College of Nurses of Ontario v. Leonid Kozlov, 2012 ONCNO 102108 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Kimberly Jinkerson, RPN Chairperson Dennis Curry, RN Member Michael Hogard, RPN Member Gino Cucchi, Public Member Margaret Tuomi, Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO (EMILY LAWRENCE for College of Nurses of Ontario)

and -

LEONID KOZLOV Registration No. JH707768 (NO REPRESENTATION for Leonid Kozlov)

LUISA RITACCA Independent Legal Counsel

Heard: December 13, 2012

DECISION AND REASONS

This matter came before a Panel of the Discipline Committee on December 13th 2012 at the College of Nurses of Ontario (the “College”) at Toronto.

College Counsel requested that a publication ban of the name of the client and facility involved in the allegations be ordered. The Member did not oppose the request. The Panel granted the ban of the client’s name and facility involved.

The Allegations

The allegations against Leonid Kozlov the (“Member”) as stated in the Notice of Hearing dated November 15, 2012, are as follows.

IT IS ALLEGED THAT:

You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that on January 30, 2012, in the Ontario Court of Justice in [ ] Ontario, you were found guilty of an offence relevant to your suitability to practise, and in particular, you were found guilty of an offence that:

a) On or about the 4th day of April in the year 2011 [ ], you did commit a sexual assault on [the Client], contrary to s. 271 of the Criminal Code of Canada;

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 working as a Registered Practical Nurse for [the facility] in [ ] Ontario, you sexually abused a client, as follows:

a) on or about April 4, 2011, you engaged in touching of a sexual nature of a client, [ ], and/or engaged in behaviour of a sexual nature towards a client, [ ], by repositioning [the Client] and [the Client’s] bed, partially removing [the Client’s] nightgown, completely removing [the Client’s] diaper, exposing [the Client’s] buttocks, and masturbating or attempting to masturbate in the presence of [the Client];

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 working as a Registered Practical Nurse for [the facility] in [ ] Ontario, 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 April 4, 2011, you engaged in touching of a sexual nature of a client, [ ] and/or engaged in behaviour of a sexual nature towards a client, [ ] by repositioning [the Client] and [the Client’s] bed, partially removing [the Client’s] nightgown, completely removing [the Client’s] diaper, exposing [the Client’s] buttocks, and masturbating or attempting to masturbate in the presence of [the Client]; and/or

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 working as a Registered Practical Nurse for [the facility] in [ ] Ontario, 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:

Counsel for the College advised the Panel that the College was not calling any evidence with respect to the allegations set out in paragraph 3 a) of the Notice of Hearing.

Member’s Plea

Leonid Kozlov denied the allegations set out in the Notice of Hearing.

Overview

The Member was registered with the College of Nurses (CNO) as a Registered Practical Nurse (RPN) since 2008. He worked in the Facility part time since 2005. The Facility was a long term care home which provided a full range of service and around-the-clock nursing care. The Facility featured seven floors housed in two wings, C-side and the W-side. The Member was assigned to the C-side which houses the male residents. Each nurse was assigned and was exclusively responsible for a section on their floor.

On April 4, 2011, at approximately 03:05, the head nurse assigned to a portion of the W-side went to check on the [the Client] and found the Member standing by [the Client’s] bedside with his pants lowered close to his knees. The Member was observed masturbating. [The Client’s] diaper had been removed, [the Client’s] nightgown had been partially removed exposing [the Client’s] buttocks, [the Client] had been repositioned on [the] bed and [the] bed had been raised.

When the staff member confronted the Member he followed her out of the room and said, “You did not see anything. You did not see anything.” He asked his co-worker to return to the room with him in order to fix [the Client].

The police officer arrived shortly afterward, and the Member was arrested and charged with sexual assault.

The issues are as follows:

(a) Was the Member found guilty of sexual assault before an Ontario Court?

(b) Did the Member engage in touching of a sexual nature and engage in behaviour of a sexual nature toward a client?

(c) Did the Member engage in conduct or perform an act relevant to the practice of nursing that would be reasonably regarded by members as disgraceful, dishonourable and unprofessional?

As described below, the College’s evidence consisted entirely of documentary evidence.

The Evidence

The College provided the Panel with a copy of a certified court transcript, which documented the Member’s guilty plea in relation to charges of sexual assault. The guilty plea proceedings took place on January 30, 2012 [ ] (Exhibit #2). Exhibit #3, the certified information of [the Officer] of the [ ] Police Service, confirmed the charges and the finding of guilt related to the charges of sexual assault. Finally, the College provided the Panel with a copy of the sentencing proceedings in relation to the criminal charges, which took place at [ ] Ontario, on March 29, 2012.

The documents confirmed the following:

(a) The Member was found guilty of sexual assault before an Ontario Court; and

(b) The Member did engage in touching of a sexual nature and engaged in behaviour of a sexual nature toward the client.

The Member submitted no evidence of his own. He addressed the Panel by stating that the two documents presented to the Panel were irrelevant. He admitted that he was sentenced to jail for eight months then transferred to a mental hospital for four months. He indicated that at this time the College proceeded to “harass” him while he was a patient and not a nurse. He also told the Panel that he was sick and should not be before the College. The Member argued that the Panel ought not to rely on court transcripts, but failed to provide any cogent reason why it should not.

Final Submissions

College counsel submitted that the Panel could rely on the certified copies of the Court proceedings as evidence of the Member’s guilt and as proof of the underlining facts. The College submitted that the conviction is relevant to the Member’s suitability to practise nursing. The incident occurred in the context of a nursing relationship and amounted to the exploitation of a person for the Member’s own sexual gratification. The College submitted that the client was extremely vulnerable and was unable to report the incident, in light of [the Client’s] cognitive impairment.

College counsel argued that this behaviour was incompatible with the trust and responsibility given to nurses.

College counsel further submitted that the Member admitted through his testimony in court (exhibit #2), that he undressed the client, removed [the Client’s] diaper, and rolled [the Client] onto [the Client’s] side and that he had no clinical reason to do so, as he was not assigned to provide nursing care.

College Counsel also submitted that the Member’s behaviour cast serious doubt on his moral fitness and inherent ability to discharge the high obligations and the public’s expectations that nurses must meet. She also said that the Member’s behaviour was a serious breach of trust and falls below the standards of practice of the profession. College counsel also submitted that the Member’s conduct was unprofessional and was a serious disregard for the professional obligations and fundamental values of nursing. The Member did not act in the best interest of the client which is to do no harm.

The Member submitted that he spent four months in a jail and four months in a “mental hospital”. While he did not testify, in his submissions he attempted to deny the underlining facts (those very same facts he admitted during his criminal proceedings) and in doing so, accused the College of harassing him while he was incarcerated and receiving psychiatric care.

Decision

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.

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), 2 a) and 4 a) of the Notice of Hearing. In particular, the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable, disgraceful and unprofessional by sexually assaulting a vulnerable elderly client.

As to allegation 3 a), the College did not call any evidence to support the allegation. Accordingly, the Panel made no finding on allegation 3 a) in the Notice of Hearing.

Reasons for Decision

The Panel found that the behaviour of the Member was disgraceful, dishonourable and unprofessional as it constituted a most serious offence of sexual abuse. This was borne out by the evidence contained in exhibits #2, #3 and #4. The College provided the Panel with a copy of a certified court transcript, which documented the Member’s guilty plea in relation to charges of sexual assault, and the finding of guilt related to the charges of sexual assault. The Panel found that this evidence was more than sufficient to support the allegations. The Panel relied heavily on the certified copy of the court transcripts. The evidence was clear, cogent and convincing.

Penalty

Penalty Submissions

The College submitted that having found the Member guilty of professional misconduct by sexually abusing a patient, the mandatory penalty is revocation of the Member’s certificate of registration and a reprimand (see s. 51(5) of the Code).

The Panel heard submissions by the Member who reminded the Panel that he was incarcerated and had recently been discharged from a psychiatric facility. He submitted that he felt as though he were alone and that nobody wants to listen to him. The Member made other comments that were, with respect, irrelevant to penalty. He made comments to the effect that there were too many [ ] around him and that regardless he had never raped or attempted to rape any of them.

Penalty Decision

The Panel makes the following order as to penalty:

That the Member be issued an oral reprimand
That the Member’s certificate of registration be revoked

Reasons for Penalty Decision

Section 51(5) of the Code requires this Panel to impose a penalty of revocation and reprimand where there has been a finding of professional misconduct as a result of sexually abusing a patient. The Panel is mandated by the statute to impose this penalty. In any event, the Panel believes that this penalty is appropriate in that it provides public protection, and sends a message to the membership and the public that this behaviour is unacceptable.

The Member’s act was so serious that he should not be allowed to remain in the profession. The Member’s actions were a blatant example of his lack of respect for the public and public safety.

I, Kim Jinkerson, 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:

Dennis Curry, RN Michael Hogard, RPN Gino Cucchi, Public Member Margaret Tuomi, Public Member