College of Nurses of Ontario v. David Rivard, 2012 CanLII 100003

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Angela Verrier, RPN Chairperson Miranda Huang, RN Member Margaret Tuomi Public Member

BETWEEN:

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

• and -

DAVID RIVARD Registration No. JG691189 VALERIE WISE for David Rivard

Heard: April 23, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on April 23, 2012 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against David Rivard (the “Member”) as stated in the Notice of Hearing dated February 3, 2012, are as follows.

IT IS ALLEGED THAT:

1. 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 while employed as a Registered Practical Nurse at the [the Facility] in [ ], Ontario, you sexually abused a client, as follows:

a. on or about November 14, 2010, you engaged in behaviour or made remarks of a sexual nature towards [the Client]; 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(1) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as follows:

a. on or about November 14, 2010, you engaged in behaviour or made remarks of an inappropriate and/or sexually suggestive nature towards [the Client]; and/or

b. on or about November 14, 2010, you failed to maintain the boundaries of the nurse-client relationship in respect of [the Client]; and/or

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 subsection 1(7) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the Facility], you abused a client verbally or emotionally, as follows:

a. on or about November 14, 2010, you engaged in behaviour or made remarks of an inappropriate and/or sexually suggestive nature towards [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 while employed as a Registered Practical Nurse at [the Facility], 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. on or about November 14, 2010, you engaged in behaviour or made remarks of an inappropriate and/or sexually suggestive nature towards [the Client]; and/or

b. on or about November 14, 2010, you failed to maintain the boundaries of the nurse-client relationship in respect of [the Client].

Member’s Plea

David Rivard admitted the allegations set out in paragraphs numbered 1(a); 2(a),(b); 4(a) and (b) in the Notice of Hearing [ ]. With respect to the allegations set out in paragraph 3(a), the Member agreed only to abusing a client verbally and to no other allegations contained in paragraph 3(a). The panel 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. David Timothy Rivard (the “Member”) received a nursing diploma [ ] in 2007.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on March 11, 2008. The Member’s certificate of registration is currently active.

3. The Member was employed at [the Facility] in [the Unit] from November 17, 2008, to November 25, 2010.

THE FACILITY

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

5. The Unit is an [ ] inpatient unit. Its primary purpose is to investigate and diagnose clients with epilepsy, and other related conditions, and to evaluate clients for surgery or other types of treatment, including trials of antiepileptic medications.

6. The beds in the Unit are configured around the nurses’ desk. All [ ] beds are visible from the nurses’ desk; [clients] undergoing EEG telemetry are also monitored via audio and video.

7. The Unit is staffed by a Registered Nurse (“RN”) and an RPN working on 12-hour shifts. The Member worked on the Unit as a casual, staff nurse on day, evening and weekend shifts.

THE CLIENT

8. [The Client] was [ ] years old at the time of the incident, [ ] married with [ ] adult [children]. [The Client] suffered from presumed focal epilepsy and [ ] frequently experienced seizures.

9. The Client was admitted to the Unit [ ] for video-EEG telemetry. Prior to being admitted, the Client had been on the waiting list for 11 months.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

10. The Member and [ ] the RN on duty provided nursing care to the Client on the evening of November 13-14, 2010.

11. On that evening, the whole Unit, including the nurses, watched a Christmas movie and hung Christmas decorations. The Member and another RN were untangling Christmas lights when the Client offered to help.

12. The Member and the Client had a friendly conversation, during which the Member noticed the Client was not wearing [an undergarment]. He admitted that he had a hard time not looking [ ], but tried not to.

13. The Member knew that the Client was married [ ] and had grandchildren. He told [the Client] that [the Client] did not look like a grand[parent] and that [the Client] looked very young for [the Client’s age].

14. At about 12:30 a.m. on November 14, 2010, [the RN] went on her break. She was on break until approximately 3:00 a.m.

15. At about 1:45 a.m., the Member approached the Client’s bed. [The Client] was tossing and turning. In the video recording from the Facility, the Member was seen leaning over the Client and watching [ ] as [the Client] slept, causing [the Client] to wake up. If the Member were to testify, he would say that because he saw [the Client] moving, he was watching to see if [the Client] was having a seizure.

16. On the audio recording, the Client was heard saying, “What the hell do you want? You scared the shit out of me.”

17. After that, the Client told the Member [the Client’s] back was hurting, which is why [the Client] was tossing and turning. The Member offered [ ] Tylenol 3. The Client declined the medication stating that the Codeine would keep [the Client] awake. The Member then offered the Client two extra-strength Tylenol to ease the pain. The Client took these.

18. The Member asked [ ] what [the Client] would normally do to ease [the] back pain and the Client replied that [the Client] would usually take a bath. The Member suggested [ ] a bath. He assured [the Client] the bath would not disturb the other clients.

19. The Member then sat on the Client’s bed. When the Client sat up to get ready for [the] bath, the Member again noticed [the Client] was not wearing [an undergarment]. The Client removed the cords connecting [the Client] to the voice recorder in preparation for [the] bath, thereby disconnecting the audio recorder.

20. A conversation took place between the Member and the Client.

21. If the Member were to testify, he would say that his conversation with the Client was essentially as follows: He asked, “If I were to ask you something very personal, would you tell anyone?” The Client said, “Of course not.” The Member then said, “I think you’re very pretty.” He asked the Client “I was wondering if sometime I could see you” which he would say meant that he was asking [the Client] on a date. The Client responded, “No, I don’t think I would be comfortable with that. I’m married.” The Member said, “That’s totally fine. Sorry if I weirded you out.”

22. If the Client were to testify, [the Client] would say that the [ ] conversation [ ] was essentially as follows: The Member said: “Can I ask you a personal question?” The Member then continued, “I think you’re really pretty. I was just wondering if I could see you naked and if you wanted to see me naked.” The Client replied, “I’m married. No.” The Client turned [the Client] back to the Member. As he walked away, he said “I hope I wasn’t inappropriate.”

23. Although the Client and the Member’s recollections of the conversation differ, in either case, the Member admits that his comments to the Client were sexual in nature. He further acknowledges that these comments constitute sexual abuse of the Client. It is agreed that at no time did the Member touch the Client in a sexual manner.

24. After the conversation took place, the Client went to the bathroom, and locked []self in for approximately 15 to 20 minutes. The Member understood that the Client was bathing. He made no attempt to make contact with [ ], see [ ], or touch [the Client]. As [the Client] was returning to [ ] bed, the Member said: “I hope I didn’t weird/freak you out or make you feel uncomfortable,” or words to that effect.

25. If the Client were to testify, [the Client] would say that [the Client] cried in the bathroom and later in bed. [The Client] felt afraid; [the Client] was away from [ ] family; [the Client] felt violated.

26. On the morning of November 14, 2010, the Client reported the incident to another nurse, to the EEG Specialist, and to the doctor responsible for [the Client’s] care. After reviewing the video with them, [the Client] felt shaken and did not feel safe. The doctor described [the Client] as “emotionally upset and in distress requiring counselling and Ativan prn”. The Client checked [ ]self out of the Unit later that day, against medical advice.

27. On November 17, 2010, a meeting was held at the Facility to discuss the incident with the Member. The Member cooperated with the Facility’s investigation. When asked what his intent was in asking [to “see [the Client] sometime,”] the Member stated that his intent was to see the Client topless. He stated that he wanted to see [the Client’s] breasts. The Member expressed remorse at the meeting and in an email which he sent to the Facility the day after the incident (November 15, 2010).

28. Following the completion of the Facility’s investigation, the Member’s employment was terminated on November 25, 2010.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

29. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1(a), 2(a) and (b), 3(a), and 4(a) and (b) of the Notice of Hearing, as described in paragraphs 10-28 above, and in particular that he:

a) sexually abused a client by making remarks of a sexual nature;

b) failed to meet the standards of practice of the profession by making remarks of an inappropriate and/or sexually suggestive nature and failing to maintain boundaries;

c) abused a client verbally, and;

d) engaged in conduct that was disgraceful, dishonourable and unprofessional.

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and in particular, finds that the Member committed an act of professional misconduct as alleged in paragraphs 1(a); 2(a),(b); 3(a) verbally abused a client and 4(a), (b) of the Notice of Hearing in that he committed acts of professional misconduct when he:

1. Sexually abused a client by making remarks of a sexual nature

2. Failed to meet the standards of practice of the profession by making remarks of an inappropriate and/or sexually suggestive nature and failing to maintain boundaries

3. Abused a client verbally

4. Engaged in conduct that was disgraceful, dishonourable and unprofessional

Reasons for Decision

With regard to allegation 3(a), the Member admitted to verbal abuse, not to emotional abuse. College Counsel stated that this was verbal abuse and relied upon the facts as agreed upon and set out in the Agreed Statement of Facts. In particular, College Counsel relied upon the fact that [the Client] indicated that [the Client] felt afraid and violated. The College called no further evidence to support a finding of emotional abuse. In the absence of other evidence, the panel made a finding of verbal abuse.

As to the remaining allegations, the panel found the Member’s admissions as listed in paragraph 29 of the Agreed Statement of Facts supported findings of professional misconduct in relation to allegations 1(a) and 2(a),(b). With regard to allegation 4(a) and (b), the panel found the Member’s conduct would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional, as his conduct breached the boundaries of the Therapeutic Nurse Client Relationship and involved sexual abuse.

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:

1. Requiring the Member to appear before the Panel to be reprimanded within three months of the date of this Order.

2. Directing the Executive Director to suspend the Member’s certificate of registration for three months. This suspension shall take effect from the date that this Order is final and shall continue to run without interruption.

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

a) The Member will attend a minimum of two sessions with a Nursing Expert (the “Expert”), at his 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 and the therapeutic nurse-client relationship, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed she or he will provide a report following the sessions;

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), and;

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

iv. Before the first meeting, the Member reviews and completes the College’s self directed learning package, One is One Too Many, at his 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 Expert forwards his or 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 his 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 of his certificate of registration; and

b) For a period of 24 months from the date the Member’s suspension ends, the Member will notify his employers of this decision. To comply, the Member is required to ensure that:

(i) The Director is notified of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position;

(ii) [The Member provides] his employer(s) 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 Penalty, and

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

(iii) Within fourteen (14) days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that it received a copy of the required documents, and

2. that [it] agrees to notify the Director immediately upon receipt of any information that the Member has committed an act of professional misconduct.

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

College and Defense Counsel agreed that the proposed order meets the appropriate objectives of a penalty order. They stated that the panel should consider it very carefully and adopt it, unless it is so outside the range [as] to bring justice into disrepute. This penalty includes, a reprimand, a three month suspension and terms, conditions and limitations as both a specific and general deterren[t]. This order also provides rehabilitation to the Member and protection of the public with a twenty-four-month employer notification and monitoring period. [Both counsel] stated that this negotiated penalty was fair, balanced and a carefully tailored sanction.

Penalty Decision

The panel accepts the Joint Submission as to Order and accordingly orders:

1. The Member to appear before the Panel to be reprimanded within three months of the date of this Order.

2. The Executive Director to suspend the Member’s certificate of registration for three months. This suspension shall take effect from the date that this Order is final and shall continue to run without interruption.

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

a) The Member will attend a minimum of two sessions with a Nursing Expert (the “Expert”), at his 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 and the therapeutic nurse-client relationship, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed she or he will provide a report following the sessions;

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. [the] 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), and;

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

iv. Before the first meeting, the Member reviews and completes the College’s self directed learning package, One is One Too Many, at his 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 Expert forwards his or 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 his 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 of his certificate of registration; and

b) For a period of 24 months from the date the Member’s suspension ends, the Member will notify his employers of this decision. To comply, the Member is required to ensure that:

(i) The Director is notified of the name, address, and telephone number of all employer(s) within fourteen (14) days of commencing or resuming employment in any nursing position;

(ii) [The Member provides] his employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. [the] Joint Submission on Penalty, and

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

(iii) Within fourteen (14) days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that it received a copy of the required documents, and

2. that [it] agrees to notify the Director immediately upon receipt of any information that the Member has committed an act of professional misconduct.

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

Both Counsel suggested that there were a number of aggravating and mitigating factors to be considered in arriving at the decision.

The Mitigating factors included:

• This was a single incident with one client and did not involve sexual touching

• The Member was immediately apologetic to both the client and his employer

• The Member cooperated with the College, including making a plea

• The Member’s employment was terminated as a result of this incident

The aggravating factors included:

• This was a vulnerable client admitted to hospital

• The Member was the only health care professional on the floor during the incident

• The impact this incident had on the Client. [The Client] discharged [ ]self from [the Facility] before the end of [ ] treatment, after waiting 11 months to be admitted.

• The Client was emotionally distressed as a result of this incident and required counselling and Ativan

This order protects the public through the twenty-four-month monitoring period, and allows for the Member’s rehabilitation through the meetings with the expert and complying with the terms, conditions and limitations as set forth in the Joint Submission on Order.

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has cooperated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for his actions.

I, Angela Verrier, 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:

Miranda Huang, RN

Margaret Tuomi, Public Member