College of Nurses of Ontario v. Paul Gesembe, 2014 CanLII 82276

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tammy Hedge, RPN Chairperson Sue Roger, RN Member April Plumton, RPN Member Cathy Egerton Public Member Abdul Patel Public Member

BETWEEN:

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

• and - )

PAUL GESEMBE ) LINDSAY DAVIAU for Registration No. JE00983 ) Paul Gesembe

) JOHANNA BRADEN ) Independent Legal Counsel

) Heard: May 6, 2014

DECISION AND REASONS ON PENALTY

Further to the panel’s reasons for decision dated April 28, 2014, the panel held a hearing to determine the appropriate penalty on May 6, 2014.

Penalty Submissions – the College

The College requested a penalty consisting of a reprimand, a five-month suspension, and various terms, conditions and limitations to be placed on the Member’s certificate that include completing two sessions with a nursing expert and eighteen months of employer notification.

College Counsel submitted that there are three interests to consider in crafting an appropriate penalty: the public, the profession, and the Member. The overriding concerns are the protection of the public, and maintaining confidence in the process of self-regulation. The objectives of the penalty are general deterrence, specific deterrence, and remediation where possible.

In this case, the panel found that the Member sexually harassed four coworkers, including two RPNs and two PSWs. College Counsel referenced the panel’s decision and reasons, specifically the panel’s findings that the Member was aware that his behavior was unwelcomed (page 19 of the decision & reasons on liability [“D & R”]), that the Member persisted with his conduct after [Co-worker C] moved away from him (page 22 of the D & R) and that the Member did not stop even after [Co-worker E] asked him to (page 22 of the D & R). This is a serious breach of trust, especially as it is part of the Member’s job to supervise PSWs.

In terms of mitigating factors, College Counsel submitted:

• This is the Member’s first appearance at the College;

• As a result of the conduct the Member lost his job; and

• The Member had friends and character witnesses supporting his character. College Counsel advised the panel to be cautious in relying on this evidence, as at least some of the character evidence presented by the Member at this hearing suggested that the character witnesses did not believe the Member had done anything wrong and portrayed the Member as the victim.

In terms of aggravating factors, College Counsel submitted:

• The sexual harassment involved not just comments but also touching;

• There were multiple victims;

• There was an impact on the victims;

• The behavior was repeated both to some individuals and between them;

• The conduct occurred over several months; and

• The Member was in a supervisory role over two of the victims.

College Counsel submitted that its proposed penalty would meet the goals of specific deterrence and general deterrence as the penalty would send a clear signal to the Member and other nurses that this conduct was both inappropriate and serious. At the same time the College’s proposed penalty provides for remediation with eighteen months of employer notification and two meetings with a nursing expert. This would serve the protection of the public. The interest of the profession and the Member would be met in that the Member can eventually return to practice.

In terms of the appropriate range in light of past cases, College Counsel stated there were no previous cases that mirrored this one. However, she provided the panel with previous decisions from this College that might be helpful, as follows.

• CNO v. McEachern (Discipline Committee, 2002). This case was uncontested and therefore the penalty had been a joint submission on order. The misconduct involved verbal conduct only, and involved, in one instance, a [client]. The member admitted to the conduct and agreed to a penalty that included a six-month suspension, and various restrictions on the Member’s practice.

• CNO v. Dubravac (Discipline Committee, 2012). This case involved a male nurse who sexually harassed one co-worker, including touching his co-worker’s breast on more than one occasion. The member in this case admitted the misconduct and wrote a letter of apology. College Counsel submitted this case is the best guideline for the overarching framework of the penalty, and sets a minimum for an appropriate penalty. In Dubravac, the panel ordered a reprimand, a four-month suspension, and terms, conditions and limitations that included two meetings with a nursing expert and an eighteen-month employer notification provision.

• CNO v. O’Connor (Discipline Committee, 2011). This case also proceeded by way of an agreed statement of facts and joint submission on order. The member admitted to making inappropriate sexual advances and grabbing the breast and crotch of an RPN student. The member agreed to a reprimand, a two-month suspension, two meetings with an expert and a period of employer reporting for twelve months. This case involved a single victim over a two-day period, and the Member in this case showed remorse and accepted responsibility for his conduct.

College Counsel submitted that while none of these cases are binding on the panel, they give guidance as to the appropriate framework and assist the panel in crafting a fair and reasonable penalty.

Penalty Submissions – the Member

Counsel for the Member accepted that a reprimand and some education of the Member were appropriate. She proposed that the Member be given one year rather than six months from the date of the order to complete the meetings with the nursing expert. Counsel also did not seriously dispute the requirement for employer notification. However, Counsel for the Member submitted that given the facts of the case no suspension was warranted. In the alternative, Counsel for the Member submitted that if there were to be a suspension it should be “short and sharp”, along the timeline of 30 days.

With the College’s consent, the Member’s Counsel presented a brief to the panel which included character letters from five people who have played significant roles in the Member’s life. Counsel also recalled the character evidence from the hearing, and that multiple witnesses had positive comments regarding the Member.

Counsel for the Member submitted that the goal of a penalty is not to punish the Member, but to protect the public and maintain the standards of the profession. While all acts of sexual harassment are serious, there is a spectrum and this case is at the more benign end. If the panel was to order a suspension, it would go beyond the legitimate goals of penalty and become an unfair punishment of the Member.

With regard to the findings involving [Co-worker B], Counsel submitted that rehabilitation and education would be the most appropriate remedy, as they would ensure that the Member understands boundary issues and that this never happens again.

In the case of [Co-worker C], Counsel submitted that [Co-worker C] initiated the wrestling and admitted that she initially thought the Member was joking. It got out of hand and she handled it. Counsel submitted that when looked at in its totality, nothing about the findings regarding [Co-worker C] attract a suspension. The requirements of general and specific deterrence can be met with a penalty that emphasizes remediation.

With respect to [Co-worker E], the witness testified that the behaviour stopped after she confronted him. This conduct is at the most benign end of the spectrum and it would be difficult to imagine that this incident on its own would warrant a referral to discipline, let alone a suspension. In respect of this incident, a reprimand at most would adequately address all the principles relating to penalty.

The Member’s Counsel conceded that the findings related to [Co-worker D] were the most troublesome of the findings. However, she submitted that the touching was brief and the Member did not pursue the witness. Once she pushed him away, he left her alone. Counsel submitted that while it might be tempting to conclude that these findings require a suspension, this is not the case. Specific and general deterrence can be met by a reprimand and remediation through education. A suspension is not necessary to address the principles of a penalty order as required, especially since the Member will have to notify employers, which is significant.

Counsel for the Member reminded the panel of the Member’s evidence from the hearing, where he testified that he travelled 12,000 kilometers to pursue nursing in Canada. She stated there were a number of mitigating factors in this case, including the following.

• All the incidents were isolated;

• There is significant evidence of the Member’s good character, from witnesses and letters;

• The behaviour was not predatory; and

• Two of the College’s own witnesses ([Co-worker B] and [Co-worker E]) both supported the Member’s good professional reputation.

In terms of aggravating factors, the Member’s Counsel submitted there were none.

Defen[c]e counsel submitted that specific deterrence would be met with a reprimand and terms, conditions and limitations. If the panel was concerned that the penalty needed to be stronger, the panel could consider ordering counselling with respect to boundary issues instead of a suspension. General deterrence would be met as the significant education and remediation component and the reprimand would send a message to the membership that sexual harassment is serious behaviour.

In terms of appropriate cases, Counsel for the Member submitted ten previous cases from discipline panels of this Committee. She noted that there is no exact case that compares with this one, however, the cases demonstrate that in terms of a suspension, the appropriate range goes from no suspension at one end, to six months at the upper end.

Two of the cases (McEachern and O’Connor) were the same as those submitted by College Counsel. The additional cases submitted by the Member were as follows.

• CNO v [Unnamed Member] (Discipline Committee, 2001). This was the only case where no suspension was ordered. The Member admitted to misconduct that amounted to boundary violations with various co-workers. Following a joint submission on penalty, the member was ordered to attend a reprimand and to attend a minimum of six one-hour counselling sessions.

• CNO v Adelman (Discipline Committee, 2005). The member admitted to bringing sexually inappropriate videos to work and in engaging in sexually explicit discussions with coworkers during work hours. Following a joint submission on penalty, the member received a reprimand, a 30-day suspension, and various terms, conditions and limitations, including meeting with a nursing expert and a twelve-month period of employer notification.

• CNO v. Sywyk (Discipline Committee, 2007). This was the only contested hearing. The member was found guilty of abusing a client sexually and verbally, physically and emotionally, including making remarks of a sexual nature. He received a reprimand, a two-month suspension, and various terms, conditions and limitations.

• CNO v Lekiqi (Discipline Committee, July 2013). This involved an issue of [client] care, and a nurse’s failure to adequately explain his treatment to clients such that they misinterpreted his clinical care as sexual. There were no findings of sexual harassment. Following a joint submission, the member received a two-month suspension and various terms, conditions and limitations, including a twelve-month employer notification provision.

• CNO v. Rivard (Discipline Committee, April 2012). The member agreed that he was guilty of sexually abusing a client, including making remarks of a sexual nature, and of verbal abuse. Following a joint submission, he received a penalty that included a reprimand, three-month suspension, two sessions with a nursing expert, and a 24-month period of employer notification.

• CNO v Hayashi (Discipline Committee, May 2000). This was another case involving inappropriate conduct of a sexual nature with a client. There was only one client involved. Following a joint submission, the member received a penalty that included a three-month suspension and a twelve-month period of employer notification.

• CNO v. Parke (Discipline Committee, July 2009). The member was found to have breached the boundaries of the therapeutic nurse-client relationship in respect of one client. He received a penalty that included a five-month suspension, counselling sessions and an employer notification period of 24 months.

• CNO v. Lethbridge (Discipline Committee, May 2011). This member admitted to (among other things) sexually abusing a vulnerable client through remarks and conduct of a sexual nature. He received a penalty that included a five-month suspension, meetings with a nursing expert and an employer notification period of eighteen months.

The Member’s Counsel submitted that when the misconduct in the present case is compared with the misconduct in other cases, it is clear that no suspension is required to meet the goals of penalty. The facts that the findings are publicized and that the Member will have to report the findings to his employer are significant to the Member, and will impact his livelihood. That will help provide specific and general deterrence that is adequate in light of the findings.

Penalty Submissions – the College’s Reply

The College replied that the penalty must be considered as a whole package and not broken down into individual elements. Some previous cases have a lengthier suspension but less onerous terms and conditions; others have the opposite.

With respect to increasing the amount of time the Member should have to meet with the nursing expert, College Counsel submitted that the process is not taxing and that the defense is asking the panel to go “outside of the norm”.

With respect to the submission that counselling could assist the Member, the College submitted that, while there are cases where the Discipline Committee has ordered counselling in the past, this practice seemed to have stopped around 2009. There is great difficulty in monitoring counselling due to the personal nature of it. If the Member is ordered to meet with the expert, the expert will be required to report back to the College. This is not the case with counselling.

College Counsel disagreed that the Member’s conduct could be considered “benign” as suggested by the Member’s Counsel. She submitted that all sexual harassment is serious. All employees in the workplace have the right to work feeling safe. While the Member did stop his behaviour with one co-worker when asked, he would then move on to another.

As to the cases submitted by the Member, College Counsel submitted that all but one of those cases involved an agreed statement of facts with a joint submission on order. Agreeing to an agreed statement of facts and joint submission is a significant mitigating factor that did not apply to the Member in this case.

Penalty Decision

The panel makes the following order as to penalty:

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 five months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the member remains in the practising class.

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 six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and 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, and

3. 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,

iv. Before the first meeting, the Member reviews the National Council of State Board of Nursing presentation, A Nurse’s Guide to Professional Boundaries [ ];

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

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 be Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from reoccurring,

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 [one or more] 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 a period of 18 months from the date of this Order, 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, and

3. 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 the 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, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel found that the penalty proposed by the College is the most appropriate penalty in this case. The panel found that the cases submitted by both parties were informative, but not very helpful as the facts in the cases presented were not similar enough. Most involved joint submissions where the member expressed remorse. Both parties submitted to the panel that there were no other cases that would be more helpful, and the panel accepted that fact. The panel relied upon its own observations to make its decision in light of the relevant principles regarding penalty with which this panel is experienced.

The main point of contention between the Member and the College was the issue of a suspension. The Member made no expression of remorse either through his testimony or through his counsel, thereby continuing to persist that he has done nothing wrong. The panel finds this troublesome. The five-month suspension is necessary. All allegations of sexual harassment are serious, the Member’s behaviour was unwanted, there were multiple allegations that the panel found to be true, and these unwanted advances in totality call for a significant penalty.

The reprimand, suspension and the two meetings with the expert will broaden the Member’s perspective and will serve as a specific deterrent to repeated conduct. The panel is satisfied that the timelines for the nursing expert are fair to the Member. No evidence was led to suggest that the timelines would be onerous.

The other terms, limitations and conditions and publication of the hearing and outcome serve as a specific deterrent as well as a general deterrent, and protect the public while instilling confidence that the College expects its members to adhere to both workplace policies and the expectations of the profession regarding harassment.

The panel finds that the penalty serves the public interest in that it sends a clear message that this conduct will not be tolerated and will result in serious consequences. While the penalty will have some serious consequences for the Member, the panel holds that this is an appropriate penalty, and provides the Member with all the tools needed to return to practice and continue his growth in the nursing profession, while still protecting the public and serving the public interest.

I, Tammy Hedge, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Sue Roger, RN

April Plumton, RPN

Abdul Patel, Public Member

Cathy Egerton, Public Member