch she had received from [the Client], [The manager] told her that it was acceptable to receive gifts as long as it did not take place at [the Facility].

[The manager] admitted to knowing about the Standard, and testified, “If the Member received an item from [the Client] outside the building as a token, its okay. Inside the building it is not ok.”

[The expert] stated to the panel that [The manager]’s understanding of the Standard was incorrect. She explained that the Standard is “very clear”. [The expert] testified that in certain circumstances a nurse may accept a small gift from a client, where, for example, the client made the gift. Even in those circumstances, the gift must be documented in the Resident’s chart and reported to the supervisor. [The expert] explained that it is problematic where there exists both a professional nurse-client relationship and a personal relationship (a “dual relationship”), which can lead to inappropriate violations of boundaries clearly set out in the Standard. [The expert] was asked to opine based on a series of hypothetical scenarios. In one, she was asked about a nurse’s obligations regarding accepting and receiving gifts from a client where there is a pre-existing relationship. [The expert] was very clear in her response. She stated that, “The nurse must be even more careful in the relationship to make sure the needs of the client come first.” She went on to explain that in her opinion this Member, in accepting the gifts as described in the evidence and as acknowledged by the Member, did not meet professional nursing standards and more particularly was in breach of the Standard. She stated that [the Client] as an elderly man was vulnerable to accepting extra kindness. She testified this reinforces the need for transparency and the need to set boundaries. [The expert] stated that the fact that the Member only told her manager about the watch, and not the cheques or car suggests that the Member knew she should not have accepted them.

The panel heard no evidence that the Member told [her manager] about the car or cheques. In fact, when asked by [the manager] where she got the car, the Member told her that she had received money from her father. The Member herself stated that she never documented any of the gifts she or her children received from [the Client]. Therefore as suggested by [the expert], this strongly suggests that the Member was aware that accepting these gifts was wrong and a level of secrecy was needed. [The expert] explained that by not documenting the gifts of cheques and the car, the member had been secretive and tried to deliberately deceive her supervisor.

Final Submissions

College Counsel submitted that the evidence showing the Member accepted gifts and failed to maintain appropriate boundaries was crystal clear. He pointed out that the Member had not disputed accepting a car and a large amount of cash from [the Client]. He referred to the Standard regarding giving and accepting gifts which states that nurses must “abstain from accepting individual gifts”. He submitted that the Member stated she was well aware both of the College Standards and [the Facility] policy on the giving and receiving of gifts.

He reminded the panel of the expert opinion given by [the expert] in which she stated that a prior relationship is not an excuse for accepting gifts.

College Counsel stated there was no direct evidence that the Member solicited the gifts. However, he submitted that the evidence of non-disclosure of gifts and the facts related to her story of the purchase of the car could lead the panel to a finding of solicitation.

College Counsel said the evidence with respect to when the relationship commenced and whether it predated [the Client]’s admission to [the Facility] is relevant to the allegations of undue influence and misappropriation. He acknowledged that if there was a pre-existing relationship, it would be less likely that the Member directly exercised undue influence over [the Client] or misappropriated property. However, the College Counsel submitted that there was a lack of independent corroborating evidence to substantiate a long term relationship. He noted there were no pictures or e-mails to show they had been friends before [the Client] came to [the Facility] and that all the witnesses were unsure of exact dates. He submitted that if the panel were to find on a balance of probabilities, that the relationship developed while [the Client] was a [client], then it should make findings of solicitation, undue influence and misappropriation.

The Legal Representative for the Member reminded the panel that considerable time had lapsed since the events had occurred and that all witnesses had been confused about exact dates, both those of the College and those of the defence. The Legal Representative submitted that the evidence the panel should focus on is the evidence provided by the witnesses for the defence. As she explained, those witnesses were present and able to provide direct evidence as to the relationship between the Member and [the Client]. They all testified that the Member and [the Client] were good friends prior to 2008.

The Legal Representative submitted that Appendix B of the Standards was critical to the overall interpretation of the Standard and should be considered by the panel. She stated that the testimony of [the Member’s manager] showed the Member had discussed her concerns regarding a conflict of interest with her. She stated that [the manager] had also testified that it would be harmful to [the Client] if his gifts were not accepted.

The Legal Representative submitted that [the Client] had not had a good relationship with his family. He rarely saw them. She submitted that the testimony of all the defence witnesses was that [the Client] spent time at the Member’s home on weekends, holidays, or when he wanted to drop in. She submitted that the Member’s family was his adopted family.

Regarding the credibility of the Member’s testimony, the Legal Representative submitted that the member had honestly admitted to accepting the gifts. The Member had also admitted she was not sure of the exact dates for relevant events. For example, she could not recall the day [the dealership] had called her to pick up the car. The Legal Representative submitted that the College Counsel’s cross-examination was more like an interrogation and that the Member had agreed to his assertions just to get the case over with. She submitted the Member’s reaction during cross-examination was stress-induced compliance to avoid confrontation.

In reply submissions, College Counsel reminded the panel that submissions are not evidence. Expressions of opinion or belief of an opinion of a state of mind are also not evidence. Generally opinions are not expressed and should be utterly disregarded.

Decision

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), (b), (c) accepted gifts, 3(a), (b), (c) accepted gifts, and 4(a), (b) and (c) of the Notice of Hearing. In particular, the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional by maintaining an inappropriate relationship with [the Client], accepting large gifts which she concealed and breaching standards, mainly the Therapeutic Nurse Client Relationship.

Having considered the evidence and the onus and standard of proof, the panel is unable to find that the Member has committed acts of professional misconduct as alleged in paragraphs 1(d), (e), 2, 3(d), (e) and 4(d), (e) of the Notice of Hearing. Accordingly, the panel dismisses allegations 1(d), (e), 2, 3(d), (e) and 4(d), (e) against the Member.

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

Reasons for Decision

The panel finds that the evidence showing the Member accepted gifts and failed to maintain appropriate boundaries was clear, cogent and convincing. The Member acknowledged accepting the gifts, including cheques for $1000.00, $900.00, and $200.00. There was also no dispute that [the Client] purchased a car for the Member, paying $10,844.06. The panel finds that these gifts were of significant monetary value. [The expert] explained that the gift policy for nurses applies to all members at all times. She said there are no exceptions for special relationships.

The Member argued that Appendix B of the Standard allowed a nurse to care for a friend and/or family member. This argument, however, does not address the issue of accepting gifts. Appendix B makes it clear that a nurse’s personal needs must be met outside of the nurse-client relationship.

By accepting gifts, some of significant monetary value, and by exchanging highly personal greeting cards with [the Client], the Member maintained an inappropriate relationship with [the Client] while she was also providing nursing care. There was ample evidence [ ] that the Member used highly personal language in her greeting cards to [the Client], including “your special and I don’t know what I would do without you” and “you really are an angel, my angel...”. As well, [the expert] pointed out that in [sticky notes found on the Client’s computer] it was inappropriate for the member to provide [the Client] with her email address and personal phone number. This was a disclosure of personal information to a client that crossed boundaries.

The panel did not find clear, cogent and convincing evidence to prove that on a balance of probabilities the Member solicited gifts from [the Client] or applied undue influence over [the Client] or misappropriated property. Despite the conflicting evidence regarding the precise year the relationship commenced, the panel found that there had been a previous, friendly relationship between the Member and [the Client]. The detailed evidence provided by [five witnesses] and the Member indicated [that] the Member had met [the Client] while they had both lived on [the same street]. She had invited him to her home on a number of occasions and had provided support by helping with shopping and taking him to a doctor’s appointment. Regardless of when the relationship commenced, the panel was satisfied that it commenced prior to [the Client]’s admission to [the Facility].

College Counsel submitted that a prior relationship might be relevant in assessing the Member’s conduct. The panel finds the Member was less likely to ask for gifts and apply undue influence with a friend. In her testimony, [the manager] described [the Client] as “tough, rough, determined point blank man.” She testified that [the Client] was very adamant about wanting to give the gifts. The panel was satisfied on the evidence that [the Client] likely wanted to give the gifts to the Member and her children, and that he would not have needed encouragement. The panel did not find sufficient evidence to conclude that the Member had misappropriated property from [the Client].

The panel heard evidence about the purchase of the car by [the Client]. The Member testified that she did not know he was buying her a car, and only learned of the purchase when [the dealership] called her and told her to pick up the car. The panel heard overwhelming evidence to the contrary. The Member’s traffic ticket was paid only a few days before the purchase of the car, the payment for her driver’s licence reinstatement was paid the day the car was purchased. The car was picked up on approximately October 28, 2011, four days after the purchase of the car, and enough time for the Member to have received her licence from the Ministry of Transportation. The panel is satisfied based on this evidence that the Member did know of the purchase of the car and prepared for its pick-up date.

Although the panel was given evidence that the Member received numerous extravagant gifts from [the Client], the panel also heard testimony of the previous relationship between the Member and [the Client]. The panel was given no evidence of any solicitation by the Member.

Regarding allegation 4(a), (b), (c), the panel finds that having regard to all the circumstances, the Member’s conduct would reasonably be regarded by members of the profession to be dishonourable and unprofessional. The Panel considered that the Member’s failure to document or disclose these substantial gifts and the fact that she lied to her manage, when asked where she had gotten the car is evidence of dishonesty. Failure to maintain appropriate boundaries contravened the standards of practice of the profession and is therefore unprofessional conduct.

Credibility

Numerous witnesses testified to the panel. The testimony of all witnesses except the Member was deemed to be credible for the fact that all testimony told of a prior relationship with [the Client] and the Member. The testimony on these facts was reasonable and consistent, even taking into account that the witnesses could not recall precise dates.

The panel finds that the Member lied during her testimony with regard to her role in the creation of evidence that her Legal Representative submitted to the panel [ ]. During her daughter’s examination in chief, the Member was present and saw that through her daughter, two birthday cards were entered into evidence. These cards were purportedly given to her daughter by [the Client] in 2007 and 2008 []. The daughter testified that she was able to confirm the dates as they were written on the back of each card.

During her cross-examination, at first the Member only admitted that she had written on the inside of the cards for [the Client] to give to her younger daughter and not [ ] the daughter who testified earlier. The College presented the Member with information that established that the cards were not manufactured or available for purchase until early 2009. When presented with this information, the Member admitted to writing the years on the back of the cards prior to submitting them to her Legal Representative to be used as evidence in the hearing. On further cross-examination, the Member admitted to writing on the inside of the cards as well, including signing them from [the Client] at his request. The Member stated she knew it was wrong to do this, but she wanted proof of the fact that [the Client] gave her children cards prior to his admission to [the Facility].

I, Michael Hogard, 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:

Angela Verrier, RPN

Joan King, Public Member

Margaret Tuomi, Public Member