College of Nurses of Ontario v. Lekiqi, 2013 ONCNO 91854

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Lindsay Hyslop, NP Chairperson Patrick Chiu, RN Member Megan Sloan, RPN Member Margaret Tuomi Public Member Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) LINDA ROTHSTEIN &

) EMILY LAWRENCE for

) College of Nurses of Ontario

• and - )

NEXHMEDIN LEKIQI ) DENNIS MORRIS for Registration No. 0414508 ) Nexhmedin Lekiqi

) Heard: July 16, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on July 16, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

Counsel for the College advised the panel that the College was requesting leave to withdraw the allegations set out in paragraphs 1(a), (b), (c), (d) and (e); 4 (a)(i), (b)(i), (c)(i), (d)(i) and (e)(i); of the Notice of Hearing dated June 14, 2013. Those allegations related to conduct of a sexual nature. The panel granted this request. The remaining allegations as set out in the Notice of Hearing are as follows.

IT IS ALLEGED THAT:

1. [Withdrawn]

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while working as a Registered 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 in that:

(a) with respect [to] [Client A] on or about October 18, 2006:

i. you failed to properly assess and/or document your care and assessment of [Client A];

ii. you failed to obtain informed consent of [Client A] to perform care and assessment of [Client A]; and/or

iii. you breached the therapeutic boundaries of the nurse-client relationship with [Client A]; and/or

(b) with respect [to] [Client B], on or about October 23, 2006:

i. you failed to properly assess and/or document your care and assessment of [Client B];

ii. you failed to obtain informed consent of [Client B] to perform care and assessment of [Client B]; and/or

iii. you breached the therapeutic boundaries of the nurse-client relationship with [Client B]; and/or

(c) with respect to [Client C], on or about November 7, 2006:

i. you failed to properly assess and/or document your care and assessment of [Client C]; and/or

ii. you breached the therapeutic boundaries of the nurse-client relationship

with [Client C]; and/or

(d) with respect to [Client D], on or about November 9, 2006:

i. you failed to properly assess and/or document your care and assessment of [Client D];

ii. you failed to obtain informed consent of [Client D] to perform care and assessment of [Client D]; and/or

iii. you breached the therapeutic boundaries of the nurse-client relationship with [Client D]; and/or

(e) with respect to [Client E], on or about December 9, 2006:

i. you failed to properly assess and/or document your care and assessment of [Client E];

ii. you failed to obtain informed consent of [Client E] to perform care and assessment of [Client E]; and/or

iii. you breached the therapeutic boundaries of the nurse-client relationship with [Client E]; 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(9) of Ontario Regulation 799/93, in that, while working as a Registered Nurse for [the Facility], in [ ] Ontario, you failed to obtain consent from to do anything to a client for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose in a situation in which a consent is required by law, without such a consent, and in particular:

(a) on or about October 18, 2006, you failed to obtain informed consent of [Client A] to perform care for and assessment of [Client A];

(b) on or about October 23, 2006, you failed to obtain informed consent of [Client B], to perform care for and assessment of [Client B];

(c) on or about November 9, 2006, failed to obtain informed consent of [Client D], to perform care for and assessment of [Client D]; and/or

(d) on or about December 9, 2006, you failed to obtain informed consent of [Client E] to perform care and assessment of [Client E]; and/or

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while working as a Registered 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 of the profession as disgraceful, dishonourable or unprofessional in that you:

(a) with respect [to] [Client A] on or about October 18, 2006:

i. [Withdrawn];

ii. you failed to properly assess and/or document your care and assessment of [Client A];

iii. you failed to obtain informed consent of [Client A] to perform care and assessment of [Client A]; and/or

iv. you breached the therapeutic boundaries of the nurse-client relationship with [Client A]; and/or

(b) with respect [to] [Client B], on or about October 23, 2006:

i. [Withdrawn]

ii. you failed to properly assess and/or document your care and assessment of [Client B];

iii. you failed to obtain informed consent of [Client B] to perform care and assessment of [Client B]; and/or

iv. you breached the therapeutic boundaries of the nurse-client relationship with [Client B]; and/or

(c) with respect to [Client C], on or about November 7, 2006:

i. [Withdrawn];

ii. you failed to properly assess and/or document your care and assessment of [Client C]; and/or

iii. you breached the therapeutic boundaries of the nurse-client relationship with [Client C]; and/or

(d) with respect to [Client D], on or about November 9, 2006:

i. [Withdrawn];

ii. you failed to properly assess and/or document your care and assessment of [Client D];

iii. you failed to obtain informed consent of [Client D] to perform care and assessment of [Client D]; and/or

iv. you breached the therapeutic boundaries of the nurse-client relationship with [Client D]; and/or

(e) with respect to [Client E], on or about December 9, 2006:

i. [Withdrawn];

ii. you failed to properly assess and/or document your care and assessment of [Client E];

iii. you failed to obtain informed consent of [Client E] to perform care and assessment of [Client E]; and/or

iv. you breached the therapeutic boundaries of the nurse-client relationship with [Client E]

Member’s Plea

Nexhmedin Lekiqi admitted the allegations set out in paragraphs numbered 2(a)(i), (ii), (iii); (b)(i), (ii), (iii); (c)(i), (ii); (d)(i), (ii), (iii); (e)(i), (ii), (iii); 3(a), (b), (c), (d); 4(a)(ii), (iii), (iv); (b)(ii), (iii), (iv); (c)(ii), (iii); (d)(ii), (iii), (iv); and (e)(ii), (iii), (iv) 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. Nexhmedin Lekiqi (the “Member”) is an internationally-trained nurse and physician. The Member [ ] obtained his diploma in nursing in 1984 [abroad]. The Member then attended medical school [abroad] and graduated from there in 1996 as a general practitioner.

2. The Member immigrated to Canada in 1999. He was registered with the College of Nurses (“College”) in April 2004 as a registered Nurse (“RN”).

THE FACILITY

3. In January 2006, the Member began employment as a permanent staff “float nurse” at the [the Facility]. The Facility is a large training hospital [ ].

4. As a float nurse, the Member was assigned to work on all units of the Facility, as the staffing complement required.

5. During the night shift, from 19:30 to 07:30, each nurse on the surgery unit had up to eight assigned clients.

6. At the Facility, nurses worked together in pairs as partners. Each nurse in the pair provided nursing care to their partner’s clients while the assigned nurse was on break.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

7. The incidents of professional misconduct relate to five clients between September and December 2006 (together, the “Clients”). Each client complained to the Facility about the Member’s care.

A. The Clients

(i). [Client A]

8. [Client A] was a 37-year-old male at the time of the incident on October 18, 2006. [Client A] was admitted to the Facility on October 17, 2006, because of a rectal abscess. He underwent general surgery under general anaesthetic on the evening of October 17, 2006, for irrigation and debridement for an ischiorectal abscess and excision of fistula. He tolerated the surgery well but developed a post-operative fever and chills and oxygen desaturation on room air. He was transferred to the 2B surgical unit in the early afternoon with suspected pneumonia. [Client A] was assigned to the Member’s partner during the day shift.

9. During the Member’s partner’s break, the Member provided care to [Client A].

10. The Member identified himself to [Client A] as an internationally trained physician as well as a nurse.

11. At 14:00, [Client A] complained of pain and fever. The Member checked his vital signs, a[u]scultated his chest, and checked his temperature. The Member administered Tylenol “plain” (325mg) orally and Morphine 4mg by IV.

12. The Member did not:

a. conduct or document a pain assessment before administering 4mg of Morphine, and documented his rationale for administering 4mg when the ordered range was 2-4mg;

b. assess or document any observations about the surgical site as part of his assessment at 1400; or

c. offer [Client A] a sitz bath, which was part of the doctor’s order for dressing and packing of the surgical site.

13. At approximately 15:00, the Member examined [Client A] again. He found low air entry and a continued fever. Despite [Client A]’s presentation of low air entry and fever, the Member did not complete a full respiratory examination. Instead, the Member palpated [Client A]’s lower abdomen, bladder and kidney for possible urinary tract infection. The Member did not ask [Client A] if he was having pain on urination. In order to check [Client A]’s urinary bladder, the Member moved [Client A]’s genitals with the back of his hand. Before doing so, the Member did not explain to [Client A] what he intended to do or the purpose of the examination. The Member did not obtain informed consent from [Client A].

14. The Member cleaned the surgical site with antiseptic. The Member did not change the packing of the surgical site but he changed the dressing. Using a marker, the Member drew circle shadows on the freshly changed dressing to record any expansion of bleeding. The Member did not explain to [Client A] what he intended to do or the purpose of the cleaning, or obtain informed consent from [Client A].

15. Apart from documenting medication administration, the Member did not document any of his care of [Client A].

(ii). [Client B]

16. [Client B] was a 44-year-old male at the time of the incident on October 23, 2006. He was diagnosed with sleep apnea and excessive snoring. He was admitted to the hospital to undergo an uvulopalatopharyngoplasty including tonsillectomy under general anaesthesia, which were performed on October 23, 2006. [Client B] tolerated the surgery well. During post-operative care, [Client B] received Morphine, Gravol and other medications. While in post-operative care, [Client B]’s heart rate dropped while sleeping, to as low as 33 beats per minute. His heart rate immediately rose to 50-60 beats per minutes when awoken. He was placed on a heart rate monitor with a clip-on sensor attached to his finger which monitored his pulse. When his heart rate steadied to 72 beats per minute while sleeping, he was transferred to the 2B surgery unit at 15:00. The Member began his shift at 19:30. He was assigned as [Client B]’s nurse.

17. The Member provided care to [Client B] during the night shift.

18. [Client B]’s heart rate monitor alarmed approximately every 10 to 15 minutes throughout the evening, indicating that [Client B]’s heart rate had dropped below 50 beats per minute. On each occasion, the Member would review the read result, wake [Client B] if he was asleep, check [Client B]’s pulse and re-set the alarm. [Client B]’s heart rate would rise to acceptable levels while awoken.

19. At approximately midnight, the Member decided to explore whether the heart rate monitor was accurately recording [Client B]’s heart rate. In particular, the Member speculated that [Client B] may be suffering from “pulse paradoxus” in which a person’s heart beats are not reflected in the corresponding pulse.

20. The Member woke [Client B] and placed his hands in [Client B]’s groin area. When [Client B] asked what the Member was doing, the Member indicated that he was taking [Client B]’s femoral pulse. The Member pushed [Client B]’s genitals with cover sheets to one side and placed his fingertips to [Client B]’s femoral artery in his groin. At the same time, the Member listened to [Client B]’s heart rate using a stethoscope and listened to the heart rate monitor.

21. The Member did not ask [Client B]’s permission before he began taking his femoral pulse and touching his genitalia nor did he explain the purpose for taking the pulse in the groin area.

22. The Member did not find any irregularity between the heart rate monitor, the femoral pulse and the heart beats.

23. The Member did not chart his concern about pulse paradoxus or that he had checked the client’s femoral pulse.

24. The Member then called the “Medical Team”, the on-call team of doctors and nurses who assess clients during the night. The Medical Team arrived at 24:40. The Member advised the Medical Team that he had confirmed that the monitor was consistent with [Client B]’s pulse.

25. The Medical Team assessed the client and notified his physician. [Client B]’s heart rate continued to drop when he fell asleep. He continued to be monitored by the heart rate monitor.

26. After the Medical Team’s assessment, the Member retrospectively charted that the heart rate monitor had alarmed continuously, that he had called the Medical Team and provided a summary of the Medical Team’s interventions.

27. Later in the night, the Member applied soap to [Client B]’s penis and groin area to clean a small urine spill. He then wiped the soap off with a cloth. The interaction lasted approximately one minute. The Member did not ask permission to touch [Client B]’s penis or to apply the soap, or explain the purpose of the soap.

(iii). [Client C]

28. [Client C] was a 52-year-old male at the time of the incident on November 7, 2006. He was admitted to the Facility with an acute gallbladder attack. He was scheduled to have gall bladder surgery. He was transferred to the 2B surgical unit in the evening prior to his surgery, on November 7, 2006. [Client C] was assigned to the Member’s partner.

29. During the Member’s partner’s break, the Member provided care to [Client C]. In particular, the Member conducted a routine initial assessment, at the request of [Client C]’s assigned nurse. In response to inquiries from the client about the thoroughness of the examination, the Member told him he was an internationally trained physician.

30. During the Member’s assessment, the Member advised that [Client C]’s case was “interesting” and advised [Client C] that he was an internationally trained physician. The Member asked if he could examine [Client C]’s abdomen but did not provide a rationale. [Client C] consented.

31. The Member pressed on [Client C]’s abdomen much more roughly than other Facility staff had done, which was uncomfortable.

32. The Member then placed his two gloved hands below [Client C]’s navel and rolled [Client C]’s gown and underwear down to expose [Client C]’s lower abdomen. While doing so, the Member used his hand to roll [Client C]’s penis into the gown and underwear. The Member then pressed on [Client C]’s lower abdomen and pubic area. The Member did not seek permission before touching his penis nor explain to [Client C] why that was necessary. If the Member were to testify, he would state that he has no recollection of touching [Client C]’s penis, and if he did touch [Client C]’s penis, it was inadvertent and incidental to palpating [Client C]’s abdomen.

33. The Member did not document his care of [Client C].

(iv). [Client D]

34. [Client D] was a 46-year-old male at the time of the incident on the evening of November 9, 2006. He underwent quadruple bypass surgery on November 8, 2006. He was in the Facility for a total of one week. [Client D] tolerated the surgery well. Following the surgery, he was transferred to the cardiac intensive care unit. [Client D] was assigned to the care of the Member’s partner.

35. During the Member’s partner’s break, the Member provided care to [Client D]. In particular, the Member provided catheter care to [Client D] in response to [Client D]’s complaint that his indwelling catheter was burning and painful. The Member inspected [Client D]’s catheter and applied a cream near the urethral orifice of [Client D]’s penis (at the catheter entry), using a plastic applicator. The cream did not relieve [Client D]’s pain. Approximately one hour later, the Member returned to [Client D]’s room and removed the catheter.

36. The Member did not document his care of [Client D].

(v). [Client E]

37. [Client E] was a 66-year-old male at the time of the incident on December 9, 2006. He was in the Facility from December 1 to December 29, 2006, as a result of renal failure and obstructive prostate. At all relevant times, [Client E] was located in the Medicine 5C unit of the Facility. The Member was not [Client E]’s assigned nurse.

38. During the Member’s partner’s break, the Member provided care to [Client E] In particular, the Member provided catheter care to [Client E], including cleaning sticky secretions from the entry of [Client E]’s indwelling catheter.

39. The Member did not document his care of [Client E].

B. Failure to Establish a Therapeutic Nurse-Client Relationship and Obtain Informed Consent

40. In respect of each of the C[l]ients, the Member acknowledges that he should have established and maintained therapeutic communication with them, provided care that was client-centered, and established and maintained appropriate boundaries.

41. The Member acknowledges that it was inappropriate to identify himself as an internationally trained physician to [Client A], [Client B] and [Client C]

42. The Member acknowledges that with respect to all five Clients, he failed to adequately explain procedures involving care and/or touching of intimate areas to the Clients before he began the procedures. He also failed to provide alternate options to intimate care. With respect to all five Clients, the Member failed to obtain informed consent.

43. The Member acknowledges that clear and appropriate communication is necessary to minimize the possibility that a Client will interpret contact with intimate areas as touching for a sexual purpose, and that such an interpretation can confuse and cause harm to a client. All five Clients were concerned that the Member’s touching of their genitalia was motivated by a sexual purpose. Accordingly, the Member acknowledges that the Clients did suffer harm as a result of his failure to use appropriate therapeutic communication to explain the therapeutic purpose for his interventions.

C. Engaging in Unnecessary Care and Failing to Provide Clinically Supported Care

44. The Member acknowledges that he did not properly assess and treat [Client A], [Client B] and [Client C], in that he provided nursing care and assessment to [Client A], [Client B] and [Client C] that was not clinically supported and was unnecessary, as follows:

a. examining [Client A] for a possible urinary tract infection, including examining his urethra;

b. checking [Client B]’s femoral pulse;

c. applying soap to [Client B]’s groin area; and

d. examining [Client C]’s lower abdomen and pubic area.

45. The Member admits that he failed to complete a pain assessment and a respiratory examination of [Client A], which were clinically warranted and required.

D. Documentation

46. The Member admits that he failed to adequately document his assessment and care of all five Clients.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

47. The Member admits that he committed the acts of professional misconduct as alleged in the Notice of Hearing, as set out in paragraphs:

a. 2 (all paragraphs);

b. 3 (all paragraphs); and

c. 4 (a)(ii)-(iv), (b)(ii)-(iv), (c)(ii)-(iv), (d)(ii)-(iv), (e) (ii)-(iv).

48. With leave of the Discipline Committee, the College withdraws the allegations of professional misconduct alleged in the Notice of Hearing, as set out in paragraphs:

a. 1(a) through (e); and

b. 4(a)(i), (b)(i), (c)(i), (d)(i) and (e)(i)

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Member committed acts of professional misconduct as alleged in paragraphs 2(a)(i), (ii), (iii); (b)(i), (ii), (iii); (c)(i), (ii); (d)(i), (ii), (iii); (e)(i), (ii), (iii); 3(a), (b), (c), (d); 4(a)(ii), (iii), (iv); (b)(ii), (iii), (iv); (c)(ii), (iii); (d)(ii), (iii), (iv) and (e)(ii), (iii), (iv) of the Notice of Hearing in that the Member failed to meet the standards of practice, failed to obtain consent where consent was required, and engaged in conduct or performed an act, relative to the practice of nursing, that having regard to all the circumstances, would be reasonably regarded by Members of the profession as unprofessional.

Reasons for Decision

The panel, having considered the Agreed Statement of Facts, found it clear and concise. It supported the allegations set out in the Notice of Hearing. The panel accepted and found that the conduct would reasonably be regarded by members of the profession as unprofessional.

The panel found the Member’s persistent disregard of his professional obligations and failure to live up to the standards expected of him demonstrate unprofessional behaviour.

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 months [of the date] that this Order becomes final.

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

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

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

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

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

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

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

1. Professional Standards;

2. Therapeutic Nurse-Client Relationship;

3. Documentation; and

4. Consent

iv. Before the meeting, the Member will review and completes the College’s self-directed learning package, One is One Too Many, at [his] own expense, including the self-directed Nurses’ Workbook;

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

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

b. For 12 months following the Member’s return to any employment in nursing, the Member will notify his employers of the decision. To comply, the Member is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 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 Order, and

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

iii. Ensure that within 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 they received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

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

Penalty Submissions

College Counsel submitted that both the College and the Member worked diligently together to draft a joint submission that accurately reflects the allegations and takes into consideration the sad and difficult history leading up to this hearing.

The Agreed Statement of Facts deals with five clients who complained to the hospital about care they received by the Member, which resulted in the Member being charged with sexual assault. As part of the Member’s bail condition, he was not permitted to practi[s]e nursing and entered into an undertaking with the College in 2007. In April 2010, the Member stood trial and after seven days, was found not guilty on all charges. The undertaking expired and the Member returned to the practice of nursing.

The net effect of the criminal proceedings and the undertaking was that the Member was prohibited from practi[s]ing nursing for four years, which is very relevant when balancing the aggravating and mitigating factors.

The criminal proceedings only address the criminal aspect and do not necessarily ensure safe and competent nursing care. The focus of the College’s proceedings is on deterrence and rehabilitation of the Member and not punishment.

The College’s proceedings are necessary and an appropriate forum to deal with nursing standards. The mitigating and aggravating factors were considered with the assistance of and advice of a pre-hearing Chair. Both the Member and the College were encouraged to look towards an agreement and resolution.

Mitigating factors include the length and significant impact the criminal proceedings had on the Member and his family, the Member’s acknowledgement and cooperation with the College, his previous blemish-free record and, because of the Member’s cooperation with the College, the avoidance of a lengthy hearing, thereby protecting the clients from having to testify.

Aggravating factors include the repeated instances where the Member failed to establish a therapeutic nurse-client relationship, which included five different clients, when he failed to explain procedures, document care, and obtain informed consent. The clients were harmed by this misconduct, although it was not motivated by a sexual purpose.

College Counsel submitted that when the factors are balanced, the joint submission on order meets the appropriate goals of professional regulation. The principle of general deterrence is met through the process, the investigation, the hearing and the permanent public record. The joint submission sends a clear message to the membership that this conduct is viewed seriously and will not be tolerated. The proposed penalty sends the message that clear communication and documentation are absolutely necessary and at the heart of client care. The rehabilitative element allows the Member to continue in his chosen career without a burdensome suspension. The terms, conditions and limitations ensure that the Member maintains reflective practice going forward. The notification and meetings with a nursing expert and learning plan provide a fair and appropriate balance that preserves the Member’s ability to move on with his career and thrive.

The Member’s Counsel agreed with the submission by College Counsel and offered more detail about the Member’s history. The Member is a foreign-trained nurse and foreign-trained physician who immigrated [ ] to Canada with his family and became an RN in 2004 and a Canadian citizen in 2006. Prior to being charged criminally, the Member worked two jobs to support his family. He was no longer permitted to practi[s]e nursing following the charges. This had significant financial and emotional implications for the Member and his family. The Member was later acquitted on all criminal charges, which were heard at the same time. The Member has been tremendously punished already and is prepared to accept the conditions of the Joint Submission on Order in that they focus on improving his skills relevant to communication and establishing a therapeutic nurse-client relationship.

Penalty Decision

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

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

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

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

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

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

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

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

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

1. Professional Standards;

2. Therapeutic Nurse-Client Relationship;

3. Documentation; and

4. Consent

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

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

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

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

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

3. strategies for preventing the misconduct from recurring,

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

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

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

1. the dates the Member attended the sessions,

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

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

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

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

b. For 12 months following the Member’s return to any employment in nursing, the Member will notify his employers of the decision. To comply, the Member is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 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 Order, and

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

iii. Ensure that within 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 they received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

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

Reasons for Penalty Decision

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

The panel reviewed the Joint Submission on Order and accepted it in its entirety. The panel is aware of the principles behind the creation and acceptance of joint submissions and the diligent negotiations involved in creating the order.

The Joint Submission on Order included a reprimand, suspension, meetings with a nursing expert, and a period of employer notification. These elements of the penalty are consistent with the goals of general and specific deterrence, rehabilitation of the Member and protection of the public.

The order is fair and appropriate and reasonably reflects the appropriate balance between aggravating and mitigating factors. Some of the aggravating factors the panel considered include the repeated failures in establishing therapeutic nurse-client relationships, in explaining procedures and obtaining informed consent from the five clients that were involved, and that the clients were harmed, even though the conduct was not motivated by sexual purposes.

Some of the mitigating factors the panel considered include the lengthy criminal proceedings and the very profound effect they had on the Member, the Member’s family, and his career. The Member and his family have also endured significant financial consequences throughout the process. The Member acknowledged his practice did not meet the standards and that if he had practi[s]ed safely and effectively, the situation could have been avoided. With the Member’s acknowledgement and cooperation with the College, the five clients involved did not have to be subjected to a lengthy contested hearing where they would have had to testify again. This is also the Member’s first time before the Discipline Committee.

The panel finds that this order will appropriately protect the public and provide the necessary elements for the Member’s rehabilitation so that the Member may safely return to the practice of nursing and ensure that future incidents do not occur.

I, Lindsay Hyslop, NP, 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:

Patrick Chiu, RN

Megan Sloan, RPN

Margaret Tuomi, Public Member

Abdul Patel, Public Member