College of Nurses of Ontario v. Ettinger, 2011 ONCNO 99871

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Margaret Tuomi, Chairperson Zahir Hirji, RN, Member Megan Sloan, RPN, Member Joseph Gajasan, RN, Member Joan King, Public Member, Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO REBECCA JONES for College of Nurses of Ontario

• and -

KIM ETTINGER Registration No. 9715061 NO REPRESENTATION for Kim Ettinger

LUISA RITACCA. Independent Legal Counsel

Heard: January 10-11, 2011

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on January 10th and 11th, 2011 at the College of Nurses of Ontario (“the College”) at Toronto.

As Kim Ettinger (the “Member”) was not present, the hearing recessed for 30 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was not in attendance, nor was she represented.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on October 25th, 2010. The panel was satisfied that the Member had received adequate notice and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated October 20, 2010 are as follows.

1. 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, S.O. 1991, c.32, as amended and defined in subsection 1(1) of Ontario Regulation 799/93 in that on or around January 11, 2007, while working at [the Facility] in [ ], Ontario, you contravened a standard of practice of the profession and/or failed to meet the standard of practice of the profession, in that you dressed and/or behaved in an inappropriate manner in relation to [Client A].

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(37) of Ontario Regulation 799/93, in that on or around January 11, 2007, while working at [the Facility] in [ ], Ontario, you engaged in conduct or performed an act or acts, relevant to the practice of nursing that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, in that you dressed and/or behaved in an inappropriate manner in relation to [Client A].

3. 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, S.O. 1991, c.32, as amended and defined in subsection 1(1) of Ontario Regulation 799/93 in that during the period December 31, 2007 to June 16, 2008, while working with [the Agency] in [ ], Ontario, you contravened a standard of practice of the profession and/or failed to meet the standard of practice of the profession, in that you:

a. Continued to visit [Client B]’s home on several occasions after [Client B] had been discharged from nursing services; and/or

b. Obtained meals from [Client B]; and/or

c. Brought flowers to [Client B]; and/or

d. Exchanged books with [Client B], some of which you have never returned.

4. 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, S.O. 1991, c.32, as amended and defined in subsection 1(8) of Ontario Regulation 799/93, in that during the period December 31, 2007 to June 16, 2008, while working with [the Agency] in [ ], Ontario, you misappropriated property from a client or workplace, namely narcotics from client [Client B].

5. 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 during the period December 31, 2007 to June 16, 2008, while working with [the Agency] in Peterborough, Ontario, you engaged in conduct or performed an act or acts, relevant to the practice of nursing that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, in that you:

a. Continued to visit [Client B]’s home on several occasions after [Client B] had been discharged from nursing services; and/or

b. Obtained meals from [Client B]; and/or

c. Brought flowers to [Client B]; and/or

d. Exchanged books with [Client B], some of which you have never returned ; and/or

6. 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, S.O. 1991, c.32, as amended and defined in subsection 1(8) of Ontario Regulation 799/93 in that on or around June 4, 2008, while working with [the Agency] in [ ], Ontario, you misappropriated property from a client or workplace, namely narcotics from client [Client C].

Member’s Plea

Given that the Member was neither present nor represented, she 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 is a registered nurse and had worked at [the Facility] in [ ], Ontario from 2001 until 2007. On January 11th, 2007, the facility hosted a ‘pyjama day’ intended to boost resident and staff spirit. It is alleged that on this day, the Member dressed and behaved inappropriately. The Member later worked for [the Agency] in [ ], Ontario from December 2007 until June 2008 as a community nurse. It is alleged that in 2008 while attending the home of [Client B], the Member breached standards of practice and misappropriated narcotics. It is also alleged that in 2008 while attending the home of another client, [Client C,] the Member misappropriated narcotics.

The panel identified three issues to be considered in conjunction with the allegations.

(1) Did the Member dress and behave inappropriately on Jan. 11th, 2007, and if so, would members of the profession consider her behaviour to be disgraceful, dishonest and/or unprofessional?

(2) Did the Member contravene a standard of practice related to the activities at the home of [Client B] and if so, would the behaviour be considered by members of the profession to be disgraceful, dishonest and/or unprofessional?

(3) Is it probable the Member misappropriated narcotics from client [Client B] and/or [Client C]?

The Member did not attend the hearing and was not represented. The panel heard from 10 witnesses and received 16 exhibits. The panel found the College had met the standard of proof on the balance of probabilities. The panel found the Member committed professional misconduct by failing to meet the standards of practice and engaged in conduct that would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

The Evidence

Issue 1: Did the Member dress and behave inappropriately on Jan. 11th, 2007, and if so, would the members of the profession consider her behaviour to be disgraceful, dishonest and/or unprofessional?

The Member has been a Registered Nurse since 1997 and had been working as a charge nurse in a long-term care and assisted living residence between August 2001 and August 2007. On January 11th, 2007, the facility hosted a ‘pyjama day’. The witnesses testified that the Member changed into lingerie and invited personal support workers to join her in the room of [Client A], a client diagnosed with ALS. The Member leaned towards [Client A] and had a photo taken. It was clear from the evidence that the Member had planned to give [Client A] a “thrill”.

Using a hypothetical situation, an expert witness provided her opinion as to why these types of actions contravened the nursing standards of practice.

Issue 2: Did the Member contravene a standard of practice related to the activities at the home of [Client B] and if so, would the behaviour be considered by members of the profession to be disgraceful, dishonest and/or unprofessional?

[Client B] and her spouse [ ] attended to provide testimony. They testified that the Member dropped in to visit on at least three occasions beyond the two scheduled nursing visits. They stated that they did not know why the Member was visiting. She brought flowers, and books, and stayed for meals.

Again, using a hypothetical situation, an expert witness provided her opinion as to why these types of actions breached the nursing standards of practice.

Issue 3: Is it probable the Member misappropriated narcotics from client [Client B] and/or [Client C]?

Regarding the misappropriation of narcotics, there were four witnesses: [Client B], [Client B’s spouse], [Client C] and [Client C’s spouse].

Both couples described their homes and testified that they kept their narcotics in the kitchen. They explained that during portions of the Member’s visit, they were unable to see the narcotics.

[Client B] and [her spouse] stated the Member always wanted a glass of water and always insisted on getting it herself. [Client B] and [her spouse] testified that a bottle of 100 pills of Percocet went missing following a visit from the Member. They testified that after becoming suspicious, [Client B] counted out 40 pills of Oxycontin, put them in a bottle, and left it on the counter. Following the Member’s next visit at the home, the couple counted out the pills in the bottle and found 20 pills were missing. The couple testified that they had no other visitors during this period. It is unclear as to exactly when these events were reported to [the Agency].

[Client C] and [his spouse] testified that the Member attended at their home once to remove staples from [Client C]’s incision. The Member asked to wash her hands and refused to use the ensuite bathroom that was offered. [Client C] stated that the Member was gone from the bedroom for [a] considerable time and he was unable to hear water running. [Client C] and [his spouse] testified that on that same evening, they realized a full bottle of Percocet was missing. They also stated that they had no other visitors during this period.

In both cases, the witnesses described having extensive, unsuccessful searches for the pills.

Final Submissions

College Counsel submitted that the onus of proof was on the College to show, using clear, cogent and convincing evidence, that it was more likely than not the events had occurred and constituted professional misconduct as alleged.

Regarding the events at [the Facility], relating to allegations 1 and 2, College Counsel submitted that the Member’s behaviour breached the standards of practice of the profession as it was not professional, might have been upsetting to colleagues, was not purposeful or therapeutic, and fundamentally shifted the relationship between the client and the Member. She also stated that the client’s response was not relevant as the Member could not have anticipated the client’s response. College Counsel submitted that the behaviour was disgraceful, dishonourable, and unprofessional as it shamed the Member and the profession and cast doubt on the Member’s moral fitness. The Member’s actions showed serious disregard for her professional obligations, especially since it had been planned in advance, was sexually explicit, and done in the presence of staff.

College Counsel submitted the evidence of boundary crossings with [Client B] was supported by the fact that the Member continued to visit after scheduled care was completed, accepted meals, gave a gift of flowers after one meal, and exchanged books, some of which were never returned. College Counsel submitted that boundaries are an important issue in the home setting. Additional visits would have been confusing and could affect care and care choices for clients, especially if there is no discussion about the change in the relationship. College Counsel submitted that the acceptance of meals and gifts should have been discussed with the manager or care team and was not.

College Counsel submitted that the behaviour was disgraceful, dishonourable, and unprofessional as it occurred with a dishonest purpose, cast doubt on the Member’s moral fitness, involved an element of moral failing and the Member ought to have known this was unacceptable behaviour.

College Counsel submitted that on the balance of probabilities, the Member misappropriated narcotics from [Client B] and [Client C,] given the evidence submitted.

Decision

The College bears the onus of proving the allegations on the balance of probabilities, using clear, cogent and convincing evidence that is accepted by the panel.

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 through 6 of the Notice of Hearing.

In particular, with regards to allegation 1, the panel finds the Member’s behaviour contravened the Therapeutic Nurse-Client Relationship standard.

With regards to allegation 2, the panel finds the Member’s conduct was disgraceful, dishonourable, and unprofessional.

With regards to allegation 3, the Member’s conduct contravened the Ethics and Leadership standards and the Therapeutic Nurse-Client Relationship standard.

With regards to allegations 4 and 6, the panel finds the evidence supports the allegation of misappropriation of narcotics.

With regards to allegation 5, the panel finds the Member’s conduct was disgraceful, dishonourable, and unprofessional.

Reasons for Decision

Allegation 1

The panel found the testimony of the three witnesses to be clear and concise in their description of the events. Details of the events given by all three witnesses were consistent. The Member did not deny the events of January 11th, 2007 and apologized to the administrator for her actions. The panel agreed with the expert witness that the Member’s actions could be seen as sexually explicit and did not meet the standards of practice of the profession.

Allegation 2

The panel found the Member’s actions to be shameful to the Member and by association, the profession as a whole as it showed an element of moral failing, cast doubt on the Member’s moral fitness and displayed disregard for the Member’s professional obligations. Therefore, the panel found the Member to have engaged in conduct that is disgraceful, dishonourable and unprofessional.

Allegation 3

The Member's actions, including dropping in for casual visits, bringing flowers, staying for meals and exchanging books were all clear examples of breaching the therapeutic nurse-client relationship boundary. The panel accepted the testimony of the manager of [the Agency] that he was never informed of any of these activities, although he would have expected to be. The panel accepted the opinion of the expert witness that crossing clinical boundaries shifts the nurse-client relationship and can be very detrimental to the care of the client.

Allegation 4

The panel found the testimony of [Client B] credible and was supported by the testimony of [Client B’s spouse]. The evidence of [Client B] and [her spouse] was consistent in details regarding the misappropriated narcotics. In particular, the panel found the client's attempt to verify her suspicions and test the Member's honesty to be a clear indicator that the Member had misappropriated narcotics.

Allegation 5

The panel found that the Member's actions occurred with a dishonest purpose, involved an element of moral failing and cast doubt on her moral fitness. The Member ought to have known that her behaviour was unacceptable.

Allegation 6

The panel found that witnesses [Client C] and [his spouse] provided credible, clear and concise evidence. Their unopposed testimony clearly demonstrated that narcotics had been misappropriated. The panel accepts that [Client C] and [his spouse] made every effort to find the missing narcotics.

Penalty

Penalty Submissions

College Counsel requested that the panel make an order as follows.

1. Requiring the Member to appear before the Panel to be reprimanded at a date to be arranged but, in any event, within three (3) months of the date of the Order;

2. Directing a suspension of the Member’s certificate of registration for a period of 4 months to commence from the date of the Order;

3. Directing the imposition of the following terms, conditions and limitations on her certificate of registration:

(a) Two (2) meetings with an expert in the therapeutic nurse client relationship who has received prior approval from [the] Director of Professional Conduct, the first meeting to occur within three (3) months of the date of the Order, and the second to occur within six (6) months of the date of the Order. Prior to the meetings, the Member shall:

(i) Provide the expert with copies of [the] Panel’s Order, Decision and Reasons, if available;

(ii) Review the following College publications and complete a Reflective Questionnaire for each: Professional Standards, Revised 2002; and, Therapeutic Nurse-Client Relationship, Revised 2006;

(iii) Complete the online learning modules and participation forms for: Professional Standards and Therapeutic Nurse-Client Relationship;

(iv) Complete One is One Too Many and the Nurses’ workbook;

(v) Deliver the completed Reflective Questionnaires, online participation forms and Nurses’ workbook in advance of the first meeting with the expert.

(b) The subject of the meetings with the Expert will include the following:

(i) The conduct for which the Member was found to have committed professional misconduct;

(ii) The potential consequences of that conduct to her clients, her colleagues, her profession and herself;

(iii) The responsibilities of the Member has as a regulated health professional; and,

(iv) Strategies for making the inappropriate conduct unlikely to occur in the future.

(c) For a period of twelve (12) months following the date upon which the Member returns to the practice of nursing, the Member shall:

(i) Notify the Director of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which the Member shall retain;

(ii) Provide her employer(s) with a copy of the Panel’s Penalty Order, the Notice of Hearing, and, if available, the Panel’s written Decision and Reasons;

(iii) Only practi[s]e for an employer(s) who agrees to, and does write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment and provide the Director with the following:

1. Confirmation that the employer(s) has received a copy of the documents referred to above; and,

2. Confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of practice of the profession.

The College submitted that in considering the penalty the panel must consider the goals of public protection, the maintenance of high professional standards, and preservation of public confidence in the profession. The principles to be applied when considering the penalty include protection of the public, specific and general deterrence, as well as the rehabilitation and remediation of the Member.

College Counsel outlined a number of aggravating factors. The Member’s conduct related to allegations 1 and 2 was sexually suggestive. The Member’s conduct regarding the misappropriation of narcotics involved a breach of trust and dishonesty. In relation to [Client B], the behaviour took place over a period of time.

Although not an aggravating factor, there is no evidence of remorse or admission on behalf of the Member that would otherwise be considered mitigating. The conduct is serious and involved three different clients and three different incidents.

College Counsel submitted its proposed penalty was proportional and consistent with similar past College decisions such as CNO and Potts (June 2007), CNO and Parke (July 2009), CNO and Whipple (May 2009) and CNO and Desroches (June 2009). College submitted that the proposed penalty would meet the goals set out above.

Penalty Decision

The panel makes an order as follows:

1. The Member shall appear before the Panel to be reprimanded at a date to be arranged but, in any event, within three (3) months of the date of the Order;

2. The Executive Director is directed to suspend the Member’s Certificate of Registration for a period of 4 months to commence from the date of the Order;

3. The Executive Director is directed to impose [ ] the following terms, conditions and limitations on the Member’s certificate of registration:

(a) Two (2) meetings with an expert in the therapeutic nurse client relationship who has received prior approval from [the] Director of Professional Conduct, the first meeting to occur within three (3) months of the date of the Order, and the second to occur within six (6) months of the date of the Order. Prior to the meetings, the Member shall:

(i) Provide the expert with copies of [the] Panel’s Order, Decision and Reasons, if available;

(ii) Review the following College publications and complete a Reflective Questionnaire for each: Professional Standards, Revised 2002; and, Therapeutic Nurse-Client Relationship, Revised 2006;

(iii) Complete the online learning modules and participation forms for: Professional Standards and Therapeutic Nurse-Client Relationship;

(iv) Complete One is One Too Many and the Nurses’ workbook;

(v) Deliver the completed Reflective Questionnaires, online participation forms and Nurses’ workbook in advance of the first meeting with the expert.

(b) The subject of the meetings with the Expert will include the following:

(i) The conduct for which the Member was found to have committed professional misconduct;

(ii) The potential consequences of that conduct to her clients, her colleagues, her profession and herself;

(iii) The responsibilities of the Member [ ] as a regulated health professional; and,

(iv) Strategies for making the inappropriate conduct unlikely to occur in the future.

(c) For a period of twelve (12) months following the date upon which the Member returns to the practice of nursing, the Member shall:

(i) Notify the Director of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position. Notification shall be in writing and through the use of a verifiable method of delivery, the proof of which the Member shall retain;

(ii) Provide her employer(s) with a copy of the Panel’s Penalty Order, the Notice of Hearing, and, if available, the Panel’s written Decision and Reasons; and

(iii) Only practi[s]e for an employer(s) who agrees to, and does write to the Director, within fourteen (14) days of the commencement or resumption of the Member’s employment and provide the Director with the following:

1. Confirmation that the employer(s) has received a copy of the documents referred to above; and,

2. Confirmation that the employer agrees to notify the Director immediately upon receipt of any reasonable information that the Member has breached the standards of practice of the profession.

(iv) Not practi[s]e independently in the community. To be clear, the Member shall not practi[s]e in clients’ homes unless she is accompanied by at least one other person from her place of employment.

Reasons for Penalty Decision

The panel found that the penalty meets the principles of both general and specific deterrence, as well as the rehabilitation and remediation of the Member. The panel had concerns that the College’s proposed penalty was not adequate to provide protection of the public. Accordingly, after hearing submissions from College Counsel, the panel added a further limitation that the Member is not to practi[s]e independently in the community for a period of 12 months following the date on which the Member returns to nursing. The purpose of this limitation is to prevent the Member from having unsupervised access to clients’ homes.

The suspension of four months sends a clear message that the misappropriation of narcotics and breach of standards will not be tolerated amongst the membership. The terms, conditions and limitations outlined in the penalty in section (a) and (b) will provide opportunities for the Member to reflect on her practice and offer adequate opportunities for rehabilitation. Section (c) of the terms, conditions and limitations will provide protection of the public. The overall penalty will help to preserve public confidence in the nursing profession.

I, Margaret Tuomi, 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:

Zahir Hirji, RN Megan Sloan, RPN Joseph Gajasan, RN Joan King, Public Member