College of Nurses of Ontario v. Arlene Eleanore Wilcox, 2012 ONCNO 100001

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Nancy Sears, RN Chairperson April Plumton, RPN Member Linda Bracken Public Member

BETWEEN:

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

• and -

ARLENE ELEANORE WILCOX Registration No. 9016957 RICHARD SHEKTER for Arlene Wilcox

Heard: September 25, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on September 25, 2012 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

Counsel for the College advised the panel that the College, with the consent of the Member, was requesting leave to withdraw the allegations set out in paragraphs 1, 2 and 3 of the Notice of Hearing dated September 13, 2012. The panel granted this request. The remaining allegation as set out in the Notice of Hearing is as follows.

IT IS ALLEGED THAT:

1. [withdrawn]

2. [withdrawn]

3. [withdrawn]

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(19) of Ontario Regulation 799/93, in that on or about December 9, 2009, while working as a registered nurse at [the Facility], you contravened a provision of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those acts, and in particular, section 85.1 of the Health Professions Procedural Code.

Member’s Plea

Arlene Eleanore Wilcox (“the Member”) admitted the allegation set out in paragraph 4 in the Notice of Hearing. The panel received a written plea inquiry which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts [ ] which provided as follows.

THE MEMBER

1. Arlene Wilcox (the “Member”) obtained a diploma in nursing [ ] in 1989.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on January 25, 1990.

3. The Member is employed at [the Facility]. She has worked there since September 1990.

4. Since September 1992, the Member has worked on the post-surgery unit of the Facility. The post-surgery unit provides care to gastrointestinal and gynaecological clients.

THE FACILITY

5. The Facility is located in [ ], Ontario.

6. The Facility has [ ] four locations.

7. The Member worked on the post-surgery unit as a full-time nurse on various shifts.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

8. On December 9, 2009, the Member was scheduled to work the day shift, from 0700 to 1900. She was assigned to [the Client], among others.

9. [The Client] had undergone an abdominal hysterectomy the previous day. She was experiencing vaginal bleeding/discharge and had some swelling in the vaginal area.

10. [Nurse A] was [the Client]’s nurse on the night shift on December 8, 2009. On the transfer of care from [Nurse A] to the Member, [Nurse A] advised the Member that [the Client] had had problems voiding and that he had catheterized her once during his shift the previous night.

11. The Member provided routine post-surgical care to [the Client] and provided [the Client] with mesh pants to hold a sanitary pad in place. At approximately 1300, the Member determined that [the Client] required catheterization to empty her bladder after performing a bladder scan. The Member performed an in-and-out catheterization, obtaining approximately 1000cc of urine. The Member had a hard time performing the catheterization of [the Client] as the area was swollen, as is common with an abdominal hysterectomy.

12. Following the catheterization, [the Client] told the Member that on the previous evening, [Nurse A] had pulled her covers down very low and had her open her legs so she was exposed for the bladder scan, and had not provided her with mesh pants, or words to that effect. [The Client] also told the Member that [Nurse A] had touched her clitoris while performing catheterization. [The Client] was teary and upset when she spoke about [Nurse A]’s catheterization the night before. [The Client] was also upset and teary about the surgery and that she didn’t know the details and about her bladder function.

13. The Member asked [the Client] if she wanted to speak to the charge nurse. [The Client] declined. The Member did not ask for any further information from [the Client]. [The Client] advised the Member that she did not want [Nurse A] to be her nurse that evening.

14. The Member told [the Client] that she would talk to the charge nurse and that the assignment would be changed that night.

15. [The Client] was upset and crying when the Member left the room.

16. The Member was not able to speak to the Charge Nurse, [ ], until approximately 1500. The Member advised [the Charge Nurse] that [the Client] thought [Nurse A] had touched her clitoris during catheterization, among other things. Together, [the Charge Nurse] and the Member reviewed the schedule for the night shift. [Nurse A] was not scheduled to provide care to [the Client].

17. The Member then returned to [the Client]’s room. [The Client] asked the Member what was happening and if [Nurse A] was coming back to provide care to her that night. [The Client] was teary and upset. The Member advised her that [Nurse A] would be in another area and would not be her assigned nurse. [The Client] asked if [Nurse A] knew why he was not assigned to her. The Member asked [the Client] if she wanted [Nurse A] to know why he was not assigned to her and [the Client] said yes. The Member told [the Client] that the charge nurse would speak with [Nurse A] and let him know that [the Client] was not happy with the care he provided. The Member asked [the Client] if she wanted to speak to the charge nurse and [the Client] said she did not.

18. The Member did not document [the Client]’s report or her emotional state.

19. The following day, [the Client] spoke to a social worker at the Facility. The social worker reported to the nurse manager of the unit, who initiated an investigation and made a report of sexual abuse of a [client] to the College.

20. If [the Client] were to testify, she would say that she felt that the Member did not take her concerns seriously, and that she felt that the Member ignored her after she expressed concerns about [Nurse A]’s care.

21. If the Member were to testify, she would say that she did not appreciate that the [Client’s] complaint was one of sexual abuse but rather interpreted [the Client] as complaining about the manner by which [Nurse A] performed the procedure as compared to the manner by which the Member performed the same procedure. As such, while she did take [the Client]’s concerns about [Nurse A]’s conduct seriously, she did not fully appreciate the sexual nature of [the Client]’s complaint.

22. The Member acknowledges that she ought to have taken immediate steps to elicit further information from [the Client] to clarify the nature of [the Client]’s concerns regarding [Nurse A]’s care. In particular, the Member ought to have confirmed whether [the Client] was making a report of sexual abuse or a complaint regarding the quality of nursing care. The Member acknowledges that had she done so, it would have been apparent that [the Client] was alleging that she had been subjected to sexual abuse during the course of the procedure performed by [Nurse A].

23. The Member acknowledges that in those circumstances, she was obliged to report the allegation of sexual abuse to the College in accordance with section 85.1 of the Health Professions Procedural Code.

24. The Member acknowledges that her duty to report the allegations to the College was not satisfied by speaking to [the Charge Nurse], following the initial report by [the Client].

25. The Member also acknowledges that she ought to have documented information about the client’s concerns and emotional state, and the actions she took.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

26. The Member admits that she committed an act of professional misconduct as set out in paragraph 4 of the Notice of Hearing dated September 13, 2012 in that she contravened section 85.1 of the Health Professions Procedural Code.

Parties’ Submissions

Counsel for the College submitted that Section 85.1 of the Health Professions Procedural Code (the Code) imposes an obligation on nurses that, when presented with information or a complaint by a client which reasonably could be interpreted by a nurse as inferring possible sexual abuse by another nurse, then the nurse is obligated to enquire further to determine if the client may indeed have been subject to sexual abuse. If so, the nurse is obligated to file a report with the College. In this case, this obligation to take reasonable steps to clarify with the client the nature of the concern that was raised and to ascertain if there were reasonable grounds to suggest that sexual abuse had occurred was not fulfilled, and as such, the Member was in breach of section 85.1.

Counsel for the Member agreed that section 85.1 creates an obligation on nurses, and in this situation the Member did not take steps to clarify the nature of the client’s complaint as, at the time, she interpreted the complaint as one related to catheterization technique. The Member did not appreciate that the complaint was one related to sexual abuse. Upon reflection, the Member agrees that the complaint should have led her to immediately try to clarify the nature of the complaint, and such clarification would have revealed the client was alleging that she had been subjected to sexual abuse by another nurse.

Counsel for the Member submitted that the “reasonable grounds” set out in section 85.1 [ ] has both subjective and objective factors. There is an information gathering component and a reporting component to the section 85.1 obligation. Having received the information from the client, the Member subjectively did not appreciate that the client was making a sexual abuse complaint. However, the information was sufficient to have triggered a reasonable nurse to explore the complaint further. This is the objective factor of the obligation and the one that the Member breached. As set out in paragraph 22 of the Agreed Statement of Fact, the Member agreed that she ought to have, but did not, asked the client questions to clarify the nature of the complaint.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts, along with the Member’s plea, supports a finding of professional misconduct and, in particular, finds that the Member committed an act of professional misconduct as alleged in paragraph 4 of the Notice of Hearing in that she contravened section 85.1 of the Code.

Reasons for Decision

The panel accepted the facts as set out in the Agreed Statement of Facts, along with the Member’s plea, as supporting a finding of professional misconduct. In particular, the panel found that the Member’s failure to make enquiries that would have clarified the nature of the client’s complaint as an allegation of sexual abuse breached her obligation under section 85.1 of the Code.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Order had been agreed upon. The Joint Submission as to Order provides as follows:

THE COLLEGE OF NURSES OF ONTARIO (THE “COLLEGE”) AND ARLENE ELEANORE WILCOX (THE “MEMBER”) JOINTLY SUBMIT THAT, in view of the facts and admission set out in the Agreed Statement of Facts and the finding of professional misconduct, the Panel of the Discipline Committee (the “Panel”) should make an Order:

1. Requiring the Member to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

2. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two sessions with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

1. Professional Standards (Revised 2002),

2. Therapeutic Nurse-Client Relationship (Revised 2006),

3. Documentation (Revised 2002),

4. Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses,

iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

3. All documents delivered by the Member to the College, the Expert or the employer(s) will be made by verifiable method of delivery, the proof of which the Member will retain.

Penalty Submissions

Counsel for the College submitted that neither party was seeking suspension of the Member’s certificate of registration as the misconduct was at the less severe end of the spectrum of professional misconduct. The Member was very forthright in working with the College and in acknowledging her conduct, and as such removed the necessity for the client to testify at this hearing. The Member has voluntarily spoken with the client and expressed her feelings of empathy and said ‘she was sorry’; this does not happen often and is evidence of the Member’s insight. The reprimand and the educational components of the Joint Submission on Order are sufficient to meet the goals of protection of the public, rehabilitation, and both specific and general deterrence. The reprimand sends a clear message to the Member, the general nursing membership, and to the public, that nurses are expected to meet, at all times, their obligations related to suspicions of sexual abuse by other regulated health professionals. The educational component provides an opportunity for self-reflection and expert guidance. Protection of the public is achieved through reflective practice and meeting with the expert. Together the reprimand and the education components of the joint submission on order clearly achieve the deterrence of this Member from any future misconduct. The Member has learned from this experience and will use these lessons in her future practice. The Member shows remorse and reflection through her plea and through speaking with the complainant, and the penalty fairly reflects all these factors.

Counsel for the Member submitted that the action of the Member was at the most modest end of transgression of the Section 85.1 professional obligation. As mitigating factors, the Member has acknowledged her behaviour and recognizes her responsibility. Her plea has set aside the need for a full hearing and for the client to testify. She could have, but chose not to, put forth a vigorous defence. The Member has spoken to the client, which is an extraordinary action, and Counsel submits that it was a constructive discussion. This is the Member’s first offence. This is not a case of a Member not doing what she knew she should have done, but is a case of a nurse not doing what she ought to have done. Counsel for the Member submitted three character references [ ] regarding the Member.

Counsel for the Member submitted that the penalty addresses three audiences: the Member; the profession; and the public. Specific deterrence will be achieved through the reprimand and the educational components of the order. General deterrence will be achieved as other members of the profession will understand that failure to make further enquiries in similar situations is inappropriate. Through general deterrence, the public is protected. The penalty as set out in the Joint Submission on Order is appropriate and fitting for this finding.

In response to the submission by Counsel for the Member, Counsel for the College submitted that there are not three, but five, audiences that the penalty addresses. The two audiences not addressed by the Counsel for the Member are the hospital and the client. Facing a longer hearing would be traumatic for the complainant. Counsel for the College submitted that the complainant understands the Joint Submission on Order, would agree it is a fair and just outcome, and that it is meaningful to her.

Penalty Decision

The panel accepts the Joint Submission on Order and accordingly orders:

1. The Member shall appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

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

a. The Member will attend two sessions with a Nursing Expert (the “Expert”), at her own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

1. Professional Standards (Revised 2002),

2. Therapeutic Nurse-Client Relationship (Revised 2006),

3. Documentation (Revised 2002),

4. Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses,

iv. Before the first meeting, the Member reviews and completes the College’s self-directed learning package, One is One Too Many, at her own expense, including the self-directed Nurses’ Workbook;

v. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, online participation forms and Nurses’ Workbook;

vi. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vii. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

viii. If the Member does not comply with any of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

3. All documents delivered by the Member to the College, the Expert or the employer(s) will be made by verifiable method of delivery, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has cooperated with the College. The Member was forthright and has accepted responsibility for her actions. She has agreed to the facts and the proposed penalty. The penalty reflects the panel’s conclusion that the Member’s conduct was at the lower end of the spectrum of severity of professional misconduct.

I, Nancy Sears, RN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

April Plumton, RPN

Linda Bracken, Public Member