College of Nurses of Ontario v. [The Member], 2013 ONCNO 101025 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL:

Zahir Hirji, RN Chairperson

Michael Hogard, RPN Member Miranda Huang, RN Member Debra Mattina Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) LINDA ROTHSTEIN &

) EMILY LAWRENCE for

) College of Nurses of Ontario

and - )

) CAROL STREET for

[THE MEMBER] ) [The Member]

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: January 23-24, 2013,

February 4-6, 2013, May 29-30, 2013,

November 4-6, 2013, December 9-12, 2013, December 18-19, 2013, May 12-14, 2014 and May 21-23, 2014

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on 22 hearing dates spread out from January 23, 2013 to May 23, 2014 at the College of Nurses of Ontario (“the College”) at Toronto.

Publication Ban

There is a publication ban prohibiting the publication or broadcasting of the name of the [client] in this matter, and any information that would tend to identify her.

The Allegations

The allegations against [the Member] as stated in the Notice of Hearing dated July 24, 2012 are as follows.

IT IS ALLEGED THAT:

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 on or about December 9, 2009, while working as a registered nurse at [the Facility], you abused a client known as [the Client] verbally, physically or emotionally.
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 about December 9, 2009, while working as a registered nurse at [the Facility], you engaged in conduct or performed acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular with respect to your assessment, care and/or documentation of a client known as [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 on or about December 9, 2009, while working as a registered nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet a standard of practice of the profession with respect to your assessment, care, and/or documentation of a client known as [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(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.

The Plea

The Member denied the allegations set out in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations against the Member on the balance of probabilities using clear, cogent and convincing evidence.

Overview

The hearing of the allegations against the Member [was] heard jointly with allegations against another member of the College, [RN A]. Both members were represented by separate counsel and the decisions resulting from the panel’s deliberations have been issued separately. This decision and reasons for decision speaks specifically to the allegations against [the Member].

The Member graduated with a diploma in nursing [ ] in 1995. She was registered with the College in 1995. The Member first practi[s]ed as a nurse in [another jurisdiction] and then returned to Ontario after a couple of years to work at [a hospital] as well as an in-home health care provider. She left [the hospital] when it closed. At the time of the alleged incident, the Member was working at [the Facility], and had been a nurse on the unit referred to as [the unit] for approximately 13 years. On the day shift (7:00 am to 7:00 pm) of December 9, 2009, the Member was the acting charge nurse, a position she was frequently assigned to fill on short notice.

In her role as charge nurse, the Member was required to ensure all staff were present at the commencement of the shift. If nursing staff were absent, she was required to call in replacements. If staff called in ill for the shift following her shift, it was her responsibility to try to call staff in so that there would be a full complement of staff for the commencement of the next shift. The process of calling in staff involved calling all RNs and RPNs on a list and to continue calling until the charge nurse found someone to come in. It can be a very lengthy process at times.

The charge nurse was expected to review and have knowledge of each of the [clients] on the ward at all times and at times assist in their care. The role of charge nurse also required her to attend bed management meetings at least twice daily and to provide education sessions for staff members each Wednesday.

The position required the Member to be a resource for all nursing staff as well as the ward clerks. She would frequently be asked questions and would also assist other nursing staff with difficult assignments. The Member relieved the ward clerks for their breaks so there would always be someone in attendance at the nursing desk.

As charge nurse, the Member would assess isolation [clients] to evaluate if or when they could come out of isolation. The Member had some expertise in intravenous insertions and in ostomy care and staff would request her assistance when they encountered difficulty with these matters.

At the time of the alleged incident, the [Facility] had just implemented a new staffing model. The previous model of one RN to five [clients] was replaced with one RN and one RPN to nine [clients]. The model called for the RN to assume responsibility for the [clients] requiring more complex care and for the RPN to assume nursing care of those [clients] whose care was less complicated. As a result of this change in the staffing model, there were a number of inexperienced new grads hired to fill the staffing complement. In her role as acting charge nurse, the Member was expected to provide support for these new grads and be a resource for their questions.

The Member testified that in her role as a charge nurse it was not uncommon to receive requests from [clients] to have a different nurse. She said that the charge nurse would then accommodate the request and keep a record of the request for future scheduling assignments. The Member stated that if a [client] requested that she speak with them, she would go and talk to the [client]. She said in her experience, most [clients] who have concerns do ask to speak to the charge nurse. The Member explained that if a [client] was asked if they wanted to talk to the charge nurse and responded that they did not want to talk to the charge nurse, [ ] she would infer that there was no issue that required her to meet with the [client].

The Member described the day shift of December 9, 2009 as very busy. Along with all her other duties, she was trying to replace two staff members for the night shift commencing at 7:00 p.m. that evening.

During the day shift of December 9, 2009, at approximately 3:00 p.m., one of the RNs, [RN B], came to the Member’s office to discuss a matter regarding [the Client] and the care [the Client] had received on the previous night shift.

[The Client] alleges that [RN A] sexually abused her during a catheterization he performed on the evening of December 8, 2009. The truth of those allegations is not relevant to the allegations against this Member. The issue as against the Member is not whether [RN A] did, in fact, sexually abuse [the Client]. Rather, the essential issue is whether the Member met the standard of care required of her in light of what the Member was told about [the Client’s] allegations.

At the close of the evidence, the College indicated that it was not seeking a finding on allegation #1, the allegation that this Member abused [the Client] verbally, physically or emotionally. However, the College asked for a finding that the Member’s inaction with respect to her assessment, care and/or documentation of the alleged incident constitutes unprofessional conduct; that the Member failed to meet the standard of practice of the profession; and that the Member breached section 85.1 of the Code which requires members to file a report with the College if they have reasonable grounds, obtained in the course of practising the profession, to believe that another member of the same or a different College has sexually abused a [client].

The central factual issues in this matter were what was reported to the Member, and how did she respond. In order to determine if the Member committed professional misconduct, the panel was required to make findings on a number of questions:

What did [the Client] tell [RN B]?
What did [RN B] tell the Member?
What was the Member’s response to the information she received from [RN B]?
Were the Member’s actions reasonable in light of the information she was provided?

With respect to the allegations against the Member, the evidence relevant to her actions was provided by [the Client], [RN B], the Member herself, and the two nursing experts, [ ]. Most of the evidence of other witnesses was not relevant. Even [RN A]'s evidence was not relevant. The Member’s interaction with [RN A] was well after her conversation with [RN B], which would have been the triggering event that would have required the Member to initiate a response to the allegations if in fact it could be determined that she should have known the "true nature" of the allegations. The Member can only be judged on what she knew and what she did immediately surrounding the discussion she had with [RN B] on December 9, 2009.

Finding

The panel dismisses all allegations against the Member.

The Evidence

What did [the Client] tell [RN B]?

The Evidence

The panel heard evidence from both [the Client] and [RN B].

The [the unit] at [the Facility] is a post-surgery unit providing care to gastrointestinal and gynaecological clients. [The Client] went to the unit on December 8, 2009, following an abdominal hysterectomy she had earlier that day. [RN A] was [the Client’s] nurse on her first night shift on the unit. [The Client] alleges that in the course of performing a catheterization, [RN A] sexually assaulted her. She made no report of the assault at the time.

[RN A]’s shift ended at 7:00 am on December 9, 2009. A new nurse, [RN B], came on shift to care for [the Client]. [The Client] testified that when [RN B] came on shift, the following occurred:

"[RN B] came into my room and she was very cheery and happy and bubbly...not bubbly. That's not the right word, but she was very happy and seemed to really like her job and she was, like, "Good morning, [Client]. Here's some underwear," which she put on my bed and a clean maxi pad and, "We're going to get you up to have a shower today. Do you think you can do that?"

According to [the Client]’s recollection, this occurred at her first interaction with [RN B]. [The Client] went on to say, "I didn't disclose anything to her at first because I still wasn't sure if that was something that I could do. And you know, she did her normal nursing things, blood pressure, temperature, got me up to take a shower, which was great, and...you know, nothing really stands out, you know, except that she was...I was relieved to have her." [The Client] went on to describe in her testimony that [RN B] got her up and took her to a [client] shower room and assisted her with having a shower. She described the shower as "Great."

[The Client] testified that "when she [RN B] finished draining my bladder, she pulled out the catheter and I started to cry, but it was like...like, I burst and I said to her, "There's something that I have to tell you." And she said, "What is it?" And I said, "The nurse that was on before you touched me inappropriately." And I was talking very fast and I was crying and I said, "Why did he do that? He didn't give me underwear. He didn't...he pulled the sheets down below my knees. Why did he do that?" And I was just crying and she said to me... when I said he had touched me inappropriately she said...she looked at me and she said, "What do you mean?" And I said, "He touched my clitoris area." and she said to me...I said to her, "You know, I don't want him anywhere near me. Is he coming back?" And she said, "Yes he is. He's on the next shift." And again, I said, "I don't want him anywhere near me." And I was just talking and crying, and then she left the room and the curtains were pulled around me and I was still crying, and she didn't come back to see me. She just left the room, and no one came back to see me. And I was sitting up in my bed at the time, crying, and I can see her feet walk to the front of the curtain in front of my bed as she went and attended to [the client] in the bed beside me. And I could see her feet as she left the room and she did not come back.”

[The Client] proceeded to relate that she had another interaction with [RN B] later that day. [The Client] said she could not be sure of the time but she said "It was just, like, a regular rounds check and nothing was mentioned about what I had told her about being touched inappropriately by [RN A]." Counsel asked whether [the Client] raised the subject with [RN B] again and [the Client] responded, "No, I did not."

Describing a further interaction with [RN B], [the Client] stated that [RN B] was in her room and had just given her Gravol for nausea. [The Client] said that as [RN B] was leaving the room, [the Client] asked her what was happening. [RN B] said, "What do you mean?" [The Client] asked her, "Is he coming back?" [RN B] said, no, that he had been reassigned to another area. [The Client] asked, "Does he even know?" [RN B] looked at her and said, "Do you want him to?" [The Client] says she told [RN B], "Of course I do." [RN B] then asked, "Would you like to speak to the charge nurse?" [The Client] replied, "No, I want to be left alone."

During cross-examination, [the Client] confirmed that she confided in [RN B] that she had concerns about her surgery, about being unable to urinate and her [child] getting to school. She confirmed that she became tearful in talking to [RN B] about these things.

In cross-examination, counsel asked, "Now, I take it that you have assumed that because [RN A] was not assigned to you that night that the charge nurse had been told that you were alleging that [RN A] had sexually assaulted you?" and [the Client] replied, "Yes, I would assume that."

Counsel asked "And that's notwithstanding that you never communicated directly to her [the Member] an allegation of sexual assault or inappropriate touching. You never did that?" and [the Client] replied, "Not to [the Member], no. I never spoke with [the Member]." Counsel went on to ask, "And at that point when you were having, I think, the second discussion with [RN B], tell me if I'm wrong about that, that's when [RN B] asked you specifically, "Do you wish to speak to the charge nurse?" And you said no?" [The Client] confirmed: "And I said no."

Following this exchange, the Member’s counsel suggested that, in hindsight, [RN B]’s behaviour was more consistent with her not understanding what [the Client] was trying to say. [The Client] responded: "She obviously didn't understand what I said because she didn't do anything. Should she have understood what I was talking about, being a nurse and looking at me and the state of mind I was in, the emotional mess that I was in? Crying and telling her I didn't want him near me and telling her he touched my vagina inappropriately? I was crying and sobbing. You tell me if a nurse should have known what that meant."

[RN B] also testified as to what she recalled of her interactions with [the Client]. At the time of this hearing, [RN B] had been a nurse for more than 23 years. For most of that time she has worked on the same unit at the same facility. [RN B] worked both day and night shifts at [the Facility]. She often worked as a charge nurse, which she estimated at 90 percent of the time on night shift and less frequently on day shift. On December 9, 2009, she was working day shift which commenced at 7:00 a.m. [The Client] was assigned as one of four [clients] she was responsible for.

[RN B] testified that her first interaction with [the Client] was in the morning just after 7:00 a.m. She went into the room and introduced herself to [the Client], did her vital signs, checked her PCA pump, and checked her incision. During these initial interactions with [the Client], [RN B] denied seeing any indication that [the Client] was upset or agitated in anyway. [RN B] stated that [the Client] said nothing at all regarding [RN A].

[RN B] explained to the panel that legally she was required to attend to her [clients] at least once per hour, but she said that she observed [the Client] more often than that because the [client] in the bed next to [the Client] required assistance frequently and [RN B] would observe [the Client] while she was there.

[RN B] testified that she performed a bladder scan to check for urine retention on [the Client] between 7:00 a.m. and 8:00 a.m., shortly after she observed [the Client] had voided in the "hat" in the bathroom. [RN B] stated that [the Client] said nothing to her at that time about [RN A] and that there were no signs of her being upset. At approximately 9:45 a.m., [RN B] removed the PCA pump and gave [the Client] a dose of Oxycodone orally which had been ordered to replace the PCA pump by the physician who saw [the Client] at 8:45 a.m. There was still no indication that [the Client] was upset about anything.

[RN B] said that sometime between 10:00 a.m. and 11:00 a.m., while she was making [the Client]'s bed, she had a conversation with [the Client]. She described [the Client] as upset, with tears welling up in her eyes, sitting in the chair in her room and telling [RN B] that she was concerned about her [child] getting on the school bus. [RN B] said [the Client] also expressed concerns about her surgery and her frustration in not yet knowing whether or not her ovaries had been removed. As well, [the Client] voiced concerns about the difficulty she was experiencing with voiding and the possibility of having to self-catheterize after being discharged from the hospital. [RN B] described [the Client]'s tearfulness and concerns as being typical of post hysterectomy [clients] and said she listened sympathetically to [the Client]'s concerns.

[RN B] stated that at 11:30 a.m., she assisted [the Client] with washing at the sink in her room. [RN B] denied that she had given [the Client] a shower and said, "No, I didn't. She had a big large incision over her suprapubic area, and we are not to shower people with incisions." In support of this statement, [RN B] then explained [ ] part of [the Client’s] chart. Under the section titled "Bathing", [RN B] charted at 11:30 a.m. that, "bathing occurred at the sink." After assisting [the Client] at the sink, [RN B] stated that she gave [the Client] mesh panties and a fresh peri pad. [RN B] explained that [the Client] was wondering why she had given her the mesh panties and [RN B] said she explained to [the Client] that it is common to have vaginal discharge after a hysterectomy, and she felt it would make [the Client] more comfortable to have something in place when she was up moving around. [RN B] denied that [the Client] made any remarks about [RN A] at this time. [RN B] testified that during this period of time, [the Client] showed no signs of being upset.

[RN B] stated that between 12:00 and 12:30 p.m. she noted that [the Client] had voided approximately 200 cc’s of urine. She testified that she then did another bladder scan on [the Client] to determine the amount of post-void urine retention. The scan revealed that there was residual urine in the bladder of greater than 700 cc's. At that time, she informed [the Client] she would need to perform an in/out catheterization. [RN B] stated that during the bladder scan, [the Client] did not make any comments and she did not appear upset.

[RN B] stated that around 1:30 p.m. she performed an in/out catheterization on [the Client]. During the procedure, [the Client] complained of a burning sensation while the catheter was being inserted. There were no tears. [The Client] said nothing else. [RN B] drained approximately 1000 cc's of urine. [RN B] stated that after she removed the catheter, [the Client] began to cry. On a scale of 1 to 5, she rated the crying at 2. She said there was no sobbing but there were tears. [RN B] said that at this point, [the Client] mentioned for the first time that [RN A] had not given her mesh panties and she wanted to know why. [RN B] stated that she explained to [the Client] "in the night-time there is not as much movement up and down from the bed, so some nurses do provide them, some nurses don't provide them.”

[RN B] said [the Client] then went on to say that she thought [RN A] had pulled the covers down too far when he did the bladder scan, and that he had flopped her legs open. [RN B] remarked that she thought the comment about flopping her legs open was unusual as [the Client] was in complete control of her legs. [RN B] testified that [the Client] said that [RN A] may have touched her clitoris while performing the catheterization. [RN B], throughout the conversation, thought that [the Client] was simply commenting on the differences in nursing care. [RN B] explained that it was difficult to visualize [the Client’s] urethra for catheterization because she was quite swollen post surgery. She said "sometimes you have to reposition your fingers. Having a glove and slippery skin to, sort of, hold open, and during the cleansing as well, there is always the potential for touching of the clitoris."

[RN B] testified that at no time did [the Client] state that she had been "inappropriately touched" by [RN A]. [RN B] said that would have been a red flag for her that something more was wrong, but following the discussion with [the Client], [RN B] did not think there was anything more wrong than [the Client] simply being uncomfortable with having a male nurse. [RN B] testified that it is not at all uncommon for a female gynecological [client] to request a replacement for a male nurse. [RN B] acknowledged that she did not ask any clarifying questions. The reason was that, "there was no indication that she was verbalizing she had been touched inappropriately, and, as I say, no red flags, so I didn't."

[RN B] stated that, in addition to being uncomfortable with having a male nurse, she thought [the Client] was likely upset by the concerns she had expressed earlier about her frustration about not voiding, frustrations about not knowing exactly what procedure they had done during surgery, and concerns about her [child]. [RN B] said, "She had a lot of issues and probably a lot on her mind."

[RN B] testified that during the conversation, [the Client] was emotional, but she was not hysterical or loud, and that though tearful, she was speaking in a normal voice.

After cleaning up from the catheterization, [RN B] told [the Client] that she would speak to the charge nurse (the Member), and look at the [client] assignment for that evening to see if [RN A] was returning. If he was scheduled for the same [client] assignment, she would make sure he was not coming back. [RN B] stated that at this point, [the Client] had “settled”, and that while she still had tears in her eyes, she was not actively crying.

Following this, [RN B] left the room. She stated: "I didn't consider it urgent. The charge nurses don't do the [client] assignments until later in the day, closer to 7:00 p.m., and I felt we had time to look at the assignment, and see who was coming in." When asked why she did not consider it urgent, [RN B] replied, "Because there was no indication of any inappropriate touch. It was a complaint of [client] care."

[RN B] stated that before she left the room, she opened the curtains around [the Client]'s bed. She stated that she saw [the Client] at least once an hour after that while giving meds and doing routine checks.

At 4:00 p.m., [RN B] performed her medication rounds and attended to [the Client] to give her some Tylenol. [RN B] said, "When I went in the room, and provided the medication, I told her that [RN A] would not be her nurse tonight, that she would be having [Nurse C], who was an excellent nurse." [RN B] said [the Client] seemed fine with this information and was not crying. [RN B] said that [the Client] didn't ask to speak to the charge nurse at all. [The Client] asked [RN B] if [RN A] would know why he wasn't coming back into her room and why he wasn't taking care of her. [RN B] told [the Client] that the Member would speak to [RN A] when he came in, just to let him know what [the Client] requested and that she was not happy with his care. [RN B] stated that [the Client] seemed to be fine with that solution.

[RN B] observed [the Client] regularly in the course of her care, and did not observe any more crying for the remainder of her shift. She stated that that [the Client] said nothing more to her about [RN A] for the remainder of the shift. [RN B] reiterated that as far as she was concerned at the time, [the Client] was uncomfortable with having a male nurse, and that she was comparing the differences between nurses and how people do things differently.

What did [RN B] tell [the Member]?

The evidence on this point came from [RN B] and the Member, and was consistent.

[RN B] and the Member had worked together for approximately 14 years. They both have positive opinions of one another.

[RN B] stated that she talked to [the Member] around 3:00 p.m., which was approximately two hours after her conversation with [the Client] where [the Client] reported her concerns about [RN A]. [RN B] said that she told the Member that [the Client] was upset. She could not specifically recall if she told the Member that [the Client] had been crying. [RN B] told the Member that [the Client] had complained that [RN A] had not provided her with mesh panties, that [the Client] had said [RN A] had flopped her legs open and lowered the blankets too far, and that [the Client] thought [RN A] may have touched her clitoris during catheterization.

When asked if she had told the Member that [the Client] had said that [RN A] had touched her inappropriately, [RN B] replied, "No, I did not." She explained that [the Client] had not expressed any indication that it was a report of sexual assault and [RN B] confirmed once more that at no time did [the Client] mention the words "inappropriate touch".

[RN B] stated that she and the Member looked at the schedule and determined that [RN A] was not booked to work the same assignment that evening and that [Nurse C] was scheduled to be [the Client]'s nurse on the shift. [RN B] and the Member thought that [Nurse C] would be an excellent nurse for [the Client], as [Nurse C] was a seasoned veteran nurse [ ] who possessed a very nurturing nature. They both felt her approach to nursing would be good for [the Client] and it would provide her with a lot of emotional support.

[RN B] stated that following this discussion about the schedule, the Member asked her if she should go speak to [the Client]. [RN B] told the Member that [the Client] said she did not want to speak to the charge nurse when [RN B] had offered.

The Member testified that she had worked with [RN B] many times and that [RN B] was a very credible nurse and that she could rely on [RN B]'s judgment. The Member said she knew [RN B]'s work ethic and she never felt she needed to question what [RN B] told her. The Member stated that around three in the afternoon on December 9 2009, [RN B] came to speak to her in the charge nurse office. The Member said that at that time she was still making calls trying to locate two staff to come in for night shift. According to the Member she had less than four hours to try to find two staff for the night shift so there was a level of urgency to the task. Counsel asked the Member to relate to the panel her impression at the end of the discussion with [RN B] as to what the nature of the complaint made by [the Client] was. The Member replied that it was her impression that the complaint was an issue of nursing care; that she had not wanted a male to take care of her.

As to the specifics of the conversation, the Member recalled [RN B] saying when she came into her office that [the Client] was upset because [RN A] had not given [the Client] mesh panties. The Member stated that [RN B] also told her that [RN A] had pulled the sheets down too far and flopped [the Client]'s legs open. The Member said that [RN B] told her [the Client] also complained that during the catheterization [RN A] may have touched her clitoris.

The Member stated that [RN B] told her she thought it was a complaint of personal care and that she did not want to have a male nurse take care of her. The Member acknowledged that she had been told that [the Client] was upset. However, she had no idea that [the Client] had been teary or crying. The Member stated that there was no policy regarding providing a [client] with mesh pants, some nurses provided them and some did not. She said there weren't any alarm bells going off as it was brought to her as an issue of personal care and that [the Client] did not want a male nurse. With regard to the sheets being drawn too low, the Member assumed that [the Client] was feeling a little exposed. When asked about her thoughts on flopping [the Client]'s legs open, the Member felt this part of the complaint was difficult to understand, as [the Client] was independent, up and walking, and that a [client] in that condition places their legs themselves. She said she could see it happening with paraplegic or quadriplegic but not an independent [client]. The Member felt that [the Client] would have positioned her legs herself.

As to touching the clitoris, the Member explained that she has done many, many, catheterizations and that she did not find it unusual that [RN A] may have touched [the Client]'s clitoris during catheterization. The Member’s view was that it is very likely that the clitoris could be touched due to a number of factors, such as the proximity of the urethra and the clitoris as well as the requirement to cleanse the entire area. The Member explained that when cleaning the area with a swab soaked in Proviodine, the nurse would do sweeps starting at the clitoris and swiping downward. This aspect of the Member’s testimony was confirmed by every single nurse who testified, including the nursing expert witnesses. The Member also explained that it can be difficult to visualize the urethra.

The Member denied that there was any mention at any time during her discussion with [RN B] that the interaction between [RN A] and [the Client] involved inappropriate touching. The Member said, "[RN B] did not tell me that the [client] told her there was any inappropriate touch at all." When asked what other words may have been used by [RN B] to suggest that the [client] was alleging touching of a sexual nature, the Member replied, "None."

The Member admitted during cross-examination that while it was possible that [RN B] could have said something about inappropriate touching, the Member believed it would have caught her attention if that had been said. If the Member believed this was a complaint of inappropriate or sexual touching, she would have dealt with it, regardless of how busy she was.

The Member related from both personal and professional experience that it is common for women who have undergone a hysterectomy to be upset post surgery. The Member stated that she did not sense any urgency at all during her conversation with [RN B]. She stated, "There was none."

The Member’s understanding of the conversation was that [the Client] did not want [RN A] to be her nurse again because she was uncomfortable with having a male nurse. She stated that it was a common request. The Member testified that after the conversation, she and [RN B] checked the assignment schedule and realized that [RN A] was not scheduled to be assigned to [the Client] that evening, so it was not necessary to make a change in the assignment sheet. The Member stated that after they checked the schedule, she asked [RN B] if she should go talk to the [Client]. The Member said [RN B] told her that she had offered twice to have the Member speak to [the Client] but [the Client] did not want to speak to the Member.

What was the Member’s response to the information she received from [RN B]?

The Member testified that December 9, 2009 was a Wednesday. She stated that she didn't find out that she was scheduled as charge nurse until she arrived to begin her shift at 7:00 a.m. The Member stated that it was a very busy day, busier than average. She stated that being a Wednesday she had a lap fundo class and two bed flow meetings to attend. In addition to her other duties, there were two very sick [clients] on the floor and the Member was trying to help the nurses with the care of those [clients]. The Member stated that these [clients] were not doing well and the workload was heavier than usual. In addition to these other duties, she was trying to find two replacement staff for night shift. The Member stated that her nurse manager, [ ], was not working on December 9, 2009. The Member stated that although nurse managers do cover for each other, she had not been provided with the name of the nurse manager she was to contact if required.

When [RN A] arrived for his shift, [the Member] called him into the charge nurse office and advised [RN A] of the complaint. She testified that she told him [the Client] was upset he hadn’t given her mesh pants, that she thought he brought the blankets down too far and exposed her too much, that he flopped her legs open and that when he catheterized her, she felt that he may have touched her clitoris. [RN A] seemed shocked to her, and asked how he was supposed to catheterize a patient without touching her. He made a kind of joke, asking, "Am I supposed to step back and shoot it in like a dart?" The Member acknowledged his comment but didn’t laugh and wasn’t amused. She was telling [RN A] that a [client] hadn’t liked his care, and that was not an amusing situation for anyone.

The next day, the Member was advised that [the Client] was accusing [RN A] of sexually assaulting her. Until then, the Member honestly had no idea that the complaint was sexual in nature.

The Subsequent Report

A different nurse, [Nurse C], cared for [the Client] on the night of December 9, 2009. [The Client] said nothing to her about [RN A]. The next morning, [the Client] spoke to a friend of hers on the phone. As a result of that call, [the Client] asked to speak to the [Facility] social worker. She told the [Facility] social worker that [RN A] had touched her inappropriately. That triggered a report to the College, an internal investigation at the [Facility] and – eventually – this hearing.

Supporting Documentation

The exhibits relied upon by the panel included [ ] the Agreed Statement of Facts dated September 21, 2012, from the professional discipline hearing at this College regarding [RN B] (the “ASF”). [RN B] had agreed to certain facts, and that those facts constituted professional misconduct. There was joint submission as to penalty, which the panel in that case accepted.

The relevant paragraphs from the ASF are as follows. References in the ASF to “the Member” are references to [RN B].

Following the catheterization, [the Client] told the Member [RN B] that on the previous evening, [RN 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 [RN A] had touched her clitoris while performing catheterization. [The Client] was teary and upset when she spoke about [RN A]'s catheterization the night before. [The Client] was also upset and teary about the surgery that she didn't know the details and about her bladder function.
The Member asked [the Client] if she wanted to speak to the charge nurse. [The Client] declined. The Member did not ask for further information from [the Client]. [The Client] advised the Member that she did not want [RN A] to be her nurse that evening.
The Member told [the Client] that she would talk to the charge nurse and that the assignment would be changed that night.
[The Client] was upset and crying when the Member left the room.
The Member was not able to speak to the Charge Nurse [ ] until approximately 1500. The Member advised [the Charge Nurse] that [the Client] thought [RN A] had touched her clitoris during catheterization, among other things. Together, [the Charge Nurse] and the Member reviewed the schedule for the night shift. [RN A] was not scheduled to provide care to [the Client].
The Member then returned to [the Client]'s room. [The Client] asked the Member what was happening and if [RN A] was coming back to provide care to her that night. [The Client] was teary and upset. The Member advised her that [RN A] would be in another area and would not be her assigned nurse. [The Client] asked if [RN A] knew why he was not assigned to her. The Member asked [the Client] if she wanted [RN 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 [RN 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.
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 [RN A]'s care.
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 [RN 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 [RN A]'s conduct serious[ly], she did not fully appreciate the sexual nature of [the Client]'s complaint.

During [RN B]’s testimony, an objection arose regarding whether [RN B] could give evidence that she understood the ASF to be a compromise between her account and that of [the Client]. As a result of that objection, it was determined that [RN B], whether she believed the agreed facts to be a compromise or not, was stuck with those facts as they were agreed to, and she was not permitted to give any evidence in this proceeding that would undermine the truth of the facts.

The panel accepts that rationale, but would also point out that the same principle should apply to the acceptance of those facts by the College. It tendered evidence that [the Client] recalled reporting to [RN B] that she had been "inappropriately touched". Those two words are not in the ASF.

The panel also had the benefit of being able to review [ ] meeting notes made by [Witness #1], who attended as a union representative with [RN B] at a meeting with the Nurse Manager of [the unit], the Director of Nursing [DON] for [the Facility] and the Human Resources Manager held December 16, 2009. [The union representative] recorded that during the meeting, [RN B] reported to her superiors the following:

"[The Client] said [RN A] flopped her legs open and touched her clitoris. She said she was exposed. [RN B] said the [Client] was upset about the surgery and that she didn't know the details. The [Client] was also upset about her bladder function. The [Client] was teary when she talked about the cath the night before."
"[RN B] said she told [the Client] that she would talk to the charge nurse and that the assignment would be changed that night. She told [the Charge Nurse] everything that she told us. [RN B]'s interpretation/vibe was that the [Client] was uncomfortable with a male nurse."
"[RN B] said that because she had a difficult time cathing the [Client], she didn't think much about it. She said the [Client] seemed down the rest of the day. She said that she talked to [the Charge Nurse] about [Client] assignment for the night shift but learned that [RN A] was not assigned to the [Client]."
"[RN B] said that she told the [Client] that [RN A] would not be her nurse that evening. She also asked [the Client] again if she wanted to talk to the charge nurse. The [Client] said no."
"[The DON] asked if [RN B] thought there had been inappropriate touching. [RN B] said that never occurred to her." [The DON] asked if [RN B] was aware of anything else happening before. [RN B] said no"
"[The DON] asked if she had gotten report from [RN A] on the morning of December 9 at the beginning of her shift. [RN B] said yes. [RN A] told her the [Client] had difficulty voiding but did not tell her how many scans he had done."
"[The DON] asked if [RN B] was aware of mandatory reporting and what would trigger it. [RN B] said yes. Sexual harassment. Child abuse. [The DON] said it seems that this did not occur to you. [RN B] said absolutely not."

There was nothing in [the union representative]’s notes suggesting that [RN B] had been told by [the Client] that [RN A] had touched her inappropriately. There was nothing to suggest [RN B] told the Member that the complaint involved “inappropriate” touching.

The Expert Evidence

The expert tendered by the College, [Expert A], was asked about what she would expect a charge nurse to do if the charge nurse was told by a bed-side nurse that a post-hysterectomy female [client] had complained that during an in-and-out catheterization, her male nurse may have touched her clitoris, the [client] was upset and did not want that male nurse to tend to her care or provide care to her any further. It was [Expert A]’s evidence that the charge nurse would be expected to meet with the [client] and to not pre-judge. She testified that the charge nurse would have to look at the facts that were given from the bed-side nurse, and then would need to follow up with the [client] to verify the nature of the complaint and address the concerns. In cross-examination by the Member’s counsel, [Expert A] agreed that her evidence was based primarily upon her experience and knowledge of the supervisor nurse role at [a particular hospital]. The supervisor nurse role [with] which [Expert A] was familiar is more of an extended role than the job of charge nurse at [the Facility]. [Expert A] also agreed that if the hypothetical changed and there was no report of inappropriate touching or the [client] was not distraught, then her opinion would change.

The expert tendered by the Member, [Expert B], initially formed an opinion that if a bed-side nurse told a charge nurse that a [client] had complained that another nurse had not provided the [client] with mesh pants, that the nurse had pulled covers down low during a bladder scan, and that the nurse had flopped her legs open and may have touched her clitoris during a catheterization, that the charge nurse should have gone and spoken to the [client]. However, when given additional facts, she changed her mind. The additional facts included that Nurse B (the hypothetical name given to [RN B]) has 23 years’ experience, most of it on the floor in question, was asked to fill the role of charge nurse when working on the night shift about 90% of the time, has longer service than the Member and has filled the role of charge nurse more than [the] Member. Based on all the additional facts, [Expert B] concluded that it was not unreasonable for the Member to feel comfortable relying on an experienced nurse who was her senior and who had on occasion been the Member’s charge nurse. She opined that it was appropriate for the Member to ask, “Do you want me to talk to her?” and to accept [RN B]’s response when [RN B] essentially said, “No, I have handled it, don’t worry about it.”

Final Submissions

Both parties presented detailed written and oral submissions, which the panel reviewed carefully. The essence of the College’s submissions was that the Member is a good nurse who made a serious mistake in how she handled the report made to her by [RN B]. According to the College, the Member made many improper assumptions in respect of the complaint that she received from [RN B]. These included assumptions that [the Client] could not have been reporting something sexually inappropriate, because in her view [RN A] would not have done anything sexually inappropriate. As a result of these improper assumptions, the Member failed to investigate [the Client’s] complaints, and failed to communicate the seriousness of them [ ].

The essence of the Member’s submissions was that the Member exercised her judgment appropriately in all the circumstances. At worst, she made an error in judgment which does not meet the threshold for a finding of professional misconduct.

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.

The College did not ask for a finding with respect to allegation 1, and the panel makes no finding. Having considered the evidence and the onus and standard of proof, the panel is unable to find that the Member has committed acts of professional misconduct as alleged in paragraphs 2, 3, and 4 of the Notice of Hearing. Accordingly, the panel dismisses all allegations against the Member.

Reasons for Decision

The panel finds that [RN B] never told the Member that [the Client] had complained that she was "inappropriately touched". Both [RN B] and the Member are consistent on this point and there is no basis to disbelieve their evidence. The ASF from [RN B]’s professional discipline hearing does not refer to any "inappropriate touching." The notes taken by [the union representative] within a week of the incident contain no reference to "inappropriate touching."

The panel did not stop at the question of what [RN B] told the Member. The panel also considered whether [the Client] had told [RN B] that she had been touched inappropriately, as [the Client] says she did. This was the substance of [the Client’s] testimony. [The Client’s] complaint letter to the College, which was received by the College on April 29, 2010 [ ], says that [the Client] told [RN B] that [RN A] had touched her inappropriately. If [the Client] had in fact told [RN B] that she had been touched inappropriately, the panel would expect that the seriousness of this complaint would have been somehow conveyed by [RN B] to the Member, even though [RN B] might not have used those exact words in her conversation with the Member. It would likely affect the overall tone and context of the conversation between [RN B] and the Member. There would likely have been a sense of urgency and importance that the Member would have been required to heed, regardless of how busy the Member was with other matters.

The panel finds that [the Client] did not tell [RN B] she had been inappropriately touched. Both [RN B] and the Member, by all accounts, are well-qualified, highly respected professionals. Would either one or both turn a purposeful deaf ear to a complaint by a [client] that they were "inappropriately touched"? The panel finds that highly unlikely. All the evidence is consistent except for that of [the Client]. The evidence is overwhelming that the phrase "inappropriately touched" was not used by [the Client] in her conversation with [RN B].

Both [RN B] and the Member deny hearing or using those words. [The Client] asserts that she made it very clear to [RN B] what her complaint was about, and she did that by using the words "inappropriately touched." The panel does not find that [the Client] used those words to describe [RN A]'s actions to [RN B]. [The Client] herself asks the most telling question of all when during her testimony she said, "She ([RN B]) obviously didn't understand what I said because she didn't do anything. Should she have understood what I was talking about, being a nurse and looking at me and the state of mind I was in, the emotional mess that I was in? Crying and telling her I didn't want him near me and telling her he touched my vagina inappropriately? I was crying and sobbing. You tell me if a nurse should have known what that meant?"

The answer to that question is a resounding yes. [RN B] should have known what she meant. Any nurse should have known what that meant. The panel is convinced that had those words “inappropriate touching” been uttered, [RN B] would have acted very differently. Therefore the panel finds that those words were not used by [the Client] in the conversation with [RN B] on the afternoon of December 9, 2009.

In considering [the Client]’s and [RN B]’s credibility on this point, the panel examined internal and external inconsistencies in the testimony of the witnesses and the relevant documentation, and applied common sense in arriving at its conclusions.

To the extent that [the Client’s] recollection differs from the recollection of [RN B], the panel prefers the evidence of [RN B]. [The Client] admittedly had no concept of time despite a clock in her room. She was emotionally distraught about her surgery, her children, her [spouse] being away, and she was medicated. More importantly, there were various inconsistencies in her testimony that undermined the reliability of [the Client’s] evidence. She remembers a shower she did not have. She does not remember there being a shower stall in her room. She denies the presence of a "hat" in the toilet despite using it repeatedly. Not only was her recollection demonstrably wrong on these points, but she insisted that her recollection was correct. She could not admit the possibility that her memory was wrong. Her recollection about the details and order of events differed in many respects from the evidence of [RN B]. The evidence of [RN B] - actions, times, details - is solidly supported in the chart.

The panel therefore finds that [the Client] was tearful with [RN B] about a number of issues, some of which related to [RN A]. Her complaints about [RN A] were that he did not give her mesh pants, he pulled the sheets down very low, he had her open her legs, and he had touched her clitoris while performing catheterization. In light of the words [the Client] used (and did not use), [RN B] interpreted this as a [client] complaint about a male nurse’s approach to intimate care. [RN B]’s interpretation affected how she conveyed the information to the Member. There is no evidence [RN B] told the Member that [the Client] was crying or even tearful – only that she was upset. The Member, having worked with [RN B] for years, sometimes in situations where [RN B] was the charge nurse rather than the Member, trusted and relied on [RN B]’s assessment. She ensured that [RN A] would not provide further care to [the Client] and she spoke to [RN A] about it.

Would the Member’s conduct reasonably be considered by members as unprofessional?

Another way to ask this question is to consider whether the Member’s actions were reasonable in light of the information she was provided, or should she have enquired into the matter further?

The evidence is clear that [the Client] said that she did not want to speak to the Member. Should the Member have gone to speak to [the Client] regardless of [the Client]'s wishes? Perhaps, but that depends on what was expressed to the Member. The only people who know what was said in the conversation between [RN B] and the Member have said the same thing. [RN B] did not perceive the complaint as being of a sexual nature but rather one of the [Client] being uncomfortable with a male nurse. [RN B] stated that is what she conveyed to the Member and that is what the Member believed. The Member cannot act on information she does not have.

[RN B] did not perceive [the Client’s] complaint as especially serious, and certainly not as a complaint of inappropriate touching or sexual misconduct. That affected how [RN B] communicated the complaint to the Member. [RN B] was an experienced nurse who often filled the charge nurse role herself. The Member had a justified degree of respect for [RN B]’s judgment and her skill at managing client concerns. Although the Member was the acting charge nurse on that shift, that role could just as easily have been filled by [RN B].

The Member was busy that shift. Although being busy would not have excused the Member’s conduct if she had been advised that the complaint was serious, or that the complaint was about inappropriate touching, it is a factor that is relevant in assessing how charge nurses ought to deal with complaints that are brought to their attention that do not, on their face, raise any red flags. The College argues that the panel’s decision should not necessarily turn on whether [the Client] used the word “inappropriate” or not. The panel agrees that there is no magic word that [clients] should have to use in order to have their complaints investigated, or to identify their complaints as ones of sexual abuse. But in this case, where the evidence is that there were no words used that would, in context, identify the complaint as a sexual one, and the nature of the complaints appeared to not just one but two experienced nurses as being about routine [client] care, and the [Client] herself did not want to speak to the charge nurse despite being offered an opportunity to do so, then the College cannot discharge its burden to prove that the Member committed professional misconduct by resolving the issue through ensuring [RN A] would not provide further care to [the Client].

If one believes that the Member should have gone to speak to [the Client] out of an abundance of caution, then at the very most she may be guilty of a momentary lapse in judgment. But the Professional Standard, Revised 2002, under the heading Ethics states; "Ethical nursing care means promoting the values of client well-being, respecting client choice, assuring privacy and confidentiality, respecting the sanctity and quality of life, maintaining commitments, respecting truthfulness and ensuring fairness in the use of resources. It also includes acting with integrity, honesty and professionalism in all dealings with the client and other health care team members." (Emphasis added.)

In this case, [the Client] had twice verbalized to [RN B] that she did not wish to speak to the charge nurse. Would the Member be respecting client choice if, despite [the Client]'s express wishes, she had forced [the Client] into a conversation she did not want to have? It would also mean that the Member had no faith in the honesty, integrity and professionalism of [RN B] to assess and report appropriately. If one must personally verify everything that a team member reports to them, then there is not much point in having a team. This is especially true in this case, where [RN B] was experienced, skilled, respected, and often filled the charge nurse role herself.

Although any one of the nursing members on the panel may or may not have acted differently, the Member’s actions certainly fall well within the bounds of reasonableness considering the nature and presentation of the information she had before her at the time. She believed a [client] was upset about the care a nurse had given her, and did not want the same nurse again. She responded by relying on the judgment and care of one of her most trusted bed-side nurses, and ensured that the nurse who was the subject of the complaint would not care for the [client] again. The Member cannot be judged based upon alleged details which were not at her disposal at the time of her actions. The panel finds that her actions were commensurate with the information she had and that she responded in an entirely appropriate and professional manner.

Did the Member Breach the Standards of Practice of the Profession?

The panel’s reasoning on this allegation was similar to its reasoning on the allegation that the Member acted unprofessionally.

The panel accepts that the standards of practice are oriented towards supporting [clients] who complain of sexual abuse, and that all nurses have an important role to play in ensuring that reports of sexual abuse – whether they are eventually determined to be founded or not – are aired and investigated in a supportive and non-judgmental environment.

In determining whether the Member breached the standards of practice, the panel did not put much weight on the evidence of the two nursing experts. Their evidence is only helpful to the panel if the hypothetical scenarios their opinions are based on mirror the facts as found by the panel.

[Expert A] testified based on a hypothetical set of facts that did not match up with the evidence as found by the panel. For example, the panel finds that the hypothetical scenario disregarded the fact that the nurse reporting to the Member – [RN B] – was an experienced and skilled nurse, who often acted as a charge nurse herself, and whom the Member reasonably trusted and relied upon. [Expert A] agreed in cross-examination that if there was no report of inappropriate touching, or the [client] wasn’t distraught, then her opinion would change. The Member was not told there was an allegation of inappropriate touching and the Member was only told that the [client] was “upset”. The panel did not understand [Expert A]’s opinion to be that, in order to meet the minimum standards of practice of the profession, every charge nurse must see every [client] who vocalizes a complaint that appears on first blush to be related to nursing care, regardless of what else the charge nurse is doing and regardless of how much comfort the charge nurse takes from the nurse reporting the [client] complaint to her. If that opinion had been given, the panel would have disagreed with it.

Both nursing experts testified that the role of charge nurse requires that the charge nurse exercise a degree of judgment and individual assessment of a situation. The Member did that. In hindsight, it is unfortunate that it took another day and a further, more deliberate report by [the Client] to the [Facility]’s social worker before the nature of [the Client’s] complaint came to light. However, the panel cannot find on the balance of probabilities that the Member breached the standards of practice in responding the way she did in all the circumstances.

Did the Member Violate Section 85.1 of the Code?

The Code provides as follows.

85.1 (1) A member shall file a report in accordance with section 85.3 if the member has reasonable grounds, obtained in the course of practising the profession, to believe that another member of the same or a different College has sexually abused a patient.

85.3 (1) A report required under section 85.1 or 85.2 must be filed in writing with the Registrar of the College of the member who is the subject of the report.

(2) The report must be filed within 30 days after the obligation to report arises unless the person who is required to file the report has reasonable grounds to believe that the member will continue to sexually abuse the patient or will sexually abuse other patients, … in which case the report must be filed forthwith.

[The Client’s] complaint was, in fact, reported to the College within 30 days, by the [Facility]. Further, both of the nursing experts who testified agreed that in a hospital setting, it is expected that a report of sexual abuse will not be filed by bed-side nurses or charge nurses but by someone higher-up in the hospital hierarchy.

The College submits that the obligation in s. 85.1 of the Code to report sexual abuse includes a personal duty on all nurses to take steps to investigate suspected sexual abuse, and that by failing to investigate [the Client’s] complaint, the Member breached this section. In light of the panel’s finding that it was reasonable for the Member to respond to the complaint in the manner that she did, the panel does not need to decide this issue.

I, Zahir Hirji, 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:

Michael Hogard, RPN

Miranda Huang, RN

Debra Mattina, Public Member