College of Nurses of Ontario v. Daine Kuiken-Rogers, 2014 ONCNO 90725

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Nancy Sears, RN Chairperson Ashley Friest, RPN Member Karen Laforet, RN Member Renate Davidson Public Member Margaret Tuomi Public Member

BETWEEN:

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

• and -

DAINE KUIKEN-ROGERS Registration No. JI740854 NO REPRESENTATION for Daine Kuiken-Rogers

Heard: October 10, 2014

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on October 10, 2014, at the College of Nurses of Ontario ("the College") at Toronto.

The Allegations

The allegations against Daine Kuiken-Rogers (the "Member") as stated in the Notice of Hearing dated August 7, 2014, are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at [the Facility], you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession as follows:

a. between December 5 and 11, 2012, you failed to maintain the boundaries of the therapeutic Nurse-Client relationship in respect of [the Client]; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that while working as a Registered Practical Nurse at [the Facility], you sexually abused a Client, as follows:

a. between December 5 and 11, 2012, you engaged in sexual intercourse or other forms of physical sexual relations or touching of a sexual nature, or behaviour or remarks of a sexual nature with [the Client]; and/or

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at [the Facility], you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by Members as disgraceful, dishonourable or unprofessional, as follows:

a. between December 5 and 11, 2012, you failed to maintain the boundaries of the therapeutic nurse-client relationship in respect of [the Client]; and/or

b. between December 5 and 11, 2012, you engaged in sexual intercourse or other forms of physical sexual relations or touching of a sexual nature, or behavior or remarks of a sexual nature with [the Client].

Member's Plea

The Member admitted the allegations set out in paragraphs 1a, 2a and 3a and b in the Notice of Hearing. The panel received a written plea inquiry which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member's admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College and the Member advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts dated September 29 and October 3, 2014 which provides as follows (without the attached Appendix "A").

THE MEMBER

1. Daine Kuiken-Rogers (the "Member") obtained a diploma in nursing [ ] in April 2009.

2. The Member registered with the College of Nurses of Ontario (the "College") as a Registered Practical Nurse ("RPN") in August 2009.

4. The Member was employed at [the Facility] from June 2009 to December 2012, when he was terminated as a result of the incidents described below.

THE FACILITY

5. The facility is located in [ ] Ontario. It is a rehabilitation and psychiatric care facility.

6. Each client at the facility was assigned a primary nurse who was responsible for the care of that client. Among other responsibilities, the primary care nurse was expected to administer scheduled medications, communicate client progress to the physician and maintain the care plan. Each client would also be assigned an associate nurse, who would assist the primary nurse in caring for the client.

7. In September 2012, the Member was hired as a full-time primary RPN on [a psychiatric unit ("the unit")]. In December 2012, there were approximately 30 clients in [the unit].

8. The Member's responsibilities included caring for three to four clients per shift. In addition to his role as a primary nurse, he was also required to act as an associate nurse and work in partnership with another primary nurse.

9. There were 33 beds in the unit and the unit was divided into [ ] blocks. Each block was subdivided into groups [ ]. It was common practice for nurses to be assigned to the same block and the same clients on every shift for the purpose of consistency in client care.

10. Staff in [the unit] work regular eight-hour shifts, split into days, afternoons and nights.

11. One RPN and one RN were assigned to work night shifts, from 11 p.m. to 7 a.m. Night checks were completed by both nurses at 11:30 p.m. The checks performed at 1:30 a.m. and 3:30 a.m. were completed by one nurse only.

12. Regardless of the assignment, nurses and clients typically had ongoing interactions with each other during the course of the shift. All nurses were in a nurse-client relationship with all clients.

THE CLIENT

13. [The Client] was admitted to the facility as an in-patient on September 27, 2012 [and] remained at the facility until December 7, 2012, when she was discharged. Until [the Client] was discharged, [the Client] was permitted to visit [ ] home in the evenings, but returned to the facility to sleep.

14. The Client had a diagnosis of borderline personality disorder and had attempted suicide on at least two occasions in the past.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

15. The Member worked the night shifts from December 2, 2012, to December 6, 2012, from 11 p.m. to 7 a.m. He was the primary or assigned nurse for [the Client] on these shifts.

16. The Client approached the Member with a note on December 4, 2012, that contained [the Client's] phone number.

17. The Member initiated contact with the Client by emailing [the Client] on December 5, 2012, at 2:25 p.m.

18. Several sexually explicit emails were exchanged between the Member and the Client between December 5, 2012 and December 11, 2012, during and after the period when [the Client] was an inpatient at the facility. [ ].

19. The Member and the Client had a sexual relationship, which included intercourse on at least one occasion while the Client was still an inpatient of the facility.

20. The sexual relationship continued after [the Client] was discharged. They engaged in sexual intercourse again within three days following the Client's discharge from the facility.

21. The Member was aware that the personal and sexual relationship between himself and the Client was inappropriate. His email to the Client at 2:53 p.m. on December 5, 2012, stated, "Its inappropriate to [Facility] standards and mine but I think I can make an exception this one time. Theres somtn different bout u. It have to be kept very quiet cuz I could lose my job n licence" [sic].

22. The following emails occurred between the Member and the Client on Thursday, December 6, 2012, the night before [the Client] was discharged:

6:40 p.m. (Member to Client): But yes last night I wanted you bad. U turned me on like holy hell. Kinda hotter wen u know u can get caught n at my place of work lok [sic]

6:45 p.m. (Client to Member): Funny you say that cause I've been known to be a bit of an exhibitionist. Clothing store change rooms, under tables at restaurants, roadies, soccer fields, hotel bathrooms etc. I could go on....... It's easier in the summer [ ].

6:48 p.m. (Member to Client): Think tonight we could get away with me in you. Tease u. I know I don't have lots of time. But ur call. Or at 8 at ur place. Sorry still revd up from last night. N do u like everything sexual. Like all positions

6:56 p.m. (Client to Member): With the right person I love all positions. I have favs though; which are me on top, from behind, you on top with both legs behind my head, bent over grabbing my ankles, you sitting in a chair and me on top. I also LOVE giving head. Seriously, I can get off just doing that.

6:56 p.m. (Client to Member): By "get away with" what do you mean?

7:01 p.m. (Member to Client): Mmmm. I think you and me will get along just fine. N get away with at work was I men twat if u bent over on ur bed n I put myself in u on rounds. Think that work. N can I come over at 8

7:10 p.m. (Client to Member): Oh you think so eh. Also, I'm sure we can make that happen tonight on your rounds, but I will expect that kind of "hands on" care every time you come in. Oh and a PS. I kinda like it on the rough side.

7:10 p.m. (Client to Member): I'm still home now so at this rate it looks like I should be home. I'll also be home all of tomorrow night on my own.

7:11 p.m. (Member to Client): Do u like anal as well. And so do I. So on rounds tonight u want me to fuk u from behind. K now I'm hard. Thanks

7:12 p.m. (Member to Client): I hav a family xmas party tomorrow so my nights scratched. Ok well I can b thur like 815 820 if u want tonight. Wats the address

7:19 p.m. (Client to Member): Wow....... Um this is forward considering we have barely spoken. I have done it but wouldn't say it's common and would only ever be with someone I knew well, loved and felt safe and comfortable with. And yes, I assume fucking was what you were implying.

7:20 p.m. (Client to Member): You know what, I'll just see you later tonight back at [the Facility].

23. After not hearing from the Member on December 7, 2012, the Client emailed the Member with the following at 5:45 p.m.: "Um hi. reMember me?" Further emails were exchanged between the Member and the Client. At 9:51 p.m., the Client's email to the Member included the following: "Also I get the feeling this is just about sex for you, which isn't all I want."

24. On December 8, 2012, at 6:28 p.m., the Client wrote an email to the Member stating the following, "K I'm confused. You have sex with me and then blow me off?"

25. On December 9, 2012, at 5:55 p.m., the Client wrote an email to the Member: "Being with you and having you inside me felt so good. You are incredibly sexy and I could have fucked you for hours and hopefully will some time soon. I could just spend all day in bed with you. Feeling you and getting to know what turns you on and make you feel amazing. I'm glad cause you make me crazy wet and want you every way possible."

26. There were additional sexually explicit emails shared between the Client and the Member beyond those set out above that evidence a continuing sexual relationship between the Member and the Client which ended three days after [the Client] was discharged.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

27. The Member admits that he communicated via email with the Client and that the emails [ ] were sent by him to the Client and received by him from the Client.

28. The Member further admits that he sexually abused the Client, as he engaged in a sexual relationship with the Client before [the Client] was discharged from the facility, it continued for three days after the Client's discharge, and this sexual relationship involved sexual intercourse, sexual touching, and behaviour or remarks of a sexual nature while the Client was a client.

29. The Member admits that he breached the standards of practice of the profession by failing to maintain the boundaries of the therapeutic nurse-client relationship with the Client. [ ]

30. The Member admits that he committed the acts of professional misconduct as described in paragraphs 14 to 25 above, and as alleged in the Notice of Hearing at paragraphs:

• 1(a);
• 2(a); and
• 3(a) and (b), in that the conduct was disgraceful, dishonourable and unprofessional.

Decision

The panel considered the Agreed Statement of Facts and finds that the Member committed acts of professional misconduct as set out in allegations 1a, 2a, and 3a and b in the Notice of Hearing.

With respect to Allegation 3a, the panel finds that the Member engaged in conduct that would reasonably be considered by members to be unprofessional.

With respect to Allegation 3b, the panel finds that the Member engaged in conduct that would reasonably be considered by members to be unprofessional, dishonourable and disgraceful.

Reasons for Decision

The panel considered the Agreed Statement of Facts and the Member's plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation 1a in the Notice of Hearing – that the Member contravened a standard of practice of the profession by failing to maintain the boundaries of the therapeutic Nurse-Client relationship in respect of [the Client] – is supported by:

• paragraphs 12, 14, 16, 17, 18, 19, 20, 21 and 25 in the Agreed Statement of Facts;
• the electronic communications initiated by the Member dated December 5, 2012, at 2:53 p.m., 3:15 p.m. and 3:25 p.m., and December 11, 2012, at 8:32 p.m. [ ];
• Standard 3, Indicator (a) on page 7 of The Therapeutic Nurse-Client Relationship, Revised 2006 (updated June 2009); and
• Standard 4, Indicators (d) and (e) on page 9 of The Therapeutic Nurse-Client Relationship, Revised 2006 (updated June 2009).

The Member failed to maintain the boundaries of the therapeutic Nurse-Client relationship in respect of [the Client], and thereby failed to protect the Client from abuse.

Allegation 2 in the Notice of Hearing - that the Member sexually abused the Client through sexual intercourse, touching of a sexual nature and remarks of a sexual nature - is supported by:

• paragraphs 17, 18, 19 and 21 of the Agreed Statement of Facts; and
• electronic communications initiated by the Member beginning on December 5, 2012, at 2:53 pm continuing to December 11th, 2012, at 2:53 pm [ ].

With respect to Allegation 3a, the panel finds that the Member's conduct was unprofessional in that the Member failed to maintain therapeutic boundaries and caused a profound breach of trust in his relationship with [the Client].

With respect to Allegation 3b, the panel finds that the Member's conduct was unprofessional, dishonourable and disgraceful in that the Member intentionally disregarded his professional obligations and demonstrated an aspect of moral failing by engaging in a sexual relationship with [the Client]

Penalty

Counsel for the College and the Member advised the panel that a Joint Submission on Order had been agreed upon. The Joint Submission requests that this panel make an order as follows:

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

2. Requiring the Member to reimburse the College for funding up to the amount of $5,000 provided for [the Client] under the program required by s. 85.7 of the Health Professions Procedural Code, if the Client accesses the fund.

3. Directing the Executive Director to immediately revoke the Member's certificate of registration.

Penalty Submissions

College Counsel submitted that subsection 51(5) of the Health Professions Procedural Code (the "Code"), which is Schedule 2 of the Regulated Health Professionals Act, establishes mandatory statutory penalties for sexual abuse involving intercourse with a client: an oral reprimand and revocation of the member's certificate of registration.

The Code also provides that a client who is sexually abused by a member of the College is eligible for funding from the College for therapy relating to such abuse. The panel has the discretion to order that the College has a right of recovery for the costs associated with such funding.

The Member made no submissions in addition to the Joint Submission on Order.

Penalty Decision

The panel accepts the Joint Submission on Order and accordingly orders:

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

2. The Member [to] reimburse the College for funding up to the amount of $5,000 provided for [the Client] under the program required by s. 85.7 of the Health Professions Procedural Code, if the Client accesses the fund.

3. The Executive Director to immediately revoke the Member's certificate of registration.

Reasons for Penalty Decision

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

The reprimand and revocation were mandatory penalties. The panel found that the additional aspect of this order – requiring the Member to reimburse the College for funding up to the amount of $5,000 provided for [the Client] should [the Client] access the College's funding program for sexual abuse survivors – is reasonable and in the public interest in light of the Member's misconduct.

I, Nancy Sears, RN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the Members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Ashley Friest, RPN Karen Laforet, RN Renate Davidson, Public Member Margaret Tuomi, Public Member