College of Nurses of Ontario v. James Leroux, 2014 CanLII 87160

minicounsel

Footnotes

Mr. Stephenson objected to the admission of these statements on the grounds that they were hearsay. The panel requested advice from its Independent Legal Counsel (“ILC”), and counsel for both parties were given the opportunity to make submissions on the advice the panel received from ILC. The panel accepted the advice of ILC that the statements were admissible under the exception to the hearsay rule that allows admissions of a party against interest. The objection was overruled and the statements were allowed.

PANEL: Debra Mattina Chairperson Lorenza Barron, RN Member Michael Hogard, RPN Member Renate Davidson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) REBECCA DURCAN for

) the College of Nurses of Ontario

and - )

JAMES LEROUX ) ROBERT STEPHENSON for

Registration No. 09395549 ) James Leroux

) JOHANNA BRADEN and

) LUISA RITACCA

) Independent Legal Counsel

) Heard: October 29, 2013, October 30,

) 2013, October 31, 2013, November 1,

) 2013, December 2, 2013, December 3,

) 2013 February 5, 2014 and February 6,

) 2014

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee beginning on October 29, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

Publication Ban

On request of the College, and unopposed by the Member, the panel ordered pursuant to s. 47 of the Health Professions Procedural Code of the Nursing Act, 1991 that no person shall publish the identity of the complainant or any information that could tend to identify the complainant.

The Allegations

The allegations against James Leroux (the “Member”) as stated in the Notice of Hearing dated September 17, 2013, are as follows.

You have committed an act or acts of professional misconduct as provided by paragraph 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.1 of Ontario Regulation 799/93 in that, in or about December 2011, while working as a Registered Nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession in that you placed a client’s ([ ]) hand on your penis and masturbated, or in the alternative, placed [the Client]’s hand on your penis.
You have committed an act or acts of professional misconduct as provided by paragraph 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.7 of Ontario Regulation 799/93 in that, in or about December 2011, while working as a Registered Nurse at [the Facility], you abused [the Client] physically or emotionally in that you placed [the Client]’s hand on your penis and masturbated or in the alternative, placed [the Client’s] hand on your penis.
You have committed an act or acts of professional misconduct as provided by paragraph 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.37 of Ontario Regulation 799/93 in that in or about December 2011, while working as a Registered Nurse at [the Facility], you engaged in conduct, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by Members as disgraceful, dishonourable or unprofessional in that you placed [the Client]’s hand on your penis and masturbated, or in the alternative, placed [the Client]’s hand on your penis.
You have committed an act or acts of professional misconduct as provided by paragraphs 51(1)(b.1) and (c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(3) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that in or about December 2011, while working as a Registered Nurse at [the Facility], you sexually abused [the Client] by placing [the Client]’s hand on your penis and masturbated or in the alternative, placed [the Client]’s hand on your penis.
You have committed an act or acts of professional misconduct as provided by paragraph 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in paragraph 1.13 of Ontario Regulation 799/93 in that, in or about December 2011, while working as a Registered Nurse at [the Facility], you failed to keep records as required in that you:

a. did not document the treatment provided and observations made when you were alone in [the Client]’s room; and/or

b. did not document [the Client]’s hand allegedly brushing against your penis.

Member’s Plea

The Member denied all allegations 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, as required by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41.

Overview

Virtually every fact in this hearing is disputed.

The Member was initially registered with the College as a Registered Practical Nurse (“RPN”) from April 25, 2007, to October 28, 2009, and then as a Registered Nurse (“RN”) from August 14, 2009, to present. At the time of the incident, he was employed at [the Facility] in the emergency department as an RN. On December 11, 2011, the Member was working the night shift when [the Client] came into the emergency department at approximately 2:00 a.m.

[The Client] had been out earlier in the evening at a bar celebrating with family and friends. Upon leaving the bar, [the Client’s] companions became concerned with [the Client’s] level of intoxication and took [the Client] to the [Facility’s] emergency department.

Upon admission, [the Client] was assigned to [a] resuscitation room ([the Room]). The Member was assigned to [the Room] for the shift but was occupied with the care of another [client] in [another room]. [Nurse A] did not have any [clients] assigned to her at the time so she volunteered to be the lead nurse for [the Client]’s care. [Nurse A] initiated and provided the care of [the Client] for the duration of [the Client]’s stay in the emergency department. Over the course of the next few hours, [Nurse A] provided nursing care to [the Client] but at various times was assisted by other members of the nursing and support staff team.

As dealt with in more detail below, [the Client]’s state of consciousness throughout [the Client’s] stay was a matter of contention at this hearing. However, at some point [the Client] awoke, shortly before [ ] discharge. [The Client] immediately demanded to speak to someone to report an incident of sexual misconduct which [the Client] alleged occurred during the course of [the Client’s] stay in the emergency department. Subsequently [Nurse B] attended to [the Client]. Upon hearing the nature of the complaint, [Nurse B] left [the Client]’s room and sent [Nurse A] to receive the full complaint. [The Client] was discharged shortly thereafter with a copy of part of [the] chart and instructions with contact information [ ] to contact the nurse manager regarding [the Client’s] complaint.

Upon discharge, [the Client] was taken home by [Family Member A]. Later that day, [the Client] reported the incident to the police. The police attended [the Client’s] home and took statements. At a later date, [the Client] attended the police department and provided a video statement. The police did not charge the Member and informed [the Client] that there was not enough evidence to meet the burden of proof in a criminal proceeding, which is beyond reasonable doubt.

Following their own internal investigation, [the Facility] reported the incident to the College. The College initiated an investigation into the incident. The College contacted [the Client] and took [the Client’s] statement. This disciplinary proceeding against the Member was commenced. [The Client] was called as a witness by the College.

The central allegation in this hearing is that while the Member was alone in the room with [the Client] and [the Client] was sleeping, the Member placed [the Client]’s hand on his penis and began to masturbate. [The Client] claims that as a result of feeling [the Client’s] arm moving, [the Client] opened [the Client’s] eyes. [The Client] was unable to speak or react due to the combination of alcohol and medication, but [the Client] stated that when the Member saw [the Client’s] eyes open and realized [the Client] was awake, he fled the room. [The Client] stated [the Client] drifted back into sleep again but upon awaking immediately became agitated and requested that [Family Member A] get [the] nurse so [the Client] could report what had happened. [The Client’s] report was made immediately. The panel heard the testimony of seven witnesses, all called by the College, including the opinion evidence of one expert witness. The Member did not testify and did not call any witnesses on the basis that it was his position at the close of the College’s case that there was no case for the Member to answer.

In addition to the oral evidence, the panel also received nine exhibits submitted into evidence, including a joint book of documents which also contained a DVD with video security-camera footage of the corridor. The video footage was the most significant of the exhibits. The entry and exit of all persons into [the Room] was captured by a video camera in the corridor outside the [client] treatment rooms. [The Room] is located at the end of the corridor furthest from the camera. The room cannot be seen into from the nursing station. The panel was advised that there had been other video footage from another camera situated down an adjacent corridor but a video clip from that angle illustrating the appropriate time frame had gone missing. The panel therefore did not have the benefit of viewing the area from the other angle for the time frame most relevant to the incident. The angle of the camera for which video was available captures images of the nursing station on the left with the [client] treatment areas on the right. A portion of the medication dispensing area and a washroom are also visible. The exhibit included approximately four hours of video footage, portions of which were viewed in the hearing room during witness testimony. The video recordings were also viewed in their entirety during deliberations.

In order to determine whether or not the Member committed acts of professional misconduct as set out in paragraphs 1 through 5 of the Notice of Hearing the panel addressed the following issues.

Is the evidence of the witnesses called by the College credible and reliable?
Does the supporting witness testimony, documentary and video evidence confirm or refute [the Client]’s allegation against the Member and the sequence of events?
Do the medical records help to clarify the events?
If the panel believed [the Client] to be honest, was there a reasonable alternative explanation for what [the Client] recalled?
Did the Member have the time and opportunity to commit the act alleged?
If the Member committed the act as alleged, does that constitute a breach of the standards of practice of the profession?
Is it sexual abuse?
Is it physical and/or emotional abuse?
Does it represent dishonourable, disgraceful and/or unprofessional behaviour?
Was there a failure on the Member’s part to keep records as required?

The panel found the Member committed professional misconduct by failing to meet the standards of practice when he sexually assaulted the [Client]. The Member engaged in conduct that would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional. The Member abused [the Client] sexually, physically and emotionally. The panel made no finding with respect to the allegation that the Member failed to keep records as required.

The Evidence

Witness # 1: [the Client]

The College called [the Client] to testify to [the Client’s] experience in the emergency department in the early hours of December 11, 2011. [The Client] stated that [the Client] had been out celebrating the end of [the Client’s] second-last semester at college with family and friends on the evening of December 10, 2011, and into the early morning hours of December 11, 2011. [The Client] testified they were celebrating because [the Client] received “very high grades for that semester and previous semesters, which allowed me to get specialized placement for the following year, which is very hard to get”. [The Client] stated [the Client] had more than five drinks while out celebrating but really did not remember how many [the Client had] had.

[The Client] said that when [the Client] and [the Client’s] friends left the bar, [the Client] felt fine but upon getting in the car and with the car moving, [the Client] suddenly felt very unwell and started vomiting and vomiting. [The Client’s] companions of the evening were [Family Member A] and her friends known as [Family Member B] and [Family Member C]. [the Client] explained that [Family Member B] and [Family Member C] are not blood relatives but since they are older, [the Client uses family titles] out of respect as is common in [the Client’s] culture. They grew concerned because [the Client] had become unable to speak or respond to them. They took [the Client] to [the Facility] emergency department where [the Client] was admitted.

[The Client] acknowledges [the Client] was intoxicated but insists [the Client] recalls most of details of [the] emergency experience from the time [the Client] arrived in the emergency department until [ ] discharge. [The Client] stated that [the Client] heard what was going on around [the Client] and was able to recognize the voice of [Nurse A] because [Nurse A] had a distinctive voice. [The Client] was also able to open [the Client’s] eyes from time to time.

[The Client] testified that when they arrived at the hospital and were sitting in the waiting room, [the Client] had [the Client’s] eyes closed but [the Client] could hear everything going on around [the Client]. After [the Client] was admitted to the emergency department, [the Client] was taken into a room. [The Client] recalls that [Family Member A] had to leave the hospital to go get [the Client’s] health card. [The Client] remembers being put in a bed by [Nurse A], [a ward aide] and [Family Member B]. [The Client] remembers the intravenous being hooked up to [the Client’s] right side and the blood pressure cuff on [the] left. [The Client] remembers chairs in the room. [The Client] remembers that the doorway had a curtain rather than an actual door and the curtain covered the entry to the room. [The Client] stated [the Client] remembered the black female nurse ([Nurse A]) who undressed [the Client] and put a gown on [the Client]. [The Client] said [the Client] remembered the black nurse trying to put a catheter in [ ] but because [the Client] was kicking and screaming so much from the pain, the nurse had to call someone for assistance. The Member assisted [Nurse A] by holding [the Client]’s legs so the catheter could be inserted. [The Client] testified that [the Client] was unable to see the Member’s face because of his position. During [the Client’s] testimony, [the Client] consistently referred to the people [the Client] encountered at the hospital by their description or the sound of their voice as [the Client] did not know their names. Therefore [the Client’s] testimony included multiple references to the “nice black nurse” or the “white nurse”.

[The Client] stated [the Client] remembers [Nurse A] asking someone to get gravol. Then [the Client] recalls a period of quiet and hearing someone come to the right side of [the] bed to administer what [the Client] believes was the gravol. [The Client] said [the Client] remembered the feeling of the gravol going in [the Client’s] arm. After the gravol was administered, [the Client] stated [the Client] heard someone walk to the left side of [the] bed. [The Client’s] next recollection was becoming aware that [the Client’s] arm was moving. [The Client] stated, “I had to force myself to open my eyes ... I’m exhausted, so I’m opening my eyes, forcing myself to open my eyes and then when I do open my eyes, I can see my hand on top of someone’s penis. And I’m thinking, ‘Oh, my God.’ And I can’t talk. I can’t move. I can’t get ... I can’t scream. I can’t do anything. I’m helpless.” [The Client] added, “And from the time I’m able to open my eyes, the individual that was there, kind of looked from the side down at me, like this, and from the time he saw my eyes open, spun around and left the room.” [The Client] stated that he spun around near the monitor.

[The Client] testified that [the Client] fell asleep again, but “the moment I could feel myself being able to talk, to move, to open my eyes, and I was up, the first thing that came out of my mouth, is, like ‘I was just sexually assaulted. You need to get somebody in this room now.’” [The Client] sent [Family Member A], who had returned from retrieving [the Client’s] health card, out to the nursing station to get someone so [the Client] could report the incident.

[The Client] stated that [Nurse B] entered the room to take [the Client’s] report. [The Client] did not think [Nurse B] was taking [the] report seriously and thought [Nurse B] was laughing at [the Client]. [The Client] stated that [Nurse B] said “you were so intoxicated, nobody would believe you.” [The Client] responded that what [the Client] was saying was very serious and was not a joke. [The Client] testified that [the Client] doesn’t remember the exact words of [the Client’s] report to [Nurse B], but [the Client] remembers telling her [the Client] was sexually assaulted and that there was a male nurse in [the] room and that [the Client] awoke to [the Client’s] hand on his penis. [The Client] recalled that following [the] discussion with [Nurse B], [Nurse B] left the room and [Nurse A] came in. [The Client] repeated to [Nurse A] what [the Client] had said to [Nurse B]. [The Client] recalls [Nurse A] saying, “The accusation that you are making is very serious. Make sure that what you are saying is true, because this is someone’s career on the line.” [The Client] said that [the Client] told [Nurse A] that [the Client] understood the severity of the situation.

[The Client] testified that [the Client] told [Nurse A] that the male nurse was white, tall, and in scrubs. [The Client] also testified that [Nurse A] confirmed there was someone fitting that description who had helped [Nurse A] with [the Client]’s care. [The Client] asked to see photographs of all the male nurses working in the hospital that night because [the Client] was certain [the Client] could identify the male nurse who was in [the Client’s] room from a photo. [The Client] was not shown any photos.

After the incident was reported, [the Client] was discharged. [The Client] requested a copy of [the Client’s] chart. What [the Client] received was a photocopied excerpt of [the] chart [ ] from [Nurse A] at the nursing station. [The Client] said [the Client] was advised that if [the Client] needed the rest of [the] chart, [the Client] would have to apply for it. [The Client] stated that [the Client] was given the name of the head nurse and contact information but [the Client] did not understand why [the Client] should talk to the head nurse. [The Client] stated that [the Client] requested the chart because [the Client] thought that the names of the nurses who dealt with [the Client] would be in the chart and [the Client] would therefore be able to identify the Member by his name.

[The Client] walked out of the emergency department with [Family Member A] around 5:00 a.m. [The Client] said [the Client] cried in the car on the way home. [The Client] stated that when [the Client] got home, [the Client] lay on [the[ bed and, “I’m crying and crying and I don’t know what to do ... I laid in my bed and cried. And I’m thinking why would I call the head nurse? This is a criminal offence. This is sexual assault. I should be calling the police.”

[The Client] stated that [the Client] called the police after crying for hours. Two officers responded and took [the Client’s] statement. They called a third officer who advised [the Client] that if [the Client] wanted to go forward, the police would want [the Client] to come to the station and give a video interview. [The Client] stated that [the Client] and [Family Member A] attended the police station and were interviewed. Sometime later, [the Client] was advised by [Detective A] that the police were not going to pursue charges against the Member.

At the hearing, [the Client] identified the Member as the man who assaulted [the Client] on December 11, 2011. [The Client] described [the] assailant as having “faded hair”. When [the Client] was asked to clarify what that meant, [the Client] had difficulty in describing it. [The Client] asked if [the Client] could point to someone to demonstrate but Mr. Stephenson objected to [the Client’s] doing so. [The Client] was asked if [the Client] meant bald or balding but [the Client] replied that is not what [the Client] meant. The description of “faded hair” was never clarified further. [The Client] recalled seeing the Member one time since the date of the incident, on an elevator going up to an arbitration meeting. [The Client] was with [a parent] and the Member was on the same elevator on the way up. [The Client] testified that [the Client] froze up, had an anxiety attack and was “freaked out” with [the Client’s parent] standing next to [the Client].

[The Client] stated that the incident has affected [the Client] in many ways. [The Client] stated that [the Client] has seen a psychiatrist who [the Client] was still seeing at the time of [the Client’s] testimony and that [the Client] has been put on medication.

[The Client]’s testimony was the subject of two and a half days of vigorous cross-examination. [The Client] remained calm and confident. [The Client] answered the questions [the Client] could and admitted when [the Client] did not know the answer or could not remember a particular detail. Mr. Stephenson questioned [the Client] extensively on [the Client’s] level of intoxication and whether it was even possible for [the Client] to recall the details [the Client] claims to have heard and seen. [The Client]’s responses remained consistent with [the Client’s] evidence-in-chief.

Mr. Stephenson asked [the Client] questions about [the Client’s] companions the evening of the incident. Why did [the Client] call them [by family titles] when [the Client] didn’t even know their last names? [The Client] explained that it was common in [the Client’s] culture to refer to older people [by family titles].

Mr. Stephenson questioned [the Client] at length regarding [the Client’s] interviews with the police, the College investigator and College Counsel, Ms. Durcan. These questions were intended in part to show inconsistencies and weaknesses in [the Client]’s testimony. For example, Mr. Stephenson asked [the Client] about whether it was a car or a van that [the Client] came to the hospital in because [the Client] had referred to the vehicle both ways in different interviews. [The Client] explained that [the Client] often used the terms interchangeably.

These questions required Mr. Stephenson to refer to notes taken by various interviewers. As an example, he asked [the Client], “You told [a College investigator] in your June 2012 interview that you reported this matter to the police the next day, didn’t you?” [The Client] replied, “It was the same day.” Mr. Stephenson continued with the line of questioning and then finally asked, “So [the College investigator] has got it wrong?” [The Client] replied, “Yes, because I called the same day.” Whether the fault was of [the College investigator] or [the Client], the panel accepts this as a minor inconsistency easily made. [The Client] went out with [ ] companions on the evening of December 10, 2011. The incident occurred in the early morning hours of December 11, 2011. [The Client] slept for a period of time, went home, slept and cried for a period of time and then called police. [The Client] may or may not have reported to [the College investigator] that [the Client] called the police the next day, but establishing that fact is not material to the determination of whether or not the incident occurred. Going to bed after midnight and waking in the morning may seem like the next day but technically it is the same day. Reporting in an interview six months after the fact, it is easy to accidently misrepresent whether or not it was actually the same day or the next. Either way, the answer has little if any import in the determination of the facts of the incident.

Similarly, Mr. Stephenson questioned [the Client] about the reason [the Client] was out celebrating. He pointed out that [the Client] told [Detective A] [the Client] was there celebrating a 100% placement for school. He noted that [the Client] told [the College investigator] [the Client] was there celebrating the end of the semester and that [the Client] told Ms. Durcan she was celebrating after a few hard exams. He then suggested that another reason [the Client] would have been out with [ ] friends at that particular bar that evening was because of an [ ] awards night. [The Client] denied attending for anything other than celebrating [the Client’s] school achievements. The panel accepts [the Client]’s reason for celebrating. [The Client] is consistent with [the Client’s] explanation throughout every interview. Even though [the Client] may have described different aspects of this celebration in different interviews at different times with different people, each description is consistent with the celebration of school achievements. [The Client] did not attempt to hide the information about the [ ] awards from anyone. [The Client] disclosed to the College (through her interview with College Counsel, Ms. Durcan) that this event occurred at the bar during the period of time that [the Client] was there with [ ] friends. In any event, the panel is unsure of the significance of why [the Client] was at the bar that evening, and whether this even bears any relevance to the facts that need to be determined in this case. It is clear to the panel that [the Client] was there to celebrate school achievements and that remains true even if [the Client’s] companions had additional reasons for being there, and even if [the Client’s] time at the bar involved an [ ] awards event.

Mr. Stephenson questioned [the Client] about what [the Client] told police. He said, “You told the police officer that you were semi-conscious at the time all of this happened, didn’t you?” [The Client] responded, “No, I did not.” Mr. Stephenson questioned [the Client] further and [the Client] explained that [the Client] would not have used that term because [the Client] did not know what it meant. Mr. Stephenson applied this approach to his questioning around each of the interviews. Mr. Stephenson picked out details to question [the Client] about and asked [the Client] if [the Client] said that particular word or phrase in the interview. If [the Client] replied negatively, then he would ask [ ], “Then did they get it wrong?” or ask [ ], “So this person is lying?” [The Client] responded each time by saying, “I didn’t say that” or, “I didn’t use those words” or something similar.

The panel found that these questions regarding terminology did not impact negatively on the credibility of [the Client]. A person reporting something to another cannot bear the responsibility for what the interviewer scribes in their notes. Note-takers may substitute their own words to summarize a point or phrase when the person reporting may have used entirely different words. Although the notes were disclosed to Mr. Stephenson, none of the notes were submitted into evidence and none of the authors of these various notes were ever called to testify to the level of accuracy in their respective notes or even to explain to the panel if the notes were a summary of what was said or a verbatim recitation of what [the Client] reported to them. Instead of calling the interviewers to testify, Mr. Stephenson tended to suggest to [the Client] that if [the Client] was correct, then the interviewer must therefore be lying. [The Client] of course cannot know what was in the mind of the interviewer when the notes were made. Without the testimony of the note-takers, it is impossible for the panel to determine how accurate the notes were.

Mr. Stephenson questioned why [the Client] would not have objected to the wording when [the Client] reviewed the notes prior to the hearing. Although it seems certain that [the Client] would have seen the police notes and the College’s notes, [the Client] had little if any recollection of having done so. Considering the time elapsed, the panel does not find it unusual that [the Client] would not remember the content of the notes taken by others. The panel is also convinced that at the time [the Client] reviewed the notes, [the Client’s] familiarity with the legal process was naive at best. It is unlikely that [the Client] would have suspected that [the Client’s] credibility could be negatively impacted by the simple use or misuse of a single word. What the panel did note was that [the Client] was consistent in [the Client’s] denial of certain words and phrases that were incongruent with [the Client’s] recollection of events. Throughout [the Client’s] testimony, [the Client] consistently used simple, plain language. The record will show that [the Client] was often confused by the phrasing of Mr. Stephenson’s questions. The panel found [the Client’s] confusion to be quite genuine and not a means of avoidance or evasion.

One area of inconsistency that the panel had to address is whether [the Client] reported to [Nurse A] that [the Client] awoke to find the Member masturbating with [the Client’s] hand on his penis (which is what [the Client] recalls reporting) or whether [the Client] reported to [Nurse A] that [the Client] awoke to find [the Client’s] hand on the Member’s penis with the Member pulling [the Client’s] head toward his crotch (which is what [Nurse A] recalls [the Client] saying). [The Client] emphatically denies that [the Client] ever said that the Member pulled [the Client’s] head toward his crotch, while [Nurse A] reported that this is what [the Client] told her when she went into [the Client]’s room to listen to [the Client]’s complaint. [Nurse A] testified that she wrote a report at 0515 hours on the morning of December 11, 2011, after [the Client] was discharged, documenting that [the Client] reported that the Member had complained of “a male nurse who put [the Client’s] hand on his penis and then put [the Client’s] head in his crouch [sic]”. The evidence shows that the note was not in fact made at 0515. [Nurse A] acknowledged that she wrote her note after having discussions with both [Nurse B] and the Member. Further, [the Client] never had an opportunity to review or correct any statements contained in [Nurse A]’s report as it only became part of [the] medical record after [the Client] was discharged. [Nurse A] also acknowledged that [the Client] was upset and angry when reporting the incident to her. [Nurse A] testified that she was not going to write it like [the Client] said it but she knew what [the Client] meant. [Nurse B] testified she was unable to recall how the “act” was described to her by [the Client] and could not recall if she heard the details from [the Client] or from the discussion with [Nurse A].

If [the Client] had told [Nurse A] that the Member had put [the Client’s] head in or towards his crotch, and then denied that at this hearing, that would be a factor to consider in weighing [the Client]’s credibility. However, the panel cannot understand why [the Client] would deny this aspect of the assault if it actually occurred. The panel believes it is far more likely that the story would become embellished in the retelling over the course of more than two years, rather than be understated. The most logical explanation is that [Nurse A] was either mistaken in her translation of what [the Client] said or she simply misheard what [the Client] said. The only other logical possibility is that [Nurse A], [Nurse B], and the Member may well have contaminated the details during their discussions. The panel is satisfied that the inconsistency around what actually occurred is not the fault of [the Client] but rather in the inaccuracy of the documentation.

Mr. Stephenson questioned [the Client] around [the Client’s] statement that while the assault was taking place, [the Client] was not able to respond verbally or make voluntary movement. He referred [the Client] back to a description of when the catheter was inserted and how [the Client] reported to [the College investigator] that [the Client] was kicking [the Client’s] legs. He questioned why [the Client] did not report to the police that [the Client] had the “the physical means to prevent the assault”. In his questioning, Mr. Stephenson makes no allowance for the passage of time or the administration of gravol. The panel is cognisant of the implications of both these factors and is aware that a [client]’s status is not always static. The panel is able to make the distinction that the kicking referred to in the report to [the College investigator] was done in response to the pain stimulus triggered when [the Client] was catheterized shortly after arrival in the emergency department. This is confirmed in the Joint Book of Documents [ ] where it is charted that [the Client] had, despite [the Client’s] level of intoxication, the ability to spontaneously react to pain. [The Client] is consistent in [the Client’s] description of being unable to physically or verbally respond at the time of the assault, which occurred after [the Client] was medicated with gravol. Having an involuntary response to pain is not inconsistent with having an inability to move voluntarily sometime after the administration of a drug (gravol) commonly known for its sedative effect. The two realities are not necessarily mutually exclusive. The panel believes [the Client] did not have “the physical means to prevent the assault”.

The level of [the Client’s] intoxication certainly weighed heavily over the testimony of [the Client]. However, as described in more detail below, [the Client]’s recollections were supported over and over again by the video evidence. There was also a lack of evidence to support a reasonable alternative explanation for what occurred between 2:52:36 hours and 2:57:43 hours when the Member was in [the Client]’s room alone. The panel had to consider how [the Client] could possibly fabricate the details chronicled in the security video without ever knowing the video existed. Although [the Client] was clearly and admittedly intoxicated, [the Client] was still able to properly sequence the events so they line up appropriately with what the video demonstrated. How could [the Client] have accomplished this if not by [the Client’s] own recollection? [Family Member A] did not arrive back at the hospital from retrieving [the Client’s] health card until after the incident occurred. [Family Member B] left the hospital just prior to the incident. No one could have supplemented [the Client’s] memory in order for [the Client] to report the incident in the morning of the event. Nor could anyone have provided [the Client] with the details later.

Despite Mr. Stephenson’s considerable efforts to prove otherwise, the panel found [the Client] to be quite credible. [The Client] told [the Client’s] story in a consistent manner. [The Client] remained calm under significant pressure in cross-examination. [The Client’s] recall of the sequence of events is substantially supported by other evidence. When there was conflicting witness testimony with regard to the sequence of events, the order of events as related by [the Client] was borne out by the video.

[The Client] readily admitted when [the Client] did not understand a question or did not know the answer. Although intoxicated at the time of the incident, [the Client] had accurate recall of the relevant events. While [the Client] has an obvious interest in the outcome, it is important to note [the Client] did not initiate this proceeding against the Member. When the police informed [the Client] that they would not pursue criminal charges against the Member, [the Client] let the matter drop. It was not until [the Client] was contacted by the College following a report from [the Facility] that [the Client] told the College [the Client’s] story. The College subsequently called [the Client] as a witness for this discipline hearing. The panel accepts [the Client’s] evidence as a true rendering of what occurred December 11, 2011.

Witness # 2: [Family Member A]

[Witness #2] is [the Client]’s [Family Member A], and was at the time of the incident. [Family Member A] did not have a lot to offer the panel in terms of details around the events because he simply was not present during the period of the incident. He was able to speak to events up to [the Client]’s admission to the emergency department and to what occurred when [the Client] awoke after the assault. During the interim period, he had left the hospital in search of [the Client]’s health card and was therefore unaware of events during his absence.

[Family Member A] confirmed that he and [the Client] as well as [Family Member B] and [Family Member C] were out at a bar celebrating [the Client]’s scholastic accomplishments. He also testified that [the Client] appeared fine until they got in the van to leave. He stated that [the Client] began feeling unwell and started throwing up. He and his companions became concerned when [the Client] was unable to speak to them. He testified that they brought [the Client] to [the Facility]. When they were in the waiting room, he became a little upset because he thought no one was doing anything for [the Client]. After [the Client] was admitted to the emergency department, he went home to find [the Client’s] health card.

[Family Member A] related his recollection of what occurred upon his return to hospital. While the gist of his testimony is similar to the description of events told by [the Client], [Family Member A]’s recollection was not as complete nor as accurate. The inaccuracies of his recollection were highlighted during cross-examination, when Mr. Stephenson took him step-by-step through the security video. While there is no audio component to the video, certainly the sequence of events was captured and [Family Member A]’s recollections were somewhat out of step with the video. He had a general recollection of events but his recollection of details as to how or when an action occurred was often confused or inaccurate.

Aside from [the Client] []self and a statement by [Nurse A] about [the Client] being upset and angry, [Family Member A] was the only person who was able to provide insight into the impact of the incident on [the Client]. [Family Member A] was able to relate how [the Client] was affected following the incident.

The panel observed that [Family Member A] became slightly hostile during cross-examination. He did not have the best recollection of events and was unclear on some of the details. However, the panel was not convinced he intended to misrepresent the facts. The panel is of the opinion that he recited honest if inaccurate recollections of the events which occurred almost two years prior to the hearing.

Witness # 3: [Nurse A]

[Nurse A] was the lead nurse for [the Client] on December 11, 2011. At the time of the hearing she had been a nurse for twenty three and a half years. At the time of the incident she was working night shift from 1930 hours December 10, 2011, until 0730 hours December 11, 2011. [Nurse A] testified that she volunteered to take over the care of [the Client] because she didn’t have any [clients] in her assigned area and the Member, who was assigned to [the Room], was busy in [another room] with another [client]. She stated that [ ] the emergency department’s aide and [Family Member B] assisted her with getting [the Client] onto the bed from the wheelchair [the Client] was in. [Nurse A] stated that she undressed [the Client] and put a gown on [the Client]. She stated she cannot remember if anyone assisted her in doing this.

[Nurse A] described [the Room] as having a curtain across the door. The monitor was located in the left corner of the room. This was consistent with [the Client]’s recollection of [the Room].

[Nurse A] testified that she started administering fluids intravenously and drew some blood. She knew [the Client] needed gravol and asked the Member to request an order from [Dr. A]. She said that the Member went and got the gravol, mixed it and hung it. [Nurse A] believes she was still drawing blood when this occurred, but honestly could not remember. She stated that after the gravol was administered, she started to put in a foley catheter to prevent [the Client] from being incontinent. [Nurse A] said [the Client] was kicking and screaming and she could not catheterize [the Client] without assistance. She asked the Member to assist her. [Nurse A] said that when the Member assisted her, he turned his back to [the Client] and spread [the Client]’s legs so that [Nurse A] could insert the catheter. When [Nurse A] was asked what time the catheter was inserted, she asked to see [the Client]’s medical record. [Nurse A] viewed the record but was unable to ascertain the time because this information was not recorded.

[Nurse A] did an assessment upon [the Client]’s arrival. She noted the Glasgow Coma Scale was 6. She stated that scores below 9 usually require the [client] to be intubated but because [the Client] was “rousable” and maintaining [the Client’s] own airway, it was not necessary to intubate [the Client]. [Nurse A] noted that [the Client] did not respond verbally but opened [the Client’s] eyes to pain. She noted that the pupils were normal and reactive and that the strength assessment demonstrated strong kicking and pushing. She said [the Client]’s vital signs were normal. [The Client]’s chart [ ] indicated that this [client] assessment was done at 0300 hours. [Nurse A] confirmed that the chart indicates the catheter was already inserted by the time of the assessment.

[Nurse A] was asked to confirm the time that gravol was given. She reviewed [the Client]’s chart, which indicated that the gravol was given at 0540 hours [ ]. This could not be correct as it was after [the Client] was discharged. [Nurse A] was asked if she had made the entry on [the Client]’s chart about the gravol, and she replied, “No, [the Member] did.”

[Nurse A] testified she believes she went on break afterward and when she returned she heard arguing in [the Client]’s room. She stated she heard raised voices. When [Family Member A] came to the desk to request someone come talk to [the Client], [Nurse B] went to speak to [the Client]. [Nurse A] said [Nurse B] returned quickly and told her, “[The Client]’s got a complaint, you better go talk to [the Client]”. [Nurse A] recalled that the Member was on his break at the time. [Nurse A] said that when she went to speak to [the Client], [the Client] was sitting up in bed. She said [the Client] was angry and said there was a male nurse who put [the Client’s] hand on his penis and [the Client’s] “head to his crotch”. [Nurse A] stated that was not the way [the Client] said it but, “I wasn’t going to write it down the way [the Client] said it, but I knew what [the Client] meant”. She said [the Client] stated that [the Client] was too drunk at the time to do anything but stare at him. She said that [the Client] told her that when he realized [the Client] saw him, he ran to the back of the room where the monitors are and then left the room.

[Nurse A] stated that she asked [the Client] for a description of the person. [The Client] described him as tall, white and wearing a blue uniform. [Nurse A] described [the Client] as upset and angry but not shouting. [Nurse A] told [the Client] to be careful and make sure what [the Client] was saying was true because it could ruin someone’s life.

When asked if [Nurse A] told [Nurse B] that the man aimed [the Client]’s head at his crotch, she answered that she thought so.

[Nurse A] testified that when the Member came back from break, she told him about the complaint. She told the panel that she honestly did not remember everything she told the Member, but she remembers advising him to call [ ] (the Patient Care Nurse Manager) and to contact the union representative. The Member was advised to leave the floor until [the Client] was discharged.

[Nurse A] acknowledged that she copied only part of the chart and provided it to [the Client] when [the Client] was discharged. [Nurse A] stated it was hospital policy not to release the entire chart.

Once [the Client] was discharged, the Member returned to the area and talked to [Nurse A] and [Nurse B]. When asked if the Member had told them at that point that he had been in [the Room] alone with [the Client], [Nurse A] responded, “No”. When asked if the Member had told them that at some point [the Client]’s hand had fallen from the bed and brushed his crotch, she again replied, “No”.

[Nurse A] stated that immediately following this discussion, she went to write her note. In the note, which she said was written at 0515 hours, [Nurse A] wrote that she advised the [client] that at no time was anyone alone with [the Client] other than herself.

[Nurse A] could not remember if she told the Member about the accusation that he had put [the Client]’s head in his crotch, but she did give the Member a copy of the note. [Nurse A] said she remembers the Member standing there looking perplexed when [Nurse B] told him to contact his union. When asked if she told anyone else, [Nurse A] replied that she could not remember but she did recall [Dr. B] saying that the Member was always with her in [another room] that night.

When asked if the Member said anything after seeing the notes, [Nurse A] replied that he did not. When [Nurse A] was asked if the Member ever told her he was in the room alone with [the Client], she responded that he did not, “Otherwise I wouldn’t have said emphatically that he wasn’t”. She further stated, “When I gave my statement, [the Member] read it ... At no point did he say that’s not correct nor did he contact me over the past two years to say he had to go back into the room.”

[Nurse A] was asked if the Member ever advised her that [the Client]’s hand fell off the bed and hit him in the crotch. She responded with an emphatic, “No”.

[Nurse A] testified that she learned the next day during her interview with the police that there was security video footage that showed the Member was in [the Room] alone for a period of time. She was uncertain how long that period of time was. She confirmed this information with a hospital security person she spoke to, who had viewed the footage with the police. [Nurse A] said she asked the security person where the video indicated she was at the time of the incident. The security person told [Nurse A] she was working. [Nurse A] recalled she was hoping that the video would confirm that the Member had not been in the room, because she did not want to see a colleague accused of something like this.

[Nurse A] was questioned about [the Client]’s medical chart [ ]. She confirmed that the timelines in her notes could not have been correct because some of the care charted referred to times that were after [the Client] had been discharged. The chart was also reviewed for content, including the note that [Nurse A] wrote documenting [the Client]’s report. [Nurse A] stated that [the ward aide] had only been in [the Room] one time, when he assisted in getting [the Client] into bed and bringing in a warm blanket. She confirmed that the Member hung the gravol, and agreed that her note was wrong to the extent that it suggested that the Member hung the gravol before the catheter was inserted. She explained this error was probably because she did not have the chart when she wrote the note, something that she remarked happened frequently. Paragraph 4 of her note states that the Member assisted with the catheterization by holding [the Client]’s leg, which he did standing behind [the Client], and then the Member left the room. [Nurse A] confirmed that at the time she wrote the note, she believed she was the only nurse who had ongoing contact with [the Client] because she was unaware that the Member had ever been in [the Room] alone. Paragraph 5 of [Nurse A]’s note refers to the [Client] having “sobered up” at the time [the Client] reported the assault. When asked about that statement, [Nurse A] responded that by that time, [the Client] was a lot more coherent than when [the Client] arrived.

As to [the Client]’s report, [Nurse A] stated that she still recalls two voices yelling. She stated that they were arguing. [Nurse A] stood by her statement that she heard [the Client] say that the male nurse pulled [the Client] head to his crotch. She denied misinterpreting what [the Client] said.

[Nurse A] stated that she spoke to [the Patient Care Nurse Manager] and told her that “If he [the Member] told me he was in the room, my charting would be completely different, but he never said anything.” [Nurse A] stated that she had never seen the video prior to the hearing. She said the first time that she had seen the Member since December 11, 2011, was the Thursday prior to her testimony at this hearing.

Portions of the video were reviewed with [Nurse A]. She acknowledged the times on the clocks are different from the times on the video clips, and stated that the clocks in the hospital are all different. She confirmed that the video showed that [the Client] was in [the Room] prior to 0215 hours and that [Nurse A] was coming out of the room at that time after getting [the Client] onto the stretcher. She observed [the ward aide] enter and exit twice while [Nurse A] was in [the Room], once to bring in a gown and warm blanket and once to bring in a blood pressure cuff. While viewing the footage, [Nurse A] tried to remember whether or not the catheter was in place by 0252 hours, and at first she said she thought it was not. At 2:48:36, she noted, the video showed that the Member went into the room with what she initially thought was the gravol, but then she corrected herself saying that it would not be the gravol because gravol does not need a pump. The video demonstrated that the Member was in the room from 02:52:36 until 0 2:57:43. At 2:53:01, [Nurse A] left the room, leaving the Member in [the Room] alone with [the Client]. When asked again if the catheter was inserted prior to 02:52, [Nurse A] replied that it looks like it would have been.

Cross-examination established that the times that the Member entered [the Room] were at the request of [Nurse A]. During cross-examination, [Nurse A] reaffirmed that she had been unaware at the time that the Member had not exited [the Room] when she did (at 02:53:01 hours).

It is clear that [Nurse A] had no personal or professional interest in the outcome of the hearing. The panel was satisfied that she was honest and forthcoming in her testimony and that any errors she made were a result of not remembering or [of] misremembering. Her testimony appeared truthful to the best of her recollection but her recollection was flawed. She had to revise her statements a couple of times. In particular, she had difficulty with the sequence of events and her chart notes did not assist in clarification because they either did not record the time or the times were recorded, by the witness’s own admission, incorrectly. As stated above, the panel specifically finds that [Nurse A] was mistaken when she testified that [the Client] told her that the male nurse had put [the Client’s] head in or toward his crotch.

Witness # 4: [Nurse B]

[Nurse B] has been a nurse since 1972. She has worked in the emergency department of [the Facility] since 1986. She was working the night shift from 1930 hours on December 10, 2011, through to 0730 hours December 11, 2011.

[Nurse B] recalls only one encounter with [the Client]. She stated that her colleague, [Nurse A], was busy so she volunteered to go speak to [the Client] when [Family Member A] requested that someone talk to [the Client]. She stated that she was aware of the circumstances around [the Client]’s admission to the emergency department. She could not recall how she became aware, but thought that might have been through discussions with [Nurse A] and the Member. [Nurse B] recalled that [the Client] was [young,] in a wheelchair, unable to sit up on [the Client’s] own on arrival. She recalled that [the Client] was taken into [the Room]. She said [the Client] was lifted to a stretcher. Blood was drawn and an intravenous was started. The only other detail she recalled about [the Client]’s arrival is that [the Client] presented vomiting. [Nurse B] stated that she answered the phone to receive the lab results so she was aware that [the Client]’s alcohol level registered at 47. She testified that anything over 39 was considered toxic. [Nurse B] confirmed that the interior of [the Room] cannot be viewed from the nursing station.

Just prior to [Family Member A] approaching the nursing desk to ask for someone to speak to [the Client], [Nurse B] recalls hearing raised voices. She stated the voices were loud enough to hear at the nursing station. [Nurse B] stated [Nurse A] was charting so she volunteered to go in. She recalls going into the room with [Family Member A]. [Nurse B] stated that she was shocked at how articulate [the Client] was. She stated that [the Client] was very clear in [the Client’s] thoughts and very clear in what [the Client] wanted to report. [Nurse B] said [the Client] thought she was laughing at [the Client] and told her not to laugh. [Nurse B] said she advised [the Client] she was not laughing at [the Client] and said that she was going to bring [Nurse A] in to speak to [the Client].

[Nurse B] stated [the Client] told her [the Client] remembered everything that had occurred since [the Client] came to the ER. [Nurse B] commented that [the Client] was so descriptive. She said [the Client] told her [the Client] remembered being put on the stretcher. [The Client] remembered [Family Member A] leaving to get [the Client’s] health card. She stated when she heard [the Client]’s complaint, she was flabbergasted. [Nurse B] testified that [the Client] had implied that there was an “impropriety”, that there was contact between [the Client] and the Member’s penis. [Nurse B] said that was very shocking and not what she expected. When asked to clarify if [the Client] used the word “impropriety”, [Nurse B] stated, “[The Client] described an act, I’m not sure what he did anymore”.

When asked if she recalled if [the Client] described [the Client’s] head being pulled toward the man’s crotch, [Nurse B] responded that she cannot remember whether she heard that from [the Client] or in a discussion with others later. She did remember it being described at some point. [Nurse B] confirmed her entry in [the Client]’s chart, purporting to be at 0500 hours, where she recorded responding to a complaint where the [client] stated that “a male nurse demanded [the Client] hold his penis – [the Client] stated [the Client] was “too drunk” to refuse.” [Nurse B] testified that she charted this report immediately after leaving [the Client]’s room. She stated that she asked [Nurse A] to go into the room to speak with [the Client]. She said she told [Nurse A] that it was a very serious complaint but did not tell her the details. She stated that the Member was on his break during this period.

She recollected that the Member returned from break before [the Client] was discharged and she advised him that he shouldn’t be there until after [the Client] was discharged. She said that she cannot recall if she told him the details, but she did advise the Member that something serious was going on. [Nurse B] stated she thought [the Client] left around 0500 hours. She said that [the Client] was given the manager’s phone number and told to go home and think about it, and if it was true to act upon it.

The video shows [the Client] leaving the emergency department at 05:39:00. After [the Client] left, [Nurse B] called the Member back to the department and explained what [the Client] had said. She testified that the Member arrived back in the department at 05:44:30. [Nurse B] said she discussed the lack of charting and asked both the Member and [Nurse A] to bring the notes up to date. She stated that they are allowed to chart after the fact as long as it is noted as a late entry. [Nurse B] said [Nurse A] left to go on break and write up her notes. [Nurse B] said she told the Member to call the manager and the union. When asked if the Member ever mentioned being in [the Room] alone with [the Client], [Nurse B] stated that she could not recall him mentioning it. When asked if the Member ever mentioned that [the Client]’s hand may have hit his groin, [Nurse B] responded that she did not recall him ever saying anything like that.

[Nurse B] was asked to explain why she would have charted that that she went into [the Client]’s room at 0500 hours when the security video showed that she went into the room at 0515. She replied, “You’re lucky if you can find two clocks that match.”

[Nurse B] described her relationship with the Member as friendly and professional. She stated they never had contact outside of work.

[Nurse B] had no interest in the outcome of the hearing. She appeared truthful and relaxed. The panel believes her testimony fairly and honestly represented her best recollections of the occurrences of December 11, 2011.

Witness # 5: [ ]

[Witness #5] is the Human Resources Manager at [the Facility]. She has been in that position for five years. She became involved with this matter when she received an e-mail message from [the Patient Care Nurse Manager (the Manager)], which forwarded an e-mail chain between the Member and [the Manager]. The Member reported the complaint to [the Manager]. His reporting e-mail stated, “[The Client] is claiming a male came into [the] room and made [the Client] touch his genitals.....I went into the room to assist [Nurse A] on 2 occasions. I did not do what [the Client] is claiming”. [The Manager]’s responding email to the Member indicated that she would review the [Client]’s chart and would send a request to security for the video for the entrances to the [Client]’s room. As a result of this e-mail, [Witness #5} initiated an investigation. [Witness #5] sent an e-mail message back to [the Manager] requesting the names of the individuals scheduled on the night shift in question. She also requested the staffing schedules.

[Witness #5]’s investigation focused on the Member because of the e-mail the Member sent to [the Manager]. [Witness #5] interviewed all relevant staff members. She contacted the Member on December 13, 2011, and informed him that he would be on paid leave while the investigation took place. [Witness #5] acquired the security tapes from the security manager. When she first viewed the tapes, she did not see the Member in [the Room] alone with [the Client], because there was a lot of movement back and forth from the rooms. [Witness #5] stated that by the end of December, she had interviewed everyone except [Dr. B] and the Member. However, [Witness #5] received an e-mail from [Dr. B] stating that at no time was the Member in [the Room], and that the Member was a good nurse.

[Witness #5] met with the Member for the first time on January 3, 2012, because of the Christmas season and the availability of a union representative to attend with the Member. [Witness #5] said that during this meeting, the Member told her that there was a time he had been alone with [the Client] in [the Room]. He told [Witness #5] that he was at the nursing station and heard a monitor ring. He went to check [the Client]. He told [Witness #5] that as he was leaving the room, [the Client] started to vomit. He said he went to check [the Client] and [the Client’s] hand flopped off the bed and hit his genital area.¹

On January 6, 2012, [Witness #5] held another meeting with the Member to review the video tapes and ask further questions. [The Manager], [Witness #5], the Member and the Member’s union representative were present. The Member again told [Witness #5] why he had been in [the Room] alone with [the Client]. [Witness #5] stated that his explanation was consistent with what he said on January 3, 2012. [Witness #5] spoke of another video tape of the other hall. She told the panel that her handwritten notes and one of the videos were “not returned” but did not explain from where.

The panel was satisfied that [Witness #5] had no personal or professional interest in the outcome of the hearing. She appeared direct and truthful in her answers. [Witness #5]’s evidence includes the Member’s admission that he was in [the Room] alone with [the Client]. [Witness #5] and [the Manager] are the only sources of an explanation as to why the Member would be in the room alone, and the panel accepts that [Witness #5] accurately recalled what the Member said on this point.

Witness # 6: [ ]

The College tendered [Witness #6] as an expert witness, qualified to give opinion evidence on the standards of practice of the nursing profession; abuse of [clients] by nurses, physically, emotionally and sexually; boundary issues between nurses and clients; and nursing documentation. Mr. Stephenson agreed that [the expert] was qualified as an expert in these areas.

The panel reviewed [the expert]’s Curriculum Vitae [ ] and was satisfied that she is qualified as an expert as agreed to by the parties. The panel understands that [the expert] is the College’s expert witness, hired to give opinion evidence for the panel’s consideration, and that the panel is not compelled to accept an expert’s opinion.

[The expert] stated that in preparation for the hearing she was sent a hypothetical scenario which she described to the panel and which generally matched the allegations against the Member. She was asked for her opinion as to whether the hypothetical, if true, would constitute a breach of the standards of practice of the profession or not. As part of her evidence, [the expert] identified certain of the College’s published standards: the Therapeutic Nurse-Client Relationship, Revised 2006 [ ]; the Professional Standards, Revised 2002 [ ]; and the Documentation Standard, Revised 2008 [ ].

[The expert] opined that if the nurse acted as described in the hypothetical, then that would constitute an abuse of power and sexual abuse. Her opinion is based on the imbalance of power in the nurse/client relationship. The client is dependent on the nurse for care, therefore the nurse is in a position of power. She stated a nurse must always be respectful but the behaviour described in the hypothetical is disrespectful and humiliating. [The expert] referred to page four of the Therapeutic Nurse – Client Relationship Standard as the basis for this opinion. That standard reads, “The nurse – client relationship is one of unequal power. Although the nurse may not immediately perceive it, the nurse has more power than the client.” [The expert] also referred to the Professional Standards at page 11, which states that, “Each nurse establishes and maintains respectful, collaborative, therapeutic and professional relationships.” [The expert] then referred the panel to page 9 of the Therapeutic Nurse – Client Relationship. She emphasised that the standard required nurses to not exhibit physical, verbal and non-verbal behaviours toward a client that demonstrate disrespect for the client and/or are perceived by the client and/or others as abusive.

[The expert] explained that in her opinion placing a [client’s] hand on the nurse’s penis meets the criteria for sexual abuse. She describes it as exploitive, disrespectful and humiliating. [The expert] stated such behaviour would contain elements of sexual, physical, emotional and psychological abuse.

As to the allegation that the Member failed to keep records as required, [the expert] was asked whether she would expect a nurse to document if a nurse went into a room to check a monitor, straightened the [client]’s bed and clothing and while present noticed the [client] retching and cleaned them up. [the expert] replied that if the hospital policy was charting by exception she would not necessarily expect detailed documentation around those hypothetical facts. [The expert]’s opinion was that this hypothetical scenario would not necessarily be a breach of the College’s standard with respect to documentation.

The panel agrees with the opinion of [the expert] in that the panel finds that if the events unfolded as described in the hypothetical or with minor variations thereof, then the Member’s actions would represent breaches of the Therapeutic Nurse – Client Relationship, Revised 2006 and the Professional Standards, Revised 2002.

Witness # 7: [the Manager]

[Witness #7] is the Patient Care Nurse Manager [(the Manager)] in the emergency and urgent care areas of [the Facility]. She has occupied that position since December 14, 2009, and has been employed at [the Facility] since 2002.

[The Manager] identified the emergency department floor plan [ ] for the panel. She also identified the copy of the e-mail the Member sent to her, with her response back to him [ ]. [The Manager] did not get a response from the Member, and did not follow up to see why. She stated that she was instructed by Human Resources not to follow up with the Member, and that they would do it.

[The Manager] described the steps she took to initiate and further the investigation. This included contacting the appropriate people, reviewing [the Client]’s chart (including the note from [Nurse A]) and obtaining the video footage of the area surrounding [the Room] from the head of security. She had conversations with [Nurse A] and [Nurse B] about the matter.

As to the video evidence, [the Manager] first viewed the video in the company of others involved in the investigation. She stated that during this review, they could not identify whether or not the Member was alone with [the Client] in [the Room]. [The Manager] subsequently learned from the police that they had seen security video footage which confirmed that the Member was in [the Room] alone with [the Client] for about five minutes. [The Manager] then viewed the footage that the police [ ] had identified and was able to confirm that the Member had been in [the Client]’s room alone. [The Manager] passed on her information to [Witness #5] in Human Resources.

[The Manager] was not present at the January 3, 2012 meeting that [Witness #5] had with the Member. She became aware that as a result of the January 3, 2012, meeting, a course of action was proposed that did not include termination of the Member’s employment. The senior management team disagreed with this proposed course of action and felt the Member should be terminated. [The Manager] was uncomfortable with this. As the manager, her name would go on the termination. She thought the Member should have the opportunity to review the video and be asked questions. Hence she scheduled the meeting on January 6, 2012.

[The Manager] stated that the January 6, 2012, meeting was attended by her, the Member, the Member’s union representative and [Witness #5]. The Member was given an update about the ongoing investigation and was informed that the hospital had a duty to report the [Client]’s allegations to the College. [The Manager] believed the Member told them he was at the nursing station when an oxygen monitor rang, and as [Nurse A] was on break, he went into the room to respond to the alarm. She said the Member stated he wanted a baseline on the [Client] and that while leaving the room, he heard the [Client] vomiting and retching, and he returned to the [Client] to assess. She said the Member stated that the [Client]’s hand hit him in the crotch, the [Client] opened [the Client’s] eyes and he moved back and hit his head on the monitor on the left side of the room. [The Manager]’s best recollection was the Member told them he had been at the desk when he heard the monitor. She confirmed that all [client] rooms have central monitoring that feeds into the nursing station.

[The Manager] testified that when the Member gave this explanation she was surprised, because having reviewed the chart and the complaint, she was unaware the oxygen alarm had sounded. When asked if she would expect to see this activity documented in the chart, [the Manager] responded that “if a baseline was done, I would imagine you would document the assessment and intervention”.

During cross-examination, [the Manager] testified that there are four or five monitors in and around the nursing station which display vital signs like heart and oxygen so that staff can see them quite readily.

Mr. Stephenson advised [the Manager] said that when [Witness #5] testified, she did not recollect the Member saying he had hit his head on a monitor. He put it to [the Manager] that either [Witness #5] or [the Manager] had made a mistake. [The Manager] responded that, “I don’t know if I would call it a mistake. I would not embellish”.

The panel was satisfied that [the Manager] had no personal or professional interest in the outcome of the hearing. The panel found her testimony to be straightforward and confident. She readily admitted when she could not recollect something. The panel is satisfied that her testimony is credible and accurately reflects her involvement in the investigation of the incident and her recollection of what she learned through the interview process.

The Video Evidence

The Joint Book of Documents [ ] contained the hospital security video footage of the hallways outside [the Room] for the time period immediately surrounding [the Client]’s stay in the emergency department. There are 5 clips in total on the disk. The panel was [led] through select sections of the video clips during witness testimony. Both the Member’s Counsel and the College’s Counsel brought certain portions of the video to the attention of the panel during this process.

During early deliberations, the panel watched the video footage in its entirety. The panel also reviewed certain relevant sections numerous times to clarify both the sequence of events and the actions of those persons captured in the video footage. The video footage was invaluable to the panel in assessing the events of December 11, 2011, between 0200 hours and 0600 hours. There is no audio component to the video.

The panel observed the following.

Clip 12

02:13:14 - [the Client] is taken into [the Room] accompanied by [Family Member B]

02:14:37 - [Nurse A] and [the ward aide] enter [the Room], [Family Member B] is still in the room

02:18:02 – [the ward aide] exits [the Room] with the wheelchair

02:18:25 – [the ward aide] re-enters [the Room]

02:19:30 – [Family Member B] exits [the Room]

02:20:00 – the Member opens IV bag as he enters [another room]

02:20:48 – [the ward aide] exits [the Room]

02:22:04 – [the ward aide] enters [the Room] with bag for [client] clothing

02:22:52 – [the ward aide] exits [the Room]

02:23:27 – [Nurse A] exits [the Room], [the Client] is in room alone

02:24:11 – [Nurse A] enters [the Room]

02:26:00 – [Nurse A] exits [the Room]

02:26:11 – [Nurse A] enters [the Room]

02:27:04 – [the ward aide] enters [the Room] with blood pressure cuff and oxygen monitor

02:29:58 – [Nurse A] exits [the Room]

02:30:10 – [Nurse A] enters [the Room]

02:31:04 – [the ward aide] exits [the Room]

02:31:52 – Member talking at the door of [the Room]

02:32:25 – Member walks away

02:33:05 – [the ward aide] stands by the door to [the Room]

02:33:10 – Member enters [the Room] carrying what appears to be a catheter tray and tubing

02:33:11 – [the ward aide] leaves the door area and walks away from [the Room]

02:33:20 – Member exits [the Room]

02:33:50 – [the ward aide] enters [the Room] with blanket

02:34:00 – Member at medication dispensing equipment behind nursing station

02:34:57 – [the ward aide] exits [the Room]

02:36:00 – [Family Member B] looks in to [the Room] then sits back down in chair in hall

02:36:37 – Member attaches bag to IV pole

02:37:56 – [Nurse A] exits [the Room]

02:38:47 – [Nurse A] re-enters [the Room]

02:40:06 – Member enters [another room] with IV pole

02:41:48 – Member leaves [another room]

02:42:06 – [Nurse A] leaves [the Room] and goes to desk

02:42:44 – [Nurse A] enters [the Room]

02:45:17 – Member enters [the Room]

02:45:48 – Member exits [the Room]

02:48:41 – Member enters [the Room] with something small in his hand

02:50:09 – Member exits [the Room], to medication dispensing equipment behind nursing station

02:51:08 – [Family Member B] enters [the Room] with chair

02:52:00 – [Nurse A] exits [the Room] with ECG machine

02:53:18 – [Nurse A] re-enters [the Room]

02:52:36 – Member enters [the Room] with a bag of something in his hand

02:53:01 – [Nurse A] exits [the Room], pushes ECG down hall appears to have chart in hand

02:53:11 – [Family Member B] exits [the Room], wanders down the hall. Member is now alone in [the Room]

02:53:25 – [Nurse A] is at the nursing station, charting

02:53:32 – [Family Member B] leaves the unit

02:54:50 – Member’s hand is seen at the door of [the Room]

02:55:07 – Member takes one step out of [the Room], looks toward nursing station as he turns and re-enters

02:57:27 – [Nurse A] moves to stand in front of the nursing station

02:57:43 – Member exits [the Room], walks behind nursing station and sits down

02:58:07 – Member turns chair so his back is to [Nurse A], he stands a moment, sits, turns back around

03:00:00 – End of clip 12

Clip 9

03:00:58 – [Nurse A] enters [the Room]

03:01:30 – Member into [another room]

03:01:34 – [Nurse A] exits [the Room]

03:02:14 - Member exits [another room]

03:02:38 – Member enters washroom next to [the Room], does not turn on light and does not close door

03:02:54 – Member exits washroom, glances into [the Room] goes back into [another room]

03:11:15 – [Nurse A] enters [the Room]

03:12:30 – [Family Member B] and [Family Member A] arrive on unit

03:12:52 – [Nurse A] exits [the Room]

03:13:07 – [Family Member A] and [Family Member B] enter [the Room]

03:22:20 – [Family Member B] comes out of [the Room] and goes to nursing station

03:28:38 – [Family Member B] and [Family Member A] speak to [Nurse A] at nursing station then leave ward

03:36:25 – [Nurse A] in [the Room]

03:38:20 - [Nurse A] exits [the Room]

03:38:40 – [Family Member A] returns to ward and enters [the Room]

03:39:00 – [Nurse B] comes to the nursing station

04:54:15 – [Nurse A] enters [the Room]

04:54:33 – [Nurse A] exits [the Room]

04:55:12 – [Nurse A] enters [the Room]

04:56:09 – [Nurse A] exits [the Room]

04:59:25 – [Dr. A] enters [the Room]

05:01:00 – [Dr. A] exits [the Room]

05:05:20 – [Family Member A] steps out into the hall

05:05:38 – [Family Member A] re-enters [the Room]

05:11:56 – [Family Member A] exits [the Room] goes to nursing station and speaks to [Nurse A]

05:12:30 – [Nurse B] arrives, walks up to nursing station

05:12:38 – [Family Member A] enters [the Room]

05:13:25 – [Nurse B] enters [the Room]

05:14:56 – [Nurse B] exits [the Room] and speaks to [Nurse A] at nursing station

05:15:43 – [Nurse A] enters [the Room]

05:19:08 – [Nurse A] exits [the Room], goes to speak to [Nurse B]

05:21:28 – [Nurse A] enters [the Room]

05:24:40 – Member returns to unit (from break) and speaks to [Nurse B]

05:25:40 – [Nurse A] exits [the Room], speaks to both Member and [Nurse B]

05:27:00 – Member leaves the unit

05:32:30 - [the Client] exits [the Room]

05:33:18 – [Family Member A] exits [the Room] and joins [the Client] in the hall

05:37:15 – [the Client] receives what appears to be a business card from [Nurse A]

05:38:29 – Photo copies made and given to [the Client]

05:39:00 – [the Client] and [Family Member A] leave

05:44:25 – Member returns to unit and speaks to [Nurse B]

05:50.08 – Member leaves

05:51:02 – Member returns, Member, [Nurse A], and [Nurse B] are all at nursing station talking

05:53:20 – Member while sitting at the nursing station looks up toward the security camera

05:53:47 – Member gets up, walks over and looks directly into video camera then looks down

05:53:50 – Member looks back to the camera again, moves an IV pole a matter of a few inches

05:53:54 – Member walks away from camera and enters [a third room]

05:55:18 – Member gets ECG machine takes it to [another room]

05:56:00 – [client from another room] exits with companion and leaves unit.

Issues and Summary of Findings

Is the evidence of the witnesses credible and reliable?

In assessing credibility and reliability, the panel applied the criteria with which it is familiar, set out in Pitts v. Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), 52 O.R. (2d) 302 (H.C.J.) Without exception, the panel found the witnesses to be credible in the sense that all were attempting to tell the truth. In terms of reliability, there were some minor lapses in memory from just about every witness. There were some mistakes in the sequence of events which appear to be honest mistakes of misremembering. The security video assisted a great deal in assisting the panel to determine the sequence of events.

Do the witness testimony, documentary and video evidence confirm [the Client]’s allegation and evidence?

[The Client], who was the victim and the key witness to this incident, had a very difficult obstacle to overcome in that there was no question that [the Client] was intoxicated at the time of the incident, so much so that [the Client] could not cry out or even fully rouse []self to report the incident when it occurred. [The Client] fell back to sleep following the incident, likely due to the effects of alcohol and gravol. When [the Client] awoke again, [the Client] immediately reported that [the Client] had been sexually assaulted.

[The Client] never wavered from these essential facts. [The Client] remembered [the Client] arrived at the emergency department intoxicated and vomiting. [The Client] remembered being lifted onto a stretcher, remembered being undressed, and having an IV put in [the Client’s] right hand. [The Client] recalls that during a catheter insertion, [the Client] kicked and resisted so much that a male nurse whose face [the Client] could not see came in to hold [the Client’s] legs while the “nice black female” nurse inserted the catheter. [The Client] remembered a male nurse walking to the right side of [the] bed and giving [the Client] gravol, and [the Client] remembered hearing someone walking to the left side of [the] bed and [the Client] remembered waking up when [the Client] felt [the Client’s] left arm moving. [The Client] remembered seeing [the Client’s] hand wrapped around someone’s penis while this male held his hand over [the Client’s] while masturbating. [The Client] remembered being unable to speak or move voluntarily. [The Client] remembered that when he saw [the Client’s] eyes open, he was startled and left the room. [The Client] remembered what the nurses said to [the Client] when [the Client] reported the incident.

By their very nature, sexual assaults generally do not have witnesses other than the victim, and this victim by [the Client’s] own admission was very drunk. Despite being drunk at the time of the incident, the video evidence supported that [the Client] reported the exact sequence of events correctly. While the camera could not see into [the Room], it did show the catheter supplies coming into the room over twenty minutes before the gravol. [The Client] was correct when [the Client] said [the Client] was catheterized before [the Client] received the gravol rather than the other way around as [the] nurse testified. [The Client] was correct in saying [the Client] could not see the male nurse’s face when [the Client] was catheterized. [Nurse A]’s testimony confirmed that [the Client] could not have been able to see the Member as he assisted with [the Client’s] catheterization, since he stood to the left behind [the Client] and turned his face away. [The Client] was almost certain that [the Client] had been given the gravol only moments before the incident occurred, which was again proven to be correct but contrary to what [Nurse A] recalled. The video showed that the Member never left the room after he administered the gravol. The video also showed that he was the only male alone in the room for more than a few seconds. [The Client] identified for the panel at the hearing that the Member was the man [the Client] saw masturbating with [the Client’s] hand when [the Client] awoke to [the Client’s] arm moving. [The Client] had never seen the video footage prior to the hearing and could not have known that the footage would confirm him as the only male to be alone in [the Room] with [the Client] long enough to attempt the assault. For all material facts, [the Client] was in complete synchronization with the video footage. Quite a feat when [the Client] had not previously seen the video. Despite [the Client’s] state of inebriation, [the Client] proved to be a remarkably reliable witness.

Do the medical records help to clarify the sequences of events?

The medical records do little if anything to clarify the events of the evening. The charting of when [the Client] was catheterized and when the gravol was administered was done after [the Client] was discharged. Even the late entry times are incorrect and they are not identified as late entries. [Nurse A], the nurse who recorded them, confirmed the lateness of the entries and she confirmed that the times identified could not be correct because the video demonstrated that [the Client] was discharged before the chart records [the Client] received the gravol. About the only thing the documentation supported was that [the Client] arrived shortly after 2:00 am and the blood results confirmed [the Client] was intoxicated, none of which was in dispute. The documentation was next to useless. [Nurse B] advised both the Member and [Nurse A] to completely document their interactions with [the Client]. [Nurse A] went off and prepared the notes included in the chart [ ]. The Member did not document any interaction with [the Client] beyond an entry [ ] where he documented in the progress notes that gravol was given at 0540 which the video proves to be one minute after [the Client] left.

Was there a reasonable alternative explanation for what [the Client] claimed to have experienced?

The defence did not present any witnesses to refute the allegations but rather relied on attempting to discredit [the Client]’s testimony. The only other versions of events were offered through the testimony of [Witness #5] and [the Manager], both of whom stated that during the investigation the Member told them that he was at the nursing station when he heard an alarm ring for [the Room]. He told them that when he heard the monitor ring he responded because [Nurse A] was on break. The second time he relayed his version of the events, he said that while he was in the room he wanted to take a baseline reading. Both times he relayed his version of events, he said he was about to exit the room when he heard [the Client] retching, so he returned to [the] bedside to assist. Both times, he said that [the Client]’s hand fell from the stretcher and hit him in the crotch area. [The Manager] recalls the Member saying he hit his head on the monitor as he backed away and left the room. All these statements were made three to four weeks after the incident during the hospital’s internal investigation. These statements were made after it was made clear to the Member that video footage confirmed that he had been in [the Room] alone with [the Client].

The video established that at the time of the alleged monitor ringing, [Nurse A] was actually sitting at the nursing station. If an alarm had sounded in her [client’s] room, it makes sense that she would have responded herself. The video also demonstrates that the Member was not at the nursing station when this alleged alarm went off. He was actually already in [the Room]. He went in to administer the gravol and did not leave. Instead, after [Nurse A] left the room and [Family Member B] left the room, the Member remained in the room for four minutes and twelve seconds.

When advised by [Nurse B] to record any contact with [the Client], the Member does not record any of this alleged contact with [the Client]. He does not comment when reading [Nurse A]s’ note, which emphatically states the Member was never in [the Room] alone with [the Client]. He could have spoken up then with his explanation but did not. He never said a word until January 3, 2012, some 24 days after the incident.

The video cannot see into the room, but what the video showed outside the room is that the Member’s version of events, as explained to [Witness #5] and [the Manager] and documented by them, is inconsistent with what the video captured. It is completely unsubstantiated by the video and (lack of) documentary evidence. It is in fact in complete contradiction to the evidence. The panel cannot accept this alternative explanation as a reasonable or credible explanation of events.

Did the Member have the time and opportunity to commit the act alleged?

The video clearly demonstrated that the Member was alone in [the Room] with [the Client] and that he had over four minutes to act. The limiting factor to the opportunity was that [the Client] awoke during the act.

If the Member committed the act as alleged does that constitute a breach of the standards of practice of the profession?

[the expert] quoted the Therapeutic Nurse-Client Relationship Standard: “Nurses protect the client from harm by ensuring that abuse is prevented, or stopped and reported ... The nurse meets the standard by not exhibiting physical, verbal and non-verbal behaviours toward a client that demonstrate disrespect for the client and/or are perceived by the client and/or others as abusive.” There is no question the act described in the notice of hearing is a breach of the standards of practice. The act committed by the Member is perhaps one of worst abuses of trust a nurse can commit. To commit a sexual act on a vulnerable [client], one who is completely defenceless, unable to speak or move, essentially incapacitated, is not just a breach, it is obscene.

Is it sexual abuse?

Yes, it is sexual abuse. [The expert]’s opinion was that if the nurse acted as described in the hypothetical, then that would constitute an abuse of power and sexual abuse. [The expert] explained that in her opinion, placing a [client’s] hand on the nurses’ penis meets the criteria for sexual abuse. She describes it as exploitive, disrespectful and humiliating. The panel completely agrees.

Is it physical and/or emotional abuse?

Clearly it is physical abuse to force a person to perform an act they have not consented to. The [Client] was forced to perform in a sexual manner without the ability to refuse or stop the action. Sexual abuse by its very nature has a component of physical abuse when a person is forced to physically participate. Undoubtedly, sexual and physical abuse goes hand in hand with emotional abuse. One does not simply forget the violation committed against them. [The Client] testified to crying following the incident. [The Client] testified that [the Client] had to take medication and [the Client] is seeing a psychologist. Obviously, the pain of humiliation and the sense of violation go on long after the physical act is over. [The expert] is of the opinion that a violation of this nature would constitute emotional abuse. The panel is quite satisfied that most people would experience emotional turmoil following an incident such as this and therefore is convinced that [the Client] has been emotionally abused as well.

Does it represent dishonourable, disgraceful and/or unprofessional behaviour?

The panel is absolutely convinced that seeking sexual self-gratification by manipulating a defenceless [client] would be considered by any reasonable member of the profession to be dishonourable, disgraceful and unprofessional. The panel is convinced that the actions described by [the Client] unquestionably cross the threshold into disgraceful conduct and deserve the condemnation of the entire profession.

Was there a failure to document?

The College conceded that it does not have the expert evidence to proceed with allegation # 5 regarding the Member’s failure to document his alleged actions. In light of the submissions made by College Counsel and her request for the panel to dismiss this allegation, the panel does so. But each and every panel member expressed concern that given the circumstances of the allegation, any reasonable nurse would have documented even the most incidental physical contact with the [client] regardless of hospital policy. The Member did not. Despite being advised by [Nurse B] to go make complete documentation, the Member did nothing, and said nothing until his meeting with [Witness #5] more than three weeks later. The panel disagreed with [the expert]’s opinion in this instance. [The expert] said that if the hospital policy was to chart by exception, then it would not be a breach of the College’s Documentation Standard if the Member did not document his care. The panel’s opinion is that the Member was specifically advised by [Nurse B] to document because an “exceptional circumstance” had occurred in that [the Client] had accused him of sexually assaulting [the Client]. If that doesn’t represent an exception that should be charted, then the panel is uncertain what would.

In any event, the panel finds that this alleged care was never provided, so there was no need to chart it.

The panel is not impressed with any of the charting in this case. Times are inaccurate at best. Late entries are not marked late entries and no one except [the Client] []self seems to know even the order of the treatment [the Client] received.

Final Submissions - The College

Ms. Durcan stated that the burden of proof was on the College in this matter and that the standard of proof that the College had to meet was the balance of probabilities. She submitted that allegations 1-4 had been proven on a balance of probabilities, using clear, cogent and convincing evidence as required.

Ms. Durcan submitted that this case depended on the credibility of [the Client]. If the panel assesses [the Client’s] evidence as credible, then they must find the Member guilty of professional misconduct and sexual assault. As to credibility, she relied on the case of Pitts v. Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), 52 O.R. (2d) 302 (H.C.J.) to assist the panel in determining the factors to be considered in assessing credibility.

Ms. Durcan asked the panel to consider why the Member would be in [the Client]’s room for over four minutes. Why didn’t he document whatever he had been doing in the chart? Why didn’t he advise [Nurse A] or [Nurse B] immediately that he had been in [the Client]’s room alone? Why didn’t he tell them that he had been in [the Client]’s room and [the Client’s] hand accidently hit him in the groin? Why didn’t he report it to [the Manager] in his email sent the morning of the event? Ms. Durcan submits that the Member had plenty of opportunity to make a statement about being in [the Client]’s room alone. But he said nothing. He did not chart the oxygen monitor beeping, or the baseline, the retching, the vomiting or [the Client]’s hand falling off the bed and hitting his groin. [Nurse A] made very detailed notes and gave a copy to the Member to read. The Member never corrected [Nurse A]’s notes. He never told her he was in [the Room] alone and he never told her why he was there. He never told [Nurse B] either. The Member’s story was offered up for the first time on January 3, 2012, over three weeks after the incident. Ms. Durcan submits that the story he told [Witness #5] on January 3, 2012, was concocted because the Member became aware there was a video tape recording the entry and exits to [the Room]. Ms Durcan submits that when the Member realized that the video camera could prove he was alone in [the Room] with [the Client], he fabricated the story.

Ms. Durcan submitted that around 0553 in the morning of December 11, 2011, the Member realized that he had a problem when he did what she described as a double-take in front of the video camera. That is when he realized the camera had captured him entering [the Room] and not exiting for over four minutes. His fears were confirmed when [the Manager]’s email informed him that she had requested the security video. Ms. Durcan submitted that this was the moment when the Member knew he had to come up with a plausible story. He conveyed that story to people at the hospital, however, he did not testify at this hearing and subject it to cross-examination. Ms. Durcan submitted that since the Member did not testify, [the Client]’s testimony is un-contradicted.

In terms of assessing [the Client]’s credibility, Ms. Durcan submitted that nothing turns on the details of whether [the Client] says [the Client] was in a car or a van, whether [the Client] was with family and friends, or friends or family, or why they were out celebrating. The College submitted that despite minor inconsistencies, when taken as a whole, and considering the passage of time and the trauma of the assault, [the Client]’s evidence is credible. Indeed, the College submitted that all the witnesses were credible.

The College submitted that [Nurse B] remained in contact with the Member after the incident. She clearly had no animus against the Member. [Nurse B] was “shocked” at how articulate and descriptive [the Client] was when [the Client] reported the incident. Despite her lengthy discussions with the Member, [Nurse B] was unable to recall the Member ever telling her that he was in [the Client]’s room alone. She was certain he had never told her [the Client]’s hand had brushed his groin. The College submits [Nurse B] was credible and forthright.

The College submitted that [Nurse A] was a credible witness who did not have a vested interest in the outcome. [Nurse A] told the panel that she was hoping the video would prove that the Member had not been in [the Room] alone. As to the central conflict in the evidence between [Nurse A] and [the Client], the College submitted that the most likely explanation is that [Nurse A] misheard the word “head” when [the Client] told her the man placed [the Client’s] “hand” on his penis.

The College submits that [the Manager] is a credible and believable witness. She provided the panel with the information about the email she received from the Member. She told the panel about discussions with [Nurse A] when [Nurse A] was adamant that the Member had never been alone in [the Client]’s room. She told the panel about wanting the Member to have the opportunity to see the videos before any final decisions were made with respect to his employment. The College submitted that this witness was not adverse to the Member. [The Manager] told the panel how troubled she was when on January 6, the Member admitted he was in [the Room] and told her he was sitting at the nurses’ station when he heard the oxygen monitor. [The Manager] recalled him suddenly stating that he wanted a baseline on [the Client] and that [the Client] was retching or vomiting and while [he was] assisting [the Client], [the Client’s] hand fell off the bed and hit him in the crotch. She testified that the Member said he was startled when [the Client]’s hand hit him in the crotch and he bumped his head on the monitor.

The College submitted that [Witness #5] was a credible witness and that she testified honestly and frankly. She recalled the Member admitting for the first time on January 3 that he was in fact alone in [the Client]’s room. She recalled him telling her that he was at the nursing station when an alarm went off in [the Client]’s room. She recalled he said that as he was leaving, [the Client] began to vomit. He said when he checked [the Client]’s mouth, [the Client’s] hand flopped to his groin.

The College submitted that while Mr. Stephenson tried to imply through his questions that [the ward aide] may have been the assailant, this was simply not possible as [the ward aide] was only in [the Room] alone with [the Client] once, for a mere 13 seconds. The Member was the only man alone in the room for 4.5 minutes. The College submitted that it is confident that the assailant was the Member.

He was in [the Room] alone for 4.5 minutes.
He did not tell [Nurse A] he was in [the Room] alone. Nor did he report to her when exiting [the Room] the care he allegedly provided [the Client] or that [the Client’s] hand allegedly had fallen off the bed and hit him in the groin. The College submitted that he did not say anything because he had not yet landed on the lie.
When he was advised by [Nurse B] and [Nurse A] at 0524 hours that there was a complaint made by [the Client], he did not tell either of them that he had been in [the Room] alone. He did not tell them of the care he allegedly provided. He did not tell them that [the Client]’s hand fell from the bed and hit him in the groin. The College submitted that he did not say anything because he had not yet landed on the lie.
When the Member wrote to [the Manager] at 0536, he told her he had been in [the Client]’s room on two occasions with [Nurse A]. He told her he was “very worried”, and “very upset and anxious about this whole thing” He did not tell [the Manager] that he had been in [the Room] alone and he did not tell her about the care he allegedly provided. He did not tell [the Manager] that [the Client]’s hand had allegedly fallen off the bed and hit his groin. The College submitted that he did not say anything because he had not yet landed on the lie.
When the Member returned to the desk and spoke to [Nurse B] and [Nurse A] again from 0544 to 0552, he still did not tell them he had been alone in the room. He still did not tell them about the care he allegedly provided or that [the Client]’s hand fell from the bed and hit him in the groin. The College submitted that he did not say anything because he had not yet landed on the lie.
When [Nurse B] told both [Nurse A] and the Member that the chart was not up to date and that they must input the care they provided, the Member charted an entry at 0540 for the gravol administration (a time which is patently incorrect). He did not document that he was in [the Room] alone or the care he allegedly provided [the Client]. He does not document that [the Client]’s hand allegedly fell from the bed and grazed his groin. The College submitted that he did not say anything because he had not yet landed on the lie.
The Member’s story did not emerge until three weeks later. When the Member met with [Witness #5] in January, he finally admitted that he was in fact alone in [the Client]’s room. He advised [Witness #5] that he heard [the Client]’s oxygen monitor beeping and went into [the Room]. [The Client’s] hand accidentally brushed his groin.
Mr. Stephenson had [Nurse A] confirm that the only times the Member went into [the Client]’s room was in response to [Nurse A]’s requests. He never went into the room because of the oxygen monitor. He was already in the room at [Nurse A]’s request.
On January 3 and again on January 6, the Member was trying to justify his presence in [the Room] for 4.5 minutes because by then he was aware that the hospital had seen the video surveillance. He made up a false story, and it is proven false by the video. He did not enter [the Room] to investigate a beeping monitor. He was already in [the Room]. He simply remained in the room after [Nurse A] left and assaulted [the Client].

Ms. Durcan reviewed the College’s position with respect to all the allegations set out in the Notice of Hearing. In terms of the allegations that the Member breached the standards of practice and committed abuse, the College referred to the expert evidence of [the expert]. This client was vulnerable and the incident represents a significant abuse of the appropriate boundaries.

She asked the panel to make findings of guilt on all allegations with the exception of allegation 5, which the College asked the panel to dismiss in light of [the expert]’s expert evidence on the issue.

Final Submissions – the Member

Mr. Stephenson submitted that the College was attempting to have the panel rely on common sense but common sense is not a substitute for evidence. He submitted that common sense told the panel that [the Client] was not a reliable witness.

Mr. Stephenson submitted that [the Client] claimed to remember everything from leaving the bar until the time [the Client] fell asleep in the hospital. He submitted that [the Client] said the Member gave [the Client] the gravol and [the Client] fell asleep and that is when the Member assaulted [the Client].

Mr. Stephenson submitted that at various times, [the Client] reported the number of drinks [the Client] had consumed differently: to the police [the Client] reported 11 drinks, and to others more than 5 drinks. He emphasized there is a big difference. He submitted that only in cross-examination did [the Client] admit that [the Client] likely had more than five drinks and the drinks were really strong. [The Client] wanted the panel to think that [the Client’s] evidence was more reliable than it really was.

He submitted that it was not clear why they went to the bar that night; whether for food and drinks or just drinks. Mr. Stephenson submitted that [the Client] was inconsistent with the reasons [the Client] gave for being at the bar. He submitted that [the Client] told [the College investigator] that they were celebrating [the Client’s] second to last semester, and that [the Client] told [Detective A] and Ms. Durcan that [the Client] was celebrating the completion of hard exams and [the Client’s] 100% placement. Mr. Stephenson submitted that it was only in cross-examination that it came out that [Family Member B] belonged to a card club who was hosting an awards night at the bar that evening. Mr. Stephenson submitted that [the Client]’s evidence about why [the Client] was at the bar that evening began to unravel, and the real reason the group was there was for an [ ] awards night and not in celebration of the end of the school term as [the Client] and the College have attempted to portray.

Mr. Stephenson submitted that [the Client] misled [the College investigator] on June 6, 2012, when [the Client] reported to her that [the Client] was out celebrating with family. It is his position that [the Client] never revealed the true relationship of [Family Member B] and [Family Member C]. He stated [the Client] never told [the College investigator] and Ms. Durcan that [the Client] did not even know their last name, and he pointed out that [Family Member B] did not know [the Client]’s last name because he had to call his wife to find out. Mr. Stephenson submitted that the way in which [the Client] presented the relationship is neither truthful nor accurate. He stated [the Client] advised the police [the Client] was out with friends, no mention of family. [The Client] did not even know [Family Member B]’s real name and yet [the Client] was content to give the impression that they were family.

Mr. Stephenson submitted that [the Client] stated that when [the Client] left the bar [the Client] felt fine but when [the Client] had [the Client’s] blood tested at the hospital, it measured in the toxic level. Mr. Stephenson submitted that [the Client] was “bombed” when [the Client] left the bar and common sense doesn’t dictate that rapid deterioration or absorption into the blood stream. He submitted that [the Client’s] description that [the Client] was “stumbling a bit” when [the Client] left the bar is a gross understatement.

Mr. Stephenson submitted that [the Client] was a small person who consumed a large amount of alcohol. He submitted that [the Client] is not a reliable witness. Mr. Stephenson reviewed testimony around the state of [the Client] when [the Client] arrived in the ER department; [the Client’s] inability to walk, hold [the Client’s] head up, inability to speak or be roused and he draws attention to the fact that [the Client] was in this state before gravol was administered.

Mr. Stephenson submitted that [the Client] reported to the police that [the Client] was “semi-conscious” and that the panel should not believe [the Client] when [the Client] denied using that word with the police.

Mr. Stephenson submitted that [the Client] “obviously did not remember everything. [The Client] obviously was unconscious, and [the Client] obviously was not able to recall significant events. [The Client’s] level of consciousness or unconsciousness and self-awareness alone makes [the Client] a completely unreliable witness”.

Mr. Stephenson submitted that [the Client] was less than truthful to the police because [the Client] did not tell them that [the Client] could kick and scream during [the] catheterization. It is Mr. Stephenson’s position that because [the Client] was kicking and screaming in response to pain, [the Client] was not truthful when [the Client] stated that at the time of the assault [the Client] was unable to speak or move. In his words, this was “a disconnect between reality and what one thinks is reality.” He said this was very significant.

Mr. Stephenson submitted that [Nurse A] testified that she alone undressed [the Client] and therefore [the Client] must have been mistaken when [the Client] claimed [the Client] heard a male voice in the room. He further submitted that [the Client] told Ms. Durcan that the only male voice [the Client] heard in the room before the catheterization was [Family Member B]’s. Mr. Stephenson stated this is yet another inconsistency because the video clearly showed [the ward aide] entering and exiting the room on a number of occasions. He said that [the Client] told [the College investigator] on June 6, [2012], that a female nurse stripped [the Client] down. He submitted that on two separate occasions, [the Client] stated that the Member was there too. He submitted that this is “Hardly the hallmark of someone who could remember everything, let alone rise to the level of being a reliable witness.”

Mr. Stephenson submitted that the sequence of events according to [Nurse A] is that first, she undressed [the Client] alone. Second, the gravol was administered and third, the catheter was inserted. He thought it was really significant to note [Nurse A] said that she started the gravol. Mr. Stephenson asked the panel to pay close attention to the sequence of events when they review the video.

Mr. Stephenson submitted that in contrast to [Nurse A]’s evidence, [the Client] said that first [the Client] was undressed and that the next thing to happen was that the catheter was inserted, and not that the gravol was administered. Mr. Stephenson submits that to believe [the Client], the panel must disbelieve [Nurse A]. He asks the panel to recall that [the Client] testified that [the Client] was certain that the female nurse and [Family Member B] were not there when the gravol was administered and the assault took place. He submitted that clearly clip 12 showed that [Nurse A] and [Family Member B] were in the room with the Member, and that the Member never left [the Room] and reentered as [the Client]’s version recounted. He submitted that, “The video doesn’t lie”.

Mr. Stephenson submitted that the video showed both [Nurse A] and [Family Member B] were in [the Room] with the Member and they both exited, leaving the Member alone with [the Client]. He submitted that both [Nurse A] and [Family Member B] knew the Member was in [the Room] alone with [the Client]. The College’s position - that all of a sudden this sequence of events somehow means that the Member assaulted [the Client] – was described by Mr. Stephenson as “preposterous”.

Mr. Stephenson submitted that [Nurse A] told the panel that the Member assisted with the insertion of the catheter and that [Nurse A] was very impressed with his professionalism in that he looked away. She said she had not seen this in her twenty plus years of practice.

Mr. Stephenson submitted that on June 6, 2012, [the Client] told [the College investigator] that the Member held [the Client’s] legs down while [the Client] was catheterized, but that on August 9, 2013, [the Client] told Ms. Durcan that [the Client] didn’t know if the nurse who helped with the catheter was the same nurse who assaulted [the Client]. Mr. Stephenson submitted, “That’s the end of the case, it’s all over.” He submitted there is no clear, cogent or convincing evidence, let alone anything to establish on the balance of probabilities that the Member did this. He stated, “You absolutely, in my submission, cannot find any evidence of professional misconduct, none.”

He submitted that [the Client] did not know if the male in [the Client’s] room was an assistant, a non-nurse, a clerk, or what. [The Client] only knew that there was a uniform and therefore [the Client] assumed it was a male nurse. He submitted that because the Member was the only male nurse on duty that night, he “got tagged.”

Mr. Stephenson submitted that, “you don’t pick and choose your evidence; you have to put it all together and make it into a coherent whole to be believable and reliable.” He submitted that [the Client] told [Nurse A] that [the] assailant was a white male bigger than [Family Member A], but told the police later that day that he was a white male, five foot eleven, blue uniform, v-neck type of shirt, with short sleeves. Mr. Stephenson submitted that the video demonstrated that this description is equally consistent with [the ward aide]. He submitted that [the Client] made no mention of the Member’s name tag or the white t-shirt he was wearing underneath the blue v-neck shirt. Mr. Stephenson’s submission suggests that [the Client] is not describing the Member but rather [the ward aide]. Mr. Stephenson submitted that because the College did not call [the ward aide] as a material witness, then the panel must draw an adverse inference that his testimony would have hurt the College’s case.

Mr. Stephenson submitted that if [the Client] recollected everything and testified that there were two chairs in the room, then why would [Family Member B] have to take a chair into the room from the hallway if there was already one in the room? He submitted that [Family Member B] should also have been called as a material witness by the College and that the panel should draw an adverse inference because he was not.

Mr. Stephenson asked the panel to note that on August 9, 2013, [the Client] told Ms Durcan that [the Client] did not know [Family Member B] had stayed at the hospital when [the Client] was admitted. This further undercut [the Client]’s claim that [the Client] could accurately remember everything.

Mr. Stephenson said that [the Client]’s unreliability became even more apparent when recounting the alleged assault. [The Client]’s version of events leading up to the alleged assault did not match [Nurse A]’s version of events in terms of what happened when. [The Client] reported the event differently to different people. When [the Client] awoke, [the Client] told [Family Member A], “he had his dick in my hand”. He commented that [the Client] made no mention of a male nurse or that the assailant was using his hand in any fashion. Mr. Stephenson submitted that [the Client] reported to the police that [the Client] saw [the Client’s] hand on the male nurse’s private area (outer clothing) and he noted that [the Client] had an opportunity to review the notes and did not correct it. He submitted that [Nurse A] recorded yet another version in her notes that a male nurse had put [the Client’s] hand on his penis and then put [the Client’s] head to his crotch. He submitted there was no mention of the Member’s hand holding [the Client’s] and masturbating. He submitted that [Nurse B] recorded that the male nurse demanded that [the Client] hold his penis. He submitted that [the Client]’s version of the incident is inconsistent. If one were to believe [the Client], everyone who wrote it down must have gotten it wrong.

Mr. Stephenson submitted that there are small details that [the Client] reports later and to some interviewers but not all, like light being in [the Client’s] eyes, or [the Client’s] eyes being watery, or that [the Client] was crying, or that [the Client] made eye contact with the male nurse, or that the male nurse left quickly. He submitted that [the Client] was embellishing the details in the retelling.

Mr. Stephenson submitted that when the Member exited the room after the alleged incident, he did not appear to leave the room quickly and he went straight to the nurse’s station and stood in front of the people there. He stated that if the Member had done what he is accused of, his state (presumably of arousal) would reveal itself. He submitted that the Member was not trying to cover up his private parts and he encouraged the panel to review the video again. Mr. Stephenson submitted that [Dr. B] was next door in [another room] during the alleged assault and heard nothing suspicious.

Mr. Stephenson submitted that [the Client] did not make a complaint to [Dr. A], who was the attending physician that evening, but rather waited until he left and asked [Family Member A] to get the nurse so [the Client] could report what happened. Mr. Stephenson submitted that the evidence of [Family Member A] was not credible. He submitted that [Family Member A]’s timelines were clearly incorrect and that he made a number of incorrect statements. Mr. Stephenson submitted that [Family Member A] had a cavalier attitude on the witness stand and his behavior suggested he was treating the experience as a joke. It is Mr. Stephenson’s position that [Family Member A] is an unreliable witness.

He submitted that [the Client] had not volunteered to the police the information that [the Client] had been medically treated for intoxication four years earlier when [the Client] was in high school. He submitted that not revealing this information to the investigating officers was dishonest and misleading. He submitted that cross-examination revealed that [the Client] regularly drank and partied with friends.

Mr. Stephenson submitted that Ms. Durcan made a great deal about the Member saying to [Witness #5] and [the Manager] that he entered [the Room] because he heard the monitor go off. He stated that is the only thing the College has. Mr. Stephenson submitted that there are monitors all around, that the Member was in and around the nursing station when he saw or heard a monitor go off, and that the Member proceeded into [the Room]. He stated, “That’s captured on the video.” Mr. Stephenson submitted that it was “shameful” for Ms. Durcan not to ask [Nurse A] and [Family Member B] if they had heard the monitor go off. This was one of the areas where Mr. Stephenson suggested the panel should draw an adverse inference.

Mr. Stephenson submitted that the video shows the Member entering the room and shows [Nurse A] and [Family Member B] exit. He stated that the video shows the Member starts to exit, and he returns to the [the Room] because he hears retching noises. He submitted that the video “corroborated his testimony 110 percent.”

Mr. Stephenson submitted that while Ms. Durcan had [Nurse A] on the stand, she should have pursued questions about whether or not [Nurse A] asked the Member to read over, correct or sign her statement. He submitted that there is no evidence at all that the Member even read it.

Mr. Stephenson recalled that Ms. Durcan alleged that when the Member looked up and saw the video camera, he knew he had to lie because he realized that he was caught on tape. Mr. Stephenson submitted that the Member had been working on the unit for almost two years. In order to accept Ms. Durcan’s submission, one would have to believe he never once saw those video cameras. He submitted that Ms. Durcan should have asked [Nurse A] or [Nurse B] if the cameras are visible and whether staff knew the cameras were recording their actions. He suggested that Ms. Durcan’s submissions were made-up figments of her imagination.

As to allegation 5, Mr. Stephenson submitted that he had no advance notice that the College was not asking for a finding with respect to allegation 5, even though the College had [the expert]’s evidence for “many moons.” He submitted it was unfair for Ms. Durcan to not pursue the allegation that the Member had failed to keep records as required, and then use his failure to keep records as evidence that he was guilty of sexual assault. He submitted that [the expert]’s expert evidence was clear that if charting was done by exception, there would be no breach of the standards. He described the College’s position as stunning and illogical.

Mr. Stephenson submitted that the evidence is so weak, so contorted, so inconsistent and unbelievable that there is no case for the Member to answer. He said the panel cannot draw any adverse inference from the Member not testifying.

Final Submissions – College’s Reply Submissions

In response to the Member’s submissions, Ms. Durcan replied that neither [Family Member B] nor [the ward aide] were material witnesses, and there was no basis for drawing an unfavourable or adverse inference from their failure to testify.

The College took exception to Mr. Stephenson’s attempts to impugn [the Client]’s character by implying that [the Client] may have had an improper relationship with [Family Member B], a 44-year-old man. Ms. Durcan reminded the panel of the fairness principles expressed in the rule in Browne v. Dunn, and that if Mr. Stephenson wished to put that question to [the Client], he could have done so when he cross-examined [the Client] for two days. Ms. Durcan submitted that the panel should disregard this distasteful, improper and irrelevant submission as it was unfair to [the Client] and [it] breaches the rule in Browne v. Dunn.

The College submitted that Mr. Stephenson put a great deal of emphasis on [the Client] telling the panel that [the Client] remembered “everything”. The College recalls that [the Client] never told the panel that [the Client] remembered everything. Rather, [the Client] told the panel that what [the Client] remembers, [the Client] remembers clearly. The College submitted that [the Client] acknowledged there were parts [the Client] might not recall and that [the Client] could not hear everything.

The College submitted that the reasons [the Client] gave for celebrating that evening were all correct, that they were not mutually exclusive.

As to Mr. Stephenson’s suggestion that [the Client] was not forthcoming to the police about [the Client’s] state of intoxication during the incident, Ms. Durcan submitted that the evidence showed that [the Client] []self handed the toxicology report to [Detective A] and actually volunteered to have [the Client’s] blood alcohol level taken before [Detective A] even brought up the subject of alcohol.

Ms. Durcan submitted that Mr. Stephenson made much of the issue that [the Client] did not know that the nurse who assisted with the catheterization was the nurse that assaulted [the Client]. She asks the panel to recall that [the Client] stated that [the Client] did not see the nurse who helped [Nurse A] with the catheterization and that’s why [the Client] did not know it was the same nurse. The College submitted that “this is not a smoking gun” as Mr. Stephenson suggested it was.

As to other alleged inconsistencies in [the Client]’s evidence, Ms. Durcan urged the panel to review their notes, and submitted they should reveal that the alleged inconsistencies were either not inconsistencies at all or were relatively minor differences in expression that should be expected in these circumstances.

Ms. Durcan submitted that the email from [Dr. B] was never admitted into evidence and is pure hearsay. She submitted it cannot be given any weight. As to Mr. Stephenson’s submission that upon leaving [the Client]’s room, the Member walked right in front of everyone and stood there, Ms. Durcan urged the panel to review the appropriate video footage.

Ms. Durcan also replied to Mr. Stephenson’s statement that she should have asked [Nurse A] while she was on the stand if she heard an oxygen monitor go off. Ms. Durcan submitted that she asked [Nurse A] if the Member had ever told her he heard the monitor go off. [Nurse A] responded that he had not. Ms. Durcan submitted that if [Nurse A] had heard the monitor go off, she would have mentioned it in her testimony or recorded it in her notes.

Ms Durcan submitted that the College was not pursuing allegation 5 regarding the failure to keep records as required because of the absolutely clear evidence from [the expert]. Ms. Durcan submitted that Mr. Stephenson was clearly present during [the expert]’s testimony and that the College’s position should not have come as a surprise to him. However, Ms. Durcan maintained it was not inconsistent for the College to rely on the lack of documentation in making submissions about the Member’s credibility, especially after he was urged to chart his interactions with [the Client] by [Nurse B], and especially after he was made aware of the complaint. Ms. Durcan submitted that the absence of the documentation allegation does not impact the potency of the other allegations.

Decision

Having considered all of the evidence and the submissions of the parties, the panel finds the totality of the evidence supports on a balance of probabilities that the Member committed professional misconduct with respect to allegations 1, 2, 3, and 4 as set out in the Notice of Hearing. As to allegations 5a and 5b, College Counsel conceded that in light of [the expert]’s evidence, there was insufficient evidence to support allegation 5. The panel makes no findings for allegations 5a and 5b and dismisses those allegations.

With respect to allegation 3, the Member engaged in conduct or performed an act or acts relevant to the practice of nursing that, having regard to all the circumstances, would be regarded by members of the profession as disgraceful, dishonourable and unprofessional in that he abused a [client] sexually, physically and emotionally when he placed a client’s hand on his penis and masturbated or, in the alternative, placed [the Client’s] hand on his penis. It is the decision of this panel that the Member’s actions surpassed the threshold of dishonourable and would be considered disgraceful by other members of the profession.

Reasons for Decision

The panel agrees with the parties that this whole case is about credibility. Virtually every detail was disputed. The panel sifted through the evidence of seven witnesses and five video clips, in some cases watching them over and over to capture as closely as possible the sequence of events.

One thing became very clear during the process. [The Client] was the only witness whose sequence of events matched the video record.

[The Client]’s evidence was correct in many other respects as well. [The Client] was correct about where the monitor was positioned in [the] room. [The Client] was correct that the intravenous was put in [the Client’s] right hand. [The Client] was correct that the nurse who assisted with the catheterization stood on [the Client’s] left side and that [the Client] could not see his face. [The Client] was correct when [the Client] stated there was a curtain in the doorway of the room, and when [the Client] said the blood pressure cuff was on [the Client’s] left arm. [The Client] was correct when [the Client] remembered kicking and screaming while being catheterized. [The Client] was correct when [the Client] said [the Client] heard [Nurse A] ask someone to get some gravol and [the Client] was also correct that it was administered in [the Client’s] right arm. All of these details were confirmed by independent testimony of [Nurse A].

But [Nurse A] was incorrect when she stated the order of events was first undressing [the Client], then administering gravol and then catheterizing [the Client]. Although [Nurse A] disagreed with [the Client] on the sequence of events, it was [Nurse A] who was proven wrong by the video, not [the Client].

Video clip 12 demonstrated that at 02:33:10, the Member took a catheter tray and tubing into [the Client]’s room. Then at 02:48:41 he enters the room again with something small in his hand. He exits the room a minute and 28 seconds later and goes to the medication dispensing equipment area and remains in that area until he returns to [the Room] with a bag of something in his hand at 02:52:36. The only explanation that makes sense is that the catheter was inserted immediately after the Member brought it into the room at 02:33:10. Then the gravol was mixed at the medication station, and brought in and hung by the Member when he entered the room again at 02:52:36. [Nurse A] left first and [Family Member B] followed her out just ten seconds later, leaving the Member alone in the room from 02:53:32 hours until 02:57:43 hours. There is no question that [the Client]’s version of the sequence of events with respect to the catheter and the gravol is supported by the video evidence.

[The Client] was also correct when [the Client] said [the Client] could not see the face of the nurse who held [the Client’s] legs for the catheterization. [Nurse A] testified that the Member turned his head away while he held [the Client]’s legs apart. [Nurse A] recalled for the panel how impressed she was with his professionalism and remarked that in over twenty years of nursing she had never seen someone do what the Member did. Mr. Stephenson’s declaration that the case is over because [the Client] could not identify the Member as the person holding [the Client’s] legs during the catheterization is definitely overstated. The reason [the Client] could not identify that the person who held [the Client’s] legs was the same person who assaulted [the Client] was not because [the Client] couldn’t remember what he looked like but rather because [the Client] never saw him in the first place. This is borne out by [Nurse A]’s testimony. Rather than detract from [the Client]’s credibility, it adds to it.

[The Client] was not wrong when [the Client] said that [the Client] believed both [Nurse A] and the Member left the room and then the Member came back and assaulted [the Client]. The video clearly showed [Nurse A] leave the room at 02:53:01 with [Family Member B] leaving at 02:53:11. But one minute and eighteen seconds later, the Member’s hand is captured on video as he stands just inside the doorway. Some seventeen seconds after that, the Member takes one quick step out of [the Room], turns completely around while looking toward the nursing station, and then heads right back into [the Room]. It’s clear that for a period of at least 17 seconds and possibly longer, the Member was hovering just inside the door before he stepped out, took a quick look toward the nursing station, and re-entered [the Room]. It is following this re-entry the panel is convinced that the Member assaulted [the Client]. As Mr. Stephenson said, “The video doesn’t lie”.

What the video does not do is show us the interior of the room. The only way the panel can assess what occurred in the room is by the testimony of the witnesses and the charting. [The Client], the victim, gave us [the Client’s] version of events. No one else was in the room at the time of the assault except [the] assailant. The video showed that [the Client]’s evidence is consistent with the comings and goings in and around [the] room. The video captures the nursing station, part of the medication equipment room and the hallway in front of the nursing station which includes the hallway outside [the Room].

The panel analyzed the video footage of the area to see if what [the Manager] and [Witness #5] report the Member told them on January 3, 2012, and January 6, 2012, stands up to the video scrutiny.

According to [the Manager], the Member told her that he was at the nursing station when he heard an oxygen monitor going off. She recalled the Member saying that [Nurse A] was on her break so he responded to the bell. She stated he told her he went into [the Room] and decided to do a baseline on [the Client] and that while leaving the room, he heard the [client] retching and vomiting and went back to assess the [client]. She stated that he told her the [client]’s hand fell and hit him in the crotch. He said the [client] opened [the Client’s] eyes and he moved back and hit his head on the monitor.

[Witness #5] said that the Member reported to her that he was at the nursing station and heard a monitor ring. He went to check [the Client]. He told [Witness #5] that as he was leaving the room, [the Client] started to vomit. He said he went to check [the Client] and [the Client’s] hand flopped off the bed and hit his genital area.¹

According to both witnesses, the Member said he was at the nursing station when an oxygen monitor went off. That is not true. He was already in the room. He entered it at 02:52:36 to bring in the gravol. He never left.

He told [the Manager] that [Nurse A] was on her break when the oxygen alarm went off. That is not true either. The video clearly shows [Nurse A] sitting at or standing in front of the nursing station the entire time the Member was in [the Room] alone with [the Client]. If [Nurse A] was unaware that the Member was in [the Room], as she testified, then surely if the oxygen monitor went off for her [client], she would have attended the room at the very least to shut the alarm off. But if that were the case, she would have discovered the Member in the room. Clearly [Nurse A] was not on break and the oxygen monitor did not go off.

Why didn’t the Member leave the room after giving [the Client] the gravol? Why was he hovering at the doorway? [The Client] was not his patient. [The Client] was young and intoxicated. [The Client] had just received a dose of gravol and [the Client] had fallen asleep. If the panel disregards the rest of the Member’s explanation and merely considers that [the Client] might have been retching, that may be possible. However, when the panel considers all the other pieces of the story the Member told [the Manager] and [Witness #5] which have no foundation in truth, then there is no reason for the panel to believe this part. There is no evidence to support it. He did not chart the retching or the alleged care. He did not tell anyone about it immediately afterwards. He simply told the hospital investigators three weeks after the incident that this is what had happened.

The Member did not appear to realize his hand was visible for a few frames in the video. From the time his hand was seen until he took that one step out 17 seconds later, he was hovering in the doorway. What was the purpose of him hovering in the doorway? Why had he already been in the room for a minute and fifty four seconds alone? The panel finds that he was waiting for the effects of the gravol to kick in. He then steps out, turns around looking toward the nursing station, and then re-enters [the Room]. The panel believes he was checking to see where the rest of the staff were. The panel does not believe he returned because he heard the patient retching.

The Member told [the Manager] that he wanted to take a baseline, but he did not chart that he did it. Why not? At least if he had charted it, he would have some record of why he was in [the Room]. The only explanation for not charting it, especially after he was advised by [Nurse B] to chart all his interactions with [the Client], is that he never intended to admit that he was in [the Room] alone. Therefore the only thing he charted was that he gave [the Client] the gravol. Importantly, until he returned from break at 05:24:40, he didn’t know that [the Client] had reported the incident. When he left for break, [the Client] was asleep in [the] room. He knew this because he glanced into [the Client’s] room when he exited the washroom at 03:02:54. As far as he knew, [the Client] would have no recollection of waking up and looking into his eyes.

One other incident weighed heavily against the Member. At 05:53:20, while the Member was sitting at the nursing station, he looked up directly toward the security camera. Twenty-seven seconds later he got up and walked over to the camera and looked directly into it. He bowed his head down toward his feet and then looked right back up to the camera again. He moved one of two IV poles that had been sitting there for most of the night a mere inch or two. Then he walked away from the camera down the length of the hallway and entered [another room]. Why did the Member get up and go to the camera? It wasn’t to get the IV pole. He left it there. It wasn’t to move the IV pole. It was not in the way of anything and he barely changed its position. The most logical explanation is that it was the camera that got his attention. He noticed it from the desk. The only purpose in walking over there was to try to determine if the camera was on. That is when he likely first realized he may have been caught on camera alone in [the Client]’s room. If he knew he hadn’t done anything, and he knew he had charted all of his interactions with [the Client], there would have been no need to be worried about the camera.

The defence relied very heavily on trying to discredit [the Client]. The problem with that is that [the Client] was consistent in all the material facts. [The Client] did not waver even after two straight days of cross-examination.

Despite being quite intoxicated, [the Client] remembered all the relevant details of [the] admission and the assault that took place. Both [Nurse A] and [Nurse B] were surprised at how quickly [the Client] sobered up. [Nurse B] commented that when she went in to [the Client]’s room to hear the complaint, [ ] she was shocked at how articulate [the Client] was. She stated that [the Client] was very clear in [the Client’s] thoughts and very clear in what [the Client] wanted to report. If [Nurse B], an experienced nurse, testified about how clear [the Client] was, should the panel dismiss that evidence? It’s one more piece of information that proved that despite an initial level of intoxication that was considered toxic, [the Client] sobered up rather quickly. It happened so quickly in fact that it shocked [Nurse B].

Mr. Stephenson’s submissions would have the panel believe that the entire time that [the Client] was at the hospital, [the Client] was incapable of remembering virtually anything due to [the Client’s] level of intoxication. From the outset, [the Client] acknowledged that [the Client] was intoxicated. Whether [the Client] had more than five drinks or eleven drinks is not the issue here, and nothing hangs on how much alcohol [the Client] drank. What the panel was charged with determining was not how much alcohol [the Client] consumed that evening but rather whether or not [the Client] was assaulted by the Member. The fact that [the Client] was drunk, and expected to stay that way for some time, made her an ideal target for the assault. Again, both [Nurse A] and [Nurse B] were surprised at how quickly [the Client] sobered up. This can explain why [the Client] remembers so many details.

Mr. Stephenson made much of the “inconsistencies” in the reasons [the Client] was celebrating at the bar that evening. Was it end of term, the end of hard exams, 100% placement or were they really there to participate in a card games awards night? The panel is satisfied that all of the school related reasons are consistent with each other. All of those things can be true at the same time. The panel would probably have been more concerned if [the Client] used the exact same words each time [the Client] explained it to someone over a period of many months. It would indicate to the panel that the answers were rehearsed and not spontaneous recollections.

With respect to whether they were there for the card club awards night really has no bearing on anything. The people [the Client] was with may well have had an interest in the event, but that does not override [the Client’s] reasons for being there. Even if [the Client] was there for the awards night celebration too, it wouldn’t mean that [the Client] could not also celebrate [the Client’s] school achievements. [The Client] disclosed the card club information to the College and that fact was disclosed to Mr. Stephenson. There was no reason for [the Client] to make up an excuse to be at a bar. Must one have a reason to go to a bar? Why [the Client] was there at all is totally irrelevant to whether or not [the Client] was assaulted by the Member.

Mr. Stephenson delved into the relationships between [the Client] and [the Client’s] companions. Were they friends, were they family, why did [the Client] call people [by family titles] when [the Client] didn’t even know their last name? [The Client] easily explained that she called [ ] elders [by family titles] as a cultural practice. [The Client] explained that [the Client] considered [Family Member A] family and that [the Client] sometimes referred to friends as family. Whether they were friends or family has no bearing on the facts of this case. There was no dispute that [the Client] was accompanied by these people, the panel does not see that their relationship to [the Client] has any relevance whatsoever to the facts that need to be determined. Does how [the Client] perceives them or introduces them have any bearing on the outcome of this hearing? The answer is absolutely not.

Mr. Stephenson pointed to other alleged inconsistencies around [the Client]’s arrival in [the Room]. Why didn’t [the Client] hear other men in the room besides [Family Member B] when the video shows [the ward aide] going in and out a number of times? Mr. Stephenson dismisses the possibility that [the ward aide] may not have spoken. The panel cannot dismiss that possibility. Not one witness besides [the Client] addressed that issue. No one knew it was an issue until Mr. Stephenson raised it in his submissions. The panel doesn’t have any evidence either way other than [the Client]’s testimony, and is not willing to hazard a guess. If [the Client] testified that [the Client] didn’t hear any men other than [Family Member B], the panel has no reason to disbelieve [the Client]. [The Client] either didn’t hear it, which is not an inconsistency in the panel’s view, or no other male spoke.

The Member’s counsel submitted that [Nurse A] administered the gravol and that [the Client] was simply wrong about the Member giving [ ] the gravol and then coming back and assaulting [the Client]. [Nurse A] testified that she asked the Member to get an order from [Dr. A]. [Nurse A] stated that the Member got the order, the Member mixed it, the Member brought it into the room and the Member hung it. The Member charted the gravol at 0540 hours and signed the chart. [The Client] testified that the Member gave [the Client] the gravol and [the Client] could feel it going up [the Client’s] right arm. The available evidence clearly supports that [the Client] was right. The Member did give [the Client] the gravol.

Mr. Stephenson attacked [the Client]’s reliability by saying that [the Client] didn’t even know that [Family Member B] had stayed at the hospital. The panel does not find that particularly damaging to [the Client]’s credibility. [Family Member B] spent the majority of the evening sitting out in the hall on a chair. [The Client] clearly remembered him being there in the beginning. Presumably if Mr. Stephenson can convince the panel that [the Client] cannot even remember who stayed at the hospital with [the Client], then the panel must find [the Client’s] memory deficient. The problem with this submission is that [the Client] did not have an opportunity to know [Family Member B] was sitting in the hall. [The Client] did not forget he was there; [the Client] had no opportunity to observe he was there.

Mr. Stephenson stated that [Nurse A] knew that the Member was in [the Room] alone. However, [Nurse A] testified that she did not know that the Member had stayed in [the Room] after she left. She also wrote in her note in the chart that the Member was never alone in [the Room] with [the Client]. Additionally, [the Manager] testified that [Nurse A] came to her office and reiterated her belief that the Member was never alone with [the Client]. It’s clear that Mr. Stephenson is incorrect in his submission that [Nurse A] knew the Member was still in [the Room] once she left.

Mr. Stephenson referred to embellishments in the retelling of the events during various interviews that [the Client] had. The panel does not find that [the Client] is embellishing the details. Indeed, some of the discrepancies are the opposite of embellishing. For example, [Nurse A] stated that she heard [the Client] tell her that the Member put [the Client’s] hand on his penis and pulled [the Client’s] head toward his crotch. At this hearing, [the Client] insisted that [the Client] woke up to [the Client’s] left arm moving and when [the Client] opened [the Client’s] eyes, [the Client] saw [the Client’s] hand on the Member’s penis. [The Client] denied that he then proceeded to pull [the Client’s] head to his crotch. In “embellishing” a story one doesn’t usually retract details. The panel has already expressed its finding that [Nurse A] must have misheard or misunderstood [the Client]’s report.

The most one can take from [the Client]’s prior statements is that [the Client] sometimes uses slightly different words to describe the same thing. Does using slightly different words constitute embellishment? The panel does not think so. When a story is told several times over the course of a year and a half, it would be unusual for the story to be exactly the same each time. The most important question is whether the material facts remain the same. The panel is convinced that [the Client] has been very consistent in the retelling of the material facts, from the first report at the hospital to [the Client’s] testimony at the hearing. [The Client] was unshakeable.

Mr. Stephenson submitted that when the Member left [the Client]’s room, he walked out and stood in front of his coworkers, not hiding his private parts. He stated that if the Member had done what [the Client] was accusing him of, the Member’s state of arousal would be apparent for all to see. Mr. Stephenson submitted that the Member acted quite normally. But Mr. Stephenson is wrong about what the Member does. The video showed the Member exiting the room, walking behind the desk and promptly sitting down. Twenty seconds after exiting the room, he turned his back to [Nurse A], who was standing on the other side of the nursing station. He stood up with his back to her, his body made a slight movement, he did not take a step, he sat down and turned his chair back around. A few moments after that, the Member walked to the washroom at the end of the hall outside [the Room]. He entered the washroom. He left the door slightly ajar. He did not turn on the lights. Sixteen seconds later he exited the washroom and glanced into [the Room] on the way by. In the panel’s opinion, he was behaving oddly. The Member was not standing for the entire world to see. He passed behind the desk which obstructed the view of the lower half of his body. While there is nothing unusual about walking behind the desk, it is certainly contrary to Mr. Stephenson’s description of events.

Mr. Stephenson submitted that [the Client] was dishonest and misleading because [the Client] didn’t reveal [the Client's] past history of drinking. The history Mr. Stephenson spoke of consisted of one prior incident of intoxication four years previous to the incident in question. The panel is not convinced that one prior incident of drunkenness constitutes a meaningful history. Further, how [the Client’s] so-called history would contribute to [the Client’s] credibility is uncertain. Is Mr. Stephenson trying to suggest that because [the Client] was drunk the night of the incident, or because [the Client] may have been drunk on other occasions, [ ] the panel must believe [the Client] is lying about the incident? The panel does not see the relevance of this approach at all.

The video proves that Mr. Stephenson’s submission that the video would capture the Member in or around the nursing station when the monitor sounded and he entered the room is simply wrong. The Member was already in the room. That is what the video established.

Mr. Stephenson stated, “The video proves his testimony 110%.” The panel asks, what testimony? The Member did not testify, so how could his testimony be proven 110%? What the video proved was that the evidence introduced by [the Manager] and [Witness #5] under the exception to the hearsay rule for statements against interest was false. Mr. Stephenson objected to this information being admitted, but once it was admitted, Mr. Stephenson relied on it to explain the Member’s actions. The only first-hand evidence the panel has regarding what happened in [the Room] when the Member was in there alone came from [the Client]. Mr. Stephenson quite correctly reminded the panel that it could not draw an adverse inference because the Member did not testify. But the panel is also mindful that what the Member said in his interviews with [the Manager] and [Witness #5] is not the Member’s sworn testimony. The panel utilized the best evidence available to make its determinations. The best evidence in this case proved to be that of the victim supported by and completely consistent with the video evidence.

Mr. Stephenson raised the issue of the video camera. He stated that the Member had worked there for over two years so he had to be aware the cameras were there. He criticized Ms. Durcan for not questioning [Nurse A] and [Nurse B] about whether the cameras were usually on or whether staff was aware they were being taped. The implication was that the Member had to know he was being video-taped and therefore would not have done anything wrong. In this day and age, most of us can be assured our actions appear on video surveillance cameras several times a day. In today’s reality, being recorded is not an exceptional occurrence that would be at the forefront of someone’s mind. The obvious explanation in this case is that the Member simply forgot the camera was there.

For reasons set out above, the panel is absolutely convinced that the Member assaulted [the Client] and thereby contravened multiple standards of practice of the profession in that he placed a client’s hand on his penis and began to masturbate, as stated in allegation 1. As [the expert] explained, the conduct was exploitive, disrespectful and humiliating. The evidence of [the expert] with respect to the standards of practice of the profession was accepted by the panel.

The panel also finds that this conduct constituted physical and emotional abuse of [the Client], as set out in allegation 2. This was substantiated by the evidence of [the expert] and the evidence of [the Client].

As to allegation 3, the panel is satisfied the Member engaged in conduct, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional in that he placed [the Client]’s hand on his penis and began to masturbate. The panel is satisfied that the actions of the Member are so vile that they would reasonably be regarded by members as all three of disgraceful, dishonourable and unprofessional. Taking advantage of a vulnerable [client] for one’s own sexual gratification transcends the threshold between dishonourable and disgraceful.

As to allegation 4, the panel is satisfied the Member sexually abused [the Client] when he placed [the Client]’s hand on his penis and started to masturbate. [The expert] explained that in her opinion, placing a [client’s] hand on the nurse’s penis meets the criteria for sexual abuse. The panel agrees.

As to allegation 5, the College conceded that, in light of [the expert]’s evidence, they could not support these allegations. Accordingly the panel makes no findings. The allegations 5(a) and 5(b) are dismissed.

In summary, the panel did not conclude that just because [the Client] was intoxicated, that meant [the Client] was unreliable. [The Client] was remarkably consistent in all material facts. Providentially, the panel had the video to corroborate the timelines and sequence of the events. Without the video, the panel would have had to determine unassisted whether [Nurse A] was correct in saying that the Member had not been in [the Room] alone, or whether [the Client] was correct. The panel may not have been able to interpret the evidence that ultimately proved that the Member was alone in [the Client]’s room, and might have had difficulty concluding that the Member was not legitimately alone in [the Client]’s room. Without the video evidence, the panel would not have been able to determine that [Nurse A] was mistaken in her recollection of events because both [the Client] and [Nurse A] appeared credible. What the video evidence ultimately proved was that [the Client]’s evidence was exceptionally reliable. The panel was able to make a finding on the totality of the evidence which, when viewed as a whole, was clear, cogent and consistent. The balance of probabilities was tipped by the video evidence. It gave the panel an opportunity to measure the consistency of the oral evidence, and in this case was critical to reaching the right conclusion.

As a result of all the evidence, the panel found on the balance of probabilities that the Member, while alone in [the Client]’s room, placed his penis in [the Client’s] hand and began to masturbate, an act he was unable to complete because [the Client] woke up and looked right at him.

I, Debra Mattina, Public Member, 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:

Lorenza Barron, RN

Michael Hogard, RPN Renate Davidson, Public Member

Footnotes

Mr. Stephenson objected to the admission of these statements on the grounds that they were hearsay. The panel requested advice from its Independent Legal Counsel (“ILC”), and counsel for both parties were given the opportunity to make submissions on the advice the panel received from ILC. The panel accepted the advice of ILC that the statements were admissible under the exception to the hearsay rule that allows admissions of a party against interest. The objection was overruled and the statements were allowed.

College of Nurses of Ontario v. James Leroux, 2014 CanLII 87160

Case Summary

DECISION AND REASONS

Publication Ban

The Allegations

Member’s Plea

Overview

The Evidence

The Video Evidence

Issues and Summary of Findings

Final Submissions - The College

Final Submissions – the Member

Final Submissions – College’s Reply Submissions

Decision

Reasons for Decision

Footnotes

College of Nurses of Ontario v. James Leroux, 2014 CanLII 87160

Case Summary

DECISION AND REASONS

Publication Ban

The Allegations

Member’s Plea

Overview

The Evidence

The Video Evidence

Issues and Summary of Findings

Final Submissions - The College

Final Submissions – the Member

Final Submissions – College’s Reply Submissions

Decision

Reasons for Decision

Footnotes