College of Nurses of Ontario v. Dubravac, 2012 CanLII 102106

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Nancy Sears, RN Chairperson Marianne Fletcher, RN Member Margaret Tuomi Public Member

BETWEEN:

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

• and - )

ELMEDIN DUBRAVAC ) ROBERT STEPHENSON for Registration No. 0281501 ) Elmedin Dubravac

) Heard: March 8, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on March 8, 2012, at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Elmedin Dubravac (the “Member”) as stated in the Notice of Hearing dated March 5, 2012, are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at [the facility] (the “Hospital”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as follows:

a. between March and September, 2009, you carried out one or more of the following inappropriate acts toward your co-worker [ ] in the presence of a client to whom you were providing or assisting in treatment:

i. between March and June, 2009, while assisting [the co-worker] in providing care to a sedated or unconscious male client you used the client’s hand or arm in a gesture toward or an attempt to touch [the co-worker’s] [chest];

ii. on or about August 27, 2009, you touched [the co-worker’s] [chest] one or more times and/or squeezed [the co-worker’s] nipple one or more times, in the presence of a sedated or unconscious client;

iii. on or about August 27, 2009, you touched [the co-worker’s] buttocks in the presence of a sedated or unconscious client;

iv. between March and September, 2009, while [the co-worker] was providing care to a sedated or unconscious female client, you made an inappropriate comment toward [the co-worker], saying the client’s “bush needed trimming” or words to that effect; 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(7) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at the Hospital, you abused a client verbally, physically or emotionally, as follows:

a. between March and June, 2009, while assisting your co-worker [ ] in providing care to a sedated or unconscious male client you manipulated the client’s hand or arm in a non-therapeutic manner; 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(37) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at the Hospital, 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. between March and September, 2009, you carried out one or more of the following inappropriate acts toward your co-worker [ ] in the presence of a client to whom you were providing or assisting in treatment:

i. between March and June, 2009, while assisting [the co-worker] in providing care to a sedated or unconscious male client you used the client’s hand or arm in a gesture toward or an attempt to touch [the co-worker’s] [chest];

ii. on or about August 27, 2009, you touched [the co-worker’s] [chest] one or more times and/or squeezed [the co-worker’s] nipple one or more times, in the presence of a sedated or unconscious client;

iii. on or about August 27, 2009, you touched [the co-worker’s] buttocks in the presence of a sedated or unconscious client;

iv. between March and September, 2009, while [the co-worker] was providing care to a sedated or unconscious female client, you made an inappropriate comment toward [the co-worker], saying the client’s “bush needed trimming” or words to that effect; and/or

b. between March and September, 2009, you sexually harassed your co-worker, [ ], and in particular carried out one or more of the following acts:

i. between March and June, 2009, while assisting [the co-worker] in providing care to a sedated or unconscious male client you used the client’s hand or arm in a gesture toward or an attempt to touch [the co-worker’s] [chest];

ii. on or about August 27, 2009, you touched [the co-worker’s] [chest] one or more times and/or squeezed [the co-worker’s] nipple one or more times, in the presence of a sedated or unconscious client;

iii. on or about August 27, 2009, you touched [the co-worker’s] buttocks in the presence of a sedated or unconscious client;

iv. between March and September, 2009, while [the co-worker] was providing care to a sedated or unconscious female client, you made an inappropriate comment toward [the co-worker], saying the client’s “bush needed trimming” or words to that effect;

v. on or about September 6, 2009, you made an inappropriate comment toward [the co-worker], saying that [the co-worker] “looked hot” or words to that effect;

vi. on or about September 6, 2009, you attempted to touch and/or touched [the co-worker], including making a gesture toward [the co-worker’s] [chest] and/or touching [the co-worker’s] buttocks.

Counsel for the College advised the Panel that the College was not calling any evidence with respect to) the allegations set out in paragraphs 1(a)(iii),(iv); 2; and 3(a)(iii),(iv); 3(b)(iii),(iv) of the Notice of Hearing. Those allegations were dismissed by the Panel.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1(a)(i)(ii) and 3(a)(i),(ii), 3(b)(i),(ii),(v),(vi) with respect to disgraceful, dishonourable and unprofessional conduct 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. Elmedin Dubravac (the “Member”) received his diploma [ ] in 2001.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) with a temporary certificate of registration (“certificate”) on April 2, 2002. He received his general certificate on November 20, 2003.

3. The Member was employed at the [facility] from January 25, 2006 to February 19, 2010.

4. The Member worked as a full-time RN on an 11-bed Intensive Care Unit (the “Unit”) that supports critically ill patients.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

5. [The co-worker] is a [ ] RN who has been registered with the College since 1985. [The co-worker] was [ ] years old at the time of the incidents described below.

6. [The co-worker] worked on the Unit as a full-time staff nurse at the time of the incidents described below.

7. [The co-worker] did not know the Member either personally or professionally before [the co-worker] started working on the Unit. [The co-worker] and the Member did not interact or have a relationship outside the workplace.

8. Between March and June, 2009, the Member and [The co-worker] were providing care to an unconscious male client and were behind the curtain on opposite sides of the bed. The Member manipulated the client’s arm and hand in a manner that [the co-worker] perceived to be toward [the co-worker’s] [chest].

9. On or about August 27, 2009, [the co-worker] asked the Member to assist [the co-worker] with cleaning an incontinent unconscious client. [The co-worker] had a pre-existing back injury and had lowered the client’s bedrails in order to be closer to the client. The Member reached over the client and grabbed [the co-worker’s] [chest] three times as [the co-worker] was holding the client.

10. If [the co-worker] were to testify, [the co-worker] would say that [the co-worker] could not back away as [the co-worker] was holding the client. [The co-worker] would also say that [the co-worker] told the Member something to the effect of “go away” or “get out of here,” but that the Member did not respond to [the co-worker’s] request to stop. [The co-worker] would also say that the Member grabbed [the co-worker’s] [chest] harder each time and hurt [the co-worker’s] nipple.

11. The Member admits that he grabbed [the co-worker’s] [chest] three times. If he were to testify, he would say that the first time he grabbed [the co-worker’s] [chest] was by mistake and that the subsequent times were intentional. He knew it was wrong and couldn’t explain why he continued to touch [the co-worker’s] [chest].

12. On or about September 6, 2009, both [the co-worker] and the Member were scheduled to work the night shift. As [the co-worker] approached the Facility, [the co-worker] saw the Member sitting on a bench. The Member followed [the co-worker] into the stairwell and told [the co-worker] that [the co-worker] “looked hot.” The Member reached toward [the co-worker] with his left hand and poked or tapped [the co-worker’s] buttocks.

13. If [the co-worker] were to testify, [the co-worker] would say that [the co-worker] screamed and was told by the Member to “shhh.”

14. The Member acknowledges that this incident was a “horrible act” done toward his co-worker.

15. In response to all of the above noted conduct, the Member provided a written apology to [the co-worker]. In this apology, the Member acknowledged that he was ashamed of his actions and that he had harmed his own reputation and the reputation of the profession. The Member acknowledged that his actions described above were inappropriate.

16. The Member’s conduct as described above amounted to sexual harassment of his co-worker.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

17. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1(a)(i), 1(a)(ii), 3(a)(i), 3(a)(ii), 3(b)(i), 3(b)(ii), 3(b)(v), 3(b)(vi) of the Notice of Hearing, and in particular that he failed to meet the standards of practice of the profession and his conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 8-16 above.

Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a)(i)(ii); 3(a)(i)(ii); and 3(b)(i),(ii),(v)(vi) of the Notice of Hearing. As to allegation 3, the Panel finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional conduct.

As to allegations 1(a)(iii)(iv), 2 and 3(a)(iii)(iv) and 3(b)(iii)(iv) of the Notice of Hearing, College Counsel advised that she was not calling any evidence in respect of them. Accordingly, the Panel dismisses allegations 1(a)(iii)(iv), 2 and 3(a)(iii)(iv) and 3(b)(iii)(iv) in the Notice of Hearing.

Reasons for Decision

The Panel found that the Agreed Statement of Facts was clear and supported the allegations made.

The Member’s conduct included inappropriate personal comments towards a colleague, as well as the touching the colleague in a sexual manner. On at least one occasion, this was done in the presence of a client.

Unprofessional conduct includes a serious or persistent disregard for one’s professional obligations. Failure to live up to the standards of practice demonstrates that a member is not professional. Dishonourable conduct has an element of moral failing. Disgraceful conduct also has an element of moral failing as well as the effect of shaming the member and by extension the profession. These factors were evident in the Member’s conduct.

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 requests that this Panel make an order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within three (3) months of the date of this Order.

2. Directing the Executive Director to suspend the Member’s certificate of registration for four (4) months. This suspension shall take effect from the date of this Order 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 two (2) sessions with a Nursing Expert (the “Expert”), at his own expense. The first session shall be within four (4) months of the date of this Order, and the second session shall be within eight (8) months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in professional standards, has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings, and has confirmed he/she will provide a report following the sessions;

ii. At least 7 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 Penalty, and

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

iii. Before the first meeting, the Member reviews the following College publication and completes the associated Reflective Questionnaire and online learning module:

1. Professional Standards (Revised 2002)

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 7 days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaire, online participation form 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, and

4. the publications, questionnaire and module set out above;

vii. Within 30 days after the Member has completed the last session, 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 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 limitations on his certificate of registration;

b. For a period of 18 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. Provide 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 agrees to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

iv. 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 the principles of sanction are being protection of the public, deterrence of future misconduct by the Member and other members of the profession, rehabilitation of the Member’s practice and admonishment of the Member for his conduct.

The Member’s conduct constituted sexual harassment; it was deliberate and at least once was conducted in the presence of a client. However, the Member’s conduct is mitigated by his voluntary admission and his apology to his co-worker. This was the first time that allegations of professional misconduct have been made against this Member. He has co-operated fully with the College and in these proceedings. These factors make the proposed penalty an appropriate one.

Penalty Decision

The Panel accepts the Joint Submission as to Order and accordingly orders that the Member appear before the Panel to be reprimanded within three months of the date of the Order. The Panel directs the Executive Director to suspend the Member’s certificate of registration for a period of four months, to take effect of the date of the Order and to run without interruption. Further, the Panel directs the Executive Director to impose the terms, conditions and limitations on the Member’s certificate of registration as set out in the Joint Submission on Order.

Reasons for Penalty Decision

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

The reprimand serves to admonish the Member and expresses disapproval for his inappropriate conduct. The suspension of four months acts as a specific and a general deterrent to the Member and other members of the profession. The terms, conditions and limitations imposed on the Member’s certificate of registration provide public protection and an opportunity for the member to rehabilitate and remediate his practice.

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:

Marianne Fletcher, RN

Margaret Tuomi, Public Member